Wilks & anor v Wagga Wagga City Council

The locality

1. Cartwrights Hill is approximately 4.5km to the north of Wagga Wagga CBD, and includes large lots, and smaller residential lots developed in the 1970s and 1980s in the south eastern part of the area fronting Cooramin Street and East Street.
2. To the north and west of the Land is the Bomen Industrial Area (BIA), of approximately 2,000ha. Industries in the BIA include Teys Australia Southern Pty Ltd (Teys) (formerly Cargills), Southern Oil, and the Wagga Wagga Livestock and Marketing Centre. A proposed Riverina Intermodal Freight and Logistics Hub (RIFL), with a rail terminal and 95ha precinct for bulk, intermodal, agricultural and industrial sites, is to be located at the northern part of the BIA. The Bomen Industrial Sewage Treatment Facility (BISTF) is located to the northeast of Cartwrights Hill, accessed on Bomen Road.
3. The Red Steer Hotel and Motel is on the corner of Old Bomen Road and Hampden Ave, adjacent to a closed service station and convenience store.
4. An aerial photograph shows the location of the Land and the neighbouring industrial area (ex C, p 9):
5. The following photograph shows the Land and existing residences (numbered 1-7) in relation to the BISTF (ex C, p 10):
6. In 2013 the Council granted development consent for three residential subdivisions of land in Cartwrights Hill to the south of the Land: DA13/0183 (5 residential,1 residue lot) at 42 Old Bomen Road at the south western corner of the junction between East Street and Old Bomen Road; DA13/0312 (2 lots) at 400 Hampden Avenue, on the western side of Hampden Avenue approximately 300m to the south of the junction with Horseshoe Road; and DA13/1092 (2 lots) at 371 Hampden Avenue on the eastern side of Hampden Avenue approximately 235m north of the junction with Cooramin Street. A challenge to the validity of two of those development consents was unsuccessful: Teys Australia Southern Pty Ltd v Burns [2015] NSWLEC 1.

Issues

1. The Council contends (ex 1) that the application should be refused for the following reasons: 1. BISTF noise and odour: the proposed residential development is not appropriate as future residents are likely to be impacted by noise and odour from the BISTF; 2. Other land use conflicts: the proposed residential development is not appropriate as future residents may, through the potential for land use conflict, seek to prevent expansion of the Bomen Industrial Estate with consequent economic impacts which are not in the public interest; 3. Adverse precedent: the approval of the subject development would set an adverse precedent for a future similar density of development on the residue parcel; 4. Inappropriate zoning and inconsistency with likely future zoning: the existing zoning of the Land is historical and there is no doubt that it is inappropriate and will be changed. The proposed residential development of the Land is inconsistent with the likely future zoning of the Land and the desired character of development on the adjoining land and is therefore not in the public interest; and 5. No necessity for the development: the proposed residential development of the Land is not necessary to meet housing demand in Wagga Wagga such as to warrant its approval notwithstanding the inappropriate impacts identified.
2. In their Amended Response to Statement of Facts and Contentions (ex A) the applicants disputed all the Council's contentions, and noted the following matters: 1. BISTF noise and odour: future residents of the proposed residential development for 26 lots are not likely to be impacted by noise and odour from the BISTF; 2. Other land use conflicts: the proposed subdivision does not create any land use conflict between future residents and the BIA; 3. Adverse precedent: there is no adverse precedent set by approval of the application; 4. Inappropriate zoning and inconsistency with likely future zoning: the proposed development is consistent with current and historical zoning; and 5. No necessity for the development: disagreed.
3. The applicants further contended that the Council "moratorium" is of no legal effect.
4. In written submissions the applicants responded further to the Council's contentions, submitting that the contentions are based on a flawed planning premise, namely the failure to conduct proper investigation of any land use conflict caused by noise and odour between residents of Cartwrights Hill and the BIA, and reliance on noise and odour reports that have been demonstrated to be flawed. Responding to each of the specific contentions, the applicants submitted : 1. BISTF noise and odour: the expert evidence is that the BISTF satisfies the amenity criterion, and the intrusiveness criterion once it operates in the manner recommended by the experts; if operation results in noise exceedance the BISTF must undertake noise mitigation measures, and failure to do so would be unlawful; the evidence that there are no odour emissions from the BISTF should be accepted, and if the BISTF wishes to expand it would need further assessment and approval; 2. Other land use conflicts: the proposed subdivision does not create any land use conflict between the future residents and the BIA; future noise receptors living on the Land would enjoy compliance with the relevant acoustic criteria save for intrusiveness caused by the BISTF which requires mitigation; the Land is outside the relevant odour unit contour; and any new development at the BIA would require environmental assessment and licensing if a scheduled activity; 3. Adverse precedent: the development application is not for staged development; the development application is not objectionable in itself being consistent with the zoning; there is no probative evidence of land use conflict, or that the application will open the floodgates to residential subdivision in the Cartwrights Hill area; and any future application would be determined on its merits; 4. Inappropriate zoning and inconsistency with likely future zoning: the rezoning of the land to the south of the Land is underpinned by flawed noise and odour reports, and significant weight should be given to the existing zoning and subzoning of the Land; and there is no planning proposal prepared by the Council; and 5. No necessity for the development: there are significant barriers to achieving the potential lot yield in the spatial planning policy.

Planning controls

1. The Land is zoned Residential under the Wagga Wagga Local Environmental Plan 1985 (the 1985 LEP). The provisions of the 1985 LEP for the Residential zone are: Residential Zone 1 Objectives of zone The objectives are: (a) to make general provision to set aside land to be used for the purposes of housing and associated facilities, (b) to allow detailed provision to be made, by means of a development control plan, to set aside specific areas within the zone for medium density housing as well as an area where only single dwelling-houses and dual occupancy buildings are permitted, (c) to allow a variety of housing types within existing and new residential areas, (d) to encourage greater visual amenity by requiring landscaping and permitting a greater variety of building materials and flexibility of design, and (e) to allow development for purposes other than housing within the zone only if it does not detrimentally affect the character or amenity of the locality. 2 Without development consent Nil. 3 Only with development consent Any purpose other than a purpose included in Item 2 of the matter relating to this zone.
2. Clause 9(3) of the 1985 LEP provides that the council shall not grant consent to the carrying out of development unless the council is of the opinion that the carrying out of the development is consistent with one or more of the objectives of the zone within which the development is proposed to be carried out. It was common ground that the proposed development would satisfy that provision.
3. The Wagga Wagga Development Control Plan 2005 (the 2005 DCP) provides four subzones of land zoned Residential under the 1985 LEP. Under the 2005 DCP the Land is part Residential 2(a), General (Urban Living Area), and part 6a Recreation (Urban Living Area). The Residential 2(a) General (Urban Living Area) subzone is described at cl 8.3 as the main residential classification providing the bulk of residential accommodation within Wagga Wagga, and having a density of housing permitted at 10 dwellings per residential hectare. The purpose of the 6a Recreation (Urban Living Area) subzone is to provide land for the recreation pursuits of residents. The SEE notes (ex L, at p 6) that while dwelling houses are permitted in the 2a subzone, they are generally not suitable in the 6a subzone. The subzoning of the Land under the 2005 DCP is shown (2a in pink, 6a in green) on the following extract from the SEE:
4. The proposed subdivision does not include any of the land in the 6a subzone.
5. The 2005 DCP identifies dwelling houses and subdivision as landuses which need Council consideration, and provides, in part 8.5.1, development guidelines for residential subdivision. No minimum lot size is specified for dwelling houses or medium density development, and the maximum density permitted per residential hectare is 10 dwellings per hectare in the Residential 2a zone.
6. Clause 8.6.38 of the 2005 DCP provides: 8.6.38 Bomen Industrial estate, Cartwrights Hill Residential Area and Bomen Industrial Candidate Area As a result of the recently completed WISDOM Study (Wagga Industrial Sustainable Development Opportunities Model) Council will progressively introduce development control guidelines over the subject area to ensure sustainable industrial activity. This special provision is the first of such and is aimed at ensuring that any new development will not have an adverse environmental effect or create a conflict between residents and industries locating in this area. All proposed development within the subject area is to obtain Council consent. Development is restricted within the prescribed area whether classified as permissible with council consent or without council consent on the DCP landuse guide.
7. The Land is in the Area Subject to Restrictions in fig 8.12 of the 2005 DCP (ex 3, tab 34, p 8.41).
8. The Wagga Wagga Local Environmental Plan 2010 (the 2010 LEP) came into effect on 16 July 2010. The Land was identified as a deferred area, and the applicable local environmental plan remains the 1985 LEP (cl 1.3(1A)). Clause 1.6 of the Wagga Wagga Development Control Plan 2010 provides that the 2005 DCP continues to apply to the land excluded by cl 1.3(1A) of the 2010 LEP, and so the applicable development control plan is the 2005 DCP.
9. The 2010 LEP applies to the land surrounding the Land. To the north and east the land is zoned RU6 Transition and SP2 Sewage Treatment Plant; to the west, RE1 Public Recreation and SP2 Road; and to the south, R5 Large Lot Residential. Further to the north and east the BIA contains a mix of IN1 General Industrial and IN2 Light Industrial zones. The land further to the south west, and to the north west on the other side of Olympic Highway, is RU1 Primary Production.
10. The BISTF, and other industrial uses in the BIA including Teys, are scheduled activities under the Protection of the Environment Operations Act 1997 (the POEO Act). Section 129 of the POEO Act provides: 129 Emission of odours from premises licensed for scheduled activities (1) The occupier of any premises at which scheduled activities are carried on under the authority conferred by a licence must not cause or permit the emission of any offensive odour from the premises to which the licence applies. (2) It is a defence in proceedings against a person for an offence against this section if the person establishes that: (a) the emission is identified in the relevant environment protection licence as a potentially offensive odour and the odour was emitted in accordance with the conditions of the licence directed at minimising the odour, or (b) the only persons affected by the odour were persons engaged in the management or operation of the premises. (3) A person who contravenes this section is guilty of an offence.
11. The term "offensive odour" is defined in the Dictionary to that Act: offensive odour means an odour: (a) that, by reason of its strength, nature, duration, character or quality, or the time at which it is emitted, or any other circumstances: (i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or (ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or (b) that is of a strength, nature, duration, character or quality prescribed by the regulations or that is emitted at a time, or in other circumstances, prescribed by the regulations.

The planning history

1. The following summary of the planning decisions and actions relating to the Land is based on the summaries provided in the Statements of Evidence of Mr Whitworth (ex 4) and Mr Salvestro (ex B), who gave evidence on behalf of the Council and the applicants respectively: 1. The Land was first identified for residential development in 1953 under a draft Planning Scheme. The Wagga Wagga Planning Scheme Ordinance was gazetted in 1965 and included a layout for Cartwrights Hill; 2. In 1976 the Council adopted a future strategy for the city (Strategy Plan "C") that included Cartwrights Hill as a future residential area of Wagga Wagga; 3. The 1985 LEP and the Wagga Wagga Development Control Plan 1986 (the 1986 DCP) included residential zones and sub-zones for Cartwrights Hill; 4. In 1995 the planning controls in relation to Cartwrights Hill were reviewed and the 1986 DCP was amended to include cl 8.6.38 (ex 3, tab 30). The same provision was also inserted as new clauses 7.6.18, 9.6.2, 10.6.2, 11.6.2 and 12.6.8. Mr Salvestro notes that these clauses were inserted following concerns over odour issues from industries in the adjoining BIA (ex B, p 12); 5. At the same time as the amendments to the 1986 DCP the Council adopted a revised Vision 21 Strategic Land Use Plan that considered backzoning the Cartwrights Hill area; 6. In 2003 Habitat Planning was commissioned to undertake a "Cartwrights Hill Future Use Study" to investigate appropriate landuses and zonings for the area. That study recommended that subject to the outcome of works being undertaken to improve the environmental performance of the then Cargills Abattoir (now Teys), that the land be backzoned to a rural residential or a rural zoning; 7. In 2008 the Wagga Wagga City Planning Panel (under s 118 of the Act) decided to exhibit a draft local environmental plan zoning the entire area of Cartwrights Hill to RU6 Transition; 8. In February 2010 the Wagga Wagga City Planning Panel decided to defer the RU6 zoning and request further investigations into an appropriate zoning. The 2010 LEP was made with the land at Cartwrights Hill deferred; 9. From June 2010 to May 2011 the Wagga Wagga City Planning Panel informally exhibited planning proposals to zone the residential zoned land at Cartwrights Hill to R5 Large Lot Residential with a 1ha minimum lot size; 10. In May 2011 the Wagga Wagga City Planning Panel resolved to prepare a planning proposal and obtain a gateway determination from the Minister for Planning, for a R5 zoning and 1ha minimum lot size for the residential zoned land at Cartwrights Hill. A gateway determination was issued in October 2011; 11. Between October 2011 and October 2013 the relevant planning authority (formerly the Wagga Wagga City Planning Panel, then the Southern Joint Regional Planning Panel) exhibited two forms of planning proposal, for 1. R5 zoning with minimum 1ha lot size, exhibited March-April 2012; 2. R5 zoning with 8ha minimum lot size for the residential zoned land and RU6 Transition on the subject Land, exhibited February-March 2013; 1. In October 2013 the Southern Joint Regional Planning Panel resolved to adopt a final planning proposal that incorporated a R5 zone with 1h minimum lot size for the majority of the residentially zoned land and RU6 Transition for the subject Land; 2. In February 2015 the Department, under delegation from the Minister for Planning, made the Wagga Wagga Local Environmental Plan 2010 (Amendment No 13) (Amendment 13). Amendment 13 commenced on 17 February 2015, and rezoned the former residential lands to R5, and inserted cl 7.8 into the 2010 LEP: 7.8 Cartwrights Hill Precinct - odour and noise assessment (1) The objective of this clause is to ensure that any odour and noise impacts from the Bomen industrial area and the Bomen sewage treatment facility are considered in determining the suitability of development within the Cartwrights Hill Precinct. (2) This clause applies to land identified as the "Cartwrights Hill Precinct" on the Cartwrights Hill Precinct Map. (3) Development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the potential impacts of odour and noise from the Bomen industrial area and the Bomen sewage treatment facility on the development. 1. The Cartwrights Hill Precinct Maps in Amendment 13 show the land on the southern side of Old Bomen Road, as far as East Street, as the "Cartwrights Hill Precinct". 2. The Land, and approximately 15ha of land south of Old Bomen Road to the east of East Street, was deferred. As a consequence, the Land remains subject to the provisions of the 1985 LEP.

Evidence

1. The hearing of the appeal commenced on site, and included a view of the Land; the BISTF; the Teys abattoir site; the Bomen saleyards; the site of the proposed RIFL; the existing small lot residential development on Cooramin and East Streets; the site of approved residential subdivisions at 42 Old Bomen Road, 400 Hampden Ave and 371 Hampden Ave; and the Narrung Sewage Treatment Plant.
2. Mr Charles Hollingworth, Group Manager Corporate Affairs and Environment of Teys Australia Pty Ltd, made an oral submission on the site view, and provided a written submission (ex 8). Mr Hollingworth explained the nature of the Wagga Wagga operation of Teys, which includes slaughter and rendering on site, and its relationship with other elements in the corporate structure. Teys opposes the development application based on incompatibility with existing land uses and the potential to significantly impact on the continuing operations of industrial facilities in the BIA as well as the BISTF, with the introduction of additional residential receptors adjacent to a well-established and growing industrial estate. Teys has 1020 employees and represents 6% of the regional economy, and has applied for approval of a $47million upgrade of its Wagga Wagga facility, Stage 1 of which would employ 300 contractors. Complaints are received about odour, and the introduction of additional residential receptors is not in the public interest. A submission made by the General Manager of Teys to the Council in response to the development application is in evidence (ex 2, tab 7).

Expert evidence

1. Expert planning evidence was provided on behalf of the applicants by Mr Garry Salvestro and on behalf of the Council by Mr Brett Whitworth. Mr Salvestro is a consultant town planner who prepared the development application for the applicants, and for the three development consents granted in 2013, and has represented residents before the Southern Joint Regional Planning Panel in their consideration of various planning proposals. Mr Whitworth is General Manager, Southern Region, of the Department of Planning and Environment, and has been involved in the strategic planning process including signing recommendations for rezoning of land in the local government area. Both experts provided an individual Statement of Evidence (exhibits B, 4), and participated in conferencing, producing a joint report (ex 5).
2. Expert evidence on acoustic issues was provided on behalf of the applicants by Dr Renzo Tonin and on behalf of the Council by Mr Dan Dang. Both provided individual Statements of Evidence (exhibits 6, C), and participated in conferencing, producing a joint report (ex 7) and a supplementary joint report (ex 9).
3. Expert evidence on odour was provided on behalf of the applicants by Mr Simon Welchman, an environmental engineer and air quality consultant, who provided a Statement of Evidence (ex D) and a Second Statement of Evidence (ex E). Mr Welchman and Mr Whitworth conferenced, and provided a joint report (ex 11).

Studies, plans and reports

1. The studies, reports and plans referred to in the planning evidence are: 1. Wagga Wagga Industrial Sustainable Development Opportunities Model (WISDOM), 1995 - Wagga Wagga City Council & NSW State and Regional Development (ex 3, tab 32); 2. Cartwrights Hill Future Use Study May 2003, prepared by Habitat Planning (ex F, tab 6); 3. Vision 21 Land Use Strategy, 2006 - Wagga Wagga City Council (ex F, tab 7); 4. Bomen Strategic Master Plan, 2009 - Wagga Wagga City Council & NSW Department of State and Regional Development (the Master Plan) (ex 3, tab 35); 5. Report on Wagga Wagga Local Environmental Plan 2010 Deferred Area Cartwrights Hill - prepared for Council by Edge Land Planning (the Edge Report) (ex 2, tab 36); 6. Spatial Plan 2013-2043 - Wagga Wagga City Council (the Spatial Plan) (ex 3, tab 38); 7. Riverina Regional Action Plan, 2012 - NSW Government (ex 3, tab 39).
2. The following studies and reports relating to odour assessment are in evidence: 1. Cargill Beef Australia Odour Impact Assessment Study August 2007 - The Odour Unit (ex 3, tab 40); 2. Odour Modelling and Impact Assessment: Bomen Industrial estate, Wagga Wagga - Holmes Air Sciences January 2008 (the HAS Report) (ex 3, tab 41); 3. Bomen Industrial Park - odour assessment - PAEHolmes October 2009, which was a response to comments on the 2008 HAS Report (ex 3, tab 42); 4. Draft Buffer Zone Odour Impact Assessment Bomen Industrial Sewage Treatment Facility - Todoroski Air Sciences Pty Ltd November 2011 (the TAS Report) (ex 2, tab 27); 5. Teys Australia Pty Ltd Odour Impact Assessment Study June 2012 - The Odour Unit (ex 3, tab 43); 6. Teys Australia Pty Ltd Odour Impact Assessment Study July 2014 - The Odour Unit (ex 3, tab 44).
3. The acoustic experts referred to a report prepared by Atkins Acoustics and Associates Pty Ltd Noise Impact Assessment Bomen Industrial Sewage Treatment Facility Bomen Wagga Wagga September 2012 (the Atkins Report) (ex 2, tab 28).

Correspondence between Council and NSW Government agencies

1. The evidence includes correspondence between the Department of Environment Climate Change and Water (DECCW) and the Council concerning the amendment to the 2010 LEP. A letter dated 1 October 2010 (ex 2, tab 9) included the following comments: The Bomen Industrial Park contains industrial activities that have the potential to cause amenity issues (eg noise, odour and light) for residential premises that are located in close proximity to these activities. The construction of at least 40 additional dwellings and the associated population increase of approximately 100-180 people in close proximity to the industrial park have the potential to result in significant and long-term/intractable land use conflicts. Council has commissioned a recent study ("Odour Modelling and Impact Study, Bomen Industrial Estate, Wagga Wagga. Holmes Air Sciences, January 2008") which shows that the area identified in the Deferred Matters report as suitable for zoning as R5 (Large Lot Residential), falls between the 50[sic] odour unit (OU) contour and the 7 OU contour. The DECCW Guidelines state that for areas with a population of ~ 125 the threshold is 4 OU. Given that this modelling has been done only on existing industries in Bomen and has not taken into account the future odours that will result from development of Bomen as an industrial hub as outlined in the 'Bomen Master Plan 2009' it is likely that Cartwrights Hill will be subject to greater levels of odour and noise in the future. There has been no discussion in the Deferred Matters Report which describes how the odours at Cargill Foods (identified as the major source of odour within the 'Odour Modelling and Impact Study') will be reduced to acceptable levels, prior to large lot residential development being permitted. Having considered the information provided in the Deferred Matters Report and the 'Odour Modelling and Impact Study', DECCW objects to the proposed R5 zoning at Cartwrights Hill as the odour modelling shows that that OUs at Cartwrights Hill would exceed the odour performance criteria set out by DECCW and adopted by the Department of Planning (NSW Best Practice Odour Guidelines - April 2010). DECCW raises no objection to the proposed R5 zoning of the land at Old Narrandera Road.
2. In a subsequent letter dated 21 February 2011 (ex 2, tab 10) DECCW stated: DECCW strongly supports the concept of what is now known as the Bomen Industrial Park. It consolidates industrial activities, reducing the interface with potentially sensitive land uses. We encourage a strategic approach to the development of sound land use planning provisions forming the basis of the Local Environmental Plan (the Plan). DECCW, as the regulator of several premises in the Bomen Industrial Park, has encouraged Council to maintain suitable separation distances between the Bomen Industrial park and potentially sensitive land uses such as residential. … We will continue to regulate licensed premises located within the Bomen Industrial Park to achieve contemporary environmental management standards. These standards have been designed to limit emissions from industrial premises. However, Council should note that these standards do not require industries to completely eliminate emissions beyond the boundary. This is particularly the case for noise and odour.
3. In a letter to the Council dated 20 September 2013 commenting on three development applications seeking 61 residential lots at Cartwrights Hill (ex 2, tab 11), the Environment Protection Authority (EPA) commented: Land use conflicts occur when the off-site odour or noise impacts unacceptably affect the health, quality of life or values of other land users. Land use conflicts rarely arise in circumstances where the appropriate land-use planning and economically achievable best available technology implemented by industry combine to achieve compatibility between proposed land uses. The EPA consider an additional 61 lots in the Cartwright's Hill area increase the number of noise and odour sensitive receptors and the potential for intractable land use conflicts.
4. The evidence includes correspondence between the Department of Planning & Environment and the Council relating to the making of Amendment 13 to the 2010 LEP. In a letter dated 12 February 2015 (ex 2, tab 13) advising that the Amendment No 13 had been made, Mr Marcus Ray (Deputy Secretary Planning Services) explained why the draft plan had been varied by retaining 15ha of land east of East Street, and 30ha of land south of Bomen Road, as deferred matters and inserting cl 7.8: In making these changes, I recognise the strategic economic importance of the Bomen Industrial Estate, including both existing and future industries, to the City of Wagga Wagga and the broader region. The final Plan seeks to protect the ongoing operation of these important industries, while providing appropriate development opportunities in Cartwrights Hill. … Land south of Bomen Road I acknowledge that the Panel proposed to amend the original planning proposal to rezone residential zoned land south of the Bomen industrial sewage treatment facility (BISTF) to an RU6 Transition Zone with a 200 hectare minimum lot size on the advice of Council. The Department made the decision to defer this area because of the uncertainty regarding the future role and upgrade of the BISTF and the need for Council to fully canvass alternative compatible zoning and lot size options for this area. The proposed rezoning of the land south of Bomen Road, from a residential zone to a rural zone with a 200 hectare minimum lot size, would have a significant economic impact on landowners. Greater justification and certainty on the role of the BISTF is therefore required before this land is rezoned.
5. The Council sought further explanation as to why the lands had been deferred (ex 2, tab 14). In a letter dated 20 March 2015 (ex 2, tab 15) Mr Ray stated: ... Land south of Bomen Road The 2011 Gateway determination for the Cartwrights Hill area was issued to facilitate the replacement of the current 2 Residential Zone (no minimum lot size) under the [1985 LEP] with an R5 Large Lot Residential Zone (1 hectare minimum lot size) to reduce the intensity of future residential development that would be permitted on the land. This would minimise the potential land use conflict from odour and noise between Cartwrights Hill and the Bomen industrial area. The planning proposal was supported because it was based on strong evidence that land use conflict was likely to undermine the future development of the Bomen Industrial Estate and the economic benefits the Estate would generate for the Wagga Wagga region. … In February 2013, the Southern Joint Regional Planning Panel adopted (as the Relevant Planning Authority) a changed proposal for the land south of Bomen Road that reintroduced the proposed RU6 Transition Zone and 200 hectare minimum lot size. The Panel adopted these changes because of concerns raised by Council that a larger buffer area was required around the [BISTF] to reduce potential land use conflict from odour and noise. In assessing the final planning proposal submitted in November 2013, the Department considered that the February 2013 changes were a significant departure from the original planning proposal and would have major economic impacts on the affected landowners. The change from a 2 Residential Zone (with no minimum lot size) to an RU6 Transition Zone (200 hectare minimum lot size) would therefore require substantial justification to enable the plan to succeed. After a number of meetings and discussions with landholders, industry representatives Council and the Environmental Protection Authority, the Department concluded that there was not enough justification for the change to a proposed RU6 Transition Zone (200 hectare minimum lot size) to proceed at this time because: - Council indicated that the RU6 Transition Zone (200 hectare minimum lot size) was being applied to the land as a precautionary buffer to mitigate against any future noise and odour impacts from either the expansion or change in function of the BISTF, but there was no consideration of whether any expansion or change in operation of the BISTF would in fact require an increased buffer. - Neither the Department nor Council had considered the legal and financial implications under the Land Acquisition (Just Terms Compensation) Act 1991 of whether the rezoning was capable of being characterised as being for a public purpose under section 26 of the Environmental Planning and Assessment Act 1979; and - Council had not fully canvassed alternative compatible zoning and lot size options for land south of Bomen Road other than the proposed RU6 Transition Zone. The decision by the Department to retain the land south of Bomen Road as a deferred matter should not be construed in any way as condoning or supporting development of the land based on the existing residential zoning. The Department maintains the view that the current 2 Residential zone over this land is not appropriate because it would permit a significant increase in sensitive residential receptors on the land, and exacerbate the existing land use conflicts from odour and noise within the Bomen industrial area. In considering the most appropriate zoning of the land, Council will need to resolve the future role of the BISTF and the impact of any potential expansion of the facility on the surrounding land because of odour and noise. If Council determines that the land, or part of it, should operate as a buffer for the BISTF and determines to proceed with a RU6 transition Zone, then it should also consider acquisition of the land or part of it. If Council does not propose to expand the capacity of the BISTF, the Department would be prepared to consider a combination of R5 Large Lot Residential and RU1 Primary Production zones over the land. This would enable an acceptable level of development that is comparable to development permitted on other land recently rezoned at Cartwrights Hill, with an appropriate non-urban break between future large lot residential development and the BISTF.

The BISTF

1. The BISTF is Council owned infrastructure operated by a third party under contract, and is designed to pre-treat sewerage before it is reticulated to the Narrung Street Sewerage Treatment Works (ex 4, p 17). The BISTF operates three aeration blowers simultaneously at the plant, with variable operating conditions depending on conditions in the processing/treatment tank and requirements for additional airflow; the Atkins Report noted that during each operating cycle the blowers switch on and off (ex C, p 18). It was common ground that the BISTF currently operates at 75% blower load, and that there are no plans to upgrade the facility.
2. The approval for the BISTF, for which the Council was the proponent, is relevant to consideration of the Council's contentions.
3. The Environmental Impact Statement (EIS) for the BISTF, dated June 2000 (ex 2, tab 20), noted that the proposal did not require development consent and accordingly was required to be assessed in accordance with Part 5 of the Act. The Council was the nominated determining authority under s 110A of the Act. The EIS noted (pxiv) that the proposal was developed in response to capacity constraints within the existing Council sewerage system and demand for industrial wastewater treatment as a result of existing and anticipated industrial development in the Bomen area, and (at xvii) that the proposal included a new treatment facility providing a secondary/tertiary level located on a site to the north of the Bomen industrial area. Stage 1 would be sized for an average daily flow of around 3ML/d with subsequent augmentations in 3ML/day stages to provide an ultimate capacity of 12ML/day. The proposal was described in section 4.0, noting that treated effluent from the new treatment facility would be pumped to the ponds at the Narrung Street sewerage treatment works for any necessary final polishing and discharge.
4. The original proposal was to locate the BISTF within the Bomen Industrial Estate, between Olympic Way and the Main Southern Railway, to the north of the saleyards. The Council subsequently identified an alternative area for BISTF approximately 1km south of the original site, and a Supplementary EIS (April 2001) was prepared. Section 5.0 of the Supplementary EIS addressed the existing environment, potential impacts and mitigation measures. Section 5.2.1.1 Existing Landuses in the Immediate Vicinity of the Proposal (ex 2, tab 21, p 5-1) stated: Land use to the north of the site is predominantly rural. There are two isolated residences located approximately 500m to the south of the site and residences located 500m to the north and 950m to the west. Treatment ponds which process waste generated by the saleyards are located north east of the new BISTF site at a distance of approximately 300m. The area to the west of the site is also mainly rural, with Charles Sturt University approximately 2km to the northwest. The nearest residence to the west is an isolated property approximately 1km from the centre of the site. The Bomen Industrial Estate occupies land to the east/southeast of the site at a distance of approximately 500m from the centre of the site. No residences occur in this area. To the south of the site, land use is increasingly residential but currently of low density. The two nearest residential properties to the south are located approximately 500m from the site with housing densities increasing beyond this.
5. Section 5.11 addressed Noise. At p 5-24 under the heading Sensitive receptors, similar comments were made about the nearest residential receptors, and it was noted that there are no schools, medical clinics, hospitals, retirement centres or community facilities within approximately 3km of the new site. It was noted that no site-specific noise monitoring or modelling had been undertaken for the new site, however noise monitoring for the WISDOM study determined background noise levels at a number of sensitive receptors; the nearest sensitive receptor used in that study was located at the northern end of East Street Cartwrights Hill, approximately 750m from the proposed site. At p 5-29 the Supplementary EIS noted that received noise levels at the nearest residence (approximately 500m away) were expected to be up to 46dB(A) without any allowance for mitigation or natural attenuation due to wind direction or temperature, and continued: The minimum design for the operation of BISTF will include bunding and vegetation screening for hydraulic and visual reasons. These features will also assist in the attenuation of noise and will be designed to maximise their noise attenuation capabilities whilst avoiding over-design. Further, it is recommended that compressors and pumps are housed in a brick building with roof insulation and with windows and doors closed during operation. Given these measures, noise levels at the site boundary are likely to be below the acceptable night time criteria for rural residences … at all times during operation at the site boundary and will be even lower at the nearest residences. It is not expected that noise levels will exceed acceptable criteria at the site boundary (approximately 250m from the proposed site location)…. A noise management plan including mitigation measures, noise monitoring and an effective complaints handling procedure is recommended for BISTF….
6. The report of the Director of Environmental Services to the Operations Committee of the Council on 17 September 2001 (ex 2, tab 22) recommended that application PV 010431 for the BISTF be approved subject to conditions. The report noted (p 62) that the issues associated with the proximity of residential areas (visual, odour, noise) could be addressed by increased capital works within the plant design and appropriate design of the facility and landscape treatment of the site, that it was not expected that noise levels would exceed acceptable criteria at the site boundary, and that the supplementary EIS had stated that design specifications would stipulate no odour at the plant boundary.
7. The application was approved on 24 September 2001. The document headed "Notice to Applicant of Determination of Development Application" (ex F, tab 1) states that notice is given "…of the determination by the consent authority to the Development Application pursuant to the Environmental Planning & Assessment Act, Section 81(1)(a) of the Act" to application PV 010431, with conditions which require completion "in accordance with" the EIS and Supplementary EIS, and specify: Planning Section 1. No odour generated by the facility is to leave the site. The design specifications are to stipulate no odour at the plant boundary. 2. A 400m buffer is to be created around the proposed treatment plant and associated structures. ...
8. The fifth page of that document is headed: The Applicant is advised: Engineering Section … Community Services Section (a)… (b) The level of noise emitted from the premises should not exceed 5dB(A) above the background "A" weighted sound pressure level when measured at a distance of 5 metres from any residence in the area. Planning Section …
9. In written submissions the applicants addressed the issue of the consequence of notification of the approval for the BISTF on a document which purports to be notice of an approval under Part 4 of the Act, including whether that affects the validity of the Part 5 project approval, and the 2004 approval for the BISTF control room; ultimately that did not require determination. The Council concedes that there could be no acoustic or odour impacts from the BISTF on the Land that would be lawful. While the Council's position is that the fifth page of the 2001 Notice of Determination is an advisory note and not a condition of the Part 5 approval, it accepts that the BISTF development has to be carried out in accordance with the requirement stated in (b) of the Community Services Section, namely that the level of noise emitted is not to exceed 5dB(A) above the background "A" weighted sound pressure level when measured at a distance of 5m from any residence in the area.
10. The Environment Protection Licence 393 (EPL) issued to the Council under the POEO Act by the EPA (ex 2, tab 29) includes: A3 Information supplied to the EPA A3.1 Works and activities must be carried out in accordance with the proposal contained in the licence application, except as expressly provided by a condition of this licence. In this condition the reference to "the licence application" includes a reference to: a)the applications for any licences (including former pollution control approvals) which this licence replaces under the Protection of the Environment Operations (Savings and Transitional) regulation 1998; and b)the licence information form provided by the licensee to the EPA to assist the EPA in connection with the issuing of this licence. A3.2 c)All supporting documents lodged with the application, included but not limited to the following documents and any referenced documents contained therein, as related to environmental issues within the jurisdiction of the Protection of the Environment Operations (POEO) Act: i) Notice to Applicant of Determination of Development Application - Application No PV 010431. ii) Supplementary Environmental Impact Statement - Bomen Industrial Treatment Facility, April 2001. iii) Environmental Impact Statement - Bomen Industrial Treatment Facility, 13 June 2000.
11. The Council accepts that it is obliged to comply with the EPL which calls up the three documents identified in A3.2.

Bomen Industrial Estate

1. Mr Whitworth noted (ex 4, pp 16-17) that the BIA has been proposed by the Council as a major industrial area that takes advantage of Wagga Wagga's location at the intersection of two major national highways, the Sturt Highway and the Olympic Highway, and the main railway line connecting Sydney and Melbourne, as well as having access to the Hume Highway. The industrial area has been developed to enable the development of a combination of light, rural and heavy industries as well as to take advantage of road and rail access to provide intermodal transport interchange opportunities. The 1995 WISDOM Study Model (which predated the approval, commissioning and operation of the BISTF) and the 2009 Bomen Master Plan provided baseline environmental information about the BIA and were used to inform appropriate zoning and planning controls. Prior to the 2010 LEP the industrial zoning was limited to the existing rural and livestock related industries such as the Teys Abattoir, the Wagga Wagga Livestock Marketing Centre, the Heinz cannery and the Southern Oils biofuel facility. Under the 2010 LEP there is an additional 2,000ha of industrial development through the application of IN1 Light Industrial and IN2 General Industrial zones. The 2010 DCP adopts the 2009 Master Plan and establishes in Section 13-Bomen Release Area a structure plan for development of the area. Those provisions include cl 13.13.2 Odour and 13.13.3 Noise which apply buffers (400m for odour and 200m for noise) between development and adjoining uses.
2. Mr Whitworth commented on the proposed $58 million Riverina Intermodal Freight and Logistics (RIFL) Hub, noting (ex 3, p 17) that this project involves the construction of new major rail and road infrastructure and a freight terminal, including a 5km long master siding to allow freight trains to pull off the main rail line to load and unload. This potential investment expands the capacity of the BIA to accommodate heavy industry. The Bomen Master Plan estimates that the 2,000ha of zoned and serviced land provides the potential for 4,000 jobs to be created in the area.
3. Mr Welchman in his first statement of evidence (ex D, p 2) described the BIA as the main industrial area for the city, and noted that weekly sales of cattle and sheep take place at the Wagga Wagga Livestock and Marketing Centre; the sheep selling centre is the largest in NSW and the cattle selling centre is among the largest and busiest in NSW.
4. In his Statement of Evidence (ex B) Mr Salvestro notes (p 14) that consideration of future landuse zonings in the Cartwrights Hill/Bomen area has been the subject of considerable strategic investigation and consultation since the mid-1990s. The concerns over potential environmental impacts from industry located in Bomen on adjoining residential areas of Cartwrights Hill and the desire of Council to introduce a sustainable industrial planning model resulted in the WISDOM study in 1995. For strategic industrial landuse purposes the land to the northeast of the existing BIA has been targeted for future industrial uses.
5. Mr Salvestro referred (at p 31) to his discussions with members of the Cartwrights Hill community, and stated that from his experience in representing industries, new or expanding establishments acknowledge and are responsible towards their requirement to meet current and future environmental standards, and he considered that overall the local community acknowledge and support the economic importance of Bomen.

Consideration

1. The applicants' position is that neither noise nor odour could properly be a basis for refusal of the development application. There are, on the evidence, no odour or acoustic impacts, and any odour or acoustic impacts from the BISTF would be unlawful. The evidence as to odour is that there are no impacts in fact, and any impacts would, in any event, be unlawful under s 129 of the POEO Act. On acoustic issues, the provisions of the Industrial Noise Policy (INP) and its limits on noise emission are incorporated by condition, and so any acoustic impacts departing from the INP would breach a condition of the EPL. The only basis for the Council to argue for refusal would be on the strategic planning issue, which would require the Court to accept Mr Whitworth's evidence that there is an "implicit" agreement that the zoning of the Land would not persist into the future. To give weight to that, despite the compliance with the applicable planning controls and the absence of odour or acoustic impacts, would be a departure from the accepted approach which requires that weight be given only where future zonings are imminent and certain. There is no current planning proposal for the Land and the history since 2010 shows how unlikely any imminent proposal would be, which is confirmed by the decision of Pain J in Teys Australia Southern Pty Ltd v Burns [2015] NSWLEC 1.
2. The applicants rely on the planning principle in Stockland Developments v Wollongong Council [2004] NSWLEC 470 that as a general principle, where there is conflict between a noise source and a sensitive receptor, preference should be given to the attenuation of any noise from the source rather than at the sensitive receptor, whether the noise source is generated by a proposal is a new noise and the receptor exists or the noise generator exists and the receptor is a proposed use, and submit that the same principle applies to all impacts including odour, visual amenity and other impacts. The applicants further rely on the decision of Moore SC in Bailey v Oberon Shire Council [2006] NSWLEC 815 that it would be improper to rely on an unlawful activity to sustain an objection and use that objection to warrant or contribute to the refusal of an otherwise lawful application. The applicants submit that the Council's position is essentially an attack on the zoning, and assumes that there could be the establishment of a new industry that is permitted to not comply with the INP or permitted to not comply with s 129 of the POEO Act by licence, and that such an industry would be discouraged from being developed within the Bomen estate. There are closer receptors in the case of all the sources where there are acoustic impacts. In reply the applicants submit that the adverse precedent argument should be rejected, because the proposed development is not objectionable in itself for odour and noise reasons.
3. The Council submits that there is no provision in the Act that s 79C(1)(a)(i) takes priority over any of the other considerations under s 79C, which include a requirement to have regard to the likely impacts of the development (s79C(1)(b)); the suitability of the site for the development (s79C(1)(c)); any submissions made in accordance with the Act (s79C(1)(d)); and the public interest (s79C(1)(e)). The Council accepts that it is not open to take into account any odour or acoustic impacts that would be unlawful. There is a concern as to the future expansion of the BISTF which may well require a further Part 5 approval and consideration of impacts. In relation to other land use conflicts the proposed residential development is not appropriate as the future residents may, through the potential for land use conflict, seek to prevent the expansion of the BIA with consequent economic impacts which are not in the public interest; it is not just the BISTF but the BIA, and not just present operations but potential future operations. If the BISTF were operating at 100% capacity it would have an impact in terms of noise on some of the proposed lots so the effect of an approval would be to put the BISTF in breach of its approval. If 26 residential receptors are introduced that will be regarded as a precedent and facilitate the addition of a further 142, which adds up to 168 potential dwellings on the land at a density of 800sqm per lot; that converts to 420 people. The impacts to be assessed under s 79C include impacts on infrastructure such as the BIA, which is not developed at full capacity. The Council has endeavoured to pursue an approach of separation of land uses, as shown in cl 8.6.38 of the 2005 DCP; the WISDOM study; the Master Plan; and the backzoning of the land to the south from Residential 2 to R5 with a minimum 1ha lot subdivision, together with cl 7.8, displaying the strategic intent of reducing the potential for land use conflict. What has been deferred from the 2010 LEP is the land in between the backzoned land and the industrial area which has a greater potential for impact from the BIA, and the issue is whether that land should be RU6 or R5, and what the density should be. The greater the population the more likely it is that someone will sense odour. There is no necessity for the development, and the provision of 26 additional residential housing lots would not tip the balance in favour of this application.

Acoustic impacts

1. Dr Tonin and Mr Dang agreed that the applicable guideline for assessing the acceptability of noise emission from scheduled premises is the NSW EPA Industrial Noise Policy (INP), which relies on two components, controlling intrusive noise impacts in the short term and maintaining noise level amenity.
2. The experts agreed that the recommended amenity limits are those for a suburban residence receiver, namely for day (07.00-18.00), 55dB(A) (acceptable) and 60dB(A) (maximum); evening (18.00-22.00) 45 dB(A) (acceptable) and 50dB(A) (maximum); and night (22.00-07.00) 40dB(A) (acceptable) and 45dB(A) (maximum). They agreed that when assessed on the amenity criteria the noise from the Bomen Industrial Estate and the BISTF is acceptable at the proposed subdivision. However, they disagreed on compliance with the noise intrusiveness goals.
3. They agreed in relation to noise intrusiveness that the applicable Rating Background Level (RBL) and recommended LAeq,15min intrusiveness goals at measurement locations 1 and 2 (shown as M1 and M2 in fig 2 in Dr Tonin's statement of evidence, reproduced at paragraph [11] above), are as follows: RBL Goal Day Evening Night Day Evening Night 07.00-18.00 18.00-22.00 22.00-07.00 07.00-18.00 18.00-22.00 22.00-07.00 1 40.0 43.3 33.3 45 48 38 2 37.7 35.9 30* 43 41 35

[*Note: an LA90 less than 30 is taken to be 30]

1. In relation to BISTF noise, the issue was whether an intermittency penalty should be applied. Noise emission from the BISTF was the subject of a report to the Council by Atkins Acoustics & Associates Pty Ltd dated September 2012 (the Atkins Report) (ex 2, tab 28). That report noted that noise from the plant is associated with blowers and airflow pipe breakout, with the blowers programmed to cycle on and off during day, evening and nighttime hours. The Atkins Report noted that noise from the plant is variable and intermittent, and at 100% load conditions can be described as tonal. During 100% blower load conditions noise complaints have been registered with Council, and the BISTF was operating to limit blower load capacity to less than 75%. The Atkins Report modelling with 100% blower load conditions identified that land north of Cooramin Street, which is approximately 1600m to the south of the BISTF, is noise affected. With the blowers limited to 75% load, land north of Old Bomen Road, approximately 600m south of the BISTF, is noise affected.
2. Mr Dang reassessed those noise emissions in his statement of evidence (ex 6), and concluded that at 75% operational capacity the predicted LAeq,15min noise levels from the BISTF would comply with the nighttime assessment objective of 35dB(A) at all 26 residential lots under calm weather conditions; would be marginal under temperature inversion; would exceed the nighttime assessment objective by 2-3dB at most residential lots under easterly wind conditions and by 3-4dB at most residential lots under temperature inversion and easterly wind conditions (ex 6, p 18).
3. In their first joint report (ex 7) Dr Tonin and Mr Dang addressed the differences between the noise predictions in the Atkins Report and those of Mr Dang. After correction of model errors, the predicted BISTF LAeq,15min intrusive noise levels for 75% and 100% operation at lots 1 and 26 (the two extremities of the development site), at nighttime for the worst case condition of 2m/sec wind and 3deg/C/100m temperature inversion, met the intrusiveness goal other than for lot 26 at 100% operation, when it exceeded the goal by 5db (ex 7, table 6 p 15). Dr Tonin accepted this conclusion if an intermittency penalty were applicable, however he was of the opinion that it does not apply or can be avoided.
4. On the morning of the site view the acoustic experts gave further consideration to the issue of intermittency. They requested the plant operator to operate the three blowers at 50Hz/50Hz/50Hz representing 100% capacity, and the resulting noise was observed to have a beating resonance which they agreed was most likely from vibration in the pipework. They requested the operator to operate the blowers at slightly different speeds in order to avoid the resonance, and no resonance beating was present at 50Hz/45Hz/40Hz (90% capacity) or 50Hz/47.5Hz/45Hz (95% capacity). The experts agreed (ex 9) that if operated in this manner a 5dB penalty would not apply. They observed that the resonance beating results in a higher noise level from the plant compared with when the resonance is not present, and based on sound level recordings taken at the open window of the control room while the blowers were operated at the relevant speeds, they obtained results detailed in exhibit 9 from which they concluded that approximately 7dB reduction in noise from the plant can be achieved if it can be operated in a manner avoiding resonances; and that if rubber flexible couplers are installed the noise levels can be reduced further. Dr Tonin's conclusion was that on that assumption, the 5dB non-compliance in noise levels reported in exhibit 7 would be eliminated.
5. While the issue of intermittency was resolved, there remained a disagreement between the acoustic experts in relation to contribution of noise from other industries in the BIA. Mr Dang was of the opinion that with adjustment for intermittency and intrusive noise from future night-time operations of other industries, the predicted non-compliance would occur at all lots; whereas Dr Tonin considered that the contribution of all industries in the BIA should be addressed only in terms of the amenity goals and not the intrusive goals (ex 7, p 15).
6. In his amenity assessment Dr Tonin had noted (section 5.1.3) that taking into account the fact that the BISTF operates for only 2 hours in the nighttime period the noise level of 46dB(A) for the BISTF would be comparable with the 40 LAeq, night amenity goal; that contour line was at the northern-most boundary of the subject property and well outside the Stage 1 development boundaries. Dr Tonin noted that that did not allow for cumulative noise contribution from other industries in the Bomen Industrial estate, and he undertook a survey of existing industry in the estate and calculated noise level contours using the program CadnA implementing the ISO9613 calculation algorithm. Having regard to the sound level of the most significant noise emitters, being Fulton Hogan, Southern Oil, Teys and Access Recycling, Dr Tonin concluded that the calculated noise level at the Stage 1 development is 33dB(A); the BISTF noise level contour at the eastern extremity of Stage 1 is 39dB(A), with an amenity noise level of 33LAeq,night; and the cumulative noise level of both BISTF and the Bomen Industrial Estate is (33+33=) 36LAeq,night, which complies with the nighttime amenity criterion of 40LAeq,night. Dr Tonin noted that this does not allow for future expansion of the BISTF or other industry. He considered based on a report prepared in January 2015, that the Riverina Intermodal Freight and Logistics Hub (RIFL) would have a noise level of less than 25 LAeq,night, which is negligible. In respect of future BISTF expansion the facility would need to apply reasonable and feasible methods of noise amelioration to ensure the amenity goal is not exceeded at any property.
7. Mr Dang's position on the intrusiveness assessment was that all industry should be taken into account (ex 7, p 20). In addition to the industries referred to by Dr Tonin as the most significant noise emitters, being Fulton Hogan, Southern Oil, Teys and Access Recycling, he considered that there are other industries with no restrictions as to operating hours. If there are other industries such as the Freight Terminal operating at night due to the future growth of the BIA, then intrusive industrial noise from those other industries would be higher and alone may exceed the nighttime intrusiveness criterion at the proposed development. In his opinion the total intrusive noise level from BISTF and other industries in the BIA should be determined and assessed against the intrusiveness noise criterion at the subject development; and because this information is not available, he did not agree that approval of the subject development would not impede the future growth of industry in the BIA.
8. Dr Tonin disagreed. Two of the industries referred to by Mr Dang had been included in his assessment (Teys and Southern Oil); for four (Freight terminal, manufacturer of plastics, Gas Storage and Distribution, and Rodneys transport) he considered the noise from the facility would be insignificant at the subject development; one property he could not locate; and while he did not inspect the fuel depot he considered that fuel pumps on site would have an insignificant sound power level compared with Southern Oil. Dr Tonin referred to the unattended noise graphs for noise monitoring location 2 which was at Lot 26, the closest lot to the BIA, where the LA90 background noise level at night was 29.1dB(A); that is a very low level and below the minimum level of 30dB(A) adopted by the INP when setting intrusive noise goals, and inconsistent with the proposition that the site is adversely affected by industrial noise. Dr Tonin considered that there is sufficient information to determine whether or not the subject development would impede the future growth of industry in the Bomen Industrial estate (ex 7, pp 20-22).
9. Dr Tonin relied for support for his approach to intrusiveness on cl 2.1 of the INP which provides: 2.1 Intrusive noise impacts The intrusiveness of an industrial noise source may generally be considered acceptable if the equivalent continuous (energy-average) A-weighted level of noise from the source (represented by the LAeq descriptor), measured over a 15-minute period, does not exceed the background noise level measured in the absence of the source by more than 5dB.
10. Dr Tonin was of the opinion that "the source" refers to the industrial noise source and premises under consideration, and not to noise from all industry (ex 7, p 8). Dr Tonin contrasted cl 2.2 relating to amenity, which refers to "the maximum ambient noise level within an area from industrial noise sources…". Dr Tonin summarised the approach required in the INP (ex 7, p 9): As stated in clause 1.4.4 of the INP, when assessing a specific project, the intrusiveness criterion is first used to ensure the level of noise from the project is no more than 5dB above the background noise level (measured in the absence of the project). The intrusiveness criterion usually remains the controlling criterion until the area is developed by industry to such an extent that the cumulative addition of noise from all those industries approaches the amenity noise goal. At this stage the amenity criterion starts to take over as the controlling criterion.
11. In oral evidence Dr Tonin explained that when he considered the BISTF intrusive noise and found an exceedance of 5dB when operating at 100% he did not need to examine any of the other industries further removed because in total those noise levels were 33 which is below 35, and it is the BISTF that is causing an intrusive noise impact at the subject site (T 2/7/15, p 29); and the reason why the BISTF in combination with all other noise sources exceeds the intrusiveness criterion but not the amenity criterion is because it only operates for a short time (T 2/7/15, p 31). The approach of the INP in addressing future noise impacts when new industries are added is that where the ambient noise creeps up to the amenity level, any new industry may have to design its noise emission to be below the ambient level, even background plus zero, to ensure that the amenity criterion does not creep up (T 2/7/15, p 33).
12. Mr Dang relied on section 1.4.3 of the INP, which provides in part: 1.4.3 Prevention of noise impacts Avoiding co-location of incompatible uses Judicial land use and project planning can often prevent potential noise problems from occurring. This policy should be used to consider the implications of proposing or allowing new noise-sensitive developments near noise generators and of proposing or allowing new noise-generating developments near established noise-sensitive developments such as schools, hospitals or homes. The criteria will help in the first instance to identify sites where it would be difficult, if not impossible, to avoid noise impacts over time, and will therefore help in an informed process for making decisions about land-use zoning or site selection by developers. … The types of strategies that could be used by planners and project proponents include: -Considering noise impacts when planning the development of areas, and incorporating suitable measures such as: *Spatial separation between noisy activities and noise-sensitive areas through locating less-noise-sensitive land uses (active recreation areas or access ways) in high noise areas *Taking advantage of any natural topographical features that can be used to screen noise impacts when planning land use in an area *Subdivision layout to maximise the area shielded from noise *Using intervening structures such as multi-level buildings to act as barriers. …
13. Mr Dang's position was that section 1.4.3 states that if a new sensitive development is proposed in an area affected by industrial noise then the policy can be used but it does not say how it is used; in his opinion his approach is proper because if you assess the noise from each industry individually in allowing each of them to be 5dB above the background, that would destroy the purpose of having an intrusive policy of background plus 5dB (T 2/7/15, p 41).
14. Dr Tonin's evidence was that even if Mr Dang's position that all other industry should be added to determine intrusiveness were adopted, the consequence would be that whereas amelioration works to two sections of the pipes at the BISTF would result in a 9dB noise reduction to get the treated noise level at Lot 26 to 35.3dB (ex 7,Table 8), a further reduction to 31dB would be required in order to achieve 35dB for the combination of the BISTF and the BIA: the difference in outcome between them was that on Dr Tonin's interpretation some amelioration would be required while on Mr Dang's interpretation, more would be required (T 2/7/15, p 28).

Findings

1. It was common ground that the BISTF is required to operate in accordance with its approval, the EIS and the supplementary EIS, and that accordingly the level of noise emitted is not to exceed 5dB(A) above the background "A" weighted sound pressure when measured at a distance of 5m from any residence in the area. It was common ground that the acoustic criteria are measured at the relevant receptor, and that what is controlling the receptor location at present is the existing residences (shown on Fig 2 ex C, in paragraph [11] above), and not the proposed subdivision. While both experts agreed that the amenity criterion under the INP is met, there remained a dispute as to the intrusiveness criterion. It was common ground that the BISTF is presently operating at 75% blower load. Dr Tonin agreed that there is presently an intrusiveness problem with the operation of the BISTF at 100%; both experts accepted that this can be ameliorated by operation at 90% or 95% with different blower speeds so that the noise would not have intermittent characteristics, or by installing rubber flexible couplers in the pipework. I accept the agreed expert evidence.
2. In relation to application of the intrusiveness criterion, the applicants submit that Dr Tonin's approach should be preferred as being consistent with the text of the INP and the caselaw, including the decision in Stocklands Developments v Wollongong Council [2004] NSWLEC 470, where Roseth SC and Brown C accepted expert evidence that the INP requires that noise of an industrial plant not be included in the background noise level. Alternatively, if the operation of the BISTF results in noise exceedance contrary to the INP, it must undertake noise mitigation measures foreshadowed in Table 5.5 of the Supplementary EIS (ex 2 tab 21, p 5-29) so as to reduce noise impacts on existing and future residences to INP acceptable criteria; failure of the BISTF to do so would amount to unlawful activity contrary to the requirements of its Part 5 approval, the EPL, and the POEO Act.
3. Whichever approach to the contribution of other industries in considering the intrusiveness criterion is adopted, there are consequences for either residential development of the Land, or for the future operation of industry. On Dr Tonin's approach, following the 7dB reduction on the predicted BISTF LAeq,15 min intrusive noise level for Lot 26 when the BISTF operates at 100%, on his calculation the predicted level would be reduced from 40dB to 33dB, which results in compliance with the intrusiveness goal. On Mr Dang's calculation, there would be a reduction to 36dB, which would result in an exceedence of 1dB. That would be less than the 2dB regarded in section 11.1.3 of the INP as representing a non-compliance. If Mr Dang's approach to the INP of considering all industrial sources is correct, the intrusiveness criterion is not currently met; and if that is so, then mitigation work for the BISTF such as that identified by the acoustic experts on the site view, or that foreshadowed in the EIS, would be required. If Dr Tonin's approach of having regard to each individual source is correct, mitigation steps are required in order for the BISTF to operate at 100%. The decision in Stocklands Developments v Wollongong Council [2004] NSWLEC 470 supports the proposition that in determining background noise the operation of the plant the subject of consideration should be excluded; that is consistent with the definition of "extraneous noise" at section 3.1.2 of the INP, which provides that where an industry in an industrial estate wishes to extend its operations the measured background noise may include the general hum of industries nearby but should not include any noise from the site itself, or noise from intrusive sources nearby that could affect the LA90, 15 min value.
4. Accepting on that basis that Dr Tonin's approach to intrusiveness is to be preferred, there is still the issue of future development in the BIA. The INP notes at section 7.1 that there are three main mitigation strategies for noise control, namely, controlling noise at the source through best management practice or best available technology economically feasible; controlling the transmission of noise through the use of barriers or land-use controls; and controlling noise at the receiver through measures such as insulation and double-glazing of windows. Dr Tonin's evidence was that new or expanded industry may incur additional requirements or costs to reduce its noise in order for the amenity criterion to be met, assuming a similar regulatory approach is taken to that applicable to the BISTF. That evidence, reflecting an approach of controlling noise at the source, is consistent with the approach adopted in Stockland Developments Pty Ltd v Wollongong City Council (2004) 139 LGERA 374 that where there is a conflict between a noise source and a sensitive receptor preference should be given to the attenuation of noise from the source. Having regard to the conclusion on the strategic planning issue below, it is the latter consequence, and in particular the consequence for the future development of the BIA, that is relevant to the determination of this application.

Odour

1. In his first statement of evidence (ex D) Mr Welchman addressed the contentions relating to odour impacts from the BISTF on the proposed residential development, and other land use conflicts arising from future residents seeking to prevent expansion of the BIA. Mr Welchman was of the opinion (ex D, p 5) that odour levels from the BISTF at the proposed residences would meet the EPA's odour requirements and therefore not cause nuisance. He disputed the validity of the predicted odour levels associated with the expanded BISTF as modelled in the TAS Report, however, in any event, that report predicted odour levels associated with an expanded BISTF to be below the EPA's odour criterion of 2 odour units (99th percentile, nose response time average) (OU) on the land the subject of the application. Mr Welchman considered the impacts of an expanded BISTF, commenting (ex D pp 7-8) that there are existing constraints on the BISTF, being the existing residence located south of the intersection of Bomen Road and Old Bomen Road within the 400m buffer required by the former Department of Urban Affairs and Planning Guidelines (1996), and the existing approval for the BISTF which specifies that no odour is to leave the site, and two existing houses to the north and one to the west of the BISTF which are predicted to have greater than 10, 5 and 5 OU respectively. In his opinion the existing constraints on the BISTF are more likely than this proposed development to limit the expansion of the BISTF.
2. In relation to other industries, Mr Welchman noted that the Land is more than 1km from existing industrial uses in the BIA including Teys, and there are a number of existing residences in closer proximity including those on East Street, Old Bomen Road and Bomen Road (ex D, p 11). Based on his modelling, he was of the opinion that predicted odour levels due to the BISTF and Teys are below 3 OU and equal to or below 2 OU west of East Street and west of Old Bomen Road; the 2 OU contour falls on the boundary of the site with a negligible proportion between the 2 OU and 3 OU contours; inclusion of the BISTF does not change the outcome of the odour modelling to a significant extent; and the land that is the subject of this development application is entirely outside the 2 OU contour. Mr Welchman concluded that industrial activities within the BIA could achieve an odour criterion west of East Street and Old Bomen Road of 2 OU, which corresponds to a population of 2000 people (ex D, pp 15-16).
3. Mr Welchman addressed the amenity expectations of new residents, noting the expectation of the POEO Act that odour emissions from industrial activities will be progressively improved over time; in his opinion the existing constraints are more likely to influence the environmental performance of activities in the industrial area than the development of this proposal (ex D, p 17-18).
4. Mr Welchman considered the odour complaints data. In his first statement of evidence he considered the data in the Edge Planning Report, being complaints received by the EPA during the period 1996 to (part) 2013 which referred to industries in Bomen, namely Teys, Heinz and Southern Oil, and secondly further data provided by the EPA by email dated 8 April 2015 that covered 2013, 2014, and part 2015. That data was not differentiated by the industry or activity thought to be causing the odour that was the subject of the complaint.
5. In his second statement of evidence (ex E) Mr Welchman considered documents provided on 4 June 2015 by the EPA/Office of Environment and Heritage in response to subpoenas for complaints regarding the BISTF and the Teys abattoir from complainants who identified their residential address as being Cartwrights Hill during the period January 2001 to May 2015. Mr Welchman regarded this as data as more relevant than the earlier data, which he noted had included complainants with addresses in both Cartwrights Hill and Bomen. The critical findings noted in this report in relation to the 147 odour complaints for that period are as follows: 1. The level of odour complaints has dropped substantially in recent years, which is likely due to the work done by Teys and other industries to improve odour management and reduce odour emissions; 2. On average 88% of odour complaints from Cartwrights Hill were attributed to Teys; 3. Since 2009 no odour complaints by Cartwrights Hill residents were attributed to Southern Oil and only one was attributed to an industry other than Teys (Heinz, in 2012); 4. Since 2013 only six odour complaints were recorded and five were attributed to Teys; for one complaint in September 2013 the odour may have been Teys or the saleyard; 5. No odour complaints were attributed to the BISTF by residents of Cartwrights Hill, and there were no odour complaints that identified odour characteristics that could potentially be attributable to the BISTF; 6. For complaints where no source was identified by the complainant the characteristics of the smells reported would indicate that none were attributable to the BISTF; 7. For the 13 complaints where premises or operations other than Teys or BISTF were identified as the source, based on the characteristics of the odour reported none were attributable to the BISTF.
6. Mr Welchman and Mr Whitworth discussed the issues of odour and planning, and provided a joint report (ex 11) in which they discussed the EPA odour criteria; BISTF odour; expansion of the BISTF; and development at BIA. They agreed that the EPA odour criteria are tools for assessment of where an existing industry is known to be causing odour problems, for assessment of potential odour impacts of a new industry or associated with expansion of an existing industry, and to inform land use planning processes; and in each circumstance the odour criteria are used in conjunction with a dispersion modelling study. They disagreed as to whether a valid cumulative odour assessment has been undertaken: Mr Whitworth considered that a cumulative assessment based on all existing or potential future industry is required and that no cumulative impact study has been commissioned by the Council or the EPA since the upgrade of the Teys abattoir or the TAS study, whereas Mr Welchman considered that a valid cumulative odour assessment has been conducted based on his modelling building on the Holmes 2008 report, the modelling conducted by Teys as a condition of its development consent, and the modelling of the BISTF conducted by TAS.
7. Mr Welchman and Mr Whitworth agreed that there are no odour complaints about the BISTF and that the modelling of the 2 OU contour from the BISTF is contained well within its property boundaries; Mr Whitworth noted that there are only 5 properties between the BISTF and the proposed residential development that might complain, and referred to the potential precedent that approval of the 26 lots creates. They agreed that expansion of the BISTF would need further environmental assessment which would need to consider odour and other landuse conflicts, and that there are already five dwellings closer than the proposed lots that would need to be considered in that assessment. They agreed that any new development at Bomen would require its own environmental assessment and in the case of scheduled premises an EPL under the POEO Act; that any operation would be required to meet the requirements of any conditions of approval and EPL including compliance with s 129 of the POEO Act; and that any assessment and licensing process would require the operation to be designed to comply with the requirements of the Clean Air Regulation and the NSW Technical Framework on Odour which identifies the need to apply best practice in management and control of odour emissions.
8. In oral evidence Mr Whitworth confirmed his concern that introduction of the 26 lots would increase the potential for complaints, whereas Mr Welchman's opinion was that there are existing residences closer to the industrial area and the BISTF and so the development of the land would not place an additional constraint on industrial development in the industrial zoned area, as there are people already there who may experience an odour and complain (T 2/7/15, p 63). Mr Whitworth referred to the EPA licensing process which is on a risk based approach, and that the EPA has identified that simply responding to controls on individual development applications is not sufficient and a strategic planning approach is needed that sees a reduction in the number of potentially affected receptors in the area (T 2/7/15, p 64). Mr Welchman agreed that odour assessment is risk based and described as risk based in the guideline documents because it looks at criteria of between 2 and 7 OU depending on the population of an area. He agreed that on a risk based approach the more people in an area exposed to odour the more chance that someone would be offended (T 2/7/15, p 64). He also agreed that the fact that the modelling predicts 2 OU would not mean that any residential population in the 2 OU contour would not sense odour, and that persons outside the 2 OU contour might also sense odour (T 2/7/15, pp 65-66).
9. Mr Welchman stated that in his assessment he had used the model from The Odour Unit which had assessed Teys, and details from the Todoroski report for BISTF. While he had not carried out actual odour testing, Teys had employed The Odour Unit over a number of years to collect odour samples at their facility and Todoroski had analysed odour samples from the BISTF in his report. While he supported the proposition in the Edge report that the HAS report and Todoroski were not reliable, he used the data that was valid and reasonable to be included in his modelling. His concerns relating to the HAS report were that it relied on odour sampling that predated the current operations of Teys, and in relation to Todoroski, he disagreed with its expansion scenario for the BISTF (T 2/7/15, pp 66-67). His cumulative modelling did not include other industries currently operating in the BIA that produce odour emissions (T 2/7/15, p 67). The EPA's framework document suggests that cumulative assessment includes odours that are like in terms of character and not odours that are unlike in terms of their character. In response to questions about the possibility of an expansion in the BIA that generated odour greater than the 2 OU at the 26 residences, Mr Welchman noted that the expectation on a new industry would be that it needs to comply with the offensive odour provisions of the POEO Act. The EPA's technical framework would suggest that a future industrial activity that generated like odours to Teys or the BISTF would need itself to consider cumulative impacts with any like activities and take account of that in their determination (T 2/7/15, p 73). Mr Welchman was not aware of any environment protection licence in NSW which authorises the emission of offensive odour to provide a defence to s 129 of the POEO Act (T 2/7/15, p 75).

Findings

1. The central difference between the approaches of Mr Welchman and Mr Whitworth can be described as the difference between the strategic approach adopted by Mr Whitworth and the focus on the subject development adopted by Mr Welchman. Mr Welchman relied on his dispersion modelling and the other odour assessments for his conclusion that residential development on the Land will not experience offensive odour as a result of the normal operations of the BISTF and Teys (ex 11, para 6); and that if an upgrade or expansion of the BISTF increased the scale of odour emissions by a factor of 4, the 2 OU contour would still remain inside the property boundary of the BISTF (ex 11, para 11). In contrast, Mr Whitworth identified ongoing concern from the EPA that there is a potential for residents at Cartwrights Hill, both existing and future, to make complaints about industry at Bomen on the basis of odour and that it had sought a strategic planning response to limit the number of potential receptors (ex 11, para 6); and noted the potential precedent that approval of the 26 lots created for a further 142 lots (ex 11, para 8, 10).
2. The NSW Technical Framework for the Assessment and Management of Odour from Stationary Sources in NSW (2006) provides in Table 3.1 a range of odour assessment criteria from 7 OU for a rural single residence (≤ 2) to 2 OU for an urban area (≥ 2000) and/or schools and hospitals (ex 4, p 15). I accept the agreed evidence that this framework is appropriate in an assessment of where an existing industry is known to be causing odour problems, for assessment of potential odour impacts of a new industry or associated with expansion of an existing industry, and to inform land use planning processes.
3. It was common ground that the BISTF is required to operate in accordance with its approval, the EIS and the supplementary EIS, and that accordingly no odour that is generated by the facility is to leave the site and plant boundary. I accept the agreed expert evidence that expansion of the BISTF would need further environmental assessment including relating to odour, and that there are already five dwellings that would need to be considered in that assessment; and that any new development in the BIA would also need environmental assessment, and if scheduled premises, would be required to meet the requirements of any condition of approval and EPL including compliance with s 129 of the POEO Act. I accept the agreed evidence that the EPA licensing process is on a risk based approach, and that odour assessment is risk based with the criteria of between 2 and 7 OU dependent on the population of an area; and that the more people in an area exposed to odour the more chance that someone would be offended, and complain.
4. While Mr Whitworth would have preferred a cumulative impact study commissioned by the Council or the EPA, he acknowledged that he does not have the technical expertise to review the modelling undertaken by Mr Welchman in his evidence. I accept the evidence of Mr Welchman based on his dispersion modelling relating to odour emissions from the BISTF and Teys that the Land is entirely outside the 2 OU contour, and thus would meet the requirement for an urban area, and that there are other existing residences closer to the BISTF that would impose a constraint on expansion of the BISTF, given the requirement for a 400m buffer. I accept Mr Welchman's evidence that Teys is presently meeting its consent condition that it meet 4 OU at its nearest receptor and that it meets 2 OU at the Land (T 2/7/15, p 73).
5. However, the evidence of complaints from residents of Cartwrights Hill (ex E) confirms Mr Welchman's evidence as to the variability of responses to detection and responses to type and magnitude of odour between individuals (ex D, p 25). That evidence also supports the evidence of Mr Whitworth that odour is different to noise which is measurable and distance related, which is why the EPA manages the licensing process on a risk based approach in responding to concerns and complaints made by residents. As Mr Welchman acknowledged in oral evidence (T 2/7/15, pp 64-65), that means that the more people there are in area exposed to odour, the more chance that someone would be offended by an odour.

Planning evidence

1. The expert planners differed as to the approach to be adopted in assessment of this application. Mr Salvestro's opinion was that the assessment of the application should be limited to the 26 residential lots proposed, as the future use of the residue parcel is not the subject of the application, whereas Mr Whitworth considered that approval of this application would create an adverse precedent for a further 142 lots with an increase in potential for complaints. The planners also disagreed as to the weight to be given to various planning controls and studies, and to the strategic intent for the Land.
2. While they agreed that the BIA is an important regionally significant employment area, they disagreed on the potential of residential development of the Land to adversely impact on the operation of current and future industry in Bomen. In Mr Whitworth's opinion additional residential development would likely experience noise, odour and other impacts from both existing and potential future industries at Bomen. Recent changes to the licensing process mean that the EPA uses complaints as a factor in making a decision on whether tougher environmental standards are needed in issuing licences, and increasing the number of potential receptors in the area increases the potential for complaints and hence the standards that heavy industry may need to meet: one of the strengths of the BIA is its current capacity to enable heavy and potentially noxious industries to locate without significant concern of land use conflict. Mr Salvestro noted the improved performance of industry, the effectiveness of the initial separation landuse policies that have occurred through downzoning of the land east of East Street, zoning land for industrial uses further north and north west and the introduction of sustainable industrial development policy.
3. In their joint report (ex 5, p 3) the expert planners agreed that the strategic intent for the Land as shown on the Spatial Plan map in the Wagga Wagga Strategic Spatial Plan 2013-2043 is as Rural; and that the Land is partially within 400m of the BISTF although there are different locations within the BISTF from where the 400m can be measured.
4. They disagreed as to the application of the WISDOM study; the relevance of cl 8.6.38 of the 2005 DCP; whether cl 7.8 of the 2010 LEP should be considered; and the potential odour impacts of the BIA on Cartwrights Hill. Mr Salvestro considered that the industrial planning model in WISDOM has had a significant influence on the suite of planning controls and guidelines applying to the Land, whereas Mr Whitworth noted that that study did not anticipate the location of the BISTF, and that the final zoning and development control plan for Bomen did not follow the Landuse Distribution Map in the WISDOM study. Mr Whitworth considered that cl 8.6.38 of the 2005 DCP is a relevant consideration in restricting consideration of residential development on the Land so as to ensure that development is compatible with the adjoining BIA, whereas Mr Salvestro considered that it does not restrict consideration of residential development, and was aimed at ensuring that any new development would not have an adverse environmental effect or create adverse conflict between new residents an industries. Mr Whitworth considered that cl 7.8 of the 2010 LEP is relevant as it will influence the desired character of surrounding development, whereas Mr Salvestro's opinion was that it should not be considered as it does not apply to the Land and there are adequate planning controls and guidelines in the applicable LEP and DCP. In relation to potential odour impacts of the BIA, Mr Whitworth noted the odour assessment prepared for the abattoir and BISTF which acknowledged some odour impacts with the likelihood of a 3OU contour applying to the area, whereas Mr Salvestro relied on the Teys AUSPLUME report which identifies that the Land is not affected by odour, and Mr Welchman's odour analysis that the Land is outside the 2OU contour.
5. The planners disagreed as to the characterisation of the uses in the Cartwrights Hill area, which both agreed to be the area identified as the Cartwrights Hill suburb in red on the city plans (ex H). Mr Salvestro considered it to be an area in transition, involving both rural residential and residential uses as a result of its inclusion as a residential neighbourhood of the city since 1953; whereas Mr Whitworth considered it hard to characterise the area due to the variety and nature of the uses many of which are predominantly rural. In oral evidence Mr Salvestro responded to the rezoning of the land to the south of the Land, stating that the characterisation of the current area is characterised by the transitional nature of how the dwellings and subdivisions have occurred. In his opinion the suburb is a combination of larger sized lots and smaller sized lots. He agreed that when driving through the area other than along the two street frontages on Cooramin Street and East Street it is effectively rural land and on those two frontages some housing with kerb and guttering and smaller sized lots of dwellings; that is the transition nature, with residential suburbs in accordance with the 1985 LEP zoning plan (T 2/7/15, p 87). In Mr Whitworth's opinion the area is more rural and rural residential in nature; while there are some small, 700-1000sqm lots on East Street and Cooramin Street, the vast majority of the other lots in the area are 2ha and above, and there is some development subdivision potential as a result of the rezoning in Amendment 13 to the 2010 LEP. In his opinion the proposed development is inconsistent with the rural residential character, particularly given that those lots face onto an 80km an hour rural road, so it is effectively creating a small patch of suburbia in the middle of a rural residential area (T 3/7/15 p 103). In relation to the rezoned land to the south, at a 1ha minimum lot size he would not expect to see an extensive remaking of the infrastructure in the Cartwrights Hill area (T 3/7/15, p 104).
6. The planners disagreed as to whether approval of this application would provide a precedent for the subdivision of the residue lot. Mr Salvestro considered that that land would have to be subject to the rigours of a further development assessment. While Mr Whitworth agreed that any further subdivision application would need to be assessed on its individual merit, he considered that it would be hard to say that if a development approval was given for the 26 lots the reasoning and rationale for that would not equally be applied to any subsequent development application over land currently zoned for residential development (T 2/7/15, p 89). The 26 lots are based on a subdivision pattern that was derived from the 1985 LEP which had an underlying master plan for the Cartwrights Hill area when it was intended that the Cartwrights Hill area be a residential development based on the 1953 original zoning. The residue land is still zoned residential as a result of the deferral, and approval of this application would create a substantial precedent for the Council to consider any further applications. The zoning creates the expectation that there might be additional development to come.
7. The planners agreed that there is ongoing growth in Wagga Wagga that requires at least 360 dwellings per annum. They disagreed as to the available dwelling potential. Mr Whitworth considered that there is an approximately 5,400 dwelling potential in zoned residential land under the 2010 LEP, based on data from the Spatial Plan, and that the addition of 26 lots at Cartwrights Hill would make little difference to land stocks, while reducing the attractiveness of the BIA because new residents would likely demand higher environmental performance standards making the area less attractive to industry. Mr Salvestro considered that the city is down to around 4,000 potential lots of zoned land, and there is no additional zoned land being put forward by the city; the subject land is already zoned and has been part of the equation to supply the city for many years. In oral evidence Mr Salvestro accepted that the number of lots at 26 is probably not even 5% of the potential lot generation for the city (T 3/7/15, p 101), and agreed that the predictions are for up to 4,000 additional jobs in BIA as it expands, including an additional 300 jobs at Teys at 300 (T 3/7/15 p 102). In oral evidence Mr Whitworth agreed that there are not less than 4,000 odd greenfield land released lots that are currently zoned and available for development, and noted that the Counci has identified in the Spatial Plan the capacity for a further 6,000-8,650 dwellings in additional sites that can be rezoned (T 3/7/15, p 102). Mr Salvestro noted constraints on development of some of the developing residential areas including land at Lloyd which has salinity issues, and at Gobbagombalin, which involves at least six landowners who are in no rush to develop and are using the land for rural activities. In his opinion, while there may be 4,000 appropriately zoned lots that includes the land at Lloyd and Gobbagombalin which he did not consider could provide serviceable land in a timely manner.

Findings

1. Based on the view, confirmed by the aerial photographs in exhibit H, I prefer Mr Whitworth's description of the characterisation of uses in the Cartwrights Hill area to that of Mr Salvestro. Other than the smaller residential lots on East Street and Cooramin Street to the south of Old Bomen Road, the majority of the lots are large, being in the order of 2ha or more, and a mix of rural and rural residential in nature.
2. Mr Salvestro characterised the area as being an area in transition to a residential neighbourhood as contemplated in the 1985 LEP, however based on the planning history summarised at paragraph [28] above, I accept the submission of the Council that that has been overtaken by subsequent planning decisions, and that as a consequence, the only part of the lot layout of the 1985 LEP for small lot residential development in Cartwrights Hill that could now be achieved would be on the Land.
3. The land to the south of Old Bomen Road (other than the 15ha area of land to the east of East Street that also remains deferred) is now zoned R5 Large Lot Residential under the 2010 LEP. Whether or not the noise and odour assessments that formed part of the decision to backzone that land were flawed, that area is now subject to a minimum 1ha lot size, and consideration of potential impacts of odour and noise from the BIA and the BISTF would be required before consent could be granted to development (cl 7.8). Mr Salvestro agreed that in terms of planning the areas to the south have been rezoned at far lesser densities than what is currently permitted because of the potential impacts of industry on those areas (T 2/7/15 p 92). Mr Salvestro accepted that approval of this application would result in 26 small residential lots, similar to that expected in a R1 General Residential zone (T 2/7/15, p 93); and that residents of properties on 800sqm with houses would have an expectation of amenity such that they would not expect to hear noises or smell odour from the industrial area (T 3/7/15 at p 109). I accept the Council's submission that if the land to the south is developed to its potential of 1ha lots, approval of this subdivision application would result in an area of small lot residential development between rural residential land and the BIA.
4. In written submissions the applicants addressed the effect of cl 8.6.38 of the DCP, whether it amounts to a moratorium on development applications for residential subdivision and if so, whether it is invalid or of no legal effect. It is not necessary to consider that issue in detail, as ultimately the Council did not make any submission that this provision operates as any form of moratorium or barrier to consideration of this application. That it does not is demonstrated both by the Council's acceptance, assessment and refusal of this development application, and by its granting of consent to three development applications for residential subdivision in 2013. Whether or not cl 8.6.38 has, as Mr Whitworth described it, effectively operated as a self-agreed and self-imposed moratorium by the landholders in the area and the Council, Mr Salvestro accepted (T 2/7/15, p 90) that the effect of cl 8.6.38 was to require the Council to consider the impact of development on the industrial land on residential land, and that it required an assessment in a sustainable manner of the potential impact of land uses in the area.
5. It was common ground that the BIA is identified as strategically important to the economy of Wagga Wagga, the Riverina and the region and to the State, particularly the rail corridor. The potential for conflicts between industry and more sensitive uses has been recognised for many years, in particular since the WISDOM study of 1995, which Mr Salvestro agreed recognised the importance of the industrial area to Wagga Wagga, the BIA in particular, and provided a model to ensure that industry was located in appropriate areas (T 2/7/15, p 91). The potential for conflicts is also recognised in the correspondence from DECCW in 2010 encouraging the Council to maintain suitable separation distances between BIA and residential uses (ex 2, tab 10), and that from the EPA in 2013 opposing additional lots in Cartwrights Hill which would increase the number of noise and odour sensitive receptors (ex 2, tab 11).
6. The Council accepts that the BISTF operations must be carried out in accordance with the EIS and amended EIS, and that as a consequence there can be no acoustic or odour impacts from the BISTF on the Land that would be lawful. It was common ground that odour from the BISTF would meet the definition of "offensive odour" under the POEO Act, and as the BISTF is a scheduled activity, emission of offensive odour would be an offence under s 129 of the POEO Act. I accept that the appropriate approach is that adopted in Bailey v Oberon Shire Council [2006] NSWLEC 815 at [51] that it would not be appropriate to rely on an unlawful activity to sustain an objection to a proposed development and use that objection to warrant or contribute to the refusal of that application.
7. As discussed above, in order for the BISTF to comply with its obligations relating to noise, for it to operate at 100% operating capacity, ameliorative work would be required. Future expansion of the BISTF or development of industry in the BIA would require consideration of the INP criteria, and, as acknowledged by Dr Tonin, may require consideration of ameliorative measures for particular industries in order to meet an acceptable level of noise applying the amenity criterion. However, that is not the only noise mitigation strategy identified in section 7.1 of the INP, which at section 7.5 ranks land-use controls as a long-term strategy preferable to other measures when such strategic decisions are possible as it separates noise-producing industries from sensitive areas, above control at the source.
8. In relation to odour, the evidence is that the BISTF is complying with requirements as to odour; and that Mr Welchman's modelling predicts compliance with the EPA guideline of 2 OU at the Land. However there are other odour issues in relation to the present operation of Teys in the BIA, as reflected in Mr Welchman's analysis of complaints from residents at Cartwrights Hill. Mr Welchman accepted that even though modelling showed 2 OU outside the boundary of potential residences, persons in proximity may still sense that odour. I accept, based on the correspondence from DECCW, which was supported by Mr Welchman in his oral evidence (T 2/7/15, p 72), that the expectation on a new industry is that it comply with the offensive odour provisions of the POEO Act, and that any new or expanded industrial activities in the BIA would be required to comply with environmental management standards to limit odour emissions and the requirements of the POEO Act and any EPL if a scheduled activity. As is the case with noise, that may require ameliorative measures to reach acceptable levels.
9. The central issue is the strategic planning question. It was common ground that under the 1985 LEP, which remains the applicable local environmental plan, the form of residential development contemplated in the proposed subdivision is permissible; that the small lot subdivision would also be consistent with at least one of the objectives of the residential zone, as required by cl 9(3) of the 1985 LEP; and that the configuration proposed in this application for the 26 lots would not involve subdivision for residential purposes of any of the land identified as 6a in the 2005 DCP.
10. As noted above, the planning experts differed as to whether approval of this application would create an adverse precedent for a further 142 lots with an increase in potential for complaints. Mr Whitworth's calculation of that number comes from the indicative diagram provided for Stage 2 in the SEE (extracted in paragraph [3] above), and on that basis, his evidence was that the total subdivision yield of 168 lots would generate approximately 420 people based on an average occupancy rate of 2.5 people per dwelling from the 2011 Census analysis (ex 4, p 7). The number was not disputed, the contest being whether future use of the residue lot was properly the subject of consideration in this application in terms of precedent.
11. The starting point for consideration of precedent is the judgment of Lloyd J in Goldin & Anor v Minister for Transport (2002) 121 LGERA 101. Lloyd J was determining an appeal from a decision of the then Senior Commissioner who had dismissed appeals in four separate applications for construction of structures on the waterfront of four properties in a street in Castlecrag. The Senior Commissioner had noted that although the notion of precedent "is treated with considerable caution" by the Court, "in this instance the pressure to achieve a further 13 shoreline facilities, given the existence of 25 lots that could be seen as benefiting, seems likely to be an inevitable consequence of approvals in this location". In addressing a ground of appeal that it was an error of law for the Senior Commissioner to have determined the matter on its potential precedent, Lloyd J considered the relevant authorities, commencing with the decision of Sugerman J in Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177, who had held (at 182) that applications must be considered on their own merits, and that it would be unduly onerous to refuse an application, unobjectionable on its individual merits, "on the mere chance of probability that there may be later applications sufficient, if approved, to produce in their totality some undesirable condition". At [31] Lloyd J noted that the authorities established that the precedent effect of a particular proposal is a valid consideration. Those authorities included the decision of the Court of Appeal in BP Australia Ltd v Campbelltown City Council (1994) 83 LGRA 274, holding that the primary judge had not erred in giving weight to "the risk of establishing a precedent readily invokable by prospective developers of the residue of the undeveloped 'island' land". Lloyd J concluded: 34. In the present case the Senior Commissioner did not err in law by taking into consideration the fact that approval of the applications would be a precedent. That was not an irrelevant consideration. It was a relevant consideration on the facts and circumstances of the case as found by the Senior Commissioner, namely: that the proposed developments were not themselves unobjectionable, having, as the Senior Commissioner found, an undesirable visual impact on a largely undeveloped shoreline; and that there was more than a mere chance or possibility that there may be later undistinguishable development applications of the same class - or, as the Senior Commissioner found, "would lead inexorably to a further three over time" and "pressure to achieve a further 13 shoreline facilities" - also described by the Senior Commissioner as "likely to be an inevitable consequence".
12. The applicants submit that the present application is not objectionable in itself, being consistent with the Residential 2 zoning under the 1985 LEP and the DCP, and there being no probative evidence of land use conflict or that approval of this application will open the floodgates to residential subdivision in the Cartwrights Hill area. The Council does not concede that the application is not objectionable in itself, and submits that approval of this development could lead to further development and a very large increase in receptors, from 26 to 168 lots and 70 people to 420.
13. I accept that further residential subdivision would bring additional sensitive receptors to the area. However, for the reasons which follow, I am not satisfied that, whether or not this application should be described as "unobjectionable" in itself, the evidence establishes that there is more than a chance or possibility of further applications, or that any such applications would be undistinguishable from the application the subject of this appeal such as to give rise to a precedent that would be a proper basis for refusal of this application. In this appeal there is no application for residential subdivision of the residue lot proposed to be created. On the evidence before the Court it could not be said that an inevitable consequence of approval of this application would be a further application for approval of residential subdivision of the residue lot whether for an additional 142 lots or some other number. There is no evidence as to the possibility of an application in relation to the other area of deferred land to the east of East Street. There is no question that any future subdivision application would have to be assessed on its merits: factors that would need to be considered for the residue lot include the strip of 6a subzoned land in the residue lot, and the closer location of the residue land to the BISTF with at least some part of it within the 400m buffer required for the BISTF; and for the other deferred area, potential noise and odour issues given its closer proximity to the IN2 and IN1 zoned land in the BIA.
14. The applicants' position is that significant weight must be given to the zoning, in particular in the context where the possibility that the zoning may change cannot be regarded as either imminent or certain. The applicants rely on the decision of McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, where his Honour stated: Significance of the zonings 115 The context in which the issues in this case must be resolved includes the history of the use of the land and the contribution which it now makes to the existing natural environment. Although zoned industrial, that zoning was imposed at a time when the community's understanding of the significance of some elements of the natural environment was not as mature as it now is. Consideration of matters of inter-generational equity and the conservation of both biological diversity and the ecological integrity of land were not such significant elements of environmental decision-making as they are today. 116 Notwithstanding the fact that the ecological integrity of the site may be threatened if the major road reservation were utilised for its purpose, I am satisfied that this is not a significant matter in this case. The reservation was also imposed at a time when the ecological significance of the area was unlikely to have been given any, or at least any mature, consideration. It would be inappropriate to make a decision in the present case upon the assumption that construction of the proposed road is inevitable. 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.
15. The history of the zoning of the Land is outlined at paragraph [28] above. As that summary indicates, during the period of preparation of the 2010 LEP and its subsequent amendments, planning decision-making has been in the hands of a succession of planning panels. Copies of minutes of meetings of the Wagga Wagga City Council Planning Panel, the Wagga Wagga Interim Joint Planning Panel and the Southern Joint Regional Planning Panel between June 2010 and October 2013 are in evidence (ex K). It is not clear whether this material is a comprehensive documentation of the planning decision-making during that period, however it does indicate the complexity of the task, including advice in a letter dated 10 February 2011 from the Minister for Planning to the Chair of the Wagga Wagga City Council Planning Panel and the Wagga Wagga Interim Joint Planning Panel that under its terms of reference and s 54 of the Act the former panel could not be the Relevant Planning Panel for the preparation of a planning proposal to initiate a rezoning of land deferred under the 2010 LEP (including land at Cartwrights Hill). This documentation also confirms a concern by Council officers as to potential odour and noise impacts, as recorded in the minutes of the Southern Joint Regional Planning Panel meetings of 5 July 2012 and 16 May 2013. At the latter meeting the panel resolved to request the Council to commission further odour and noise impact studies by independent bodies.
16. Having regard to the totality of the evidence, I agree with the Council that the strategic intent for the Land is based on a need to reduce the potential for land use conflict between the industrial uses to the north east and the existing and proposed residential uses in Cartwrights Hill. That strategic intent is evidenced in the following: 1. the response of the Council to the WISDOM study in the addition to the 1985 DCP in 1995 of cl 8.6.38; 2. the recommendations for backzoning of land in the area in the Vision 21 and 2003 Habitat Planning reports; 3. the attempts between 2008 to 2013 to rezone the land to RU6 or R5 with varying, larger, minimum lot sizes; 4. the increase in industrial zoned land in the BIA by 2,000ha under the 2010 LEP with provision for a buffer for noise and odour; and 5. the backzoning of the land to the south of the Land by Amendment 13 with that land now zoned R5 Residential with a 1ha minimum lot size, and the requirement in cl 7.8 to consider odour and noise impacts from the BIA and the BISTF.
17. It was common ground that there is no current planning proposal for a rezoning of the Land. Accordingly, it must be accepted that any possible rezoning is not "imminent", in the sense discussed in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 at [51]. Any planning proposal to achieve a rezoning would require compliance with Part 3 of the Act. The correspondence from the Department relating to Amendment 13 supports the evidence of Mr Salvestro (T 2/7/15, p 93) that that process would likely require a strategic exercise, including a re-evaluation of the noise and odour data. The expert evidence in this appeal has identified a number of issues with the technical reliability of the earlier assessments, including HAS and the Todoroski modelling, as acknowledged by Mr Whitworth (T 3/7/15, p 119). I accept the evidence of Mr Whitworth, which was based on his experience as a senior officer in the Department, and supported by the correspondence from the Department, that while there could be no predetermined outcome in the proper conduct of the Part 3 processes, it would be difficult for any planning process to identify that a residential zone would be the most appropriate outcome for the site. The Department did not consider that the proposed rezoning to RU6 under Amendment 13 had been sufficiently justified given the significant economic impact on landowners and uncertainty regarding the future role and upgrade of the BISTF; the correspondence extracted in paragraph [41] above indicates that any rezoning proposal would first have to clarify the future role of the BISTF and the impact of potential expansion of that facility; and that correspondence indicates that if no expansion of the BISTF is proposed the most likely outcome would be rezoning to R5 Large Lot Residential and/or RU1 Primary Production.
18. The consequence of Amendment 13 to the 2010 LEP is that the Land, which remains deferred, is between the BISTF and industrial area and the rezoned land to the south which is further away from the BISTF and the BIA. Any development application for land in the backzoned land to the south will be subject to the consideration required by cl 7.8 that noise and odour from Bomen is considered in the development assessment process for applications for the sorts of uses that might otherwise be allowable in an R5 zone, as well as helping to identify for intending purchasers that they are buying land in an area that is potentially affected by land use conflict from the BIA. While the Land remains deferred, what emerges from the documents in exhibit K, and the reasons for the lack of success in the Council's attempt to rezone the Land in Amendment 13, is that while there may be an ongoing debate as to whether the appropriate zoning for the Land is R5, RU1 or RU6, there is no suggestion that a zoning permitting small lot residential development is appropriate.
19. Having regard to those factors, I am not persuaded that the present zoning should be given the significant weight urged by the applicants. I agree with Mr Whitworth that the 2 Residential zoning under the 1985 LEP can be regarded as historic, reflecting strategic planning decisions made as far back as 1953 when Cartwrights Hill was considered as a potential residential area of Wagga Wagga; and that has been overtaken by the development of the BIA and recognition of its importance to the city and the region, and the acknowledgement both in advice from agencies such as DECCW and in the Council's own strategic planning studies about the need to minimise the impacts of noise, odour and dust on sensitive land uses by ensuring adequate separation between incompatible land uses. In that context, while the residential zoning of the land must be given weight, it could not be regarded as determinative.
20. I am not persuaded that approval of the present application would be consistent with the strategic intent for the future development of Cartwrights Hill, including as identified most recently by the rezoning of the land to the south under Amendment 13. Whether that would be a basis sufficient to warrant refusal of this application is the issue. It is relevant in that consideration that despite the attempts to rezone the Land, starting in 2008, the Land remains zoned so as to permit the subdivision for residential purposes proposed in this application; that in May 2013 the Southern Joint Regional Planning Panel requested the Council to commission further odour and noise impact studies by independent bodies, which, on the evidence before the Court, has not occurred; and that a significant issue in the further deferral of land under Amendment 13 to the 2010 LEP in February 2015 was the uncertainty as to any expansion of the BISTF. Those matters need to be clarified in the interests of certainty. In that consideration, accepting Mr Salvestro's evidence as to constraints on development of some of the developing residential areas, in the context where there would be in the order of 4,000 appropriately zoned lots and a housing demand of 360 dwellings per annum, I would not regard the contribution of 26 residential lots as sufficiently significant to warrant approval of an application that would otherwise be inconsistent with strategic planning.

Conclusion

1. For the reasons above, I am satisfied that there are no existing noise or odour impacts on the Land from the BISTF; that there could be no impact of noise or odour on residential development of the Land from the BISTF that would be lawful; and that if the BISTF is to operate at 100% capacity, or to expand, work would be required to ameliorate noise. The evidence is that there are no current plans to expand the BISTF. I accept that odour impacts from the BIA presently would meet the EPA requirements. I accept that future development in the BIA is likely to require any expanding or new industry to meet higher acoustic or odour requirements, both because of the operation of the INP amenity criterion in relation to noise, and to comply with the POEO Act and to minimise complaints in context of the EPA's risk-based regulatory approach in relation to odour. I agree with the Council that potential constraints on development in the BIA, which is acknowledged as strategically important to the economy of the area, the region and the State, are a relevant consideration under s 79C(1)(b) as a likely impact of the development, consistent with Project Venture Developments v Pittwater Council [2005] NSWLEC 191. I do not accept the Council's proposition that approval of this application would establish an adverse precedent such that this application should be refused on that basis. I agree with the Council that the provision of these 26 lots in context of the land available to meet Wagga Wagga's housing needs would not tip the balance in favour of approval.
2. The issue is whether approval of residential development of the Land would, as the Council contends, be inconsistent with the likely future zoning of the Land and the desired character of development on the adjoining land, and therefore not be in the public interest. This is not a concern for consistency with desired future character, it being common ground that the applicable planning controls impose no such requirement. Rather, it is an issue going to the broader strategic planning direction for the Cartwrights Hill area. I am not persuaded that approval of residential development on the proposed 26 small lots, generating an expectation of appropriate amenity, between the BISTF and the industrial zoned area of the BIA and the predominantly large lot residential and rural uses to the south, is consistent with either the characterisation of the current area, or the future character of the area as identified most recently in the backzoning of the land to the south. The strategic planning approach reflected in the backzoning of the land to the south in Amendment 13, which recognises the potential acoustic and odour requirements for expanding or new industry in the BIA, is consistent with the INP preference for land-use controls as a strategy to separate noise-producing industries from sensitive areas, and the minimisation of the number of people potentially exposed to odour who might complain. While the matter is finely balanced, approval of this application would not be consistent with the strategic intent for the future development of Cartwrights Hill, and on that basis, would not be in the public interest, and consent should not be granted.
3. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No 13/0457 for the subdivision of Lot 10 DP 255059, Lot 1 DP 572883 and Lot 2 DP 612237 known as 1-101 Old Bomen Road, Cartwrights Hill, is refused. 3. The exhibits are returned except for exhibits A, L, 1 and 10. Linda Pearson Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 October 2015