Pocket Herbs and Produce Pty Ltd v Tweed Shire Council

The existing consents and the modification application

1. Development consent DA13/0712 was issued by the Council on 1 April 2014 (the First Consent) and authorised a micro herb production facility including two greenhouses, two pump sheds, potting shed/office, water tank, driveway access and associated earthworks. The two greenhouses approved under the First Consent are known as Greenhouse 1 (to the south) and Greenhouse 2 (to the north).
2. Development consent DA 17/0347 was issued by Council on 22 February 2018 (the Second Consent) and authorised the installation of a plant shelter and the production and processing of edible flowers in conjunction with an existing rural industry on the Land. The plant shelter is known as Greenhouse 3.
3. On 3 April 2018 the Applicant made the present modification application of the First Consent pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and on 11 December 2019 the Council approved the modification application in part, but the Applicant was dissatisfied with the decision. This is an appeal pursuant to s 8.9 of the EP&A Act.
4. The modification application seeks to modify the First Consent to authorise: 1. Construction of a bioretention basin, new spillway and grass swales identified in the Stormwater Management Plan prepared by Floodworks Lismore NSW, reference FW00025, revision E dated 15 April 2021 (Annexure A to EXH D); 2. Construction of a (min) 20mm thick lapped and capped timber acoustic barrier with (min) 50mm thick timber sleepers at the base to the north and south boundaries as detailed on drawing no 22196 sheets 1 - 4, revision K dated 30 April 2021 prepared by B&P Surveys; 3. Use of the existing domestic and stock bore in Greenhouse 2 for commercial irrigation purposes (to a total limit of 5ML per annum and for non-potable uses, noting that the existing dwelling on the Land will continue to have access for domestic and stock purposes); 4. The already constructed, and marked pink on drawing no 22196 sheet 1 of 4, revision K dated 30 April 2021 prepared by B&P Surveys: 1. compost toilet; 2. generator shed; 3. staff canteen with adjoining concrete slab and awning; 4. concrete pad and awning - growing media bays; 5. shipping container for storage; 6. fridge unit; 7. raised grow beds and grow pods adjacent greenhouse 3; 8. 6 x 22,000 litre water tanks; 9. 1 x 212,000 litre water tank and pump houses; and 10. 3 x concrete bays for compost storage.
5. It should be observed at this point that, although no issue was taken by the Council, in order to grant the modification application, the Court needs to be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted (s 4.55(2)(a) of the EP&A Act).
6. In both qualitative and quantitative terms, the development will remain a micro herb production facility, as was approved, with some additional growing facilities, ancillary buildings and activities and additional environmental controls. I am satisfied that the development as proposed to be modified is substantially the same as that for which development consent was originally granted.

Statutory and planning framework

1. Section 4.55(2)(d) of the EP&A Act requires the Court to consider any submissions made after notification and s 4.55(3) provides: (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
2. The site is zoned RU2 Rural Landscape pursuant to Tweed Local Environmental Plan 2014 (TLEP 2014). Development for the purposes of "Rural industries" is permitted with development consent.
3. The objectives of the RU2 zone which must be considered (cl 2.3 TLEP 2014) are: • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. • To provide for a range of tourist and visitor accommodation-based land uses, including agri-tourism, eco-tourism and any other like tourism that is linked to an environmental, agricultural or rural industry use of the land.
4. In the consideration of the acoustic issues it is to be noted that the third objective is that the zone is intended to provide for land uses which are compatible. One of the questions for the Court is whether the development as proposed is compatible with the adjacent rural residential uses having regard to its noise impacts.

The course of the proceedings

1. On 2 September 2020 a conciliation took place pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act). The matter was not resolved, and the conciliation was terminated.
2. On 21 October 2020 the Registrar listed the matter for hearing to commence on site on 28 April 2021, continuing in Court in Mullumbimby on that day and in Sydney by MS Teams for the two subsequent days. Directions were made for expert evidence to be filed by 26 February 2021. That direction was not complied with.
3. On 19 March 2021 the Applicant filed a Notice of Motion seeking to rely on an acoustic report by Mr S Gauld and a stormwater report by Mr M Bayley. The Applicant was providing new and additional information in order to address the contentions which the Council had hitherto raised.
4. On 25 March 2021 the Registrar granted leave to the Applicant to rely on the expert reports and directed that: 1. The Applicant file and serve its amended Statement of Facts and Contentions (ASOFC) by 30 March 2021; 2. The Council file and serve its amended Statement of Facts and Contentions in Reply (ASOFCR) by 6 April 2021; 3. The Experts' joint reports (stormwater and acoustics) be filed by 16 April 2021.
5. The Applicant filed its ASOFC on 1 April 2021. It was the Council's reply which determinates the issues in the proceedings, but the ASOFCR was not filed until 20 April 2021.
6. The issues articulated by the Council were that the arrangements for the collection and disposal of stormwater were unsatisfactory, and that the acoustic impacts of the development were unreasonable.
7. It appears that a draft ASOFCR was provided to the stormwater experts prior to 20 April 2021 because their joint report was filed on 16 April 2021.
8. A joint report of the acoustic consultants was not filed prior to the commencement of the hearing on 28 April 2021. It is not appropriate to attribute specific blame for that timing, but the following observations are made.
9. In this case the acoustic evidence was critical, not just for an assessment of whether or not there was compliance with the relevant acoustic standards. The acoustic evidence would determine the permissible loudness, duration and location of the various noise sources forming part of the activities of the Applicant. That is, the Applicant was required to modify its activities in order to achieve the relevant acoustic goals. Further, there was intended to be an acoustic barrier along the substantial part of the side boundaries, and its design, including precise location and height were to be determined by the acoustic experts.
10. It was entirely unsatisfactory that when the hearing began such matters had not been finalised. The resident objectors did not have that final detail to consider when they gave their evidence. A redeeming factor is that the objectors' submissions did not have to go to the precise detail of the proposal but went more broadly to the acoustic impacts of the development for the most part.
11. The acoustic experts attended on site at the commencement of the hearing but spent the next few hours conferring at the site and preparing their joint report.
12. The hearing commenced with the evidence from the objectors which is summarised below. I then inspected the site and the operations. A demonstration of the mobile "mister" was given. I attended the properties to the north and east, and observed the side boundaries of the site from both sides. At about 12.30pm the acoustic experts informed the Court and the parties that they had completed their joint report, that there was agreement that the acoustic goals could be met and that the report itself would be available very shortly. The Court was shown an area of the site where an additional acoustic wall was to be built to allow the use of a water pressure cleaner.
13. At the end of the site inspection it was clear that the Applicant needed to amend its plans and its operational management plan, and that the Applicant and Council needed to confer and prepare updated draft conditions. It was the case that there was general agreement between the parties, but that certain detail needed to be settled.
14. In the circumstances I considered it appropriate to allow the parties some time to prepare their documents and adjourned the hearing to commence in Sydney by MS Teams at 3pm on the following day 29 April 2021.
15. When the hearing resumed on 29 April 2021, I was informed that the documents had not yet been finalised and an application was made to adjourn to the following day. I acceded to that application, but some Court time was taken with the tender of documents before the matter was adjourned.
16. On 30 April 2021 the hearing was adjourned for short periods until the parties were ready to tender what were amended plans, plan of management and agreed conditions. The acoustic consultants gave evidence, the parties made submissions, and the decision was reserved.
17. It is entirely regrettable that, for whatever reason, a significant portion of available Court time allocated to this matter was wasted. There is no reason why the directions made by the Registrar on 25 March 2021 could not have been complied with. There is also no apparent reason why the Applicant could not have provided its additional stormwater and acoustic material well before it did so in March this year.
18. The Court has an obligation to give effect to the overriding purpose of the Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 56(1)). So too "a party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court" (s 56(3)). Whilst in the circumstances which were presented to the Court it was appropriate to permit the relatively short adjournments, and the matter was still completed in the allocated time, it cannot necessarily be said that the parties did all they could to facilitate the just, quick and cheap disposition of the proceedings.

The objectors' evidence

1. A number of written submissions were lodged with the Council. The issues raised were:

• Insufficient information
• Unsightly structures
• Noise impacts
• Not substantially the same
• Not compliant with Department of Primary Industry framework for intensive horticulture
• Proximity to adjoining properties
• Not compatible with zone objectives
• Overdevelopment of the site
• Impacts on the environment
• Unfavourable precedent

1. At the hearing evidence was given by:

• Mr D Hills of 47 Howards Road
• Ms D Minto of 74 Howards Road
• Ms K Paszkowski of 75 Howards Road

1. Mr Hills owns and lives in the property immediately to the south of the site and the dwelling is in the order of 50m from the side boundary. Mr Hills' concern was that the proposed acoustic wall or barrier should not be visible from his property and that it should not interfere with the vegetation which is on his property. His vegetation is in the order of 4m in height and will effectively hide the acoustic wall and therefore must not be disturbed.
2. Ms Minto gave evidence on her own behalf and on behalf of her sister. Their property is on the other side of Howards Road and slightly to the east. The home is elevated, and Ms Minto considered there were visual and noise impacts from the existing development and as proposed. Ms Minto was disappointed with the intensification of the business over the years and the conduct of the Applicant.
3. Ms Paszkowski lives with her husband at the property immediately to the north of the site. The dwelling is about 30m from the boundary. Ms Paszkowski has a small office towards the rear of the property from which she conducts a home business. Ms Paszkowski said she has suffered noise impacts for 5 years. The noise is variously from the Applicant's generator, fogging machines, fans and other machinery. She has no objection in principle to the acoustic wall but wants to ensure that it is done properly. She says that at times the noise reverberates through her house. Ms Paszkowski keeps a noise diary and showed the Court two short videos which demonstrated the noise she gets at her home.
4. Ms Paszkowski also expressed the frustration she has being the "noise police" and wants to ensure that all conditions are enforceable and that the Applicant complies with conditions of operation.

Expert evidence - stormwater

1. A joint report was prepared by Dr M Bayley retained by the Applicant and Dr D Martens retained by the Council. They were not required to give oral evidence.
2. An amended Surface Water Management Plan (SWMP) was prepared by Dr Bayley during the conferencing process. As a consequence, the experts agreed that the SWMP was acceptable, and agreed on the conditions of development consent to reflect that agreement.
3. In summary, the SWMP provides for:

• The collection of stormwater from hard surfaces and roofs;
• The construction and use of the bioretention basin;
• The reuse of roof water in irrigation;
• Sediment and erosion control measures;
• Stabilisation of the banks of the stream with vegetation and rocks;
• Water quality management and monitoring.

Expert evidence - acoustics

1. Written and oral evidence was given by Mr S Gauld retained by the Applicant and Mr S Cooper retained by the Council.
2. A summary of their common evidence is:

• The acoustic engineering work carried out prior to the involvement of Mr Gauld was unsatisfactory;
• The activities at the site have caused unreasonable noise in the past;
• They have considered the submissions from neighbours;
• Whereas the modification application is limited to certain parts of the site, for the purposes of acoustic assessment it is the cumulative impact of all noise generating activities on the site which needs to be assessed;
• The noise goal to be achieved is that in the NSW Environmental Protection Authority Noise Policy for Industry (Policy). The goal is best stated as the level of noise from the source measured over a 15 minute period (LAeq 15 min) does not exceed the background noise level by more than 5 dB;
• Compliance with Operational Noise Management Plan (ONM Plan) will mean that the noise levels will meet the goal of the Policy after construction of the proposed acoustic barriers;
• That conclusion is reached by making assumptions about the timing, location, use and power setting of the various plant and machinery used in the Applicant's operation and then determining the noise level at the nearest affected residences by use of an acoustic model;
• The ONM Plan provides for the timing, location, use and power setting of various plant and machinery which was assumed for the purposes of the acoustic analysis;
• The ONM Plan is capable of being observed in practice.

1. In response to questions from the Court the acoustic experts agreed that compliance testing was appropriate and should be included as a condition of the modified consent.

Consideration

1. Whilst the Council does not oppose the granting of the modification application, the Court must nevertheless be satisfied that it is appropriate so to do. In this regard I have been assisted by the evidence of the objectors to focus on the real issues of concern and which must be considered.
2. In relation to stormwater impacts, I have considered the SWMP and the Stormwater Management Plan annexed to it. In its terms it deals comprehensively with the potential environmental impacts of stormwater and pollutants at the site which is a sensitive environmental location in dealing with the subject matters set out at [46] above. There is no basis to reject the conclusions expressed by Dr Bayley, and I accept the evidence of Dr Bayley and Dr Martens for the reasons articulated by them and set out in the SWMP.
3. I accept without hesitation the evidence of the neighbours that the noise from the site has been unacceptable in the past. It appears that hitherto there has been little control or attempt to mitigate the noise from the site and the harm thereby caused by the excessive noise.
4. It should be observed of course that a use such as a rural industry which is permissible in a rural zone will cause some noise; it will rarely be incapable of being heard by its neighbours when in operation. Even in a rural zone such as the RU2 zone here, there is no entitlement of any resident to the inaudibility of an adjacent lawful use of land.
5. The acoustic experts have identified that the noise emitted however should comply with the acoustic goal in the Policy of being not more than 5dB above background when measured as an LAeq over 15 minutes. I accept that that is the proper approach, and no other approach has been suggested. The Policy is designed to balance the ability of industry to operate, but without causing undue interference to the amenity of nearby residents. If the noise from the site meets the standard in the Policy, then it can be said that the use is compatible with the adjoining and nearby land uses in the zone.
6. The evidence is clear that by a combination of factors the Applicant's activities will not exceed that criterion. As indicated above the factors in general are:

• The construction of acoustic barriers on the side boundaries;
• The construction of an internal acoustic barrier within which high pressure washing can take place (and nowhere else can it take place);
• The limit on the speed/power at which the mister can be used;
• The limitation on the hours of operation of certain plant and machinery such as the water tank pumps;
• The limitation on the speed/power of fans in the greenhouses;
• Limiting the hours of operation and the location of operation of mobile plant such as forklift and electric wheel loader.

1. The measures are set out in the ONM Plan. A proposed condition of consent requires compliance with the ONM Plan and the principal control measures are themselves proposed to be conditions of the modified development consent. There is a condition that the overall acoustic goal be met - regardless of compliance or otherwise with the ONM Plan the proposed conditions require that the Applicant's operation not exceed the acoustic goal of 5dB above the background level.
2. The ONM Plan also has provision for notice to neighbours of any atypical activities or changes to the standard operational timetable. There is a complaint management system to be commenced.
3. Subject to one matter, I accept the experts' evidence that with the measures in place the acoustic impacts will be acceptable, because the noise will not exceed the adopted standard. The conclusion also means that the relevant zone objective of compatibility of land use is met.
4. The reservation is that to some extent the success of the regime depends upon human behaviour, and more specifically, the Applicant and its employees complying with the terms of the ONM Plan in relation to the use of plant and machinery. In a perfect world the design of a development will satisfactorily contain the impacts of the development without the need for human intervention. That however is frequently not the case. There are many examples where the satisfactory operation of a development is dependent upon operators and their employees complying with a plan of management, such as child care centres and hotels to name but two.
5. It is important to be satisfied that a plan of management is reasonably capable of being observed. In this case that is so. There is no requirement or measure which is tinged with absurdity or is unrealistic. There are standard limitations within the ordinary scope of the Applicant's operation. The ONM Plan does not require people to act in a manner that would be unlikely or unreasonable.
6. Nevertheless in circumstances where the predicted outcome is based upon theoretical modelling (about which there is no criticism) and expected human behaviour, in my opinion it is important that there be a method for compliance testing when the acoustic measures have been undertaken and the Applicant is conducting its usual activities. The compliance testing must be undertaken without the knowledge of the Applicant and with the cooperation of at least the nearest affected neighbour. I accept Mr Cooper's evidence that compliance testing may be difficult, in that an outcome of that testing may not be definitive for all circumstances. But in my opinion, there must be compliance testing to achieve a reasonable level of satisfaction that the acoustic measures have been successful in achieving the acoustic goal. A condition of consent has been included in the draft conditions at my request.
7. The Court's planning principle in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 at [53]-[55] (as modified in Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 at [72]) poses the following questions: "1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? 2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? 4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements? 6. Is the Management Plan incorporated in the conditions of consent, and to be enforced as a condition of consent? 7. Does the Management Plan contain complaint management procedures? 8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?"

• The requirements of the ONM Plan relate to the proposed use and are intertwined with the proposed conditions of consent;
• The ONM plan does not require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case;
• The source of breaches can be identified because the noise source is apparent by its nature and location;
• The requirements in the ONM Plan do not require absolute compliance to achieve an acceptable outcome because generally the noise goal is achieved with some margin and the prospect of the operation of all relevant noise emitting sources at once is remote;
• The Applicant and all its employees will be made aware of the terms of the ONM Plan;
• The ONM Plan is incorporated in the conditions of consent, and can be enforced as a condition of consent;
• The ONM Plan has a complaint management procedure;
• There is provision for review of the ONM Plan.

1. For the preceding reasons, in my opinion the ONM Plan is satisfactory.
2. The plans of the proposed modification now show clearly the location of the acoustic barrier adjacent to the side boundaries. There is no interference with the neighbouring vegetation, save for some minor pruning of overhanging branches in a few locations. The adjoining vegetation will remain as a substantial visual barrier to the acoustic barrier on the site.
3. Further, the substantial vegetation on the site itself remains largely intact. There is only a small reduction at 3 "pinch points" which will have no material bearing on the overall presentation to the neighbouring properties.
4. I am satisfied that the landscape context of the acoustic fence, and indeed of the site is appropriate and that the fence will be largely obscured when viewed from the neighbouring properties.

Conclusion

1. It is clear from the expert evidence and for the reasons articulated above that the modification application is worthy of approval. The acoustic impacts which have been suffered by neighbours for some time will be ameliorated to such an extent to be reasonable having regard to the relevant standard.
2. The compliance test is important and should in due course provide a degree of comfort to the neighbours who will by then be enjoying a significant improvement in their amenity and acoustic environment.
3. A final observation. Ms Paszkowski quite understandably complained of the need of her and potentially other neighbours to "police" the activities of the Applicant to ensure compliance and to inform the Council of a potential breach when necessary. The difficulty is that Councils rely upon complaints from members of the public to inform them of issues which require the Council's intervention. It will always be the case that neighbours of developments will have to observe and report if there are breaches of conditions of development consent so that a council can take any necessary action. It can be said, however, that the Applicant is undoubtedly now well aware of the consequences of a breach of the conditions of development consent.
4. I make the following orders: 1. The appeal is upheld; 2. Development consent DA13/0712 dated 1 April 2014 for a micro herb production facility including two greenhouses, two pump sheds, potting shed/office, water tank, driveway access and associated earthworks at Lot 3 in Deposited Plan 1191598 known as 67 Howards Road, Burringbar is modified by the addition of the conditions in Annexure A. 3. Development consent DA13/0712 as modified in accordance with order (2) is Annexure B. 4. The exhibits be returned other than exhibits A, B, D and 1. ………………………… P Clay Acting Commissioner of the Court Annexure A (134621, pdf) Annexure B (192777, pdf) Plan of Management (575271, pdf)

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