Bailey v Oberon Shire Council

[2006] NSWLEC 815

Land and Environment Court

of New South Wales

CITATION:	Bailey v Oberon Shire Council [2006] NSWLEC 815
PARTIES:	APPLICANT Daniel Bailey RESPONDENT Oberon Shire Council
FILE NUMBER(S):	10630 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Application - Subdivision :- Compliance with EPA licences Noise Dust
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Protection of the Environment Operations Act 1997 Oberon Local Environmental Plan 1998 Oberon Development Control Plan 2001
CASES CITED:	Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675; Zhang v Canterbury City Council (2001) 115 LGERA 337 ; Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; Terrace Tower Holdings Pty v Sutherland Shire Council (2003) 129 LEGRA 195
DATES OF HEARING:	13 and 14 December 2006
EX TEMPORE JUDGMENT DATE:	12/14/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr C McEwen SC INSTRUCTED BY Staunton Beattie RESPONDENT Mr M Baird, barrister INSTRUCTED BY McIntosh McPhillamy & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

14 December 2006

06/10630 Daniel Bailey v Oberon Shire Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal on 9 May 2006 by Oberon Council (the council) of Development Application 170/06.

2 The application is to subdivide an allotment which has an existing single residence on it which allotment is located at 12 Parkes Street, Oberon (the site). The site’s Real Property Act descriptors are Lot 3 Deposited Plan 1078889.

3 It is proposed that the existing single allotment will be divided so that it will create a large allotment upon which the present dwelling will remain; three individual residential allotments to the west of that (each of which will be a little in excess of 3,300 sq m); and, at the western end of the existing allotment, a proposed light industrial/commercial allotment of a little over 8,700 sq m in area.

4 The site is slightly undulating.

5 Although the present access to the existing residence is via Parkes Street, the site has an extensive frontage to Albion Street, which is the main truck bypass for Oberon.

6 Although the site is generally cleared, it contains a number of gentle slopes; a modest hillock towards its western end; and a depression incorporating very dry dam approximately in its southern centre.

7 Access to the three new residential allotments is proposed to be by the construction of portion of an existing unmade road named Whalan Street and access to the proposed light industrial allotment is to be from Albion Street.

8 The access via Whalan Street, coupled with the requirement for a 50 m set back from Albion Street for any residential development on allotments which have a frontage to that street, will necessarily mean that the orientation of any dwellings constructed on the new allotments will be away from Albion Street and toward the main part of Oberon.

9 The council refused the application, essentially, on the basis of concerns as to whether or not there would be a significant economic impact at some future time if a regulator [such as the Environment Protection Authority (the EPA)] were required to act on complaints from residents (of the new residences which would arise from this subdivision) complaining about noise or airborne particulate emissions from an industrial complex known as the Oberon Timber Complex (the Timber Complex) which is located to the northwest of the site.

10 There is no dispute that the various enterprises located in the Timber Complex are significant underpinners of the local economy and make a not insignificant contribution to the regional and state economies.

11 I have in evidence a statement from Mr Tom Murphy provided on behalf of the council. Mr Murphy is the Chief Executive Officer of the Western Research Institute located at Charles Sturt University in Bathurst and his statement of evidence confirms the economic importance of the Timber Complex.

12 There is no doubt that an impact on the Timber Complex would, if it were significant, have a potentially catastrophic impact on the economy of Oberon and on the social and economic wellbeing of its populace.

13 As a consequence of this, consistent with the decision of the High Court in Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675, these proceedings do raise the issue of potential social impacts which are capable of being considered as a legitimate part of the planning consideration of the proposal.

14 The emissions which come from the Timber Complex fall into two distinct categories:

• the first are noise emissions; and
• the second are the particulate or dust emissions.

15 The local planning context in which I must consider these emissions and any risk which might arise from this subdivision being affected by them is that the proposal is entirely permissible in the context of the Oberon Local Environmental Plan 1998 (the LEP), there being a single zone known as the 2V Village zone which encompasses the proposed subdivision, the Timber Complex and all other relevant locations within the township of Oberon.

16 The second matter that is called into issue in these proceedings in the council’s planning documents are the provisions of the council’s Oberon Development Control Plan 2001 (the DCP). When dealing with residential development, the DCP contains a provision, at C5.4, dealing with buffer zones around the Oberon Industrial Area being, I am satisfied, an area which is contiguous with the Timber Complex.

17 I have in evidence an aerial photograph marking the required buffer zones from the Timber Complex - which were adjusted in early 2006 by the council from the previous broad descriptor of a numerical radius to one which now follows a series of property boundaries.

18 It is clear from that photograph that two matters of relevance arise in these proceedings.

19 The first is that the site is entirely outside that designated buffer zone.

20 Indeed, on the old descriptor of the buffer zone on a purely radial basis, it is not contested that only portion of the proposed industrial commercial allotment would have been within the boundaries of that radial zone. However, the buffer zone, now following property boundaries, quite clearly encompasses not merely a significant area of the already developed part of Oberon but also a significant area of the already long term historically developed part of the village of Oberon.

21 It is this buffer zone described in the DCP that is called into play as the then council’s resolved position with respect to what the development control plan describes as “the objective of minimising land use conflicts and avoiding undue interference with the living amenity of residents by providing a minimum buffer zone around the various elements that are described in the table”.

22 I am obliged, as a consequence of the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 337 as discussed by Spigelman CJ at paragraph 75 on pages 386 and 387 of that report, to use the DCP is a focal or starting point of my consideration. It is clear in addition that although I am obliged to use the DCP as the focal or starting point, it is not the absolute determinant in my consideration. I am also obliged to consider, after making a proper assessment against all other provisions of s 79C of the Act whether the DCP should be departed from as a result of that s 79C assessment.

23 One matter that is clearly relevant in considering whether I should depart from the DCP or not is that discussed by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 where at paragraph 92. One of the matters to which his Honour adverts to as being relevant in the consideration of development control plans and council policies is consistency in prior decision making.

24 In that regard, I note from the aerial photograph which I have mentioned as part of the buffer delineation, when coupled with an aerial photograph which was part of the statement of evidence of Mr Nicholas Veale, the manager of Carter Holt Harvey’s MDF plant in the Timber Complex, that land in the very near vicinity of the present site has had - at least in the past two or three years at the longest - new residential development permitted on it.

25 In particular, there is new residential development which fronts Parkes Street which falls - as I will turn to shortly - within an area which, subject to the noise limits of various of the elements operating in the Timber Complex, would have greater noise restrictions for receptors at those premises than would be the case for receptors at premises proposed to be erected on the proposed subdivision. In that regard, I am satisfied that there would be, if I am to refuse this appeal, no consistency in the relevant element of the decision making process.

26 However the question of the potential impact on the Timber Complex also permits me to cast widely in a fashion noted by Mason P, in Terrace Tower Holdings Pty v Sutherland Shire Council (2003) 129 LEGRA 195 at paragraph 81, to ascertain what might or might not be the public interest in any given context.

27 To assist me in that process I have had a statement of evidence from Mr Veale; oral evidence from Mr Veale; oral evidence from Mr Cooper, an acoustic consultant on behalf of the applicant; and oral evidence from Mr Sleeman, an acoustic consultant who gave evidence on behalf of the council and who has worked extensively for various enterprises located in the Timber Complex.

28 I have also had access to a printout of the complaints register, for a period from the end of October 2001 to July 2006, of complaints received with respect to a variety of matters coming from the activities of the Timber Complex.

29 In his written statement of evidence, Mr Veale said, at paragraph 6:

“At the present time all the OTC operators conduct their affairs generally in conformity with the requirements of their operating licences.”

30 The operating licences to which Mr Veale refers are those issued by the EPA pursuant to the provisions of the Protection of the Environment Operations Act 1997.

31 The evidence of Mr Sleeman and the oral evidence given by Mr Veale reveals that that assertion is simply factually inaccurate and that that element of Mr Veale’s statement of evidence was dissembling and self serving for his employer – to put it at the most charitable.

32 The evidence from Mr Sleeman and Mr Cooper in consideration of the five EPA licences for elements of the Timber Complex which have noise control conditions in them - there being at least one other licence which has no noise control conditions - reveal that, of those five licences – on Mr Sleeman’s evidence, three of them do not operate at the present time in conformity with the noise requirements of their licence.

33 It was the agreed position of the acoustic experts that a consequence of that was that at various receptors the aggregated noise impact of the Timber Complex was itself non compliant.

34 On the issue of noise, I am therefore being asked by the council to reject this subdivision on the basis of a fear of complaint from the three new residences which would be erected on it or, at very worst - as the council would invite me to find, some further re-subdivision being permitted either by the council or by this Court - multiple more residences on that subdivision would lead to the closure of the Timber Complex or significantly contribute to it with a catastrophic impact on the local economy.

35 There are a number of matters with respect to noise that I should address in assessing that probability.

36 The first is that the noise about which complaint would be made is noise which, at least in some of its disaggregated parts, is being unlawfully emitted.

37 I set that aside for the time being but I propose to return to it.

38 The second is that the complaint register shows that over the period that I have referred to, the total number of noise complaints which have been registered through that process is 12.

39 A number of those noise complaints appear to be complaints by an employee of Mr Veale’s employer, complaining about the activities of another part of the Timber Complex.

40 I have no other evidence to indicate that that person complained on behalf of Mr Veale’s employer and I draw no inference adverse to Mr Veale’s employer from that. However, it does demonstrate that there are internal noise operating tensions within the Timber Complex in addition to those that might be described as outward looking.

41 However, of the 12 noise complaints during the period which is the subject of this analysis, I am unable to find any complaint about noise which appears to arise from any premises located in the near vicinity of the proposed subdivision. Indeed, all of the noise complaints appear to come from the more settled area generally located directly to the south of the complex.

42 It is now appropriate to restate the general proposition that has been used in a number of other proceedings of varying different kinds, that for the Court to be obliged to take account of a fear there has to be some rational likelihood that that fear will be realised and that the consequences of such realisation will be as the person fearing them expects.

43 I am not satisfied, nor do I believe it would be appropriate even on the most precautionary principle to be satisfied, that there is any significant likelihood of any - let alone frequent - noise complaints from any new residences located on this site.

44 That conclusion is consistent with the evidence given by Mr and Mrs Hughes, the occupants of a new residence some two allotments to the east of the present Bailey residence on the site.

45 Mr and Mr Hughes are new residents whose approval for construction was given in 2005 – an approval which was given by the council in August 2005 without any requirement for special acoustic or any other environmental treatments to the dwelling.

46 I am satisfied that the likelihood of there being complaint is so de minimus as not to warrant consideration - that is complaint with respect to noise.

47 However, in addition, even if there were to be complaints with respect to noise, there is no suggestion arising out of Mr Veale’s evidence that the past complaints about noise that have been made about the Timber Complex have lead to any significant enforcement action by the EPA against any of the licence holders in it.

48 It is clear from the complaints register that a number of them were made to the EPA’s Pollution Line or to specific nominated officers of the EPA.

49 There is no suggestion that those complaints are leading to a vigorous enforcement regime against the Timber Complex - indeed it was Mr Veale’s evidence that there are currently discussions taking place between the various licence holders and the Environment Protection Authority about the possibility of pollution reduction programs; revision of licences and the like.

50 The noise presently generated which gives rise to present complaints is noise which is in breach of operating licences of the EPA.

51 I am of the view that it would be entirely improper for a member of this Court to rely on an unlawful activity to sustain an objection and use such objection to warrant or contribute to the refusal of an otherwise lawful application.

52 In any event, even if I did not hold that view as to the inappropriateness of doing so, for the reasons I have already enunciated there is no merit basis on which I should do so (setting aside that principle).

53 It is clear that the evidence of the Court-appointed town planner, Mr Lindsay Fletcher, which was tendered in these proceedings - Mr Fletcher not being required to give oral evidence - was based on an incompleteness of information and a very cautious approach. For that reason I do not pay particular regard to his reservations in this regard. He was certainly not informed of the non-compliance with EPA licences.

54 I turn now to the question of dust.

55 A similar number of dust complaints are recorded over the relevant period.

56 I have in evidence, attached to Mr Veale’s statement, an aerial photograph annotated as at October 2002, which shows a series of particulate fallout contours.

57 It is clear from those contours that the particulate plume from the Timber Complex, although falling uniformly round the Timber Complex for a number of areas, is significantly wind driven, in the direction of the site, by the obviously prevailing northwesterly winds.

58 Approximately half of the site falls within the .6 gsm per month deposition contour.

59 However, Mr Veale in his evidence - which I am prepared to accept on this point - consistently maintained that the operators of the various elements of the Timber Complex were compliant with respect to their stack emissions – he having conceded, when pressed, that a number of the licensees did not comply with the noise licences, I am prepared to accept his adherence to the proposition that, with respect to particulate emissions, there is compliance.

60 The complaints register shows some four or five complaints concerning particulate deposition, over a five year period, from an area that might be regarded as the broad locality in which the site is located.

61 These do not comprise a disproportionate level of the number of complaints about particulate deposition – contrary to what would be the intuitive position after a consideration of the particular deposition contours.

62 Mr Hughes gave evidence that he and his wife experienced no concerns whatsoever about particulate deposition, they having lived at their property since its construction after the 2005 approval was given.

63 I am satisfied that there is no significant likelihood of complaints about deposition of particulate material arising from this subdivision and the residences which will follow from it.

64 However, if there were to be such complaints I am also satisfied, consistent with the evidence Mr Veale gave about discussions with the EPA and consistent with my reading of both the nature of the complaints and what has happened to the complaints as recorded in the complaints register, that such complaints will give no comfort to any person whose objective might, in fact, be to close down the Timber Complex.

65 It follows from all that I have set out that I am satisfied that, although it is in my assessment unlikely that there will be significant complaints of noise or particulate fallout occasioned if this subdivision were to be approved, I am satisfied that those who are afraid of the consequences of such complaints have no reasonable basis upon which to expect that the dire consequences they fear would follow from such complaints would, in fact, occur.

66 I am therefore satisfied that the result of these proceedings must be that:

1. The appeal is upheld; and
2. Development application 170/06 for a five lot subdivision at 12 Parkes Street, Oberon being Lot 3 DP 1078889 should be granted development consent subject to a number of conditions which remain to be settled and one condition which remains to be determined by me; and

1. The exhibits, other than Exhibit A will be returned.

67 The matter which remains in contention between the parties, on conditions of consent, concerns whether or not there should be some notation on a s 88B instrument of the risk of affectation, either by noise or by particulate deposition or both or a general notation with respect to the Timber Complex as part of the subdivision process.

68 With respect to the notation of noise, I would have thought it equally inappropriate to require a s 88B instrument to require a notation of someone else’s unlawful activity.

69 It would seem to me that that is a matter which is contrary to sound principles of public policy.

70 However, setting that aside, I do not consider that such a notation of either, if both were appropriate, should occur.

71 It is an appropriate matter for a discretionary disclosure by the council on a s 149 certificate rather than anything which would fulfil a proper planning purpose by requiring a s 88B instrument to note it. The use of a s 149 certificate notation gives, in my view, the council a greater degree of flexibility as to what it might be prepared to say compared to that which would be appropriate for the Court to impose (if I were minded to impose such a condition).

72 Having reached that conclusion, the parties are now in a position to settle the terms of the conditions of consent. They are comparatively modest and should not take much time to be finalised. I therefore direct that the parties settle revised condition of consent which are to be filed electronically (in compliance with Practice Direction 2 of 2005) by the close of business on Tuesday, 19 December.

73 I set the matter down for mention before me on Friday 22 December at 9.30am on the basis that, if the conditions are filed as directed and an email is sent to the Court advising of their filing electronically, I will make orders in Chambers and vacate the mention.

Tim Moore

Commissioner of the Court