Vortex Developments Pty Ltd trading as Plannex Environmental Planning v The Council of the Municipality of Kiama - [2024] NSWLEC 1755 - NSWLEC 2024 case summary — Zoe

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Vortex Developments Pty Ltd trading as Plannex Environmental Planning v The Council of the Municipality of Kiama

[2024] NSWLEC 1755

Land and Environment Court (NSW)|2024-05-28

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2024-05-28

Catchwords

[2017] NSWLEC 173 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638
[2011] NSWCA 349 Maule v Liporoni & Anor (2002) 122 LGERA 140
[2002] NSWLEC 25 Nessdee Pty Ltd v Orange City Council [2017] NSWLEC 158 North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20
(2006) 67 NSWLR 256

Source

Original judgment source is linked above.

Catchwords

[2017] NSWLEC 173 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638[2011] NSWCA 349 Maule v Liporoni & Anor (2002) 122 LGERA 140[2002] NSWLEC 25 Nessdee Pty Ltd v Orange City Council [2017] NSWLEC 158 North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20(2006) 67 NSWLR 256

Judgment (35 paragraphs)

[1]

cil [2019] NSWLEC 160 Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55 Texts Cited: Australian Standard AS 4696:2007 Hygienic Production and Transportation of Meat and Meat Products for Human Consumption Controlled activities - Guidelines for riparian corridors on waterfront land (NSW Government, 2022) Kiama Development Control Plan 2020 Macquarie Dictionary (7th ed) Shorter Oxford English Dictionary (5th ed) Category: Principal judgment Parties: Vortex Developments Pty Ltd trading as Plannex Environmental Planning (First Applicant) Endo-Technik-Nord Pty Ltd (Second Applicant)

[2]

[4]

Judgment

COMMISSIONER: A Schottlanders Wagyu beef cattle grazing enterprise is currently being undertaken at 96 Rose Valley Road, Rose Valley (the property), which presently contains a dwelling house, farm stay accommodation, an approved meat processing facility, and farm sheds associated with the grazing of cattle. The applicants seek development consent for the construction and operation of an abattoir, which will process up to 120 head of cattle per year. The cattle to be processed will be that which is already on the property. A development application was lodged with Kiama Municipal Council (the Council) on 6 July 2021, which was refused on 20 September 2022. These proceedings are an appeal against that decision, and have been lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The development application proposes alterations and additions to an existing farm shed for the purpose of the abattoir, which includes an abattoir room, a cool room, a loading bay and bathroom and washing facilities. The proposed development includes a 7 tank waste management system to accommodate 500L wastewater a day. It proposes to operate 7 days a week from 6am to 6pm, employing 3 part time staff, for processing up to 3 cattle a week.
As a result of its proximity to a watercourse, the proposed development is designated development under s 4.10(1) of the EPA Act and cl 22(d) of Sch 3 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). The EPA Regulation 2000 continues to apply to the proposed development as a result of the savings provision in Sch 6 Pt 1 cl 3 of the Environmental Planning and Assessment Regulation 2021.
Prior to the hearing, the development application was amended by the provision of an Amended Environmental Impact Statement dated October 2023 (the EIS) and a Draft Operational Environmental Management Plan dated 4 April 2024 (DOEMP). As a result of these amendments, together with the joint expert evidence of the town planners in their joint report filed on 22 April 2024, the Council now agrees that each of the contentions it initially raised on the appeal has been resolved. The Council raises no contentions that it says would warrant refusal of the development application. The Council's position is that the development is unlikely to give rise to any adverse environmental impacts, including impacts to adjoining neighbours.
As the proposed development is designated development, s 8.12 of the EPA Act allows an objector to be heard at the hearing of the appeal. Two objectors, Kenneth and Debra Sandy (the Sandys), applied to and were joined as the second and third respondents on the appeal. They oppose the grant of development consent and raise issues concerning its permissibility, cumulative impacts, impacts on the watercourse, impacts on traffic, impacts on biodiversity, as well as contentions relating to stormwater management, flood evacuation, biosecurity, the requirement for an approval under the Water Management Act 2000, a lack of justification, and deficiencies in the EIS.
For the reasons that are set out below, none of the contentions raised by the second and third respondents are made out or warrant refusal of the development application. The proposed development the subject of the development application is constrained to a change in use for the existing shed, and its alterations and additions, for a permissible purpose. There are no unacceptable impacts on the watercourse, on traffic or on biodiversity. The proposed stormwater management and wastewater management is acceptable, and there is no issue concerning flood evacuation given that the floor level will be adequately raised above the Probable Maximum Flood, and the Flood Evacuation Response Plan adequately reduces any risk that anyone will be isolated during a flood. Further, I have found that the EIS is acceptable. The proposed development is appropriately located within an existing building that relies on existing access paths, at an intensity that does not cause unacceptable impacts and in fact facilitates the reduction of truck movements to and from the site. Accordingly, I have determined to grant development consent subject to conditions.

[6]

The planning framework

The property is principally zoned RU2 Rural Landscape pursuant to the provisions of the Kiama Local Environmental Plan 2011 (KLEP), with some small areas within the site zoned C2 Environmental Conservation. The proposed development is to be carried out on the land zoned RU2. The objectives of the RU2 zone are as follows: • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. • To protect agricultural land for long term agricultural production. • To provide opportunities for employment-generating development that adds value to local agricultural production through food and beverage processing and integrates with tourism.
An abattoir is a type of livestock processing industry, which is defined in the KLEP as "a building or place used for the commercial production of products derived from the slaughter of animals (including poultry) or the processing of skins or wool of animals and includes abattoirs, knackeries, tanneries, woolscours and rendering plants." Livestock processing industries are also a type of rural industry. Both livestock processing industries and rural industries are innominate prohibited uses in the RU2 zone.
However, the property has the benefit of an additional permitted use clause, which makes a livestock processing industry permissible on the lot on which it is proposed. Clause 2.5 of the KLEP provides: 2.5 Additional permitted uses for particular land (1) Development on particular land that is described or referred to in Schedule 1 may be carried out - (a) with development consent, or (b) if the Schedule so provides - without development consent, in accordance with the conditions (if any) specified in that Schedule in relation to that development. (2) This clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan.
Schedule 1 cl 7 of the KLEP provides as follows: 7 Use of certain land at Rose Valley Road, Rose Valley (1) This clause applies to land at 96 Rose Valley Road, Rose Valley, being Lot 103, DP 561082 and Lot 1, DP 1005217, identified as "7" on the Additional Permitted Uses Map. (2) Development for the purposes of not more than one of each of the following is permitted with development consent - (a) a livestock processing industry, (b) a restaurant or cafe. (3) In this clause - livestock processing industry means an abattoir that is used only for the processing of - (a) beef cattle that are reared on the land, and (b) not more than 120 beef cattle in any 12-month period. restaurant or cafe means a restaurant or cafe with a seating capacity that does not exceed 60 persons.
Lot 103, DP 561082 is the land now comprised in Lot 12 DP 1259233 and there is no dispute that the reference to the land in Sch 1 cl 7 relates to that part of the property on which the development is proposed.
Pursuant to s 4.10(1) of the EPA Act and cl 22(d) of Sch 3 of the EPA Regulation 2000, the proposed development is designated development as it is "within 100 metres of a natural waterbody". As such, the development application is required by s 4.12(8) to be accompanied by an Environmental Impact Statement (an EIS) "in the form prescribed by the regulations". The specific matters required for an EIS are set out below.
The Kiama Development Control Plan 2020 (KDCP) applies to the property, and Chapter 2 addresses site considerations. The particular provisions are considered below.

[9]

The Notice to Produce

On 17 May 2024, the applicants served on the Sandys a Notice to Produce to Court, pursuant to r 34.1 of the Uniform Civil Procedure Rules 2005 (the Notice). At the hearing, the Sandys made an application to set aside paragraphs 3 and 4 of the Notice, which required the production of: "3. A copy of the letter of instruction sent to Ms Janine Price to carry out the Preliminary Land Use Review dated 18 August 2021. 4. A copy of the correspondence referred to in the section titled "Background" of the Report in which Ms Price was "asked… to provide a brief preliminary review"."
At the hearing, I declined to set aside those paragraphs of the Notice, and indicated that I would provide more extensive reasons in the final written judgment. I provide those reasons now.
The application was made by the Sandys on the basis that there was no legitimate forensic purpose in the production of the documents. Mr Lazarus, who appears for the Sandys, pointed out that, pursuant to NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139, the applicants bear the onus of establishing that there is a legitimate forensic purpose. The Sandys acknowledge that the instructions given to Ms Price for the purpose of these proceedings, which were sought by other paragraphs of the Notice, are documents with a legitimate forensic purpose. They submit that the letter of instruction for the purpose of a prior assessment is not. They submit that those paragraphs are akin to a fishing expedition, as they seek the production of documents that are directed to a question of characterisation that is not relevant to these proceedings, and relate to an earlier assessment report that is no longer relied upon by the Sandys.
Mr Wright, who appears for the applicants, instead submits that, if a witness is called as an expert, as Ms Price is, he is entitled to interrogate the background of her involvement with the site, and what facts, matters and assumptions they've taken into account in forming any opinion. He points out that the Preliminary Land Use Review dated 18 August 2021 was a document that was relied upon by Ms Price in preparing the joint report (Ex 2R4, p.2).
As indicated on 22 May 2024, at the hearing, I consider that there is a legitimate forensic purpose for the documents sought, and I accept the submissions made by Mr Wright in that regard. Given that the Preliminary Land Use Review dated 18 August 2021 was a document relied upon by Ms Price in preparing her expert opinion evidence expressed in the joint report, the documents sought in paragraphs 3 and 4 of the Notice are capable of providing a legitimate basis for cross-examination. As set out by Brereton JA in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [89]: "…the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; that they "appear relevant in the sense that they relate to the subject matter of the proceedings"; or that they could possibly throw light on the issues in the case. Moreover, documents will add "in some way" to the relevant evidence in the case if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence.
Given that the documents sought in paragraphs 3 and 4 of the Notice are relevant to a document relied upon by Ms Price in the preparation of her evidence, they are capable of assisting in cross-examination, and therefore have a legitimate forensic purpose. For those reasons, I declined to set aside those paragraphs of the Notice.

[10]

The proposed development

The "development the subject of the development application", for the purpose of the assessment required by s 4.15 of the EPA Act, is for alterations to an existing shed and its change in use for the purpose of an abattoir.
It is described in the development application form as "Alterations and additions to an existing farm building and the use of that building as an abattoir to process up to 120 head of cattle per annum" (Ex A).
The alterations to the existing building include reducing the size of the existing hay shed by a relocation of the eastern wall and removal of a portion of the existing roof, and constructing the abattoir and cool room on the area of the cleared hay shed slab. This includes the installation of prefabricated amenities unit with "self-contained wastewater storage and a bunded wastewater treatment system on existing hardstand area" (Ex B, p.20). The proposed development also includes the construction of a wastewater system for the abattoir, including the installation of tanks on the existing concrete slab and constructing an enclosed bunded area with 1.5m waterproof walls (see Ex B, p.20).
The footprint of the development is partly within the existing shed, as can be seen from Figures 1 and 2.
The proposed use is restricted to the processing of 120 head of cattle per annum, which is likely to be 3 cattle on one day of processing each week. The proposed use will operate by cattle entering the stun or 'nook' box to be located immediately adjacent to the abattoir building, where the animal is irreversibly stunned. An air-operated sliding wall then rises and the animal falls into a cradle inside the abattoir, where the carcass is attached to a 2t crane that hangs the carcass on a sliding rail so that it can be moved through the abattoir. It then goes through a process known as 'bleeding', followed by having its hide removed, paunch removed, offal removed, and is then cut in half before storing in a cool room. Paunch and by-product from the animal is transported to a chute into a stainless steel box that is secured and stored in a cool room until waste collection, and blood from the blood tank is also collected as waste (see Ex B). The carcass is then transported to the meat processing facility that already exists and operates on the property.
There are no works proposed outside the physical works to the existing shed described above, and the use sought in the development application is for the use of the altered building. If development consent is granted, vehicular access to the building will be using the existing access roads, and cattle will access the building by being walked from an existing holding pen along an existing race.

[11]

The role of the Court to assess the development the subject of the application

In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. In doing so, the Court is required to take into consideration such of the matters in s 4.15(1) of the EPA Act as are of relevance to "the development the subject of the development application". With respect to s 4.15(1)(a), they must also "apply to the land to which the development application relates".
The "land to which the development application relates" is not the whole of the property. As observed by Robson J in Stokes v Waverley Council (No 2) [2019] NSWLEC 174 at [86], "the description of the land on which the development is to be carried out in the accompanying documents (such as the SEE) can also confine the land to which the development application relates to be a lesser parcel of land than is described in the development application form: Al Maha at [94] and Rose Bay Afloat Pty Ltd v Woollahra Council [2002] NSWLEC 208; (2002) 126 LGERA 36 at [60]-[63]."
From the outset, the EIS makes it clear that the proposed development is for "alterations and additions to an existing hay shed in which the abattoir incorporating a cool room, prefabricated amenities unit and wastewater treatment system, will be constructed, on an existing concrete floor slab and concrete hardstand area" (Ex B, p.1). It then defines "the Site" as the location of the abattoir, and refers to "the Site" throughout. It is clear, from the EIS, that the "land to which the development application relates" is the proposed location of the abattoir.
However, there is no doubt that in assessing "the likely impacts of that development", pursuant to s 4.15(1)(b) of the EPA Act, those impacts can extend to impacts beyond the land to which the development application relates (see Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake Works) at [6]).
Given that the development the subject of the development application is the proposed development described above at [30]-[33], and the land to which the application relates is the location proposed for the abattoir, that is the development I am required to assess pursuant to s 4.15. I am not required to assess the current farm operations on the property, as that is not "the development the subject of the development application".
This means that, contrary to the position advanced by the Sandys, I am not required to assess the areas identified by them as feedlots, the holding yards, or the hardstand area to be used by vehicles accessing the abattoir. Each are existing features of the property and current farm operations, and none form part of the development the subject of the development application. Even if it could be said that the use of these areas is required for the purpose of the proposed development, it is clear from the EIS that they do not form part of either the development the subject of the development application, or the land to which the application relates. It is well established that a development application does not need to extend to land that is "necessarily involved in the use of the land the subject of the application" (Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55, at 62, per Cripps CJ LEC, see also North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; (1996) 185 CLR 470). It is only the development that is the subject of the development application that the Court can consider, although the relationship of the development to the existing features of the property can be relevant to that consideration (North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20 at [10]).

[12]

Permissibility (Contention 1A)

As set out above, a livestock processing industry is permissible with development consent on Lot 12 DP1259233 pursuant to the additional permitted uses clause in cl 2.5 of the KLEP, and Sch 1 cl 7. However, the definition of livestock processing industry constrains what is permissible to "an abattoir that is used only for the processing of… beef cattle that are reared on the land".
The Sandys contend that the beef cattle that will be processed by the proposed abattoir are not "reared on the land". They advance this argument for two reasons.
The first reason is that the property extends to Lot 201, which does not fall within "the land" as described in Sch 1 cl 7 or within the area on the Additional Permitted Uses Map. The Sandys say that aerial photography from 2023 and 2024 shows that Lot 201 is being used for grazing of cattle and supplementary feeding, and that the EIS does not distinguish which parts of the property are being used for "rearing" of the cattle that are to be processed at the abattoir.
The second reason is that the beef cattle, once they reach around seven months of age, are weaned and transported to another property, at 170 Jennings Lane, Bolong (the Bolong property), for a period of about 11 months before returning to the property, where they stay until they are sold or slaughtered at around 24 months of age. Both the property and the Bolong property are owned and operated by the second applicant.
The Sandys submit that, in the definition of "livestock processing industry" in cl 7(3) of Sch 1, the word "only" limits the use of the abattoir to cattle that have only been reared on the land identified in that clause. They submit that it would be contrary to the intention of the clause to allow it to apply to cattle that have spent part of their rearing elsewhere. They rely on the definition of rear in the Macquarie and Oxford dictionaries, as follows: Macquarie Dictionary (7th ed): "rear. 1. To care for and support up to maturity." Shorter Oxford English Dictionary (5th ed): "rear. 9. Bring (animals) to maturity or to a certain stage of growth, as by the provision of food and care; to breed and bring to maturity (cattle etc.) as an occupation."
On the other hand, the applicants submit that the animals are reared on the land as they are cared for and fed on the site in two stages - first, until they are weaned and have the ability to fend for themselves, and second, from their return to Rose Valley, to the weight necessary for slaughter.
The applicants submit that there is nothing in the wording of the term "reared on the land" that requires the cattle to be exclusively reared on the land, and that the Sandys construction of the clause requires words to be read into the definition of livestock processing industry, such that it reads "beef cattle that are reared [only] or [exclusively] on the land".
The Sandys submit that, if the applicants' construction is accepted, then the limitation would be pointless as it could be easily evaded by taking cattle to another farm after 1 day and still be considered "reared" on the land. They submit, therefore, that a purposive approach to the interpretation of cl 7(3)(a) of Sch 1 should be undertaken, taking into account the planning proposal and other planning documents to interpret its meaning.

[13]

The proposed development is permissible

In my view, the language of cl 7(3)(a) of Sch 1 of the KLEP is clear, and the cattle to be processed by the proposed abattoir meet the description of "beef cattle that are reared on the land". I reach this conclusion for the following reasons.
Firstly, there is nothing in the wording of cl 7(3)(a) of Sch 1 that requires the cattle to be reared exclusively on the land.
It is not in dispute that the word "reared" means "to bring to maturity or to a certain stage of growth, as by the provision of food and care", consistent with the Oxford English Dictionary. As submitted by the applicants, the rearing of cattle occurs over a period of time, from birth to maturity. For beef cattle to be "reared on the land", there must be a period of time over which they are provided with food and care "on the land".
The wording of cl 7(3)(a) does not specify the length of time over which they must be reared on the land, and does not require the cattle to be exclusively reared on the land.
The use of the word "only" in the chapeau of cl 7(3) confines the definition of "livestock processing industry" to an abattoir that meets the requirements of (a) and (b). It does not qualify the words "reared on the land" in (a) in any way.
I accept the applicants' submission that the construction of cl 7(3)(a) contended for by the Sandys impermissibly depends on words being read into (3)(a) to qualify the words "reared on the land". Specifically, it requires the insertion of the word "only" or "exclusively" after the word "reared". In my view, this is an insertion that varies the natural meaning of the language used, where there is no grammatical or drafting error. To so insert a word would be contrary to the decision in Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531 at [38].
All that is required is that I am satisfied that the proposed abattoir will process beef cattle that are "reared on the land", in that there must be a period of time over which, during the period from birth to maturity, they are provided with food and care "on the land".
Secondly, I do not accept the Sandys' position that one must have regard to the intention of the clause, as construed through the extrinsic material relied upon by them, in order to understand its meaning. The task of interpretation of the words of the clause involves determining their meaning by reference to "the objective intention as manifested by the words" rather than by "the subjective intention of parliamentarians or ministers" (Parks and Playgrounds Movement Inc v Newcastle City Council (2010) 179 LGERA 346; [2010] NSWLEC 231 at [71]). These principles apply to delegated legislation (DM & Longbow v Willoughby City Council (2017) 228 LGERA 342; [2017] NSWLEC 173 at [19]). In my view, the meaning of cl 7 of Sch 1 is clear and permits a livestock processing industry on the land if it meets the criteria in cl 7(3).
Thirdly, contrary to the position of the Sandys, the interpretation of the words in cl 7(3)(a) in accordance with their natural meaning does not lead to any absurdity, nor does it make the limitation pointless. It will always be a question of fact and degree as to whether a proposed development will fall within the ambit of cl 7(3). It is not useful to work with hypotheticals, as the Sandys sought to do, by giving the example of a cattle being taken from the farm after 1 day. That hypothetical is not relevant here.
Finally, the facts of this case lead to the conclusion that the proposed abattoir complies with cl 7(3)(a), as it is proposed only for the processing of "beef cattle reared on the land". The calving shed, the cattle barn and cattle shed are all located on the land, being located on Lot 12, and the evidence of Ms Price is that there are areas used for intensive feeding located on this same land. The evidence is that the cattle that will be processed by the proposed abattoir are those that are born on the property, and stay on the property until they are weaned at around seven months. Given the location of the calving sheds, cattle sheds and paddocks on Lot 12, it is clear that the birth and much of that period occurs on the land (Lot 12). The cattle return from the Bolong property at around 18 months and remain on the property until they are ready to be slaughtered, at around 24 months. Given the location of the intensive feeding areas and the paddocks on Lot 12, it is evident that much of this time the cattle would be on the land (Lot 12). During those periods, the cattle are being reared on the land, as they are being cared for and fed during the period from birth to maturity.
The periods that the cattle might spend grazing on Lot 201, and the period that the cattle are on the Bolong property (11 months), do not mean that the cattle no longer meet the requirement for them to be "reared on the land". They are reared on the land because they are birthed on the land, are cared for and fed on the land (and maybe occasionally other land) until they are weaned, and return to the land where they are cared for and fed on that land (and occasionally other land) until they are ready for slaughter.
For those reasons, I accept the applicants' submission that the proposed development meets the definitional requirement of being only for the processing of "beef cattle that are reared on the land", and the fact that they spend time also being reared on other land is of no consequence.
The proposed development therefore falls within the confined definition of "livestock processing industry" that is found in Sch 1 cl 7(3) and is permissible on the land on which it is proposed to be located.

[14]

Adequacy of the EIS (Contentions 1, 8, 9, 10 and 11)

The Sandys contend that the EIS is inadequate for the assessment required by s 4.15 of the EPA Act, and submit that it does not achieve substantial compliance with the requirements of Sch 2 cl 7 of the EPA Regulation 2000.
Section 4.12(8) of the EPA Act requires that a development application for designated development be accompanied by an environmental impact statement "in the form prescribed by the regulations".
Sch 2 cl 3 of the EPA Regulation 2000 requires there to be a written application for the Planning Secretary to obtain the "environmental assessment requirements" with respect to the proposed environmental impact statement. Clause 3(5) requires the Planning Secretary to notify the responsible authority of the environmental assessment requirements, and cl 3(8) requires that the environmental impact assessment comply with the environmental assessment requirements.
In addition, Sch 2 cl 7(1) of the EPA Regulation 2000 requires the following of an environmental impact statement: (1) An environmental impact statement must also include each of the following - (a) a summary of the environmental impact statement, (b) a statement of the objectives of the development, activity or infrastructure, (c) an analysis of any feasible alternatives to the carrying out of the development, activity or infrastructure, having regard to its objectives, including the consequences of not carrying out the development, activity or infrastructure, (d) an analysis of the development, activity or infrastructure, including - (i) a full description of the development, activity or infrastructure, and (ii) a general description of the environment likely to be affected by the development, activity or infrastructure, together with a detailed description of those aspects of the environment that are likely to be significantly affected, and (iii) the likely impact on the environment of the development, activity or infrastructure, and (iv) a full description of the measures proposed to mitigate any adverse effects of the development, activity or infrastructure on the environment, and (v) a list of any approvals that must be obtained under any other Act or law before the development, activity or infrastructure may lawfully be carried out, (e) a compilation (in a single section of the environmental impact statement) of the measures referred to in item (d)(iv), (f) the reasons justifying the carrying out of the development, activity or infrastructure in the manner proposed, having regard to biophysical, economic and social considerations, including the principles of ecologically sustainable development set out in subclause (4).
The Planning Secretary's Environmental Assessment Requirements (SEARs) concerning the proposed development were issued on 20 August 2019.
The Sandys contend that the EIS does not achieve substantial compliance with the following requirements of the SEARs and cl 7(1):

An assessment of cumulative impacts;
Strategic context;
Site suitability;
An assessment of surface and groundwater impacts;
Waste management and disposal;
Animal welfare, biosecurity and disease management;
Traffic and transport; and
Feasible alternatives.

Contrary to the position advanced on behalf of the Sandys, the EIS adequately deals with each of these requirements. Having regard to the content of the EIS, there is no substance to the Sandys' contentions of inadequacy. The EIS itself, in Section 1.7, outlines the sections that deal with each requirement under SEARs. In relation to the specific issues raised by the Sandys, I reach the conclusion that they are addressed by the EIS, for the following reasons.

[15]

An assessment of cumulative impacts

The requirement to contain an assessment of cumulative impacts arises from the SEARs. However, the requirement is not for an assessment of cumulative impacts simpliciter. The requirement is: "The EIS must include an assessment of all potential impacts of the proposed development on the existing environment (including cumulative impacts if necessary) and develop appropriate measures to avoid, minimise, mitigate and/or manage these potential impacts."
The Sandys' position is that the EIS does not assess the cumulative impacts of the proposed development, which would require it to assess the incremental impact of the activity when added to past, present and reasonably foreseeable future activities.
Contrary to the Sandys' position, the EIS does exactly that. In Chapter 5 of the EIS, it deals with a range of impacts. In relation to each, it considers the existing environment to appreciate the impact of the proposed development when added to the existing environment. Beyond that, it is required by the SEARs only to consider cumulative impacts "if necessary". The EIS does so in relation to acoustic impacts, air quality (odour) impacts and impacts on flood behaviour.
Further, the interrelationship between the existing farm operations and the proposed abattoir use is clearly outlined in the EIS. The Sandys expressed concern about the cumulative impact of the abattoir use with the area that they describe as a 'feedlot'. However, it is clear from the EIS that this was considered in the air quality impact assessment, and that otherwise the abattoir use makes no change to the existing operation of those areas and contains its own waste disposal system, including wastewater management. Any impact of the area described as a 'feedlot' is therefore not an impact of the proposed development, and given that the waste disposal system for the proposed abattoir is a closed system, there are no impacts with which the feedlot impact could cumulate with respect to wastewater management and run off.
Accordingly, there are no other cumulative impacts that are necessary to be assessed by the EIS. Whilst Ms Price and Mr Ireland disagree with the assessment in the EIS, I accept the submission made by the applicants that disagreement with the content of the EIS does not mean that there is not substantial compliance with the requirement for the assessment.
It is clear, therefore, that the EIS adequately addresses the potential impacts of the proposed development on the existing environment, including addressing cumulative impacts where necessary.

[22]

Feasible alternatives

Schedule 2 cl 7(1)(c) of the EPA Regulation 2000 requires that the EIS include "an analysis of any feasible alternatives to the carrying out of the development, activity or infrastructure, having regard to its objectives, including the consequences of not carrying out the development, activity or infrastructure".
The analysis of feasible alternatives is contained in Section 1.5 in Table 1.1 of the EIS. It considers the "do nothing" alternative, as well as the construction of a purpose built, standalone abattoir elsewhere on the property, with either wastewater treated and collected for off-site disposal, or treated and used for irrigation. It outlines the advantages and disadvantages of these alternatives. In particular, the disadvantages of locating the abattoir in a purpose built structure elsewhere on the property include requiring the construction of a new building, new access roads and utility connections. The objectives of the development are outlined in Section 1.3, and include avoiding the need to transport cattle by vehicles to an abattoir and the preference for walking cattle from the existing paddock to a holding pen adjacent to the on-site abattoir.
The Sandys contend that the EIS has not adequately conducted an analysis of feasible alternatives. Largely this argument is advanced on the basis that the analysis of feasible alternatives does not include an analysis of the location for the abattoir identified in the planning proposal. They say that this would have had the advantages of using the same internal access roads and existing services and utilities, and would also have advantages by avoiding flood prone land.
Having regard to the EIS as a whole, one of the objectives of the proposed development is to have synergy with the existing farm operation, so that cattle can be walked from their paddock to a holding pen adjacent to the abattoir, and using an existing building to minimise impacts. The analysis of the feasible alternatives required by Sch 2 cl 7(1)(c) must have regard to the project objectives, and there is no obligation to consider every permutation of alternatives.
Contrary to the Sandys' position, the EIS does include an analysis of the feasible alternatives to the carrying out of the development, including the consequences of not carrying out the development. The fact that the Sandys do not agree with the analysis, and have identified their own preferred location for a proposed abattoir, does not make the analysis inadequate (see Nessdee Pty Ltd v Orange City Council [2017] NSWLEC 158, at [119]). As made clear in Prineas v Forestry Commission of NSW (1984) 53 LGRA 160, an EIS "does not fail to comply under this head if particular alternatives conjured up by the opponents of the project have been ignored". Whilst the Sandys' alternative reflects that contained in the planning proposal, rather than being "conjured up", the same principles apply. The EIS is not deficient simply because it does not pursue every hypothetical alternative in analysing the feasible alternatives. Instead, it is sufficient as it identifies feasible alternatives, considers their advantages and disadvantages, analysing them against the objectives for the proposed development.

[24]

Traffic impacts (Contention 2)

The Sandys contend that the proposed development will have an unacceptable impact on traffic on Rose Valley Road. The Sandys point out that the agreed evidence of Mr Fonken and Mr Sannikov is that Rose Valley Road does not comply with the minimum road carriageway width required for a public road in Ch 3 of the KDCP, which is 7.5m. Mr Fonken and Mr Sannikov agree that the width of Rose Valley Road between the edges of bitumen varies from 3.4 m to 4.7 m, and that vehicles have to pull over the verge to allow oncoming vehicles to pass.
The Sandys rely on the evidence of Mr Sannikov that, in accordance with the Austroads Guide to Road Design, Part 3 Geometric Design, a rural road with a traffic lane of 3.7m has a maximum design AADT of 150 vehicles/day. The daily traffic volume at the eastern end of Rose Valley Road is expected to be 275 vehicles/day, whereas it is about 150 vehicles/day immediately to the west of the site driveway. Rose Valley Road is also subject to flooding, and Mr Sannikov says that even minor flooding can obscure roadside hazards or cover the road carriageway completely, making it unsafe.
Mr Sannikov opines, therefore, that Rose Valley Road is not suitable for the current traffic flows and needs to be upgraded to two traffic lanes or at least provided with hardstand passing bays at suitable intervals. His evidence is that any further, even minor increase in traffic, including additional heavy vehicles would further compromise the safety of the existing users.
The projected increase in traffic resulting from the proposed development is set out in Figure 3, which is Table 1 of the supplementary joint report.
This means that the worst-case scenario is that there will be an increase of 4 traffic movements a week, but that all of these movements are by light vehicles. The evidence of Mr Fonken is that this is only a worst-case scenario, whereas if the slaughter contractor and certified meat inspector are the same person, there is no change in vehicle trips on the day that the abattoir operates, as there will be 4 trips in the existing scenario and 4 trips post-development. Two heavy vehicle trips each week that service the current farm operation will be removed post-development. Mr Fonken opines that the range of increase between 0-4 peak day vehicle trips is well within daily fluctuations as demonstrated in the traffic counts on Rose Valley Road, noting that the four-trip day is a single day of the week.
I consider that the current condition of Rose Valley Road, and the traffic generation of the proposed development, does not warrant refusal of the development. Put simply, the proposed development does not have an unacceptable impact on the traffic on Rose Valley Road, for three reasons.
Firstly, the increase in traffic is negligible. I accept the evidence of Mr Fonken that an increase of 4 vehicles per day, only once a week, is within the daily fluctuations of traffic on Rose Valley Road. This was conceded by Mr Sannikov in cross examination. The increase is so negligible that it is absorbed within those fluctuations.
Secondly, the proposed development reduces heavy vehicle trips on Rose Valley Road by two trips per day, once a week. The evidence of Mr Sannikov with respect to the width of the carriageway includes that "a heavy vehicle would occupy most of the road width, pushing other vehicles completely or mostly off the carriageway" (Ex 2R6, p.4). Given that the proposal removes two heavy vehicle movements per week, as cattle are no longer being transported to an off-site abattoir, it reduces the potential for traffic conflicts on Rose Valley Road.
Thirdly, the issues with Rose Valley Road identified by Mr Sannikov relate to the current width of the roadway and its current condition. Those issues do not relate to, or arise from, the proposed development. Mr Sannikov's evidence that no single additional trip should be added to Rose Valley Road demonstrates that the safety issues with that road are existing. In my view, issues with the safety of the existing road operation are matters of operational management, and do not arise from the proposed development. In circumstances where the increased traffic movements caused by the proposed development are negligible, and in fact reduce heavy vehicle movements, the existing issues with the road do not warrant refusal of the proposed development.
Therefore, I find that the traffic impacts of the proposed development, and the existing condition of Rose Valley Road, do not warrant refusal of the development.

[25]

Impacts from flooding and stormwater (Contention 2)

The Sandys raise three flooding and stormwater issues concerning the proposed development. They are summarised as:

The impact on the watercourses and riparian land,
Stormwater management, and
Flooding impacts and risks associated with flooding.

The Sandys rely on cl 6.5 of the KLEP, which provides: 6.5 Riparian land and watercourses (1) The objective of this clause is to protect and maintain the following - (a) water quality within watercourses, (b) the stability of the bed and banks of watercourses, (c) aquatic riparian habitats, (d) ecological processes within watercourses and riparian areas. (2) This clause applies to - (a) land identified as "Category 1 watercourse", "Category 2 watercourse" or "Category 3 watercourse" on the Riparian Land and Watercourses Map, or (b) land that is within - (i) 40 metres from the top of the bank of a Category 1 watercourse, or (ii) 20 metres from the top of the bank of a Category 2 watercourse, or (iii) 10 metres from the top of the bank of a Category 3 watercourse. (3) Before determining a development application to carry out development on land to which this clause applies, the consent authority must consider whether or not the development - (a) is likely to have any adverse impact on the following - (i) the water quality and flows within the watercourse, (ii) aquatic and riparian species, habitats and ecosystems of the watercourse, (iii) the stability of the bed and banks of the watercourse, (iv) the free passage of fish and other aquatic organisms within or along the watercourse, (v) any future rehabilitation of the watercourse and its riparian areas, and (b) is likely to increase water extraction from the watercourse. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that - (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
They also rely on clauses 2.2.1 and 2.2.2 of the KDCP, which relate to development on or near land identified as being riparian land. They provide: 2.2.1 Development on or near to land identified as being riparian and in the Kiama LEP 2011 must ensure that it does not have significant adverse environmental impact, including, but not limited to, impacts on:· water quality, bank and bed stability, ecological processes and any habitats. 2.2.2 Riparian land affected by proposed development must be protected and improved through any development.
The Sandys also rely on the Department of Planning and Environment Fact sheet concerning Controlled activities - Guidelines for riparian corridors on waterfront land (NSW Government, 2022), which set out the objectives for riparian corridor management, including maintaining and rehabilitating riparian corridors with structured native vegetation.
The Sandys rely on the evidence of Dr Martens that the development is not sited appropriately to avoid adverse impacts on riparian land. His evidence is that the proposed development undertakes activities with the potential to generate pollution, and does not provide an adequate buffer to the watercourse. As such, contaminated stormwater, wastewater overflows or leaks, and flood water entering the facility, could all convey waste or contaminated water to the watercourse and riparian corridor. As such, the Sandys submit that the proposed development is not acceptable as it does not ensure that the adjoining watercourse and riparian corridor will be protected and improved, and instead introduces further risks.
The Sandys also point out that the stormwater management system is confined to the roof of the proposed abattoir, and there is no assessment of the stormwater run-off from the movement of trucks utilising the abattoir, from the cattle holding areas and from the wash down of holding areas or hardstand areas. Dr Martens opines that this means there is not a suitable stormwater management system for the proposed development, and also criticises the water quality assessment that has been carried out, as it does not include a full range of potential pollutants, does not include a water monitoring program, and does not include an analysis of the site's proximity to the Werri Lagoon floodplain.
The Sandys also submit that there remains a risk of the abattoir being inundated in a flood event, which will cause floodwater to enter the wastewater system and discharge contaminated water to the watercourse, which could also occur from water flowing underneath the suspended slab. If the abattoir is inundated, it will not be safe to shelter in place, and those in the abattoir will not be able to evacuate due to the flooding over the bridge and access road. Dr Martens and Mr Bond agree that access to the abattoir will be cut off in most flood events. The Sandys submit that, although the risk of inundation could be dealt with by way of a condition requiring the raising for the finished floor level of the abattoir to RL 16.5, above the flood planning level, there is insufficient information as to what other changes to floor levels and drainage infrastructure is required. The Sandys say that, regardless of what occurs with the building, there is non-compliance with controls 2.5.8 and 2.5.9 of the KDCP, which require: "2.5.8 Where a development proposal requires access over a waterway, consideration must be given in the statement of environmental effects to: - any alternative development sites investigated that would avoid creek crossings. - explain why any such alternative options investigated were not considered preferable to the proposed site design requiring access across a waterway. 2.5.9 Where a waterway crossing is unavoidable, the level of any waterway crossing must provide a safe carriageway in low flood conditions (i.e. a 1 in 20 year recurrent flood level) and the engineering design of waterway crossings must accompany the development application."
The applicants' position is instead that the development is designed, sited and will be managed to avoid any significant adverse environmental impact on the watercourse, that there is no impact to or requirement to revegetate the riparian corridor, that flood waters will not inundate the building, and that the Flood Emergency Response Plan (FERP) will prevent anyone from being isolated in the building in the event of a flood. They also say that cl 6.5 of the KLEP does not apply, as the proposed development is not within the requisite distance of the watercourse. Their position is also that the proposed development does not include the water crossing or any of the areas from which Dr Martens is concerned with run-off.

[26]

There are no unacceptable impacts on the watercourse, riparian land, or flood behaviour

Clause 6.5 of the KLEP does not apply to the proposed development, for the reasons advanced by the applicants. For cl 6.5 to apply, the development application must be "to carry out development on land to which this clause applies". The "land to which this clause applies" is land that meets the description in cl 6.5(2). However, as set out above at [37], the "land" on which the development is to be carried out, is the location proposed for the abattoir. The watercourse is a Category 3 watercourse, and the land is not within 10m from the top of bank of that watercourse, but is instead 21.83m from the top of the bank of the watercourse. Therefore, the development application is not for the carrying out of development on land that meets the description in cl 6.5(2), and the clause does not apply.
I am nonetheless required to consider the impact of the proposed development on the watercourse and the riparian land. Having regard to the evidence, I accept the applicants' position that the proposed development does not have any adverse environmental impact on the watercourse or riparian corridor, that there will not be any inundation of the building during a flood, and that the FERP will ensure that no-one is isolated in the building in the event of a flood. I reach this conclusion for the following reasons.
Firstly, there is no impact on the watercourse. Mr Bond and Dr Martens agree that the stability of the bed or banks of the watercourse "is not likely to be impacted" (Ex 2R3, par 22). As set out in the EIS, there is no disturbance to the watercourse or its banks, and the free passage of fish and other organisms are not affected by the proposed development. The servicing of the abattoir is proposed to be done by town water, such that no water will be removed from the watercourse.
Secondly, there will be an improvement to the water quality of stormwater run-off currently received by the watercourse. The proposed development, which is constrained to that which is described at [29]-[33], includes a stormwater management system for roof run-off, that being the only stormwater captured on the land the subject of the development application. The water quality modelling undertaken and reported in Appendix D to the EIA demonstrates that there is predicted to be an improvement in water quality as a result of the proposed development, which can be attributed to the conversion of some ground level hardstand areas to roof areas, which decreases the amount of run off from untreated hardstand areas and increases the volume of water treated (through the settling of sediment) and reused in rainwater tanks.
Thirdly, any impact from the stormwater runoff from the remaining hardstand area external to the proposed building, and from the holding yards and feeding pens, is an impact of the existing farm operations on the property and is not an impact of the proposed development. For the impact to be one that falls within "the likely impacts of that development" within the meaning of s 4.15(1)(b) of the EPA Act, it must have "a real and sufficient link" with the proposed development, or be as a result of "some further undertaking that is "inextricably involved" with that proposal (Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 at 101). As described in Palm Lake Works, "The critical factor is that there is a connection between the likely impact and the proposed development" (at [7]). In Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349, Basten JA held that "the impact must be one flowing from the development the subject of the development application" (at [44]).
Whilst it is true that cattle to be processed by the abattoir will use the holding yards and feeding pens, and that the hardstand area will be used for vehicles accessing the abattoir, there is no physical change to those areas brought about by the proposed development. The hardstand area is smaller than the total hardstand which exists currently, due to the construction of the proposed development, but the hardstand area that will remain external to the building will not be changed in any way from what is there currently. Nor is there any change to the use of those areas. Vehicles will be using the hardstand area in the same way that vehicles currently use the hardstand area (see Ex B, Appendix M), and cattle will be in the holding yards in the same way the yards are currently used (see Ex B, pp.1-2). In circumstances where there is no physical change to the use of those areas brought about by the proposed development, any impact of the use of those areas could not be said to be one that is "flowing from the development the subject of the development application." Similarly, as there is no alteration to the built form or landform of those areas, any impact arising from the stormwater runoff from those areas is not an impact that is connected to the proposed development.
Fourthly, there will be no inundation of the proposed building during the event of a flood. This is because the proposed finished floor level of 16.27 AHD is above the level of the probable maximum flood (PMF), which is 15.82 AHD on the evidence of Mr Bond, and 16.10 AHD on the evidence of Dr Martens. In addition, to the extent that there remains a risk of inundation as a result of Dr Martens' calculation of the applicable flood planning level (FPL), any such risk is resolved by the proposed condition of development consent requiring the finished floor level to be raised to 16.5 AHD. In doing so, the proposed building will comply with the requirement of the KDCP, at control 2.5.2, for new buildings to be built to the FPL of 1% AEP plus a freeboard of 0.5m. In addition, there is no risk of floodwaters entering the sub-floor area, as the applicants have agreed to a proposed condition of consent requiring that area to be sealed and waterproofed.
Contrary to the submissions made by the Sandys, there is no uncertainty concerning the raising of the proposed finished floor level from 16.27 to 16.5 AHD, given the small extent of the change. Further, there is no evidence to support the Sandys' assertion that waterproofing of the area below the concrete slab may not be possible. Instead, the evidence of Mr Smith is that the drawings show sheeting to the floor of the underfloor area, which would normally be sealed to an I-beam, sealing the subfloor area.
Further, given that the proposed abattoir building will not be inundated in a flood, and that flood waters will not be able to inundate the sub-floor area, the flooding of areas used for farm operations, such as what is described as feedlots, will not have any impact on the proposed abattoir.
Fifthly, there is no risk of wastewater entering the watercourse during a flood. This is because the design of the waste management system prevents floodwaters from entering that system. The design includes bunding around the system, at 16.70 AHD, which is above both the FPL and the PMF. It also includes sealed pipes where wastewater can only enter the system through the drains, and a flood valve as an additional safeguard to prevent floodwater from entering the system. On the evidence, the flood valve is closed at the end of each production day, and there would be no operation of the abattoir during a flood, during which time the flood valve would stay closed.
Sixthly, the continued effective operation of the waste management system and the stormwater system is maintained through the management and monitoring regime set out in the DOEMP. In particular, the DOEMP requires:

The effluent treatment system to be managed to achieve target levels of specified pollutants (Ex C, p 32).
The carrying out of specified wastewater management measures, including regular inspections, servicing, pumping out and testing of samples (Ex C, pp 32-33).
The carrying out specified surface water and ground water management measures, including measures to prevent wastewater and spills from entering the stormwater management system or the ground (Ex C, pp 34-35).
The carrying out of management measures concerning hazardous substances (Ex C, p 35).
Compliance with a monitoring schedule, including daily and quarterly checks of the wastewater treatment system (Ex C, pp 46-50).

Seventhly, the FERP, which forms part of the DOEMP, is adequate to ensure no-one will become isolated in the abattoir in the event of a flood. Given that the applicants control what day of the week the processing takes place, and the FERP requires this to be delayed when certain weather forecast thresholds are met, it is unlikely that the abattoir will be in use in a storm event that will cause flooding. Even if a person was isolated at the abattoir location in the event of a flood, Dr Martens and Mr Bond agree that it is possible for workers to safely shelter in place during an extreme flood event. This is for the period of 69 minutes in a 1% AEP event. Given the small operation of the proposed development, I accept the submission of the applicants that Dr Martens' concern about the risk of people attempting to drive through floodwaters is overstated. Any persons who work within the abattoir are employees or contractors, and will be the subject to the direction and control of the second applicant, who is required to ensure the health and safety of its workers.
Although the proposed development does not comply with the KDCP controls concerning access using a waterway crossing, the operation of the FERP minimises the risk to people, and the finished floor level will ensure that the building can be used as a refuge during a flood, if required. This means that the objectives of the controls, found at O2.5.4 and O2.5.5, are achieved through these alternate measures, consistent with what I am required to consider pursuant to s 4.15(3A)(b) of the EPA Act.
Finally, the proposed building will be able to withstand flood waters around the abattoir. Mr Bond calculated that the flood levels in the area of the abattoir have a hazard classification of H1, which is "generally safe for people, vehicles and buildings". Dr Martens' evidence to the contrary was speculative, as he had not considered the velocity of the water and indicated that he "can't be certain".
For those reasons, I consider that the proposed development does not have any adverse impact on the watercourse or riparian corridor. This includes in the event of a flood, as there is no risk of wastewater entering the watercourse in such an event. The proposed development is therefore consistent with the objectives for riparian corridor management to minimise disturbance and harm, and to treat stormwater run-off before discharging to the riparian corridor. Whilst it is unfortunate that the riparian land and watercourse has been degraded over time, neither form part of the land to which the development application relates, and the evidence is that the proposed development will not have an adverse impact on those areas.

[27]

Biosecurity (Contention 2)

The Sandys contend that the biosecurity arrangements have not been properly assessed, and that the Court could not be satisfied that the proposed development can be effectively managed to avoid biosecurity risks. This argument is advanced largely on three grounds - first, that there are no truck wash facilities for the waste collection vehicle, second, that there are biosecurity risks associated with the feedlot areas, and third, that there are no quarantine arrangements for cattle once they return from the Bolong property.
Contrary to their position, I do not accept that any of those grounds establish that there is an unacceptable biosecurity risk. Instead, all biosecurity risks will be effectively managed, for the following reasons.
Firstly, the absence of truck wash facilities does not cause a biosecurity risk. The evidence is that the waste contractor, South Coast Liquid Treatment Pty Ltd, transports their tankers direct from their depot to the property. Dr House and Mr Schuster agreed, in oral evidence, that if the waste contractor is not visiting multiple sites, this would essentially eliminate the risk.
Secondly, I do not accept the evidence of Ms Price concerning the potential for a biosecurity risk from the adjacent areas that she describes as feedlots. The evidence is that the carcasses are washed within the abattoir. Further, I accept the evidence of Dr House that, as the cattle originate on the property, the construction and use of an abattoir for those cattle will not create or increase biosecurity risks. Dr House also points out that the property has a biosecurity plan, and is the subject of yearly biosecurity audits, so that biodiversity risks are managed across the property.
Thirdly, I accept the evidence of Dr House that there are no biodiversity risks associated with the transport of cattle to and from the Bolong property. I accept his evidence that the herd is a "closed herd" as they are not mixed with livestock belonging to other producers, which is common practice and does not create a biodiversity risk. His evidence is that the biosecurity plan would extend to the operation of the Bolong property, given that they are part of a single farm operation, and the requirement in the biosecurity plan for the quarantine of cattle relates only to where the cattle have left the property and mixed with livestock from other producers. I prefer his evidence to that of Ms Price, who is not a veterinarian and was unable to particularise how such a biodiversity risk arises but instead relied on generic information that is not specific to the farm operations carried out by the second applicant.
For all of those reasons, I consider that the proposed development can be effectively managed to avoid biosecurity risks. In circumstances where the proposed development is limited to the slaughter and processing of Schottlander Wagyu cattle, the biosecurity status of the property does not change, the proposed development does not affect biosecurity risk on the property, and the existing biosecurity risks are managed such that they won't impact the proposed abattoir.

[28]

Wastewater management (Contention 2)

The Sandys contend that there are uncertainties with the operation of the wastewater treatment system. In particular, they say that the wastewater system is not designed to deal with various sources of wastewater or effluent, including wastewater from a truck wash, wastewater from cleaning the holding yards, wastewater from washing the cattle prior to entry into the abattoir, and the potential ingress of flood waters into the wastewater treatment system. They also say that the DOEMP does not adequately address how wastewater will be minimised, that there is an insufficient buffer built in, and that there is a potential for conflict between the waste drainage system and the stormwater system.
I find that the Sandys' contention concerning uncertainty is not supported by the details in the development application and the evidence before the Court.
Firstly, the development application does not include any truck wash, or use of the holding yards or areas external to the abattoir for the washing down of cattle. As set out above at [35] to [40], it is only the development that is the subject of the development application that the Court can assess.
Secondly, there is no evidence in the DOEMP that cattle are washed outside of the abattoir. The evidence is instead that the carcasses are washed inside the abattoir, and that the holding yards and adjoining pastures are operated as rural activities with cattle urine and faeces held by surface soils and grasses. The assertion by the Sandys that there is any washing down of cattle prior to entry to the abattoir is speculation.
Thirdly, the Wastewater and Sewage Treatment Report is Appendix C to the EIS (Ex B), and provides sufficient detail on the operation of the wastewater system, its holding capacity (which includes a buffer) and the estimated wastewater generated. It also sets out a contingencies plan. In particular, the report makes it clear that the system has a holding capacity of 5.7 weeks or 40 days water flow, in a four week period of processing 11 carcasses or 2.75 per week. The report states that the wastewater flow is based on a single clean/wash after fog cleaning per day, and an individual carcass rinse, and not continuously as what occurs in larger abattoirs. The report also sets out how the wastewater holding tank for the latrine/shower system will be separated from the abattoir treatment system.
Fourthly, for the reasons set out above at [117] and [120], there is no real likelihood of floodwaters entering the wastewater system.
Fifthly, the potential for conflict between the waste drainage system and the stormwater system is not supported by any evidence. Mr Smith confirmed that the existing stormwater pipes shown on the plan (Sheet 7 of 11) are not part of the wastewater or waste drainage system, and there is no evidence of the two systems having a potential conflict. The assertions by Mr Lazarus that the system "cannot work" based on his own reading of a 2D representation on the plans, is not supported by evidence.
For those reasons, there is no substance to the Sandys' contention that there are uncertainties with the operation of the wastewater system.

[29]

Cumulative impacts

The Sandys contend that the cumulative impacts of the proposed development cannot be accurately assessed based on the information provided. They assert that there are unapproved and unassessed activities occurring on the property, including the operation of a feedlot, and that the relationship between what is occurring on the property presently has not been adequately documented and the cumulative impacts of that activity with the proposed development have not been considered. In support of this contention, they rely on the evidence of Ms Price concerning what she observed on the property and her opinion on compliance with particular codes.
However, as set out above at [35] to [40], it is only the development that is the subject of the development application that the Court can assess. The impacts of the current activity occurring on the property is not an impact of the development the subject of the development application. The evidence of Ms Price, concerning the impacts of the current activity and compliance with particular codes, is irrelevant. In addition, to the extent that there are allegations of unlawful use within Ms Price's evidence, it is well established that past unlawful use "is not a relevant issue in determining whether prospective consent should be granted" (ACM Landmark Pty Ltd v Cessnock City Council [2006] NSWLEC 256, at [35]).
The impacts of the proposed development which may cumulate with the impacts of what currently occurs on site are acoustic impacts, air quality (odour) impacts and impacts on flood behaviour, each of which are outlined in the EIS, and considered as having acceptable outcomes. There are no other impacts of the proposed development that could cumulate with impacts of the present activities on the property. As set out above, the waste system for the proposed abattoir is a closed system, the stormwater for the proposed development will be managed, the proposed development does not affect biosecurity risk, and the proposed development does not have any adverse impact on the watercourse or riparian corridor.
For those reasons, the Sandys have failed to establish that there is an impact of the proposed development that could lead to an unacceptable cumulative impact when taken together with the current activity on the property. Instead, the evidence demonstrates that the impacts of the proposed development are acceptable.

[30]

The controlled activity approval issue (Contention 7)

The Sandys raise a contention that approval for the carrying out of the development has not been obtained pursuant to s 91 of the Water Management Act 2000 (WM Act).
The development application was lodged as integrated development, as a controlled activity approval under the WM Act was sought as part of the application. The applicants no longer seek the grant of development consent for integrated development. The Sandys agree that, pursuant to s 4.47(5) of the EPA Act and s 39(6) of the LEC Act, the Court can grant development consent regardless of whether or not the approval body has provided general terms of approval. Notwithstanding this, they maintain this contention.
As a matter of fact, no controlled activity approval has been obtained pursuant to Ch 3, Pt 3 of the WM Act. This is because the Natural Resources Access Regulator (NRAR) reached the position that a controlled activity approval is not required and "no further assessment by this agency is necessary" (Ex 2, p.889). NRAR considers that the proposed activity is exempt from s 91E(1) of the WM Act as it is a controlled activity specified in cl 42 and Part 2 of Sch 4 of the Water Management (General) Regulation 2018. The exemption in Part 2 of Sch 4 is as follows: 31 Controlled activities on certain waterfront land Any controlled activity that is carried out on waterfront land in relation to a minor stream or third order stream, where the activity is separated from the bed of the minor stream or third order stream by one or more of the following that has been lawfully constructed - (a) a public road, (b) a hard stand space (such as a car park or building), (c) a levee bank, but only if the levee bank is in an urban area, was the subject of a development consent under the Environmental Planning and Assessment Act 1979 and is located within a designated high risk flood area (within the meaning of clause 45 of this regulation).
However, the Sandys assert that the hard stand space was constructed without development consent, and is therefore not "lawfully constructed" within the description of cl 31 of Sch 4, such that the exemption does not apply and an approval is nonetheless required.
The first problem with the Sandys' position is that they have not actually established that the hardstand area was not "lawfully constructed". Having so contended, they bear the persuasive burden of establishing that it is constructed without development consent, at a time when development consent was required for such a structure. They have not done so. Whilst an applicant for development consent bears a persuasive burden to establish that consent ought to be granted (see Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2]), this does not absolve a respondent from establishing unlawfulness that it alleges.
The second problem with the Sandys' position is that, even if the exemption does not apply and an approval is required under the WM Act, the approval is required to be obtained by the applicants before the carrying out of the activity, even if development consent is granted: see Maule v Liporoni & Anor (2002) 122 LGERA 140; [2002] NSWLEC 25 at [85].
For those reasons, the absence of a controlled activity approval under the WM Act has no bearing on the assessment of the development application.

[31]

Remaining contentions

The remaining matters raised in the Amended Statement of Facts and Contentions filed by the Sandys (Ex 2R1), which I have not dealt with above, variously allege insufficient evidence, inadequate assessment, or failures in the documentation. These matters are either not made out by the evidence (and indeed some are contrary to the evidence), or the failures do not actually warrant refusal of the development application.
A number of the assertions are based on the assumption that the whole of the property is the subject of the development application. However, as set out above at [39], the development the subject of the development application is what is described above at [30]-[33], and the land to which the application relates is the location proposed for the abattoir. There is no requirement to assess the current farm operations on the property, as that is not the development the subject of the development application.
Contrary to the Sandys' position, the EIS meets the requirements of the EPA Regulation 2000, and the remaining documents are adequate to assess the impacts of the development the subject of the development application and the other matters required to be considered pursuant to s 4.15(1) of the EPA Act. In addition, contrary to what is relied upon in their contentions:

Chapter 3 of the of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) does not apply to the proposed development, as agreed by the town planning experts, as the proposed development does not fall within the definition of industry.
Neither cl 5.21 of the KLEP, nor the repealed cl 6.3 of the KLEP, apply to the proposed development. As agreed by the parties, cl 5.21 commenced on 14 July 2021, and does not apply to development applications lodged prior to its commencement, as a result of the savings provision in cl 8(1) of the Standard Instrument (Local Environmental Plans) Order 2006. Clause 6.3 of the KLEP was repealed on the same date, by another instrument, which did not contain a savings provision.
Clause 6.2 of the KLEP does not apply to the proposed development. Clause 6.2 concerns earthworks, and no earthworks are proposed in the development application.
There is no requirement for the EIS to document all the existing approvals that apply to the property.
There is no requirement for the Court to be satisfied that the proposed development is justified on animal welfare or sustainability grounds (contention 8).

The Sandys have not established any breaches of the KLEP or any other environmental planning instrument, and the assertions in contentions 4 and 6 are therefore not established.
In relation to contention 5 concerning the KDCP, I have found that the proposed development does not adversely affect the riparian land and improves the quality of stormwater runoff into the watercourse, such that the objectives of Topic 2.2 of the KDCP are met, and the controls at 2.2.1 and 2.2.2 are complied with. Similarly, I have considered the relevant matters raised by Topic 2.5 (concerning flood prone land) in the above reasons, and the Sandys have not established that any other controls in Topic 2.5 are contravened by the proposed development. In relation to Topic 3.6, I have considered the traffic impacts above at [93] to [102], and nothing in Topic 3.6 of the KDCP alters my findings in that regard. Therefore, contention 5 similarly does not warrant refusal of the development application.
Further, in relation to compliance with the Australian Standard AS 4696:2007 Hygienic Production and Transportation of Meat and Meat Products for Human Consumption, I need not be satisfied of compliance prior to the grant of development consent. Instead, I consider that it is adequate for compliance to be demonstrated prior to the issue of an occupation certificate for the abattoir. This has been incorporated in the proposed conditions of consent.

[33]

The conditions of consent

There is a dispute between the parties as to the appropriate conditions of consent.
This includes a number of conditions that the Sandys say ought to be imposed on the grant of development consent, which are opposed by both the Council and the applicants. This includes conditions requiring:

A register of slaughters (proposed condition 8);
An update to the flood study (proposed condition 11);
A stormwater management plan for the areas outside of the proposed abattoir (proposed condition 12 and consequential condition 78).
Upgrades to Rose Valley Road to include passing bays (proposed condition 13).
Plans showing areas outside of the proposed abattoir (proposed condition 14(f)).
An amendment to the Construction Environment Management Plan to include detailed soil, erosion and water management measures (proposed condition 18).
A site-specific biosecurity management plan and emergency animal disease response plan (proposed condition 69).

There is a dispute over the wording of proposed condition 68, which concerns the disposal of animal carcasses in the event of a disease outbreak.
There are also conditions that are agreed to by the Sandys and the applicants, but are opposed by the Council. They include:

A condition requiring certification of the wastewater treatment system (proposed condition 17).
The inclusion of the implementation of AUSVETPLAN in the condition concerning the response to a major disease outbreak (proposed condition 67).
A condition requiring compliance with the FERP (proposed condition 77).

The proposed wording of these conditions, and the parties' submissions on each of the conditions in dispute are contained within the consolidated document provided to the registry by email on 31 May 2024. The consolidated document reflects the Court's template for the grant of a development consent, with marked up conditions that clearly illustrate each party's position. I have marked it as Exhibit 8.
In relation to each of the above, I make the following findings.
Firstly, I do not consider it appropriate to impose a requirement for a slaughter register. A record of the stock that has been slaughtered is already required to be kept, pursuant to cl 45 of the Biosecurity (National Livestock Identification System) Regulation 2017. I accept the submission of the applicants that requiring records to be kept as a condition of consent is an unnecessary duplication of this regulatory requirement, and I accept the submission of the Council that this imposes an unnecessary administrative burden on the Council to monitor compliance with this condition.
The Sandys seek the imposition of this condition so that there is monitoring of compliance with the limit on the number of cattle that can be processed by the abattoir. However, the consent in its terms limits the number of cattle that can be processed, and it can be assumed that a person who "enjoys the benefit of the consent will observe conditions impose in (or attached to) a development consent": TL & TL Tradings Pty Ltd v City of Parramatta Council [2019] NSWLEC 160 at [13]. If there is an issue concerning non-compliance, I accept the applicants' position that the Council has the power available to it under s 9.22 of the EPA Act to require the applicants to produce the records kept under the Biosecurity (National Livestock Identification System) Regulation 2017.
Secondly, I accept the applicants' submission that an updated flood study would serve no purpose. Based on the evidence before the Court, I have found that the flood impacts are acceptable: the proposed development does not have an adverse impact on the watercourse, the floodwaters will not inundate the building (at [117]), and the floodwaters will not present a risk to the building itself (at [124]). Given that the impacts of flooding have already been assessed, I am not persuaded that there is any reason to require an updated flood study as a condition of consent.
Thirdly, I do not accept the Sandys' position that a stormwater management plan is required for the areas outside of the proposed abattoir, or that there needs to be the monitoring regime sought to be imposed by proposed condition 12. As set out above at [115], any impact from the stormwater runoff from those areas is an impact of the existing farm operations on the property and is not an impact of the proposed development. Further, it is acknowledged by the Sandys, in their written submissions contained within Exhibit 8, that if the Court finds that the holding yards, hardstand and related areas are not part of the development, then this condition ought not be imposed. As set out at [37] to [40], those areas are not part of the development the subject of the development application. For the same reasons, it is not necessary for the applicants to prepare plans showing areas outside of the proposed abattoir, as proposed in proposed condition 14(f). As a consequence of my decision in relation to proposed condition 12, condition 78, which requires compliance with the stormwater management plan in condition 12, is not necessary.
Fourthly, I find that it is not necessary to impose the proposed condition requiring the applicants to submit plans for passing bays on Rose Valley Road, and requiring their construction. As set out above, the issues arising from Rose Valley Road are from its existing condition, and are not an impact of the proposed development. The fact that the experts agree on recommendations for improvements to the road, does not mean they ought to be required as a condition of this development consent. The proposed development will reduce heavy vehicle movements on the road, and does not generate anything beyond a negligible increase in traffic. In those circumstances, I do not consider that the proposed development generates the need for the passing bays to be constructed.
Fifthly, it is not necessary for the applicants to prepare an amendment to the Construction Environment Management Plan to include detailed soil, erosion and water management measures (proposed condition 18). The proposed development involves work on an existing hardstand area, and does not propose any excavation that will mobilise the soil and sediment.
Sixthly, I accept both the Council's and the applicants' position that it is unnecessary for a condition to be imposed requiring a site-specific biosecurity management plan and emergency animal disease response plan (proposed condition 69). The property already has a Biosecurity Plan and an Emergency Animal Disease Response Plan, and the biosecurity status of the property does not change as a result of the proposed development, for the reasons set out above at [129] to [131].
Seventhly, in relation to the appropriate wording of condition 68, I accept the wording proposed by the Council and agreed to by the applicants. Condition 68 concerns the mass disposal of animal carcasses in the event of disease outbreak, and the wording proposed by the Council requires inclusion of transport off-site to a rendering facility for treatment and disposal, subject to any inconsistent direction from the Department of Primary Industries and Agriculture. However, the wording proposed by the Sandys requires mass disposal to be "as directed, and under the supervision of the Department…" without direction as to what occurs without that direction or supervision. They advance this wording on the basis that, they say, rendering plants are likely to be the "last option over landfill or composting". I do not have any evidence in support of this assertion. Further, I accept the applicants' position that the wording proposed by the Council reflects what is in the EIS, and allows the Department to take over once it is notified of a disease on the property.
Finally, I accept the Sandys' position, agreed to by the applicants, that it is appropriate to impose conditions:

Requiring certification of the wastewater treatment system to be submitted with the Activity Approval application and prior to the construction certificate (proposed condition 17);
Requiring the inclusion of the implementation of AUSVETPLAN in the condition concerning the response to a major disease outbreak (proposed condition 67) on the basis that this is agreed to represent industry standard; and
Requiring compliance with the FERP, which forms part of the DOEMP that is required to be updated by the conditions (proposed condition 77).

The conditions of consent provided by the parties have been altered to reflect these findings, and are contained in Annexure A to the orders below. Due to those changes, it should be noted that the numbering of the conditions in Annexure A does not match the references to the numbering of the proposed conditions referred to in these reasons. I have also removed a notation in the conditions concerning the lapsing of the consent, as it was incomplete, and a notation concerning appeal rights, which do not apply.

Vortex Developments Pty Ltd trading as Plannex Environmental Planning v The Council of the Municipality of Kiama

At a glance

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Judgment (35 paragraphs)

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Cases Cited (25)