Brigden v Parry Council

Case •

[2004] NSWLEC 386

•

07/23/2004

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION: Brigden v Parry Council [2004] NSWLEC 386
PARTIES:

FIRST APPLICANT
Edward John Brigden
SECOND APPLICANT
Anthony Wayne Chaffey

FIRST RESPONDENT
Parry Shire Council
SECOND RESPONDENT
Baida Poultry Pty Limited
FILE NUMBER(S): 10071 of 2003
CORAM: Brown C
KEY ISSUES: Development Application :- designated development
poultry sheds
odour
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Parry Local Environmental Plan 1987
Protection of the Environment Operations Act 1997
CASES CITED:
DATES OF HEARING: 22/03/04, 10/06/04
DATE OF JUDGMENT: 07/23/2004
LEGAL REPRESENTATIVES:


FIRST / SECOND APPLICANT
Mr C McEwen, barrister
SOLICITORS
Robilliard and Robilliard

FIRST RESPONDENT
Mr C Zoppo, solicitor
SOLICITORS
Sparke and Helmore

SECOND RESPONDENT
Mr J Robson, barrister
SOLICITORS
Maclarens



JUDGMENT:


      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Commissioner G T Brown

      23 July 2004

      10071 of 2003

      Edward John Brigden
      First Applicant

      Anthony Wayne Chaffey
      Second Applicant
      v
      Parry Shire Council
      First Respondent
      Baida Poultry Pty Limited
      Second Respondent

      JUDGMENT

      Introduction

1 The appeal is made pursuant to s 98 of the Environmental Planning and Assessment Act 1979 (the EPA Act) where an objector who is dissatisfied with the determination of a consent authority to a development application for designated development may appeal to the Court.

2 The appeal relates to the granting of development consent by Parry Shire Council (as it was at the time of approval) for the establishment and operation of 16 poultry broiler sheds and associated activities on the property known as " Murrami" (the subject site), located on the Oxley Highway at Somerton.

3 I record that a view of the subject site and surrounding area was undertaken on the first day of the hearing in the company of representatives from the applicants and respondents.

4 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent granted subject to conditions.

      The subject site

5 The subject site is located on the southern side of the Oxley Highway, approximately 46 km west of Tamworth and near the village of Somerton. It is described as Lot 2 in DP 804313 and Lots 17, 18, 127, 128, 129 and 205 in DP 755340. It is generally rectangular and has a total area of 376.2 hectares.

6 The area surrounding the subject site is rural in character, set amongst existing rural activities such as commercial grain and animal production. Properties adjacent to the subject site are used for mixed farming operations and include lamb and beef production as well as some cropping.

7 The nearby farm dwellings are on properties known as Moorawra, Somerton Park, Old Menedebri, Beldornie, Keelendi. The village of Somerton is located approximately 2.4 km to the west of the subject site. The location of the farm dwellings and the village of Somerton village, in relation to the proposed development, are shown on the plan marked Attachment 1.

      The proposed development

8 It is proposed that Baida Poultry Pty Limited (the proponents) establish two meat chicken farm modules on the subject site. The farm modules are to be separated by approximately 1 km. Each farm is to consist of 8 tunnel ventilated sheds with each shed containing 50,000 birds, giving a total of 400,000 birds for each farm and an overall total of 800,000 birds. Each shed is to be constructed of cool room sandwich panel material and will measure 154.8 m x 15.2 m. Ventilation in each shed is to be controlled by 10 fans that direct expelled air to the west from the western sheds (Farm 1) and to the east of the eastern sheds (Farm 2). The location of each farm is shown on Attachment 1.

      The issue

9 The sole issue between the parties is the impact of odour on nearby properties.

      The planning context

10 The subject site is zoned No 1(b) General Agriculture under the provisions of Parry Local Environmental Plan1987. The proposed development is a permissible use within the zone.

11 The proposed development is designated development under Schedule 3 (cl 21(4)(a)) of the Environmental Planning and Assessment Regulation 2000 (the Regulations). It is defined as an “intensive poultry industry” as it accommodates more than 250,000 birds. The proposed development is also integrated development under the EPA Act, as approvals are required under the Roads Act 1993 for the water supply to cross beneath the Oxley Highway, under the Water Act 1912 for a licence to remove water from the Peel River for industrial purposes and under the Protection of the Environment Operations Act 1997 (the POEO Act) for a environment protection licence.

      Legislative odour requirements

12 The POEO Act requires that the operator of any facility must not cause air pollution (including odour) through a failure to maintain or operate equipment, or to deal with materials, in a proper and efficient manner. The operator must also take all practicable means to minimise or prevent air pollution (ss 124, 125, 126 and 128).

13 The proposed development falls within the general definition of "livestock intensive industries" in Schedule 1 of the POEO Act, being a poultry farm for more than 250,000 birds. Specific provisions are provided for activities listed in Schedule 1. Section 129(1) of the POEO Act prohibits the emission of an "offensive odour" from scheduled premises, however s 129(2)(a) provides a defence against the emission of an offensive odour if the odour was omitted in accordance with the conditions of the licence directed at minimising the odour. The term "offensive odour" is defined in the Dictionary as:


        (a) that, by reason of its strength, nature, duration, character or quality, or the time at which it is emitted, or any other circumstances:
          (i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or
          (ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or
        (b) that is of a strength, nature, duration, character or quality prescribed by the regulations or that is emitted at the time, or in other circumstances, prescribed by the regulations

14 As a means of predicting and assessing the likely impact of odour from premises, the Environmental Protection Agency (the EPA or as it is currently, the Department of Environment and Conservation) has produced the document" Approved Methods and Guidance for the Modelling and Assessment of Air Pollutants in New South Wales" (the Modelling and Assessment Guidelines). It adopts the following odour performance criteria for various populations:

      Population of affected community
      		Odour performance criteria (OU) – nose response time average, 99th percentile, AS4323.3-2001
      2 7.0
      - 10 6.0
      - 30 5.0
      - 125 4.0
      - 500 3.0
      Urban areas ( 2000) and/or schools and hospital 2.0

15 The criteria are to be used in conjunction with odour impact assessments using EPA approved dispersion modelling procedures outlined in the Modelling and Assessment Guidelines

      Odour predictions

16 Air dispersion models such as AUSPLUME or CALMET are used to predict ground level concentrations or deposition of pollutants emitted from one or more sources. The models rely on classes of input data, namely meteorological data (either on site collection or meteorological simulations such as TAPM), mode of release of odour (such as the exhaust emissions from the tunnel ventilated sheds) and source odour emission rate (the odour from the birds taking into consideration matters such as the age and number of birds, litter moisture content, ambient temperature and management practices).

17 The air dispersion modelling produces odour unit contours that can be compared to the adopted ground level concentration criteria from the Modelling and Assessment Guidelines for the relevant population.

      The assessment background

18 The proposed development was submitted to the Council on 11 July 2001. The development application was accompanied by an odour assessment by Egis Consulting that predicted a breach of the EPA guidelines using the AUSPLUME dispersion model and TAPM meteorological simulations. However, the odour assessment stated compliance could be achieved if amendments were made to the shed exhausts. Further details were required from the EPA that resulted in two further reports being submitted in November 2001 and February 2002. On 7 July 2002 the EPA requested further information.

19 In October 2002 a new odour assessment was submitted by Mirrabooka Consulting. The assessment undertook further meteorological modelling using TAPM meteorological simulations for the AUSPLUME dispersion model. The assessment resulted in substantially lower concentrations than the Egis Consulting assessment and concluded that there was no need for the proposed amendments to the shed exhausts. Following re exhibition of the proposed development and consideration of the submissions received during the re exhibition, the EPA provided General Terms of Approval to the Council who approved the development application on 19 December 2002.

20 The appeal was filed on 15 January 2003 and expert reports were prepared by Mr Koks from Mirrabooka Consulting for the proponent and by Dr Zib for the applicants. Due to unforeseen personal circumstances Mr Koks and Dr Zib independently withdrew from the appeal prior to the hearing.

21 On behalf of the proponent, Mr Robin Ormerod from the Pacific Air & Environment (PAE) used a combination of TAPM with CALMET to provide a meteorological description of the area. CALPUFF was used in place of AUSPLUME for the dispersion modelling. His predictions of odour emissions were higher than the Mirrabooka predictions but still indicated that the EPA odour performance criteria were met at all of the nearest residences. Dr Peter Best provided evidence for the applicants and reviewed the previous odour assessments as well as conducting some modelling.

      The expert evidence

22 At the hearing Dr Best provided evidence for the applicants, Mr David Dutaillis provided evidence for the first respondent and Mr Ormerod provided evidence for the second respondent. Dr Best and Mr Ormerod are specialist air quality consultants. Mr Dutaillis is the Acting Regional Manager at the Department of Environment and Conservation Northern Tableland Regional Office and provided specialist advice during the assessment of the development application leading to the EPA’s decision to provide General Terms of Approval under cl 70 of the Regulations.

23 The evidence of Dr Best differed significantly from that of Mr Ormerod and Mr Dutaillis. Dr Best maintains that there is considerable uncertainty in the results of the assessments carried out by the consultants for the proponent. This uncertainty is sufficient to warrant the refusal of the development application. Mr Ormerod and Mr Dutaillis conclude that the proposed development will operate within EPA guidelines and there is no reason why approval should not be granted.

24 Dr Best, Mr Ormerod and Mr Dutaillis prepared a joint statement outlining the major areas of disagreement. The differences between the experts centres largely on the reliability or suitability of data that is used in the modelling. I propose to use this as the basis for the assessment of the development application. In assessing the difference in evidence, I have included further evidence has been provided after the preparation of the joint statement.

      Odour Guidelines
      The evidence

25 It was agreed that the EPA adopted odour performance criteria of 4 OU/cu. m found in the Modelling and Assessment Guidelines was acceptable for the village of Sommerton. There was however, disagreement on the appropriate odour performance criteria for individual residences. Dr Best advocated the use of the 6 OU/cu. m odour performance criteria as it recognised the potential for greater occupancy and the network of social interaction likely in the community. While acknowledging that a 7 OU/cu. m odour performance criteria is likely to represent the level below which "offensive" odours should not occur for an individual with standard sensitivity to odours, Mr Dutaillis adopts a more individual approach and calculates the appropriate odour performance criteria based on a particular and current population for each receptor. These are shown below:

      Receptor / Location Applicable odour performance criteria for “Murrami” proposal
      Moorawarra 6.2
      Somerton Park 7
      Old Menedebri 6.7
      Beldornie 6.7
      Keelendi 7
      Somerton Village 4.17
      Somerton Primary School 2

      Findings

26 On this particular matter, I prefer the approach of Mr Dutaillis as it more closely reflects the approach set out in the Modelling and Assessment Guidelines.

      Odour emission rates
      The evidence

27 Mr Dutaillis was satisfied with the validity of the Mirrabooka odour emission rate model principally because of his dealings with the proponent's operation, the artificial environment inside the sheds and the potential errors of translating data from other premises. Overall, he considered that the Mirrabooka data provided a more certain odour emission model for the subject site.

28 Mr Ormerod indicated that his assessment applied an odour emission model based on a wider range of data from farms outside the Tamworth region. This was considered to be very conservative and further supplementary analysis of the data has led to the identification of some data which would be clearly unrepresentative of a well-managed and operated farm, as is proposed in the subject application. This has led to the odour emission model being modified to take into account a far less pronounced dependency on ambient temperature than was previously assumed. In his opinion, the revised model is still conservative when viewed in light of conditions applying at farms where the monitoring data for the model has been obtained.

29 Dr Best was critical of the Mirrabooka emission rate model, questioning its relevance for other than winter conditions. The measurements are also inconsistent with studies elsewhere in Australia and overseas, especially in its dependence on ventilation rates and its dismissal of other factors such as temperature. While accepting that the use of Queensland data by Mr Ormerod is a positive step, the lack of a detailed substantiation linking best practice at the proponents premises with practices at other locations and the use of revised and lower emission rates, may lead to a substantial under estimation of odours, especially in summertime conditions.


      Findings

30 There was agreement that there is no standard methodology for modelling odour emissions from poultry sheds and differences can be expected between different sheds based on how they are built and how they are operated. For the subject proposal, three basic odour emission rates models were prepared by Egis, Mirrabooka and PAE. The first and third related emission rates to batch age and temperature while the second related odour emission rates to batch age and ventilation rates and were obtained from other farms are operated by the proponent in the same region.

31 Mr Ormerod identifies the main potential odour sources (which, as I understand were not disputed) as litter, body odour from birds, dead birds (if not removed quickly and disposed of), stockpiled litter (during any mechanical disturbance) and litter spread on land as fertiliser. The main source of odour is identified as litter due to decomposition of manure accumulated through the growing cycle. This decomposition is a result of bacterial activity that is influenced by moisture content, temperature, pH and the availability of nutrients. At or near the surface, the presence of oxygen from the air creates aerobic conditions under which uric acid, proteins and animal fats containing large amounts of nitrogen are biodegraded. The result is nitrogen containing odourants, such as ammonia (Exhibit 101, p 8).

32 Mr Ormerod further states that the most effective approach to odour control is to address the moisture content of the litter by minimising water spillage and utilising the benefits of good ventilation. Poor management practices, such as allowing the litter to compact and consolidate, and/or to become too moist, can also substantially increase the generation of odour. Again, I do not understand these general comments to be disputed.

33 A schematic of major factors affecting odour emission in tunnel ventilated meat chicken sheds is included in the evidence of Mr Ormerod. (Exhibit 101, p 8). The schematic appears below and is helpful as it explains the various factors that contribute to the odour emission rate. The two major factors are shed ventilation rate and shed odour concentration.

      Shed ventilation rate

34 This is a matter discussed in detail by the experts and largely centres on the shed construction and its ability to be able to maintain conditions in the shed at a suitable (or thermo-neutral) level during all weather conditions. This allows the birds to grow in an optimal environment and avoid situations that would lead to the generation of odour.

35 On this matter I agree with the evidence of Mr Ormerod. He produced two separate odour emission rate curves. These curves relate odour emissions to bird numbers and temperature. The first was based on a combination of data from the proponents Bective Lane farm at low ambient temperatures and data from a variety of farms over a wider range of temperatures in southeast Queensland and Victoria. The second odour emission rate curve was an adjustment of the first but isolating the extreme data outliers. This provided lower odour emission rates than the first assessment. Dr Best accepted the second odour emission rate curve up to a temperature of 30 degrees but preferred the high emission rates from the first assessment for temperatures above 30 degrees (Exhibit H).

36 Mr Ormerods evidence should be preferred for a number of reasons. Firstly, I accept that the results of the first odour emission rate curves are unrepresentative of the likely emissions at the subject site. Mr Ormerod undertook further odour measurements at a shed in Beaudesert Shire at a time of consistent high temperature and from a shed with less than acceptable management practices. He described the conditions as a worst-case scenario. These conditions are not likely to reflect the conditions at the subject site however the results closely reflected the odour emissions at higher temperatures in the first assessment. For this reason, the adjustments made to the modelling in the second assessment by Mr Ormerod are more likely to reflect the emission rates from the proposed sheds.

37 Secondly, the sheds used in the first odour emission rate assessment were different to those proposed in this application. These sheds used in the assessment were tunnel ventilated but were retrofitted and less efficient than the purpose-built sheds proposed in the application. On the site view, the Court was taken to another of the proponents farms and shown a shed, known as Gidley 4A, which is similar to that proposed with this application. This could be compared to retrofitted sheds on the same farm. While I accept the applicants submission that it would have been preferable for odour measurements to have been taken at the Gidley 4A shed, I am not convinced that it is critical to the determination of the application because of the availability of other odour measurements and the ability to be able to adjust these through the modelling process.

38 Thirdly, Mr Glenn Campbell, the National Livestock Operations Manager for the proponent provided evidence on the operation of the proposed sheds. He states that commercial poultry can be produced in the most extreme climatic conditions while maintaining optimum performance with the least environmental impact. Under such conditions litter will be maintained in a dry, friable state, which generates the lowest level of odour. Bird comfort would be optimal which would reduce water intake and waste generation would be minimised. Mr Campbell further states that he is unaware of any commercial poultry operation in the world that could not be controlled through the use of evaporative cooling systems and wind chill. He maintains that with state-of-the-art computer climate control systems, as proposed in the application, optimum conditions can be maintained to within 0.5 degrees of the desired target temperature. This type of evaporative cooling system was observed in the Gidley 4A shed on the site view.

39 Fourthly, I accept the conclusions of Mr Ormerod and Mr Campbell on the effects of humidity on the birds. Dr Best argues that the evaporative cooling process results in condensation problems. This condensation creates moisture and consequently increased odour emissions. Mr Ormerod and Mr Campbell reject this proposition. While accepting that the greatest cause of increased odour emissions comes from moisture, Mr Ormerod states that this is more strongly associated with the use of foggers, poor control of inlet air, insufficient ventilation and a lack of attention to wet litter brought about by dripping, spillage or other problems from drinkers. These factors are not likely to occur at the proposed development. Additionally, he states that evaporative cooling will not cause condensation problems of any significance in the Tamworth region because of the particular meteorological conditions applying to this region. This is confirmed by Mr Campbell who provided details of the average daily relative humidity over a 12 month period (and based on 30 year survey period) for the Tamworth area. He states that the hot and humid conditions described by Dr Best have never occurred at Tamworth.


      Shed odour concentration

40 The shed odour concentration is related to the shed ventilation rate but also other factors such as stocking rates, dead bird removal, disease control, litter depth, age and type. These factors are largely controlled by the use of good management practices. Mr Campbell's evidence was instructive in this regard. His written statement contained the proponents Broiler Manual. It is a comprehensive document of over 100 pages and describes the procedures for raising birds to be followed by the proponent and members of the growing group. It describes the procedures as the minimum requirements for the growing of consistent quality broiler chicken with minimal impact on environment and the basis for systems improvement.

41 It is not necessary to explain the details of this document however I rely on the evidence of Mr Dutallas whose role has been to supervise inspections of the proponents poultry farms. He indicates that his observations confirm that the poultry farms are being operated in accordance with the proponents standard operating procedures and related documents. Mr Dutaillas further states that he has been intensively involved in technical investigations of the proponents existing and proposed farms and through these investigations he has gained a detailed insight into the standard operating procedures. He has also reviewed the proponents data on feed conversion ratios, bird mortality rates and shed performance in extreme weather. In his opinion, this information supports the proponents claim of a commitment to good operations and implementing improvements.

42 Evidence was provided to the Court on complaints received by the council and the EPA on premises operated by the proponent. Additionally, prosecutions by the EPA on premises operated by the proponent are included in the evidence of Mr Dutaillis. Notwithstanding these details, Mr Dutaillis acknowledges that the proponent and its employees were cooperative and of good intent in dealing with any problems. Recent pollution reduction programs have significantly reduced complaints since these programs were implemented. While the Court was urged to take these matters into consideration in establishing the bona fides of the proponent to properly manage the proposed sheds, I not convinced that past indiscretions should unduly impact on the Courts determination of the application. Mr Dutaillis, in his role as regulator, was comfortable in the proponents willingness and competency to address any problems, should they occur. There was no evidence to suggest that Mr Dutaillis's optimism was misplaced.

43 Based on the evidence of Mr Dutaillis I accept that the proposed sheds will be operated in a manner that will minimise shed odour concentrations.

      Meteorological data
      The evidence

44 Mr Dutaillis states that the Mirrabooka and Egis assessments are the only assessments that have fully met the EPA requirements for meteorological data. Any assessment must use at least one year of site-specific meteorological data or at least one year of site representative meteorological data to be deemed acceptable. The one-year site representative data must be correlated against a longer duration site with a representative meteorological data base of at least five years. The Mirrabooka and Egis assessments use the latter method of assessment using data from Tamworth airport with TAPM modelling.

45 Dr Best is critical of the lack of on-site meteorological data. He prefers data obtained from the Bective feedlot site, some 12 kilometres ESE of the subject site to the modelling based on data from the Tamworth airport. He states that the Bective data is sufficiently different to measurements in Tamworth and elsewhere to indicate that weather conditions at the subject site are unlikely to have been well represented in past simulations using TAPM modelling. The success of other methods such as CALMET is depend on the ability to assimilate the Bective feedlot data or on-site information in a satisfactory manner. He believes the 2002 PAE simulations with CALMET and using Tamworth and Gunedah data are of restricted utility in generating on-site predictions of winds for the subject site and subsequent odour impacts.

46 Mr Ormerod states that the 2002 PAE simulations are a more reasonable guide to predicted odour impacts than the Bective feedlot data. Dr Best brought the Bective feedlot data to the attention of the proponent although Mr Ormerod questions whether the weather station that supplied the data complies with all relevant standards. Based on his observations, the proximity of the weather station to existing trees may compromise any data. While the Bective feedlot data produced higher wind speeds than the subject site, Mr Ormerod accepts this as being consistent with a more elevated and exposed site.

47 Data from another weather station at Taradale, a few kilometres to the east of the Bective feedlot site was obtained and analysed by Mr Ormerod. The Taradale site is located on a flat valley floor with no nearby trees and, according to Mr Ormerod, complies with all relevant standards for weather station siting. The wind speed data for the Bective feedlot site and Taradale were found to be dramatically different at low wind speeds. The Taradale site has a much lower frequency of very light winds than the data generated at the Bective feedlot site. Mr Ormerod concludes that this raises a serious question over the validity of the Bective data for dispersion modelling at the subject site where the local surface and terrain characteristics differ considerably from the Bective site.


      Findings

48 I accept that the most appropriate meteorological data would be site-specific that was measured over a period of 12 months. If available, much of the discussion on the appropriateness of the other sources of data would not have been necessary. The absence of this data should not however restrict the Court in determining the application. The EPA requirements provide for meteorological simulations as a substitute for on-site data. The question to be the answered the by the Court is whether the Bective feedlot data is of sufficient integrity to compromise the modelling undertaken by the proponent.

49 In my opinion, the answer to this question is "no", for a number of reasons.

50 Firstly, the Bective data was the only available for the period July 2003 to February 2004 and as such did not satisfy the EPA minimum 12 month period for simulating meteorological conditions. Secondly, I accept Mr Ormerod's evidence that the Bective data is not representative of the conditions at the subject site. In coming to this conclusion I have given weight to the most recent data from Taradale. The analysis undertaken by Mr Ormerod (Exhibit 103, pp 12, 13 and 14) clearly supports the previous modelling undertaken by the proponent. Thirdly, the quality of the data from the Bective site must be questionable. There was no certainty that the weather station was constructed inaccordance to the appropriate standards.

      Overview of evidence

51 Dr Best states that the range of expected odour levels are likely to exceed the required guidelines because of the uncertainties in emissions rates, treatment of on-site meteorology, methods of treating the influence of source structure and the assessment of annoying odour within a connected community. Further information is necessary from the proponents operations and the emission characteristics of similar sheds in summer time before these confidence limits can be reduced. He concludes that the odour impact criteria will be exceeded at Beldornie and are likely to be exceeded at Moorawarra and Somerton Park.

52 Mr Ormerod is of the opinion that any uncertainty in emissions rates has been considered through the conservative assessment process, taking into account all relevant factors and available data. The original modelling by PAE was fairly indicative of an annual cycle notwithstanding the unavailability of the Bective data. The supplementary modelling (including the Bective data) is still likely to lead to a realistic simulation even though the supplementary period is not representative of long-term conditions. Consequently, the likelihood of the odour criteria being exceeded in the long-term is relatively low. The results indicate the clear need for good design and management and effective regulation of the proposal but any uncertainties are not likely to create impacts in excess of the guidelines.

53 Mr Dutaillis maintains that the modelling and data used in the assessment are conservative. He considers that the proposed sheds are to be designed and operated at standards well above those sheds used for the data collection. The predictions provided in the assessments for the proposed development would be at the upper level of the certainties.

54 The results of the various modelling undertaken by the proponent and the experts in these proceedings is set out in summary form in the table below:

      Receptors
      EPA Guidelines
      EGIS
      Mirrabooka
      Ormirod
      (- Bective)
      Ormirod
      (+ Bective)
      Best
      Moorawarra
      6.2
      0.58
      2.85
      2.5
      3.6
      5.8
      Somerton Park
      7
      7.17
      2.81
      2.1
      1.2
      2.4
      Old Menedebri
      6.7
      6.73
      1.93
      1.2
      1.0
      -
      Beldornie
      6.7
      2.28
      2.37
      3.7
      8.1
      10.2
      Keelendi
      7
      1.10
      1.59
      1.0
      3.5
      4.9
      Village
      4.17
      4.0
      0.9
      -
      -
      2.1
      References
      Ex4, P12
      Ex1, Fo G P3
      Ex4, Fdr 3, Fo 32, p ii
      Ex103, p27
      Ex H
      Ex H
      Conclusions

55 For the reasons set out in the previous paragraphs, I have preferred the evidence of Mr Ormerod and Mr Dutaillis. It follows that the appeal should be dismissed and development consent granted subject to the agreed conditions. In coming to this conclusion, the evidence presented to the Court was complex and analysis made more difficult by the diverse opinions of Mr Ormerod and Dr Best. Both are highly experienced and qualified consultants in the field of odour assessment. The Court was urged by the applicants advocate to give less weight to the evidence of Mr Dutaillis although as the evidence unfolded, his experience and knowledge was helpful in the Courts deliberation on fundamental issues such as the proponents operations and management practices, as well as in the regulatory role of applying the Modelling and Assessment Guidelines.

56 The oral and written evidence of Dr Best and Mr Ormerod contained numerous references to research papers and studies, both international and domestic, on odour emissions. These included cattle feed lots and piggeries and as well as poultry farms. These were raised to give weight to their respective opinions on the fundamental differences in the modelling procedures. While accepting that this data has some relevance to these proceedings, greater weight, in my view, should be given to the particular characteristics of the proposed application, the local conditions and the requirements in the Modelling and Assessment Guidelines.

57 In my view, the proponent established that the proposed sheds could be maintained at a suitable internal temperature in times of high ambient temperature and combined with good management practices, odour emissions rates would be minimised. In coming to this conclusion, the Court has given weight to the positive evidence of Mr Dutaillis on the operation of the proponents establishments and also the evidence Mr Campbell on the procedures for operating the proposed development.

58 I also accept that the proponent established that the Bective data was unreliable and that the modelling undertaken by Mr Ormerod should be preferred. Even if the Bective data was included in Mr Ormerod's modelling, the only variation to the requirements in the Modelling and Assessment Guidelines occurs at Beldornie. I accept the evidence of Mr Ormerod and Mr Dutaillis that this departure from the established odour performance criteria is not of great concern because of the conservative nature of the modelling. For this reason the suggestion by Dr Best that odour emission rates should be scaled up by 50% to take into consideration the uncertainty of the data should be rejected.

      Orders

59 For the foregoing reasons the Orders of the Court are:


          1) The appeal is dismissed.

          2) Development Application 2001/008 for the establishment and operation of 16 poultry broiler sheds and associated activities on the property known as “Murrami" located on the Oxley Highway at Somerton is approved subject to the conditions in Annexure A.

          3) The exhibits are returned.
      G T Brown
      Commissioner of the Court

Annexure “A”


Conditions of Development Consent

Edward John Brigden (1st Applicant)


Anthony Wayne Chaffey (2nd Applicant) v


Parry Shire Council (1st Respondent)


Baiada Poultry Pty Ltd (2nd Respondent)

ABBREVIATIONS USED IN SCHEDULE OF CONDITIONS



Abbreviations
AADTAverage Annual Daily Traffic
ADWFAverage Dry Weather Flow
AHDAustralian Height Datus
ARMCANZAgricultural Resource Management Committee of Australia and New Zealand
AWTSAerated Wastewater Treatment Systems
BODBiological Oxygen Demand
DBDecibel, used as a unit of sound
dB(A)Unit used to measure “A-weighted” sound pressure levels
DLWCDepartment of Land and Water Conservation
EISEnvironmental Impact Statement
ENCMEnvironmental Noise Control Manual
EP&A ActEnvironmental Planning and Assessment Act
EPAEnvironment Protection Authority
ESDEcologically Sustainable Development
FCFaecal Coliform
GTAGeneral Terms of Approval
HaHectare
LALCLocal Aboriginal Land Council
LBLLoad Based Licence
LEPLocal Environmental Plan
LGALocal Government Area
L/sLitres per second
MLMegalitre
NPWSNational Parks and Wildlife Service
NSWNew South Wales
NVC ActNative Vegetation Conservation Act
POEO ActProtection of Environment Operation Act
PSCParry Shire Council
SEPPState Environmental Planning Policy
SRAState Rail Authority
SVOState Valuation Office
TCCTamworth City Council
TRLPBTamworth Rural Lands Protection Board

SCHEDULE OF CONDITIONS





      i. Environmental Impact Statement (EIS), titled “Environmental Impact Statement, Poultry Broiler Farm Complex, “Murrami”, Oxley Highway Somerton via Tamworth – dated July 2001 and prepared by the Applicant.

      ii. Additional information supplied by the Applicant titled “Additional Information for EIS – dated 22nd May 2002 and Representations Report dated 8th May 2002.

      as amended by:

      iii. additional information supplied by the Applicant titled “Murrami Broiler Farm Air Quality Impact Assessment (the “Mirrabooka Report”) dated October 2002; and

      iv. these conditions.
      Reason: To confirm and clarify the terms of Council’s approval.

2 Despite the above, in the event of any inconsistency with the EIS, the conditions of consent as granted by Parry Shire Council will prevail.


      Reason: To confirm and clarify the terms of Council’s approval.

3 Any modification to the proposal shall only be carried out with the prior written approval of Parry Shire Council.


      Reason: To confirm and clarify the terms of Council’s approval.

4 It shall be the ultimate responsibility of Baiada Pty Ltd., and any subsequent owners of the site thereafter, to ensure compliance with the conditions of this approval.


      Reason: To confirm and clarify the terms of Council’s approval.

5 The Applicant shall take all practicable measures to prevent or minimise harm to the environment during the construction, operation, and where relevant, decommissioning of the development.


      Reason: To ensure that work is carried out in accordance with the relevant standards.

6 Throughout the life of the development, the Applicant must secure, renew, maintain, and comply with all the relevant statutory approvals applying to the development. The Applicant shall ensure that all contractors and sub-contractors are aware of, and comply with, the conditions of this consent and other relevant approvals.


      Reason: To confirm and clarify the terms of Council’s approval.

7 Prior to the commencement of any construction work associated with the development, the Applicant must obtain a construction certificate for the development from the Principal Certifying Authority.


      Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act, 1979 .

8 Prior to the commencement of operations of the development, the Applicant must obtain an occupation certificate from the Principal Certifying Authority.


      Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act, 1979 .


9 The proponent shall notify Parry Shire Council and all other relevant authorities in writing of the project commencement date(s) prior to construction and operation as relevant.


      Reason: To confirm and clarify the terms of Council’s approval.


ENVIRONMENTAL MANAGEMENT PLANS


10 The Applicant must prepare and implement a Construction Environmental Management Plan for the development. This plan should be prepared in consultation with Council and must:

      i. Describe the proposed construction works;
      ii. Outline the proposed construction work program;
      iii. Identify all the relevant statutory requirements and conditions of consent that apply to the construction phase of the development;
      iv. Set standards and performance measures for each of the relevant environmental matters associated with the construction work;
      v. Describe what actions and measures will be implemented to mitigate the potential impacts of the construction works, and to ensure that these works will comply with the relevant standards and performance measures;
      vi. Describe in detail what measures and procedures will be implemented to:
        • Manage construction traffic;
        • Mitigate any potential dust impacts;
        • Register and respond to complaints during the construction period;
        • Ensure the occupational health and safety of construction workers;
        • Respond to any emergencies; and
        • Respond to the discovery of any items of indigenous or non-indigenous heritage significance during site works;
      vii. Explain how the environmental performance of the construction works will be monitored, and what actions will be taken if any non-compliance is detected;
      viii. Describe the role, responsibility, authority, accountability, and reporting of key personnel involved in the construction of the development;
      ix. Include the following plans:
        • An Erosion and Sediment Control Plan;
        • A Stormwater Management Plan;
        • A Landscape Management Plan;

      No construction work on the development may occur before the Construction Environmental Management Plan has been approved by the Council.

      Reason: To confirm and clarify the terms of Council’s approval and to ensure compliance with relevant statutory requirements.

11 The Applicant must prepare and implement an Operation Environmental Management Plan for all future operations of the development. The plan should be prepared in consultation with Council and must:

      i. Describe the proposed operations;
      ii. Identify all the relevant statutory requirements that apply to the operation of the development;
      iii. Set standards and performance measures for each of the relevant environmental matters associated with the operation of the development;
      iv. Describe what actions and measures will be implemented to mitigate the potential impacts of the development and to ensure that the development meets these standards and performance measures;
      v. Describe what measures and procedures will be implemented to:
        • Register and respond to complaints;
        • Ensure the operational health and safety of workers; and
        • Respond to potential emergencies;
      vi. Describe the role, responsibility, authority and accountability of all the key personnel involved in the operation of the development;
      vii. Incorporate the Environmental Monitoring Program (see Condition 6); and
      viii. Include the following plans:
        • A Waste Management Plan;
        • A Mass Bird Disposal Plan;
        • A Quarantine Protocol; and
        • A Landscape Management Plan.
      ix. Include certification from the DLWC that all surface water management systems have been constructed to the satisfaction of the Department.

      The Operation Environmental Management Plan must be approved by the Council prior to the commencement of operations of the development.

      Reason: To confirm and clarify the terms of the Council’s approval and to ensure compliance with relevant statutory requirements.


ENVIRONMENTAL STANDARDS AND CONDITIONS


70 The Proponent shall comply with the construction hours specified in the EPAs General Terms of Approval contained in Annexure ‘A’ of this development consent.


      i. Prior to the commencement of construction activities associated with the development, a sign must be erected on the site in a visible position stating that unauthorised entry to the site is not permitted and showing the name and 24-hour contact telephone number of the builder or another person responsible for the site.
      ii. During construction activities associated with the development, the Applicant shall provide on site amenities, including toilets, washing facilities and an adequate supply of clean fresh drinking water for workers in accordance with WorkCover NSW guidelines.
      iii. All water storage ponds are to be designed and constructed to the satisfaction of Council in consultation with the DLWC.
      iv. All earthworks associated with the development, including any storages, are to be carried out to the satisfaction of Council in consultation with the DLWC.
      Reason: To confirm and clarify the terms of Council’s approval and to ensure compliance with relevant statutory requirements.


71 The proponent shall, in consultation with the relevant service authority, identify all services potentially affected by construction activities to determine requirements for diversion, protection and/or support. Any alterations to utilities or services shall be carried out to the satisfaction of the relevant authorities. The costs of any alterations shall be borne by the proponent unless otherwise agreed to by the affected service utility/authority.


      Reason: To protect the community against costs/expenses resulting from a development.


72 The installation, maintenance and operation of the LPG system shall be in accordance with industry best practice. As a minimum, AS 1596:2002 should be followed.


      Reason: In the interest of site safety and to ensure compliance with relevant statutory requirements.

73 The Applicant shall ensure that the fuel storage tank/bunker is bunded and appropriately lined in accordance with the requirements of Australian standard (AS) 1940 – The Storage and Handling of Flammable and Combustible Liquids.


      Reason: In the interest of site safety and to ensure compliance with relevant statutory requirements.


74 The Applicant must implement a Landscape Management Plan for the development, in consultation with Council. This Plan must:


      i. Describe in detail how the development site will be landscaped, including the location and species of all planting;
      ii. Incorporate appropriate mounding and landforms to ensure adequate site screening;
      iii. Detail proposed irrigation systems;
      iv. Incorporate the recommendations of the Flora and Fauna Assessment as outlined in Appendix H of the EIS.
      Reason: To enable the adequacy of proposed site landscaping to be fully assessed prior to site development works commencing.

75 All landscaping works undertaken shall be monitored and maintained at regular intervals to ensure their effectiveness. Landscaping works shall be maintained throughout the life of the development.


      Reason: To ensure that the landscape component of the development is maintained to an acceptable standard.

76 The submission of a security bond of $10,000 is required to ensure that the site is effectively landscaped and maintained for a period of eight (8) years from the date of completion of development works. The bond will be accepted by Council in the form of cash or an approved bank guarantee and shall be lodged with Council prior to the commencement of the development.


      Reason: To ensure that the landscape component of the development is maintained to an acceptable standard.


77 The Applicant must ensure that any external lighting associated with the development is mounted, screened, and directed in such a manner so as not to create a nuisance to surrounding land uses. The lighting must be the minimum level of illumination necessary in accordance with the recommendations of Appendix J of the EIS.


      Reason: To protect the amenity of the area and to confirm and clarify the terms of Council’s approval.


78 Should any item of indigenous or non-indigenous heritage significance be uncovered during construction activities associated with the development, all work is to cease immediately and the National Parks & Wildlife service and/or the Heritage Office contacted.


      Reason: To ensure compliance with relevant statutory requirements.


79 The Applicant shall adhere strictly to the Model Code of Practice of Domestic Poultry.


      Reason: To ensure compliance with the requirements of NSW Agriculture.


ENVIRONMENTAL MONITORING


80 The Applicant shall develop and implement an environmental monitoring program for the development. The environmental monitoring program must be approved by Council in consultation with the DLWC and EPA prior to the commencement of operations of the development.


      Reason: To confirm and clarify the terms of Council’s approval and to ensure compliance with relevant statutory requirements.

81 Twelve months after commencement of operations, and annually thereafter for the duration of the development on the anniversary of the date of consent, the Applicant shall submit an Annual Environmental Management Report to the Council. This report shall:


      i. Provide an overview of the operation of the development for the previous year;
      ii. Identify all the statutory requirements the development is to comply with;
      iii. Review the environmental performance of the development to determine whether it is complying with this consent and the statutory requirements;
      iv. Identify all the occasions during the previous year when there has been non-compliance; where non-compliance is occurring, describe what actions are (or will be taken) to ensure compliance, who will be responsible for carrying out these actions, and when these actions will be implemented;
      v. Include a summary of any complaints made about the development, and indicate what actions were taken (or are being taken) to address these complaints; and
      vi. Include the detailed reporting from the Environmental Monitoring Program and identify any trends in the monitoring over the life of the development.


      After reviewing the Annual Environmental Management Report, Council may require the Applicant to address certain matters identified in the Report. The Applicant shall comply with any reasonable requirements of the Council.

      Reason: To confirm and clarify the terms of Council’s approval and to ensure compliance with relevant statutory requirements.

82 One year after the commencement of operations, and every four years thereafter, unless the Council directs otherwise, the Applicant shall commission, and pay the full cost of, an Independent Environmental Audit. The Independent Environmental Audit shall:

      i. Be conducted by a suitably qualified, experienced, and independent person whose appointment has been endorsed by the Council;
      ii. Assess the environmental performance of the development, based on the environmental monitoring program (see Conditions 10 & 11); and
      iii. Recommend measures or actions to improve the environmental performance of the development, and/or the environmental management and monitoring systems.


      On its completion, the Applicant shall submit a copy of the audit report to the Council. After reviewing the report, the Council may require the Applicant to address certain matters identified in the Report. The Applicant shall comply with any reasonable requirements of Council.

      Reason: To enable the environmental performance of the development to be adequately assessed and managed.

83 The proponent will be required to contribute towards the continued maintenance of public road sections under the control of Parry Shire Council and Roads & Traffic Authority, and utilised for transporting product and materials to and from the site.


      The road is the Oxley Highway section from the development site entrance to the Tamworth City Council/Parry Shire Council boundary at Bowlers Lane, or Gidley Lane via Wallamore Road to Tangaratta Stockfeeds.

      Such contributions shall be based on Council’s adopted Section 94 Contributions Plan and Contributions Methodology Formula for Rural Based Industry pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 .

      The current rate of contributions assessed under this Plan based upon the ultimate traffic impact as detailed equate to 21 cents per tonne of product and material hauled into and from the site.

      The General Manager may at any reasonable time request production of the Applicant’s records to verify such quantities.

      The agreed rate of contribution per tonne hauled shall be subject to annual adjustment in accordance with the Bureau of Transport and Communication Economics Road Construction Price Index Levels, or other negotiated appropriate index, and these adjustments will be effective from 1st July each year.

      Contributions shall be forwarded by the developer to Parry Council on a quarterly basis. The contributions shall be accompanied by a reconciliation of product and material hauled to and from the site.

      The agreed rate of contributions per tonne hauled shall also be increased by any statutory payments thereto.

      Reason: To ensure compliance with Council’s Section 94 Contributions Plan – Rural Based Industry Traffic Generating Developments.


84 The proposed truck wash shall be located at least 50m inside the property to eliminate any queuing of vehicles onto the highway.


      Reason: To ensure compliance with the requirements of the Roads and Traffic Authority (RTA) and in the interest of traffic safety.

85 The new access road shall be located so that the approach site distance (ASD), the entering sight distance (ESD) and safe intersection sight distance (SISD) are in accordance with the requirements as outlined in the Guide to Traffic Engineering Practice Intersection at Grade (part 5 AUSTROADS 1988).


      Reason: To ensure compliance with the requirements of the Roads and Traffic Authority (RTA) and in the interest of traffic safety.

86 Intersection improvements shall confirm with figure 4.9.5 Rural Property Access, contained in the RTA Road Design Guidelines dated May 1999.


      Reason: To ensure compliance with the requirements of the Roads and Traffic Authority (RTA) and in the interest of traffic safety.

87 An approval under Section 138 (Roads Act 1993) to carry out any work including laying of pipelines with the Oxley Highway Road Reserve shall be obtained from the RTA.


      Reason: To ensure compliance with the requirements of the Roads and Traffic Authority (RTA) and to ensure compliance with relevant statutory requirements.

88 Any works within the highway road reserve including pipes and headwalls required to access the property over the table drain shall be constructed in accordance with RTA and Council requirements.


      Reason: To ensure compliance with the requirements of the Roads and Traffic Authority (RTA) and in the interest of traffic safety.

89 The existing access to the property shall be made redundant.


      Reason: To remove unused crossings.

90 The internal access road shall be constructed to a minimum width of 6 metres.


      Reason: To ensure that adequate area exists for on-site traffic movements commensurate with the demand likely to be generated by the proposed development.

91 The Applicant shall employ a suitably qualified and experienced Environmental Officer(s) throughout the life of the development, which appointment is acceptable to the Council. The Officer(s) will:


      i. Be responsible for the preparation of the Construction Environmental Management Plan and the Operation Environmental Management Plan (see Conditions 10 and 11);
      ii. Be responsible for considering and advising on matters specified in the conditions of this consent and advising on compliance with such matters;
      iii. Be responsible for receiving and responding to complaints in accordance with Condition 34; and
      iv. Facilitate an induction and training program for all persons involved with the construction and operation of the development.

      The Applicant shall notify the Council of the name and contact details of the Environmental Officer(s) upon appointment and any changes to that appointment.

      Reason: To confirm and clarify the terms of Council’s approval.

92 A community liaison committee (CLC) comprising at least three (3) community elected representatives, one (1) Parry Shire Councilor and other stakeholders endorsed by Parry Council shall be maintained by the proponent. This CLC shall be formed prior to commencement of any works and shall be consulted on any site management procedures which shall be fully considered by the proponent. The CLC shall meet on a regular basis. Meeting minutes shall be included in the Annual Environmental Management Report.


      Reason: To confirm and clarify the terms of Council’s approval and to facilitate community involvement and consultation in the interest of environmental management.


93 Prior to the commencement of construction activities associated with the development, the Applicant shall arrange for:


      i. A toll free number operating twenty four (24) hours seven (7) days per week for the purpose of receiving any complaints from members of the public; and
      ii. A postal address where written complaints can be lodged.

      Reason: To confirm and clarify the terms of Council’s approval and to ensure complaints are managed in an appropriate manner.

94 The Applicant shall report to the Council of the Annual Environmental Management Report (see Condition 22), all complaints received and actions taken to resolve or mitigate the issues raised in the complaints.


      Reason: To confirm and clarify the terms of the Council’s approval and to ensure complaints are managed in an appropriate manner.

95 The Applicant shall ensure that no spent litter generated from the farm is disposed on the subject site nor within a 5km radius of the subject site and shall be disposed of in accordance with the EIS. Litter shall not be stockpiled on the site.


      Reason: To ensure appropriate waste management procedures and mechanisms are put in place.


96 The proponent shall comply with the General Terms of Approval as issued by the EPA in Notice No. 1023141 as outlined in Annexure “A” of this development consent.


      Reason: To ensure compliance with the EPA’s General Terms of Approval and relevant statutory requirements.

97 The proponent shall comply with the General Terms of Approval as issued by the DLWC as outlined in Annexure “B” of this development consent.


      Reason: To ensure compliance with the DLWC General Terms of Approval and relevant statutory requirements.


98 The developer shall install stock proof fencing along the proposed pipeline route within the crown land reserve to the satisfaction of the Tamworth Rural Lands Protection Board (TRLPB). All works shall be conducted at full cost to the Applicant.


      Reason: To ensure compliance with the requirements of the Tamworth Rural Lands Protection Board.

99 The owner of the building must cause the Council to be given a statement (an “annual fire safety statement”) in relation to each essential fire or other safety measure implemented on the complex.

      The annual fire safety statement for the building is to state:

      i. That the essential fire or other safety measure:
        a) Has been assessed by a person (chosen by the owner of the building) who is properly qualified to do so, and
        b) At the date of the assessment was found to be capable of performing to a standard not less than the relevant standard prescribed in the schedule attached to the building approval, and
      ii. That a person (chosen by the owner of the building) who is properly qualified to do so (whether the person referred to in paragraph (1) or another person) has inspected the building and has certified that, at the date of the inspection, the condition of the building does not disclose any grounds for a prosecution under the Act.

      Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act, 1979 .

100 Fire Safety Schedule

Current Measures Minimum Standard for Performance
Proposed measures (implemented as a condition of approval)
Class 8 Part
Emergency Lighting
Hose Reel Systems
Exit Signs
Portable Fire Extinguishers
Fire Hydrant Systems
Water Storage		 Cl. E4.2 and E4.4 Building Code of Aust.
AND as 2293.1
Cl. E4.1 Building Code of Aust. And AS2444
Cl. E4.5, E4.6, E.8 Building Code of Aust. And AS2293.1
Cl. E1.6 Building Code of Aust. And AS2444
Cl. E1.3 Building Code of Aust. And AS2419.1
      Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act, 1979 .

101 A competent and suitably qualified consultant (fire engineer) shall be engaged by the benefactor of this consent to design a comprehensive fire protection system for the complex.


      The design shall have regard to:
      i. Rural Fire Service requirements for equipment compatibility
      ii. Water storage requirements for fire suppression
      iii. Compliance with relevant Australian standards
      iv. Provision for fire hose reels
      v. Compliance with Building Code of Australia BCA 96 for class 8 building performance based requirements
      vi. Provision for portable fire suppression equipment
      vii. Management procedures for personnel training
      viii. Management and operational procedures for minimising the risk of fire
      ix. Special fire/explosion risk management

      The report shall be furnished to Council prior to a Construction Certificate being issued for any work on the site. The recommendations of the fire protection report shall be fully implemented prior to occupation of any shed on the site.

      Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act, 1979 .


102 The Applicant is advised that prior to construction of the approved development it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued either by Council or an approved accredited certifier. A separate application, complete with detailed plans and specifications must be made for a Construction Certificate.


      Reason: To ensure compliance with the provision of the Environmental Planning and Assessment Act, 1979 .


On Site Sewage Management

103 A separate application shall be submitted to Council accompanied by the requisite fee. NO drainage is to be installed until such application has been submitted and approved and drainage plan/details obtained from Council.


      Reason: To ensure compliance with the provision of the Environmental Planning and Assessment Act, 1979 .

104 An application for a Construction Certificate shall be made upon completion of road construction and upgrading works.


      Reason: To confirm and clarify the terms of Council’s approval.

      ______________

G T Brown

Commissioner of the Court


rjs

Annexure “A”


Conditions of Development Consent

Edward John Brigden (1st Applicant)


Anthony Wayne Chaffey (2nd Applicant) v


Parry Shire Council (1st Respondent)


Baiada Poultry Pty Ltd (2nd Respondent)

ABBREVIATIONS USED IN SCHEDULE OF CONDITIONS



Abbreviations
AADTAverage Annual Daily Traffic
ADWFAverage Dry Weather Flow
AHDAustralian Height Datus
ARMCANZAgricultural Resource Management Committee of Australia and New Zealand
AWTSAerated Wastewater Treatment Systems
BODBiological Oxygen Demand
DBDecibel, used as a unit of sound
dB(A)Unit used to measure “A-weighted” sound pressure levels
DLWCDepartment of Land and Water Conservation
EISEnvironmental Impact Statement
ENCMEnvironmental Noise Control Manual
EP&A ActEnvironmental Planning and Assessment Act
EPAEnvironment Protection Authority
ESDEcologically Sustainable Development
FCFaecal Coliform
GTAGeneral Terms of Approval
HaHectare
LALCLocal Aboriginal Land Council
LBLLoad Based Licence
LEPLocal Environmental Plan
LGALocal Government Area
L/sLitres per second
MLMegalitre
NPWSNational Parks and Wildlife Service
NSWNew South Wales
NVC ActNative Vegetation Conservation Act
POEO ActProtection of Environment Operation Act
PSCParry Shire Council
SEPPState Environmental Planning Policy
SRAState Rail Authority
SVOState Valuation Office
TCCTamworth City Council
TRLPBTamworth Rural Lands Protection Board

SCHEDULE OF CONDITIONS




1 The Applicant shall carry out the development generally in accordance with:


      (a) Environmental Impact Statement (EIS), titled “Environmental Impact Statement, Poultry Broiler Farm Complex, “Murrami”, Oxley Highway Somerton via Tamworth – dated July 2001 and prepared by the Applicant.
      (b) Additional information supplied by the Applicant titled “Additional Information for EIS – dated 22nd May 2002 and Representations Report dated 8th May 2002.

as amended by:

      (c) additional information supplied by the Applicant titled “Murrami Broiler Farm Air Quality Impact Assessment (the “Mirrabooka Report”) dated October 2002; and
      (d) these conditions.

      Reason: To confirm and clarify the terms of Council’s approval.

2 Despite the above, in the event of any inconsistency with the EIS, the conditions of consent as granted by Parry Shire Council will prevail.


      Reason: To confirm and clarify the terms of Council’s approval.

3 Any modification to the proposal shall only be carried out with the prior written approval of Parry Shire Council.


      Reason: To confirm and clarify the terms of Council’s approval.

4 It shall be the ultimate responsibility of Baiada Pty Ltd., and any subsequent owners of the site thereafter, to ensure compliance with the conditions of this approval.


      Reason: To confirm and clarify the terms of Council’s approval.

5 The Applicant shall take all practicable measures to prevent or minimise harm to the environment during the construction, operation, and where relevant, decommissioning of the development.


      Reason: To ensure that work is carried out in accordance with the relevant standards.


6 Throughout the life of the development, the Applicant must secure, renew, maintain, and comply with all the relevant statutory approvals applying to the development. The Applicant shall ensure that all contractors and sub-contractors are aware of, and comply with, the conditions of this consent and other relevant approvals.


      Reason: To confirm and clarify the terms of Council’s approval.


7 Prior to the commencement of any construction work associated with the development, the Applicant must obtain a construction certificate for the development from the Principal Certifying Authority.


      Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act, 1979 .

8 Prior to the commencement of operations of the development, the Applicant must obtain an occupation certificate from the Principal Certifying Authority.


      Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act, 1979 .


9 The proponent shall notify Parry Shire Council and all other relevant authorities in writing of the project commencement date(s) prior to construction and operation as relevant.


      Reason: To confirm and clarify the terms of Council’s approval.


ENVIRONMENTAL MANAGEMENT PLANS


10 The Applicant must prepare and implement a Construction Environmental Management Plan for the development. This plan should be prepared in consultation with Council and must:


      (a) Describe the proposed construction works;
      (b) Outline the proposed construction work program;
      (c) Identify all the relevant statutory requirements and conditions of consent that apply to the construction phase of the development;
      (d) Set standards and performance measures for each of the relevant environmental matters associated with the construction work;
      (e) Describe what actions and measures will be implemented to mitigate the potential impacts of the construction works, and to ensure that these works will comply with the relevant standards and performance measures;
      (f) Describe in detail what measures and procedures will be implemented to:
          • Manage construction traffic;
          • Mitigate any potential dust impacts;
          • Register and respond to complaints during the construction period;
          • Ensure the occupational health and safety of construction workers;
          • Respond to any emergencies; and
          • Respond to the discovery of any items of indigenous or non-indigenous heritage significance during site works;
      (g) Explain how the environmental performance of the construction works will be monitored, and what actions will be taken if any non-compliance is detected;
      (h) Describe the role, responsibility, authority, accountability, and reporting of key personnel involved in the construction of the development;
      (i) Include the following plans:
          • An Erosion and Sediment Control Plan;
          • A Stormwater Management Plan;
          • A Landscape Management Plan;
      No construction work on the development may occur before the Construction Environmental Management Plan has been approved by the Council.
      Reason: To confirm and clarify the terms of Council’s approval and to ensure compliance with relevant statutory requirements.

Operation Environmental Management Plan

11 The Applicant must prepare and implement an Operation Environmental Management Plan for all future operations of the development. The plan should be prepared in consultation with Council and must:

      (a) Describe the proposed operations;
      (b) Identify all the relevant statutory requirements that apply to the operation of the development;
      (c) Set standards and performance measures for each of the relevant environmental matters associated with the operation of the development;
      (d) Describe what actions and measures will be implemented to mitigate the potential impacts of the development and to ensure that the development meets these standards and performance measures;
      (e) Describe what measures and procedures will be implemented to:
          • Register and respond to complaints;
          • Ensure the operational health and safety of workers; and
          • Respond to potential emergencies;
      (f) Describe the role, responsibility, authority and accountability of all the key personnel involved in the operation of the development;
      (g) Incorporate the Environmental Monitoring Program (see Condition 6); and
      (h) Include the following plans:
          • A Waste Management Plan;
          • A Mass Bird Disposal Plan;
          • A Quarantine Protocol; and
          • A Landscape Management Plan.

      (i) Include certification from the DLWC that all surface water management systems have been constructed to the satisfaction of the Department.

      The Operation Environmental Management Plan must be approved by the Council prior to the commencement of operations of the development.
      Reason: To confirm and clarify the terms of the Council’s approval and to ensure compliance with relevant statutory requirements.


ENVIRONMENTAL STANDARDS AND CONDITIONS


12 The Proponent shall comply with the construction hours specified in the EPAs General Terms of Approval contained in Annexure ‘A’ of this development consent.

      (a) Prior to the commencement of construction activities associated with the development, a sign must be erected on the site in a visible position stating that unauthorised entry to the site is not permitted and showing the name and 24-hour contact telephone number of the builder or another person responsible for the site.
      (b) During construction activities associated with the development, the Applicant shall provide on site amenities, including toilets, washing facilities and an adequate supply of clean fresh drinking water for workers in accordance with WorkCover NSW guidelines.
      (c) All water storage ponds are to be designed and constructed to the satisfaction of Council in consultation with the DLWC.
      (d) All earthworks associated with the development, including any storages, are to be carried out to the satisfaction of Council in consultation with the DLWC.
      Reason: To confirm and clarify the terms of Council’s approval and to ensure compliance with relevant statutory requirements.

13 The proponent shall, in consultation with the relevant service authority, identify all services potentially affected by construction activities to determine requirements for diversion, protection and/or support. Any alterations to utilities or services shall be carried out to the satisfaction of the relevant authorities. The costs of any alterations shall be borne by the proponent unless otherwise agreed to by the affected service utility/authority.


      Reason: To protect the community against costs/expenses resulting from a development.


14 The installation, maintenance and operation of the LPG system shall be in accordance with industry best practice. As a minimum, AS 1596:2002 should be followed.


      Reason: In the interest of site safety and to ensure compliance with relevant statutory requirements.

15 The Applicant shall ensure that the fuel storage tank/bunker is bunded and appropriately lined in accordance with the requirements of Australian standard (AS) 1940 – The Storage and Handling of Flammable and Combustible Liquids.


Reason:

In the interest of site safety and to ensure compliance with relevant statutory requirements.


16 The Applicant must implement a Landscape Management Plan for the development, in consultation with Council. This Plan must:

      (a) Describe in detail how the development site will be landscaped, including the location and species of all planting;
      (b) Incorporate appropriate mounding and landforms to ensure adequate site screening;
      (c) Detail proposed irrigation systems;
      (d) Incorporate the recommendations of the Flora and Fauna Assessment as outlined in Appendix H of the EIS.
      Reason: To enable the adequacy of proposed site landscaping to be fully assessed prior to site development works commencing.

17 All landscaping works undertaken shall be monitored and maintained at regular intervals to ensure their effectiveness. Landscaping works shall be maintained throughout the life of the development.


      Reason: To ensure that the landscape component of the development is maintained to an acceptable standard.

18 The submission of a security bond of $10,000 is required to ensure that the site is effectively landscaped and maintained for a period of eight (8) years from the date of completion of development works. The bond will be accepted by Council in the form of cash or an approved bank guarantee and shall be lodged with Council prior to the commencement of the development.


      Reason: To ensure that the landscape component of the development is maintained to an acceptable standard.


19 The Applicant must ensure that any external lighting associated with the development is mounted, screened, and directed in such a manner so as not to create a nuisance to surrounding land uses. The lighting must be the minimum level of illumination necessary in accordance with the recommendations of Appendix J of the EIS.


      Reason: To protect the amenity of the area and to confirm and clarify the terms of Council’s approval.


20 Should any item of indigenous or non-indigenous heritage significance be uncovered during construction activities associated with the development, all work is to cease immediately and the National Parks & Wildlife service and/or the Heritage Office contacted.


      Reason: To ensure compliance with relevant statutory requirements.


21 The Applicant shall adhere strictly to the Model Code of Practice of Domestic Poultry.


      Reason: To ensure compliance with the requirements of NSW Agriculture.


ENVIRONMENTAL MONITORING


22 The Applicant shall develop and implement an environmental monitoring program for the development. The environmental monitoring program must be approved by Council in consultation with the DLWC and EPA prior to the commencement of operations of the development.


      Reason: To confirm and clarify the terms of Council’s approval and to ensure compliance with relevant statutory requirements.


23 Twelve months after commencement of operations, and annually thereafter for the duration of the development on the anniversary of the date of consent, the Applicant shall submit an Annual Environmental Management Report to the Council. This report shall:

      (a) Provide an overview of the operation of the development for the previous year;
      (b) Identify all the statutory requirements the development is to comply with;
      (c) Review the environmental performance of the development to determine whether it is complying with this consent and the statutory requirements;
      (d) Identify all the occasions during the previous year when there has been non-compliance; where non-compliance is occurring, describe what actions are (or will be taken) to ensure compliance, who will be responsible for carrying out these actions, and when these actions will be implemented;
      (e) Include a summary of any complaints made about the development, and indicate what actions were taken (or are being taken) to address these complaints; and
      (f) Include the detailed reporting from the Environmental Monitoring Program and identify any trends in the monitoring over the life of the development.

      After reviewing the Annual Environmental Management Report, Council may require the Applicant to address certain matters identified in the Report. The Applicant shall comply with any reasonable requirements of the Council.

      Reason: To confirm and clarify the terms of Council’s approval and to ensure compliance with relevant statutory requirements.

INDEPENDENT ENVIRONMENTAL AUDIT

24 One year after the commencement of operations, and every four years thereafter, unless the Council directs otherwise, the Applicant shall commission, and pay the full cost of, an Independent Environmental Audit. The Independent Environmental Audit shall:

      (a) Be conducted by a suitably qualified, experienced, and independent person whose appointment has been endorsed by the Council;
      (b) Assess the environmental performance of the development, based on the environmental monitoring program (see Conditions 10 & 11); and
      (c) Recommend measures or actions to improve the environmental performance of the development, and/or the environmental management and monitoring systems.

      On its completion, the Applicant shall submit a copy of the audit report to the Council. After reviewing the report, the Council may require the Applicant to address certain matters identified in the Report. The Applicant shall comply with any reasonable requirements of Council.

      Reason: To enable the environmental performance of the development to be adequately assessed and managed.

ACCESS & TRAFFIC

Section 94 Contributions

25 The proponent will be required to contribute towards the continued maintenance of public road sections under the control of Parry Shire Council and Roads & Traffic Authority, and utilised for transporting product and materials to and from the site.


      The road is the Oxley Highway section from the development site entrance to the Tamworth City Council/Parry Shire Council boundary at Bowlers Lane, or Gidley Lane via Wallamore Road to Tangaratta Stockfeeds.

      Such contributions shall be based on Council’s adopted Section 94 Contributions Plan and Contributions Methodology Formula for Rural Based Industry pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 .

      The current rate of contributions assessed under this Plan based upon the ultimate traffic impact as detailed equate to 21 cents per tonne of product and material hauled into and from the site.

      The General Manager may at any reasonable time request production of the Applicant’s records to verify such quantities.

      The agreed rate of contribution per tonne hauled shall be subject to annual adjustment in accordance with the Bureau of Transport and Communication Economics Road Construction Price Index Levels, or other negotiated appropriate index, and these adjustments will be effective from 1st July each year.

      Contributions shall be forwarded by the developer to Parry Council on a quarterly basis. The contributions shall be accompanied by a reconciliation of product and material hauled to and from the site.

      The agreed rate of contributions per tonne hauled shall also be increased by any statutory payments thereto.

      Reason: To ensure compliance with Council’s Section 94 Contributions Plan – Rural Based Industry Traffic Generating Developments.

      Access & Roadworks

26 The proposed truck wash shall be located at least 50m inside the property to eliminate any queuing of vehicles onto the highway.


      Reason: To ensure compliance with the requirements of the Roads and Traffic Authority (RTA) and in the interest of traffic safety.

27 The new access road shall be located so that the approach site distance (ASD), the entering sight distance (ESD) and safe intersection sight distance (SISD) are in accordance with the requirements as outlined in the Guide to Traffic Engineering Practice Intersection at Grade (part 5 AUSTROADS 1988).


      Reason: To ensure compliance with the requirements of the Roads and Traffic Authority (RTA) and in the interest of traffic safety.

28 Intersection improvements shall confirm with figure 4.9.5 Rural Property Access, contained in the RTA Road Design Guidelines dated May 1999.


      Reason: To ensure compliance with the requirements of the Roads and Traffic Authority (RTA) and in the interest of traffic safety.

29 An approval under Section 138 (Roads Act 1993) to carry out any work including laying of pipelines with the Oxley Highway Road Reserve shall be obtained from the RTA.


      Reason: To ensure compliance with the requirements of the Roads and Traffic Authority (RTA) and to ensure compliance with relevant statutory requirements.

30 Any works within the highway road reserve including pipes and headwalls required to access the property over the table drain shall be constructed in accordance with RTA and Council requirements.


      Reason: To ensure compliance with the requirements of the Roads and Traffic Authority (RTA) and in the interest of traffic safety.

31 The existing access to the property shall be made redundant.


      Reason: To remove unused crossings.

32 The internal access road shall be constructed to a minimum width of 6 metres.


      Reason: To ensure that adequate area exists for on-site traffic movements commensurate with the demand likely to be generated by the proposed development.


33 The Applicant shall employ a suitably qualified and experienced Environmental Officer(s) throughout the life of the development, which appointment is acceptable to the Council. The Officer(s) will:

      (a) Be responsible for the preparation of the Construction Environmental Management Plan and the Operation Environmental Management Plan (see Conditions 10 and 11);
      (b) Be responsible for considering and advising on matters specified in the conditions of this consent and advising on compliance with such matters;
      (c) Be responsible for receiving and responding to complaints in accordance with Condition 34; and
      (d) Facilitate an induction and training program for all persons involved with the construction and operation of the development.

      The Applicant shall notify the Council of the name and contact details of the Environmental Officer(s) upon appointment and any changes to that appointment.

      Reason: To confirm and clarify the terms of Council’s approval.

34 A community liaison committee (CLC) comprising at least three (3) community elected representatives, one (1) Parry Shire Councilor and other stakeholders endorsed by Parry Council shall be maintained by the proponent. This CLC shall be formed prior to commencement of any works and shall be consulted on any site management procedures which shall be fully considered by the proponent. The CLC shall meet on a regular basis. Meeting minutes shall be included in the Annual Environmental Management Report.


    Reason: To confirm and clarify the terms of Council’s approval and to facilitate community involvement and consultation in the interest of environmental management.


35 Prior to the commencement of construction activities associated with the development, the Applicant shall arrange for:


      (a) A toll free number operating twenty four (24) hours seven (7) days per week for the purpose of receiving any complaints from members of the public; and
      (b) A postal address where written complaints can be lodged.

      Reason: To confirm and clarify the terms of Council’s approval and to ensure complaints are managed in an appropriate manner.

36 The Applicant shall report to the Council of the Annual Environmental Management Report (see Condition 22), all complaints received and actions taken to resolve or mitigate the issues raised in the complaints.


      Reason: To confirm and clarify the terms of the Council’s approval and to ensure complaints are managed in an appropriate manner.


37 The Applicant shall ensure that no spent litter generated from the farm is disposed on the subject site nor within a 5km radius of the subject site and shall be disposed of in accordance with the EIS. Litter shall not be stockpiled on the site.


      Reason: To ensure appropriate waste management procedures and mechanisms are put in place.


38 The proponent shall comply with the General Terms of Approval as issued by the EPA in Notice No. 1023141 as outlined in Annexure “A” of this development consent.


      Reason: To ensure compliance with the EPA’s General Terms of Approval and relevant statutory requirements.


39 The proponent shall comply with the General Terms of Approval as issued by the DLWC as outlined in Annexure “B” of this development consent.


      Reason: To ensure compliance with the DLWC General Terms of Approval and relevant statutory requirements.


40 The developer shall install stock proof fencing along the proposed pipeline route within the crown land reserve to the satisfaction of the Tamworth Rural Lands Protection Board (TRLPB). All works shall be conducted at full cost to the Applicant.


      Reason: To ensure compliance with the requirements of the Tamworth Rural Lands Protection Board.


41 The owner of the building must cause the Council to be given a statement (an “annual fire safety statement”) in relation to each essential fire or other safety measure implemented on the complex.


      The annual fire safety statement for the building is to state:

      (a) That the essential fire or other safety measure:
          (1) Has been assessed by a person (chosen by the owner of the building) who is properly qualified to do so, and
          (2) At the date of the assessment was found to be capable of performing to a standard not less than the relevant standard prescribed in the schedule attached to the building approval, and
      (b) That a person (chosen by the owner of the building) who is properly qualified to do so (whether the person referred to in paragraph (1) or another person) has inspected the building and has certified that, at the date of the inspection, the condition of the building does not disclose any grounds for a prosecution under the Act.
      Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act, 1979 .

42 Fire Safety Schedule

Current Measures Minimum Standard for Performance
Proposed measures (implemented as a condition of approval)
Class 8 Part
Emergency Lighting
Hose Reel Systems
Exit Signs
Portable Fire Extinguishers
Fire Hydrant Systems
Water Storage		 Cl. E4.2 and E4.4 Building Code of Aust.
AND as 2293.1
Cl. E4.1 Building Code of Aust. And AS2444
Cl. E4.5, E4.6, E.8 Building Code of Aust. And AS2293.1
Cl. E1.6 Building Code of Aust. And AS2444
Cl. E1.3 Building Code of Aust. And AS2419.1
      Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act, 1979 .

43 A competent and suitably qualified consultant (fire engineer) shall be engaged by the benefactor of this consent to design a comprehensive fire protection system for the complex.


      The design shall have regard to:
      (a) Rural Fire Service requirements for equipment compatibility
      (b) Water storage requirements for fire suppression
      (c) Compliance with relevant Australian standards
      (d) Provision for fire hose reels
      (e) Compliance with Building Code of Australia BCA 96 for class 8 building performance based requirements
      (f) Provision for portable fire suppression equipment
      (g) Management procedures for personnel training
      (h) Management and operational procedures for minimising the risk of fire
      (i) Special fire/explosion risk management

      The report shall be furnished to Council prior to a Construction Certificate being issued for any work on the site. The recommendations of the fire protection report shall be fully implemented prior to occupation of any shed on the site.

      Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act, 1979 .


44 The Applicant is advised that prior to construction of the approved development it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued either by Council or an approved accredited certifier. A separate application, complete with detailed plans and specifications must be made for a Construction Certificate.


      Reason: To ensure compliance with the provision of the Environmental Planning and Assessment Act, 1979 .


45 A separate application shall be submitted to Council accompanied by the requisite fee. NO drainage is to be installed until such application has been submitted and approved and drainage plan/details obtained from Council.


    Reason: To ensure compliance with the provision of the Environmental Planning and Assessment Act, 1979 .

46 An application for a Construction Certificate shall be made upon completion of road construction and upgrading works.


      Reason: To confirm and clarify the terms of Council’s approval.

      ______________
      G T Brown

Commissioner of the Court


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

4