101 Various incidents are recorded in the overall period from 18 April 2001 to 30 October 2001 and there are recorded some 30 complaints of odour, all but two of which, were made by the Applicants.
102 The recorded 'action' for most of the recorded odour complaints is for the most part "No odour evident". However sometimes the 'action' recorded is simply that the complaint was investigated by a Council staff member with no other outcome recorded. On a few occasions the 'action' records that odour was detected - sometimes it was said to be "not significant" and on one occasion the 'action' recorded was "Odour was offensive".
103 Apart form the obvious incompleteness of some of the entries in the 'summary of complaints' document it should be noted that the documentary materials indicate that the Applicants made nine further complaints during the period recorded which are not recorded in the document and that the Council had been informed by the Applicants that there were many other specific occasions during the overall period recorded when odour problems were experienced by the Applicants, but where those experiences had not been translated into complaints made by the Applicants to the Council.
104 Notwithstanding the fact that the summary of complaints document has recorded for the vast majority of the 30 complaints, that the relevant action was 'no odour evident' it is apparent from the Council's decision directing its Environmental Planning Manager to investigate the option of obtaining an independent assessment of odours from the dairy that the Council did not itself regard the summary complaints document as demonstrating that the problems of odours generated by the dairy operations had been satisfactorily resolved.
105 In these circumstances the decision taken on behalf of the Council to abandon the independent odour assessment because the quoted cost of $7,700 for 7 days odour monitoring was considered "exorbitant" cannot be regarded as anything other than a manifestly unreasonable decision.
106 In the context of the Council's redetermination of the development application the Council's acceptance of the decision to abandon the independent odour assessment provides a substantial basis for the drawing of the ultimate inference that the Council's evaluation of the environmental impact (odour impact) of the dairy operation was legally deficient in that the Council clearly (and probably deliberately) failed to obtain a proper understanding of the nature and scope of the odour impact and failed to engage in an evaluation of that impact in a manner that would reflect a fair assessment of that impact and its significance to the decision required to be made in terms of s79C.
107 To so conclude , does not mean that the mere assertions in the Applicants' complaints demonstrated the existence of odour problems. But the existence of the complaints clearly required investigation over and above the levels of investigation that were provided by the Council's incomplete responses to some of the complaints made by the Applicants. Moreover the existing operation of the dairy provided the Council with the optimal opportunity for an evaluation of odour impact as required by s79C by reference to known or ascertainable fact rather than conjecture or opinion. But for reasons that are not apparent it chose to forego that opportunity to ascertain the facts. (In so concluding I necessarily set aside, as manifestly unreasonable, the decision to abandon the independent odour assessment at the quoted cost of $7,700 "because that cost was exorbitant").
108 Moreover the Council redetermined the development application without waiting for the response from the Environment Protection Authority to the Council's consultation with that body by letter dated 11 October 2001. The Environment Protection Authority letter dated 9 November 2001 (which was not included ion the documentary materials submitted to the Council's Meeting held on 12 November 2001) had included the following advice:
As advised in previous correspondence in relation to this proposal, the number of dairy cows in the proposal is less than the threshold for the schedule of licensed activities under the Protection of the Environment Operations Act 1997 (POEO), therefore, the Environment Protection Authority (EPA) does not have a statutory role in the development.
The EPA notes that, as a result of a previous development consent set aside by the Land and Environment Court, this development currently exists. As you are aware, there have been a number of complaints in relation to this activity. As Council is the Appropriate Regulatory Authority (ARA) the regulation of these issues is a matter for Council. However, odour and water pollution appear to be matters requiring careful consideration by Council in relation to this re-determination.
The EPA reiterates its previous advice, as follows. The location of the nearest residences that may be impacted upon by odour and noise from the proposal should be considered. Particular attention should be given to the storage and spreading of the effluent and the potential for noise due to the increased activity during construction and during the proposed operational periods. In addition, erosion and sediment controls for the site should ensure that surface waters are protected, including during periods of flooding.
109 The Report of the Council's Environmental Planning Committee next proceeds to consider the question whether SEPP 30 applied. In this context it rehearses the history and outcome of the earlier proceedings before Pearlman J including the opinion evidence given in those proceedings as to whether the Thompson's proposed development was relevantly a "cattle feedlot" within the meaning of SEPP 30. This section of the Report culminates in the opinion that SEPP 30 does not apply. In comparison with the other contents of the Report, the section devoted to this topic is overwhelmingly predominant. Although I have previously suggested the probable reasons for this outcome, what is more important for present purposes is whether the preponderant consideration given to the question of SEPP 30 casts light on the question whether the Council properly considered the environmental impact (especially odour impact) of the dairy operation.
110 It may be readily accepted that there is an obvious link between the Council's reliance upon what various Guidelines were suggesting in relation to appropriate distance buffers around dairy operations and the evaluation of the odour impacts of the dairy operations. However I do not think that the Council's duty to consider environmental impacts of odours generated by the dairy operations was fulfilled by the Council's decision that SEPP 30 did not apply, and hence the more extensive buffer requirements applicable under that Policy did not apply, and that in consequence of that decision reliance could be placed upon the lesser buffer standards contained in the Guidelines.
111 The reason for so concluding is founded upon the fact (previously noted) that the Council, in so proceeding to redetermine the Thompson development application, had the obvious advantage of evaluating the environmental impacts of the dairy operation as an existing operational dairy (having been so operating for the five months preceding the Council's redetermination of the development application) in circumstances where the Council was fully aware that odour problems had manifested themselves and had generated significant levels of complaints from the neighbours to the dairy, and especially the Applicants. In these circumstances it is obvious that that duty would not be properly fulfilled merely by reliance upon buffer standards suggested in relevant guidelines, without proper investigation and evaluation of the known or ascertainable facts pertaining to odour problems caused by the dairy operation.
112 The final section of the Report of the Council's Environmental Planning Committee is a very brief statement recommending that development consent be granted subject to all of the conditions that had been imposed on the original development consent, and that "the Protection of the Environment Operations Act conditions be provided to enforce any problems in the future". (This additional condition was imposed as Condition 68 that I have earlier recited).
113 It is obvious that this section of the Report does not provide any reasons for the Committee's recommendation or any evaluation of the environmental impacts (especially in terms of odour impacts) of the dairy operation, except possibly to the extent that such an evaluation may be deduced from the terms of the conditions imposed upon the regrant of the development consent. I have earlier identified conditions 11, 15 and 68 as conditions relevant to the regulation or mitigation of odour impacts generated by the dairy operation. In addition to those specific conditions, there are other conditions requiring the preparation of an annual environmental management report (conditions 47 and 48) and requiring regular monitoring for compliance with conditions of consent including the formation of a Monitoring Committee (conditions 62 and 63). Importantly all of these conditions except for Condition 68 replicate the conditions of the original development consent.
114 In my judgment the existence of Condition 68 does not demonstrate a proper consideration of the environmental impact (especially odour impact) of the dairy operation. It merely declares what is otherwise substantially provided in the relevant provisions of the Protection of the Environment Operations Act 1997. It does not expand the operation or effect of those substantive provisions. At best it commits the Council to take appropriate action pursuant to the Act in respect of the carrying out of the approved dairy use "in an environmentally unsatisfactory manner".
115 The reimposition on the regrant of the development consent of the same conditions having relevance to the regulation or mitigation of odours as had been imposed on the grant of the original development consent, does not, in my judgment demonstrate a proper consideration by the Council of the environmental impact (especially odour impact) of the dairy operation in circumstances where the Council had fully known during the five months operation of the dairy that that regime of conditions had not prevented odour problems from the dairy frequently being experienced by neighbours of the dairy.
116 Moreover the reimposition of Conditions 11 and 15 in the known circumstances of odour problems having been frequently experienced by neighbours during the five months existence of the operation of the dairy provides a basis in the evidence for the inference that the Council's decision to regrant the development consent upon the same conditions failed to properly evaluate the environmental impact of the dairy operation. To the extent (which seems likely) that the Council's decision involved little or no further evaluation than that which had informed its original decision to grant the original development consent subject to conditions, such an approach was clearly a legally inadequate evaluation of the known or ascertainable environmental impacts (especially odour) of the dairy operation.
117 To the extent that the Council's decision reflected its awareness of the odour problems and its reliance upon the documentary materials that were submitted to its Meeting held on 12 November 2001 together with the Report of its Environmental Planning Committee the inference is available that there was no real attempt to understand the nature and extent of the known or ascertainable problem of the odour impact of the dairy operation or to evaluate its significance to the decision required to be made by s79C of the EP&A Act.
118 The documentary materials that were submitted to the Council included the advice from NSW Agriculture. But most importantly that advice was prefaced by the statement that "NSW Agriculture is not the authority on odour generation and control". (Although that statement did not nominate who was the relevant 'authority' the advice from the Environment Protection Authority clearly was that it was the Council itself which was the relevant authority under both the EP&A Act and the Protection of Environment Operations Act.)
119 The documentary materials also included professional advice obtained by the Thompsons for successfully overcoming the odour problems. But that advice which focussed on remedying the odour problems associated with the anaerobic pond was not incorporated in any relevant condition imposed on the regrant of the development consent. In this respect it is to be noted that Condition 15 (whatever its precise effect) is expressed not to apply to "the effluent treatment ponds" as a "potential odour source".
120 There is nothing in the other documentary materials (including the various Guidelines) that either itself provided an evaluation of the environmental impact (especially odour impact) of the dairy operation or the means for making such an evaluation. The inspection of the dairy by the Environmental Planning Committee for a brief period on 5 November 2001 could provide no more than a solitary isolated "snapshot" experience, which could not provide the basis for a proper evaluation.
121 Having regard to the foregoing aspects of the documentary evidence the Applicants urge the Court to find that the Council did not come to a proper view as to the impact of odour or its amelioration - rather the Council merely adverted to the problem (insofar as it was raised in the documentary materials) and that the mere reimposition of Condition 15 (in a slightly variant form from the original condition) as the Council's ostensible solution to the odour problem clearly demonstrated that the Council had failed in its duty.
122 These submissions are clearly enough founded upon the exposition found in the judgments in Weal of the nature of the statutory duty of a consent authority in terms of s79C of the EP&A Act to take into account relevant considerations. It is important to appreciate that the exposition in Weal occurred in the context of the imposition on the grant of development consent of a deferred commencement condition which stated that "the consent shall not operate until the applicant satisfies the Council that the relevant approvals by the Environment Protection Authority have been obtained": see at 184.
123 It was common ground in that case that the deferred commencement condition had been imposed by the council as its response to its duty to take into consideration the environmental impact of the development in terms of noise emissions and their impact on neighbouring residences. Thus the question in Weal as formulated by Mason P at 184 (and agreed in by Priestley JA at 189) was whether that condition was "a legally deficient response or evidence of a legally deficient approach to the council's duty". In the result a majority of the Court (Giles JA with whom Priestley JA agreed) held that council in granting the development consent subject to conditions (including the deferred commencement condition) had not properly taken into consideration a relevant matter, (the noise impact of the development) and that in consequence the development was void and of no effect.
124 Much of the reasoning of the principal judgment given by Giles JA in Weal is concerned with the effect of the deferred commencement condition and the relevant provisions of the EP&A Act authorising the imposition of a deferred commencement condition. That aspect of the reasoning is not relevant to the present case (which does not involve a deferred commencement condition). But in elaboration of the duty to give "proper consideration" to a relevant matter, Giles JA said at 201:
Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration ( Parramatta City Council v Hale at 335-6, 339; King v Great Lakes Shire Council at 384; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374-5).
125 To similar effect is the following passage at 204:
"…but its consideration (of relevant matters) had to include an understanding of the state of affairs and an evaluation of relevant matters with that understanding."
126 Although Mason P delivered a dissenting judgment he expressed agreement with the judgment of Giles JA as "identifying the relevant legal principles" (at 183) and the President's judgment had the agreement of Priestley JA insofar as it had stated "the general approach [that] both the Land and Environment Court and this Court should take to appeals of this kind" (at 189). ie proceedings by way of judicial review of administrative decisions granting development consents etc.
127 In the context of considering the inherently flexible boundaries of judicial review the President made the following observations at 185:
There is little point in searching for a definitive statement of what is involved in taking something into consideration. I am however, attracted to Gummow J's formulation of "proper, genuine and realistic consideration upon the merits" . This was in the context of s5(2)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292). The formulation has been carried across to the proper consideration ground of review and now appears to have general acceptance in the Federal Court of Australia (see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 57 where the authorities are collected by Merkel J).
128 In elaboration of the duty imposed upon the council in considering the environmental impact (noise) of the development the President said at 185:
The weighing of factors tugging in opposite directions was the task of the Council, not the Court. Nevertheless, the duty to take noise into consideration required more than simple advertence to the noise issue. I agree with Giles JA that there had to be an understanding of relevant matters and their significance to the decision required to be made, as well as a process of evaluation sufficient to warrant the description of the matters being taken into consideration. Legally sufficient consideration of the noise issues extended to consideration as to appropriate conditions limiting and controlling noise if consent was to be forthcoming.
129 That exposition is further elaborated in the following passage from the President's judgment at 186:
I agree that, for this project, proper consideration required an adequate understanding of the state of affairs involving noise and the evaluation of the relevant s90 matters consistent with that understanding. Generally speaking, understanding the scope of a problem is a prerequisite to addressing its solution (by imposing a condition or, in an extreme case, rejecting the development application). But I respectfully part company with Giles JA at his conclusion that the Council's understanding was so deficient as to vitiate the particular consent. In my view, a problem can be recognised and addressed without precise determination of its scope, at least so long as the decision is made in the light of an understanding of the outer limits of the problem and so long as the chosen means "take into consideration" a fair assessment of their potential impact. This is what happened here, for the reasons stated above.
130 The competing submission advanced on behalf of the Council was that the documentary evidence reveals that the Council had knowledge (both actual and constructive) of the environmental impact, particularly in terms of odours emitted from the dairy operations and that in the light of that documentary evidence and the inferences available to be drawn from it, it was incumbent that the Applicants establish that the Council, as a collegiate body, "shut its mind to, and hence failed to consider" the relevant matter.
131 In my opinion the Council's submission does not accurately reflect the true nature and scope of the Council's duty to consider the environmental impact of the development (especially its odour impact ) as expounded and illustrated by the Court of Appeal's decision in Weal.
132 The relevant legal standard or criterion that is established by Weal is that in discharging its duty to take a relevant matter into consideration the consent authority must do more than merely 'advert' to the matter - it must 'understand' the matter and its significance to the decision required to be made and it must 'evaluate' that matter by adopting a 'fair assessment' of it. (This is a summary of the passages I have already quoted from the judgment of Mason P).
133 In applying that legal standard or criterion to the decision of the Council to regrant the development consent subject to conditions as revealed by the documentary evidence, I have come to the conclusion that the Council's decision betrays a legally deficient response or approach to the duty imposed upon the Council to take into consideration the environmental impact of the development especially the impact caused by odours generated from the dairy operations.
134 My reasons for coming to this conclusion, which is derived as an ultimate inference from the relevant documentary materials, have substantially been already stated as I have proceeded to analyse (i) the Report of the Council's Environmental Planning Committee, and the other documentary materials that had been submitted to the Council's Meeting held on 12 November 2001, and (ii) the Council's decision to regrant the development consent, subject to conditions.
135 As I have attempted to demonstrate those documentary materials provide the basis for the drawing of the ultimate inference that in regranting the development consent subject to conditions the Council failed to properly take into consideration the environmental impacts (especially odour impacts) of the dairy operation. In particular the inference is available that the Council failed to understand the true nature and extent of the odour impact problems and failed to evaluate by way of a fair assessment, the significance of that impact to the decision required to be made by s79C of the EP&A Act. These failures are highlighted by the Council's manifestly unreasonable decision to abandon its proposal for there to be conducted an independent assessment of the odour impacts generated by the dairy operation, thereby leaving itself to be confronted by a miscellany of documentary materials, which themselves provided neither the required evaluation of environmental impact (especially odour impact) of the dairy operation nor even the basic data for such an evaluation to be undertaken.
136 In the absence of evidence being called by the Council as to how it evaluated the odour impact in coming to its decision to regrant the development consent, the inference that it failed to properly consider the environmental impacts of the dairy operation might be more confidently drawn (Jones v Dunkel) and I draw it.
137 The presumption of regularity does not apply to this aspect of the Council's decision because the documentary evidence that I have referred to is of such a nature as to provide contrary evidence in rebuttal of the presumption.
138 It has not been, nor could it reasonably be, disputed that if the Applicants succeed in their allegation, the failure relevantly vitiates the Council's decision to regrant the development consent, because of the obvious and acknowledged importance of the odour problems already experienced with the dairy operation.
139 Accordingly for all the foregoing reasons I hold that the Applicants have proven that the Council has failed to properly consider the environmental impact (especially odour impact) of the dairy operation, and that failure necessarily vitiates the decision to regrant the development consent.