Ali v Liverpool City Council - [2009] NSWLEC 1327

Land and Environment Court

of New South Wales

CITATION: Ali v Liverpool City Council [2009] NSWLEC 1327

PARTIES:
APPLICANT
Ashraf Ali
RESPONDENT
Liverpool City Council
INTERVENOR
Federation of Hellenic Associations Limited

FILE NUMBER(S): 10193 of 2009

CORAM: Moore SC

KEY ISSUES: CONSENT ORDERS - DEVELOPMENT APPLICATION - DEVELOPMENT CONTROL PLAN - SECTION 97 APPEAL :-
Odour
Future character
Growth Centres strategy

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Protection of the Environment Operations Act 1997
Uniform Civil Procedure Rules 2005
Liverpool Local Environmental Plan 2008
Liverpool Local Environmental Plan 1997
Development Control Plan 40 Intensive Livestock Agriculture (Poultry Farming) and Intensive Plant Agriculture (Greenhouses / Igloos / Market Gardening)
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Sydney Regional Environmental Plan No. 20 - Hawkesbury–Nepean River

CASES CITED: Ali v Liverpool City Council [2009] NSWLEC 107
Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195
Warnes v Muswellbrook Shire Council [2009] NSWLEC 1284
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
Tenacity Consulting v Waringah [2004] NSWLEC 140

DATES OF HEARING: 15, 16, 17 and 18 September 2009

DATE OF JUDGMENT:
8 October 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Ayling SC
INSTRUCTED BY
HWL Ebsworth
RESPONDENT
Mr P Marincowitz, solicitor
DLA Phillips Fox
Intervenor
Mr C Leggat SC
Mr N Eastman, barrister
INSTRUCTED BY CA Legal

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

8 October 2009
09/10193 Ashraf Ali v Liverpool City Council

JUDGMENT

Introduction

1 SENIOR COMMISSIONER: Gurner Avenue at Austral forms the spine of a locality identified by the expert planners in these proceedings as being the relevant local area within the Austral Precinct (a land area designation described later in this decision). They were asked to consider what constituted the locality for the purposes of this objective. They considered this and marked, on an aerial photograph with their supplementary joint report, their agreed locality for these purposes. This photograph is reproduced below.

2 The locality is to the north of a gentle east-west running ridge between Gurner Avenue and Fifteenth Avenue (to the south).

3 About 50 m to the south of the intersection of Fourth Avenue and Gurner Avenue is the crest of this ridge from which it is possible to see the parcel of land on the north-eastern corner of the intersection. This parcel of land has, in its own south-western quarter, a somewhat dilapidated dwelling and an assortment of rural structures. The remainder of the ~ 3.99 ha parcel upon which the house is located is vacant. The vacant land is virtually entirely grassed with only three or four trees located on it. It is upon this complete parcel of land (the site), the housing and occupied area and the vacant land (that doglegs around the occupied portion), that the applicant proposes to erect, in stages, a school that, when completed, will educate 600 primary and secondary pupils in total.

4 The site has a frontage to Gurner Avenue along its southern boundary. Along its western boundary runs a private road that provides access to the Kemps Creek electricity substation – a major item of electricity infrastructure.

5 On 26 June last, Pepper J granted leave to the Federation of Hellenic Associations Limited (the Federation), an owner of a parcel of land to the north and north-east in the vicinity of the site, to intervene in the proceedings (see Ali v Liverpool City Council [2009] NSWLEC 107). That leave was confined to permitting the Federation to “adduce evidence and make submissions as to the economic and planning impacts associated with the proposed development the subject of the proceedings”.

6 The Federation’s land enjoys informal access along the private road to the electricity substation although it has, technically, unconstructed legal access to Gurner Avenue a little to the east of the site. The Federation's land is ~ 44 ha in area and its southern boundary is ~ 80 m or so from the northern boundary of the site.

7 The site slopes gently from south to north with a slight cross-fall from the south-western corner to the north-eastern corner. At its lowest point, in the north-eastern corner, it is some 2 m lower than at its frontage to Gurner Avenue and some 400 mm or so lower than the point on the private access road where the northern boundary of the site meets that road corridor.

8 The proposed school would have, when completed, primary and secondary school elements with 360 pupils in the primary school and 240 pupils in the secondary school. Also when completed, the proposed school will be laid out in accordance with the site plan. The development is proposed to be constructed in the eight stages shown on this plan over a period of approximately 10 years. A copy of the site plan is reproduced below:

9 To the east along Gurner Avenue, several hundred metres away, on the southern side of the street, is a chicken farm. There are also a variety of market garden operations along Gurner Avenue – both to the east and west of the site. The role that these productive rural activities play in assessing this proposal is discussed later in more detail.

10 Also to the east along Gurner Avenue, there are a number of new dual occupancies. These are located on both sides of the street and include at least one substantial detached dual occupancy that appeared to be under construction at the present time. The more recent aerial photograph in evidence shows that these new dual occupancies are located closer to the chicken farm than the site.

The site inspection

11 On the first morning of the proceedings, I visited the site and walked around it. I heard informal evidence on the site from three objectors. These objectors included two local residents who reside in Gurner Avenue but some distance from the site. Each of these local objectors also spoke behalf of his parents who also reside in Gurner Avenue. The third objector I heard from, on the site, was a representative of the Federation.

12 I also visited the residential property immediately to the east where a fourth objector gave evidence during the view (his property is used not only as his family residence but also as a storage depot for his business). Although I did not have evidence from him, on this point, from the nature of the materials stored (which included extensive scaffolding equipment, bricks and the like), his business was clearly associated with the construction industry. As later discussed, he also grazes a small number of sheep and a llama/alpaca on his property.

13 Notes were taken of the evidence given informally by these four objectors and these notes were subsequently tendered.

14 During the course of my walk round the site, I was invited to observe the surrounding topography and land uses. At the conclusion of the site inspection, I was taken on a bus inspection of an area bounded by Gurner Avenue, Craik Avenue, Fifteenth Avenue and Devonshire Road.

15 The site is located in the Austral precinct of the South West Growth Centre. The possible future planning for the precinct is discussed later.

The written objections

16 As part of the material tendered by Liverpool City Council (the council), I was provided with the public submissions that had been made about the proposed development. These submissions fell into a number of separate categories.

17 The first comprised a petition with a number of signatures but which petition simply said that those who signed the petition were opposed to the development. No reasons were given for their opposition and, as a consequence (to the extent that petitions have any role to play in the public submission process) this petition was of no utility in assisting me to understand local objections to the proposal.

18 A further petition adopted the terms of a letter that was appended to the petition. I have taken into account the matters that are raised in that letter to the extent they are relevant. It is, however, trite to say that if something is true, it is made no more truer by being expressed by a large number of people saying it than if it is expressed by an individual. Further, the self-evident corollary of this is that if something has no validity as an objection, the fact that 1000 people may repeat the objection does not make it right – it remains invalid.

19 In addition to the letter attached to the petition, there were, on my count, 27 other letters of objection.

20 One of these individual letters of objection was an anonymous letter containing a tirade against the Muslim religion and Muslim schools. I rejected that letter for two reasons. First, the matters contained in it – religious and cultural objections of the nature expressed – are abhorrent and have no place in the planning assessment process I am undertaking. Second, as a matter of principle, I decline to entertain anonymous correspondence in such proceedings as this.

21 Of the remaining letters, three of them were form letters that included a paragraph dealing with religious issues. To the extent that these form letters canvass legitimate planning matters, those matters have been considered but their anti-Muslim sentiments have been ignored. Of the remaining individual letters of objection, five of these also included, amongst matters that raise planning concerns, material objecting to the school on bases relating to the Muslim religion. I have ignored those anti-Muslim sentiments in the individual letters.

The planning controls

22 The area is presently zoned RU4 Rural Small Holdings by the Liverpool Local Environmental Plan 2008 (the 2008 LEP). The zone objectives for this zone are in the following terms:

· To enable sustainable primary industry and other compatible land uses.

· To maintain the rural and scenic character of the land.

· To ensure that development does not unreasonably increase the demand for public services or public facilities.

· To minimise conflict between land uses within the zone and land uses within adjoining zones.

· To ensure that development is compatible with the rural character of the land and maintains the feasibility of agricultural uses.

23 The 2008 LEP does not require consistency of any development with the relevant zone objectives – cl 2.3(2) merely requires that:

The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

24 However, this application was lodged with the council prior to the 2008 LEP coming into effect so, as a consequence, the Liverpool Local Environmental Plan 1997 (the 1997 LEP) is the governing local environmental plan. Under the 1997 LEP, the site is zoned 1 (b) Rural—Small Holdings. The objectives of the 1 (b) Rural—Small Holdings zone in 1997 LEP are set out in cl 33(2) in the following terms:

(2) The objectives of the 1 (b) zone are:

(a) to protect the agricultural potential of rural land and to prevent further fragmentation of rural holdings, and
(b) to permit only those uses which are compatible with the amenity of rural areas and ancillary to development in the locality, and
(c) to ensure that development within rural areas does not generate an unreasonable demand for public services, and
(d) to ensure that development is compatible with the ecological attributes of the area.

25 The 1997 LEP also does not require consistency of any development with the relevant zone objectives – cl 9(4) merely requires that:

26 The 1997 LEP also contains one further provision that is relevant to my assessment of this proposal. It is cl 37 of this LEP – a provision which is in the following terms:

37 General restrictions on development

Consent for development on land in the 1 (a), 1 (b), 1 (c), 1 (d), 1 (e) or 1 (f) zone may be granted only if each building or work resulting from carrying out the development would, in the opinion of the Council, be compatible with the character and amenity of nearby areas (both existing and likely future) in terms of:

(a) its scale, bulk, design, height, siting and landscaping, and
(b) its operation, and
(c) traffic generation and car parking, and
(d) noise, dust, light and odour nuisance, and
(e) privacy, and
(f) stormwater drainage, and
(g) hours of operation, and
(h) overshadowing.

27 It is pertinent to note, at this point, that although the objectives of the 2008 LEP do not apply, they are not irrelevant, as the transitional provision relating to undetermined applications made under the 1997 LEP, contained in cl 1.8A of the 2008 LEP, is in the following terms:

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced.

28 Under the 1997 LEP, educational establishments are a permitted use within the 1 (b) Rural—Small Holdings zone. Under the 2008 LEP, they are a prohibited use. This prohibition is discussed further later.

29 Two State Environmental Planning Policies (SEPPs) are also relevant in these proceedings. The first of them, SEPP (Infrastructure) 2007 (the Infrastructure SEPP), has had, since February 2009, a provision that has the effect of overriding the prohibition in the 2008 LEP for the establishment of private educational institutions in the RU4 zone. This facultative, overriding provision is operational for three years from the date of its commencement. The effect of this is facultative, overriding provision on my consideration of the 2008 LEP’s prohibition of the school and of the objectives of the RU4 zone is also discussed later.

30 The second of them is State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP). The Growth Centres SEPP is also discussed later.

31 The final applicable planning instrument is Sydney Regional Environmental Plan No. 20 - Hawkesbury–Nepean River (the Hawkesbury – Nepean River Plan). This plan is a deemed State Environmental Planning Policy. The Hawkesbury – Nepean River Plan is also discussed later.

The applicability of SEPP (Infrastructure) 2007

32 Permitted uses within the RU4 zone do not include the establishment of education institutions. However, the Infrastructure SEPP has, by virtue of the provisions of cll 8, 27 and 28(1), from its commencement, provided that such establishments, for government operated education facilities, are permitted in that zone. These facultative provisions override any prohibition in a local environmental plan, including the 2008 LEP.

33 Cl 8, relevantly, reads:

Except as provided by subclause (2), if there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

34 Cl 28(1), relevantly, reads:

Development for the purpose of educational establishments may be carried out by or on behalf of a public authority with consent on land in a prescribed zone.

35 The RU4 zone is a prescribed zone for these purposes by dint of cl 27.

36 In February 2009, the Infrastructure SEPP was amended so that the facultative overriding provision for education institutions in the zones specified in the SEPP also extended to private establishments. This extension was created by insertion of cl 28(1A) into the Infrastructure SEPP. This reads:

Development for the purpose of educational establishments may be carried out by or on behalf of a person other than a public authority with consent on land in a prescribed zone.

37 Whether the Infrastructure SEPP is applicable to this application or not is relevant in the context of the weight to be given to the prohibition of schools in the RU4 zone of the Liverpool LEP 2008 and to the objectives of that zone.

38 The Infrastructure SEPP came into effect from 1 January 2008. The development application that is the subject of these proceedings was lodged with the council on 15 November 2007.

39 Mr Leggat SC, counsel for the Federation, submitted that this juxtaposition of dates means that the applicant does not have the benefit of the facultative provision of the Infrastructure SEPP for non-government schools as the necessary consequence of the operation of the savings and transition provisions of the Infrastructure SEPP contained in cl 11. The relevant element of cl 11 is in the following terms:

(1) This Policy does not apply to or in respect of:

(a) the determination of a development application made under Part 4 of the Act, but not finally determined before the commencement of this Policy,

40 This application is one made under Part 4 of the Environmental Planning and Assessment Act 1979 (the Act) and the provision is therefore applicable.

41 Mr Leggat submitted that, in clear and unambiguous language, this provision means that, as this application was lodged but not determined prior to the gazettal of the Infrastructure SEPP, it is shielded from the operation of any of the provisions of the Infrastructure SEPP whether they are facultative or inhibitative.

42 I have concluded that I should accept the submissions put by Mr Leggat on this point. There is nothing in the language of the transitional provision that contains any ambiguity about the intention of those drafting the document for the Minister to make. The making of the Infrastructure SEPP, by the Minister, in those clear and unambiguous terms, provides no basis upon which I could conclude anything other than that the facultative provision of private education facilities in the RU4 zone does not apply to this application. As a consequence, in my consideration all the matters relating to the 2008 LEP, I am obliged to consider that the proposal would be prohibited by the 2008 LEP in this zone.

43 Mr Leggat also submitted, if I understood him correctly, that the words “or in respect of” also had the effect of excluding my paying heed to the Infrastructure SEPP for any purpose at all.

44 However, my acceptance of Mr Leggat's submission that the effect of cl 11 of the Infrastructure SEPP means that it does not apply to the application does not mean that the Infrastructure SEPP has no work to do in these proceedings. To the contrary, in my view.

45 What cl 28(1A) of the Infrastructure SEPP does, by its creation of future opportunities for the establishment of otherwise prohibited education institutions, is affect the weight that I should accord to both the 2008 LEP and any issues where the application might be in conflict, to any extent, with its zone objectives or those in the 1997 LEP. I have reached this conclusion on the basis of the comments Mason P in the decision of the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at para 81:

Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning

Environmental Planning and Assessment

Act

Shoalhaven City Council v Lovell

Patra Holdings Pty Ltd v Minister for Land and Water Conservation

46 I am satisfied that, consistent with what is quoted immediately above, that it is appropriate that I have regard, when considering the public interest issues under s 79C of the Act, to the position that the Infrastructure SEPP is a clear articulation of public policy to be taken into account in my assessment both of the provisions of the 1997 LEP and the weight to which I should give the prohibition in the 2008 LEP.

47 Whilst the provisions of the Infrastructure SEPP do not, for this application, provide any facultative benefit, it is clear that the government intended such facultative benefits to be available prospectively for post-February 2009 applications in this and the other prescribed zones.

48 The facultative provision in cl 28(1A) of the Infrastructure SEPP for private is, however, subject to a sunset provision contained in cl 28(1B). This reads:

Subclause (1A) ceases to have effect 3 years after the commencement of that subclause.

49 I am relevantly informed about this provision by commentary in the relevant planning circular (Department of Planning Circular PS 09-009) concerning this. This circular makes it clear that the intent of the sunset provision is not to limit the operation of any such development to the end of the period defined by the triggering of the sunset provision but merely to ensure that the provision is subject to policy review and reconsideration by the executive government as a consequence of the sunset provision.

50 In addition, it is relevant to note that, although cl 28(2) permits intensification or expansion of existing educational institutions under some circumstances (wherever they may be located and no matter what the permissibility or other wise of such education institution in the zone where it is located), the effect of cl 28(1A) is only to permit the establishment of private education establishments in a number of prescribed zones identified in the Infrastructure SEPP rather than being a universally facultative provision as it is for established or existing schools.

51 Whilst any application for a new school taking advantage of cl 28(1A) would also need to satisfy a number of other provisions such as those contained in cl 32 of the Infrastructure SEPP, given that I have concluded that the facultative provisions of the Infrastructure SEPP are not applicable to this application as a consequence of cl 11, I do not need to consider if additional requirements have been met. It is sufficient to note that, if the applicant were to make a fresh application that satisfied those additional provisions, the Infrastructure SEPP would override the prohibition contained in the 2008 LEP.

52 For this reason, I am satisfied that the prohibition in the 2008 LEP should be given so little weight as to be irrelevant. However, I do consider that it does remain necessary for me to undertake an examination of the proposal against the objectives of the RU4 zone in the 2008 LEP as they remain, at least to some extent, relevant.

The Growth Centres SEPP and the locality

53 As part of the Sydney Region Outline Plan, the (former) Growth Centres Commission produced an outline plan for the South-West Sydney Region. Mr Sinclair, the Federation’s planner, in his statement of evidence, produced an extract from this plan for the locality upon which he had superimposed the existing road pattern and identified the site. There are a number of observations to be made about this plan before turning to consider what conclusions might be drawn from it about the future character of the locality. A copy of that extracted plan from his statement of evidence is reproduced below:

54 The first is, as I understood was accepted by all three advocates, that the depiction of various elements such as land-use designations, flood-prone land identification and the like were broad-brush and indicative only and did not indicate, with any precision, possible or likely future land-use zoning boundaries.

55 Indeed, an examination of the larger area map of the South-West Sydney Region in evidence that shows, in its south-eastern corner, the Turner Road precinct (with its particular depiction of various land-use elements) is, in a number of respects, inconsistent with the detailed precinct plan for the Turner Road precinct which was also in evidence. These distinctions include significant variations in the broad-brush riparian corridor; the inclusion in the detailed precinct plan of an additional commercial/business area toward the north-west of the precinct on the detailed plan which area is entirely absent on the broad-brush plan; and the inclusion of a significant open space along the north-western edge (comprising an existing golf course) in the detailed in precinct plan (which open space is also absent from the broad-brush plan).

56 It therefore seems to be reasonable to approach the plan shown above as being preliminary, broad-brush and, at the most, generally indicative. Indeed, Ms Stewart, the council’s planner, in her evidence, indicated that she would expect that there would be significant elements of fine-grain refinement and ground-truthing of any precinct plan for the Austral precinct that evolved from the above concept. This, I am satisfied, is a perfectly reasonable conclusion to draw in light of the nature of the detailed Turner Road precinct plan compared to that in the broad-brush document.

57 As a consequence, although it is clear that the site is identified in the broad-brush approach as being within some form of employment lands, an examination of the depicted flood affected land in the vicinity from the above map (when compared to the detailed flood affected land maps overload on an aerial photograph provided by the council) shows that any boundaries between land uses and types identified on the above map extract can be, at best, flexible and, at worst, stylised general depictions – as was the case for the Turner Road precinct.

58 Although a deal of attention was given by the three planners (Ms Stewart, Mr Sinclair and Mr Gosling, the applicant’s planner) to the question of whether or not the site was within or close to the boundary of one or other of the depicted land uses to be inferred from the broad-brush map above, the lack of meaningful reference to existing block boundaries shown on the August 2009 air photo when compared to the broad-brush map puts me in the position, I am satisfied, that I should simply regard the site as likely to be in the vicinity of the interface between an employment oriented land zone and a residentially oriented land zone without nominating which one it would be.

59 As is the position with the golf course depicted on the Turner Road precinct plan, a golf course that is in existence and has been for some time, it appears reasonable that the fine-grained planning to which Ms Stewart adverted would also have regard to existing development. A further practical example has been the case of the Turner Road Precinct Development Control Plan taking account of the fact that there is an existing poultry farm located approximately half a kilometre from the nearest element of an area in the Turner Road precinct zoned for residential purposes and some 250 m from the nearest element zoned for industrial purposes.

60 Shortly prior to the hearing, the council had written to the Department of Planning, on 28 August, seeking advice from the Department about their attitude to this application (given the imminent release of the Austral precinct for detailed planning through the process earlier discussed). No reply had been received to that letter prior to the hearing being completed and me reserving my decision.

61 However, subsequently, the council did receive an answer to its letter. A copy of that response was sent to me by Mr Marincowitz, the council's solicitor, with the agreement of the legal representatives of the applicant and the Federation. The relevant parts of the Department's response are reproduced below:

DA 492/2008 - 83-87 Gurners Avenue, Austral NSW 2179
Development of an educational establishment consisting of a primary school (360 Students) and a high school (240 Students) with associated facilities.

I refer to your letter dated 28 August 2009 seeking comments from the Department of Planning in relation to the above development application.

The Department notes that the former Growth Centres Commision [sic] provided comments (4 April 2008 and 12 August 2008 [Re-exhibited Amended Plans]) on this development application for an educational establishment on the subject site. From the information provided by Council with your letter dated 28 August 2009, it appears that the current plans have not been amended from the plans commented on in August 2008. Copies of the previous correspondence from the Growth Centres Commission are enclosed for your information.

The subject site is located within the Austral Precinct within the South West Growth Centre. The Minister for Planning has announced that the release of the Austral Precinct for urban development is being considered, however the Precinct has not been formally released by the Minister under Clause 276 of the Environmental Planning and Assessment Regulation 2000. Therefore, as you are aware, there is no formal requirement under the State Environmental Planning Policy (Sydney Region Growth Centres) (the SEPP) for the application to be referred to the Department.

Since the previous comments were made on the development application (April and August 2008) detailed precinct planning has been not commenced for the Austral Precinct. The issues raised previously continue to be relevant and should be considered by Council in the the [sic] assessment of this development application. In particular Council should consider the matters for consideration outlined in the SEPP under Parts 4, 5 & 6.
Of particular importance is clause' 16 which outlines the matters for consideration until finalisation of precinct planning, including whether proposed development will preclude land future uses identified in the relelvant [sic] structure plan.

62 This letter refers to earlier letters of 4 April 2008 and 12 August 2008 from the former Growth Centres Commission. The relevant portion of the letter of April 2008 is as follows:

Development Application - Educational, Establishment consisting of Primary and
High Schools, Childcare Centre and Associated Facilities including Library,
Mufti-Purpose Hall and Sporting Fields on land known as
83-87 Gunners Road, Austral being Lots 90 and 91, DP 1050385.

I refer to your letter of 27 March 2008 seeking comments from the Growth Centres Commission (GCC) in relation to the above development application.

The subject site is located in the Austral Precinct of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the SEPP). The Austral Precinct has not been declared a released precinct under clause 276 of the Environmental Planning and Assessment Regulation. As such, there is no formal requirement under the SEPP for this application to be referred to the GCC for comment. Formal consultation with the GCC is required under clause 17 of the SEPP after a precinct has been released. A detailed assessment of this proposal has not therefore been undertaken by the GCC.

The SEPP provides additional matters to be considered by Council when assessing development proposals within the Growth Centres. Particularly relevant to the subject site are:

Part 4 Development controls - general

· Clause 16 Development applications in Growth Centres - matters for consideration until finalisation of precinct planning for land;

· Clause 18 Water recycling and conservation

· Clause 20 Development on flood prone and major creek land - additional heads of consideration

· Clause 23 Consent for clearing of native vegetation

The subject land is identified under the SEPP South West Structure Plan as industrial I employment lands. This designation and the compatibility of the proposed school use with future industrial / employment uses should be given full and thorough consideration in assessment of the subject application. In addition part of the subject site is identified under the SEPP as 'flood prone and major creek land". Detailed consideration of this matter having regard to the requirements of Clause 20 of the SEPP as identified above should therefore also be undertaken.

It is noted that the subject land is identified as bushfire prone land on Council's bushfire maps and is therefore integrated development requiring approval under the Rural Fires. Act 1997.

63 I have omitted those elements of the letters dealing with the imposition of a condition requiring a special development contribution. However, as the result of this appeal is that, by consent, the school will be approved, it is appropriate that such a condition be included in the conditions of consent.

64 It is clear from the terms of this correspondence that the Department does not consider that the approval of a school on the site, as proposed, would not automatically be inconsistent with the longer-term strategy for the Austral precinct, generally, or the immediate locality, in particular.

65 However, it is also clear from the terms of this letter that the Department does require an appropriate assessment to ensure that the school is not inconsistent with the longer-term strategy for the Austral precinct

66 It is clear, from my reading of the letter, that the fine-grained and detailed planning to which Ms Stewart has referred would be expected, in that assessment process, to take account of the existence of such a school. This is entirely consistent with the process discussed relating to the Turner Road precinct.

67 Although there was a significant difference in the opinions of Ms Stewart and Mr Gosling, on one hand, and Mr Sinclair on the other hand, about the likely rate of take-up in the land in the Austral precinct once its detailed planning had been completed, there was no disagreement between these experts as to the fact that the long-term nature of the precinct would be to undergo a fundamental shift to reflect what is shown in the broad-brush planning discussed later – that is to a mixture of employment lands and residential development.

68 In this regard, Mr Gosling and Ms Stewart, particularly Ms Stewart, envisaged that the detailed planning and commencement of take-up was likely to occur within two or three years whilst Mr Sinclair thought significant commencement of the process was at a 10 years or longer timeframe.

69 I consider it appropriate, on this point, to prefer the evidence of Mr Gosling and Ms Stewart and accept that there is likely to be a commencement of the transition from the present rural residential and rural activities characteristics of the area to that of a more settled urbanised area.

70 I have reached this conclusion because I am satisfied that, although not with the densities that are likely to be envisaged in the detailed precinct planning, nonetheless the change has effectively already informally commenced. This is evidenced by the very substantial dwellings in each of the new dual occupancy developments to the east of the site on Gurner Avenue. Even as recently as three or four years ago, it would be reasonable to assume, from the development pattern in the area, that that type of development would not have been pursued, significantly, in this locality.

71 This development is, however, I consider, a significant indicator that the transition for this area has already commenced, informally, without the necessity for the fine-grained planning earlier discussed. Whilst, obviously, these developments will need to be accommodated, as well, in that fine-grained planning, it would seem to me from the expert evidence that they are also not inconsistent with and capable of being accommodated within the envisaged types of residential uses for this precinct is part of the overall release pattern.

72 It is also relevant to note, in the context of the other various environmental planning instruments that need to be considered in these proceedings, that the Growth Centres SEPP includes an overriding provision. This provision, in cl 6(1) of the Growth Centres SEPP, ensures that, if there is any conflict between that which is done pursuant to the Growth Centres SEPP and any other environmental planning instrument, that which is done pursuant to the Growth Centres SEPP prevails. This provision is in the following terms:

(1) Subject to section 74 (1) of the Act, in the event of an inconsistency between this Policy and another environmental planning instrument whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

Odour impact from the chicken farm

73 Odour impact is a matter raised by the Federation as part of its submissions on planning grounds. It warrants separate detailed consideration.

74 The impacting odours are said to be those from the nearby chicken farm to the east. The Federation and several resident objectors say that these would cause unacceptable impacts on the school. As a consequence, the Federation says it is likely that to locate the school within an area impacted by such an odour would increase the probability of complaints about the odour from the chicken farm and thus the pressure for closure or curtailment of the activities of the chicken farm. This is said to result in the application being contrary to the first objective for its zone in the 1997 LEP and contrary to the first, fourth and fifth objectives for its zone in the 2008 LEP.

75 The chicken farm is located on the opposite side of Gurner Avenue to the site approximately 200 m or so to the east of the eastern boundary of the site. It contains six chicken sheds with a capacity of 122,000 chickens. Although the chicken farm has been located on its site since the 1950s, its most recent expansion, from 80,000 chickens to 122,000 chickens, took place in 1997 when the council granted development consent for the additional two sheds comprising this expansion.

76 During the hearing, I heard from two odour experts, Mr Harris, for the applicant, and Mr Todoroski, for the Federation. Each of these experts visited the locality on one occasion only prior to the site visit during the hearing. Their prior site inspections occurred on different days.

77 The conflict between their opinions is stark. At the conclusion of their oral evidence, the position adopted by each was as follows:

· Mr Harris said that, while there may be some detectable odour from time to time on the site, in summary, this was not offensive and should not prevent a school being established on the site; and

· Mr Todoroski said that, for virtually the whole of the site (if not the whole of the site), anybody on the site would experience an odour that those who were not familiar with and accepting of the odours that might be experienced in a rural residential locality would find offensive. In particular, because of the high number of pupils and staff that would be present on the site (if it were being used for a school), the site was inappropriate to be used for this purpose.

78 Mr Todoroski agreed, during his oral evidence, that he had not visited the chicken farm and that, whilst he was certain that the smell that he detected did not come from dead chicken carcasses, the poultry manure odour he detected could have come from stockpiled manure outside the confines of the poultry sheds as well as from within the sheds.

79 During the course of the site inspection, I indicated to Mr Leggat that I had concerns about odour material that had been filed on 18 August on behalf of the Federation. That material comprised a letter from Mr Todoroski to Mr Leggat’s instructing solicitor and a document from an odour consultancy, PAE Holmes. This latter document was of a technical nature and concerned the site. These two documents had been filed with the Court under a cover sheet entitled Statement of Evidence (which cover sheet did not identify the person whose Statement of Evidence these documents purported to comprise).

80 It is necessary, for the purposes of this discussion, to describe, in brief, the technical report that had been filed. The first page describes it as a “Report” and as “Odour Assessment – 83-85 Gurner Avenue, Austral (Kemps Creek)”. The first page is dated 17 August 2009. The second page is reproduced below:

81 On page 16 of this report, there appear conclusions that are written in the first person plural. The document is unsigned and has no curriculum vitae of its author attached to it. It contains no acknowledgements of any relevant provisions of the Uniform Civil Procedure Rules 2005.

82 Subsequently, in Court, Mr Leggat sought to tender this material as an expert report authored by Mr Todoroski.

83 I demurred and indicated my concerns about non-compliance with the relevant parts of the Uniform Civil Procedure Rules 2005 applying to expert witnesses and that I did not consider, from the face of the technical document, that there was any proof that it had been authored by Mr Todoroski - to the contrary, indeed, there was an express statement (visible above) that made it clear that it had been authored by Mr Rahaman and merely reviewed by Mr Todoroski.

84 On the following day, Mr Leggat sought leave to introduce a Statement of Evidence explicitly from Mr Todoroski that comprised an affidavit which effectively adopted the contents of his earlier letter to Mr Leggat’s instructing solicitor (but now in affidavit form) to which was annexed a new version of the technical report. However, overnight, the technical report had been transmuted to a form that now claimed that it had been written by Mr Todoroski and was now in the first person singular.

85 The first page of this new incarnation of the document describes it as a “Revised Report” and as “Odour Assessment – 83-85 Gurner Avenue, Austral (Kemps Creek)”. The first page is now dated 16 September 2009. The second page of the “Revised Report” is reproduced below:

86 I admitted those relevant matters contained in the affidavit that formalised the contents of Mr Todoroski’s letter to Mr Leggat’s instructing solicitor [except for a number of paragraphs that imported material from (or, by implication, the totality of) the contents of the technical report].

87 I rejected the technical report. I did so because the earlier document made it expressly clear (unmistakably so from the first image immediately above) that it had not been authored by Mr Todoroski and a mere overnight assertion to the contrary on the second image immediately above (coupled with re-badging and “adjustment” of the relevant first person pronouns from plural to singular) was not a proper basis upon which I could conclude that, overnight, the base metal prose from Mr Rahaman had been turned into the gold of authorship by Mr Todoroski – a feat of transmutation of which Dr John Dee would have been proud.

88 Both expert odour witnesses are appropriately technically qualified. However, Mr Leggat took me through Mr Todoroski's curriculum vitae to establish the fact that he had, for many years, as an officer of the Department of Environment and Climate Change, been responsible for:

· the development of relevant odour policy documents; and

· making assessments for odour impacts for planning purposes in the north-west and south-west growth centre sectors of Sydney.

89 His curriculum vitae also showed that he had given expert evidence in the Court in the past. Mr Leggat submitted, on the basis of Mr Todoroski's qualifications and experience, these should lead me to prefer Mr Todoroski's evidence to that of Mr Harris.

90 To understand why I decline to do so, it is necessary to set out the totality of the relevant material admitted from Mr Todoroski's affidavit. It is in the following terms:

9. On Tuesday 7 July I inspected the area around 83-85 Gurner Avenue Austral. I was at the site from 3 pm until around 4 pm. I was accompanied by Mr Ian Sinclair and Dr Kerry Holmes.

10. The purpose of the inspection was to obtain first-hand experience of the local setting and the odour levels in the area. Prior to arriving, and again after leaving the site I drove around the roads in the area. It is generally a rural/ rural residential area comprised of large rural residential lots, commercial chicken and greenhouse operations, grazing hobby farms and so on.

11. I parked my car in Fourth Avenue very near the intersection with Gurner Avenue. This location is alongside 83-85 Gurner Avenue. I observed that it was an overcast, moderately windy day with winds of somewhat varying strength from a consistent south, south-east direction. It was quite cool. There was a faint smell of pasture and cow dung present in the prevailing wind, as would be expected downwind of a cattle paddock.

12. From my car I walked, accompanied by Mr Sinclair and Dr Holmes to the east along Gurner Avenue towards the chicken farm some 300 to 400 metres away. The road slopes down towards a gully along a nominally north-south axis. Approximately 100 or so metres along the road I was able to detect chicken farm odour. This is in the vicinity of a cream coloured metal fence that runs to the north off Gurner Avenue.

13. A little further on, approximately half way towards the farm, the odour was strong and offensive. The odour intensified as I neared the farm.

14. From the road in front of the farm I observed some white chickens in the nearest two sheds. The chickens I could see appeared to be relatively mature birds.

15. The chicken odour diminished rapidly as I walked further east along Gurner Avenue past the chicken farm.

16. I returned to the corner of Gurner Avenue and Fourth Avenue. The nature and strength of the odour that I had detected earlier along the route was still present when I retraced the route.

17. I then walked north along Fourth Avenue which runs along the western side of the site at 83-85 Gurner Avenue. Some 100 metres or so from the intersection with Gurner Avenue along the Fourth Avenue, I could smell an odour somewhat like, but different to the chicken farm odour I had experienced earlier along Gurner Avenue. This odour was not as strong and had a "sweet" silage-like element to it (somewhat like fermented grass). This point was not immediately downwind of the chicken farm as I judged it, but it was downwind of the start of what appeared to be animal enclosures/ hutches on 83-85 Gurner Avenue.

18. A little further along Fourth Avenue this odour became stronger and mildly offensive. There was a muddy bog-hole with an abandoned car in it on the site at 83-85 Gurner Avenue. A load of white bread had been dumped nearby and a flock of perhaps 40 or so ibis were feeding on the bread. This location was also more directly downwind of what appeared to be animal enclosures on 83-85 Gurner Avenue.

19. A little further along Fourth Avenue, some 200, to 250 m from the intersection with Gurner Avenue, I could smell the chicken farm odour, distinctly from what appeared to be the odour of the closer activities on 83-85 Gurner Avenue.

20. The chicken farm odour could be detected, and times at a moderately strong level some 200 metres or so past the end of 83-85 Gurner Avenue along Fourth Avenue. I walked for around 800 metres to one kilometre from the corner and then returned along the same path.

21. I smelled the same odours, at about the same strength in about the same locations along my return route.

22. In consideration of the prevailing weather conditions and the relative locations of the chicken farm and the site comprising 83-85 Gurner Avenue, I conclude that at the time of the site visit, offensive odour from the chicken farm was present on 8385 Gurner Avenue, particularly at the middle to rear (northern) part of the site.

23. Knowing that the windy weather conditions I experienced are conducive to relatively good dispersion, and that southerly winds are common to that area, my impression after the site inspection was that the odour from the chicken farm is likely to adversely affect the majority of the site at 83-85 Gurner Avenue, and that complaints, and disruptions to learning activities would be likely if a school were to operate there.

24. At the time of weather conditions that lead to significant odour impact, (clam [sic] steady wind drift to under stable conditions), the terrain in the locality, mainly a north, north westerly draining and shallow gully, is most likely to channel odour laden air from the chicken farm to the NNW. Such odour laden air is likely to affect the middle and lower reaches of 83-85 Gurner Avenue strongly in the late evenings and early mornings, and at night under inversion conditions.

25. Such conditions are also likely to occur from time to time later in the morning and in the early evening, particularly in winter.

26. [rejected]

27. [rejected]

28. [rejected]

29. [rejected]

30. I also consider that the area of greatest potential odour impact is likely to be the middle and rear (northern) parts of the site at 83-85 Gurner Avenue as these are low lying areas where odour from the farm is likely to collect or drain into to under conditions of slow, southerly katabatic drift that are characteristic of the area. Such conditions are not well represented by dispersion modelling, which generally requires appropriate interpretation.

91 Critical to my decision on whether or not to prefer Mr Todoroski's evidence over that of Mr Harris is the additional oral evidence given by Mr Todoroski concerning the words now repeated in bold and underlined (from para 22 of his affidavit) below:

22. In consideration of the prevailing weather conditions and the relative locations of the chicken farm and the site comprising 83-85 Gurner Avenue, I conclude that at the time of the site visit, offensive odour from the chicken farm was present on 83-85 Gurner Avenue, [emphasis added] particularly at the middle to rear (northern) part of the site.

92 The nature of the odour level Mr Todoroski concluded was an offensive odour is what Mr Leggat described, in his closing submissions, as a “killer point”.

93 What I should make of Mr Todoroski's evidence, in this regard, therefore provides the necessary foundation upon which Mr Leggat asks me to accept that there will be an offensive odour on the site with sufficient frequency and intensity to render the site’s use as a school inappropriate.

94 During the course of his oral evidence, Mr Todoroski resiled from the generalised proposition (marked in bold and underlined by me) in his affidavit. As I understood his oral evidence, he asked me to interpret this paragraph as if it had been written to the following effect:

23. In consideration of the prevailing weather conditions and the relative locations of the chicken farm and the site comprising 83-85 Gurner Avenue, I conclude that at the time of the site visit, odour from the chicken farm was present on 83-85 Gurner Avenue; that this odour would regularly and frequently occur virtually throughout the day; that this odour would affect virtually all of the site; and this odour would be offensive to those using 83-85 Gurner Avenue as a school if this site was permitted to be developed as a school, particularly at the middle to rear (northern) part of the site.

95 This, of course, is a significant alteration from the position otherwise conveyed by the simple language of his affidavit as written. The first proposition is one of general applicability whilst the second calls up a special impact applicable only to development of a school on the site.

96 If I accept this version of Mr Todoroski's evidence, Mr Leggat’s “killer point” is the conclusion noted in bold above.

97 Contrary to either of these positions, Mr Harris’s evidence was, as I understood it, that he did not experience any offensive odour on the day which he visited the site; there were rural activity odours that would be experienced, from time to time, in the vicinity, particularly in the early morning and late afternoon/evening periods when it was cold and there was little breeze. The summary of his opinion, however, as I also understood it, was that this would not be sufficient to make it inappropriate to approve a school on the site.

98 I also note that the experts agreed that there was no odour impact, at its worst, that would cause health problems to anybody playing sport on the proposed playing fields at the northern end of the site.

99 The concept of the offensive odours and the meaning of and implications from such odours is not merely a matter for these proceedings but are at the very heart of the assessment of odour impacts of by experts in this field. It is, therefore, at the very heart of Mr Todoroski's expertise and is a matter about which, on the basis of the strengths of his curriculum vitae to which Mr Leggat took me, he must frequently make odour assessments and express technical opinions based on his qualifications and expertise.

100 Given the distinct difference between the position put in his written statement when compared with that advanced in his oral evidence [that he really meant to say, in his affidavit, what he said in his oral evidence rather than that which was contained in his written statement], it seems to me that I have a choice [a choice I need not make] between two alternative conclusions about his evidence – the adoption of either of which should cause me to reject Mr Todoroski's evidence.

101 The first is that, in the preparation of his affidavit, he was so careless or sloppy in his expression of his technical opinion that, despite his extensive expertise and qualifications, he said something that was clearly at significance variance with what he had actually concluded. Second, in the alternative, on further reflection, he considered it necessary to adjust his earlier evidence to present it in a fashion more favourable to his client's case as his earlier version did not sufficiently assist that case. No other credible possibility exists. If the first, he was significantly incompetent and I should reject his evidence. If the second, he was significantly in breach of his duties to the Court pursuant to the Uniform Civil Procedure Rules 2005 requirements for expert witnesses and I should reject his evidence. It is not necessary for me to determine upon which of these bases I should reject his evidence merely that I do so because either alternative is unacceptable.

102 The 1997 development consent for the chicken farm included a condition relating to odour, condition 23, which is, relevantly, in the following terms:

Use and occupation of the premises must be carried out at all times without nuisance and in particular so as not to breach the provisions of the Clean Waters Act, Clean Air Act and the Noise Control Act.

103 The various statutes mentioned in condition 23 were subsumed by the Protection of the Environment Operations Act 1997. The chicken farm does not fall within the scope of being scheduled premises under this Act thus requiring a licence from the Department of Environment and Climate Change. Its activities are therefore regulated by the council through the chicken farm’s development consent.

104 As outlined at (15) to (20), the council tendered various letters of objection to the proposal. Only two of them mentioned odour issues.

105 The first of these letters did so in the following terms:

Children in a learning environment should not be exposed to the severe chicken farm odours that exist in the area.

106 The second of these letters did so in the following terms:

[sic]

107 The three resident objectors gave oral evidence concerning odour from the chicken farm. The first of the resident objectors did not write an individual letter of objection. However, his parents, on whose behalf he indicated that he was speaking, he said were particularly affected by odour from the chicken farm. His parents did write a letter of objection that made mention of odour from the chicken farm – it is the first of the letters cited above.

108 The other two of these objectors wrote letters of objection. Neither of those letters of objection raised the question of odour.

109 The evidence that each of these objectors gave concerning odour differed in degree. The first of them did not raise odours in the course of his original presentation but this matter arose from a question, properly directed to him, from Mr Leggat. He indicated that this smell was more common in the early evening/night and that it was worse at night and in the early morning/evening.

110 The second indicated that he was used to odours and acclimatised to them but that there was some exacerbation of his respiratory problems by these odours. The final objector, the neighbour immediately to the east, appeared primarily to be concerned with dust that was stirred up by the chicken farm. However, to the extent that he was expressing an opinion about odour, he expressed that it was mostly in the morning, at about 6:30 AM.

111 Two other conditions of the development consent, conditions 11 and 12 are also relevant to understanding recorded council complaints concerning the chicken farm. These conditions read:

No manure is to be stored onsite.
All dead birds are to be kept in the freezer and removed from the site on a weekly basis.

112 It is also relevant to note, at this point, that the council's records disclose that, in the past, there have only been two complaints to the council about odour from the chicken farm.

113 The first of them was in 2003 and was in the following terms:

sic]

114 More latterly, one complaint has been made to the council in the past two months (that is during the period after the commencement of these proceedings). It is not possible to tell whether the person who made the 2009 complaint to the council was also an objector in these proceedings as only a given name and phone number (rather than a surname or an address) is recorded for this person. The report of this complaint is in the following terms:

the chicken farm is giving off odours all the time. caller believes that they are cleaning the shedss [sic] out & leaving the manure out side the sheds which is creating the smell.

115 However, both of the complaints that have been made to the council were based on conduct, believed by the complainant in each instance to be occurring, which conduct (if the belief was correct), would be in breach of the 1997 consent. If that were to be the case, and I express no view on the accuracy or otherwise of each of the complaints as I have nothing other than the bald words of the complaints, such an odour could not act as a barrier to the present application for the reasons I noted in Warnes v Muswellbrook Shire Council [2009] NSWLEC 1284 at paras (107) and (108).

116 Although the first version of para (22) of Mr Todoroski’s affidavit, stating bluntly that “offensive odour from the chicken farm was present on 83-85 Gurner Avenue”, constitutes a direct and bald assertion by Mr Todoroski, in my view, that the chicken farm is operating in breach condition 23 of its 1997 development consent, I have not accepted his evidence on this point as, for the reasons earlier set out, I consider his evidence to be unreliable. As a consequence, I am left with what I consider to be expert evidence from Mr Harris – expert evidence that is not contested by any satisfactory expert evidence given on behalf of the Federation.

117 I am also satisfied that the nature and extent of the residents’ complaints and/or objections is such that I should put little weight on them given that it is possible that the complainants appeared to consider that the odours arose from activities in the chicken farm not being carried out in accordance with conditions 11 and 12 of its consent.

118 In making this comment, I am certainly not making any finding that this might have occurred – merely that it is a possible explanation of the odours about which there has been a complaint and/or objection. Even if the odour impacts of which the residents complain do arise from permissible activities of the chicken farm, I am satisfied that their frequency and duration should be considered in light of the evidence given by Mr Harris and not regarded as a barrier to approval of the school.

119 In the final analysis of all material concerning odour impact, I do consider it is appropriate to accept the evidence of Mr Harris that there would be no odour impact on the site of sufficient frequency or intensity to act as a barrier to granting development consent to this application.

Modifications to the proposal

120 During the course of proceedings, I raised with Mr Ayling SC, counsel for the applicant, the approach now taken by the Court over recent years (which approach I liken to the amber light in a set of traffic lights). This approach says that, if a proposal is not appropriate to be given approval in the form being considered but, with minor and identifiable amendments consistent with the application before the Court, it would be capable of approval, the Court should make a determination:

· setting out the changes that are required to render the proposal acceptable;

· requiring the applicant to make those changes, whether by preparation of amended plans or by Court imposed conditions settled between the parties; and

· when such modifications are incorporated (thus rendering the proposal acceptable), approval should be given to the amended proposal.

121 In this case, a number of modifications emerging from the objectors’ evidence and the concurrent evidence given by the town planners led to a number of propositions being put to Mr Ayling for the applicant to consider. These propositions were not put on any basis to indicate that I had already formed any conclusion concerning the overall merits of the proposal but were merely put in response to comparatively minor matters raised where these matters appeared, to me, both to have merit warranting consideration and being of comparatively easy scope to address.

122 The amendments discussed below are matters capable of adaption within the amber light process leading to what the former Chief Judge of the Court, McClellan CJ, described as “the best community outcome”.

123 A number of these amendments related to matters of amenity for the residents of the property immediately to the east of the site. These involved:

· relocating a number of the car parking spaces from the staff car park to provide greater landscaping between the neighbours’ residence and the administration building at the front of the property. This relocation would also have the effect of removing any headlight shine from staff members’ cars in the direction of this residence;

· ensuring that appropriate barriers were used to limit use of the road along the eastern boundary linking the two car parks. Construction of this perimeter trail is was required by the Rural Fire Service; and

· relocating the acoustic barrier from the eastern boundary fence to a location significantly set back from the boundary to the property thus reducing the visual impact of what was originally proposed to be a 3 m high acoustic barrier along the eastern boundary.

124 The relocation of some of the western landscaping to outside the acoustic barrier on this side was also raised with Mr Ayling. Subject to working out the detail for the implementation of these changes, Mr Ayling indicated that they were acceptable to the applicant.

125 One of the concerns raised by Mr Sinclair, in his oral evidence, was that the presentation of the administration building, to Gurner Avenue at the front of the site, was that of a long and continuous built form that was out of character with the present and currently emerging streetscape of Gurner Avenue. His objection was based on the two-storey nature of this structure and, at least as I understood it, that this was a building with but a single unbroken facade. It was on this basis that he said that this element of the proposal did not satisfy the first element of cl 37 of the 1997 LEP (discussed, in more detail, later).

126 This element of the proposal is set back some 38 m from the street frontage, a considerable distance further than much of the remaining development, including the emerging dual occupancy development pattern.

127 The fencing proposed for the street frontage to Gurner Avenue, of a metal picture of style fence electric gates is consistent with a number of the other fencing and driveway entrance presentations in this streetscape. The front setback is to be significantly landscaped but not so as to obscure, in its entirety, any view of this building – it thus will be a significant element in the streetscape.

128 Although I do not consider that this aspect of Mr Sinclair's evidence would warrant refusal of the proposal, nonetheless I consider that his criticism of this building is well founded but easily able to be remied. I indicated to Mr Leggat that if I were to accept this evidence but considering that the project otherwise did not warrant refusal, I would be minded to require a degree of articulation to the building at the point where the entrance hall joined the administrative offices on the ground floor – that is that a point to approximately 1/3 of the way along the building when viewed from its eastern end. Mr Ayling indicated that the applicant would accept such a requirement.

129 I do consider that the present proposed aspect of the administration building would, because of its present unbroken design, not be acceptable when assessed against the requirements of cl 37(a) of the 1997 LEP. However, I am satisfied that an appropriate response to this would be to require a degree of articulation in the facade and the roof form of this building at the point that I have indicated. This can be achieved by adjusting the façade, at all levels including the roof form, at that point to create a 1.5 m return so that the eastern element becomes that distance forward of the western element.

130 I will leave it to the applicant to determine the precise adjustment on the plan – whether by bringing that element of the building's facade forward by that distance or otherwise adjusting the location of the western portion of the building to the north to provide for that.

131 There is, in making this provision, no need to do alter the rear elevation of the building and the adjustment can be achieved by a modest increase in the buildings floorspace as I do not consider that such an increase to the presentation of the east and elevation of the building would be unacceptable in the streetscape when viewed approaching from the east.

132 The zone objectives applicable to the site are contained in cl 33(2) of the 1997 LEP. I now turn to consider, as I am required by cl 9(4) of this LEP, the present proposal in the context of each of those zone objectives.

First zone objective – 1997 LEP

133 I turn to the first of the zone objectives in the 1997 LEP. It is in the following terms:

(a) to protect the agricultural potential of rural land and to prevent further fragmentation of rural holdings,

134 With respect to this objective, during the course of the evidence of Mr Sinclair, Ms Stewart and Mr Gosling, both in their joint report and in the concurrent evidence during the proceedings, agreed that the second element of the first objective, that is the prevention of further fragmentation of rural holdings, was not engaged by the present application and did not need to be considered.

135 Therefore, my consideration of the first of the zone objectives is confined to assessing whether or not the proposal can be regarded as protecting the agricultural potential of rural land.

136 In this regard, I do not understand there to be any disagreement between the planners that the consequence of the approval of the proposal would be that whatever agricultural potential might exist for the site would be extinguished by the erection of a school and its playing fields upon it. In this context, I observed during the course of the site inspection that there were, at present on the site, a small number of igloos capable of being used for horticultural production and a small number of sheep were grazing on the open area of the land in the dogleg-shaped grassed area described earlier.

137 I also observed during my walk around the site that, throughout my walk along the open area of the site, there were a number of concrete fragments, steel elements from construction, and pieces of PVC piping and other construction detritus embedded in or lying on the ground. The presence of this material rendered it highly unlikely that the open area of the site has any potential for cropping although, as Mr Sinclair pointed out, this did not remove the possibility of hydroponic vegetable growing on the site.

138 I have dealt separately and in detail with the issue of odour from the chicken farm. I therefore deal with the more general question of agricultural potential of other land in the immediate vicinity of the site. By this, I mean that I should set out the existing restrictions caused by activities already being undertaken in the immediate vicinity of the site that create the position that there are no further restrictions on agricultural potential of any rural land in the locality that would arise as a consequence of approval of the school. The restriction on the agricultural potential in the immediate vicinity, as discussed below, arises from existing land uses rather than the possible approval of the school.

139 It was Ms Stewart's evidence, as I understood it, that two significant impediments lie in the path of any future application for an intensive agricultural use in the vicinity of the site. The first arise from the provisions of the buffer distances for intensive agriculture proposals contained in the Council’s Development Control Plan 40 Intensive Livestock Agriculture (Poultry Farming) and Intensive Plant Agriculture (Greenhouses / Igloos / Market Gardening) (DCP 40).

140 DCP 40 deals with minimum lot sizes, setbacks and buffer zones for new chicken farms and intensive horticultural enterprises. For chicken farms, it also deals with these issues for applications to intensify existing chicken farms. It was by consideration and application of this development control plan that, on Ms Stewart’s evidence, the council refused an application to expand the existing chicken farm to the east on the Gurner Avenue from 120,000 chickens to 200,000 chickens. This evidence is confirmed by the documents relating to this application that were tendered for the council.

141 Although this DCP, adopted in 2001, is a successor to an earlier or similar development control plan, no submission has been made by Mr Leggat that the development and adoption of the this development control plan and/or its predecessor were not appropriately undertaken using a process consistent with that discussed by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472.

142 Although the evidence given related to DCP 40, its buffer distances have also been repeated, unchanged, in Part 5 of the consolidated Liverpool Development Control Plan 2008 – a DCP that came into effect on 8 July 2009.

143 Mr Sinclair, however, gave evidence that radically increased buffer zones should be adopted – the adoption of which would lead to the proposed school being significantly within such buffer zone and therefore in an inappropriate location.

144 Mr Sinclair's evidence was based on his support for a document in entitled Living and Working in Rural Areas - A handbook for managing land use conflict issues on the NSW North Coast. This document has been issued under the auspices of the (then) Department of Primary Industries, the Northern Rivers Catchment Management Authority and Southern Cross University's Centre for Coastal Agricultural Landscapes. Part of the document, to which I was taken, related to recommended minimum buffer zones. In the summary of the section dealing with buffer zones, Mr Sinclair relied on a sentence that read:

The separation distances in the tables represent a synthesis of existing recommended and best practice minimum buffer distances.

145 The distance in the table for chicken farms was a separation from educational facilities and pre-schools of 1000 m.

146 Later in the document, the sources of the various buffer distances and the tables are given. The buffer distances, including one that I have cited immediately above for chicken farms, come from the Lismore Development Control Plan and the Tweed Development Control Plan.

147 I note, at this point, I have no evidence about the terms of those development control plans other than these buffer distances (which distances I assume, for this purpose, have been accurately transferred from those development control plans) nor do I have any evidence as to what descriptive qualification, if any, might be contained in either of those development control plans. Nonetheless, Mr Sinclair suggested that I should adopt the distances for chicken farms so derived.

148 However in the paragraph immediately following the paragraph in the summary I have quoted above, appears the following sentence:

The minimum buffers recommended are not intended to take the place of local council policy on buffers, setbacks etc, where such policy has been developed and adopted.

149 I am, therefore, faced with a position where the buffers recommended as appropriate by Mr Sinclair from this document come from development control plans about the provenance of which I have no evidence; from an area which has distinctly different topography and climatic circumstances; where I have no evidence, as Mr Gosling noted, about how those factors might have been taken into account in developing the North Coast buffer distances; and a development control plan adopted by Liverpool City Council and, on Ms Stewart’s evidence, applied by this council.

150 As to the emphasis I should give to the council’s DCP buffer zones, Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP. From what was said in Zhang by Spigelman CJ at para 75, three propositions emerge. First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative.

151 In this instance, given the matters that I have set out above, I consider I would be making an egregious error if I did not accept the buffer distances contained in DCP 40 (and re-adopted in the 2009 commencing DCP) as those that are relevant and appropriate in these circumstances.

152 As a consequence, there is no breach by this proposal of any relevant buffer zone for the chicken farm. As the buffer zones only apply to new intensive horticultural activities and there is no evidence that any such activity is proposed in the vicinity of the site, the site is, therefore, not impacted by any relevant provision of this development control plan.

153 Mr Sinclair also undertook a land-use analysis of what the various uses of properties in the locality. He depicted those uses on the plan which appears below (the site is the “Intensive plants” coloured allotment marked with the “Av” of “Fourth Av”):

154 He was asked, having regard to the properties immediately to the east of the site; second to the west, and diagonally opposite the site on the south-western corner of Gurner Avenue – all being rural residential properties – whether any new intensive animal husbandry or horticultural and agricultural activities would be permissible in the locality and impacted by buffer zone from the school that would not already be rendered impermissible, by DCP 40, having regard to separation from these rural residential properties. He conceded that there were no such opportunities.

155 The consequence of that concession is that the school, if approved, could not impact on any intensive agricultural potential of land in the locality.

156 It therefore remains to consider whether or not the school would be likely to have any impact on the agricultural potential of the locality having regard to the forms of agriculture remaining after intensive livestock and horticultural activities were excluded. Three definitions, in this regard, from the 1997 the LEP are relevant to. These are:

Agriculture means the keeping of breeding livestock on improved pastures, or the keeping of bees or birds, for commercial purposes but, in the Table to clause 9, does not include intensive livestock agriculture or intensive plant agriculture.

Intensive livestock agriculture means a building or place used for the keeping or breeding of livestock or poultry or other birds, which are fed wholly or substantially on prepared or manufactured feed, and includes cattle feed lots, piggeries, poultry farms and worm farms, but excludes a building or place used only for drought or similar emergency relief.
Intensive plant agriculture means land used for the cultivation of crops, including cereals, fruit, flowers, nuts, vegetables, mushrooms, turf, irrigated rice, irrigated cotton, wholesale plant nurseries or hydroponics.

157 These definitions make it clear, effectively, from the earlier exclusions established above, that any form of intensive horticulture would not be within the allowable range of activities and that, effectively, grazing on existing pastureland with supplementary feeding that did not breach the stricture precluding supplementary feeding “wholly or substantially on prepared or manufactured feed” would be the only such activity.

158 It was Mr Sinclair is evidence that the grazing potential of the site was 10 to 20 sheep or 5 to 10 cattle whilst remaining compliant with the restriction on supplementary feeding. A further alternative to cattle would be a similar or lesser number of horses would also be possible.

159 Mr Sinclair expressed the opinion that there was a risk that grazing on the adjacent property to the east, half the size of the site and, having regard to the extent of its development, of about one third of the grazing potential of the site could potentially, create sufficient noise or odour impact to be the source of complaint at a sufficient level from the school leading to such grazing activity being threatened. On Mr Sinclair's own figures, the grazing potential of the adjacent property to the east, at its most generous, would be (rounding up proportions of the sheep, cows and horses to the nearest full sheep, cow or horse), be seven sheep or four cows or four horses. The first of these numbers would appear to be in the relevant ballpark given the grazing observed on this property, during the site view, of one alpaca or llama and a small number of sheep.

160 In my view, his evidence on this point suggesting that noise or odour from seven sheep or four cows or four horses, even without taking into account the proposed fencing and revised acoustic shielding, would provide such impacts as to prevent the establishment of the school is simply not credible.

211 A similar non-issue position applies with respect to connection to electricity and telecommunications networks, as there is no suggestion that their various prospective suppliers would be unable to meet any demand from school from existing network infrastructure.

212 Waste is to be removed by a private contractor and, as a consequence, there will be no additional demand on public services.

213 Pupils are to be conveyed to and from school by chartered buses, in the main, or by private vehicle. There is, therefore, in this regard, no additional demand on public services let alone an unreasonable one. As I understand it, comparatively few of the pupils are likely to come from the local area and, as a consequence, demand for separate bicycle paths would be so limited as not to require any works by the school as part of this approval.

214 That, therefore, leaves to be considered the question of what additional demand for the public service of improvements to local road network might arise from the proposal and whether or not that demand, in itself, is unreasonable.

215 With respect to roads, the Federation says that, as a consequence of the expected number of additional car movements and the expected number of bus movements that will be associated with the school, the school should meet the cost of upgrading Gurner Avenue immediately in front of the school; the intersection of Gurner Avenue and Fourth Avenue (with the installation of a roundabout at that intersection); and the upgrading of Fourth Avenue – a distance of approximately 3/4 of a kilometre or so to the south to its intersection with Fifteenth Avenue.

216 Proposals advanced by Mr Sinclair for conditions to require kerb and guttering and street lighting for this section of Fourth Avenue were abandoned by him toward the conclusion of the town planners’ evidence. The section of Fourth Avenue that the Federation says requires upgrading would, on Mr Sinclair's position, be upgraded to 2 lanes in each direction.

217 On the other hand, Mr Gosling and Ms Stewart agreed at the council's condition of consent (accepted by the applicant) – that simply requires the upgrading of Gurner Avenue immediately in front of the school; upgrading of the intersection of Gurner Avenue and Fourth Avenue and reconstruction of Fourth Avenue for 200 m to the south of that intersection – is a reasonable proposition.

218 Mr Gosling, whilst accepting that the above is a reasonable proposition (and accepted by the applicant), also says that, in light of the traffic report by a specialist traffic management consultancy [which report was provided to the council with the original development application (an application based on 1000 students at the school) and showed that the local road network was already adequate to cope with such traffic as might be generated by the school] meant that, although the applicant accepted the condition, it did not, by that acceptance, also agree that it was necessary that these works are carried out as a consequence of approval of the school.

219 In addition to this agreement, the council has already included the remaining length, several kilometres of it, of Fourth Avenue in its works program for local roads for the 2009/2010 financial year. Whilst the local residents who were asked about this during the course of the on-site evidence were sceptical about whether the council would, in fact, undertake this work, I consider that it is appropriate that I assume, unless there are presently unforeseen circumstances, that these works will be carried out as scheduled by the council.

220 It seems to me, therefore, inevitable and irresistible that, because the council already proposes to undertake this work (whether or not the school is approved), I must conclude that there is an existing necessity for the council to undertake that upgrade of Fourth Avenue.

221 If that be the case, the existence of the school, in the future, cannot create a demand for those works to be undertaken let alone be an unreasonable demand for those works to be undertaken – as I consider that very inclusion in the council's works program demonstrates that the council, itself, is satisfied that there is already a reasonable demand for those public works. The consequence of that is that I am satisfied that the proposed school is not in conflict, in any fashion, with this zone objective.

Fourth zone objective – 1997 LEP

222 The final objective for the zone is in the following terms:

(d) to ensure that development is compatible with the ecological attributes of the area.

223 All three planners agree that the proposed school does not conflict with any aspect of this objective and I accept that this is self evidently the case.

Conclusion concerning the zone objectives of the 1997 LEP

224 Whilst the proposal does not satisfy that element of the zone objective (b) of the 1997 LEP that the development be ancillary to development in the locality, given the long term planning prognosis of the area pursuant to the Growth Centres SEPP, I do not consider that this is an impediment of any substance to the proposal. In all other respects, I am satisfied that there is nothing in the 1997 LEP's zone objectives that causes me to have any reason to refuse the proposal nor any reason to require further changes to the proposal.

225 The zone objectives for the RU4 zone warrant consideration for the reasons set out between (32) and (52). I now turn to consider the present proposal in the context of each of those zone objectives.

First zone objective – 2008 LEP

226 The first of the zone objectives of the 2008 LEP requires me to consider the extent to which the proposal enables sustainable primary industry and other compatible land uses both on site itself and elsewhere in the locality.

227 Whilst such uses might be regarded, in light of the future planning objectives for the Austral precinct as being ones with comparatively limited futures, they nonetheless require consideration as required by clause 2.3(2) of the 2008 LEP.

228 Although, from the site inspection, it was evident from the dilapidated rural structures that there has been some intensive horticultural activity on the site in the past, clearly, such opportunity will not remain if the school is to be approved.

229 In addition, on Mr Sinclair's evidence, there would be a carrying capacity, for grazing purposes, of between 10 and 20 sheep or alpacas and half that number of cattle or horses on the grassed area of the site. There is no suggestion, as I understood it, that this grazing capacity constituted a viable sustainable primary industry for the site.

230 The extent of the building detritus that was visible in the soil of the grassed area of the site as we walked around it meant that it was unlikely, as I earlier noted was my assessment, that any intensive in-ground market garden activities could be conducted on this portion of the site without extensive remediation and soil conditioning. Making that comment is not founded on any assumption by me that the site is contaminated, in any statutory sense, but is a reflection of my assessment of soil’s cropping utility.

231 I am, therefore, satisfied that I have no basis in these proceedings to conclude that there is any sustainable viable primary industry opportunity for the site.

232 The interrelationship between having a school on the site and primary industry activities on other properties in the locality are discussed earlier as are issues relating to the compatibility of the school with other land uses in the locality. As discussed, I am satisfied that there is no inappropriate or unacceptable tension capable of being caused by a school on the site and such other land uses.

233 I have, therefore, concluded that there is nothing in the first objective for this zone that acts as an impediment to the approval of the school on the site.

Second zone objective – 2008 LEP

234 I turn, now, on the second of the zone objectives of the 2008 LEP. This is in two parts, relating first to the rural character of the land and, second, to the scenic character of the land.

235 With respect to the first of these elements, it is clear that, except to the extent that the playing fields for the north of the site are open and green and that, around other parts of the site, there will be extensive (but largely perimeter) landscaping, it could not be said that the predominantly two-storey characteristics of the buildings proposed to be erected for the school will maintain the rural character of the site.

236 However, an examination of the air photos shows that in, in the locality, there are extensive built form elements for the various rural productive activities carried on within the locality.

237 The chicken sheds and the various covered horticultural production areas (comprising greenhouses and, predominantly, igloos) show, from both the aerial photographs and from the bus inspection of the precinct noted at the commencement of this decision, that the rural character of the locality is not one of green open fields – either exclusively or visually dominantly as one moves about the locality or the precinct traversed during the bus inspection.

238 Indeed, these productive agricultural activities mean that there is a very significant (and, from my observation during the bus inspection, often unscreened by landscaping), intrusion into the natural landscape. The extent of this, coupled with the rate at which I have concluded, as discussed elsewhere, this landscape will change to the future planned direction for the Austral precinct causes me to conclude that, to the limited extent that the proposed school may differ in scale to the present built form, it does not do so in a sufficiently disharmonious form to warrant any concern.

239 At the commencement of this decision, I described in the view over the locality to be obtained from a point on the crest of the hill on Fourth Avenue to the south of Gurner Avenue.

240 It was at that point, during the final stage of the bus inspection of the locality and of the precinct, that I observed what was necessary to assess what could be considered the “scenic character of the land”.

241 Essentially, the view from this point to the site, the only relevant place, in my assessment, from which it would be appropriate to make any assessment of the extent, if any, that the land actual might have “scenic character”, would lead to the inclusion that, both individually and contextually, the land did not have any significant scenic character.

242 The view from the bus at this point was to the market garden and its igloos to the west of the private road; the non-descript and rundown rural and residential buildings on the site and the substantial residence and the even more substantial storage areas for construction materials (earlier noted as being present) on the site immediately to the east.

243 While there is undoubtedly significant green space in the dogleg grasslands around the jumble of structures on the site, the grasslands could certainly not be described – if undertaking a view impact assessment pursuant to Tenacity Consulting v Waringah [2004] NSWLEC 140 – as comprising elements of an iconic view.

244 Whilst the school will undoubtedly comprise a significant change to the observable character of the locality, to the extent that the school could be viewed, I am satisfied that the landscaping and structures of the school, with its playing fields to the north, will not merely “maintain the …. scenic character of the land” but will provide a visual improvement to it and its immediate surrounds.

245 There is, therefore, in my view, nothing arising from the second of the zone objectives in the 2008 LEP that causes me any concern as to the acceptability of the proposal.

Third zone objective – 2008 LEP

246 The third zone objective of the 2008 LEP is in the same terms as the third objective in the 1997 LEP. For the reasons earlier discussed concerning the 1997 objectives, there is no conflict between this objective and approval of the school.

Fourth zone objective – 2008 LEP

247 I turn, now, on the fourth of the zone objectives of the 2008 LEP. This is in the following terms:

To minimise conflict between land uses within the zone and land uses within adjoining zones.

248 With respect to this zone objective of the 2008 LEP, the question of potential conflict between the school and the activities of the chicken farm, being an impact said to arise because of odour emitted by the chicken farm, was earlier accorded separate consideration. No issue, as earlier discussed, arises.

249 From the evidence, the other activities within the zone that are potentially impacted by the school are those in the immediate locality. On the evidence from the planners, the air photographs and the resident objectors, there are, on my understanding, three distinct activities in the locality, other than the chicken farm, where it may be said that there might be some impact by the school. These are:

· the intensive horticultural activity on the property immediately to the west of the private road along the western boundary of the site;

· trucking movements from transport operations run on properties within the locality or immediately beyond the locality to the west along Gurner Avenue; and

· rural residential occupancies within the locality.

250 The possible conflicts that might exist between the school and the market garden operations on the property to the west are capable of resolution, as submitted by Mr Marincowitz by adaptive and neighbourly management of its operations being adopted by the proprietors of the market garden.

251 As Mr Marincowitz submitted and I accept, when one takes into account the restricted operations of the school (where no activities are permitted on weekends) when coupled with the number of ordinary school holidays, public holidays and, possibly, a number of special religious holidays associated with the school, there is more than sufficient time for the proprietors of the market garden to arrange their activities in a fashion which did not conflict with the school. Such adaption merely requires a little neighbourly respect and assumes, for the purposes of this submission, that there may be some potential for adverse impact that would arise on the market garden from the school (by complaints, for example).

252 In this regard, I note that the written objections, as best I am able to do understand the various addresses on them, do not include any objection from the proprietors of that market garden.

253 Reaching the conclusion that an appropriate neighbourly management regime could resolve any difficulties which might potentially arise between the school and the market garden is merely to be satisfied that a reasonable resolution to such a problem is available if the problem were to exist – it does not mean that I have reached any conclusion that, as a matter of fact, such a problem would exist.

254 The concerns that were expressed by the trucking operator who was amongst the resident objectors related to the width of the road and the potential conflict caused by increased car and bus traffic servicing the school. I am satisfied that this, again, does not constitute a problem of any significance. There are a number of reasons for this.

255 First, the hours of operation of the school are predictable and the commencing time for the school's activities in the morning is likely, in most instances, to be later than the departing time for vehicles undertaking transport business activities.

256 However, to the extent that this might not be the case, the upgrading that the school is required to undertake, as part of this project, for portion of the Fourth Avenue together with the scheduling that the council has made for works to the remainder of the Fourth Avenue should mean that turning right from Gurner Avenue into Fourth Avenue to go left or right at Fifteenth Avenue should be the preferred direction of operation for such trucking activities.

257 Indeed, the concerns that the resident objectors raised about safety issues at the intersection of Craik Avenue and Fifteenth Avenue (observed to be well founded during the bus inspection) means that the upgrading of Fourth Avenue, whether the school was to be present or not, should, merely for road safety reasons, be the preferred route to those purposes.

258 In addition, although there will undoubtedly be some private car use by parents and staff, the primary focus for transporting pupils to and from the school will be by bus and the applicant has agreed to a condition that will confine any bus operations authorised or organised by the school to be along Fourth Avenue. A condition of consent, to that effect, is to be in the conditions of consent.

259 As a consequence, I do not consider that there is any incompatibility between the school and these activities.

260 With respect to the same objective, the only possible conflict between the school and broader rural residential activities would be traffic impacts and there is no expert evidence that would suggest that there are any unacceptable traffic impacts of the proposal.

261 Finally, specific amenity issues arise with respect to the property immediately to the east. During the course of the hearing, Mr Ayling agreed to a number of amendments to the proposal, dealt with earlier, that will provide specific ameliorative changes to the proposal that, I am satisfied, will have the effect of removing any inappropriate impacts on the residence immediately to the east.

262 I note, in this regard, that there is no submission that the development of the school will have any specific, identified impact on future uses of the Federation's land. As a consequence, I am satisfied that the first limb of this same objective is not conflicted to any extent other than, perhaps, the necessity for management adaption, not unreasonable in extent, by the market garden to the west.

263 I do not understand that there is any suggestion that the proposed school will have any impact on any activity in adjoining zones thus the second limb of this zone objective is not engaged.

264 It therefore follows that I have concluded that there is nothing arising from this zone objective of the 2008 LEP that would act as any impediment to granting approval to the school.

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River

265 I turn now to consider the provisions in the Hawksbury-Nepean River Regional Environmental Plan (the Hawksbury-Nepean River Plan). This plan has the deemed status of a State Environment Planning Policy. However, it does not act to override the Growth Centres SEPP that was made after it [vide cl 12(3) of the Hawksbury-Nepean River Plan].

266 This plan, in cl 6, contains a number of specific policy statements and strategies for addressing them. Those upon which the Federation relies in these proceedings, saying that the proposed school is in conflict with them, are contained in the policy at cl 6(8). This provision is in the following terms:

(8) Agriculture/aquaculture and fishing

Policy: Agriculture must be planned and managed to minimise adverse environmental impacts and be protected from adverse impacts of other forms of development.

Strategies:

(a) Give priority to agricultural production in rural zones.

(b) Ensure zone objectives and minimum lot sizes support the continued agricultural use of Class 1, 2 and 3 Agricultural Land (as defined in the Department of Agriculture’s Agricultural Land Classification Atlas) and of any other rural land that is currently sustaining agricultural production.

(c) Incorporate effective separation between intensive agriculture and adjoining uses to mitigate noise, odour and visual impacts.

(d) Protect agricultural sustainability from the adverse impacts of other forms of proposed development.

(e) Consider the ability of the site to sustain over the long term the development concerned.

(f) Consider the likely effect of the development concerned on fish breeding grounds, nursery areas, commercial and recreational fishing areas and oyster farming.

267 The Federation says that the proposal for a school on the site is in conflict with the second limb of the policy in that, the Federation says, adding the school does not protect agriculture from adverse forms of other development and, in indeed, is inimical to this provision. A number of matters discussed earlier concerning the zone objectives in the 1997 and 2008 LEPs, in my view, cover similar territory. However, for the purpose of completeness, I assess this proposal against the strategies in this provision of the Hawksbury-Nepean River Plan.

268 Strategy (a) concerns giving priority to agricultural production in rural zones. This priority is afforded to production by the zone objectives of both LEPs. As earlier discussed, the only impact on rural operations that the proposed school will have is the removal of the agricultural potential of the land upon which it is to be located. That agricultural potential, for reasons earlier discussed, is minimal. I do not, therefore, consider that there is any inconsistency between this strategy and the proposed school.

269 Strategy (b) is directed at the zone objectives and minimum lot sizes in each of the LEPs relevant to this application but the strategy does not require any consideration concerning this application as it is directed to those of framing those local environmental plans not to assessment of individual applications.

270 Strategy (c) deals with buffer distances for noise, odour and visual impacts. Consideration of this topic is earlier dealt with concerning buffer distances pursuant to the council's development control plan provisions. For the reasons enumerated in that discussion, I do not consider that the proposed school transgresses or has any impact on agricultural potential in the locality as a consequence of its existence. The existence of other identifiable activities already being undertaken on properties that surround site do so in a fashion that, effectively, provides a ring shielding of the proposal from causing any impacts on any other rural activities in the locality.

271 Strategy (d) is also addressed by the earlier discussion concerning agricultural sustainability in the context of these applicable zone objectives of the two LEPs. I do not consider that any further specific comment beyond that which I have earlier written is wanted concerning this strategy.

272 Strategy (e) concerns the long-term sustainability of the proposed development. As the Federation has presented no evidence on this point and no contention is raised by the council with respect to it, there is nothing for me to consider and this strategy, therefore, cannot stand in the path of the proposal.

273 The final strategy, (f), concerns aquaculture and fisheries industries and is clearly irrelevant.

274 Further, if I be wrong about the Hawksbury-Nepean River Plan, as I observed concerning the Growth Centres SEPP, that SEPP has an overriding provision to ensure that outcomes mandated by planning pursuant to that SEPP will not be inhibited by other environmental planning instruments such as this plan. Given the conclusions which I have reached, as earlier discussed, concerning the current transition and future character of development in the Austral precinct, generally, and in this locality, specifically, even if there were any tension of any significance between the Hawksbury-Nepean River Plan and the proposal, I am satisfied that such tension could be ignored as a consequence of the changed future planning outcomes for the Austral precinct and this locality pursuant to the Growth Centres SEPP.

275 As a consequence, I am satisfied that, considering the all matters called up by cl 6.8 of the Hawksbury-Nepean River Plan, this plan poses no barrier to or raises even any minor concern about approval of the proposed school.

Economic impact in the locality

276 I turn, now, to the question of whether or not the proposed school will have some adverse economic impact on the locality. Mr Sinclair, in his statement of evidence at pages 12-14, provides a deal of statistical information from the Australian Bureau of Statistics concerning agricultural production in the Sydney Basin. He provides no statistical information concerning agricultural production of the Austral precinct level or of the agreed locality within which the site is located. Based on the statistical information, he makes a number of broad and sweeping assumptions about the impact that the school will have on agricultural economic activity in the locality and by some unspecified rippling effect, well beyond it.

277 However, as earlier discussed in my consideration of the relevant zone objectives and as also noted above with respect to the Hawkesbury-Nepean River Plan, the rural residential uses of allotments in the immediate vicinity to the east; across the intersection of Gurner Avenue and Fourth Ave.; and second to the west from the site on Gurner Avenue effectively provide a shield, by the restrictions that arise for future agricultural activities in the locality by virtue of the existing use of those allotments, that there can be no such impact caused by the present proposal – save to the extent that the agricultural potential (and thus the contribution to the economic activity within the Sydney basin) made by the 10 to 20 sheep or the 5 to 10 cows/horses capable of being grazed on the property will be lost.

278 I am satisfied that this loss is so trifling as not to warrant consideration. Absent any proper evidentiary foundation to establish that there is likely to be some specific adverse economic impact on identified businesses in the locality, the sweeping assumptions made by Mr Sinclair in this regard provide no assistance to the Federation's case.

279 Even if the sweeping assertions by Mr Sinclair did require some further consideration, I am satisfied that any adverse economic impact on agricultural production in the locality that is likely to occur over the foreseeable future will come as an inevitable consequence of the future planning direction identified for the precinct by planning pursuant to the Growth Centres SEPP and will certainly not come from the existence of the proposed school.

Conclusion

280 As a consequence of everything set out above, I am satisfied that proposed development satisfies the various matters canvassed by the Department of Planning in the correspondence quoted earlier. In particular, I am satisfied that the proposed school will not preclude land future uses identified in the relevant Structure Plan.

281 For the reasons set out in detail earlier, I am also satisfied that there is no significant impact by or on the proposed school that raises any merit issue warranting refusal of the application.

282 Although there are a number of minor areas where the proposal does not mesh perfectly with the zone objectives of the 1997 LEP and, similarly, with the zone objectives of the 2008 LEP, these are not, individually or collectively, such that I should set aside the proposed consent orders or require any significant modification of the proposal.

283 As to the predominant planning framework considerations, a combination of the availability of the Infrastructure SEPP to provide a platform of permissibility if the application were resubmitted coupled with the inference I consider it entirely reasonable to draw that approval of the application is not inconsistent with the Department of Planning's view of the long-term planning outcomes for the Austral precinct (provided the assessment undertaken by this appeal were to have been undertaken and found satisfactory – as has been the case).

284 This conclusion, coupled with the fact that I am satisfied that the transition has, in effect, at least to some extent, already commenced informally in the locality, leads me to conclude that there is no basis from the old, the current or the future planning regimes for the locality or the Austral precinct should cause me to refuse to give effect to the consent orders agreed to by the applicant and the council.

285 I should expressly repeat, as a summary of my conclusion concerning the odour issues posed by the Federation and a small number of resident objectors, that odour does not provide any basis upon which I could decline to give effect to the agreement between the applicant and the council.

286 However, as I raised within Mr Ayling on several occasions during the course of the hearing, there are a number of minor changes, all of which were said by Mr Ayling to be acceptable to the applicant, that are required to be made to render the proposal more acceptable. All of these changes, as I understood the position, were acceptable to the council and do not alter the consent order status of the outcome of these proceedings. These changes relate, as earlier noted, to:

· provision of a step in the facade of the administration building;

· removal of the staff parking on the eastern side of the perimeter trail adjacent to the administration building and facing the residence to the east with this space to be replaced by landscaping and the parking spaces relocated to the staff car park to the north of the buildings;

· installation of barriers to prevent this perimeter trail being used other than for the purposes for which it is required by the Rural Fire Service;

· some of the landscaping along the western boundary fencing and acoustic shield is to be planted outside this structure to soften its presentation; and

· relocation of the acoustic wall (with appropriate overlapping gaps to permit any required emergency service access), away from the eastern boundary of the site in order to improve the amenity of the existing residence to the east.

287 As also discussed with Mr Ayling, the conditions of consent are to require all bus movements under the school’s control to be via Fourth Avenue.

288 It therefore follows that the orders of the Court, by consent, will be:

1. The appeal is upheld;
2. Development Application DA492/2008 for the demolition of existing structures and the erection of a school, in eight stages, on 83-85 Gurner Avenue, Austral, is determined by the granting of development consent subject to the conditions in Annexure A; and
3. The exhibits are returned.

289 In order to enable the foreshadowed orders to be made, the applicant will need to file and serve revised plans, settled only with the council, and the council will need to file any revised conditions of consent, to be settled only with the applicant, to give effect to this decision. To set a timetable for this to occur, I therefore give the following directions:

1. The applicant is to file revised plans to give effect to this decision (which plans have been settled with the respondent council only) by the close of business on Friday 23 October;
2. The respondent is to file revised conditions of consent (settled with the applicant only) with the filing to be both in hard copy and electronically to the Court, by e-mail marked for my attention, by the close of business on Friday 30 October;
3. The matter is listed for mention before me at 9:30 AM on Wednesday 4 November;
4. Liberty to relist before me on two days notice if there are any matters relating to the plans and conditions to which the applicant and the respondent council are unable to agree; and
5. If directions (1) and (2) are complied with, I will make orders in chambers and vacate the mention on 4 November.

Tim Moore

Senior Commissioner

CITATION:	Ali v Liverpool City Council [2009] NSWLEC 1327
PARTIES:	APPLICANT Ashraf Ali RESPONDENT Liverpool City Council INTERVENOR Federation of Hellenic Associations Limited
FILE NUMBER(S):	10193 of 2009
CORAM:	Moore SC
KEY ISSUES:	CONSENT ORDERS - DEVELOPMENT APPLICATION - DEVELOPMENT CONTROL PLAN - SECTION 97 APPEAL :- Odour Future character Growth Centres strategy
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Protection of the Environment Operations Act 1997 Uniform Civil Procedure Rules 2005 Liverpool Local Environmental Plan 2008 Liverpool Local Environmental Plan 1997 Development Control Plan 40 Intensive Livestock Agriculture (Poultry Farming) and Intensive Plant Agriculture (Greenhouses / Igloos / Market Gardening) State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Sydney Regional Environmental Plan No. 20 - Hawkesbury–Nepean River
CASES CITED:	Ali v Liverpool City Council [2009] NSWLEC 107 Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 Warnes v Muswellbrook Shire Council [2009] NSWLEC 1284 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 Tenacity Consulting v Waringah [2004] NSWLEC 140
DATES OF HEARING:	15, 16, 17 and 18 September 2009
DATE OF JUDGMENT:	8 October 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr J Ayling SC INSTRUCTED BY HWL Ebsworth RESPONDENT Mr P Marincowitz, solicitor DLA Phillips Fox Intervenor Mr C Leggat SC Mr N Eastman, barrister INSTRUCTED BY CA Legal