Vogel v Gasparin and Anor

KEY ISSUES: Appeal :- 3rd Party Appeal - Piggery, adequacy of E.I.S. information, groundwater, noise, odour, traffic, public interest

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 30 Tenterfield Local Environmental Plan 1996

DATES OF HEARING: 3/12/2007 4/12/2007 and 6/12/2007

APPLICANT Mr D. Brigden, solicitor Of Holding Redlich

LEGAL REPRESENTATIVES: 1st RESPONDENT Mr I. Raine, barrister instructed by Mr B. Braham of Stuart Cook & Braham

2nd RESPONDENT No appearance

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10494 of 2007 Buko Vogel and Helga Vogel v 1st Respondent - Joseph Gasparin, Marino Gasparin and Terry Antonion Gasparin, 2nd Respondent - Tenterfield Shire Council

JUDGMENT Background. 1 This matter concerns a 3rd Party Appeal lodged by a neighbouring property owner against a development consent issued by Tenterfield Shire Council for an intensive piggery with 6690 pig capacity, composting facility and offices/amenities.

2 The proposed development is classified as designated/integrated development and is located at "Jindabine" (Lots 32 & 33 DP 751051) Mount Lindesay Road, Boonoo Boonoo.

3 The respective parties in the proceedings are: o Applicant; B & H Vogel, o First Respondent; M, T & J Gasparin, o Second Respondent; Tenterfield Shire Council.

4 The second respondent did not participate in the proceedings.

5 The Council's development consent was issued with a commencement date of 4 May 2007. It contained 50 conditions, including: 1. Development shall take place in accordance with the "amendment to Development Application and EIS (report No. 21191.7084) prepared by EA Systems and Environmental Management Plan (report 21191.15231) prepared by EA Systems (subject to modifications) together with relevant data from EIS (reports 6167/1 & 588/1) prepared by Feedlot Services Australia and as amended/modified by the following conditions. Reason - To confirm the details of the application as submitted by the applicant are approved by Council. 7. This consent relates to a growing facility for a maximum of 6690 (4900 standard pig units) piglets per annum, between the ages of four (4) to sixteen (16) weeks, on a weekly turnover cycle of up to 535 piglets per week, housed in eleven (11) Eco shelters, with concrete floor and operated as dry sheds, that is the use of straw, rice husks or similar for bedding and storage/absorption of urine and faeces.

The total tonnage pigs accommodated within the premises, and any one time, must not exceed 180 tonnes.

Shed surrounds to be gravel hardstand, adequately compacted to Councils requirement, but at a minimum permeability (k) of less than 10-9 m/s.

6 However, no specific and accurate layout plans of the development were identified in the consent. This caused some difficulties for the applicant, objectors and the Court in assessing the merits of the application, considering that there were a number of progressive amendments to the proposal during the assessment process and these required reference to various parts of three comprehensive, overlapping EIS's, with the first two referring to a different type of waste composting ('wet sheds').

7 After some investigations at the commencement of the hearing, it was agreed that the small-scale plan referred to in the EIS generally depicted the proposed development. Reference was made to this plan at the view, in order to identify the proposed location of the various components of the development, although approximate locations only could be established.

8 Then, during the hearing and after presentation of some of the evidence, it became apparent that further amendment and clarification of the development was sought by the first respondent. This resulted in the tender of a further plan (Exhibit 3). This plan is at a scale of 1:15000 and does not accurately show contours or define neighbouring property boundaries.

9 Following requests for specific details of the proposal, the following concise description (Exhibit 12) was tendered. 1 . The construction of eleven arched fabric shelters with concrete floors to house a maximum 6,690 pigs between the ages of 4 and 16 weeks. A composting pad will be constructed together with a sedimentation and rentention pond. 2. An amended site was prepare by the EA Systems consultant and was attached to the amended EIS. 3. Sawdust or wood shavings to be used as litter absorbing moisture from voided urine and faeces thus eliminating liquid wastes. 4. Recently weaned pigs of 21 to 23 days of age weighing around 6 kilograms will enter the piggery in weekly batches of up to 535. 5. Pigs will remain in the piggery until between 15 & 16 weeks of age, after which they will be removed to another piggery in QLD to complete their finisher stage. 6. The movement of pigs referred to above is to another piggery owned by the developer, therefore is not dependant on a 3rd party. 7. Bedding material referred to in 2 above will be removed when required and composted on-site. 8. Spent bedding material to be composted on-site and a proportion of the same to be used to supplement horticultural crops currently grown on-site. The remainder will be used on the developrs' QLD properties or sold to 3rd parties. 9. All stock water will be provided from on-site storage and will be pumped to two 23,000 litre 3 metre water storage tanks on each side of the piggery. 10. On the western side of the western piggery sheds one 12 tonne 5 metre storage silo will be placed at the end of each piggery shed as close as is practicable to the shed. Similarly, on the eastern side of the eastern piggery sheds one 12 tonne 5 metre storage silo will be placed at the end of each piggery shed as close as is practicable to the shed. 11. The piggery buildings referred to in 1 above will be located on an earthen pad, which is entirely within the catchment of Hell's Hollow Creek. Any wastewater will drain toward Hell's Hollow Creek into two holding ponds and will initially be utilized in irrigation of compost pads. 12. Any excess to compost pad irrigation requirements will be held in retention pond and used for T Line irrigation of an apple orchard. 13. The compost to be used as fertilizer will be used only on limited areas. 14. The development will require approximately 5 to 6 extra truck movements per week. Those movements will be divided between livestock trucks (transporting weaner pigs in and grower pigs out), feed trucks and the removal of compost and all trucks will travel north by way of Stanthorpe.

The Appeal 10 Based on the details available prior to the hearing, the applicant identified a considerable number of contentions, which they considered should result in the refusal of the application. These contentions generally concern the adequacy of the technical details for the development and they are summarised as follows, together with other relevant issues identified during the hearing: Water supply; * right to water entitlement and availability of adequate, permanent water supply. Effluent/compost; * impacts of effluent on the ground water, * impacts of surface run-off in storm events, * health risks associated with disposal of composting and spreading of effluent, Odour ; * whether sufficient analysis or assessment has been conducted on the odour that will be generated from composted material being spread on the manure utilisation areas.

Noise impacts ; SEPP 30 considerations; Socio - economic impacts; Bushfire risk. Traffic. Compatibility of the development with the surrounding properties. The Evidence. 11 Detailed evidence in this matter was presented by Dr D Martens, who was appointed by the Court as the single expert for environmental and ground water engineering issues and his report is Exhibit A.

12 Other evidence was presented by: o Ms H Vogel; owner of neighbouring property 'Bald Rock Bush Retreat', o Mr G Smith; owner of neighbouring property 'Hells Hollows', o Mr C Markham; owner of neighbouring property 'Rock Hill', o Ms K McElhenny; owner of nearby property 'Fairytale', o Mr D Parkinson; 2901 Mount Lindesay Road, Boonoo Boonoo. o Mr D Sommerland; President of Tenterfield Visitor Association

13 The concerns expressed by these objectors is summarised as follows: o The approved development lacks detailed specification to ensure that the environmental impacts of the designated development are acceptable, o The operation of the piggery will create unreasonable and unnecessary risks of contamination of the groundwater, o Unreasonable demand for the available water from Hells Hollow Creek, o The approval of this piggery in relatively close proximity to the 'Bald Rock Retreat', which is incompatible with the retreats' rural character and will have an adverse on its amenity and financial viability, o There will be unreasonable odours generated, particularly from the spreading of compost or manure on the open paddocks, o Unreasonable noise will be generated from the piggery and associated transport arrangements, o Likely undesirable clearing of wooded areas adjacent to National Park, o Unsafe traffic conditions will be created along Mount Lindesay Road, due to the substantial road section being currently unsealed. The safety concern arises from increased usage of this road by large delivery vehicles, particularly at a times when the school bus operates, o The location of the piggery in relatively close proximity to the Bald Rock Retreat and the neighbouring Boonoo Boonoo National Park, which attracts many of the 90000 visitors per year to the Shire, is incompatible with the tourism objectives of the area.

Discussion of the Evidence. 14 From my consideration of these issues, I initially express my concern about the level of detailing of the approved development, particularly as this is classified as integrated/designated development. The lack of detailed layout plan causes considerable difficulty in establishing the location of the various components of the development within the property and any consequential impacts on the subject land and neighbouring properties.

15 Furthermore, the conditions of consent defer consideration of the design of some of these essential elements of the piggery until Construction Certificate stage, which is not consistent with the approach of the Court, who requires adequate information to determine the merits of the proposal before issuing any consent. The Council's assessment leaves open the fundamental question of whether the site is suitable for the development, because the field investigations don't accurately cover the actual site (e.g. water holding ponds).

16 I also consider that Condition 1 lacks specificity by referring to other "relevant" data in previous EIS reports. The initial EISs referred to 'wet composting' areas and different layouts to that of the final development proposal, which is for a Deep Litter 'litter' (dry shed) system involving a different setout of the 11 Ecoshelters, composting area and waste water basins. These initial documents attracted some negative comments from the relevant government agencies, which complicates the extraction of reliable technical information for the ultimate development.

17 Nevertheless, some more detailed plans were produced during the hearing. These include: o Exhibit 3; 'Site Plan with Receptors (scale 1:15000), dated 4/12/2007, o Exhibit 14; 'Apparent Diagram 21191/001 (nts).

18 Reference was also made to; Figure 14 in EIS Report No 6167/1 and Figure 17.

19 Considering that Ex 3 was tendered quite late in the proceedings and after the view, it was not correlated at the actual site. Also, it shows a different component layout to that in Ex 3. I consider accurate presentation of these details essential, taking into account the sloping topography of the land, intervening watercourses and existing vegetation.

20 It appears to me that the reliability of Ex 14 is questionable, particularly the positioning of the 11 Ecoshelters, which would require a platform area in the order of (124m x 132m) 16368 sq m. From the observations at the view, the existing platform appears partly formed and involves cut on the southern end and a considerable embankment on the northern end. However no elevations have been provided to correlate this to the soil bore logs to enable detailed assessment of impacts on the sub-surface conditions.

21 Furthermore, the associated composting pad, sediment basin and holding pond appear only to be shown schematically. By reference to Fig 14, it shows the wet-weather pond having overall dimensions of 73.6m x 73.6 sq m. This is to be connected to the solids composting/storage area (approx area 3835 sq m). Again, from my observations at the view, these facilities will most likely involve relatively significant cut and fill with likely impacts on the sub-surface conditions, which I consider should be assessed initially.

22 In this regard, the obvious concern is the impact on the water table. This has been addressed by Dr Martens and Mr Smith, which I deal with subsequently. However, I consider the level of detailing proposal, particularly the development layout, is inadequate to enable proper assessment of the merits of this application. This is notwithstanding the councils' s 79C assessment report, which is of little assistance to the Court. Wastewater 23 According to Dr Martens' statement, he reviewed the technical report submitted with the application, together with further supplementary information provided by Mr P Binns (applicants environmental consultant). However, this supplementary information was not made available to the Court.

24 From this review, Dr Martens identified a number of deficiencies, which are summarized as follows: o Piggery shed leachate; this waste stream has received little attention in documentation provided and more details are required to assess the volume and holding pond requirements for final treatment and beneficial re-use, o Run-off from litter compost area; whilst this waste water system has received primary attention, insufficient information has been provided to ascertain that a suitable wastewater management strategy has and can be prepared for the development site, with particular reference to:

a) Detailed plans of compost area and bunded enclosure confirming catchment areas of the holding pond , b) Detailed plans of the holding pond including confirmation of the volume, surface area, bunding and overflow management. This should include reference to stormwater holding capacities as well as the requirement for temporary waste water storage for periods of low/no wastewater storage for periods of low/no wastewater utilisation/irrigation, c) Information covering expected holding pond overflow frequency, volumes and likely uncontrolled environmental discharges, d) Detailed plans of effluent irrigation fields indicating sizes, cultivated crop type and location of any sub-fields, e) Calculations/data supporting that the irrigation fields can sustainably accommodate effluent… "insufficient information has been submitted to demonstrate that a consent should be granted." f) A site stormwater management plan should be prepared covering stormwater quality management requirements for the site. 25 Dr Marten's conclusion is that: "the application in its present form does not provide sufficient information to enable a clear understanding of the proposed piggery management wastewater system, its potential impacts and on-going operation requirements. Whilst the site may ultimately have the capacity to support the development proposal, further information should be sought to clarify the range of deficiencies identified…"

26 This conclusion is consistent with the evidence of Mr Smith who expressed concern about possible environmental damage to his neighbouring property from wastewater discharges and ground water contamination. My assessment is that there are insufficient details on the wastewater arrangements to grant the consent.

27 My associated concerns are that the holding/wet weather pond is only tentatively located, but the separate dimensioned plan shows this having overall dimensions in the order of 73.6m x 73.6m and base area of 55m x 55m to achieve the designated capacity of 145 cu m.

28 Considering this location and the site slope in the order of 5%, it is most likely significant cut and fill will be required to achieve this volume. Such cut is likely to be in the order of 1m + and I note that the only relevant bore logs JINO1 and JINO2 (albeit somewhat displaced from this specific location) have only been taken to a 900mm depth. Nevertheless, the profiles indicate very well drained soils, which raises a number of concerns, particularly infiltration. This arises from the groundwater system being a shallow catenary one, which under wet conditions results in significant groundwater flows that need to be controlled to avoid downstream contamination. 29 Insofar as the details of the composting area and holding basis are unresolved, the DEC said that confirmation would be required to the effect that the ponds could be sealed to the required specification, which could involve importation of appropriate lining material. Also, as the cleaning of the sludge from the settling basin is likely to require machinery and involve traffic on the base of the basins, this could cause damage and compromise the integrity of the clay layer. Therefore details of the proposed cleaning were required, but these do not appear to have not been provided as yet, which I consider it is a negative aspect of the proposal.

30 Another concern relates to the assumptions used for the calculation of the holding pond volume. The application details show that a 1:10 year storm event (Q 10) was adopted to determine the 145 cu m volume. But Dr Marten expresses concern that no water balance has been determined for the wastewater holding pond to determine whether the holding capacity will be available at all times in the event of a 24 hour 10 year ARI storm. His view is that it is unlikely to have adequate capacity and that assessment should be made of relevant storm events including 1:20 (Q 20). 31 In my assessment, this is another deficiency in the project details, which should be assessed prior to the issue of any consent because the evidence indicates to me a reasonable likelihood of the current proposal wastewater volumes being under-designed.

Bushfire 32 This issue emerged during the hearing due to the proximity of the proposed structures to the eastern boundary, adjacent vegetation and the National Park. Insofar as it was not a matter considered in the original assessment, nevertheless the property is located within the 'Red; Class 1' zone - highest risk classification and does require consideration under the provisions of the "Planning for Bushfire Protection" guidelines. On the basis of a preliminary assessment, it would appear that the development would require at least a 50m Asset Protection Zone (APZ) and also precautionary measures undertaken to ensure reasonable animal welfare in a fire event, for the 6000 pigs. The lack of this bushfire assessment in terms of an accurately located development is a significant deficiency and a further negative aspect of the proposal, at this stage.

Transport 33 This issue was raised by the neighbours, who expressed concerns about increased usage of Mt Lindesay Road, in view of its unsealed surface and the likely increase in safety risks, including to those using the school bus. In my assessment the traffic assessment is minimal. It is an appropriate matter for consideration and it appears the applicant relies on the initial traffic generation and routes presented in the original EIS. This listed weekly traffic at 5.76 trucks. For the s 79 C assessment, the planner re-assessed this at 8 vehicles/week, considering it satisfactory.

34 However, in light of the revised description of proposal that some of the spent bedding material will be transported to Queensland or sold and Dr Marten's evidence that more details were required on the re-use of the spent 'litter/manure' on-site, it appears to me that it is likely there will be excess manure, resulting in increased off-site truck movements. Accordingly, I am not satisfied that the traffic impact details are adequate.

Director Generals Requirements 35 The evidence indicates that there have been a number of referrals to the relevant authorities and this has resulted in a number of detailing amendments. On 7 January 2004 EPA requested further details on: o Aboriginal cultural heritage; Due to the superficial initial assessment in the EIS, which they considered lacked survey field effort and also discussions were recommended with the Aboriginal custodians. Despite the s79 C statement that " considering the fact that the site has been inspected through the local aboriginal land council and has no known European heritage, there is not considered to be any detrimental effects in this regard". But no details in this regard have been provided for consideration. o Vegetation remnants; EPA considered the initial EIS statements " that no clearing of trees will be necessary", inadequate in terms of the identification of areas that provide potential or known habitat for threatened flora and fauna species and endangered ecological communities. o Boonoo Boonoo National Park; As the proposed piggery is located immediately west of these National Park, which contains significant natural and cultural values, EPA recommended that the applicant undertake an assessment of potential impacts on the park. Furthermore, the applicant was required to clearly demonstrate measures proposed to mitigate any impacts on the Department's estate. 36 Whilst I accept the applicant has provided additional information in this regard, nevertheless the adequacy of this response is uncertain. The additional information is included in the ' Amendment to Development Application and EIS (Report No 21191.7084) - date of issue 11 April 2006. However the subsequent letter from the Department of Planning dated 27 October 2006 identifies the items of heritage impacts, flora and fauna impacts and environmental performance indicators as still being inadequately addressed.

37 I consider that these matters should be satisfied prior to the grant of any consent. Accordingly, this is another aspect of insufficient detail, which contributes to the failure of this application.

Socio-economic impacts ; 38 This issue was raised by the objectors in terms of inadequate information being provided regarding the impact of the proposal on businesses in the vicinity of the property and the overall impact on the area. Mr and Mrs Vogel run the nearby 'Bald Rock Retreat' and they consider the proximity of the proposed piggery is incompatible with the character and operation of the retreat and the nearby National Parks.

39 In particular, they say that they would be greatly disadvantaged in successfully promoting their business as a peaceful nature destination for visitors because of smell impacts and noise and would suffer financial loss. Also, the tourist traffic along Mt Lindesay Road will be exposed to increase danger considering the road conditions.

40 A considerable number of supporting letters regarding the adverse impact on the Retreat are contained in exhibit B. Of relevance is the letter from the director of ' Exodus Live Festival', which has taken place at the Retreat for the past 8 years and apparently attracts thousands of visitors. This submission "is if an industrial sized Piggery Development goes ahead in close proximity to the festival Site, we would have to reconsider using Bald Rock Retreat site in the future." 41 Objections were also made by Mr D Sommerlad (President of Tenterfield Visitor Association) on the basis that some 90000 visitors/year are involved in tourism pursuits in the Shire, particularly the National Parks, which generated some $5.4m. Accordingly, the associations submission is that "a piggery project is highly incompatible with the environmental values and natural asset of the area and will be extremely detrimental and dissuade any future tourism developments in that area."

42 Whilst the EIS and supporting documents deal with the main nuisance sources of odour and noise, there does not seem to be a comprehensive socio-economic assessment of the competing interests. Based on the evidence and submissions before the Court, I am not prepared to accept Council's conclusion that there is "nil" social impacts on the locality. I am aware that the development will likely to increase jobs in the area and this could be a positive benefit. Also, some economic impact could arise from the disposal of the 'manure'. For these reasons I do not consider the socio-economic impacts have been adequately assessed.

State Environmental Planning Policy No 30 - Intensive Agriculture (SEPP 30) 43 This SEPP 30 contains details of the matters for consideration of development application for cattle feedlots and piggeries. Included in the these requirements is the adequacy of information to assess the environmental impact of the proposal, so as to ultimately assess the suitability of the site in the circumstances.

44 Insofar as this SEPP was not considered in the council assessment, it is a relevant development control and whilst most of the consideration matters have been otherwise addressed to some extent, I am not satisfied that some are acceptable and would comply with the SEPP 30 provisions. These are as previously identified.

Odour 45 I note that a number of odour assessments were undertaken, particularly that by EASystems (21191.7084). It identified 3 properties potentially affected by odour and concluded any impacts would be acceptable based the following tabulation of separation distances:

Table 19: Available separation distances between receptors and piggery. Residence Available Required A 2520 566 B 1760 566 C 1890 566 46 I accept this evidence. However, I do not consider the EIS details adequately assess the odour impacts of the manure placement on the various cropping areas that are much closer to the residential receptors. This concern was expressed by a number of neighbours, who said they experienced unsatisfactory odours arising from placement of fertilisers on the proposed cropping paddocks. Also, the technical details do not cover any odour impacts arising from manure transported off-site, which I understand could be considerably more than first determined. Consequently, I consider the odour assessment is deficient.

Conclusion. 47 Having considered the evidence, the submissions and undertaken a view, I do not consider this development application merits consent. This proposal is for designated development, which generally requires detailed environmental assessment prior to grant of consent.

48 However in this case, I am not satisfied that some of the critical information is adequate. Firstly, the level of plan detailing to enable accurate location of the proposal on the site is unsatisfactory and not a matter I consider should be deferred to Construction Certificate stage, which allows other entities to make the final determination. Instead the environmental impacts should be assessed prior to granting of any consent.

49 Associated with this is the lack of specificity for the location of the composting pad area and holding ponds, relative to the sloping topography of the land, proximity to watercourses and soil permeability. The plans do not show the effects of cuts/fill and I rely on the unchallenged conclusions of the Court appointed expert (Dr Martens) opinion that the proposed wastewater system details and calculations are not acceptable to merit approval. This opinion is consistent with the evidence of Mr Smith, which I give limited weight. 50 In concluding that the E.I.S. details and supporting information is inadequate in terms of the provisions the Environmental Planning and Assessment Act, 1941, Environmental Planning and Assessment Regulation 20000 - Schedule 1, I have also given consideration to Mr Raines submissions that the matter be adjourned to allow the outstanding information to be provided.

51 In support of this, he cites the approach taken in James Godfrey v Wollondilly Shire Council [2007] NSWLEC 33:

59 Although the application as supplemented included information relating to dust suppression (use of soil binding agents, use of sprinkler systems to wet down fine piles and covering fine piles), I consider Mr Brown's concerns about the inadequacy of that information, and the desirability of ensuring that all materials are placed in bins with dampening equipment, carry weight. In particular, there was no first hand information from a suitably qualified expert about the efficacy of soil binding or wetting down stockpiles (particularly unconfined stockpiles) as a dust suppression measure. Although the applicant indicated that fine materials could be covered, it was not clear to me from the evidence that this was practical for the unconfined stockpiles.

60 In circumstances where I accept that the storage of soils, sands and related materials on site is likely to cause dust nuisance to the rural residential properties to the west absent mitigating measures, I am not content to leave this matter to be addressed by conditions. In circumstances where I also anticipate that effective mitigating measures are likely to be available, I do not consider it reasonable to refuse the application outright on the ground of inadequate information with respect to dust suppression. I am willing to hear the parties further on this issue....

67 I have concluded that the issues the Council raised and the concerns of the residents should not lead to refusal of the application, but it is appropriate that I hear the parties further on the issues of dust suppression, internal traffic arrangements and consent conditions generally. I propose to list the proceedings for directions in this regard. 52 However, I consider the subject case is distinguished from Godfrey, because there are a wider range of connected issues in the subject case that require review, which could fundamentally alter the overall proposal, in particular the bushfire risk assessment.

53 Another significant inadequacy concerns the lack of bushfire risk assessment. Considering the conceptual development location in a "Red" fire risk zone and the proximity to the National Park, it appears most likely that effective APZs will be required. However the conceptual layout plans do not indicate how this can be achieved without impacts on the existing vegetation. I consider this an important matter to be assessed before granting any consent.

54 It also appears to me that some of the Director Generals requirements have not been satisfied as previously noted and they should be adequately addressed prior to any grant of consent. 55 In the ultimate, I am satisfied the applicant has raised a number of substantive issues resulting in the appeal being upheld and consent not being granted. Court Orders 1 The appeal is upheld. 2 Development consent for an intensive piggery of 6690 pig capacity, composting facility and offices/amenities at "Jindabine", Lots 32 & 33 DP751051 Mount Lindesay Road, Boonoo Boonoo is refused. 3 The exhibits may be returned except for 2, 3, 14, A, H and J.

      R Hussey
      Commissioner of the Court
      ljr

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