Brunsdon v The Council of the City of Wagga Wagga - [2003] NSWLEC 168

No judgment structure available for this case.

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Land and Environment Court

of New South Wales

CITATION: Brunsdon v The Council of the City of Wagga Wagga [2003] NSWLEC 168

PARTIES:
APPLICANT
Colin Brunsdon
RESPONDENT
The Council of the City of Wagga Wagga

FILE NUMBER(S): 10960 of 2002

CORAM: Cowdroy J

KEY ISSUES: Development Application :- Piggery - designated development - integrated development - environmental impact - precautionary principle - impact of odour - impact of spreading of piggery waste - impact on watercourses and groundwater - impact of traffic - deferred commencement conditions

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 77A, s 79C, s 91, s 94
Environmental Planning and Assessment Regulation 2000, cl 72, Sch 3 cl 21(3)(b)
Land and Environment Court Act 1979, s 39(6A)(c)
Protection of the Environment Operations Act 1997
Wagga Wagga Rural Development Control Plan 2002
Wagga Wagga Rural Local Environmental Plan 1991
Wagga Wagga Rural Local Environmental Plan 1991 (Amendment No. 12)

CASES CITED: Greenpeace Australia v Redbank Power Company Pty Ltd and Singleton Council (1995) 86 LGERA 143;
Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270;
Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734;
Nicholls v Director-General National Parks and Wildlife and Others (1994) 84 LGERA 397;
Proprietors of SP 13318 and 13555 v Lavender View Regency Pty Ltd and North Sydney Council (1997) 97 LGERA 337;
Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21;
Scott and Others v Wollongong City Council and Another (1992) 75 LGRA 112;
Vertical Telecoms Pty Ltd v Hornsby Shire Council [2000] NSWLEC 172

DATES OF HEARING: 30/06/2003; 01/07/2003; 02/07/2003; 03/07/2003; 04/07/2003; 07/07/2003; 22/10/2003; 23/10/2003; 24/10/2003

DATE OF JUDGMENT:
12/19/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Webster SC
SOLICITORS
Friedlieb Byrne Solicitors
RESPONDENT
Mr C. Leggat (Barrister)
SOLICITORS
Phillips Fox

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10960 of 2002

Cowdroy J

19 December 2003

Colin Brunsdon

Applicant

v

The Council of the City of Wagga Wagga

Respondent

Judgment

Facts

1 The applicant appeals from the refusal of development application 010736 (“DA 010736”) dated 31 August 2001 by the Council of the City of Wagga Wagga (“the council”). The applicant sought approval for an intensive straw based piggery facility for up to 7,380 pigs on land known as “Compton”, Big Springs, Wagga Wagga (“Compton”). On 5 November 2002 the council issued a notice of determination refusing the approval of DA 010736.

Applicable environmental plans

2 Compton is located within “Zone No. 1 (Rural)” pursuant to the Wagga Wagga Rural Local Environmental Plan 1991 (“the LEP”). The Wagga Wagga Rural Development Control Plan 2002 (“the DCP”) divides the “Rural zone” as prescribed by the LEP into several sub-zones. Compton is within zone “Rural 1(a)” of the DCP. The DCP provides that piggeries within zone “Rural 1(a)” are a use of land which requires council consideration and approval.

3 Clause 9 of the LEP provides for the objectives of “Zone No. 1 (Rural)”, which include the protection, enhancement and conservation of agricultural land, soil stability and water resources; the minimisation of cost to the community of public amenities; and the encouragement of permissible rural industries. Clause 10 of the LEP itemises matters to be considered by the council for development within rural zones.

4 The LEP was amended by Wagga Wagga Rural Local Environmental Plan 1991 (Amendment No. 12) which was gazetted on 31 January 2003. A new subclause, namely cl 2(i), was inserted into the LEP and provides that an aim of the LEP is “to promote ecologically sustainable development.” “Ecologically sustainable development” is defined in cl 5 of the LEP as follows:-

ecologically sustainable development

means development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs (as derived from the

on

). The principles of ecological sustainability are set out in

5 Schedule 1 of the LEP lists four principles of ecological sustainability, namely the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity, and the desire to establish improved valuation, pricing and incentive mechanisms. The parties referred to the first three principles which are described in Sch 1 of the LEP as follows:-

1 The precautionary principle

Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing environmental degradation.

In the application of the precautionary principle, public and private decisions should be guided by:

(a) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

(b) an assessment of the risk-weighted consequences of various options.

The principle requires decision-making to give the environment the benefit of the doubt.

2 Intergenerational equity

The present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations (that is, a partnership among all of the generations that may use or expect to benefit from the nation’s resources).

3 Conservation of biological diversity and ecological integrity

Conservation of biological diversity and ecological integrity should be a fundamental consideration.

Designated and integrated development

6 The proposed development of an intensive piggery is categorised as designated development in DA 010736. Section 77A of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) defines designated development as development so declared by “an environmental planning instrument or the regulations”. Part 2.7.4 of the DCP provides that development declared as designated development is contained in Sch 3 of the Environmental Planning and Assessment Regulation 2000 (“the Regulations”). Schedule 3 of the Regulations lists activities of designated development, which includes the accommodation of more than 2000 pigs: see cl 21(3)(b) of Sch 3 of the Regulations. Since more than 2000 pigs are intended to be housed on Compton, cl 21(3)(b) of Sch 3 of the Regulations applies.

7 The proposed piggery is also integrated development since such activity requires an environment protection licence from the Environment Protection Authority (“the EPA”) pursuant to the Protection of Environment Operations Act 1997: see s 91 of the EP&A Act.

Infrastructure of the proposed piggery

8 The applicant proposes to erect 18 eco-shelters to house between 375 to 410 pigs in each shelter, making a total provision for 7,380 pigs or 6,750 larger pigs on Compton. The pigs will be bred in Victoria by Bunge Meat Industries Ltd and transported by truck to Compton. The pigs would remain onsite between 16 to 18 weeks and then removed by truck for processing. This procedure would be repeated 3 times per year and would operate on a 1 week changeover period to ensure regular changeover.

9 The pigs would be contained in the eco-shelters, the floor which would be covered with rice hulls and straw bedding (“the bedding”). The bedding would be brought to Compton by truck. The used bedding and absorbed waste (“the waste”) would be replaced and spread on Compton as fertilizer when the pigs are removed every 16 to 18 weeks. If weather conditions are unsuitable for spreading the waste, it is proposed to remove it for disposal elsewhere. The method proposed for disposal of the bedding waste is described in the Odour Modelling Report of FSA Consulting for the applicant (Exhibit “4”, Pt 7.2) as follows:-

Deep litter sheds will be used for housing all pigs on-site. Rice hulls, cereal straw or sawdust are generally used as bedding to absorb urine and manure and to provide comfort for the pigs. It is proposed that spent bedding will be spread immediately onto cropping land after removal from the sheds under normal circumstances. An area of 0.3 ha has been set aside for storage of spent bedding during wet periods. To provide a conservative assessment, that area has been included in the modelling as a permanent odour source.

Stockpiled spent bedding may become odorous where too much water is present. Odour emissions are minimised through proper management of the material. Formation of trapezoidal piles and use of a slightly sloping, compacted base for the stockpile area will minimise ingress of rain into the material and prevent excessive odour emissions.

Short term odour emissions may be released when piles disturbed for spreading on the application area, but this is generally restricted to the 3-4 hours after movement while the material is drying out. Spreading of the spent bedding should generally be undertaken during the middle of the day when odour dispersion is greatest. Where this occurs, the emissions resulting from spent bedding spreading will be insignificant compared to overall piggery odour emissions..

10 Details of the operation of the proposed piggery are contained in an environmental impact statement dated 23 April 2002 and prepared by Mr Mark Hogan, Environmental Manager of Bunge Meat Industries (“the revised EIS”). A previous environmental impact statement prepared by Mr Ian Farran of Agribiz Engineering of 5 September 2001 (“the original EIS”), had been submitted to the EPA for consideration. By letter dated 19 September 2001, the EPA raised several apparent deficiencies relating to disposal of waste, odour and the proximity of watercourses. As a result the revised EIS was prepared.

Environmental Issues

11 The issues relied upon by council in opposition to DA 010736 have altered slightly since the original refusal. There are 3 main issues for the Court to determine as follows:-

(i) whether the piggery and the spreading of waste on Compton would contaminate soils, watercourses and groundwater;

(ii) whether offensive odour will be generated as a consequence of the operations of the piggery;

(iii) whether the road system which would be used by heavy vehicles servicing the piggery is inadequate and unsuitable for such use.

During the hearing the experts on certain issues conferred in an attempt to reach agreement on the outstanding issues. Their agreements are contained in documents, subsequently tendered as Exhibit “T” (relating to contamination of soil, watercourses and groundwater), and Exhibit “S” (relating to traffic issues). There was no document tendered outlining agreement between the odour experts. To enable the agreements to be understood a summary of the evidence of each witness is set out hereunder.

Contamination of soil, watercourses and groundwater

Council’s evidence

(i) Dr Stephen Neville Webb

12 Dr Stephen Neville Webb, Consulting Engineer has expertise in stormwater management, flood management, total catchment and groundwater hydrology. Dr Webb’s evidence was principally concerned with groundwater and the deficiencies of the revised EIS.

13 Dr Webb opined that there were several omissions in the revised EIS. Such omissions included a failure to determine and describe the groundwater table within Compton, the area covered by the eco-shelters and the leachate pond. Dr Webb testified that the depths of the groundwater table below the ground surface in both normal times and in unusually wet periods had not been determined for Compton. Due to the absence of such information he considered that the groundwater table was likely to be within 3m of the surface in the general vicinity of where the eco-shelters or leachate pond are proposed to be located. Dr Webb referred to the Department of Urban Affairs and Planning’s Piggery Guidelines dated September 1996 (“the DUAP Piggery Guidelines”) which provide that it is unwise and undesirable for a piggery to be located “within an area where the watertable is within 3 metres of the surface”. He also believed that the proximity of groundwater to the surface would pose problems in constructing the leachate pond in the proposed location and said that the leachate pond is grossly undersized. Dr Webb additionally believed that the source of water to operate the piggery was inadequate.

14 Another omission of the revised EIS which Dr Webb identified was an absence to consider the effect of the floodplain on the position of the eco-shelters and the leachate pond. The DUAP Piggery Guidelines state that piggeries should not be located on floodplains. Dr Webb acknowledged that the revised EIS mentions that the eco-shelters and leachate pond will be bunded but he believed that the main purpose of the bunding is to contain pollutants rather than preventing the ingress of floodwaters. If the 100 year average recurrence interval flood event (“the 100 year ARI flood event”) occurred Dr Webb opined that the bunded area would be overtopped and part of the overflow would eventually make its way to the location proposed for the eco-shelters. He also observed that the revised EIS failed to consider overland flows of surface water and their effect upon the distribution of residual surface water during a flood.

15 Dr Webb considered that the revised EIS failed to consider and explain the impacts of heavy metals and salt in pig feed on Compton and adjoining land. Dr Webb noted that the revised EIS acknowledges that cadmium is present in the pig feed and would be contained in piggery waste. However the revised EIS made no attempt to deal with the levels of cadmium or to determine whether cadmium would constitute a threat to Compton or adjoining properties.

16 Dr Webb also concluded that there were errors of substance made in the revised EIS. Dr Webb believed that the annual rainfall adopted by the revised EIS was unrealistically low. A more realistic and higher rainfall has significant ramifications on the design of the piggery. For instance, the leachate pond capacity would have to be increased from 4ml³ to 20ml³.

17 Dr Webb believed that only 350ha of Compton is suitable for the spreading of piggery waste, rather than 810ha as proposed by the revised EIS. Dr Webb’s assessment was based upon the Environment Protection Authority’s (“the EPA”) policy entitled “Draft Policy: Assessment and Management of Odour from Stationary Sources in NSW” (“the EPA Draft Odour Policy”). Dr Webb opined that the revised EIS had not considered the buffer zones stated in the EPA Draft Odour Policy, which recommends minimum distances between a piggery and watercourses.

18 Additionally Dr Webb considered that land delineated for spreading piggery waste was not suitable for a variety of reasons. Dr Webb believed that the spreading of piggery waste, straw and husks would float even in low velocity floodwaters. If a storm occurred soon after such material is spread, runoff generated on that land would be transported into major creek systems. Dr Webb opined that inundation of the bunded area in the 100 year ARI flood event would inevitably lead to significant pollutants moving off-site including the pigs themselves who would become entrained in the flood waters, waste from the eco-shelters, waste from the storage pad and residue from the leachate pond.

19 Dr Webb was cross-examined concerning his state of knowledge of Compton and particularly of his assessment of the available land for the purpose of spreading the waste. He had incorporated in his report a diagram showing the contours of the property (Exhibit “D”, Figure 2). Dr Webb was unaware that extensive soil conservation measures had been undertaken on the property and that the surface contours had been substantially altered in consequence of such works.

(ii) Robert John Pattison

20 Mr Robert John Pattison, an agricultural scientist provided evidence which supported that of Dr Webb. Mr Pattison considered that the rainfall data relied upon by the applicant significantly understates the rainfall for Compton. Mr Pattison observed that neither EIS “gave a true guide to the rainfall in the area surrounding Compton”. Based upon recordings from Tarcutta Post Office and local farmers at Big Springs and Jockelyanda/Avon Downs Mr Pattison believed that the rainfall was approximately 700mm/year. If so, the effect upon the soil types and the likelihood of soils becoming waterlogged required consideration. Additionally, Mr Pattison was concerned that the revised EIS made no reference to significant rainfall events.

21 Mr Pattison noted that considerable soil conservation works had been undertaken on Compton which would be adequate to protect the piggery site if the rainfall was steady. However in heavy rainfall events he believed it was unlikely that the contour banks and bunding would be adequate to protect the site of the eco-shelters. He believed that it was inevitable that high intensity rainfall events would again occur, and the effects of such an event would be as follows:-

High intensity rainfall events will occur again. The effects of such an event on the piggery at Compton would be immense, particularly as from observations made from outside the property show that the piggery is situated in a basin and on the lower slopes of a very steep hill, Pinnacle Hill on the site. If an equivalent fall of rain to that of 16 March 1966 was ever to be received the bunding protecting the piggery would be totally inadequate and would certainly be breeched the pigs and the remains of the piggery infrastructure would be swept away and pigs would be found all the way down Livingstone Creek and into O’Briens Creek.

22 Mr Pattison testified that soils in the Compton vicinity are highly variable. Some were reasonably well drained but became waterlogged in years of above average rainfall. Mr Pattison was concerned that the soils could become too wet to carry any machinery designed to topdress waste from the eco-shelters during periods of higher rainfall. He noted that 2 other properties, namely Figtree and Waverley, had offered to take waste and had similar soil type to Compton. He was familiar with those properties and considered that they would not be of any assistance as they would become impassable for 6 months during any winter of near average rainfall.

23 Mr Pattison believed that the presence of water in dams in the vicinity and on Compton during a period of sustained drought suggested a high water table. He noted that the revised EIS contained no information concerning groundwater.

24 Mr Pattison believed that land adjacent to Livingstone Creek should be excluded from areas on which any waste could be spread because of the risk of pollution resulting from runoff during heavy rainfalls. He considered that for extended periods various paddocks would be too saturated to render them appropriate for disposal of waste. He stated that the disposal of waste from the eco-shelters would present significant difficulties in most years and that, in the absence of precise data concerning actual rainfall, it was uncertain whether the proposed piggery incorporates adequate measures to avoid pollution.

25 Mr Pattison also noted that no details were contained in the revised EIS concerning the level of cadmium and sodium chloride present in the feed and ultimately in the waste. He considered that both materials were potentially harmful to the environment. He observed that the spreading of any waste would need to be carefully undertaken to avoid concentration which would be detrimental to pasture production. Pasture of at least 5cm in length would be required to have sufficient holding power to prevent solids from moving even in the event of a moderate rainfall. As an environmental measure, Mr Pattison believed it was necessary to install groundwater piezometers to monitor the water table and nutrient levels. At least 8 piezometers would be required as part of the assessment.

(iii) David Marston

26 Mr David Marston, senior principal consultant considered the issue of soil management in the revised EIS. He was aware of existing soil conservation earth works on Compton, which were designed to manage surface water to control erosion. However Mr Marston stated that such earth works did not necessarily control excess nutrient movement within the runoff.

27 Mr Marston considered that the revised EIS did not provide adequate information concerning the crop and pasture cycles and the quantity of nutrients used by crops from the piggery waste. Similarly the information concerning the amount of nutrients likely to be contained in the waste was inadequate and no meaningful calculations for acceptable manure application rates were provided. Mr Marston said:-

The use of the nutrients and organic matter by plants and other soil organisms, the vulnerability of nutrient movement by surface water, and the potential of nutrients to move through the soil into the groundwater, are all influenced by the time of the year and the method by which the manure is incorporated into the soil.

28 With respect to nutrients and other chemicals, Mr Marston noted that there was no information contained in the revised EIS concerning the impact of residual levels of 10t to 13t of salt per year on the existing base load within the soil and groundwater. He considered that the salt could reduce the yield of crops and pastures on Compton and could also enter the surface and groundwater systems resulting in off-site soil and water degradation. No information had been provided in respect of the concentrations of cadmium or sodium chloride which would enter the groundwater if in excess of plant utilisation. Mr Marston believed that the infiltration of water was sufficient to carry the chemicals into the water tables.

29 Mr Marston concluded:-

Because this information is inadequate in the Revised EIS, it is not possible to determine what impacts the proposed use of pig-shed litter on ‘Compton’ will have on the soil and associated plant growth. In the absence of the above information, it is my opinion that the proper approach is to be cautious and to conclude, that for present purposes, the proposed management of the pig-shed litter on ‘Compton’ could have an unacceptable impact on the environment, in particular, pollution and/or contamination of soil in and about the waste application area (both on and off the site).

(i) John Anthony Sykes

30 Mr John Anthony Sykes, agricultural scientist, considered the effects of runoff and solid waste material from the proposed piggery on the environment and also the issue of salinity in his report of 5 June 2003. He supported the calculations and recommendations made in the revised EIS and in the original EIS.

31 Mr Sykes concluded that provided the proposed piggery is constructed in accordance with the revised EIS and the requirements of the relevant authorities, “there should be no risk of adverse environmental outcomes above those now experienced from the current agricultural use of the land.” Mr Sykes believed that there would be no escape of waste from the piggery or leachate pond because the “pond size is adequate for a rainfall of 700 mm/year”. Mr Sykes addressed the council’s concerns that the rainfall stated in the revised EIS was too low. Mr Sykes undertook an independent analysis of the rainfall and also searched official records of other stations in the region. He concluded that Compton could not have a higher average annual rainfall than “Humula Station”, being the closest station to Compton. Humula Station had an average rainfall of 632mm/year.

32 Mr Sykes concluded there is adequate clay on Compton to bund the areas where the piggery and leachate pond are to be located, and said that such clay “will be capable of compaction to the required standard.” He reported that the soil in the Big Springs area is a mix of red chromosols, yellow chromosols with yellow sodosol in the drainage lines. These soil types have a loam, to sandy clay loam topsoil which becomes sandy clay to medium clay subsoil at a depth of 10cm to 120cm. He said:-

The clay subsoil of these soil types is regarded as being impervious and preventing the movement of water to the groundwater system. It is also regarded as suitable for making the bunds and the catch pond proposed for the site. The soil map shows that other soil types, that lack the clay subsoil, may have been present in the area. The majority of these were deep sand soils, which allow water to quickly move through them. These soil types have the potential to leak surface water and nutrients to the groundwater system.

33 Mr Sykes stated there is a sufficient amount of land for the piggery waste to be spread. He believed that the piggery waste should be spread “on an area of 755-760 ha” and “at the rate of 17.2 t/ha every second year”. Provided the piggery waste is spread on suitable soil and onto an area of 700ha, Mr Sykes opined that the “chance of leakage to the stream or the groundwater will occur less than 1 year in 50 years”. Mr Sykes said that the spreading of piggery waste would benefit Compton as follows:-

Experience suggests that intensive livestock keeping establishment solid waste, like many other solid wastes, has a positive effect on raising the soil pH, thus lowering the soil acid level. It will therefore help ameliorate soil acidity, a major soil problem on Southern NSW, and reduce the amount of lime that will be required to be spread on the farm by about half.

34 To support his conclusions Mr Sykes noted that Pinnacle Hill within Compton was not available for solid waste spreading and that the 50m buffer was to be maintained from watercourses for the spreading of waste. He referred to extensive soil conservation work which had taken place on Compton and would eliminate erosion except in the most severe rainfall conditions. Even where erosion occurred runoff from Compton would be caught in banks or dams and any excess over the storage capacity would leave Compton at a slow rate.

35 Mr Sykes acknowledged that freshly spread piggery waste may have the potential to leave Compton and pollute waterways in the event of a very high intensity rainfall. He estimated the runoff at various storm intensities. He concluded that for water to quickly leave the farm with a significant quantity of solid waste, Compton would have to be relatively bare of grass and matter, which could only occur in late summer or autumn in a normal year or from late spring to autumn in a severe drought. Additionally all dams and banks would need to be full. He considered that such a prospect was very low.

36 Mr Sykes believed that there are no issues with salinity in the water or soil and there was no identifiable impact on the source of water for Big Springs.

37 Mr Sykes concluded that there were no groundwater issues. A bore had established that there was no groundwater evident at 1.8m to 1.9m below the proposed piggery site. In Mr Sykes’ opinion, it was impossible for water from Compton to affect Big Springs because of the levels between the two localities.

(ii) Mark Robert Stuckey

38 Mr Mark Robert Stuckey, soil scientist and hydrogeologist provided evidence of the results of a soil and hydrogeological capability assessment on Compton undertaken by bore hole (“BH”) testing. Six bores, identified as BH1 to BH6, were installed to undertake soil sampling in specific areas on Compton. Two groundwater monitoring bores, namely BH7 and BH8 were also installed to analyse groundwater and to determine the deeper soil and geological stratigraphy of the proposed piggery site.

39 BH1 was located immediately to the northeast to the proposed eco-shelters. It confirmed the presence of light grey-brown sandy loam with some trace of small gravel, charcoal and evidence of root channels to a depth of 1.5m below ground level. There was a difference in soil properties between BH1 and BH2 to BH6 which Mr Stuckey attributed to a change in soil landscape resulting from different landform elements.

40 There was a distinct difference in the stratigraphies between the two deeper boreholes, BH7 and BH8. BH7 and BH8 were sunk to a depth of almost 47.2m. BH7 was located to the northeast of the proposed eco-shelters and approximately 16m south of the paddock fence line. In this area there was heavy brown clay with iron and magnesium nodules as well as traces of fine sand and quartz fragments to a depth of 5.5m below ground level which is underlaid by a 0.5m lens of medium grain sand. Beneath the sand were sandy clay and clays. BH8 was located in the north-eastern corner of the north paddock and demonstrated sandy clay and clays throughout the profile.

41 With the exception of a thin lens of sand within BH1 at approximately 1.5m to 1.6m below ground level, the moisture content of the soil and rock at all points in the bore logs were recorded as dry moist. The detail of the log was presented as part of Mr Stuckey’s report. No groundwater was encountered. Piezometers were installed at BH7 and BH8 but over 2 days of testing were continually found to be dry. Mr Stuckey concluded that this indicated either that there was a very slow recovery of the bores following the drilling, or there is no groundwater to the depths investigated. Mr Stuckey said:-

The different geological and soil stratigraphies encountered at boreholes BH7 and BH8 indicate that if groundwater was to be encountered, this would be due to the existence of different aquifers. Groundwater at borehole BH7 is likely to occur through fracture flow within the granite encountered at depth, while at borehole BH8, groundwater is likely to occur within semi-confined aquifers due to the lensing of sands and clayey-sands throughout the profile.

Due to the sparingly permeable nature of the overlying soils and that no groundwater was encountered at depths of at least 22.0 m and 41.6 m bgl, it is considered that if any chemicals of concern such as nitrate, ammonia, potassium and phosphorus were to leach out of the spread piggery waste (spread at a sustainable rate of 9.3 t/ha/year) beneath the topsoil, it is highly unlikely that they will reach the water table and in turn, impact on potential receptors.

42 Mr Stuckey considered the adequacy of the proposed storage for the piggery waste. He noted that a 4 megalitre storage dam was proposed to hold surface water runoff, and that the piggery area is to be bunded. Surface water runoff would be kept separate from other runoff.

43 With respect to the proposed piggery waste application areas, he said that the introduction of piggery waste into the soil was likely to be highly beneficial, by “improving the structure and stabilising the soil against erosion.”

44 Mr Stuckey was satisfied that the soil could absorb most nutrients and stated:-

Soil analysis shows that the soil is capable of absorbing most of the nutrients that will be supplied as part of the application of piggery litter waste.

45 Mr Stuckey referred to some of the benefits that may be achieved from the spread of the waste and stated the Big Springs water bottling facility would not be adversely affected as follows:-

Given the landform elements and topography observed, and review of a report on the hydrogeology of the Kyeamba area (Reference 22), groundwater flow is inferred to be in a north to north-easterly direction, whereas the Big Springs water bottling facility is located to the northwest of the site. This facility is located within a separate groundwater regime and is not related to the groundwater beneath “Compton”.

Laboratory results and field observations indicate that the shallow soils at “Compton” would greatly benefit from the application of the piggery waste, as it would increase soil fertility and structure, but would not leach potential chemicals of concern (CoCs) such as nitrate, ammonia, potassium and phosphorus into surface or groundwaters. Also, the possibility that other land managers can use the composted piggery litter waste as an effective, environmentally friendly fertiliser is a valuable resource for the area.

Based on the field investigation, laboratory analysis and review of previous investigations, the development of a straw-based piggery would not pose an environmental risk to the operators of the Big Springs water bottling facility, local soil, surface water and groundwater resources and to surrounding land managers and owners.

46 Mr Stuckey was extensively cross-examined but adhered to his opinion that there was no groundwater table beneath the proposed piggery site and that a separate source of groundwater existed northwest of that area. Mr Stuckey was asked during cross-examination why boreholes were not drilled directly above the proposed piggery site to confirm the level of the groundwater table. Mr Stuckey replied that if there was an aquifer below the proposed piggery site it would have been identified by BH7 and BH 8. The only potential pathway for surface water to reach any groundwater would be by migrating through a 12m band of clay. Such water could migrate at 12.6cm per year only.

Agreement between experts

47 Dr Webb, Mr Pattison, Mr Sykes, Mr Hogan, Mr Stuckey and Mr Marston conferred and submitted Exhibit “T” dated 1 July 2003 outlining matters of agreement. Such matters included the following:-

(x) the buffer distance around the eastern boundary dam is agreed as 100m;

“land class IV and V”

48 Attached to Exhibit “T” is a further agreement between the stated experts outlining provisions a environmental management plan for the proposed piggery should include. Such provisions include a procedure for the testing of soil before the application of waste; consideration about how to reduce the content of cadmium and sodium chloride in the feed; guidelines to minimise any chance of movement of the waste; a procedure for spreading waste in wet weather and dry weather; and the monitoring of soil and groundwater.

49 Mr Pattison attached a written statement to Exhibit “T” stating that he was not prepared to sign the first page of the proposed environmental management plan which contained the provisions relating to soil testing and the method to spread the waste. Mr Pattison believed that such provisions are appropriate when the rainfall events are of moderate intensity. He opined that when “heavy falls of rain occur…the litter will be washed off the ground surface and will find its way into the waterways”. Mr Pattison concluded that “[p]asture land presents the greatest problem because the litter will not be incorporated and may sit on the land surface for several or more days.”

Odour

Council’s evidence

(i) Guy Edgar

50 The council relied upon the evidence of Mr Guy Edgar, senior environmental scientist. Mr Edgar testified that the odour sources emitted from piggeries come from the eco-sheds, bedding material which is used to absorb the piggery waste and shed leachate collection ponds and facilities. His reports states:-

Piggery odour is made up of a large number of odorants

, including ammonia, volatile fatty acids, hydrogen sulfide, mercaptans and amines that are produced both directly from pig wastes and in the breakdown of these wastes in the bedding material. In a well managed conventional eco-shed, odours are more likely at the latter stages of shedding when the bedding material becomes saturated with the wastes of the pigs.

51 Mr Edgar referred the Court to the DUAP Piggery Guidelines which require an environmental impact statement for piggeries to “identify all sources of odour generation and sensitive receptor sites and the strength of the odour under normal and odour event conditions”. The environmental impact statement must also include an odour dispersion study and indicate that the EPA has been consulted to discuss the appropriate method of odour assessment.

52 Mr Edgar also referred to the EPA Draft Odour Policy. Such policy aims to provide an effective future planning and regulatory regime for odour producing activities. It provides for 3 levels of Odour Impact Assessments (“OIA”). Level 1 OIA comprises a basic assessment taking into account the operation of the piggery, the management practices, the density of the population, the size of the operation, local topography, surrounding vegetation, local meteorology and cumulative impacts. A Level 2 OIA provides for the use of worst case metrological data and worst case odour omission rates. Accordingly, it is a conservative screening assessment and if the odour criteria is satisfied, no further assessment is required. A Level 3 OIA requires a full modelling study, to be undertaken when a Level 2 OIA has indicated non-compliance with the odour design criteria. The Level 3 OIA is comprehensive and includes hourly averaged site specific meteorological data.

53 Mr Edgar stated that the revised EIS should have included both a Level 1 OIA and a Level 2 OIA to estimate the nearest point of impact for the proposed piggery and to assess the worst case odour emission rates. Mr Edgar concluded in his report:-

Based on the NSW EPA Draft Policy,

a minimum of a Level 2 odour assessment should be carried out for this EIS (and a piggery of this size). This level of assessment was not included in the Revised EIS and therefore a Level 1 odour assessment is not an adequate assessment to form the basis of an EIS.

54 Mr Edgar noted that a Level 1 OIA had been referred to in the original EIS but there were several shortcomings and unexplained factors contained in the assessment as follows:-

In my view it was inappropriate for the applicant to prepare the revised EIS on the basis of a Level 1 odour assessment when atmospheric dispersion modelling in the original EIS showed that neighbouring houses would potentially be subject to odours

above

the odour criteria set out in the NSW EPA Draft Policy.

55 Accordingly Mr Edgar concluded that pursuant to the precautionary principle the Court should not grant consent to the proposed piggery based upon the OIA in the revised EIS.

Applicant’s evidence

(i) Peter Nicholas

56 The applicant relies upon a report prepared by Mr Peter Nicholas, project engineer. Mr Nicholas’ expertise lay in odour modelling, compost system design and management and environmental impact assessment for intensive livestock facilities. He was requested to assess potential odour impacts from the proposed piggery. Mr Nicholas undertook a preliminary assessment by applying the simple separation distance formula stated in the EPA Draft Odour Policy. Such formula is used to calculate required separation distances from piggeries. Additionally a site specific odour modelling assessment was completed for accuracy.

57 Mr Nicholas identified 9 receptors of odour around the proposed piggery site, all of which were classified as single residences. The nearest receptor was located at approximately 1,220m from the proposed piggery. A cattle feedlot which currently exists on the property but which is not permanently stocked was taken into consideration.

58 Mr Nicholas’ conclusions from the results of the odour modelling assessment are as follows:-

The odour sources included in the modelling are the piggery sheds, the spent bedding stockpiles and the cattle feedlot. The spent bedding application areas have not been included in the modelling due to their infrequent use and the low odour emissions generated by this activity under standard management practices. A surface roughness factor of 0.05m was used in the modelling for all receptors.

The modelling shows that the proposed piggery meets the odour impact criteria established by EPA NSW, even when the combined piggery and cattle feedlot odour emissions are included in the modelling. This modelling represents the ‘worst-case’ scenario that may occur only during a small portion of each year. Conservative odour emissions data has been used for the piggery sheds, equivalent to the maximum emissions that may occur over a few weeks 2-3 times per year. The cattle feedlot emissions have been modelled as a constant odour source, but in reality the cattle feedlot is only used for part of the year. Emissions from the spent bedding storage area have also been included in the modelling as a constant odour source, but this storage will only be used for part of the year.

The odour emissions from the proposed piggery are contained within the Brundson Pastoral Company property, except for a very small area to the south of the proposed piggery and the section of Compton Road bordering the property. As a result, it is unlikely that odour from the piggery will cause off-site odour nuisance.

The odour impact on receptors was assessed according to EPA (NSW) criteria. The odour modelling results show that the proposed piggery meets those criteria. This is due to the proposed piggery having adequate buffer distances to neighbours for the piggery size and location and piggery design factors incorporated to reduce odour emissions, particularly the use of deep-litter sheds.

59 Mr Nicholas testified that he addressed the issue of odour emitted from the spreading of the waste in his report but did not believe it was a significant source of odour to include in the odour modelling assessment. He believed the odour emitted from the spreading of waste was minor due to the nature of the material, the manner proposed to spread the waste and the fact that it is to be spread 2 to 2½ times a year. Additionally Mr Nicholas stated that as the waste would be spread at a thin rate it was essentially aerobic rather than anaerobic.

60 In cross-examination Mr Nicholas conceded that table 6 of his report demonstrates that the odours emitted from combined sources would exceed the rates permitted in the EPA Draft Odour Policy at a nearby residence for a period of 70 hours/annum. Furthermore in table 7 of Mr Nicholas’ report it is evident that the odour emitted from the piggery sheds alone would exceed the EPA Draft Odour Policy at that same residence for a period of 40 hours/annum. Mr Nicholas provided the Court with a supplementary report using the shed odour emission rates which were assumed to vary seasonally in a similar manner to another piggery named Balpool. In this report Mr Nicholas showed that the results predicted less impact from odour than what was stated in his first report.

Traffic

Council’s evidence

(i) Stephen Vine

61 Mr Stephen Vine, traffic engineer provided a report to the council outlining his opinion that the current roads are inadequate to service the proposed piggery and suggested improvements he considered necessary. Mr Vine’s report does not rely on any investigations or tests of the existing road structure. Instead Mr Vine bases his report on a detailed visual field inspection of the roadways.

62 Mr Vine identified that work was required to address immediate safety issues. Such work included widening the sealed surface on Big Springs Road, the erection of guard rails on Big Springs Road, as well as improvements to the delineation of narrow culverts and horizontal alignments. The immediate costs were estimated to be $351,000. Mr Vine considered additional works were also required in the short term following commencement of the piggery operations, such as strengthening and widening the pavement. Such costs would total $1.4 million. Mr Vine considered that such expenditure was necessary in view of the increased volume of truck traffic which would noticeably decrease the safety and enhance the maintenance required on the road network.

63 Mr Vine considered that the council had accepted a degree of risk in the current state of the roads. Accordingly Mr Vine acknowledged that not all of the estimated expenditure should be attributed to the applicant, and suggested that 30% of costs relating to both the widening of the cut, as shown in Exhibit “K” (photo 004), and the provision of guard rails should be attributed to the applicant and 70% to the council. In relation to costs associated with the compound curve which existed on the roadway, only 10% of the costs should be attributed to the applicant. He was adamant that the roadway system was not viable and that there was a substantial increase in the risk to the safety of road users if the piggery proceeded.

(ii) John Edward Coady

64 Mr John Edward Coady, director of Project Planning Associates, provided a report concerning the adequacy of the road system which would be used by heavy vehicles servicing the proposed piggery. Mr Coady stated that the original EIS and the revised EIS suggested that the majority of truck traffic will travel to and from the proposed piggery via Compton Road, Big Springs Road and Wagga Road. A smaller proportion of truck traffic will use O’Briens Creek Road. He stated that the expected traffic movements to be generated in consequence of the piggery’s operations are as stated in the original EIS. Such figures are repeated in Pt 10.1.16 of the revised EIS as follows:-

Employees 1 car/day

Pelletted feed in 5-6 trucks per week (max end of batch)

Bedding in rice hulls 20 trucks per one week @ 150 cubm (every 18 weeks)

Pigs in 7-8 trucks for one week (every 18 weeks)

Pigs out 38 trucks for one week (every 18 weeks)

Wastes out 93 trucks for one week (every 18 weeks)

Service Vehicles 1/week on average.

(contractor supervisor, electricians, etc)

65 Mr Coady noted that Appendix 10 of the revised EIS contained further detail on the projected traffic generation of the proposed piggery including the type of vehicles and the conditions of truck movements. Mr Coady however commented that neither the original EIS nor the revised EIS contained information about the traffic conditions or the condition of the road network which will service the proposed piggery. Accordingly he relied upon data concerning traffic flows obtained from Wagga Wagga City Council which indicated the following traffic movements on the following roads:-

Compton Road 80 vehicles per day

Big Springs Road North 140 vehicles per day

Gregadoo Road East 340 vehicles per day

Gregadoo Road West 550 vehicles per day

66 Mr Coady relied upon details provided by Mr Steven Vine of the estimated truck movements if the proposed piggery were in operation:-

Compton Road

With off-farm disposal of bed material = 10-29 trucks per day

(20-58 truck trips per day)

With on-farm bed disposal = 10-16 trucks per day

(20-32 truck trips per day)

Big Springs Road

With off-farm disposal of bed material = 10-29 trucks per day

(20-58 truck trips per day)

With on-site disposal of bed material = 10-16 trucks per day

(20-32 truck trips per day)

O’Briens Creek Road =

1 truck per day

(2 truck trips per day)

Cheviot Hills Road =

Up to 15 trucks per day

(30 truck trips per day

)

67 Mr Coady observed that whilst the additional volume of traffic on the road network was not great, the proposed piggery would create a significant increase in traffic activity during the changeover periods. The changeover periods occur when the fattened pigs are taken from the piggery and replaced by a new batch of young pigs. Such periods would primarily involve large trucks especially when off-site disposal of bedding material is necessary. Mr Coady recommended that if the proposed piggery is approved all truck traffic should be confined to the sealed road network. O’Briens Creek Road could be used if it only involved 1 truck making 2 truck movements per day. He believed that Cheviot Hills Road and Livingstone Gully Road should not be relied upon for truck transportation. He considered that some upgrading and improvement of works was required on the Big Springs Road to ensure adequate truck safety.

68 Mr Coady was concerned with safety on Big Springs Road and Compton Road created by the increased potential for collisions between passing trucks, collisions between pedestrians and vehicles, and collisions with other vehicles including school buses. The potential was exacerbated due to inadequacies in the existing road system, including narrow bridges and culvert crossings, narrow pavements, sharp curves, deteriorating surface and inadequate road structural capacity, poor vertical alignment and inadequate guard rails. Mr Coady believed that neither the original EIS nor the revised EIS addressed the important issue of the ability of the local road system to safely serve the proposed piggery. He accepted Mr Vine’s assessment of works that were required on the Big Springs – Compton Road route to bring such roads to an acceptable standard. Such assessment states that immediate work prior to the commencement of the proposed piggery would cost $351,000 and a further $1.4 million is required to pay for works in the short term after commencement of operations.

Applicant’s evidence

(i) Lance Vincent Ryan

69 Mr Lance Vincent Ryan, senior civil engineer and qualified road safety auditor with the Roads and Traffic Authority (“the RTA”) and Vic Roads provided a report addressing the issue of costs associated with upgrading and maintaining the roads servicing the proposed piggery. He concluded as follows:-

An average increase of 1 heavy vehicle per day using Compton Road and Big Springs Road is negligible and is unlikely to influence Council in placing a higher priority on these roads for upgrade or maintenance. When the roads are upgraded the negligible increase in volume will not affect the standard and therefore the costs of upgrading these roads. The upgraded pavement widths and depth of pavements will not be increased because of this development.

O’Briens Creek Road will on average generate 1.0 to 1.2 heavy vehicles per day. The current road is in good condition for a low volume unsealed road. Council is currently upgrading part of this road adjacent to the quarry. An increase of 1.0 to 1.2 heavy vehicles per day will have negligible effect on maintenance requirements and if the road is upgraded in future it will not require a higher standard of road just because of the traffic generated by the proposed development.

Therefore the costs to the community will not be increased because of the piggery development.

70 In reaching his conclusion, Mr Ryan conducted a detailed investigation of the road system on 4 March 2003 and 18 March 2003. He took into account numerous matters such as an analysis of the alignment and cross-section of the roads, which involved assessments of visibility, sight distance, design speed, speed limit, overtaking, readability of the road, road width, shoulders, cross falls, batter slopes and drains. He also considered the intersections, layout, traffic signals and the pavement.

71 In his oral evidence Mr Ryan concluded that the proposed piggery would generate minimal traffic and did not warrant the improvements suggested by the council in excess of a general upgrading. Mr Ryan stated in his report in reply:-

The structural capacity of the road is affected by the axle loads placed upon it. I agree that the overall number of heavy vehicles is the determining factor as cars because of there

light weight are insignificant. My inspection of the existing pavement showed it to be in a satisfactory condition. Therefore it has the structural strength to handle the current 14 heavy vehicles per day placed on it. The minor percentage increase in heavy vehicles due to the piggery will therefore have negligible effect of the structural capacity of the road. Similarly while the ambient moisture condition of the road affects its structural strength, the piggery is only contributing small percentages of the total heavy vehicles.

(ii) Joshua Hollis

72 Mr Joshua Hollis, a senior transport planner examined the traffic flows which would be generated by the proposed piggery. Using the council’s records of the average daily traffic flows on Gregadoo Road, Big Springs Road, O’Briens Creek Road and Compton Road, Mr Hollis considered that the traffic flows on the road network were low. He noted that the council assessed that 10% of the vehicles using such roads were classified as heavy vehicles, typically generated by rural properties requiring produce, equipment and materials. Mr Hollis stated that the proposed piggery would generate external traffic as follows:-

§ up to 6 semi trailers per week bringing feed to the facility;

§ some 8 semi trailers over a one week period delivering pigs to the facility every 16 to 18 weeks;

§ some 38 semi trailers over a one week period taking pigs from the facility to Corowa every 16 to 18 weeks;

§ some 20 trucks (typically dog trailers) over a one week period delivering bedding material to the facility prior to the arrival of new pigs. This would occur every 16 to 18 weeks; and

§ 1 employee is proposed to work at the facility.

73 Mr Hollis observed that feed trucks would use the Olympic Highway, Holbrook Road, O’Briens Creek Road and Compton Road to travel to and from the proposed piggery. Trucks transporting bedding and pigs to and from Compton are likely to use Big Springs Road and Compton Road. He assessed the maximum number of trucks generated by the proposed piggery would be approximately 44 per week consisting of 38 trucks removing pigs and up to 6 trucks transporting feed to Compton. In relation to such movements Mr Hollis said:-

This is a low traffic generation which would not have significant effects on the surrounding road network. As previously discussed, roads in the local area currently provide access for large vehicles serving rural land uses. Moreover, this generation would only occur in some 3 weeks of the year.

At other times, traffic generation of the proposed facility would be lower. Overall, the average number of trucks which would be generated by the facility would be less than 4 per day (2 in and 2 out). This is a small number which would not have significant effects on the surrounding road network.

74 With regard to safety Mr Hollis said:-

A site inspection indicated that the access point can be located to provide several hundred metres sight distance in each direction along Compton Road. As previously noted, traffic volumes on Compton Road are low. The volume of traffic which will be generated by the proposed development will be low. The potential for conflict at the access point will therefore be low. No unusual issues are anticipated at the site access point.

The roads listed in Issue 7 in the Statement of Issues include Big Springs Road, O’Briens Creek Road, Compton Road, Cheviot Hills Road and Livingstone Gully Road. As noted above, the implications for Big Springs Road, O’Briens Creek Road and Compton Road will not be significant. Trucks are not proposed to use Cheviot Hills Road or Livingstone Gully Road. There would therefore be no implications for these roads.

Mr Hollis agreed with the RTA assessment that there were no significant matters of concern generated by the expected traffic to and from Compton. He concluded that no unusual traffic issues would be created as a result of the proposed facility.

Agreement between experts

75 During the hearing Mr Ryan and Mr Vine conferred for the purpose of trying to reach a consensus on the traffic issues. A summary of each expert’s position was provided to the Court (Exhibit “S”). Both experts agreed that O’Briens Creek Road was appropriate for an increase of 1 to 2 trucks per day. Mr Vine believed that there was no doubt that an increase in heavy vehicles would marginally increase the risk of accident but he did not consider the increased risk was unacceptable. The experts also agreed that Livingstone Gully Road and Cheviot Hills Road were inappropriate for heavy vehicles and should be avoided.

76 In relation to Big Springs Road and Compton Road the experts disagreed whether the recommended upgrade works are solely attributable to the proposed piggery. Mr Ryan did not dispute the costs of the recommended upgrades but stated that such works are relevant for both existing traffic and proposed traffic volumes. Mr Ryan believed that existing safety issues could be resolved by appropriate warning signs. Mr Vine believed that it was unreasonable to suggest that a significant proportion of any safety and structural improvements on the roads is attributable to the proposed piggery. Mr Vine stated however that although the roads are not currently up to the “generally accepted standards”, the council’s assessment of the current design and condition of Big Springs Road and Compton Road reveals that there is currently an acceptable degree of risk.

77 Mr Ryan did not consider that the increased traffic caused by the proposed piggery would justify work on shoulder and pavement widths since the piggery use would not increase traffic volume in excess of the RTA’s requirements.

78 During their conference the experts endeavoured to assess the percentage, if any, of the upgrade works which could be attributed to the proposed piggery. Mr Ryan did not accept that any of the costs for upgrading the road should be attributed to the piggery. He observed that, based upon council’s estimates, the existing road services 140 to 250 vehicles per day, 10% of which are regarded as heavy vehicles. Two trucks per day, that is 1 in and 1 out will travel to and from the piggery. Accordingly the number of vehicles generated by the piggery as a percentage of the total traffic is very low. In contrast Mr Vine estimated that of the immediate works required to be undertaken the following proportions are attributable to the proposed piggery: 30% of the costs of widening the sealed surface on Big Springs Road through the cut approximately 4km from Gregadoo Road; 30% of the cost of erecting a guard rail on Big Springs Road through the section immediately adjacent to the cut section referred to above; 100% of the cost of enhancing the delineation on the narrow culverts; and 10% of the cost of improving the horizontal alignment on Big Springs Road through the existing compound curve at approximately 8km from Gregadoo Road.

79 With respect to the short term works to take place after the commencement of the piggery, namely the strengthening and widening of the pavement on Big Springs Road between 7.5km and 9.5km from Gregadoo Road, Mr Ryan believed no costs of such work are attributable to the proposed piggery. Mr Vine however considered that 10% of the costs of the strengthening on Big Springs Road should be attributable to the proposed piggery as well as 30% to cover the costs associated with miscellaneous works on Big Springs Road between 5.5km and 7.5km from Gregadoo Road.

Objectors

80 Several residential objectors gave evidence. Mr Robert Richard Green, of Flakney Springs expressed his concern that the original EIS and the revised EIS were inadequate and did not address the health risk caused by dust and pollution of the waterways. He referred to the inadequate assessment for Aboriginal relics, and to the fact that the land had been the home of the Wiradjuri peoples. Mr Green was concerned with the need to conserve the roadways, namely Big Springs Road and O’Briens Creek Road, in view of motor vehicle accidents that had occurred including a fatality on Big Springs Road. He was also apprehensive that arrangements had not been made for the disposal of dead pigs and the possibility of a mass death contingency. Mr Green believed that the precautionary principle and ecological sustainable development principles should be applied to the proposed piggery.

81 Mr Robert John Boatwright resides at 713 Livingstone Gully Road, Big Spring which adjoins Compton. Mr Boatwright gave oral evidence representing 6 other farmers. He was concerned for the waste disposal and the risk of contamination to a high water table which he believed existed. He was concerned that safeguards be provided to ensure that contaminants would not migrate from Compton.

82 Mr George Paterson Wilson, of Big Springs is a partner in Big Springs Natural Spring Water which bottles spring water at Big Springs. He was concerned that the bottled water can be easily tainted and considered it inappropriate that a piggery should be constructed in the vicinity of the bottling plant. He considered such activities to be inconsistent. Mr Wilson conceded that Big Springs is approximately 7km from the proposed piggery.

83 Mr Philip John Ward, of Avon Downs resides approximately 4km from Compton. Mr Ward was concerned with the roads servicing Compton believing they were unsuitable for heavy vehicles particularly during the changeover periods when traffic volumes are more concentrated. Mr Ward testified that the roads servicing Compton are already unsafe without the increased volume of traffic generated by the proposed piggery. In his opinion improvements to the roads are a prerequisite before the piggery can proceed. Such improvements include widening of the roads with dividing lines, removal of blind corners and widening of shoulders. Mr Ward testified that he has a particular interest in the roads following an incident where his daughter had been forced from the road by a large vehicle. Mr Ward was sceptical about the proposed conditions of consent for the piggery, such as the prohibitions on B-Double vehicles. Mr Ward testified that B-Doubles are currently prohibited on the roads surrounding Compton, yet such vehicles are still seen on such roads.

84 Mr Ward additionally objected to the erroneous assumption that the average rainfall for the area is 537mm. Mr Ward testified that he has calculated the average to be 700mm over the last 25 years. He commented that an average of 537mm failed to take into account the rare rain events of 1000mm. Accordingly Mr Ward believed that the various statutory authorities could not make a proper assessment until the correct average rainfall is established. Furthermore, he has seen the lands flooded as a consequence of major storms and believed that the bunding and collection dams would be inadequate to prevent overflow and consequential pollution.

85 Mr Ward also expressed concern in relation to odour. He believed the area available for distribution of waste from the piggery was inadequate and that the smell and odour generated by the spreading of such waste would adversely affect surrounding residences.

86 Mr Alan Michael McDonald Cox of Livingstone Gully testified that he resided approximately 365m (400 yards) from Compton’s boundary and 1,400m from the site of the proposed piggery. Mr Cox considered that light soil on Compton was unsuitable because it became very boggy in wet weather. He relied upon the fact that the dams surrounding the proposed piggery were holding water even during drought conditions which suggested the presence of a water table.

Applicant’s submissions

87 The applicant submits that the issues concerning salinity, the size of the leachate pond, soil contamination and EPA requirements have been resolved by Exhibit “T”, the joint experts’ report. The applicant says that the EPA was prepared to grant a licence to the proposed piggery as evidenced by a letter dated 27 June 2002 from the EPA to the council.

Contamination of soil, watercourses and groundwater

88 The applicant claims that Dr Webb did not investigate the groundwater but made statements concerning groundwater based upon a general observation in January 2003 of water in 2 dams located near the proposed piggery site. However the applicant says that a number of assertions made by Dr Webb were addressed by the joint experts’ report, Exhibit “T”. Apart from Mr Pattison’s disagreement with part of the provisions of the proposed environmental management plan, the applicant submits that there is no evidence to suggest that the proposed piggery will not comply with the precautionary principle if the agreed conditions in Exhibit “T” are imposed.

89 The applicant reminds the Court that the operation of the piggery is proposed to occur according to an 18 week cycle. The applicant says that the council’s concerns relating to the application of the waste, particularly those raised during cross-examination of Mr Sykes, were directed to a specific point of time. However the applicant submits that even if the application of waste is not possible at one point in time, this will not restrict the application over the entire 18 week cycle.

90 The applicant submits that the reference in Exhibit “T” to the available area for the spreading of waste is interpreted as being 500ha less the area required for waste application from the cattle feedlot on Compton. The applicant submits that it needs to be recognised that the cattle feedlot would be available at some periods during the year for the spreading of piggery waste.

Odour

91 The applicant submits that it engaged Mr Nicholas to ensure that the impact of odour complied with the EPA Draft Odour Policy. It says that Mr Nicholas’ odour modelling shows that the proposed piggery is compliant with a Level 3 OIA and does not impact on the nearest residences. The applicant says the council’s criticism of its evidence about the impact of odour was not based on any studies or actual investigation which indicated contrary information. Rather the objections simply arose from potential or possible exceptions to the applicant’s evidence, which the applicant says its experts dealt with in any event. The applicant submits that in relation to odour there is no lack of scientific certainty pursuant to the precautionary principle since it has complied with a Level 2 OIA and a Level 3 OIA.

Traffic

92 The applicant submits that the immediate works and the short terms works required on the road network according to Mr Vine in the experts’ joint report, Exhibit “S”, cannot be imposed. The applicant says that maintenance can only be required by a contributions plan pursuant to s 94 of the EP&A Act but the council has not suggested this.

Principles of ecological sustainability

93 The applicant submits that to infringe the precautionary principle as interpreted by Stein J (as he then was) in Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270 there must be a lack of scientific certainty rather than some uncertainty about the potential environmental impact of the proposed piggery. By lack of scientific certainty the applicant submits that there must be no scientific basis to be able to estimate or determine the environmental impact of the development. In relation to odour the applicant says that the EPA Draft Odour Policy provides guidelines to adhere to in the absence of scientific data. The applicant therefore submits that there is no scientific uncertainty if the guidelines are followed to analyse the environmental impacts of the proposed piggery. The applicant says the Court is not permitted to adopt a cautious approach if the Court is merely uncertain whether the proposed piggery will have adverse impacts on the environment. A cautious approach can only be adopted if there is scientific uncertainty.

94 The applicant submits that there is no evidence of the threat of “serious or irreversible environmental damage” in respect of the proposed development and that there is no “lack of full scientific certainty” in respect of DA 010736. The applicant relies upon the expert evidence produced to demonstrate that there is no “lack of full scientific certainty” in the present circumstance.

95 The applicant submits that the proposed piggery conforms with the principle of intergenerational equity (see Sch 1 of the LEP) since it is a permissible use in the “Rural 1(a)” zone and it is to be conducted with the latest technology to ensure that agricultural productivity and diversity is promoted.

96 In relation to the principle of conservation of biological diversity (see Sch 1 of the LEP) the applicant says that the availability of waste from the proposed piggery to be spread on the land will be a valuable fertiliser and increase the land’s capability to grow crops. The applicant also claims that the proposed piggery is a use which will not have an adverse impact on existing soil structure, groundwater or other biological considerations.

Objectives of the DCP

97 The applicant submits that chapter 6.2.2 of the DCP provides the local objectives of environmental planning. Such objectives relevantly include the encouragement of proper management, development and conservation of resources by protecting “prime crop and pasture land” and “restricting development in the floodplain”. Chapter 7.1 of the DCP states the objectives of the “Zone No. 1 (Rural)” which includes the conservation of “water resources for use in the public interest”. The applicant submits such objective is not applicable but if the council maintains it is relevant, the applicant says that the area surrounding the proposed piggery will be adequately bunded. The applicant claims that the proposed piggery is consistent with other objectives in chapter 7.1 of the DCP as it is, inter alia, a suitable development for the locality, and is a rural industry which the DCP permits and encourages.

Council’s submissions

Contamination of soil, watercourses and groundwater

98 The council submits that presently an unacceptable risk of contamination of groundwater exists as recognised by Exhibit “T” being the experts’ joint report. The council submits that BH1, BH2 and BH3 indicate that groundwater may be closer to the surface than the applicant’s experts contend. The risk was not conclusively satisfied by the applicant as bore hole testing was not undertaken on the actual site of the proposed piggery but at places surrounding the site.

99 Section 79C(1)(iv) of the EP&A Act provides that the consent authority is to take into consideration any matters prescribed by the Regulations in determining a development application. The council submits that cl 72(1)(a) of the Regulations is relevant and provides that an environmental impact statement relating to development “for which specific guidelines are in force under this clause” must contain “the matters referred to in those guidelines”. The council says that the DUAP Piggery Guidelines comprise such guidelines. Part 6 identifies the specific requirements for an environmental impact statement for a piggery. Section 3(a) of Part 6 states:-

3. Overview of the affected environment

Provide baseline information on those aspects of the environment which have the potential to be affected by the proposal or influence the nature of impacts. This might include descriptions of:

(a) the surface water regime including drainage patterns; dimensions, flows, quality and use of watercourses; flood regime; nature; depth and quality of groundwater bearing zone; any water storage or drinking water catchments including groundwater

100 The experts suggested in Exhibit “T” that the deferred commencement condition should be imposed to address such risk. Initially the council submitted in its written submissions that the deferred commencement condition is invalid as it may result in the proposed piggery not proceeding or being located in an alternate position. However during oral submissions the council informed the Court that it accepts that the groundwater issue can be addressed by a deferred commencement condition if the following draft condition (1)(c) is also imposed:-

1 Pursuant to section 80(3) of the Environmental Planning Assessment Act, 1979 this consent is not to operate until the applicant satisfies the Council of the following:

(c) that a water table is not within 4 metres of the currently existing ground surface levels at the 2 piezometer sites as provided for in condition 7.

7 The Applicant shall monitor for the likely existence of groundwater by the installation of 2 piezometers located within 10 metres of each of the upper and lower boundaries on the eastern side of the piggery complex to a 4 metre depth. The exact location of the 2 piezometers is to be determined on site by Dr Stephen Webb and Mr Mark Stuckey. The monitoring shall be carried out at the completion of an equal to or greater than 40 percentile rainfall year and shall establish that a water table is not within 4 metres of the currently existing surface levels

Waste migration off-site and into watercourses

101 The council submits that there is evidence to show that topsoil has been washed off Compton. The council says Mr Pattison’s evidence indicates that there is a real possibility that soil will be washed off in the future and that this fact is conceded by Mr Sykes for the applicant. Furthermore resident objectors including Mr Ward, Mr Green and Mr Boatwright raised concerns about the migration of waste if a severe rainfall event occurred.

102 The council submits that the applicant has suggested that it will provide a survey detailing proposed bunding between Compton and adjoining properties. The council says it has not been provided with such a survey and does not have any diagrams showing the height of the proposed bunding.

103 The council submits that the assessments of DA 010736 and the revised EIS by the Department of Land and Water Conservation are redundant due to the uncertainty of the bunding. The council refers to a recommended condition of consent suggested by the Department of Land and Water Conservation in a letter of such Department dated 19 June 2002 as follows:-

Recommended condition of consent.

Disturbance of soil conservation earthworks is to be kept to a minimum. Restoration of any disturbance to soil conservation earthwork is to be to the satisfaction of the Department of Land and Water Conservation.

The council says that the applicant’s proposed bunding between the boundaries of Compton and the Boatwright’s property constitutes extensive movement of the soil conservation earthworks and creation of further earthworks. The council submits that there is no evidence to show that the Department of Land and Water Conservation would approve of such bunding.

Rate of application of the waste

104 The council submits that the applicant does not state the exact location for the spreading of the waste. It submits that there is insufficient land on Compton to spread all the waste and the land on which waste may be applied is also limited pursuant to the experts’ agreement in Exhibit “T”. The council says that the revised EIS provides that the area of land on which waste can be spread is 810ha/year and that the estimated amount of waste generated is 6552t/year. Accordingly the average rate of application is 8.09t/ha/year. The council says that pursuant to the experts’ agreement in exhibit “T” the available area on Compton for the spreading of waste is 500ha minus the cattle feedlot of approximately 50ha. Accordingly only 450ha is available for this purpose. The council submits that in cross-examination Mr Sykes proposed an application rate of 10.56t/ha/year based upon an area of 450ha being available for the spreading of waste.

105 The council submits that the increase in the rate of waste application from 8.09t/ha/year to 10.56t/ha/year is itself a reason to refuse DA 010736. The council says that the EPA, the Department of Agriculture and other public bodies approved the revised EIS on the basis of an application rate that did not exceed 8.09t/ha/year. The council referred the Court to a letter dated 28 August 2002 of the EPA to the council which attached conditions to its approval of the proposed piggery. The council notes one condition which states that “[w]astes must only be applied or disposed off in accordance with Environmental Impact Statement”, being a reference to the revised EIS. The council submits that the applicant has not provided any evidence to indicate the EPA’s approval of a different application rate for the waste than what was stated in the revised EIS.

Odour

106 The council submits that all the applicant’s odour assessments are fundamentally flawed due to a failure to consider all relevant odour sources and by applying inappropriate emission rates. The council alleges that the applicant’s odour studies did not adopt methodology which complies with the EPA Draft Odour Policy and did not establish that the odour emissions from the proposed piggery would meet the requirements in such policy. Furthermore the council submits that the Level 1 OIA testing which was undertaken was deficient because it did not consider the cattle feedlot on Compton, the odour from the spreading of the waste nor the odour emissions during night hours.

107 The council submits that Mr Nicholas conceded that the EPA Draft Odour Policy requires a separation distance of 978m for a well managed piggery and 1468m for a poorly managed piggery. According to the council the closest residences from the proposed piggery are 1050m and 1440m which are close enough to be affected by odour. The council says that the supplementary report provided by Mr Nicholas detailing further odour modelling is also deficient and relies on incorrect assumptions, such as the cattle feedlot only being used 3 to 4 months a year which is contrary to Mr Brunsdon’s evidence that it is used 6 months each year.

Traffic

108 The council submits that the proposed piggery will produce an unacceptable level of danger on the road network servicing Compton and should therefore be refused. There is agreement that all heavy vehicles will use O’Briens Creek Road and Compton Road, but the council claims that there is still substantial evidence about the dangers of such roads from lay witnesses and expert witnesses.

109 The council says that it has not set aside funds to upgrade the road network to adequately service the proposed piggery. However even if the applicant carries out the immediate road works and part of the short term works as suggested by Mr Vine, the council submits that a reasonable level of road safety would still not be achieved.

Benefits and costs to the local community

110 The council submits that there are substantial environmental risks arising from the proposed piggery which have not been adequately addressed in the revised EIS. The community may have to bear road maintenance costs and there is also the possibility that Big Springs Natural Spring Water could be substantially affected. The council says that the local community derives little benefit from the proposed piggery. Only one extra job is created and all the pigs will be sourced from Victoria and sold in Victoria. Additionally the feed comes from Corowa and the bedding material will be from Deniliquin.

Principles on ecological sustainability

111 The council submits that the application of the principles of ecological sustainability as provided in Sch 1 of the LEP, would result in the Court rejecting the applicant’s development proposal. The Court has been referred to Stein J in Leatch at p 282 where His Honour referred to the precautionary principle as “a statement of commonsense” and continued as follows:-

It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious.

112 The principle in Leatch was subsequently applied by Talbot J in Nicholls v Director-General National Parks and Wildlife and Others (1994) 84 LGERA 397, by Pearlman CJ in Greenpeace Australia v Redbank Power Company Pty Ltd and Singleton Council (1995) 86 LGERA 143 and by Sheahan J in Vertical Telecoms Pty Ltd v Hornsby Shire Council [2000] NSWLEC 172. In such cases the council submits the interpretation and application of the precautionary principle was based upon the principle as it is stated in the Protection of the Environment Operations Act 1991. The council contends that precautionary principle in such Act is similar except the definition of the principle Sch 1 of the LEP adds the following sentence:-

The principle requires decision-making to give the environment the benefit of the doubt.

113 The council says that the uncertainties that warrant the refusal of DA 010736 include the fact that relevant authorities considered DA 010736 and the revised EIS on the basis that the rainfall was 537mm/year, whereas the true rainfall is approximately 700mm/year. Accordingly buffer distances, height of bunding walls, accessibility of land for spreading of waste and the leaching of waste into groundwater was assessed by the authorities on different and inadequate parameters. Additionally the land area available for the spreading of waste has decreased from 810ha to 440ha, and the rate of application has increased from 8.09t/ha/year to 10.56t/ha/year. The size of the leachate pond has been increased from 4 megalitres in the revised EIS to 14 megalitres as agreed by the experts in Exhibit “T”. The council submits that the odour assessments have not been conducted in accordance with the applicable guidelines and for these reasons they are unsatisfactory. Due to the numerous changes in the conclusions and calculations in the revised EIS which have not been properly scrutinised by the relevant public authorities, the council submits that the precautionary principle should prevail.

Objectives of the LEP and the DCP

114 The council refers to cl 9(3) of the LEP which provides that the council should not grant consent for development in “Zone No. 1 (Rural)” if it is inconsistent with the objectives of such zone. The council says the relevant objectives seek to ensure proper management and utilisation of resources by protecting “agricultural land in a manner which sustains its efficient and effective agricultural production potential” and “water resources for use in the public interest”. Additionally the “Zone No. 1 (Rural)” aims to minimise “the cost to the community of providing, extending and maintaining public amenities and services”. Such objectives are repeated in the DCP. The council submits that the proposed piggery is inconsistent with the objectives provided in the LEP and DCP.

Findings

Lack of scientific certainty

115 The precautionary principle is adopted by the LEP and provides that a “lack of full scientific certainty should not be used as a reason for postponing environmental degradation”: see Sch 1 of the LEP. Schedule 1 of the LEP provides that the application of the precautionary principle should be guided by “careful evaluation to avoid…serious or irreversible damage to the environment” and by “an assessment of the risk-weighted consequences of various options.” Importantly the Court recognises that the LEP includes in the definition of the precautionary principle that the environment is to be given “the benefit of the doubt”.

116 The Court does not accept the applicant’s submissions of the interpretation of “scientific certainty”. It is clearly stated by Stein J in Leatch at p 282 that a lack of scientific certainty is premised upon the notion of uncertainty of environmental impact. His Honour said in reference to the precautionary principle:-

It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature and scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious.

Deficiencies in the EIS causing scientific uncertainty

117 There are a number of impacts from the proposed piggery which the Court finds are still not resolved and raise uncertainty concerning the nature and scope of environmental impact. The first matter concerns the impact of the rainfall. The average annual rainfall was stated to be 537mm/year in the revised EIS but the experts later agreed during the hearing that the mean annual rainfall is “700mm with a 90 percentile level of 907mm”. An average annual rainfall of 537mm/year was relied upon in the revised EIS for information that related to, inter alia, “Stormwater Management in bunded eco shelter facility”, the suitability of the proposed site for the piggery and the “description of the existing environment”. Such discrepancy could prove significant.

118 In relation to the spreading of waste, it is stated in the revised EIS that 810ha/year is available on Compton. However the experts have agreed in Exhibit “T” that such area is limited to 450ha/year, being 500ha less the area for the cattle feedlot, which is a significant discrepancy from the original area of 810ha/year. This factor requires an adjustment to the rate of application of waste which the council says should now be 10.56t/ha/year instead of 8.09t/ha/year as stated in the revised EIS. Accordingly another discrepancy has been revealed which may be of significance.

119 The Court is aware of the EPA’s condition of approval that the waste must only be applied or disposed of in accordance with the revised EIS. It is also noted that in its letter dated 28 August 2002 the EPA granted approval subject to conditions “to the development as proposed in the documents and information currently provided to the EPA.” The EPA also stated in its letter that if the development is modified it should be consulted to determine whether its terms of approval need to be amended.

120 The Court is cognisant of s 39(6A)(c) of the Land and Environment Court Act 1979 which provides that in relation to an appeal arising from an application to a consent authority for integrated development “the Court may determine the appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of an approval body”. However the Court cannot speculate upon the EPA’s attitude in relation to the changes to the revised EIS made during the hearing.

121 Furthermore the letter of NSW Agriculture dated 27 June 2002 in relation to the revised EIS attached a list of observations. Relevantly to the rate of waste application the letter stated:-

Provided buffer distances are observed and manure is spread at specified rates, NSW Agriculture is satisfied that no unacceptable risk is provided.

122 The Court has been provided with no information of the bunding proposed during the hearing to address concerns of waste migrating onto Mr Boatwright’s property. The Court is unsure whether such bunding will have an impact on the environment by causing water to become contaminated by the waste being channelled towards nearby waterways as suggested by the applicant. The Court cannot rely on the recommendations of the Department of Land and Water Conservation since the proposed bunding was not stated in the revised EIS.

123 Another deficiency in the revised EIS which was revealed during the hearing is the size of the leachate pond. It was changed in the revised EIS from 4 megalitres to 14 megalitres in accordance with the concept plan referred to in the experts’ joint report, Exhibit “T”.

124 These deficiencies in the revised EIS and their subsequent modification do not render the EIS invalid. Pearlman CJ dealt with a similar circumstance in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 where her Honour considered an environmental impact statement that “was far from perfect” as it omitted certain topics and detail. Her Honour observed at p 32 that “some of the proposals for the operation of the quarry were significantly changed as the hearing progressed from those originally set out in the environmental impact statement…”. However Pearlman CJ did not find that such matters meant that the environmental impact statement did not comply with the Regulations. Her Honour continued and said at p 32:-

The circumstances are not analogous to those in

(Land and Environment Court of New South Wales, Stein J, 22 June 1992, unreported). In that case, the application was significantly amended during the hearing making it impossible, in his Honour’s opinion, for the Court to assess the environmental impact. The development proposed was so markedly different from that described in the environmental impact statement as to involve different impacts on different people. This is not the case here. In conformity with the propositions I have extracted above, the proposal was modified to meet the concerns of objectors both prior to the appeal and as the hearing progressed. There were opinions of experts, sometimes at variance with one another, which were heeded, leading to modification.

In summary, I consider that the application which emerged at the end of the hearing was not in any way markedly different from the application described in the environmental impact statement, and that the environmental impact statement was sufficient to permit public participation in the process, as in fact occurred.

125 Nevertheless, the deficiencies in the revised EIS lead the Court to find that there remains scientific uncertainty of the impact on the environment from the proposed piggery. Although there has been agreement between the experts to address the deficiencies, the Court is still concerned that the amended data and information has not been assessed by public bodies which have the expertise to determine whether the nature and scope of environmental harm is acceptable and certain. The council consulted DUAP, the EPA, the RTA, NSW Fisheries, NSW National Parks and Wildlife Service, the Department of Land and Water Conversation and NSW Agriculture in respect of DA 010736 and the original EIS. They were subsequently consulted with the revised EIS. Such departments assisted the council by making recommendations for the proposed piggery but their consideration and recommendations were obviously based upon the accuracy of the information contained in the revised EIS. That information has been found to be unreliable in important respects as demonstrated during this hearing.

126 The Court is not satisfied that there is scientific certainty relating to the impact of the rainfall, the application rate of the waste and the migration of waste, and nor can it rely upon the recommendations of the relevant public bodies since they are predicated upon erroneous detail.

Odour

127 The Court is concerned that Mr Nicholas did not include all potential sources of odour in his odour modelling. The modelling he undertook was based upon odour emanating from piggery sheds, spent bedding stockpiles and the cattle feedlot. The modelling made no allowance for odour which might be generated by the waste which would be spread on Compton. During the view the Court observed stockpiles of waste which were described as virtually odourless. However the Court is left to speculate upon the impact of the increased application of waste on the property, the concentration thereof on a substantially reduced area, the increased rainfall and the impact of the increased rainfall on the retention of odour. Mr Nicholas’ consideration did not take into account these factors.

128 Mr Nicholas said:-

…I did take the spreading of litter into account, just wasn’t included in the modelling. It’s included in the report your Honour.

“was not a significant source to be included in the modelling.”

129 Mr Nicholas had used data from another site in an attempt to equate the conditions of that piggery with the proposed development. However Mr Nicolas had adjusted those results obtained at that piggery “because the report indicated that the sheds were wet and boggy”. Accordingly an arbitrary adjustment was made.

130 The Court is left again to speculate whether Mr Nicholas’ modelling would produce different results if he factored in the increased rainfall and the increased rate of waste application on Compton. Ideally the modelling should take into consideration not only these factors, but also meteorological conditions from a weather station based at the site. If these steps were undertaken the uncertainty which currently exists may be eliminated.

Summary

131 The uncertainties regarding the impact of the increased rainfall and its potential effect upon runoff, bunding and watercourses, reduced spreading area for the waste and the effect thereof on watercourses and odour, leaves the Court to find that pursuant to the precautionary principle DA 010736 should be refused.

Additional findings

132 The Court makes the following comments in relation to the traffic issue and the deferred commencement condition relating to the groundwater.

Traffic

133 The Court has considered the issues relating to traffic. Sufficient safeguards, by signage and by a degree of upgrading would be sufficient to meet council’s objection. This issue is not, of itself, sufficient to warrant rejection of the proposed piggery. However one problem which currently exists is the fact the council does not have a contributions plan under s 94 of the EP&A Act. If the piggery were approved subject to the roads being upgraded, such works would not be undertaken privately by the applicant but rather by the council with the applicant providing a monetary contribution. Accordingly the council could only require payment of monetary contributions in respect of road improvements in accordance with a contributions plan.

Deferred commencement condition

134 The parties have each provided the Court with a draft “without prejudice” deferred commencement conditions of which draft condition 1(c) and draft condition 7 are agreed and have been quoted above at par 100. The Court accepts the experts’ opinion that the level of groundwater needs to be ascertained to ensure that it complies with the DUAP Piggery Guidelines. However it is well established that a development consent granted subject to deferred commencement conditions is invalid if a consequence of such condition results in essential matters for consideration being deferred, or if the development consent lacks finality or certainty pending the fulfilment of a deferred commencement condition. Talbot J observed in Proprietors of SP 13318 and 13555 v Lavender View Regency Pty Ltd and North Sydney Council (1997) 97 LGERA 337 at p 344:-

Consequently, although the council did make a determination on 24 November, it was defective. It was decided that, generally speaking the proposed development was satisfactory, provided the amended plans satisfactorily addressed the outstanding issues. The decision to determine the application therefore lacked finality and certainty. The conditions were left to be drafted having regard to matters and amendments not available for consideration at the date of resolution. The council did not have before it the material which could enable it to finally and properly consider the effect of making the amendments suggested in the report, some of which were expressed as alternatives. An approval which itself may operate to significantly change the development in the future is not a consent in law.

135 Priestley JA in Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734 stated at p 737 that consent has not been granted to a development application if the satisfaction of a condition attached to such consent will significantly alter the development. His Honour continued:-

Further however, if the effect of an imposed condition is to leave open the

that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made.

Mison

Where a consent has been granted in terms which leave open for later decision a particular aspect of the planned development the question may arise whether the consent is final…What must be decided is whether the consent finally determines the development application.

136 Draft condition 1(c) and draft condition 7 of the draft deferred commencement conditions were agreed between the experts to satisfy the Court that the proposed piggery would not be located where the groundwater table is within 4m of the ground surface. It is stated in Exhibit “T”, which was the foundation of draft condition 1(c) and draft condition 7, that if the applicant ascertained that the water table is within 4m of the ground surface “after a 40th percentile rainfall year the location of the complex will not proceed in its present form.” Accordingly such draft deferred commencement conditions indicate that the location of the proposed piggery is uncertain and may change. The inclusion of draft condition 1(c) does not diminish such uncertainty, but would serve to confirm the uncertainty.

137 If the Court granted consent to the present development application and it was found that the water table was within 4m of the ground surface of the proposed piggery site, it is evident that the development would not proceed according to the development application currently before the Court. Draft condition 1(c) and draft condition 7 cannot be characterised as conditions which are “ancillary to the core purpose of the application” as they could possibly cause the development to alter “in a fundamental respect” or result in a development “‘significantly different’ from that which the application for consent contemplated.”: see Scott and Others v Wollongong City Council and Another (1992) 75 LGRA 112 at p 119. The location of the proposed piggery is regarded as an essential matter for consideration prior to any final determination.

138 The Court will not grant consent to the applicant’s proposed piggery subject to deferred commencement conditions which leave open the possibility that the development may change in the future and consequently would not be carried out in accordance with such consent.

Summary

139 Upon an assessment under s 79C of the EP&A Act, the Court determines that the precautionary principle precludes approval of DA 010736 due to a lack of scientific certainty surrounding the following matters:-

(i) the effect of the increased rainfall;

(ii) the effect of the reduced area for spreading of the waste and of the altered application rate of the waste;

140 If the matters raised in this judgment are satisfactorily addressed, the current reasons for refusal may be eliminated.

Orders

141 The Court orders that:-

2. The appeal be determined by a refusal of consent to DA 010736;

3. The exhibits be returned;

4. Costs reserved.

Citations

Brunsdon v The Council of the City of Wagga Wagga [2003] NSWLEC 168

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CITATION:	Brunsdon v The Council of the City of Wagga Wagga [2003] NSWLEC 168
PARTIES:	APPLICANT Colin Brunsdon RESPONDENT The Council of the City of Wagga Wagga
FILE NUMBER(S):	10960 of 2002
CORAM:	Cowdroy J
KEY ISSUES:	Development Application :- Piggery - designated development - integrated development - environmental impact - precautionary principle - impact of odour - impact of spreading of piggery waste - impact on watercourses and groundwater - impact of traffic - deferred commencement conditions
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 77A, s 79C, s 91, s 94 Environmental Planning and Assessment Regulation 2000, cl 72, Sch 3 cl 21(3)(b) Land and Environment Court Act 1979, s 39(6A)(c) Protection of the Environment Operations Act 1997 Wagga Wagga Rural Development Control Plan 2002 Wagga Wagga Rural Local Environmental Plan 1991 Wagga Wagga Rural Local Environmental Plan 1991 (Amendment No. 12)
CASES CITED:	Greenpeace Australia v Redbank Power Company Pty Ltd and Singleton Council (1995) 86 LGERA 143; Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270; Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734; Nicholls v Director-General National Parks and Wildlife and Others (1994) 84 LGERA 397; Proprietors of SP 13318 and 13555 v Lavender View Regency Pty Ltd and North Sydney Council (1997) 97 LGERA 337; Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21; Scott and Others v Wollongong City Council and Another (1992) 75 LGRA 112; Vertical Telecoms Pty Ltd v Hornsby Shire Council [2000] NSWLEC 172
DATES OF HEARING:	30/06/2003; 01/07/2003; 02/07/2003; 03/07/2003; 04/07/2003; 07/07/2003; 22/10/2003; 23/10/2003; 24/10/2003
DATE OF JUDGMENT:	12/19/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr J. Webster SC SOLICITORS Friedlieb Byrne Solicitors RESPONDENT Mr C. Leggat (Barrister) SOLICITORS Phillips Fox