Bowen v Great Lakes Council

[2007] NSWLEC 231

Land and Environment Court

of New South Wales

CITATION:	Bowen v Great Lakes Council [2007] NSWLEC 231
PARTIES:	APPLICANT John Bowen RESPONDENT Great Lakes Council
FILE NUMBER(S):	10470 of 2003
CORAM:	Brown C
KEY ISSUES:	Appeal :- Consent Orders - modification of condition on poultry shed approval - odour
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	24/04/07
EX TEMPORE JUDGMENT DATE:	24 April 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr M Staunton, solicitor SOLICITORS Staunton & Beattie RESPONDENT Mr P Rees, solicitor SOLICITORS Mallik Rees

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

24 April 2007

10470 of 2003 John Bowen v Great Lakes Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of an application to modify Development Application No 10470/03 by Great Lakes Council (the council) for the extension one and tunnel ventilation of two existing poultry sheds at 6 Cowper Street, Stroud (the site).

2 The proceedings were conducted as an On Site Hearing and the judgement reflects the contents of the Statement of Basic Facts and the findings given on-site.

3 The matter now comes before the Court for Consent Orders, the council having reconsidered its previous refusal of the modification application. The modification application relates to condition 8 of the development consent issued by the Land and Environment Court on 22 October 2003 (Pooled Resources Pty Limited v Great Lakes Council, Appeal No 10470 of 2003).

4 Condition 8 states:

8. Spray misting fans are to be installed on the exit side of all fans that exhaust air from the sheds. The misters are to be designed to operate at all times the fans exhaust from the sheds.

5 The parties agreed that condition 8 should be deleted and replaced with:

8.1 Spray misters are to be installed on the exit side of all fans that exhaust air from the sheds.
8.2 Except during the first four weeks of the growout period in each cycle, the misters shall operate:
(a) at all times of tunnel ventilation, and
(b) at any other time when the fan with which misters are associated operates in order to maintain the internal shed temperature between 23 and 28 degrees Centrigrade.

6 In accordance with Practice Direction No. 23 an objector may seek leave to be heard in the Court’s consideration of the Consent Orders. In this regard, Mr George Trinkler of 33 Thompson Lane, Stroud provided evidence on site. Additionally, a letter from Mr Trinkler and three additional letters from other residents were tendered. Mr Trinkler expressed concerned that odours were still noticeable from time to time depending on the particular weather conditions. This odour generally occurred in the morning and evening.

7 Mr Graham Smith also provided evidence on site in support of the application. He stated that he is the closest residence to the site and is not trouble by the existence of the poultry farm. On rare occasions he noticed odours coming from the site. These occurrences were generally consistent with the change over of bird stock. He advised caution in attributing odours to the site when there are other potential sources within the area. A further letter from the owner of the property opposite the entrance to the site was also tendered supporting the application.

8 In balancing evidence, I am satisfied that modification can be approved as there was no evidence to suggest the modification would exacerbate any odour impacts, including the evidence of Mr John Jiang on behalf of the council. Mr Trinkler’s concerns are understandable however the modification will not create any additional odours. It was agreed by the experts that the size of the birds in the first 4 weeks of the growing cycle is not likely to generate any appreciable odour compared to the latter parts of the growing cycle. For this reason, the use of the misters is not necessary.

9 As part of the general operation of the poultry farm and in response to the concerns of Mr Trinkler, I note that condition 9 required odours to be sampled after the commissioning of the shed extensions and tunnel ventilation. The sampling was undertaken on 1 May 2006 and it was found that the sampled emissions were lower than those modelled in the assessment of the development application.

10 The Orders of the Court, by consent are:

1) The appeal is upheld.
2) Development Application No 10470/03 is modified by the deletion of condition 8 and the replacement with the following condition:
8.1 Spray misters are to be installed on the exit side of all fans that exhaust air from the sheds.
8.2 Except during the first four weeks of the growout period in each cycle, the misters shall operate:
(a) at all times of tunnel ventilation, and
(b) at any other time when the fan with which misters are associated operates in order to maintain the internal shed temperature between 23 and 28 degrees Centrigrade.
3) The exhibits are returned with the exception of exhibit A.
___________
G T Brown
Commissioner of the Court