The Qur'anic Society v Camden Council

Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 CASES CITED: Dem Gillespies v Warringah Council [2002] NSWLEC 224 BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Fabcot v Maitland City Council [2007] NSWLEC 296 New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154

APPLICANT Mr C Gough, solicitor SOLICITORS Storey and Gough LEGAL REPRESENTATIVES: RESPONDENT Mr C Legatt SC SOLICITORS Shaw Reynolds Bowen & Gerathy

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10839 of 2008 The Qur'anic Society "Dar Tahfez El-Quran" Incorporated v Camden Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Camden Council (the council) of development application DA 895/2007 for the construction of an educational establishment at the corner of Burragorang and Cawdor Roads, Camden (the site).

2 In considering the wide range of evidence provided at the hearing, I have concluded that the proposed educational establishment should not be granted development consent. In my assessment, the proposed development is not consistent with objectives (c) and (e) of the 1(a) zone in which the site is located. These objectives require the proposed development to be asessed against the rural character of the locality. The council's local environmental plan mandates that if the development is not consistent with the zone objectives, then the development application must be refused.

3 In addition to the issue of the zone objectives, the council also raised a large number of other issues and sub issues, relating to compliance with regional plans, loss of agricultural land, impact on existing farms, traffic, safety, visual impacts, disposal of sewage, non-compliance with ecologically sustainable development principles and general environmental impacts.

4 A number of these issues were ultimately not pressed by the council following joint conferencing by the respective experts. In my assessment, the remaining issues that were still in dispute could not substantiate the refusal of the development application.

5 The council also raised the public interest as an issue and a number of local residents provided evidence to the Court on-site, in Court or by DVD. The range of issues raised by the local residents was broad and those matters relevant to the assessment of the development application are addressed in the judgement. The other issues raised by local residents were given no weight in the consideration of the development application. The site and surrounding area 6 The site is Lot 1 in DP 579345. It is generally rectangular in shape with a 435 m frontage to Burragorang Road, a 105 m frontage to Cawdor Road and a site area of 5.95 ha. The land is largely cleared and slopes away from the corner of Burragorang and Cawdor Road by some 11 m in an east to west direction.

7 An existing single storey dwelling and rural shed are located on the southern side of the site with access from Burragorang Road. A natural watercourse runs in a south to north direction via a pipe under Burragorang Road and feeds a large farm dam in the centre of the site. The natural watercourse continues to the north onto adjoining properties.

8 The surrounding area is predominantly rural in nature. An existing poultry farm is located on the diagonally opposite corner of Burragorang and Cawdor Road. Other non-rural land uses in the general area consist of the Camden General Cemetery, Camden Nursery, the Catholic Cemetery and Camden High School. The proposal 9 The proposal has been amended since the original application was lodged with the council. The amended proposal seeks approval for an educational establishment to be used as an Islamic School. The main components of the school are: o Primary school: the primary school is located at the eastern end of the site and consists of 5 x 2 storey buildings to accommodate 540 students. There are 22 classrooms, administration, canteen, library, outdoor sheltered area and play equipment. o Secondary school: the secondary school is located at the western end of the site and consists of 5 x 2 storey buildings to accommodate 360 students. There are 24 classrooms, including specialist classrooms for metalwork, woodwork, visual arts, kitchen, laboratory, multi-media, male and female staff facilities, canteen, library, outdoor sheltered area and play equipment. o Multi-purpose hall: the multi-purpose hall adjoins the secondary school and contains a large open area, stage, store rooms and change rooms. o Staff: 90 staff will be employed for the primary and secondary schools. o Parking/access: separate ingress and egress to the primary school and the secondary school is provided from Cawdor Road. A bus parking area is located near the street frontage together with a car parking area for 46 vehicles. A circular driveway at the primary school provides access to the school in addition to a drop-off zone for cars and minibuses. The access road to the secondary school also provides drop-off facilities. Two separate car parking areas are provided to accommodate 32 and 44 vehicles respectively and these adjoin the secondary school and multi-purpose hall. o Caretaker's cottage: the existing dwelling on site is to be converted to a caretaker's cottage with access off Burragorang Road. o Sports ground: a sports ground is located centrally on the site between the primary school and secondary school. o Staging: the development of the school will occur in 10 separate stages that will take between 8 and 10 years. A staging plan identifies the 10 separate stages. Relevant planning controls 10 The site is within Zone No 1(a)(Rural "A" (40 ha) Zone) under Camden Local Environmental Plant No. 48 (LEP 48). An "educational establishment" is a permissible use within this zone, with consent. Clause 9(3) provides that consent shall not be granted unless the Court is of the opinion that the carrying out of the development is consistent with the objectives of the zone. The objectives of the zone are: a) to provide suitable land for agricultural use, (b) to promote the conservation of economic units of productive agricultural land, particularly those areas designated as having prime crop and pasture potential, by regulating subdivision to prevent the fragmentation of actual or potentially productive rural holdings, (c) to enable compatible forms of development, including recreation and tourist orientated uses to be carried out, if they are in keeping with the rural character of the locality, and carried out in an environmentally sensitive manner, (d) to permit the development of extractive industries to occur in an environmentally acceptable manner, and (e) to ensure that development does not detract from the existing rural character of the area or create unreasonable or uneconomic demands for provision or extension of public amenities and services . 11 LEP 48 contains no other relevant provisions.

12 Camden Council Development Control Plan 2006 (the DCP) applies to the site. The relevant provisions are Car Parking (Pt D, Ch 1) and Energy Conservation (Pt D, Ch 3).

13 Sydney Regional Environmental Plan No 20 - Hawkesbury Nepean River (REP 20) applies. Clause 4 provides that the general planning considerations in cl 5 and the specific planning policies and related recommended strategies in cl 6 must be taken into consideration in determining an application for consent. The general planning considerations in cl 5 are: 5 General planning considerations The general planning considerations relevant for this Part are: (a) the aim of this plan, and (b) the strategies listed in the Action Plan of the Hawkesbury-Nepean Environmental Planning Strategy, and (c) whether there are any feasible alternatives to the development or other proposal concerned, and (d) the relationship between the different impacts of the development or other proposal and the environment, and how those impacts will be addressed and monitored.

14 The relevant policies and strategies are Agriculture/aquaculture and fishing (cl 6(8)) and Metropolitan strategy (cl 6(12)). These state: (8) Agriculture/aquaculture and fishing Policy : Agriculture must be planned and managed to minimise adverse environmental impacts and be protected from adverse impacts of other forms of development. (a) Give priority to agricultural production in rural zones. (b) Ensure zone objectives and minimum lot sizes support the continued agricultural use of Class 1, 2 and 3 Agricultural Land (as defined in the Department of Agriculture's Agricultural Land Classification Atlas) and of any other rural land that is currently sustaining agricultural production. (c) Incorporate effective separation between intensive agriculture and adjoining uses to mitigate noise, odour and visual impacts. (d) Protect agricultural sustainability from the adverse impacts of other forms of proposed development. (e) Consider the ability of the site to sustain over the long term the development concerned. (f) Consider the likely effect of the development concerned on fish breeding grounds, nursery areas, commercial and recreational fishing areas and oyster farming. (12) Metropolitan strategy Policy: Development should complement the vision, goal, key principles and action plan of the Metropolitan Strategy. Strategies: (a) Consider the impacts of transport infrastructure proposals on water quality and air quality. (b) Consider the impacts of metropolitan waste disposal on water quality. (c) Consider the impacts of development on air quality. (d) Consider the need for waste avoidance, waste reduction, reuse and recycling measures. (e) Consider the implications of predicted climate change on the location of development and its effect on conservation of natural resources. 15 Other relevant planning documents are the NSW State governments Metropolitan Strategy and South West Subregion Draft - Subregional Strategy. The contentions 16 The council's Further Amended Statement of Facts and Contentions identifies 8 main areas that warrant the refusal of the development application, including a large range of particulars for each of the main areas of contention. The main areas of contention can be grouped into the following: o the unsuitability of the site for the development, o traffic and safety impacts, o visual impacts, o unsuitable provision of sewage disposal, o non-compliance with ecologically sustainable development (ESD) principles, and o the development is not in the public interest.

The unsuitability of the site for the development 17 The council's contentions relate to the inconsistency with the zone objectives and the non-compliance with some requirements in REP 20.

The contentions - zone objectives 18 The council's particulars relate to the inconsistency with zone objectives (a), (b), (c) and (e).

The basis for consideration - zone objectives 19 Clause 9(3) of LEP 48 imposes preconditions to the Court exercising the power to grant consent to the proposed development. The clause requires that the development must be "consistent with the objectives of the zone". I have taken this to mean the relevant objectives of the zone. The Court has generally adopted "consistent with" as meaning not antipathetic, nor incompatible or inconsistent with (see Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 and Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190) although the ordinary and natural meaning has also been used by the Court (see Dem Gillespies v Warringah Council [2002] NSWLEC 224). 20 The town planning zone objectives require that the proposed development: o be a compatible form of development (objective (c)), o be in keeping with the rural character of the locality (objective (c)), o be carried out in an environmentally sensitive manner (objective (c)) o not detract from the existing rural character of the area (objective (e)), and o not create unreasonable or economic demands on the provision of public amenities and services (objective (e)). 21 The agricultural zone objectives require that the proposed development: o provide suitable land for agricultural use (objective (a)), and o promote the conservation of economic units of productive agricultural land by regulating subdivision to prevent the fragmentation of actual or potentially productive rural holdings (objective (b)).

22 A finding of inconsistency with any relevant objective must see the appeal dismissed and a finding of consistency would enliven the power to grant development consent subject to a merit assessment.

The evidence - zone objectives 23 Mr Alan Caladine provided evidence for the applicant and Mr Ron Dowd provided evidence for the council on the town planning objectives (objectives (c) and (e)).

24 Mr Dowd states that the proposed development is not a compatible form of development as it provides for more than 900 people and consists of a complex of two-storey buildings, large expanses of hard surfaces, car parking, bus bays and internal road system and is not in keeping with the rural character of the locality, being that of broad acre grazing.

25 Mr Caladine relies on the visual impact assessment undertaken by Dr Richard Lamb for his support of the proposed development. Dr Lamb's assessment, in part, states that proposed development would not be out of character within the surrounding existing context of a predominantly rural and rural residential character and recent subdivisions. The assessment further states that the proposed development would generally preserve the rural/natural character of the development site as well as the surroundings.

26 Mr Nick Truelove provided evidence for the applicant and Mr Ian Sinclair provided evidence for the council on the agricultural objectives (objectives (a) and (b)). 27 Mr Truelove and Mr Sinclair agree that the site does not have the capability for commercial agriculture, however Mr Sinclair states that the proposed school, in close proximity to commercial agricultural operations, particularly the nearby poultry farm, will have the impact of causing rural land use conflict. The students and staff attending the school are likely to suffer a loss of amenity and complain to the council or the EPA, which could lead to the ceasation of farming operations. In his opinion this does not satisfy objective (a). Mr Truelove states that the impact on the surrounding agriculture is not significant and therefore not inconsistent with objective (a). The findings - zone objectives Is the proposed development a compatible form of development? 28 Mr Caladine places some weight on the permissibility of the use in his support of the application. The weight to be given to a permissible use is addressed in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (12 August 2004) where (at par 117) it states: 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects ( Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 29 I do not accept that because a school is a permissible use within the zone that this suggests that the proposed development should be given some greater entitlement to an approval. To adopt such a stance effectively ignores the words "in some form" in BGP Properties. It may be that a school is suitable for the site but it does not follow that all schools are suitable. For example, Mr Dowd accepted that a school that contained only a very small number of classrooms may be acceptable on the site. The weight should be determined by the particular characteristics of the permissable use and this is appropriately achieved though consideration of the relevant planning instruments, including the zone objectives and the wider considerations in s 79C of the Environmental Planning and Assessment Act 1979 (the EPA Act).

Is the proposed development in keeping with the rural character of the locality (objective (c))? 30 The first test in objective (c) asks whether the proposed development is in keeping with the rural character of the locality. The Macquarie Dictionary (Second Edition) provides some assistance in understanding the meaning of "in keeping with" where it provides the following definition: Keeping 1. just conformity in things or elements associated together: his deeds are not in keeping with his words. 31 To give full meaning to cl 9(3), requires a consideration of firstly, what is the locality; secondly, what is the rural character of this locality; and thirdly, is the proposed development in keeping with this rural character of the locality. Mr Caladine and Mr Dowd did not address these matters in any detail in their written evidence but addressed them in greater detail in their oral evidence.

What is the locality? 32 The Macquarie Dictionary (Second Edition) provides little assistance in understanding the meaning of "locality" where it provides the following definition: Locality, 1. a place, spot, or district, with or without reference to things or persons in it. 2. the place in which a thing is or occurs. 3. state or condition of being local or having place. 33 Mr Dowd marked his opinion of the locality on a map (Exhibit 12). The locality was the area generally bounded by Cawdor Road, Sheathers Lane, The Old Oaks Road and land to the south of Burragorang Road. It is irregular in shape with approximate dimensions of 1.5 km x 1.5 km. Mr Caladine marked a similar area although the area was marginally greater on each of the boundaries. Mr Caladine subsequently recanted this evidence and produced a further plan (Exhibit AM) that marked the locality as an area approximately 4 km x 2.2 km based on the three boundaries of a street directory page (to the north, south and west) and a straight line generally running parallel to the Old Hume Highway (to the east). The site is located centrally within this area.

34 With the benefit of the site view, I am satisfied that the locality originally designated by Mr Caladine and Mr Dowd is the locality, for the purposes of objective (c). The amended area suggested by Mr Caladine is not based on topographical or physical features or any spatial relationship with the proposed development. The locality could be generally described as the visual catchment of the site and the setting in which any development on the site would be viewed and any comparison made with the adjoining and surrounding area. Any comparison with more distant or less visible areas becomes clearly less important when objective (c) requires a comparison to be made between the development and the locality. What is the rural character of the locality? 35 Mr Caladine describes the rural character of the locality as having a mixed character consisting of large parcels of land with urban forms and rural residential to the north-west. In his assessment, the rural character of the locality is influenced by the recently constructed Camden High School, the adjoining poultry farm, Camden landscape supply and existing agricultural land.

36 Mr Dowd describes the rural character of the locality as broad acre grazing. On his assessment of the locality, the poultry farm and Camden High School do not fall within the locality and as such have no influence on the rural character of the locality.

37 Based on my previous findings on the locality, I agree with the conclusions of Mr Dowd. The locality is almost exclusively made up of grazing with little built form beyond scattered farm sheds and some farm homesteads. The lot sizes are large and generally reflect agricultural uses that would normally be associated with large lot sizes. The property that has a common boundary with the north and west boundaries of the site (owned by L K Boardman) has an area of 74 ha and the property further to the north (owned by V M Boardman) has an area of 98 ha. The evidence of the owners and observations on the site view are that the properties are currently used for agricultural purposes including raising cattle for meat, stud cattle and some cropping. 38 Even if the poultry farm is included in any assessment of the rural character of the locality (as suggested by Mr Caladine), I am generally untroubled in finding that it has little or no impact on the identified rural character of the locality. While the poultry farm buildings are visible in the locality, they are rural in character and not inconsistent with what would be expected in a rural locality, even in a locality dominated by broad acre grazing.

39 I am not satisfied that Camden High School (located some 800 m to the south) has any meaningful impact on the rural character of the locality as only part of the buildings associated with the school can be observed from the locality and only from the higher parts around The Old Oaks Road. These buildings have little impact on the character of the locality because of the distance from the site and screening by the natural topography.

Findings - Is the proposed development in keeping with the rural character of the locality? 40 Because of the large lot sizes in the locality and the predominant grazing and agricultural uses carried out on these lots, there is little built form and consequently the placement of multiple two-storey buildings and areas of paving will contrast markedly with this existing predominantly undeveloped rural character.

41 In my opinion, no other reasonable conclusion can be drawn but the proposed development is not a compatible form of development and not in keeping with the rural character of the locality because of the contrasting forms of development. There is clearly little association and few common elements between the urban form of the school and the undeveloped rural nature of the locality. The disparity between the proposed development and the rural character of the locality will be clearly observable from Burragorang and Cawdor Roads and more elevated locations around The Old Oaks Road.

Does the proposed development detract from the existing rural character of the area (objective (e))? 42 Objective (e) provides a different test to that in objective (c) although both relate to the same general area of impact on character. Mr Dowd accepted that while the word "locality" is used in objective (c) it could be used interchangeably with the word "area" in objective (e). I agree that this is a practical and sensible approach to the interpretation of the two different words in the two different objectives. Similarly, I accept the addition of the word "existing" in objective (e) does not change the meaning of "rural character" between the two objectives.

43 The Macquarie Dictionary (Second Edition) provides some assistance in understanding the meaning of "detract" where it provides the following definition: Detract 1. to take away (apart); abate (fol. by from ). 2. to draw away or divert. 3. to take away some part, as from quality, value, or reputation (fol. by from ); the ugly view detracts from the value of the house. 44 Even though the test in objective (e) is different to that in objective (c), there is no reason why the conclusions should be any different. I am satisfied that the proposed development takes away a part of the character of the locality for similar reasons identified in pars 40 and 41.

Is the proposed development consistent with the zone objectives? 45 In terms of cl 9(3), I find that the proposed development is inconsistent (using either the test in Schaffer Corporation or Dem Gillespies) with zone objectives (a) and (e) in that the proposed development is not a compatible form of development, not in keeping with the rural character of the locality and detracts from the rural character of the area. The finding of inconsistency must see the appeal dismissed and the development application refused.

46 The objectives that the development be carried out in an environmentally sensitive manner (pt objective (c)) and not create unreasonable or economic demands on the provision of public amenities and services (pt objective (e)) are addressed later in the judgment, however I do not accept that the proposed development is inconsistent with these objectives.

47 Similarly, I do not accept that the proposed development is inconsistent with agricultural objectives (a) and (b) as they are not relevant to the proposed development. Objective (a) seeks to provide suitable land for agricultural use. In my view, this objective is achieved through the zoning of the land that identifies it is suitable for agriculture. Whether the proposed development contributes to the loss of prime agricultural land is a valid question but not one raised by this objective. Objective (b) seeks to conserve agricultural land by controlling subdivision to prevent fragmentation. Again, and in the absence of any application for subdivision of the site, the question of whether the proposed development contributes to the loss of prime agricultural land is a different question raised by this objective.

Consistency in decision making. 48 In the consideration of the evidence on the zone objectives, Mr Gough raised the issue of consistency in decision making by the council with the recently constructed Camden High School. He submits that the school was approved on 14 December 1998 and is located in the same 1(a) zone as the proposed development. The school accommodates 1200 students but appears not to have been subject of the same rigorous assessment as the proposed development. A copy of the council file, including the council staff assessment report for the approval of Camden High School was tendered (Exhibit AL).

49 The council file indicates that the assessment required by cl 9(3) is dealt with in a relatively simplistic manner and in totality through the following statement: Having regard to the above objectives, it is considered that with the school's siting and proposed landscaping, the rural value of the land, that the proposed development satisfies the objectives of the zone. 50 Even if the submissions of Mr Gough are correct, these proceedings can only deal with the merits of the proposed development. These proceedings are not a judicial review of the decision of the council to approve the development application for the Camden High School and as such, the decision of the council can have little, if any bearing on the consideration of the proposed development. 51 For completeness, I will briefly deal with the other issues in dispute.

The contentions -REP 20 52 The contentions raised by the council address two main areas that are consistent with the planning policies and strategies relating to agriculture and metropolitan planning. The specific contentions raised by the council on agriculture are: o the loss of agricultural land (cl 6(8)(a) and (b) -REP 20 and Pt E4 Metropolitan Strategy), and o the impact on the use of agricultural land by way of noise, dust, spray drift, odour and litter (cl 6(8)(c) and (d) - REP 20). 53 The specific contentions raised by the council in relation to metropolitan planning are: o the encroachment of an urban support establishment into rural land (Pt E3.1 Metropolitan Strategy), o the significant impact on traffic and transport infrastructure, particularly the transportation of a large number of students from outside the local government area and whether this is inappropriate and will have an acceptable impact on air quality and will contribute to climate change (Pt E2.3 Metropolitan Strategy and cl 6(12)(a), (c) and (e) - REP 20), and o the production of an unacceptable amount of waste (cl 6(12)(b) and (d)). The basis for consideration - REP 20 54 Clause 4 of SREP provides that the general planning considerations in cl 5 and the specific planning policies and related recommended strategies in cl 6 must be taken into consideration in determining an application for consent. The test is different to the zone objectives, in that the Court needs only to consider the relevant matters in cll 5 and 6. A finding of inconsistency or other adverse findings is not necessarily a reason to refuse the development application.

55 Importantly, the aim of SREP 20 "is to protect the environment of the Hawkesbury-Nepean River system by ensuring that the impacts of future land uses are considered in a regional context" (my emphasis). The agricultural evidence -REP 20 Loss of agricultural land 56 Mr Truelove and Mr Sinclair agree that the agricultural uses that could occur on the site would be intensive agriculture or a few head of cattle or horses as part of a rural residential use. Mr Truelove states that due to the small area of the site, a lack of water and the proximity to the Camden urban area, it is unlikely that the land could be used for any viable agricultural production. In his opinion, the site is too small and too expensive to be viable as an extensive grazing property.

Impact on agricultural land 57 Mr Truelove states that a school is a suitable use for the site and is unlikely to materially impact on the operations of the surrounding farms, including the nearby poultry farm. The impact of the proposed school on the nearby grazing operations is not significant as the neighbouring farms are used for low intensity beef cattle grazing. They are very small farms in terms of the average size of beef cattle properties and would likely only use machinery in close proximity to the school on an infrequent basis. Given the limited operating hours of the school and the long hours that farmers normally work, it would be of little or no inconvenience to adjust the farm work schedule to carry out any operations in close proximity to the school at times outside normal school hours. Noise and dust would only cause a disturbance from the immediate surrounding paddocks and this would take only a few hours to work, at best. Any potential impact is further diminished by the landscape design that includes a vegetative buffer zone along the common boundaries with the adjoining farming property. While the poultry farm is located diagonally across the intersection of Burragorang and Cawdor Roads, the sheds are located further along Cawdor Road and set well back from the road, thereby minimising any impacts. 58 Mr Sinclair states that the site is located within a broad regional context with a number of intensive and extensive agricultural uses, residential uses as well as other uses. In his opinion, a school will have an impact on the surrounding intensive and extensive agricultural uses by potentially impeding them from operating to their current performance. Mr Sinclair makes particular reference to the poultry farm located diagonally opposite the site. While acknowledging the existence of the odour study prepared on behalf of the applicant, he questions the findings of the study that concludes that the impact is acceptable. In his experience, complaints relating to dust and odour from poultry farms regularly occur and can lead to restrictions on the operation of the poultry farm. Similar complaints relating to cattle grazing and pasture growing also occur because of the location of sensitive land uses, such as schools, adjoining operating agricultural uses.

59 Mr Bruce Boardman, the operator of the farm adjoining the site to the north and west provided evidence in support of the council. He agrees with the evidence of Mr Sinclair and specifically raises issues that would impact on the operation of the farm. These issues relate to noise from the school operations, which may startle his livestock and conversely noise from his livestock, which may affect the pupils at the school and could result in changes to the operation of the farm because of complaints. Further issues relate to litter being blown on to his property from the school and which may result in injury to the livestock digesting the litter. The agricultural findings -REP 20 Loss of agricultural land 60 The Department of Primary Industry classifies the site as Class 2 agricultural land. Class 2 land is described as "arable land is suitable for regular cultivation for crops but not suited to continuous cultivation". The most valuable land is Class 1. I agree with Mr Truelove that the loss of the site from agricultural production is not an issue that would warrant the refusal of the application. The site is an existing lot that is significantly below the minimum lot size for the 1(a) zone and is of insufficient size to operate viably for a stand-alone farming business consistent with the Class 2 agricultural classification. At best, the site is more suited to limited grazing with occasional cropping or rural/residential use and as such has a considerably lower value in terms of its agricultural productivity. Mr Truelove estimates that the current carrying capacity of the site would be no more than 12 dry cows. While it is not the definitive test, the site represents an extremely small amount of the available agricultural land in the local government area.

61 I am satisfied that the potential loss of agricultural land is not a sufficient reason to refuse the application. Impact on agricultural land 62 The evidence highlighted a number of separate matters that may impact on the use of adjoining and nearby agricultural properties. These are: 63 Odour - the proximity of the poultry farm was seen by Mr Sinclair as a likely source of complaint. He relied on the NSW Meat Chicken Farming Guidelines (the Guidelines) to support his position that the school was a sensitive land use and was likely to be subject to unacceptable impacts from the poultry farm. The Guidelines state: The location and size of a proposed meat chicken farm should be such that there will be no unacceptable impacts on the health and amenity (for example, from odour, dust, bioaerosols, noise, visual impacts) of residents on the property itself, on neighbouring properties and in the surrounding area. 64 In my view, Mr Sinclair's position cannot be substantiated because of the extensive odour modelling conducted by Dr Kerry Holmes who concluded that it was very unlikely that the existing poultry farm would cause odour nuisance for the school under normal operating conditions. While accepting there is the potential for odour to occur during cleanout of the poultry sheds this would occur less than once a year and should not cause a significant loss of amenity to the school.

65 The modelling undertaken by Dr Holmes fully addresses the concerns raised by Mr Sinclair in a scientific and qualitative manner and should be preferred in the assessment of any potential odour impact. Dr Holmes adopts the assessment methodology recommended by the Department of Environment and Climate Change (2005) including the guidelines for the preparation of meteorological data to be used in the dispersion model, the way in which emissions should be estimated and the relevant air quality criteria for assessing the significance of predicted odour levels from the proposal. The council provided no expert evidence to challenge the conclusions of Dr Holmes.

66 Noise - Any noise impacts from the school are likely to impact only on the adjoining 74 ha property owned by L K Boardman. This property has only a relatively small common boundary with the site. The site is located at the south eastern corner of the Boardman property with the majority of the Boardman property to the west.

67 In this context, I am satisfied that any noise generated by the school would not be that significant or frequent that it would unacceptably impact on the operation of the adjoining farm and conversely, any noise generated from the adjoining farm would not be that significant or frequent that it would unacceptably impact on the operation of the school, given a reasonable amount of consideration and co operation between the farm and the school.

68 Dust - dust generated from farm machinery in attending crops adjoining the boundary with the school was seen as a potential source of nuisance that would lead to complaints and the potential curtailing of activities on the farm. In accepting that the potential exists for dust to occur from farming activities on the adjoining property, I am not satisfied that it is an impact that would warrant the refusal of the application taking into consideration the limited hours of school operation, the likely infrequent need to use farm machinery adjoining the school, the potential to adjust the time the farm machinery is used (by hours and not necessarily days) and the 15 m wide landscape buffer that will operate as a dust suppressant once established.

69 Spray drift - the potential for agricultural sprays to drift across the common boundary between the adjoining farm and the school was seen as a potential source of nuisance that would lead to complaints and the potential curtailing of activities on the farm. The NSW Department of Primary Industry document "Buffers - Planning for Sustainable Agriculture" (18 May 2004) suggests buffer widths of +300 m (with no vegetative buffers) to 40 m (with vegetative buffers). Mr Truelove and Mr Sinclair agreed that spray drift can be adequately dealt with by vegetative buffers and correct operating procedures, however Mr Sinclair states that the development would restrict the types of primary industry development in the vicinity of the school due to the inadequate vegetative buffers proposed with the development. 70 In response to the council's concerns, the applicant relies on the expert evidence from Mr Craig Day. He states that the decision to release a pesticide into the environment places a great responsibility on the person applying the pesticide with the applicator bound by a duty of care to adopt a risk management approach to ensure that the activity does not affect the environment, human health or property (Pt 2 Div 2 Sec 10 Pesticide Act 1999). Additionally, a range of drift reducing technologies can assist in the reduction of spray drift risk, such as regulating droplet size and nozzle design. In his opinion, Mr Day states there is no reason why agricultural sprays could not be applied to the adjoining farm if appropriate consideration is given to minimising drift risk and applying the spray at times when weather conditions are appropriate. Mr Truelove supports the conclusions of Mr Day.

71 The council provided no expert evidence to challenge the conclusions of Mr Day. I am satisfied that his conclusions are reasonable given the legislative requirements for controlling spray drift. I am also mindful of the 15 m wide landscape buffer that will operate as an agricultural spray suppressant once established. Conditions can be imposed to require advanced landscaping at a higher density to improve the control of any spray drift until the landscaping is established. Also, the school buildings are setback a greater distance than the 15 m wide landscape buffer. The administration block for the secondary school is the closest to the northern boundary with a setback 25 m with the multi-purpose hall setback 50 m from the same boundary. The increased setback of the building from the northern boundary further reduces the potential impact of any spray drift.

72 Like the issue of noise, I am satisfied that any spray drift from the adjoining farm would not be a reason to refuse the application given the likely frequency of spraying, the use of good spraying practices, the proposed buffers, the additional setback to the school buildings beyond the buffers and a reasonable amount of consideration and co operation between the farm and the school.

73 Litter - the potential for litter to drift across the common boundary between the adjoining farm and the school was seen as a risk for farm animals who may digest the litter.

74 I am not satisfied that the potential risk for litter to drift across the common boundary is a matter that would warrant the refusal of the application. There was nothing to suggest that the school would be such a source of litter that it would create a situation where the farm animals on adjoining property would be affected. The adjoining farm has common boundaries with public roads where litter can currently drift onto the farm property. In my view, litter could be more than adequately controlled on the school site, and if necessary, conditions formulated to address this concern.

75 On the general issue of potential impacts of the adjoining farm on the school, it must be remembered that even if some noise is heard or at sometimes odour is noticeable from the poultry farm, it may not be so offensive or disturbing that it will or should generate a complaint. The site is within a rural zone and the same level of amenity could not be expected as if the school was located in an urban environment. Even if a complaint is made, the complaint must be substantiated by an assesment against established guidelines. In my view, the potential for a complaint, per se, is not a valid reason to refuse an application particularly when there was no substantive evidence to suggest that there are likely to be unacceptable impacts, particularly if there is a reasonable amount of consideration and co operation between the adjoining farm and the school. The metropolitan planning findings -REP 20 The encroachment of an urban support establishment into rural land 76 The impact of the proposed development on agricultural land has been addressed earlier in the judgment and was not found to be a reason to refuse the application because of the particular characteristics of the site. While SREP 20 correctly seeks to give priority to agricultural production in rural zones, it does not necessarily follow that every lot in the rural zones should be set aside for agriculture. To adopt such an approach would be to ignore the non-agricultural permissible uses in the rural zones as set out in LEP 48. I do not accept that cl 8 of SREP 20 should be read down to the point where agriculture is the only use suitable in rural zones.

77 I do not accept that the size and operation of the proposed development raises any issues, relating to the encroachment of an urban support establishment into rural land, that have regional implications. Impact on traffic and transport infrastructure 78 The issues of traffic are addressed later in the judgement with the general agreement by the respective traffic and transportation experts that any impacts associated with the proposed development can be addressed through conditions of consent. As I understand, Mr Dowd's concerns relate the transportation of students from outside the local government area and the consequent impacts on air quality and ultimately, climate change.

79 In my opinion, this issue is overstated. While a large number of educational establishments draw students from their immediate area, it is not necessary, nor possible for all educational establishments. For example, students who attend universities, private schools or selective public schools generally have to travel from outside the immediate area of the educational establishment. I see no reason why the proposed school should be considered differently to other educational establishments that draw their students from outside the immediate area. To suggest that additional trips generated by the students of the proposed school would have an unacceptable impact on air quality and ultimately climate change cannot reasonably be substantiated and is contrary to the unchallenged expert evidence of Dr Holmes (see par 109).

80 I do not accept that the operation of the proposed development raises any traffic and transport infrastructure issues that have regional implications.

Production of waste 81 Mr Dowd expresses concern over the amount of waste a school in excess of 900 people will produce and enter the environment.

82 In my opinion, this issue is overstated. There was no evidence to suggest that there was anything exceptional about the waste likely to be generated by the educational establishment. Conditions can simply being imposed, if considered necessary, to address the collection and disposal of waste generated by the educational establishment.

83 I do not accept that the operation of the proposed development raises any issues, relating to waste, that have regional implications.

84 In summary, a consideration of the relevant matters in REP 20 reveals that there are no matters that would support the refusal of the application. Traffic The contentions 85 The contentions raised by council are: o the proposed development does not satisfy the planning aims and objectives of Draft State Environmental Planning Policy No 66 - Integration of Land Use and Transport, o the proposed development is inconsistent with the Integrated Land Use and Policy Package, o the proposed development will result in unacceptable implications in terms of traffic management, traffic flow, road safety and the ability to service the proposed development by public transport, o the proposed development does not incorporate appropriate travel demand management mechanisms that will minimise the use of cars, o whether there is sufficient catchment to draw students from within the local area for the initial stages of the development, o the proposed school is poorly located in relation to new housing opportunities, o the proposed development will have an adverse impact on traffic in the surrounding area and in particular the intersection of the Camden Bypass with Burragorang Road and the Old Hume Highway, o the proposed development will have an adverse impact on the intersection of Burragorang Road and Cawdor Road, o the proposed development provides inadequate on-site movement for buses, o the proposed development will create conflicts between buses, mini buses, cars and pedestrians and create adverse impact on the intersection of Burragorang Road and Cawdor Road, o the proposed development will create unacceptable amounts of queuing for vehicles turning into the site from Cawdor Road, o the proposed development provides inadequate stopping sightlines along Cawdor Road, o additional land is required for widening of Cawdor Road to provide turning lanes and the exit driveway, o the proposed development provides unsatisfactory internal circulation and vehicle layout that will cause conflict between vehicles and students, o the proposed development does not properly address pedestrian facilities within the site, o the proposed development does not satisfactorily address the proposed drop-off point for primary schoolchildren, o the proposed development is likely to create significant and undesirable parking along Cawdor Road, and o the proposed development does not comply with the objectives and controls in the DCP for car parking.

The evidence 86 Mr John Coady, a traffic engineer, provided evidence for the applicant and Mr Tim Rogers, a traffic engineer, and Senior Constable Christopher Wildbur from the Camden Local Area Command provided evidence for the council. Mr Coady, Mr Rogers and Senior Constable Wildbur provided a joint report that addressed the contentions raised by the council, although Senior Constable Wildbur did not express a view on a number of the contentions that were outside his area of involvement.

87 Of the contentions raised by the council (see par 85), Mr Coady and Mr Rogers agreed that the only contention that was in issue was who should be responsible for the cost of upgrading of the intersection of the Camden Bypass with Burragorang Road and the Old Hume Highway because of capacity and safety reasons. They agreed that the Camden Bypass/ Burragorang Road intersection will reach capacity by 2012 or 2013 as a consequence of normal traffic growth whether or not the proposed school commences operation in 2011. They also agreed that the following works will ultimately be required: o traffic signal control at Camden Bypass and Burragorang Road intersection, o modification to the existing traffic signal control at the Camden Bypass and Old Hume Highway intersection and modification to the southbound carriageway of the Camden Bypass. 88 Mr Rogers states that the identified works should be undertaken prior to the school commencing operations and funded through a condition of consent as there is no s 94 Contribution Plan or Voluntary Planning Agreement in place. Mr Coady does not agree that the works need be in place prior to the opening of the school because the capacity of the intersections are reached largely because of normal traffic growth. Mr Coady is also of the view that the school should not be required to fund the works for this reason. Findings 89 In considering the different views of Mr Rogers and Mr Coady, I am satisfied that the school should be required to make a contribution towards the upgrade of the intersections. In my view, it would be unreasonable for the school to pay the full cost of the intersection works because the additional traffic generated by the school would not be responsible for the intersection reaching its capacity (see Fabcot v Maitland City Council [2007] NSWLEC 296). The agreed position of the experts was that the capacity of the intersection would occur irrespective of the school commencing operation and generally around the same time.

90 It is not necessary to determine the appropriate contribution as the application is to be refused, however if the application was to be approved, further submissions from the parties would need to be provided to determine an appropriate contribution. Visual impact The contentions 91 The contentions raised by council are: o the provision of a continuous 1.8 m high security fence around the property when combined with landscaping potentially creates the opportunity for criminal behaviour, o the provision of lighting, o the need to provide facilities for the school restricts the ability to landscape and consequently provide adequate screening for the buildings from external viewing locations as encouraged by the Camden Scenic and Cultural Landscapes Study, and o the need for excessive levels of earthworks.

The evidence 92 Mr Dowd provided evidence for the council and Dr Lamb provided evidence for the applicant on this contention. Fencing 93 Mr Dowd and Dr Lamb agreed on an appropriate type of fencing for the site that would be seen as having a rural character and would be suitable for security purposes and discourage crime. This comprises a 1.8 m high, open and visually transparent steel picket fencing along the Cawdor Road frontage and returning down the northern and southern boundaries to the first bus bays and a 1.8 m high open chain wire fencing with steel posts and topped with the two strands of barbed wire for the remaining property boundaries.

94 This contention was no longer pressed by the council following agreement between the experts.

Lighting 95 The experts agreed that in order to address the effect of lighting on the neighbouring rural properties, a condition requiring the preparation of a Lighting Management Plan should be imposed on any approval. They also agreed that general lighting, other than when there are night-time activities, can be switched off. In addition, they agreed that security lighting is only needed for safety of staff and security personnel and can be minimised in terms of numbers, areas that will be illuminated and times of operation.

96 This contention was no longer pressed by the council following agreement between the experts. Landscaping 97 The experts addressed a number of components of the applicant's landscape plan and generally agreed that with some modification the site could be appropriately landscaped. This modification include the the need to address potential criminal behaviour and provide some screening and softening of the proposed buildings. The experts agreed that the modifications could be addressed by a condition of consent.

98 There was also agreement by the experts that because the Camden Scenic and Cultural Landscapes Study was never adopted by the Council, this document has no statutory power. To that extent, any reference to this document is irrelevant.

99 This contention was no longer pressed by the council following agreement between the experts. Earthworks 100 Mr Dowd states that the fill associated with the primary school is acceptable however there is scope to utilise the existing topography of the site more efficiently, particularly in the extreme western sector of the site, for the construction of the high school. If the high school buildings are located on natural ground, there is better opportunity for landscaping and screening of the buildings.

101 Dr Lamb disagrees and states that the fill in the extreme western sector of the site would not be noticeable from outside the site and that in conjunction with the proposed landscaping, the effect of the fill is visually acceptable. The fill has the benefit of setting the high school on a single level. This would maximise its potential to fulfill its many functions including catering to the needs of disabled persons without the need for complex and difficult changes of level. 102 With an understanding of the levels from the architectural plans, I agree with the conclusions of Dr Lamb. The largest amount of fill of some 2 m is located in the north-west corner of the site. The proposal is to batter from the fill at the edge of the carpark to the boundary (a distance of 15 m) and landscape this area. The grade of the batter is not excessive and with landscaping, the fill is likely to be largely unnoticeable when travelling along Burragorang Road.

103 In my view, the fill in the north-west corner of the site is not a matter that would warrant the refusal of the development application. Provision of sewerage facilities The contentions 104 The contentions raised by council are: o insufficient details have been provided to properly assess whether adequate arrangements have been made to the provision of water and sewer, o the option for constructing a sewer line in the Cawdor Road reserve is unacceptably constrained by the formation of the road reserve and the Camden floodplain, and o the garbage collection area is inappropriately located and will impact on the amount of land available for sewer storage facilities and the proposed pumping station.

The evidence 105 The applicant provided a Sewage Management Plan prepared by Dr Daniel Martens. The plan provides for: o the connection of internal sewer lines to a sewage pumping station located in the north western corner of the site, o an internal pressure sewer rising main of approximately 427 m in length to the site boundary and a pressure sewer within the Cawdor Road corridor of approximately 1.1 km in length, and o connection to the existing Sydney Water sewer main. 106 Based on surveys, the Sewage Management Plan indicates that there is adequate room for the pressure sewer main to be constructed in Cawdor Road without impacting on existing services.

107 The council provided no expert evidence to challenge the conclusions of Dr Martens. I accept the conclusions in his report that adequate arrangements can be made for the disposal of sewer. Ecologically sustainable development principles The contentions 108 The contentions raised by council are: o the reliance on private transport and smaller buses for transporting students to the school, and o the school relies on mechanical ventilation of classrooms and indoor area for heating and cooling.

Transport 109 Mr Dowd maintained that the school's reliance on private transport and smaller buses for transporting students to the school from areas beyond the local area are inconsistent with ESD principles. Dr Holmes provided a report to address the issue raised by Mr Dowd. She relies on the trip generation figures prepared by Mr Coady (and agreed to by Mr Rogers) to conclude that the contribution the school would make to climate change is not measurable.

110 The council provided no expert evidence to challenge the conclusions of Dr Holmes. I accept the conclusions in her report. Building design 111 The applicant provided the following reports on the general area of ESD by environmental consultants, Cundall: o Daylight Study - this study addresses the amount of daylight to the classrooms and interior of the high school block. The report concludes that both levels of the building receive adequate daylight under both a cloudy sky and sunny sky scenario. o Energy Efficiency Report - this report addresses the energy efficiency of the least efficient of the school buildings for energy use. The report concludes that with minor modifications to glazing, the building would comply with the relevant requirements of the Building Code of Australia (BCA). o Sustainability Report - this report compares the proposed development against a range of sustainability issues. The report concludes that the design makes provision for high levels of ESD within the construction and operation of the school, over and above the minimum regulatory requirements. o Mechanical Services Report - this report addresses the proposed mechanical air-conditioning systems. The report notes that a mixed mode system is proposed, and in most instances, that allows for natural ventilation when the outside conditions are favourable and mechanical heating or cooling when the conditions are not favourable. There was agreement between Mr Dowd and Mr Caladine that the provision of appropriate air conditioning could be addressed through conditions that require the compliance with Section J of the BCA. 112 The council provided no expert evidence to challenge the conclusions of the Cundall reports. I am satisfied that the proposed buildings satisfy the objective in Pt D Ch 3 of the DCP in that the buildings are designed, sited and constructed, using passive solar principles and maximise energy efficiency by reducing the consumption of non-renewable forms of energy for heating and cooling purposes. The public interest 113 The proposed development attracted extensive public interest that centred on the impact the proposed school would have on the amenity of the immediate area and the broader Camden area. The original application attracted 3083 submissions; 23 submissions were in support; 18 were neutral; and 3042 opposed the school. The submissions included 14 petitions containing 435 signatories who opposed to the proposed school. The amended application attracted 1858 submissions of which three submissions were in support and 1855 were opposed to the proposed school.

114 The Court heard evidence on-site, in Court and by DVD from local residents.

115 In New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 (30 July 2003) Lloyd J made the following relevant comments on amenity: 60 In analysing the substance of such contributions from the public, issues of taste and morality are not necessarily set aside when determining whether or not a development is appropriate ( Venus Enterprises at 69, Fairfield City Council v Liu Lonza & Beauty Holdings , NSWCA, Mason P and Dunford AJA, 17 February 1997, unreported). Indeed, as Mr Officer QC submitted, it is not difficult to envisage a development which causes such great offence to a large portion of the community that for that reason it ought not to be permitted on town planning grounds ( Venus Enterprises per Cripps J at 70, see also Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 349 per Cowdroy J). Such antagonism would amount to a detrimental social impact ( Dixon v Burwood Council [2002] NSWLEC 190 at [66] per Pain J). These sentiments in relation to the element of subjectivity involved in assessing such impact upon amenity are echoed in the decision of Novak at 237, with the caution that there is room for opinions to differ in weighing the same objective criteria. 61 In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area ( Dixon at [53]). In Broad , de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use. 62 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act ( Newton v Wyong Shire Council, NSWLEC, McClelland J, 6 September 1983, unreported, Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79 at 93 per Hemmings J; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 per Cowdroy J). Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear (Dixon at [71]). 63 It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. This is consistent with the statement of Mason P in Fairfield City Council v Liu at [2] that "... the demonstrable social effect of a particular ...use is relevant under s 90(1)(d) [now section s 79C]" (see also Dixon at [48]). 116 The decision in New Century Developments makes the following points on amenity: o issues of taste and morality are not necessarily set aside in the consideration of amenity, o if there is such great offence to a large portion of the community then this may be a valid consideration, o there is room for opinions to differ in weighing the same objective criteria, o evidence on amenity impacts must be objectively assessed before a finding can be made of an adverse effect on the amenity of the area, o little, if any, weight can be given to amenity impacts if there is no objective, specific, concrete, observable likely consequence, o a fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact, and o a Court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. 117 The power to consider a development application (including the "public interest") comes from s 79C of the EPA Act. This power is not unfettered and unsurprisingly must relate to matters that are relevant to a planning application. The "public interest" is a wide ranging concept and local residents are usually given considerable flexibility in the range of matters that they see as being appropriate matters in the "public interest". It does not follow that every matter raised by a resident, even though it may genuinely be thought by the residents to be in the "public interest", is a matter that falls within the power provided by s 79C.

118 I have addressed the matters raised by local residents that I consider to be appropriate matters for consideration under s 79C in the preceding paragraphs with the exception of drainage, the removal of the existing farm dams, flooding and salinity. These matters were not raised as contentions by the council but were addressed in the report to the council on 27 May 2008 (Exhibit 2, Fo 237, 247, 255 and 256 respectively) and were considered to be able to be addressed by way of conditions of consent. In the absense of any contrary evidence, I accept these conclusions.

119 Other matters raised by local residents as being in the "public interest" have been given no weight in the consideration of the development application as they are irrelevant considerations. Orders 120 The Orders of the Court are: 1. The appeal is dismissed. 2. Development application DA 895/2007 for the construction of an educational establishment at the corner of Burragorang and Cawdor Roads, Camden is refused. 3. The exhibits are returned.

      G T Brown
      Commissioner of the Court

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