42Copies of the three submissions made by objectors were attached to the officer's report before the Council. The first submission stated:
As we have plans for the development of 32 house blocks directly alongside this factory we have huge reservations in regard to odour and noise issues which may devalue our investment significantly. Having spoken to someone who has worked in a cheese factory for years, I would seriously question the merit of building one in such a central urban area. Break-downs and spills are inevitable and a factory working nightshift is bound to have noise issues including traffic.
43The second submission stated:
My concern re this development is the odour level that will come from this processing plant also the level of noise from refrigeration units, and who and how these will be monitored.
44The third submission stated:
We have a granny flat in our backyard where Les' mother who is in her 80's resides. We are concerned about the impact of the factory on her lifestyle as well as our own. A factory producing cheese and yoghurt would surely have odour issues, the traffic on Parkman Ave (dirt road dust, the noise from trucks loading, unloading, cleaning machinery) - probably not huge through the day - but working 24 hours would not be tolerable.
45The officer's report noted that the Council's Senior Health and Building Surveyor had raised concerns about the proposed development and the sufficiency of information provided in the development application. The whole of the Senior Health and Building Surveyor's memorandum dated 22 August 2011 was quoted in the officer's report. In relation to the issues of noise and odour, the Senior Health and Building Surveyor said:
There appears to be no detail on the location or noise reduction method proposed for the compressors that will be required for the refrigeration system. Given the nature and size of the cool rooms, it is imperative that Council is provided with comprehensive details of the installation, and in particular, the method of minimising noise disturbance to adjoining residential development. It is suggested that this should be the subject of an investigation and report by a qualified consultant, as this aspect of the development is probably the one that will cause the most complaints. The following condition should be attached to the Development Consent:
'Council must be furnished with a report from a suitably qualified consultant that includes the following:
(a)A detailed assessment of background noise levels.
(b)A detailed assessment of the type and location of all proposed refrigeration equipment and all associated machinery.
(c) A detailed assessment of any operational equipment that is proposed to be used in the processing of the product, and its likely impact on surrounding residential development.
(d)An analysis of traffic movement and the likely impact on the surrounding residential development.
(e)A detailed proposal that addresses any issues that are identified at items (b) (c) & (d), including, but not limited to, the appropriate design of any noise reducing barriers or enclosures.
This report must be submitted to Council as a part of the documentation required for the assessment of the Construction Certificate'.
There is only a brief reference in the application to odour and it is doubtful that the type of processing involved can be undertaken without creating odour. Given the proximity to residential development, it would be appropriate for the applicant to amplify his statements about this aspect, and perhaps also appropriate for him to provide some form of documentary evidence from a suitably qualified and independent consultant that could confirm his assertions that there will be no odour.
46Thirdly, the Council was informed of the assessing officer's consideration of the issues of noise, odour, traffic generation and amenity, as well as liquid trade waste, including how these issues should be addressed by appropriate conditions of consent.
47In relation to noise, the officer's report said:
As mentioned above concerns were raised in relation to noise in all three (3) submissions made to Council on the application. These concerns include the potential for noise from:
traffic using the site, vehicles loading and unloading and noise being more of an impact during night time hours;
refrigeration units.
As little documentation has been submitted in relation to the noise generating potential of this development, particularly night time operation it is not surprising that concerns are raised. The DA makes no statement nor provides any information about projected noise levels associated with the development (machinery/ equipment, processes, traffic movements etc) despite being requested to do so in information handed to the applicant in a 'pre-DA' meeting with the applicant on 27 May 2011.
There are no details provided of where compressor/refrigeration units are to be located or on the number and specification of such units. The compressor/refrigeration units are likely to be a source of noise generation and complaint to nearby residences in the evening hours in particular. Traffic movement to and from the site and external activity on site such as loading and unloading is likely to also cause local noise nuisance in the evenings.
It is considered for these reasons that night time operations should not be permitted at this stage. This can be conditioned as part of the development consent. However, should the enterprise operate in a responsible manner it may be possible to consider a section 96 application for modification of consent seeking a variation of approved hours of operation provided that a noise assessment report that meets the guidelines set out in the former NSW EPA's 'NSW industrial noise policy' (including determining the project-specific noise levels, predicting level of noise from the source and determine noise impact, considering mitigation options, negotiation of acceptable level of impact) is submitted by the applicant.
48This assessment identifies noise impacts as arising from two sources: traffic using the site, including vehicles loading and unloading, and refrigeration units. Both noise sources would have more impact during night time hours. The officer recommended addressing and mitigating those noise impacts by imposition of conditions. These proposed conditions were included in Schedule 1 to the officer's report.
49The officer's proposed conditions 3 and 4 addressed the potential sources of noise from traffic and loading and unloading of vehicles by limiting the hours of operation so as to exclude evening and night time operations. Hence, if conditions 3 and 4 were imposed, there would be no traffic using the site or vehicle loading and unloading in evening or night time hours and hence no noise impact on surrounding residential properties from these potential sources of noise in these hours. Proposed condition 3 stated:
Approved hours of operation - The approved hours of operation are:
From 6am until 6pm, Monday to Friday for any manufacturing, processing, or service and maintenance operations, heavy vehicle deliveries or dispatches, loading and unloading operations.
From 7am until 5pm [on] Saturdays
On Sundays and Public Holidays there shall be no operations permitted (that is no manufacturing or processing, service and maintenance of vehicles, plant or equipment) however milk delivery trucks will be permitted to deliver to the site on Sundays, but only between the hours of 7am and 6pm.
Reason - to protect and maintain the amenity of the adjacent residential neighbourhood and to ensure that adjoining residents are not subjected to intrusive and offensive noise, and other impacts that have not been disclosed by the application.
50Proposed condition 4 stated:
This Consent specifically excludes the following:
(a)Evening or night time operations of any kind or description outside of the approved hours of operation specified in condition 3.
(b)Approval for use, for any purpose whatsoever, of the mezzanine area. A separate and specific application and consent to use this space is required.
Note: The applicant's attention is drawn to the provisions of the Premises Standards that may affect the use of this area.
Reason for 4(a) - to maintain the amenity of the adjacent residential neighbourhood and to ensure that adjoining residents are not subjected to intrusive and offensive noise, particularly in the evenings.
Reason for 4(b) - there is no current approved use of the mezzanine which was indicated on the approved plans for DA 21/02 and CC 88/03 as future office (and future stairs).
51The officer's proposed condition 15 addressed the second potential source of noise from the refrigeration units by requiring verification from an acoustical engineer that the refrigeration units would not cause intrusive noise. This verification was required to be submitted before the issue of a construction certificate and hence before the applicant could carry out the development. If verification that the refrigeration units would not cause intrusive noise was not provided, the construction certificate could not be issued and the proposed development could not be carried out. The officer's proposed condition 15 provided:
The applicant must, prior to the issue of a Construction Certificate, provide details of the number, nature and location of internal and external compressors and other refrigeration plant/equipment, including details of enclosure and sound proofing, with verification (e.g. an acoustical engineer's report) that night time operation in particular will not cause an intrusive noise impact ie in general, where the equivalent continuous (energy-average) A-weighted level of noise from the source (represented by the LAeq descriptor), measured over a 15-minute period, does not exceed the background noise level measured in the absence of the source by more than 5 dB (or LAeq 15 minute is less than or equal to rating background level plus 5), where:
LAeq 15 minute represents the equivalent continuous (energy average) A-weighted sound pressure level of the source over 15 minutes.
Note: Other descriptors may be used as appropriate provided they can be justified on the basis of being characteristic of the source (see Section 2.3 NSW industrial noise policy). This is to be assessed at the most-affected point on or within the residential property boundary - or, if that is more than 30m from the residence, at the most-affected point within 30m of the residence. Rating background level is the background level to be used for assessment purposes as determined by the method outlined in Section 3.1. NSW industrial noise policy.
Council reserves the right to require the applicant, at their sole cost and expense, to engage the services of an appropriately qualified person to determine compliance with the foregoing condition, in any case where Council is in receipt of a bona fide complaint from any occupant of an affected residence.
Reason - to ensure that any externally located compressors and other refrigeration plant/equipment not disclosed or documented as part of the application operate within reasonable limits set by noise management guidelines and policy.
52The officer's proposed condition 2 provided an additional safeguard limiting the duration of the consent to a trial period of 18 months in order to verify that the development could operate without causing intrusive and offensive noise or impairing the amenity of the neighbourhood. The officer's proposed condition 2 provided:
Operational period of consent - Consent to operate the premises in the manner approved is granted for a maximum period of 18 months. This period is to commence from the date of the issue of an Occupation Certificate or Interim Occupation Certificate in respect of this Development Application and Consent. The Council in its absolute discretion will determine whether to extend this period following a review of the operation of the premises over the first twelve months of this period. The period of any extension so granted will be dependent on the satisfactory compliance with the terms of the conditions of consent attached to this Consent.
Should the applicant not apply for, or be issued with, an Occupation Certificate or Interim Occupation Certificate, then this consent will lapse 12 months after the date shown on this Development Consent.
Reason - to protect and maintain the amenity of the adjacent residential neighbourhood and to ensure that adjoining residents are not subjected to intrusive and offensive noise, and other impacts that have not been disclosed by the application.
53In relation to odour, the officer's report stated:
Again as mentioned above concerns were raised in relation to possible odour issues in all three (3) submissions made. These concerns are held due to unknown nature of the manufacturing processes involved and from possible break downs and spillages for instance.
The containment and minimisation of spills and the quick cleaning up of spillage will be one key measure to reducing and managing odours as will the adequate treatment and disposal of liquid waste. Also key to odour reduction will be the containment and minimisation of odour from manufacturing processes. There is no detail in particular in relation to this aspect. Processing will occur within the existing but to be modified shed - however there are no details of the nature and kind of potential odours, containment, treatment or otherwise.
In the circumstances it would seem reasonable to issue a time limited consent initially (e.g. 18 months) for an enterprise that operates largely through daylight hours.
54The officer's report also dealt with odour in the section on amenity, discussed below.
55Attachment 1 to the officer's report contained information from the applicant, including on the issue of odours. In the original statement of environment effects (attached to the officer's report before the Council), the applicant said:
By Products & Waste Water
By-products such as whey that would be generated through the process would be carted off site and fed to stock back at Kerang. The process will not produce odours, and the only waste that will be on the site will be washdown water from the washing of equipment and storage tanks. This water will gravitate to a treatment tank where it will be held and the pH level monitored and treated if necessary. The water would be then pumped into tanks for re-use on gardens or diverted into the sewerage system. These storage tanks would be a total storage volume of 40,000 litres. We believe that we would use approximately 4,000 litres per day. 1,000 litres of this to wash the milk tanker and approximately 2,500 washing pasteurisers, separator, vats and floor. The water will be a combination of hot and cold water, alkaline detergents and caustic soda would be used in the cleaning of the plant which would be the same detergents used in a normal dairy. This water as mentioned will be held, monitored, treated and released.
56In the supplementary letter dated 2 August 2011 (also attached to the officer's report before the Council), the applicant said:
Odours and Waste
The whey material will be transported off site and the remainder of the product will be processed and packed, so we are confident that there will be no odours. Testimony to this is the current processor that we use in Kyabram, who are processing a far larger quantity of milk than we envisage being done at Barham, their plant is in an industrial estate and there are no smells or odours relative to this amount of processing.
57The officer's report did not propose any conditions directly dealing with odour. However, the officer's proposed conditions 3 and 4 limiting the hours of operation by excluding evening and night time operations would limit the potential for emission of odours from processing at those times and hence limit adverse effects from odour. The officer's report also noted that the proposed condition 2 fixing a trial period of 18 months would allow demonstration that the development, which would operate largely through daylight hours, can operate without causing odour impacts as stated by the applicant.
58In relation to traffic, the officer's report noted the concerns raised by objectors about additional traffic and noise associated with increased truck movements. The officer's report, in the section on noise and in the proposed conditions, recommended limiting the operation to daytime hours so as to avoid traffic movement to and from the site in the evening and night times. In the section on traffic generation and access, the officer's report also recommended specification of the route of access for heavy vehicles to reduce impacts on local residents:
The route of access for heavy vehicles has not been identified by the applicant. The route of access that is likely to have less impact on the local road system and on local residents is via Moulamein Road, Lawson Street turning into Parkman Ave at its northern end. This is mostly sealed road except for a small section of Parkman Avenue north of the site.
Any approval of the development should be conditioned to require that heavy traffic accessing the site be via the northern end of Parkman Ave using Moulamein Road, Lawson Street. This will reduce the impact on the longer length of the unsealed section of Parkman Avenue south of the site and confine such heavier transport movements to mostly sealed road.
59The officer's proposed condition 17 implemented this recommendation. It stated:
Heavy vehicles traffic accessing the site shall only do so via the northern end of the Parkman Ave using Moulamein Road, Lawson Street. This is the approved heavy vehicle route for the development. In this condition heavy vehicles includes all vehicles larger and heavier than a conventional sedan, station wagon or utility.
Reason - to reduce the impact on the longer length of the unsealed section of Parkman Avenue south of the site and confine such heavier transport movements to mostly sealed road.
60In relation to amenity, the officer's report stated:
Impacts on local residential amenity are likely to be associated with any potential noise and odour that might be generated and via heavy truck movements.
In the case of noise if the approval is limited to a specified limited period (e.g. 18 months) and a largely day time enterprise initially and the operation demonstrates that it can perform its business without an unacceptable level of noise approval may be considered to extend the consent for daylight operations (via a modification of development consent process).
However before an extension of operating hours is considered the applicant should be required to provide a noise assessment report that meets the guidelines set out in the former NSW EPA's 'NSW industrial noise policy' (including determining the project-specific noise levels, predicting level of noise from the source determining noise impact, considering mitigation options, negotiation of acceptable level of impact) that demonstrates that the enterprise can operate within acceptable noise levels against lower background noise levels that prevail at night time.
Similarly, in the case of odour the issue of an initially time limited consent should allow Council to determine if odour emission is an issue with the enterprise. If so extension of the consent and/or operating hours should only [be] considered if either the enterprise has shown to operate with no odour problems or [the] applicant take steps to address the matters by submitting an odour assessment and management study (with a modification of consent application) that addresses this issue particularly addressing means of reducing and managing odours within acceptable levels.
61The proposed conditions referred to are those to which reference has already been made, namely the officer's proposed conditions 3 and 4 limiting operation to daylight hours, condition 15 requiring noise assessment and verification before construction, and condition 2 fixing a trial period of 18 months.
62In relation to liquid trade waste, the officer's report noted that the proposed development would generate liquid trade waste which would need to be disposed of into the Council's sewer. This required a separate application and approval under s 68 of the Local Government Act 1993. The liquid trade waste application and the approval would address the sources and the proper storage, containment and disposal of liquid waste. The proper storage, containment and disposal of liquid trade waste would mitigate odours from liquid trade waste. The officer's report recommended a condition of consent requiring application and approval for liquid trade waste to be obtained prior to the commencement of the development. The officer's proposed condition 13 stated:
An application and approval under the provisions of Section 68, Local Government Act 1993, to discharge liquid trade waste to Council's sewer system must be obtained from Council prior to the commencement of any operation or process that involves the discharge of any liquid waste to Council's sewer.
Note: This application and approval will require the prior concurrence of the NSW Office of Water.
Reason - to ensure compliance with the Local Government Act 1993 [and] the NSW Government's Liquid Trade Waste Regulation Guidelines.
63After dealing with these specific issues, the officer's report assessed generally the relevant matters in s 79C(1) of the EPA Act, including paragraph (b):
(b)the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
Comment: the application is not expected to have an adverse environmental, social and economic impact upon the local environment nor upon the natural and built environment of the locality provided the development:
is well managed;
operates within acceptable environmental limits and within the scale outlined in the application; and
otherwise complies with approved conditions.
64The officer's report concluded that the development application should be supported provided appropriate conditions are imposed. The officer's report stated:
In conclusion it is considered that the development application can be supported provided appropriate conditions are imposed and adhered to so as to ensure that it operates in a manner and at a scale whereby it does not result in any adverse impacts such as noise, odour and poor waste water/liquid trade waste management.
The submissions to the application have been considered and adequately reported on in this report. The proposed development consent conditions outlined in Schedule 1 to this report following the recommendation are proposed to help control impacts of the development, meet statutory requirements and protect the public interest.
65The Council, at its meeting on 21 September 2011, considered the officer's report, including the attachments, and resolved unanimously to adopt the recommendation of the officer's report that development consent be granted on the conditions proposed in Schedule 1 to the report. The proposed conditions were renumbered in Schedule 1 to correct a typographical error of having two conditions numbered 4 in the officer's report, but there was no change to the text of the proposed conditions.
66By considering the assessment of the relevant matters, including of noise and odour impacts, and the recommendations made in the officer's report, including the recommended conditions to address the relevant matters, the Council took such relevant matters into consideration: Parramatta City Council v Hale at 346.
67As I have indicated, the process to be undertaken on judicial review on the ground of failure to consider relevant matters is an evaluative one, based on what the decision-maker has said, written or done. Here, the decision-maker was the Council as a collegiate body. Its consideration of the development application included the consideration of the development application by the officer in the officer's report to the Council. I do not accept Mr Simpson's contention that the officer in his report failed to consider, actually or constructively, the noise and odour impacts.
68Although the officer identified that there were deficiencies in the information submitted by the applicant on the impacts of the proposed development, including on the noise and odour impacts, the officer considered that these information deficiencies were able to be overcome by way of imposition of appropriate conditions.
69First, the officer noted that noise and odour impacts on surrounding residential areas were of most concern in the evening and night time hours. A solution to not having sufficient information on the noise and odour impacts in those hours of most concern was to preclude operations and any concomitant noise and odour impacts in those hours. This was the solution recommended by the officer and adopted by the Council. Conditions 3 and 4 precluded operation at those times of most concern, resulting in an enterprise that operates only through daylight hours.
70Hence, there would be no noise impacts from traffic using the site, vehicles loading and unloading, or traffic passing through the residential streets en route to or from the site, during the evening and night time hours. There would also be no odour impacts from the manufacturing process or breakdowns or spillages during manufacturing process in the evening or night time hours. The only potential source of noise in the evening and night time hours would be from the refrigeration units which would continue to run through those hours. However, condition 16 of the consent (the officer's proposed condition 15) required verification, such as by an acoustical engineer's report, that night time operations in particular will not cause any intrusive noise. Only if such verification were to be provided, could the construction certificate be issued and the development be carried out. This mechanism overcomes the information deficiency regarding noise from the refrigeration units and fixes a performance outcome of no intrusive noise.
71Secondly, although noise and odour impacts were of most concern in the evening and night time hours, other conditions did mitigate noise and odour impacts during daylight hours. Noise and dust impacts from traffic passing through residential areas to and from the site were to be mitigated by specification of an access route and confining heavy traffic to that route (condition 18 of the consent and the officer's proposed condition 17). Odour impacts from liquid trade waste generated during operations were to be mitigated by requiring an application and approval under s 68 of the Local Government Act 1993 to discharge liquid trade waste to the Council's sewer system. The process of approval of liquid trade waste involves addressing and requiring the proper storage, containment and disposal of liquid trade waste, thereby minimising odours from the liquid trade waste.
72The officer stated in the report that the development was not expected to have an adverse environmental, social or economic impact upon the local environment if it complies with the proposed conditions. However, the officer recommended a further condition to check that adverse impacts do not occur by imposing a trial period of 18 months (condition 2). If the applicant wished to extend the operation of the development beyond the 18 month trial period, it would need to demonstrate that the development can operate without unacceptable noise and odour impacts by reference to its performance during the trial period.
73The imposition of a trial period does not involve a failure to take into consideration or a deferral of consideration of likely impacts of a proposed development. As Spigelman CJ held in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589; (2001) 115 LGERA 373 at [83]-[85]:
I do not see any necessary incompatibility between the imposition of a condition limiting a proposed use to a probationary or trial period and the statutory requirement that the decision-maker 'take into consideration' both the 'likely impact of the development' and 'the suitability of the site for the development'. It is possible to 'take into consideration' matters even though their full significance cannot be known with precision.
Where, as in this case, the nature of the development application is for the 'use' of existing premises - and, accordingly, adverse effects are readily reversible - a probationary or trial period may be an appropriate exercise of the statutory discretion.
The implications of the approach adopted by Talbot J would unnecessarily limit the statutory power to permit development for a specific period where the full implications of the development are not known or cannot be stated with sufficient certainty. In any such case, the 'likely impact' or 'suitability' will never be capable of complete assessment. Indeed, that is the very purpose of the probationary or trial period. The scope and purpose of the Act is better served by permitting experimentation, at least in circumstances where adverse effects will cease if the development consent were not, in the event, extended. The focus is then on 'likely impact' during the probationary period.
74The proposed development in this case also involves a use of existing premises (for a dairy processing plant), and any adverse impacts, including noise and odour impacts, are readily reversible. Imposition of a trial period was an appropriate exercise of the statutory discretion.
75Hence, I do not accept Mr Simpson's submission that the insufficiency in the information on the noise and odour impacts before the Council did not enable it to discharge its duty to take into consideration noise and odour impacts in determining the development application. This is not a case where a decision-maker has merely adverted to or paid lip service to the relevant matters. The relevant matters have been identified, analysed and addressed by appropriate conditions of consent.
76I also do not accept Mr Simpson's submission that the Council, by imposing conditions 2 (the trial period) and 16 (the verification of no intrusive noise), deferred for later consideration noise and odour impacts.
77As I have stated, condition 16 effectively fixes and implements a performance outcome of no intrusive noise from the proposed development's refrigeration units. The condition ensures the development will meet this performance outcome by requiring verification before a construction certificate can be issued and the development carried out. The facts that details of the refrigeration units and verification that the refrigeration units will not cause an intrusive noise impact are to be submitted after consent has been granted, and that council officers may need to assess the adequacy of submitted information and supervise compliance, does not mean that the Council has deferred consideration of noise impacts or not finally determined the development application. Retention of practical flexibility, leaving matters of detail for later determination, and delegation of supervision of some stage or aspect of the development, may all be desirable and be in accordance with the statutory scheme under the EPA Act: see Scott v Wollongong City Council (1992) 75 LGRA 112 at 118; Transport Action Group Against Motorways Inc v Roads & Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598; (1999) 104 LGERA 133 at [117]-[122]; Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [17]-[19], [32], [39], [108], [124]; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [55]; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 at [89]; Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20 at [78].
78Condition 2, setting a trial period to enable assessment of whether, and demonstration that, the noise and odour impacts of the development are as predicted and are acceptable, is also an appropriate exercise of the discretionary power and within the statutory scheme: Zhang v Canterbury City Council at [84], [85].
79For these reasons, I find that Mr Simpson has not established that the Council failed to take into consideration the relevant matters of the noise and odour impacts of the proposed development in determining the development application.