Acquaro v Great Lakes Council - [2005] NSWLEC 582

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Acquaro v Great Lakes Council [2005] NSWLEC 582

PARTIES:
APPLICANT
Raffaele Acquaro
RESPONDENT
Great Lakes Council

FILE NUMBER(S):
10298 of 2005

CORAM:
Hoffman C

KEY ISSUES:
Appeal :- Bushfire requirements - access - public interest - zoning - endangered species - inaccuracy of description of agricultural processes involved - poor documentation - impacts unable to be properly assessed

LEGISLATION CITED:
Local Government Act 1919
Rural Fires Act 1997
Great Lakes Local Environmental Plan 1996
Local Government Act 1906
Environmental Planning and Assessment Act 1979

DATES OF HEARING: 01/08/2005, 23/09/2005

EX TEMPORE JUDGMENT DATE:
09/23/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr R Acquaro, self represented
RESPONDENT
Mr Rees, solicitor

JUDGMENT:

THE LAND AND
environment court
of new south wales

Hoffman C

23 September 2005
10298 of 2005 Raffaele Acquaro v

Great Lakes Council

JUDGMENT

1 This is a class 1 appeal No. 10298 of 2005 between Raffaele Acquaro and Great Lakes Council in regard to the refusal of a mushroom farm at Lot 1376 DP12277 Eastslope Way, North Arm Cove, Port Stephens.

2 The site is an allotment of 777 sq m area with frontage of 18.288 m to Eastslope Way and 42.6 m side frontage to Beechwood Crescent. The latter is on the north side of the lot. Both accesses are unmade roads with a dirt track within the roadway. The site is a relatively level one with about 2.5 m fall from Eastslope Way to the rear of the lot.

3 The whole area is open bushland with mature trees and the site has several mature trees as does its neighbours and the roadways, with grasslands between the trees.

4 The proposal is to put a steel framed and sheeted rural shed on the front part of the site with a 5 m setback to Eastslope Way and Beechwood Crescent and 3 m setback to the southern side boundary which adjoins another lot of similar size to the proposal, also owned by the applicant.

5 The applicant also owns the next two similar sized allotments up to the corner of Eastslope Way and Gloucester Street. Located on two of those lots closest to Gloucester Street is a public library building that the applicant owns and leases to the Great Lakes Council. Across Gloucester Street is the bushfire brigade building.

6 The subject site and the land south of it to Gloucester Street is all zoned Rural 1(a) under the Great Lakes Council Local Environmental Plan 1996. The same zone applied to extensive areas of bushland north and west of the site. South of Gloucester Street lots fronting Eastslope Way and eastwards of that to the waterfront are zoned Village 2. West of the lots fronting Eastslope Way in the village, the bushland is all zoned Rural 1(a).

7 In the village there are houses on many lots although some are vacant. The council recently approved a café and shop near the corner of Eastslope Way and Gloucester Street in the Village zone about 80 m from the site. It has a house attached. The nearest detached houses are just past the shop from the site. The applicant measured the distance at 120 m and this was not contested.

8 Maps of the area were tendered and revealed the whole locality between the highway a couple of kilometres north down to the waterfront is subdivided up into a township, most of it zoned Rural 1(a), with only the waterfront strip previously referred to along North Arm Cove and around to Heroes Bay and Lobito Point being zoned Village 2. Apparently it is what is called a paper subdivision designed by Walter Burley Griffin of Canberra fame.

9 The subdivision was registered in 1920, just after the Local Government Act of 1919. The Court was told therefore the apparent roads on the map were not public roads except for the Gloucester Road that led to the highway and the streets in the village. The non-public roads, the Court was told, are owned by a defunct company that used to have shareholders who are the owners of the 3000 lots zoned Rural 1(a). Apparently the many owners were intended to pay the defunct company an annual fee for the maintenance and use of the non-public roads.

10 Apparently council had never granted consent for work to be done on the roads, and development consent was required, thus most remained as bushland and only some had become dirt roads due to usage.

11 The current zoning requires a minimum holding of 40 ha for consent to a dwelling. Other rural uses permissible with consent did not need the minimum area however they were subject to a merit assessment and required development consent.

12 Returning to the proposal, as well as the shed the applicant showed a 4 m wide access driveway to the industrial sized sliding door of the shed. The enclosed part of the shed is 6.6 m by 8.7 m. On the north side of the shed is an open area 3.4 m by 8.7 m covered by the roof and having a concrete slab floor. The open part is for the storage of farm equipment.

13 The applicant also intended to store spent mushroom compost in plastic bags on the south side of the shed within the 3 m side setback. The Court was told the compost can only be used once per batch of mushrooms and is then sold off as garden fertiliser so the stored plastic bags would rotate as some were sold and new ones added.

14 Within the front setback to Eastslope Way is to be a Rural Fire Service water tank. Behind the shed are to be a clean-water storage tank with two others tanks involved in the mushroom farming process. A pump-out septic sewerage disposal system is proposed. A market garden area was originally proposed on the rear half of the lot but that had been deleted by the time of the hearing.

15 The respondent’s issues are:

Great Lakes Local Environmental Plan 1996

Bushfire Requirements

Planning for Bushfire Protection 2001

The land is in a bushfire-prone area and does not meet that requirement.

The Planning for Bushfire Protection 2001

Access

The road to the land should be upgraded and maintained at the applicant’s expense to meet the planning for bushfire protection requirements as well as the requirements of the respondent.

Public Interest

Local Government Acts of 1906 and 1919

Other Deficiencies in the Application

The proposed storage of unbagged spent compost outside the shed on the land is unsatisfactory in terms of odour, pest and disease management as well compost will become anaerobic.

16 The applicant’s issues in reply are from Exhibit D:

5.1 Bushfire Requirements

The council states that this property is within a bushfire-prone area. This means that the residential village is within the bushfire-prone area. There does not appear to be the same concern in keeping the APZ with their property boundaries.
The Planning for Bushfire Protection 2001 was written principally for new subdivisions,
Reference 3.2 of the council issues.

Access

The applicant refers to the statement of environmental effects transport and traffic issues and notes that a traffic analysis has been provided which concludes the usage is rated low. Council has not provided a standard for private roads therefore the applicant has not been able to cost any needed upgrade and provide a vegetation impact.

Public Interest

Future Zoning

Local Government Acts 1906 and 1919

Electrical Supply to the Shed

The applicant has contacted the local energy provider and has proposed the installation of power via underground trench. This option appears to be a better proposal for running power within the bushfire-prone zone. That means that overhead wiring is not necessary and would not lead to the loss of further trees.

Building Code of Australia

The applicant has listed some of the services that it may affect; that is the local road, Gloucester Street, and garbage services.

17 The table of amenities and services are:

List of Amenities	Responsibility	Level of Impact
Eastslope Way	Privately owned	Low
Pacific Highway	Low
Pacific Highway	Federal Government	Low
Power	Country Energy	N/A
Telephone	Telstra	Low
Water	Tank Water	N/A
Sewer – Pump out	Great Lakes Council	Low
Gas	Not available	N/A
Shops	None in NAC	N/A
Fire Protection	Rural Fire Services	Low
Medical (Hospital)	State Government	N/A

18 This is the end of the applicant’s issues.

19 Appearing for the respondent was:

Mr Rees, solicitor,
Mr Chappelow, delegate of the North Arm Association Incorporated being the only community body in the locality recognised by the Great Lakes Council;
Mr I Knight, resident objector of 72 East Lakes Way North Arm Cove;
Mr J Blackbourn, objector and resident of 22 Cove Boulevard North Arm Cove;
Mr J Swaddling, resident objector of 58 Cove Boulevard North Arm Cove; Mr K Duffy, resident objector of 95 Promontory Road North Arm Cove;
Mr J May, town planner of Great Lakes Council;
Mr M Bell, senior environmental ecologist, Great Lakes Council;
Mr J Davis, tree management officer of Great Lakes Council and
Mr J Hulme, development engineer for Great Lakes Council.

20 There was a large number of people at the on-site hearing, in the order of 50-60 persons. Due to inclement weather the hearing was held in the library close to the site.

21 Appearing for the applicant was:

Mr Acquaro, applicant and electrical engineer of 18 Geering Street, Gerringong, New South Wales and
Mr L Swift, supporter of the proposal of 54 Armitage Drive Glendenning, New South Wales, who also owned some of the rural 1(a) lots.

22 During the hearing the volume and size and type of tanks needed on-site was questioned. The Rural Fire Service require fireproof tanks for bushfire fighting so the tank in the front setback needed to be concrete or steel, not plastic, and hold 22,000 litres. Mr Acquaro said he would put in whatever was needed so long as it was the cheapest tank and that was likely to be plastic. It would be a tank 3.6 m diameter and 3 m high, the Court was told.

23 The mushroom process tanks required 13,500 litres so that meant three tanks instead of two as shown on the plans and these would be of a size 1.8 m diameter and 2 m high.

24 The clean water tank for use in the toilet and shower room in the shed, and to be the initial supply for the mushroom growing process, was not initially shown on the plans but it was calculated at requiring 23,000 litres due to the absence of any council water supply and the local rainfall averages and the likely usage demand.

25 This was also be a tank of 3.6 m diameter and 3 m high and when it was shown on subsequent plan it was behind the shed. This clean water was to come normally from rainfall collected on the roof of the shed. In times of low rainfall it would come in by tanker. No details of tank stands to elevate the tanks were mentioned. Presumably only the clean water tank would need elevation to about the height of the shower head in the shower room to provide water pressure and enable full utilisation of the water in the tank.

26 Inside the 6.6 m by 8.7 m shed is to be the shower room toilet previously mentioned. It occupies almost a quarter of the floor space. Beside it, occupying about a full quarter of the floor space, are 120 growing trays. The trays are about 0.6 m x 1 m each. Due to the confined space they were stacked in twelve stacks of ten. Each ten is to be on a trolley mounted on wheels as the stacks are to be placed tight against each other in three rows of four trolleys in the corner of the shed.

27 Another quarter of the shed is to hold a preparation area and a finished goods area where the mushrooms are to be taken from the trays, trimmed and placed in boxes for delivery. The remaining quarter of the shed held:

the raw material storage area and
circulation space from the industrial door on the Eastslope Way elevation to
the preparation area and
the growing trays and
the shower room and
thence to a side door giving access to the open roofed space on the north side for farm equipment.

28 Dimensions could not be measured due to the plans being printed at a reduced size to the 1:100 scale shown on them.

29 The applicant said the mushroom compost in the trays has to be kept moist and so an irrigation system is plugged into the trays. The whole shed was said by the applicant to be sealed during the growing operation to maintain the correct temperature and humidity.

30 In cross-examination the applicant could not recall the depth of compost needed in each growing tray.

31 The respondent produced the Australian Mushroom Growers’ Association Recommended Practices that indicated 15 cm depth of compost plus of course the growing height between each tray was needed. The applicant recalled that and did not dispute it. The respondent put that a rough calculation from the Association’s recommendations for an area of 3 m by 4 m that the trays occupied stacked ten high was about 120 sq m of growing area. Based on the known weight of compost that worked out to 12 tonnes of compost for each growing cycle and there were 4 growing cycles proposed per year.

32 The applicant was asked what went in the raw materials storage area. He said fresh compost for the next batch. It was put to him the raw material area on the plans is about 1 m by 2 m and one could not store 12 tonnes of compost in that. He said he would have to make the area bigger.

33 It was put to him the weight of each tray was such and the height to which they were stacked that they could not be manhandled. The applicant agreed saying as harvest approached in any case the trays needed to be rotated, and he would need a hoist for that, but had not shown that on the plans.

34 Asked whether rotation meant just looking between trays to see the mushroom growth, Mr Acquaro said no, that the trays are nested type so each had to be actually lifted and put onto another trolley progressively going through each stack. That obviously meant pulling the stacks of trays out of the corner storage area to get at the ones at the rear. That meant pulling eight stacks out as the shower room wall was close against the stacks in the corner of the shed and gave no room for access.

35 Each stack would weigh about one tonne in compost alone, plus the weight of the trays and the mobile trolley. Manhandling of the loaded trolleys would be doubtful. It seemed to me there would be very little room to spread the trolleys out during rotation and have equipment to move the trolleys and hoist the trays with equipment that could swing them from one trolley to another.

36 The applicant said his business plan showed he would have only four stacks of ten trays in the first year, eight stacks of ten in the second and twelve stacks in the third. He said he would have to assess the success of the venture as it progressed.

37 Asked about compost storage the applicant said perhaps another shed would be needed.

38 It was put to him the proposal to have compost delivered by one tonne utility might be impractical when it had to come in batches of twelve tonnes, four times a year. A heavy truck delivery was more likely. Also a water tanker if needed would be a heavy vehicle. The applicant said the frequency of heavy vehicles would be so low, even including staff movements of nine per day, that Eastslope Way would not be damaged. The applicant saw campers, fishermen, police and fire trucks use the track regularly and it had not deteriorated in many years of observation.

39 Turning to odour control Mr Acquaro said the proposal did not include growing the compost on-site, and that was the smelly process people complained of. The spent compost after each cycle would be put in plastic bags and stored outside on the south side of the shed in the 3 m side setback. It would not smell, he said. The sealed shed during mushroom growing would prevent odour escaping.

40 The Australian Mushroom Growers’ Association recommendations were again produced and showed that in the pre-heating of the compost prior to sowing of the mushroom spawn twenty-five to thirty air changes per hour were needed and at harvest time several air changes per hour were also needed. Mr Acquaro said he did not know that but if needed he would put in ventilation fans.

41 It was put to him that meant in summer with predominant north-east winds the odours must reach the houses downwind only a 100 m or so away. He maintained the only smell is from the compost-making process which would not be done on-site.

42 It was put to him if the shed was sealed and heated to maintain temperature and humidity then the mushroom spawn could not be kept there as it had to be at two degrees centigrade. He said it would only be brought in as needed, but in any case it was not the whole shed that was to be heated and humidified.

43 He proposed that relocatable insulated wall panels and a ceiling would enclose the tray stacking area in the corner of the shed and be taken away when access was needed. The humidifying would be done by a sprinkler system and then a heater, all operated by sensors and a computer. Mr Acquaro is an electrical engineer and could install and operate such a system.

44 In regard to the water volumes needed, after some cross-examination Mr Acquaro agreed he did not know if the tanks now proposed would provide enough volume for the usage. He said if it worked out to be not enough he would add more tanks. It was put to him during the hearing it had gone from three tanks to five tanks and now possibly more and the visual impacts of them needed to be known for assessment. The Rural Fire Service tank was proposed within the front setback about one metre from the street boundary. Mr Acquaro said it is in a rural zoning where agriculture is expected to occur and such structures were normal.

45 It was put to him that he knew very little about the processes and requirements of mushroom growing. He agreed that he was not an expert on it.

46 During the hearing there was evidence from several residents who had past experience of being near mushroom growing establishments. Mr Chappelow said he had lived one kilometre from one and the odour was regularly smelt and highly objectionable. The nearest houses being only a 100 m from the proposed site he thought they must receive odours if the proposal operated.

47 His major objection was the impact on the amenity and deterrent to people building on vacant lots in the village. Also he thought whenever the village is extended the logical direction is northward and the proposal would stop that. He noted a recently approved large poultry farm at Karuah nearby had a 1 km buffer around it due to smells generated. Poultry manure and straw was one of the means of producing mushroom compost, he said.

48 Also Mr Chappelow noted that during the more than a year that this application had been in process there had been no contact from the applicant with the local residents association in regard to possible impacts. This had resulted in the number of persons who had come along to the hearing on-site.

49 In cross-examination, Mr Chappelow admitted there were no foreseeable plans by the council or the state government to expand the village, and that he did not know the manufacturing process of compost and whether one part of the process smelled and another did not, however he said he did use Dynamic Lifter, a spent mushroom compost in his garden, and it smelled for a week after application.

50 Mr Knight is a retired farmer of thirty years’ experience and also held a Bachelor of Agricultural Economics. He said a mushroom farm could not be viable on a lot the size of a house lot. It must expand to be viable.

51 Mr Blackbourn is a retired stockbroker and had owned and operated a farm near Tamworth since 1965. During part of that time he had negotiated to relocate to Tamworth a mushroom farm that had been forced out of the Windsor-Richmond area due to odour impacts on residents. There was a trial allowed by Tamworth Council that showed a minimum site area needed is five hectares and that is with sealed growing sheds. Tamworth Council did not allow the proposal after the trial.

52 In cross-examination, he agreed that his proposal did intend to grow its own compost.

53 He maintained nobody went into business to go broke and the subject Acquaro proposal, after reading its business plan, could not be viable in a building the size of a double garage on a house-sized lot.

54 Mr Blackbourn had only found out about the proposal in the last two days before the hearing. At the hearing he read the business plan and summarised it as a proposed $23,000 to set up with $5000 capital and $18,500 borrowings. The projected end of second year sales was $27,000. The wages for two persons at twenty hours a week was estimated at $10,000. The net cash flow therefore was $15,000 per annum. The $10,000 in wages minus tax would be $7000 or $3,500 per person per year. Mr Blackbourn said that was less than a pension so that the proposal could only be a hobby.

55 Mr Acquaro said the mushroom farm is only something he could tinker with. He has an independent career and the farm could even lose money and it would not matter.

56 Mr Swift said he belonged to an organisation called the Victims of North Arm Cove. They wanted the Walter Burley Griffin concept built as the best city in Australia. He said he lived in Windsor near Oakville Road where there was a mushroom farm with three sheds, each about the size of a house. Opposite the farm was a local shop that he often went to. He said he never smelt the mushroom compost from the farm. He added that spent compost in plastic bags did not smell, as everybody would know by seeing it in supermarkets.

57 Mr Swaddling said he too had experience with being near the Windsor farm and another one at Mulgrave. He knew Mulgrave residents were always complaining of smells from the mushroom farm. He admitted in cross-examination the Windsor farm was one that made compost, and he did not know the process of manufacture to know what components smelled. But he said he is a truck driver and carried bags of fertiliser and built his own house and garden. Bags often split and that is when they smelled.

58 Those proposed to be stored outside could split, especially if kept for some time before they could be sold.

59 Mr Acquaro said he could store spent compost away from the site but did not nominate where.

60 Mr May said the council’s concern was that there is no infrastructure to service the Rural 1(a) zone lots at North Arm Cove. The village was zoned in 1964 and no reports of why that was done existed. The remainder of the 1(a) zone had existed from 1963 when it had a twenty-five acre minimum for a dwelling and that changed in 1974 to forty hectares for a dwelling. The State Government Hunter Strategy only stated it would review North Arm Cove in 2014.

61 The recently-adopted Council of Great Lakes Strategic Plan had no intention of rezoning the Rural 1(a) land. Mr Acquaro said that meant the permitted Rural 1(a) uses should be allowed.

62 Mr May also noted in the Rural 1(a) zone an eighteen metre front setback was required so the shed and all the tanks were in breach of the Setback Development Control Plan. Mr Acquaro noted that the library that the council approved in the 1(a) zone must also be in breach.

63 Mr Bell said on the loss of trees in the district as a result of the new highway construction, that there had been supplementary planting of forest species to compensate for the loss as part of the approval for the highway.

64 Mr Bell advised that the Great Lakes Vegetation Strategy had now been adopted and had identified the local bushland as rare and very significant. It was open forest of apple gum, angophora and bloodwood. These species are not rare in themselves but the combination of them is rare. The forest supported a variety of endangered species and one, the Greater Broad-nosed bat, had been identified by a survey on the subject site and probably used the hollow of a huge bloodwood on the actual site. An eight part test was required.

65 The one presented by the applicant from a consultant called Wild Thing Enterprises Pty Limited in Exhibit 1 had only addressed the impact of the shed. Now it was clear there were to be at least five tanks, three of which were near the bloodwood, and there was to be outside storage of compost and related processes to mushroom growing.

66 Mr Bell believed there was danger to the roots of the tree if effected and the vitality of the tree and perhaps others because they are used only to very poor nutrients. Any fertiliser escaping from the stores compost or other processes on-site could be too rich and kill the trees on site and downhill. That created potential impacts well outside the site that had not been examined by the eight part test.

67 Also the bloodwood is of a type, Mr Davis said, that dropped branches so it is a danger to persons on-site and needed at least to be pruned. Pruning is a danger as it unbalances huge trees and makes them susceptible to blow over in high winds that are experienced in the locality at different times of the year.

68 Mr Bell said the eight part test had clearly not analysed any of these potential impacts on either the forest or the endangered species as Mr Davis’ evidence indicated that the habitat tree would require removal. A letter from Wild Thing Enterprises Pty Limited in exhibit G confirmed that only the shed had been the subject of its study.

69 Mr Davis continued, saying there was an angophora on site and a tallow wood on the next allotment that would have to go owing to the Rural Fire Service Asset Protection Zones required for the building. Also the Rural Fire Service was not very comfortable where the APZs went beyond the site, as it did in this case, onto the allotment next door and onto the paper roadways.

70 Some trees in the paper road would have to be removed as well, being within the APZs. Whilst Mr Acquaro could give consent to tree removal for fire protection on the allotment to the south, the owners corporation for the roadways being defunct there was no point of contact for consent there.

71 During the on-site visit it seemed the trees identified on the site plan were not accurately located. The hearing ran out of time on the one day set for the on-site hearing and had to be adjourned.

72 During the adjournment the council located the trees by GPS electronics and Mr Acquaro did it by measuring from corner pegs of the lot. Neither could agree on the location of the trees except they were not as shown on the plan of application. But it did become clear that the bloodwood habitat tree was much closer to the tanks and the building of the proposal than indicated on the plans of application.

73 Mr Hulme and Mr Acquaro could not agree on the width of the trafficable dirt road in Eastslope Way and Mr Duffy added commentary on the impact of heavy vehicles on other paper roads nearby. The evidence on the road access does not need to arise given the other issues.

74 Overall I have concluded first of all that the drawings presented are inaccurate and not to scale to the extent that they could not form the basis of any consent. Secondly, the eight part test prepared for the proposal under s 5A of the Environmental Planning and Assessment Act 1979, does not address all the matters of relevance as outlined by Mr Bell. Third of all, the uncertainty of the applicant to explain all the processes and related structures involved in the development that could lead to impacts, did not allow a proper assessment and leads one to the precautionary principle, especially when one is dealing with endangered species.

75 I note also even the Australian Mushroom Growers’ Association recommendation is that a minimum 1 ha site area is needed for a mushroom farm and the proposal is on 0.07 ha. For those reasons it must be refused.

76 Therefore the orders of the Court are:

1. The appeal is dismissed.

2. Exhibits are returned to the parties except Exhibits 6, 7, 10, 14, 15, 22 and A, B, C, D, G and J.

3. No order as to costs.

K G Hoffman

Commissioner of the Court

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Acquaro v Great Lakes Council [2005] NSWLEC 582

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CITATION:	Acquaro v Great Lakes Council [2005] NSWLEC 582
PARTIES:	APPLICANT Raffaele Acquaro RESPONDENT Great Lakes Council
FILE NUMBER(S):	10298 of 2005
CORAM:	Hoffman C
KEY ISSUES:	Appeal :- Bushfire requirements - access - public interest - zoning - endangered species - inaccuracy of description of agricultural processes involved - poor documentation - impacts unable to be properly assessed
LEGISLATION CITED:	Local Government Act 1919 Rural Fires Act 1997 Great Lakes Local Environmental Plan 1996 Local Government Act 1906 Environmental Planning and Assessment Act 1979
DATES OF HEARING:	01/08/2005, 23/09/2005
EX TEMPORE JUDGMENT DATE:	09/23/2005
LEGAL REPRESENTATIVES:	APPLICANT Mr R Acquaro, self represented RESPONDENT Mr Rees, solicitor