Carr and Country Livestock Supplies Pty Limited v Richmond Valley Council
[2006] NSWLEC 674
•26/10/2006
Land and Environment Court
of New South Wales
CITATION: Carr and Country Livestock Supplies Pty Limited v Richmond Valley Council [2006] NSWLEC 674 PARTIES: APPLICANT:
B M & C J Carr and Country Livestock Supplies Pty Limited
RESPONDENT:
Richmond Valley CouncilFILE NUMBER(S): 10298 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Staged development of an ‘animal establishment’ 246,000 birds; conflict with Rural Residential Development Strategy LEGISLATION CITED: Richmond River Local Environmental Plan 1992, (RRLEP)
North Coast Regional Environmental Plan 1988, (NCREP)
Environmental Planning and Assessment Act 1979, ss 79C and 97DATES OF HEARING: 26/10/2006 EX TEMPORE JUDGMENT DATE: 10/26/2006 LEGAL REPRESENTATIVES: APPLICANT:
Mr C McEwen, SC, instructed by
Mr M Staunton, solicitor
SOLICITORS:
Staunton BeattieRESPONDENT:
Mr D Wilson, barrister instructed by
Mr N D Howie, solicitor
SOLICITORS:
Wilshire Webb
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
26 October 2006
10298 of 2006 - B M & C J Carr and Country Livestock Supplies Pty Limited v Richmond Valley Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Richmond Valley Council (the council) to refuse a development application for the staged development of an ‘animal establishment’ being six (6) x chicken sheds with a maximum capacity of 246,000 birds, associated earthworks, control rooms and ancillary equipment, silos, water storage, road access, stormwater management, vehicular driveway and manoeuvring areas and water management structures, at Lots 23, 24 & 25, DP755625, Parish of Shannon, County of Richmond, being No 855 Benns Road, Shannonbrook.
2 I visited the land in company with the parties on the morning of the proceedings.
3 I have concluded that that the Court may endorse the consent orders and consent is granted in its terms.
The land
4 The land that has an area of some 62 hectares is situated about 15 kilometres southwest of the town of Casino and west of Shannonbrook about 3.5 kilometres south of the Bruxner Highway. The land has been used for farming practices for many decades and is presently used for low-input beef cattle production. The existing residence and farm infrastructure is located on Lot 25, D.P.755625.
5 The land to the east near Shannonbrook has been cleared for farming of grazing on unimproved pasture, and there are few shade trees. The site of the chicken sheds is on an eastern ridge in the northwestern sector of the land. The western sector of the land is open sclerophyll forest with underlying poor native pasture. The land slopes are gentle to moderate with some slopes in excess of 10%. Most of the land has slopes less than 2%. That part of the land proposed to be developed is in the latter category and only minor earthworks would be required to provide suitable building platforms for the six chicken sheds.
6 Surrounding land use comprises of a number of large rural grazing properties with only few smallholdings. There are no intensive animal production activities located within the immediate vicinity.
7 A large area of land to the north and east of the subject land is included in Council's Rural Residential Development Strategy.
Relevant planning controls
Richmond River Local Environmental Plan 1992, (RRLEP)
8 Under the provisions of the RRLEP the land is zoned Rural 1(a) Prime Agricultural Land (part) and Rural 1(bl) Secondary Agricultural Land (part) and the proposal is permissible with consent as an ‘animal establishment’.
North Coast Regional Environmental Plan 1988, (NCREP)
9 In a draft strategy made under the NCREP the Department of Planning has set a target for population increase for the Richmond Valley up to the year 2031 of 9,900 dwellings of which it is estimated that around 25% of that increase of 1,825 dwellings might be met by rural residential development of rural land.
10 On 15 December 1998 the council adopted a Rural Residential Development Strategy (RRS) to plan for rural residential development of rural land within the Shire under the NCREP. The Director-General of the Department of Urban Affairs and Planning approved this strategy on 4 March 1999. The present proposal for an ‘animal establishment’, outside the RRS, is considered by the council to be in conflict with projected rural residential development.
The proposal and its history
11 Development application No 2005/0187 was lodged with the respondent council on 21 October 2004 for a staged development of an ‘animal establishment’ being six (6) x chicken sheds with a maximum capacity of 246,000 birds on the land.
12 Stage 1 in the nest 6-18 months would comprise Sheds No 1 & 2; Stage 2 18-24 months hence would comprise Sheds 3 & 4 and Stage 3 24-36 months hence would comprise Sheds 5 & 6.
13 The proposal is described in plans prepared by Fidele Design & Drafting Pty Limited including:
Plan No. Issue Title DA-01 F Site Plan, Front Boundary Fence Details DA-02 F Layout Plans DA-03 F Elevations and Sections DA-04 F Waste Management Plan, Site Analysis Plan 4b - Utility Workbench Detail, Typical Amenity Sink
Detail
14 Other plans included:
· Plan of Concept Stormwater Drainage by Britten & Associates Pty Limited dated 8/05 (drawing No 11092/1 A);
· Landscape Planting Plan by Michael Siu Landscape Architects Pty Limited dated 18 May 2006 (drawing No. L01/1-R10016).
15 A Statement of Environmental Effects prepared by Aspect North dated October 2004, and an Odour Impact Assessment prepared by Dick Benbow & Associates Pty Limited dated May 2005, supported the application.
16 The applicant states that the site planning objectives of the proposal would be:
17 In the Statement of Environmental Effects that accompanied the application it is stated, [Note: Exhibit 1, p 10, para 3.3]
- Each poultry shed will be approximately 15.5 metres wide by 135 metres long and will be aligned in parallel with their axis running approximately east-west for better temperature control. Each poultry house will be positioned with a minimum of 15-metre separation between each shed. Each shed has a 2.4 metre wall height with maximum building height of 4.5 metres. The metal roof is insulated corrugated steel, silver in colour. This is specifically chosen as a green or brown colour bond roof have proven to generate too much heat for the rearing of chickens. The sheds are fully automated with the sides incorporating automatic blinds controlled by temperature sensors connected to a computer. This computer also regulates the fans, water and feeding trays, which are adjusted to the height of the growing chickens. The floor of each shed will be constructed of 150mm thickness of road base surrounded by a concrete plinth wall. The floor of each shed will be laid with new sawdust for every new batch of chickens that are reared therein. Each of the proposed poultry sheds will be able to house a maximum of 41,000 chickens.
The control room will be located at the end of each shed. This control room will contain equipment, which will regulate the temperature and supply of food within the sheds.
Feed for the chickens will be stored in twelve (12) x 25 tonne capacity galvanised steel silos located at the end of each shed. The feed silos will each have a height of 5.1 metres and a diameter of approximately 3.5 metres.
18 Statement of Environmental Effects also described the proposed operation, [Note: Exhibit 1, pp 10-11, para 3.4]
- The poultry rearing cycle commences with the importation of sawdust from local sawmills. The sawdust is spread onto the floor of the sheds by a small backhoe, which will be brought in by the sawdust suppliers. It is proposed that the sawdust will be trimmed to the final level by a Quad runner. Once the sawdust is spread and levelled the shed is sprayed with a sanitising agent for disease control purposes.
Given appropriate time after spraying, one day old chickens are brought in and released into the sheds. The chickens are supplied from Brisbane and Sydney hatcheries and transported to the subject property by truck. The chickens are then raised to 38,42 or 50 days old depending on market demand.
The rearing cycle on average is approximately nine (9) weeks long. During the rearing cycle, feed is trucked in as required and loaded into the feed silos using pneumatic conveyors. Typically about 350 tonnes (10 - 13 truck loads) of feed is used for each rearing cycle.
Removal of chickens is conducted at night when the chickens are docile and less susceptible to stress. Removal involves about 4-5 people collecting chickens by hand and placing them into crates. These crates are then placed onto pallets which when full are loaded onto a flat bed truck by forklift. The process is a quiet and efficient operation taking approximately two (2) hours to collect and load about 5,000 - 8,000 chickens. The chickens are then transported off-site to processing factory in the Brisbane area.
A veterinary officer inspects the health of the birds every week. Dead birds found during routine daily inspections will be refrigerated and regularly taken offsite for appropriate disposal.
On removal of all chickens from the shed, the litter is collected from the floor and loaded onto a truck using a small backhoe. The litter is taken offsite and immediately distributed to local farms for use as fertiliser. Litter will not be stockpiled on site.
Wash down water is contained on the floors of the buildings by the plinth walls thereby preventing any residual manure from being washed out of the poultry shed.
The operation and design of the poultry sheds result in minimal dust generation during day-to-day operations. The nighttime collection of birds reduces flock disturbance. The tunnel ventilation design of the sheds reduces dust emissions by virtue of the retractable curtains surrounding the sheds. Further, the immediate removal of all wastes associated with the operation reduces the chances of dust associated with waste stockpiles.
Once the floor litter has been removed the interior of the shed, including the ceiling and walls, will be completely washed down with a high-pressure hose and then allowed to dry. Once dry, the sheds are ready for the rearing process to begin again.
19 On 26 October 2004, the council outlined the deficiencies in the development application and required additional information. The applicant supplied this additional information on 2 March 2005.
20 On 25 March 2005 the council town planning officers inspected the subject land and another nearby site for a similar development application (DA2005.0188), in company with the proponents, their consultants and Mr R Whitehead of NSW Department of Agriculture. On the inspection the council officers requested that the two applicants collectively commission a Biosecurity Report to address any biosecurity issues and the adequacy of the proposed biosecurity measures and site features to manage disease risks and transmission risks.
21 On 30 September 2005 the council requested the applicant to provide additional details regarding the type of likely poultry. This report was received on 13 October 2005.
22 On 26 October 2005 Regional Director, Primary Industries Relations, forwarded comments to the council concerning biosecurity and pointed out that risks to human health from dust and bioaerosis would be the responsibility of WorkCover and the NSW Department of Health. On 1 November 2005 the council requests WorkCover NSW and Department of Health again to address these biosecurity issues having regard to proximity and separation distance between the farms.
23 On 2 November 2005 the council requested the applicant to separately address the comments of NSW Agriculture, in respect of the prospect of avian influenza, its impact on employees at the proposal and any particular requirements of WorkCover Australia in this regard.
24 On 20 December 2005 the North Coast Area Health Service responded and indicated that a 3-kilometre quarantine zone would apply should there be an outbreak of Avian Influenza (Al) and stating that the applicant should address risk management relating to the disease.
25 On 17 January 2006 a copy of NSW Department of Health correspondence was forwarded to the applicant for information and response.
Notification
26 The applicant, as requested by the council, provided additional details of the proposal on 26 October 2004 and again on 22 February 2005.
27 After receipt by the council of additional information, the application was notified to nearby owners and occupants on 4 March 2005, and one objection was received from Mr C Yates of No 660 Benns Road, Shannonbrook.
28 Mr Yates was concerned for dust disturbed by vehicles using Benns Road passing his dwelling and carried by southerlies; noise of passing vehicles and odour.
The council’s decision
29 By notice dated 27 March 2006 the council refused the application for the following reasons:
1. The proposed development is located in proximity to an extensive area, which is outlined in the Richmond River Rural Residential Development Strategy. The establishment of the proposed development could have significant impacts on the capability of a vast area of land within the Strategy being developed for rural residential purposes.
2. The siting of a chicken farm on land in close proximity to land included in Council’s Rural Residential Development Strategy, is contrary to the Planning Principles and the Strategic Planning Approach of the Strategy.
3. The proposed development does not conform with Council’s requirement that poultry farms accord with the provisions of the NSW Meat Chicken Farming Guidelines, which includes, inter alia, a requirement for a minimum separation distance of 2 kilometres between poultry farms. The proposal is located at a distance of only 1.35 kilometres, a factor of 32.5% shortfall in the distance required.
4. Advice from the NSW Department of Health indicates that the proposed use would be within a 3-kilometre buffer of future rural residential development.
5. The application, including any supporting information submitted does not sufficiently address the issue of biosecurity, in terms of the impacts on existing or potential land uses in the surrounding area, should an outbreak of a notifiable disease such as Avian Influenza – H5N1 Virus occur on the subject site.
6. The establishment of an Intensive chicken farm in the proposed location would have a major negative economic impact by sterilising a significant area of land – 715 hectares for future Rural Residential development purposes.
The hearing
30 The appeal was filed on 11 April 2006.
31 The court heard evidence on behalf of the respondent council from:
· Mr A Yates, son of Mr C Yates owner and occupier of No 660 Benns Road, Shannonbrook;
· Mr J J Hession, Planning Officer, Richmond Valley Council.
32 The Court-appointed town-planning expert was Mr Pratt, and Dr P Scott was the Court-appointed expert on avian diseases.
33 On behalf of the applicant, Dr N Holmes gave odour evidence.
The issues
34 On 20 June 2006 the council filed a statement of issues.
- Description of the development
Odour/dust/noise impacts
Health/Biosecurity
Economic impacts
The competing proposal
Public interest
8. The approval of the development is not in the public interest having regard to the objects of the Act in Section 5(a) to encourage:
(i) …
(ii) the promotion and coordination of the orderly and economic use and development of land;
(iii) …
(iv) …
(v) …
(vi) …
(vii) ecologically sustainable development with particular regard to the application of the precautionary principle to issues 4, 5 and 7.
35 On 24 October 2006, the Court granted leave to the respondent to amend the issues to add paragraphs 7A (vegetation removal), 7B (bridge and internal road construction) and 7C (traffic impact) in the further amended statement of issues (Annexure A to the Notice of Motion dated 20 October 2006.
36 The salient issue was the potential conflict with the council’s Rural Residential Development Strategy. In this regard the council alleged that the proposal would be likely to generate objections by people living around 1.35km distant as a result of odour being carried from the chicken sheds.
37 Other issues such as dust, noise and the need to construct a new bridge were to be dealt with by conditions.
The evidence and findings
Conflict with the council’s Rural Residential Development Strategy
38 Mr Wilson for the respondent submitted that as the council had agreed to a condition in respect of the Chappelle development (Appeal No 10226 of 2006) nearby to limit that consent to 20 years. The question arose he said, whether there would be an odour impact from that development after the 20-year period had expired. He submitted that upon that development ceasing to operate, the odour contours from the Carr development would not significantly extend to the north, into the RRS area, and the odour impact of only one animal establishment continuing in operation after that time would be negligible.
39 He submitted that the council would not be able to justify as a significant matter this impact of odours generated by the Carr development and the limitation conditions sought for the Carr development were no longer pressed by the council.
40 He submitted that the other issues concerning the need to upgrade the access bridge and to carry out road works might be met by conditions.
Other matters
Bridge and internal road construction
41 Mr C McEwen, SC, for the applicant, agreed to a deferred commencement condition that would ensure that the bridge construction would be carried out in order to provide suitable access to the development site.
42 If these bridge works are carried out I am satisfied that vehicular access would be provided to the land across the creek.
Traffic impact
43 Mr C McEwen, SC, also agreed to Condition 2 that reads:
- Before issuing an occupation certificate, the applicant shall seal Benns Road for a length of 50m centred at the existing driveway to No 660 Benns Road. Pavement design shall incorporate a 6m bitumen seal, with a 1m gravel shoulder on either side. Construction works to be in accordance with the AUS SPEC Manual and the design of such works shall be submitted to and approved by the Director of Works of the Council before commencement.
44 This condition was considered reasonable to ensure that there will be safe access and would mitigate some of the amenity concerns of Mr C Yates, including dust and noise caused by vehicles passing along the unsealed road near his dwelling.
45 The parties arrived at this condition after considering the contribution by the proposed development to the dust and noise in front of the Yates property. Mr Hession confirmed that about six occupiers of farms have access along this stretch of road. The Carr development would thus be likely to contribute one sixth of the impacts and thus should provide around one sixth of the remedial works. It was estimated that a length of tar sealing of around 300m would be ideal in front of the Yates property and the applicant was content to provide one sixth of that length. Other property owners might add to this tar sealed section over time.
46 The existing road is designed to carry more traffic than presently or would carry were the Carr development in operation. Thus the capacity of the road is not in question and it is simply the amenity impacts that flow from use of an unsealed gravel country road that need to be addressed as outlined above.
47 For the above reasons, the appeal is upheld by consent.
Conditions
48 The conditions are those in Exhibit 3 as amended during the hearing.
Consent orders
49 The consent orders that I make are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 2005/0187 lodged with the respondent council on 21 October 2004, for a staged development of an ‘animal establishment’ being six (6) x chicken sheds with a maximum capacity of 246,000 birds, associated earthworks, control rooms and ancillary equipment, silos, water storage, road access, stormwater management, vehicular driveway and manoeuvring areas and water management structures, at Lots 23, 24 & 25, DP755625, Parish of Shannon, County of Richmond, being No 855 Benns Road, Shannonbrook, is approved subject to Conditions 1 to 53 in Annexure A.
3. The exhibits except for Exhibit 1 are retained.
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site atS J Watts
Commissioner of the Court
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