Tappouras v Lake Macquarie City Council [2011] NSWLEC 1209 | Case summary

23The criteria in the Framework are also referred to in the draft 'NSW Best Practice Odour Guideline' (draft Guideline) for sewerage treatment plants prepared by the Department of Planning in 2010. 24Mr Schulz notes that the quantitative odour assessment criteria are based on population densities in the affected area and that there is some uncertainty as to whether the appropriate criterion should be 3OU, based on the population density of the potentially affected community (less than 500 with the school contributing about 100 pupils) or 2OU based on the school use. He states that the Framework and the Guidelines do not explain why schools are considered to be more sensitive to odour than residential or specify the size and population of a school. The criterion would normally be applied to a proposal to develop or expand an industry such as the WWTP rather than to a potentially affected odour receptor. Nonetheless, Mr Schulz accepts that 2OU is an appropriate 'goal' for the proposed school and considers that this is met. 25Mr Jiang and Mr Schulz agree that 'the use of maximum recorded odour emission rates in the odour dispersion modelling represents a conservative approach to the odour impact assessment'. Mr Schulz also states that the approach is 'additionally conservative' as it assumes that the emission rates will be constant throughout the year even though the testing took place in high odour emission summer conditions. 26Despite the conservative approach, Mr Jiang considers that the odour impact assessment is an underestimate due to map scaling errors and 'peak to mean factors'. He concludes that the criterion of 2OU is exceeded by the existing Stage 2A operation and the proposed Stage 2B expansion of the WWTP. 27Mr O'Brien and Mr Schulz did not accept that there were discrepancies in the mapping of the odour contours or the peak to mean factors in the air dispersion model. The difference in opinion between the experts can be summarised as: Mapping 28Mr O'Brien's company, Envirodyne, carried out odour dispersion modelling for Hunter Water Corporation for the expansion of the WWTP in 2007 and for the proposal in 2010. The 2010 modelling results are included as odour contours overlayed on topographical maps (Figure 3.2.1.1 for Stage 2A and Figure 3.2.2 for Stage 2B in Mr Schulz Statement of Evidence - Exhibit P). These maps indicate that for Stage 2A, a small part of the site is within the 2OU contour, however, this does not include classrooms or areas used by pupils. For Stage 2B, the site is outside the 2OU contour. Mr Schulz notes that: The improved result for Stage 2B is due to the proposed removal of the most odorous process source (the Sludge Lagoons) and replacement with Aerobic Digestors and a Sludge Handling Building, more than halving the odour emission rate from sludge related sources 29Mr Jiang states that he repeated the dispersion modelling and his results are plotted on Google Maps shown on Figure 1 and 2 of the Joint Report (Exhibit 7). Mr Jiang states that these have confirmed that the base maps for Figures 3.2.1.1 and 3.2.2 are at different scales to the contour plots and cannot be relied upon. Based on Mr Jiang's maps the school is located within the 3-5 odour contours (4OU) for Stage 2A and within the 2-3 odour contours (3OU) for Stage 2B. 30Mr O'Brien does not accept the use of Google maps is appropriate due to distortions in the satellite imagery and the grid overlay. Peak mean factors 31Mr Jiang states that the 'near field' peak to mean factor is the correct factor to apply based on the DEC document 'Approved methods for the modelling and assessment of air pollutants in New South Wales' which defines 'near field' as: The near field is the zone where source structure directly affects plume dispersion. The near field is typically 10 times the largest source dimension, either height or width. 32The distance of the school site is less than ten times the largest source dispersion (effluent balance dam) and therefore Mr Jiang states if the near field factor is applied 'the current (odour) contour would expand by at least 10% away from the WWTP in Stage 2A and 6% in Stage 2B'. 33Mr O'Brien states that 'far field gives a result for dispersion of emissions in a wide area from the source' which is appropriate given the rural nature and zoning of the area. 'A near field analysis would be conducted for emissions to predict dispersion for areas close to the source, such as more built up areas'. His modelling also relies on the source being the height of the stack rather than the length of the building. Mr O'Brien questions that the use of 'near field' would result in a 10% variance due to the 'terrain roughness' and bushland between the school site and the source. Further, he notes that he used the 'far field' peak to mean factor in the 2007 modelling which was accepted by Hunter Water as appropriate. Submissions 34Mr Newport, for the council, submits that the site is within the 'buffer zone' for the WWTP and that, based on Mr Jiang's evidence, the proposal does not comply with the odour criterion of 2OU. The site is therefore unsuitable for use as a school. He submits that the correct legal approach to the consideration of matters relating to the suitability of the school site and public interest (s 79C(2)(c) and (e) of the EPA Act) is to consider the odour environment at the time of the determining the development application. He referred to Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68 where Cole JA at [67] states: ...the correct legal approach to a consideration of a s 90 and s 91 discretion was the third identified by Bignold J, namely, that development consent should not be granted unless, having weighed the factors requiring consideration pursuant to s 90, it could be said, on balance, that consent should be granted. If, at the time of considering whether consent should be granted, the incompatibility between the proposed development and that on an existing adjacent property cannot be resolved by the imposition of conditions upon the developer/applicant, the development should be refused. In my opinion it must be recognised that the decision maker considering the grant of a consent has no power to impose conditions upon a neighbouring land holder or his exercise of a legally permitted use on that land. 35Mr Newport further submits that granting consent to an incompatible school use of the site would place pressure on the continued operation and future expansion of the WWTP to meet the demands for future development in the area. 36Mr Ayling SC, for the applicant, submits that based on the evidence of Mr O'Brien and Mr Schultz the proposal meets the criterion of 2OU. However, even if Mr Jiang's evidence is accepted, the criteria in Table 3.1 of the Framework need to be interpreted to determine whether the site is suitable for a school use. The Framework and the draft Guideline are directed at the proponent that is producing the odour not at the receptor. The criteria are based on population densities and there is no reason why a different criterion should be applied to a population of 500 which includes children at home compared to children at school. 37Mr Ayling also refers to the Mr O'Brien's evidence that the poorest dispersion is in the early morning and evening hours and that 'the actual odour levels in the school grounds during normal school hours will be lower than those predicted by the dispersion modelling'. Further, Stage 2B results in a decrease in odour levels and therefore the proposal would not constrain the expansion of the WWTP. 38Mr Ayling states that Inghams dealt with a facility which produced 'offensive' odours. Condition L8 of the licence under the Protection of the Environment Operations Act 1997 (PEO Act) for the WWTP does not permit the emission of potentially offensive odour in accordance with s 129 of the PEO Act. Findings 39To adjudicate between the competing evidence and submissions it is first necessary to understand the background to the proposal. In 2007, Envirodyne prepared an Odour Emissions Study (2007 Study) for the Stage 2A and Stage 2B upgrade of the WWTP. The 2007 Study used generic odour emission data in conjunction with meteorological data from the meteorological station at Dora Creek. 40Mr Schulz's company's (The Odour Unit) initial odour impact assessment of the proposal was based on the 2007 Study. Hunter Water's letter dated 15 April 2010 in response to the proposal states: The Odour Unit's report suggests that meteorological conditions that would result in the movement of odourous air from the Dora WWTW to the proposed Heritage College site is typically outside normal school hours, with predicted odour levels being less than 2OU. ... The development of a school adjacent to a wastewater treatment plant is typically incompatible land use. However, considering the circumstances of this development, and the results of the odour report, Hunter Valley is not in a position to object to this development 41In response to Mr Jiang's concerns the applicant agreed to undertake a Level 3 odour assessment of the proposal which uses site specific odour emission data and meteorological data. Envirodyne undertook the odour dispersion modelling utilising the same methodology it used in the 2007 Study. The modelling results were provided by Envirodyne and included as Figures 3.2.1.1 and 3.2.2 in Mr Schulz's Statement of Evidence. Mr Schulz added the location of the proposed school building to the topographic maps with the odour contours. 42Mr Jiang raised concerns about the accuracy of the mapping and the use of far field peak to mean factor which led him to conclude that the site would be severely affected by odour from the WWTP. Mr O'Brien and Mr Schulz did not agree with these criticisms or with the conclusion that the site is unsuitable for use as a school due to odour impacts. From the evidence, it is difficult to adjudicate on the competing expert evidence. However, on balance, I prefer the opinion of Mr O'Brien and Mr Schulz for the following reasons: 43First, the dispersion modelling and methodology by Envirodyne is the same as that used in the 2007 Study which was accepted by Hunter Water as the basis for its assessment of the Stage 2A and Stage 2B works. Second, Hunter Water has not objected to the proposal. Third, the odour dispersion modelling for the proposal represents a conservative approach to the odour impact assessment as it uses maximum recorded odour emission rates and also assumes that the emission rates will be constant throughout the year even though the testing took place in high odour emission summer conditions. 44The odour criteria in Table 3.1 of the Framework are a guide for odour emitting developments to assess impacts on surrounding land uses. It is not clear in the Framework or the draft Guidelines how these criteria should be applied to the development of odour receptor sites. The status of the WWTP 'buffer zone' is also not clear given that it extends beyond the WWTP's land. Generally a development should provide a buffer zone on its own land and it is not reasonable to prohibit an otherwise permissible use on adjoining or nearby land on the basis of existing or potential odour impacts. 45While the odour environment at the time of determining the application must be considered, I accept Mr Ayling's submission that the circumstances in the Inghams case are distinguishable. It dealt with a receptor being exposed to existing 'offensive odour'. In this case there is no dispute regarding 'offensive odour' but rather whether a criterion of 2OU is met. 46The explanation of the odour assessment criteria in the Framework states: Odour assessment criteria need to be designed to take into account the range in sensitivities to odours within the community, and provide additional protection for individuals with a heightened response to odours. This can be done using a statistical approach which depends upon the size of the affected population. As the affected population size increases, the number of sensitive individuals is also likely to increase, which suggests that more stringent criteria are necessary in these situations. Therefore, the odour assessment criteria allow for population size, cumulative impacts, anticipated odour levels during adverse meteorological conditions and community expectations of amenity. A summary of odour assessment criteria for various population densities is shown in Table 3.1... 47I accept Mr Ayling's submission that the criteria need to be interpreted to determine the suitability of the site for use as a school. The criteria employ a statistical approach which depends upon the size of the affected population. Schools are a sensitive use which would generally occur in an area with a catchment of 2000 people with an odour criterion goal of 2OU. The proposed school is small and is within an area with a population below 500 people (including the school population). While 2OU is an appropriate goal, I do not accept that if it is exceeded this would automatically render the site unsuitable for use as a school. 48Even if the odour criterion is exceeded, I do not accept that this would be to the extent suggested by Mr Jiang given the conservative approach to the dispersion modeling. The times that the 2OU may be exceeded are outside school hours and therefore the potential conflict between the school and the WWTP is minimised. Also the modelling for Stage 2B indicates an improved odour environment and therefore the use of the site for a school would not unreasonably impact on the future expansion of the WWTP. 49For the above reasons, I do not accept that the site is unsuitable for use as a school as a result of the existing odour environment or that the use of the site for school purposes would unreasonably restrict the expansion of the WWTP. Safety and security 50The conditions recommended by the NSW Police included a requirement that a 2.4m high security fence be provided around the perimeter of the site. The planners disagree whether the fence is necessary to provide 'territorial reinforcement'. Mr McLean considers that it is not necessary as the proposed rural fencing is adequate. The existing school site at Cooranbong has rural fencing, is in a similar isolated location and had not had an incident of crime during its operation. In hi opinion, the security measures provide adequate security measures. The isolated location of the site at the end of a dead end road in a rural residential subdivision away from public transport and arterial roads means that there is unlikely to be 'opportunistic criminal activity'. 51Mr Adams is of the opinion that the isolated location justifies the requirement for security fencing as there is limited natural surveillance of the site. Without a fence there is the potential for incidents to occur which would impact on the amenity of the area. The previous operation of the school at a different site is not directly relevant to the proposal as there are other uses on the same site as the current school which has a different relationship to the street with a higher level of traffic. While Mr Adams considered that the security fence to be necessary it would be incompatible with the rural character of the area. Mr Lorimer shared these concerns. Dr Lamb notes that fences are not intrinsically out of character in a rural environment. He considered that if the security fence is required it could be redesigned and relocated to reduce its visual presence. Findings 52Council and the NSW Police assessed the application as being a low crime risk. However, the Police made recommendations 'with a view to addressing the numerous crime issues in unfenced and isolated schools in the Lake Macquarie LGA'. With the exception of the security fence, the applicant has accepted the conditions recommended by the NSW Police which include sensor lighting, locked entry gates, signage and maintenance of landscaping. The applicant also proposes a back to base alarm system. I am satisfied that with these measures and that given the development is identified as hiving a low crime risk, the security fence is not justified. I have therefore deleted the proposed condition (12.6). Consistency with the rural character of the area 53The key disagreement between the experts is whether the proposal is consistent with the rural character of the area sought to be achieved by the zone objectives, particularly due to its visual impact. Visual Impact 54The experts agree that the individual buildings, their form, scale and architecture are acceptable within the surrounding context of the site. They also reviewed the tree removal and pruning required for the development and to reduce bushfire risk and agreed that this would not, of itself, have a significant visual impact. However, Mr Lorimer considers the tree reduction adds to the cumulative visual impact of security fencing, signage and road works required for the school and the additional access and parking areas. In his opinion, these elements are incompatible with the area and together have an unacceptable visual impact. Whereas Dr Lamb recognises that these elements have a degree of visual impact but does not agree that individually they are uncharacteristic within a rural environment or collectively result in an unacceptable visual impact. Zone objectives 55The planners generally agree that the existing rural character and lifestyle is difficult to define but is rural in the sense of being non urban rather than agricultural. The key difference between the planners was whether the proposal is consistent with the zone objectives, in particular, whether it would provide for the enjoyment of a rural lifestyle (a), is a compatible land use that maintain s the rural environment (b), improves the quality of the environment (c) and retains and enhances the rural character of land (d). 56Mr Lovell considered that despite being permissible within the zone, the site was unsuitable for a school as it was too small and was constrained by bushfire threat and odour impacts. The cumulative impact of the proposal through tree loss, traffic generation, parking, noise, security measures such as lighting and fencing where uncharacteristic of the locality and its rural lifestyle and did not meet the objectives for the zone. 57Mr McLean considered that as a school is permissible in the zone it is not unreasonable to expect that the site could be developed for this purpose provided the impacts are acceptable and consistent with the zone objectives. The proposal does not generate impacts such as noise, traffic or lighting. The size and scale of the school buildings and the number of staff and pupils is small and not beyond what could reasonably be expected for the site. In his opinion, the constraints of the site have been addressed and the school provides an opportunity for the additional planting and management of the site. Findings 58Mr Ayling and Mr Newport referred to BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399. At [117] and [118] McClellan CJ states: planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. ..... In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 59Educational establishments are permissible in the 1(2) Rural (Living) Zone under LEP 2004. Mr Ayling submits that a school is included in the range of permissible uses and it is therefore not unreasonable to assume that in 'in some form' the use of the site for a school would be permitted provided it results in 'acceptable environmental impacts' and is 'consistent with the relevant objectives of the zone'. He submits that the expert evidence demonstrates that there are no constraints which render the site unsuited to the development of a school 'in any form'. Nor are there any unacceptable impacts from the proposed school. The school is therefore consistent with the zone objectives. 60Mr Newport submits that the permissibility of the school in the 1(2) Rural (Living) Zone is a neutral factor. Some form of educational establishment is permissible but only if it is consistent with the zone objectives. The definition of 'educational establishments' in LEP 2004 includes a pre-school, school, tertiary institution as well as a gallery and a museum. The impacts of the range of uses would vary considerably. He submits that the site is unsuited to a school use due to its size and odour impacts and the visual impacts are unacceptable. In his submission, the proposed school is therefore not consistent with the zone objectives. 61For the reasons that I have discussed above, I have found that the size and location of the site, particularly its proximity to WWTP and its odour environment, do not render it unsuitable for a school development 'in some form'. The question is whether the impacts resulting from the school, in the form proposed, are acceptable and whether it is consistent with the objectives of the zone. 62The form of the school proposed does not result in impacts which are beyond those reasonably anticipated from a school. The school is small both in its number of pupils and the size and scale of buildings. The experts have found impacts such as noise, traffic, bushfire risk and ecology to be acceptable. The school buildings have an acceptable visual impact although Mr Lorimer is concerned about the cumulative impact of the proposal from tree reduction, security fencing, signage, road works and access entries. I accept Dr Lamb's evidence that these changes are not an unreasonable intrusion into the rural context of the site. 63A school will require elements that appear different to the rural dwellings. However, just because an element is different does not automatically mean that it is not compatible with rural character. The existing rural character is one of large houses with outbuildings and ancillary structures and landscape elements such as swimming pools, fences and driveways set on large allotments within landscape settings. The school is consistent with this character. The buildings are single storey and no bigger than some houses, the access driveways and parking areas are designed to have permeable areas and landscaping and screen planting is proposed along the boundaries, other than the northern boundary to WWTP which is bushland. The road works and signage are no different to what would be required for any form of school. The buildings and other structures are within a landscaped setting and are consistent with the rural character. 64Small schools of a domestic scale are not uncharacteristic of a rural environment. Of itself the visual impact of the proposal would not warrant refusal. 65For these reasons I am satisfied that the proposal is consistent with the zone objectives and that the appeal may be upheld and the application approved subject to the conditions agreed between the parties. Other than the requirement for security fencing which, for the reasons discussed above, is not required.

Tappouras v Lake Macquarie City Council

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Judgment (10 paragraphs)

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