David Murden and Eva Murden v Port Stephens Shire Council [1998] Nswlec 222 (18 September 1998)
[1998] NSWLEC 222
•09/18/1998
Land and Environment Court
of New South Wales
CITATION: DAVID MURDEN and EVA MURDEN v. PORT STEPHENS SHIRE COUNCIL [1998] NSWLEC 222 (18 September 1998) [1998] NSWLEC 64 PARTIES: DAVID MURDEN and EVA MURDEN v. PORT STEPHENS SHIRE COUNCIL FILE NUMBER(S): 10023 of 1998 CORAM: Sheahan J KEY ISSUES: :- Development application - designated development - poultry farm -odour impacts - noise impacts - health concerns - conditions - "farm operational plan" LEGISLATION CITED: Environmental Planning & Assessment Act 1979
Port Stephens Local Environmental Plan 1997CASES CITED: Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 DATES OF HEARING: 25-29 May 1998 DATE OF JUDGMENT:
09/18/1998LEGAL REPRESENTATIVES:
Mr C McEwen, Barrister
Mr J Maston, Barrister
JUDGMENT:
1. These Class 1 proceedings were commenced by application filed 15 January 1998, appealing against the Council’s refusal on 5 January 1998 of the Murdens’ development application (“DA”) E1917/94, seeking development consent for a poultry farm they propose to locate on their land at 62 Lisadell Road, Medowie, (lot 176 DP 17437) (“the subject site”).
2. The Court had the benefit of a site inspection. The subject site is approximately 1.5-2km from the town centre of Medowie, 30km north of Newcastle and 15km east of Raymond Terrace. The site accommodates two cottages built close to the road, and the chosen location for the proposed poultry farm is the largely vacant land behind them.
3. The entire block occupies an area of 26ha (60 acres), is 200 metres wide fronting Lisadell Road, and 1200 metres deep. The land slopes gently from Lisadell Road in a southerly direction and, in anticipation of approval, “pads” are already in place 300 metres or more south of Lisadell Road.
4. A new intensive poultry industry would be a first for the immediate Medowie district, although the evidence suggests that there is/are either one or two established poultry operations approximately 1km south of the subject site. The neighbours of the subject site complain that they can smell these existing poultry operations to their south.
B. THE PLANNING BACKGROUND
5. The northern or “front” portion of the subject site is zoned 1(c3), and the southern or “rear” portion is zoned 1(c1) under the Port Stephens Local Environmental Plan 1997 (“the LEP”) - (see Tab 6 of Exhibit C1 ).
6. The rear boundary of the subject site adjoins Campvale Drain, which is separated from the subject site not only by distance but by a heavily treed area of largely unusable land. (See also aerial photograph in Exhibit M13 ).
7. The area on the southern side of Campvale Drain would appear also to be zoned 1(c1).
8. “Intensive animal husbandry” is permissible with consent pursuant to the LEP in zone 1(c1) (Rural Small Holdings “C1” Zone). Such uses are prohibited in zone 1(c3) (Rural Small Holdings “C3” Zone).
9. The LEP defines “intensive animal husbandry” as “a building or place used for the commercial breeding boarding or nurturing, by a feeding method other than natural grazing, of cattle, pigs, sheep, goats, poultry or other livestock and includes …. poultry farming establishments containing more than 20 birds”.
10. It is common ground that Murdens’ proposal is permissible with consent but the question is whether that consent should be granted.
11. The LEP makes specific provision in respect of subdivision. The minimum area of lots in the 1(c1) zone 20 ha (cl 15) and in the 1(c3) zone 1 ha (cl 17). Under cl 10 subdivision requires consent. Under cl 21 you cannot build a home in either 1(c1) or 1(c2) on a land area of less than 3,500 square metres.
12. Clause 9(3) of the LEP requires development to be consistent with the zone objectives .
13. An objective of the 1(c1) zone is stated to be “to accommodate the demand for a type of rural living style of an appropriate standard and with appropriate facilities while minimising the loss of prime agricultural land and its impact on surrounding rural lands”.
14. An objective of the 1(c3) zone is stated to be “to accommodate the demand for a type of rural residential living style of an appropriate standard and with appropriate facilities while minimising the loss of productive agricultural land and its impact on surrounding rural lands”.
15. It can be seen that the LEP envisages more of an agricultural lifestyle in the 1(c1) zone and more of a rural residential lifestyle in 1(c3) zone.
16. The Council submits that the objectives of the zones require that the subject proposal not adversely impinge upon the existing dwellings in the locality. In the 1(c3) zone subdivision down to 1ha is permitted and further development is expected subject to the impact of this proposal.
17. The applicants submit either that the zone objective is irrelevant because prime agricultural land is not involved, or that the development is consistent with that objective because the DA proposes a permissible use which will not have unreasonable impacts, and in respect of which numerous measures are proposed to mitigate potential adverse effects (see Exhibit M2 , page 10-11, which is the basis of the proposed conditions).
18. The applicants also submit that their proposal makes good use out of land, bordering a swamp and demonstrably of little utility for other purposes, and that they are reasonably entitled to expect to be able to carry out a permissible use within the zone, provided they satisfy the criteria in s 90 of the Environmental Planning & Assessment Act 1979 (“EPAA”) as it stood prior to 1 July 1998.
19. There is no evidence before the Court of the classification of this land for agricultural purposes, but the respondent Council raises no issues with the proposal on the grounds of any loss of prime agricultural land.
20. The EPAA Regulations 1994 Schedule 3 provide that:
“Poultry farms are ‘ designated ’ when located:
(a) within 100 metres of a natural water body or wetland; or
(b) within a drinking water catchment; or
(c) within 500 metres of another poultry farm; or
(d) within 500 metres of a residential zone or 150 metres of a dwelling not associated with the development and, in the opinion of the consent authority, having regard to topography and local meteorological conditions, are likely to significantly affect the amenity of the neighbourhood by reason of noise, odour, dust, lights, traffic or waste.”
21. The subject proposal is agreed to be “designated” development, because of paragraph (b) of the above regulatory provision - its proximity to a major watercourse.
C. THE PROPOSAL
22. The DA was lodged on 10 November 1994 and appears as document 1 in Exhibit C1 . An associated landscaping plan is included in Exhibit M19 .
23. Designation of a development requires the DA to be accompanied by an Environmental Impact Statement (“EIS”) and the EIS for this development was lodged on 6 September 1996 (see Tab 2 of Exhibit C1 ).
24. The proposed use will comprise “intensive animal husbandry” by way of four purpose-built single-storey sheds which will be mechanically ventilated so as to provide both a strictly controlled temperature (20-22 degrees Celsius) and one full air change per minute, for optimum results. Each shed is expected to require 8-10 fans for these purposes, and heating will be provided by liquid petroleum gas.
25. The proposed broiler sheds will be approximately 110 metres long by 20 metres wide, and will be separated by approximately 15 metres. Each proposed shed will be approximately 4.5 metres high and will be made of steel and timber frames on the compacted earth floors (“the pads”) with concrete footings. (For detailed shed design see Tab 2 of Exhibit C1 ).
26. It is proposed that each shed will house up to 25,000 chickens, which will be “grown out” for approximately 8 weeks before harvesting. Accordingly, there is expected to be 6 cycles of breeding per annum.
27. The applicants are acknowledged to have general agricultural experience but no particular experience or expertise in poultry farming.
D. THE COUNCIL’S VIEWS
28. Council’s examination of the proposal can be found at Tab 10 of Exhibit C1 .
29. Council opposes the proposal on the grounds set out in its notice of refusal dated 5 January 1998 (see document 3 Exhibit C1 ). In short, serious objections are expressed in respect of odour, the siting of the sheds virtually adjacent to the zone boundary, likely impact of the development on surrounding rural land and “rural living”, and objections by public authorities (see, e.g., EPA comments at Tab 8 Exhibit C1 ).
30. The applicant has resisted Council’s suggestions that the preferred location for the development be moved 250m further south on the subject site, towards what can only be described as swampy land, but the objective of Council’s 1979 “Code for the Erection of Poultry Broiler Sheds” as adopted 22 May 1979 (see Tab 7 of Exhibit C1 ) requires a separation of sheds by a minimum of 500 metres from any dwelling erected upon an adjoining allotment.
31. The evidence suggests that there are currently 18 residences within 500 metres of the preferred site, including 2 upon the subject site itself.
32. There was some dispute in the evidence regarding the actual distances from the preferred site to the nearest existing dwellings (see Exhibit C2 , cf the plans in the DA and EIS).
33. It seems almost certain that the dwelling “nearest” to the subject site is that owned by the witness Albert James Day , located approximately 260 metres north-east of the pads.
34. If the subdivision of the property adjacent to both Mr Day’s property and the subject site goes ahead, it would be expected that any residences constructed on the resulting lots, north-east of the subject site, would also infringe the 500 metre guideline (see Exhibit C2 ).
35. The 500 metre rule set out in cl 3 of Council’s code, for which, incidentally, Council could not produce a background file, has been consistently applied in the Port Stephens area and applies also currently in Western Australia. There is no credible scientific evidence before the Court demanding its enforcement, and 150 metres is indicated by the Industry Guidelines and the designated development provisions as a more realistic criterion to apply. ( Exhibit M10 ).
36. The evidence suggests that the wind rarely blows in the direction of Mr Day’s home, and the likely homesites on the proposed subdivision, but it was certainly blowing in that direction during the Court’s site inspection, and Day gave evidence that the rear of his house predominantly takes winds from the south-west. He alleges that his living and entertaining areas would, therefore, be adversely affected by the proposed development.
37. Council takes the view that closeness to the zone boundary magnifies the neighbourhood impact, but no minimum separation of development from the boundary between zones is indicated in the LEP. Indeed, the LEP allows a tolerance/buffer of 20 metres.
38. The proposal also includes a roadway down the centre of the land from Lisadell Road, with a turning and parking area encroaching the zone boundary north-east of the preferred location for the sheds. The evidence suggests that the encroachment would be some 50 metres, considerably more than the 20 metres envisaged by clause 26 of the LEP.
39. The Council concedes that the roadway through the 1(c3) zone to the 1(c1) land may be permissible [ Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202], but not the proposed truck manoeuvring and parking area.
E. THE ISSUES
40. The Statement of Issues filed 26 February 1998 nominates the following issues for determination in the appeal:
“1. Whether the proposed development is consistent with the objectives of the 1(c1) zone under the Port Stephens Local Environmental Plan s90 (1)(a)(i).
2. Whether the proposed development has an adverse impact on the environment in particular, dwelling houses and other land uses in the locality s90(1)(b).
3. Whether the means proposed in the application to mitigate the adverse impacts on the environment are sufficient s90(1)(b).
4. Whether the siting of the proposed sheds on the site is appropriate in the circumstances s90(1)(e)(f).
5. Whether the proposed development adversely impacts on adjoining land s90(1)(h)
6. Whether the proposed development adequately addresses the representations of the Environmental Protection Authority and the Department of Agriculture s90(1)(n).
7. Whether the proposed development has an adverse effect on the amenity of the neighbourhood, in particular odour impacts, health risks, dust, traffic, drainage and stormwater and noise s90(1)(o).
8. Whether the proposed development complies with the New South Wales Department of Agriculture Poultry Farming Guidelines s90(1)(q).
9. Whether the proposed development complies with Port Stephens Council’s code for the Erection of Broiler Sheds s90(1)(q).”
41. The Environment Protection Authority (“EPA”) raised several issues (see Tab 8 of Exhibit C1 ), including odour, which is a common complaint about poultry operations. Odour in poultry operations is affected by temperature, by humidity, and (the evidence suggests largely) by the amount of water in the litter.
42. Other issues raised by this proposal and requiring resolution include noise, traffic, the disposal of dead birds, and the need to accommodate the allergies of close neighbouring residents. Periodical collection of live birds is often preferred as a nocturnal activity, so the activities of a poultry operation are not confined to daylight hours.
43. In Council Officers’ report of October 1997 the view was expressed that all Council’s reservations about the project could be dealt with quite adequately by conditions, except odour.
44. Accordingly, much of what follows in this judgment must focus on issues concerned with odour .
F. PROPOSED CONDITIONS
45. By the conclusion of the hearing the parties had agreed upon 16 draft conditions of consent addressing all the above issues. These were agreed to be stringent and enforceable, and capable of ameliorating all the potential adverse impacts.
46. It was also virtually conceded by the applicant that if the proposal were to proceed the turning area should not be allowed to straddle the zone boundary. The evidence suggests it could conveniently be relocated to a point further south on the subject site, somewhere in the vicinity of the proposed pond area. The implication of the discussions regarding this matter is that a seventeenth condition could and would easily be agreed upon requiring the turning area to be so relocated to a site within the 1(c1) zone.
G. THE LOCAL WITNESSES
47. The owner of lot 177, Alexij Krywenko , gave evidence along the following lines. (His affidavit is at Tab 12 (iv) of Exhibit C1 ):
- (i) He has lived at 70 Lisadell Road since 1979. He is a retired, and ill, seaman without a pension, aged 62, and needs to realise on the value of his property in order to meet his living expenses. Lot 177 is 203 metres wide and covers an area of 22 ha. He has already sold one portion of his land, now known as lot 18, to Albert James Day, who also gave evidence. (See his affidavit at Tab 12 (i) of Exhibit C1 ). He estimates that he will receive a price of approximately $80,000 for each 1ha block in his proposed subdivision. The proposed subdivision of the lot immediately to the east of the subject site into 6 rural 1ha lots complies prima facie with this code but has been delayed by the Council until the determination of this appeal into 6 rural 1ha lots.
(ii) Krywenko unsuccessfully sought development consent in 1979-80 for a poultry operation on lot 177, but because its proposed sheds were only 150 metres from the road, his proposal was ruled out by the 1979 Broiler Code. An appeal to the Local Government Appeals Tribunal was unsuccessful.
(iii) He acknowledged that he could redesign his subdivision in order that homes would not be built quite so close to the proposed Murden poultry operation , if it is to be allowed at all. An alternative design for his subdivision was presented by the applicants’ planning consultant (Mr Kovats) and appears at Exhibit M17 .
(iv) He is sensitive to odour from the existing poultry operations approximately 1km to his south.
48. Albert James Day is an injured, and ill, former boilermaker who is selling athletic equipment from home. He gave evidence along the following lines:
(i) He bought his 1ha lot adjoining the subject site from Krywenko in July 1997. He checked the zoning at the time of the purchase, but did not make any inquiry as to any current development applications. The evidence suggests that the pads had already been established on the subject site at the time of Day’s purchase.
(ii) He has had some experience of feedlots and the poultry industry.
(iii) He also testified as to the correct location on various plans and maps of existing homes in the area and that the trees shown as existing on maps and plans elsewhere in the evidence, is overstated. The true nature of the vegetation in the vicinity can be ascertained from a perusal of the aerial photograph ( Exhibit M13 ).
(iv) He acknowledges that there has been persistent improvement in the technology of poultry farming, but he believes that the odours generated by the poultry industry are still unacceptable in residential environments.
49. Two residents of Nos.53 Lisadell Road, namely Robyn Witkowycz and her son Luke Stephen Witkowycz , also gave evidence. (Their affidavits are at Tabs 12(2) and 12(3) of Exhibit C1):
- (i) Mrs Witkowycz is a nurse working shiftwork (50% nightshift), and Luke is a young man of 20 years recovering slowly from obviously major injuries sustained in a motor cycle accident.
(ii) Both have on-going health problems which they allege will be exacerbated by dust, feathers, etc. if the poultry operation goes ahead.
(iii) They are concerned also at the impact of the project on the value of their property as the Witkowycz family needs to subdivide the land in due course to establish the family’s retirement income.
(iv) They too can detect a smell of existing sheds to the south as the front of their house opens in a southerly direction from its location some 12 metres from the road.
H. THE EXPERT WITNESSES
50. The applicants relied on the following expert witnesses:
· Pavel Zib is the Principal of P Zib & Associates, Air Quality and Pollution Control Consultants, and the holder of a PhD in Atmospheric Sciences from the University of Witwatersrand (Czechoslovakia). He has over 25 years experience in environmental matters with emphasis on air quality, air pollution safeguards and dispersion meteorology.
· Kerry Holmes is the Director of Holmes Air Sciences and the holder of a PhD in Chemistry from the University of Lancaster. She is an environmental chemist, with expertise in chemistry, health sciences and dispersion modelling, and with considerable experience in the assessment of odour emissions from a wide range of industries.
· Gregory Poole is a poultry adviser and equipment supplier to the poultry industry. He has been involved in the poultry industry for some 25 years including 16 years until March 1996 as State poultry adviser with New South Wales Agriculture. He is the principal author of the New South Wales Poultry Farming Guidelines.
· Kenneth Ingram has been a consultant to the poultry industry for over 30 years and has built about 100 ventilated modern sheds
· Timothy Procter is Manager Process and Environmental Services at Advitech Pty Ltd. He is an expert in the field of noise assessment, and the author of the noise assessment section in the EIS.
· Tibor Kovats , town planner with Gutteridge Haskins & Davey P/L, with over 17 years experience in planning and environmental assessment, including four years as a sole practitioner and ten years in local government.
51. The respondent Council relied on the following expert witnesses:
· Terrence Schulz is Manager of Air Quality and Odour Services at CH2M HILL AUSTRALIA, where he is responsible for odour testing and control. He is a Chemical Engineer with 23 years experience in environmental engineering.
· Paul Douglass is currently the Development Manager at Port Stephens Council. He has 10 years experience in town planning with Council, in senior positions since 1991, but his evidence indicates that the Murden project is the only intensive poultry operations he has ever assessed.
I. ODOUR IMPACTS
(a) The general principles
52. It is useful to set out here some of the common ground that emerged from the evidence as to the broad principles and standards that underpin the science of odour testing and prediction.
53. Whether or not an odour will constitute a nuisance or annoyance at a particular site is dependent on several characteristics of the odour, including its intensity (which increases as a function of concentration) and hedonic tone (the relative pleasantness or unpleasantness of the odour).
54. Odour intensity is measured using panels of people who are presented with samples of odorous gas diluted with decreasing quantities of clean odour-free air. This process is known as olfactometry. The panellists note when the smell becomes detectable. Odour in the air is then quantified in terms of odour units. The odour concentration which elicits a sensory response from 50% of the panellists is assigned a value of 1 Odour Unit (OU). This is known as the “ detection threshold”.
55. The odour “ recognition threshold” is the minimum concentration at which 50% of the panellists are certain they can detect the odour. The odour concentration at that threshold is given a value of 1 odour certainty unit, expressed as OU/m3, or OU50R.
56. A figure of 3:1 is often used to generalise the relationship between the detection and recognition/certainty threshold. That is, a sample with a concentration of 3 odour detection units would be expected to have a concentration of 1 odour recognition/certainty unit.
57. The above definitions of relevant odour thresholds are those adopted by the EPA, but the definitions traditionally used in odour science are slightly different. The conventional definition of recognition threshold is “the minimum concentration at which an odour is recognised as having a particular quality or could be recognised again”.
58. However, it appears that the distinction is of little importance for all relevant purposes in this case, as the ratio between this recognition threshold and the detection threshold is also approximately 3:1.
59. Olfactometry methods have changed in recent years to bring Australian standards closer to European standards. The significant impact of the change is that measurements under the new methods generally result in higher values of odour strength than those determined under the old methods.
60. Odour impacts on sites remote from the odour source are predicted by way of a two-step process. Firstly, the odour emission rate is predicted by taking samples of air from an odour source similar to the proposed operation, and determining its intensity by olfactometry methods. This information is then combined with relevant meteorological data and used in a mathematical “dispersion” model that predicts the degree to which the odour will have become diluted by the time it reaches sensitive receptor sites in the vicinity of the odour source.
61. The commonly used “Gaussian” dispersion models predict concentration levels over an averaging period of 3 minutes or greater. The human nose, however, responds to odours over periods of about one second. During a 3 minute period, odour levels can fluctuate significantly above and below the mean, depending on the nature of the source. A more accurate and sophisticated prediction of odour impacts at a particular site, therefore, entails the conversion of the 3 minute average concentration to the one-second peak concentration (known as the peak to mean ratio).
62. Because the degree to which the odour concentration levels fluctuate around the mean depends on the nature of the odour source, the peak to mean ratio is determined by selecting the appropriate category of odour source. In 1995, the EPA commissioned Katestone Scientific Pty Ltd to undertake a study to determine appropriate peak to mean ratios for a range of circumstances. That study recommended that, for example, a “surface point” source, exemplified by an open campfire in the desert, unimpeded by surrounding structures, should be given a conversion, or “peaking” factor of 10:1. An “area” source, on the other hand, should have a peaking factor of 1.9:1.
63. First complaints of odour nuisance are typically received when the concentration of unpleasant or offensive odours in the air reaches a level of about 4 or 8 times the detection threshold. Complaint statistics point to a general level of 5 odour units as the level at which complaints of annoyance may commence.
64. In recognition of this, the EPA sets a design goal to indicate the maximum acceptable level of predicted odour units at a receptor site near a proposed development.
65. When the EIS (including an odour assessment study) was prepared for this development in 1996, the EPA design goal was that odour levels should not exceed 2 OU (detection-based) for 99.5% of the time. (There appears to be some dispute as to whether the predicted levels were to be measured at the boundary of the property in question or at particularly sensitive receptors such as nearby residences).
66. Subsequently, however, the EPA abandoned that goal as too stringent. It has not been replaced by a new goal, although draft guidelines relating to composting and related facilities have been released for comment from relevant industry groups, and these guidelines are accepted as applying also to poultry farm operations.
67. These composting guidelines recommend for facilities in urban areas a design goal of 2 OU/m3 (ie, certainty-based units) to be complied with 99% of the time, using 1 second nose response time emission rates (ie, peak to mean ratios are factored into the dispersion modelling process) and a goal of 7 OU/m3 for rural/industrial areas.
68. Having set out this largely undisputed evidence as background, I now turn to the specific and contentious elements of the expert evidence in relation to odour impacts.
(b) Dr Zib’s evidence
69. Dr Zib prepared the odour study dated 22 July 1996 that was included in the EIS for the proposed development.
70. As a basis for the study, Zib inspected the operation of a poultry shed in the Mangrove Mountain area with a similar design and similar operational practices to those proposed for the Murden venture. The timing of the inspection and subsequent air sampling coincided with the final stage in the growing cycle of the birds immediately prior to their removal from the shed. It was expected that the potential for odour emissions was at its peak during that stage.
71. The odour concentration of the air collected by Zib at the face of the ventilation fan of the shed was measured at 108 odour units (it was unspecified whether these were detection or certainty-based units). When multiplied by the ventilation flow rate, this gave a total odour emission rate from the shed of 7560 OU per second. The hedonic tone of the sample was described as very unpleasant.
72. Zib used in the dispersion model 12 months of meteorological data from a nearby site of Tomalgo Aluminium. The applicability of this data to the proposed site was checked by comparing it with a wind monitoring programme conducted at the subject site over 3 months. The monitoring confirmed that, because of the proximity of the two locations and a generally flat terrain between them, the meteorological conditions were very similar.
73. The main features of the meteorological data commented on by Zib were:
· the trend during the winter season for the majority of winds to originate from the quadrant between the west and the north (causing most atmospheric emissions to disperse in the south-easterly direction),
· the opposite regime during summer, when the majority of winds come from the quadrant between the south and the east, and
· the virtual absence of winds coming from the south-western quadrant, particularly during the warmer months of the year when the potential for odour generation is at its maximum.
74. Zib used the odour emission rate and the meteorological data to model predicted odour concentrations at the 7 residences surrounding the subject site. (For some unknown reason, Zib numbered the houses 1 to 8, excluding number 4).
75. His results are summarised in column 1 of Table A below (in section (e)).
76. On the basis of these results, Zib concluded that the predicted concentrations at each of the residences were in compliance with the EPA design goal of 2 odour detection units.
77. There appears to be some ambiguity as to whether the units referred to by Zib in this study should properly be considered as odour detection units, or odour certainty units. Clearly, if the measurements were equivalent to certainty/recognition levels, the predicted concentrations would not comply with the EPA design goal of the time (since the above figures would need to be multiplied by approximately 3 to assess compliance with the design goal).
78. Zib re-sampled odour emissions from the shed at Mangrove Mountain on 4 February 1998, using the new generation of olfactometry methods to reassess predicted odour impacts of the Merdon proposal in the context of the amended (draft) EPA design goals.
79. The sampling was again timed to coincide with the final stage in the growing cycle. The weather during the sampling was warm and humid, and followed several weeks of very warm to hot and humid weather.
80. The odour concentration of the air at the face of the ventilation fan of the shed was measured on this occasion at between 460 and 620 odour certainty units. This information was used in a dispersion model to again predict odour impacts on the surrounding residences. The predicted values incorporated a conversion of the average 3-minute concentrations, produced by the model, to a measure of nose response time, by multiplying the 3-minute average by a factor of 1.9, on the basis that the proposed sheds constitute an “area” source. It was an area source because the parcel of air built outside the face of the shed by the horizontal discharge of the fans was similar in shape to a cube of mixed air, with virtually no vertical dimension.
81. The predicted values are set out in column 2 of Table A. They indicate non-compliance with the draft EPA goal of 7 OU/m3 at 3 of the surrounding 7 residences. However, Zib’s opinion was that these measurements represent extreme results that should be discounted for the following reasons:
· they assume that the weather conditions would be as extreme at all times as they were during the sampling;
· they assume that the birds would be in the final stage of the growth cycle at all times;
· the ownership of the Mangrove Mountain shed had changed since the 1996 sample was taken, and the new owners operated the shed inefficiently;
· the proposed safeguards for the proposal, such as the use of enzymes to reduce odour generation rates, the use of fully computerised ventilation and the use of non-pervious materials on the floor, would significantly reduce the overall odour impact.
82. Zib also drew attention to a 1998 study carried out by the Centre for Water and Waste Technology at the University of New South Wales using samples taken from poultry sheds in Western Australia. The results for a similar shed with forced ventilation indicated an odour strength of 133 OU/m3. The predicted odour levels at surrounding residences based on this data are set out in column 3 of Table A.
83. Furthermore, Zib stated that an additional and significant safeguard to odour impacts could be achieved by attaching a stack to the vents of the sheds so that the discharge is redirected vertically. As a result, the dispersion starts at a higher point above the ground where the wind movements are more pronounced, with consequent advantages for odour dispersion, and, significantly, this makes appropriate a “wake-affected point” as a source type for the purpose of calculating the peak to mean ratio. The conversion factor recommended in the Katestone Scientific study for a wake-affected point source is 1.4.
84. Table B (also in section (e) below) sets out the predicted odour levels at the surrounding residences using the conversion factor of 1.4, as applied to all the relevant data gathered for this case.
(c) Mr Schulz’s evidence
85. Schulz is the author of a report dated May 1998 that critically reviews the emission rate data used by Zib in his report of 22 July 1996. Schulz does not claim expertise in the field of dispersion modelling, and he drew conclusions in his report on the likely odour impacts of the proposed farm by inserting his assessment of likely odour emission rates into the odour dispersion modelling carried out by Zib, which he assumed to be of high quality and in line with current industry standard procedures.
86. Schulz collected air samples from poultry sheds at the Mangrove Mountain operation on 3 April 1998. The weather conditions during the sampling were fine and hot, at 30 degrees. Because the sampling occurred earlier in the growth cycle, the total weight of the chickens in the shed was about half the weight at the time of the sampling by Zib. Schulz collected two samples when there were three fans operating, and two samples when a further two fans were switched on. He considered the results for the three fan scenario more reliable, since the ventilation system and odour generation processes would have been in equilibrium, having been stable for several hours.
87. The results for the three fan scenario revealed odour concentrations of 737 and 790 OU/m3. Schulz averaged those concentrations and multiplied the average by the ventilation flow rate to arrive at a total odour emission rate of 21,760 OU/sec. This compared with Zib’s original finding of 7,560 OU/sec.
88. Thus, Schulz’s results demonstrated at least a three-fold greater level of odour emissions than measured by Zib.
89. Furthermore, Schulz argued that it was reasonable to factor in the discrepancy in bird weights between the CH2M HILL and Zib sampling conditions. This was because of strong anecdotal evidence that odour emission rates in poultry farms increase as the birds grow to full weight. On the basis that there was a one-to-one relationship between weight and odour generation rate, Schulz postulated an odour emission rate of 46,000 OU/sec for the birds at their full weight of 2kg.
90. Zib disputed the assumption that the relationship between weight and odour generation rate was one-to-one. While he conceded that there is likely to be more odour at 35 days in the growth cycle than at 25 days (when Schulz measured), the ratio of the difference, in his opinion, was more in the order of 10:7 (or about 1.4:1).
91. Schulz did not precisely calculate the predicted odour unit levels at nearby residences, but said in oral evidence that there is a direct relationship between the odour emission rate and predicted odour impacts on remote sources. The predicted odour impacts based on his figures are listed in column 3 of Table A
92. Column 2 of Table B predicts the impacts based on Schulz’s figures, assuming the installation of a vertically discharging stack (with a corresponding conversion factor of 1.4).
93. These predicted impacts do not take into account Schulz’s hypothesis that the odour generation rate would increase in proportion with the growth in weight of the birds.
(d) Dr Holmes’ evidence
94. Dr Holmes prepared a report for the proceedings that reviewed the odour modelling undertaken by Zib in respect of the proposed development. In her report and in oral evidence she generally endorsed the approach and conclusions drawn by Zib.
95. She agreed with Zib’s choice of an area source as the appropriate peaking factor for the proposed development, and with his view that it was appropriate to regard it as a wake-affected point in the event that vertically-discharging stacks are installed.
96. She agreed that the 1998 Zib results from Mangrove Mountain could be considered extreme, because of the sub-standard operation of that shed and the fact that those practices would not be mirrored at the proposed shed.
97. She concluded that the proposed development would be acceptable in terms of its odour impacts on nearby residences.
(e) The tables
Table A - predicted odour impacts at surrounding residences
- horizontally discharging fans (units are OU/m3)
Table B - predicted odour impacts at surrounding residences
- vertically discharging stack
(f) Discussion
98. The Court has not found it a simple matter to determine, in these circumstances, whether the odour impacts of the proposed development are likely to be within acceptable limits.
99. For a start, the EPA standards in respect of acceptable odour impacts were not, at least at the time of the hearing, settled. There were draft guidelines which set recommended maximum levels of 2 OU/m3 for urban areas and 7 OU/m3 for rural areas, but these goals had not been finalised and were still being discussed within the odour science community. Also, as the proposed sheds are to be located on the boundary of a rural residential zone, the proposed development does not neatly fit into the current distinction between rural and urban design goals.
100. The evidence before the Court suggests that the study of odour prediction itself appears to be a relatively inexact science. The dispersion model acknowledges a margin of error of plus or minus 100%, and does not include significant odour events such as the cleaning out of litter from the sheds. The Court also notes the wide variance in the results of the odour sampling.
101. Furthermore, there seems to be an unusually high number of concerned neighbours who suffer from medical ailments. While there was no clear evidence that the proposed development would detrimentally affect the health of these residents, their particular sensitivity and concern are nevertheless factors that should be taken into account by the Court, which should adopt a cautious approach in assessing odour impacts.
102. For all these reasons, the circumstances of this case demand a conservative and cautious approach to determining the question of whether the odour impacts of the proposed development will be within acceptable limits.
103. In particular, since the draft EPA design goal has not yet been finalised, and as this is an intermediate situation somewhere between a purely rural and a purely urban environment, it is necessary, in my opinion, for the applicant to demonstrate comfortable, not merely borderline, compliance with the 7 OU/m3 goal to enable the Court to conclude with confidence that the impacts will be acceptable.
104. The odour sampling of similar sheds to the proposal resulted in a wide range of predicted impacts, as summarised in Table A. While Zib and Holmes argued that Zib’s 1998 figures should be discounted because of the extreme weather conditions prior to his sampling and the inefficient operational practices of the new owners of the Mangrove Mountain shed, I think that, in applying a cautious approach to odour assessment, those figures should be taken into account, to assess a likely “upper limit” of odour impacts of the proposed operation.
105. A crucial question to resolve is the issue of which “peaking factor” is appropriate to be applied. The figures in Table A apply a peaking factor of 1.9, on the assumption that the sheds with a horizontal discharge are best characterised as an area source. The figures in Table B apply a peaking factor of 1.4, on the basis that a vertically discharging shed is an example of wake-affected point source. Both Zib and Holmes endorsed this approach as appropriate.
106. Schulz conceded in oral evidence that this particular aspect of dispersion modelling was not within his area of expertise, however he suggested that it may be more appropriate to regard the sheds as a line source (peaking factor 2.8) or a surface point (peaking factor 10). This suggestion was made after consultation with Mr Agapides of the EPA.
107. Mr Maston, for Council, submits that the distinctions between these source categories are blurred, and that there are no clear definitions which the Court could construe in order to make a decision on the matter.
108. While I agree with Mr Maston that the written material in the Ausplume manual (that supposedly defines the particular source categories) is unclear and ambiguous, I am satisfied from the evidence of Zib and Holmes that experts experienced in the field of dispersion modelling are able to accurately and consistently categorise an odour source. I accept their evidence that the appropriate categories in this instance are an area source (in the case of horizontally discharging fans) and a wake-affected point (for a vertically discharging stack).
109. On this basis, it seems clear from Table B that, if the discharge is redirected vertically by attaching stacks to the vents of the sheds, the predicted odour impacts on surrounding residences are comfortably within the draft EPA goal of 7 OU/m3.
110. Even if the Schulz results are multiplied by 2, to reflect his hypothesis that the odour emission rate would double as the birds reached their full weight, there is comfortable compliance at every residence except number 8, which would nevertheless strictly comply, with a predicted value of 7 OU/m3.
(g) Conclusions regarding odour
111. Consequently, I am of the view that, even on a conservative approach to odour assessment, it has been demonstrated by the applicant that the odour impacts of this proposed development will be comfortably within acceptable limits.
112. In coming to this conclusion, I am fortified by the evidence of Zib and Poole that these impacts will be further and significantly reduced by the strict implementation of the management plan for this development, which includes such odour-reducing measures as the computerised climate control system, controlled access of birds to water, modern cleaning practices and the use of non-pervious materials on the floor of the sheds.
J. NOISE IMPACTS
113. The question of whether the noise impacts of the proposed development would be within acceptable limits involves the consideration of a number of different aspects of the operation.
114. Procter , in his noise assessment report in the EIS, distinguished between noise impacts from normal operations of the poultry shed, occurring over a six week cycle for each batch of birds and impacts from broiler collection activities, occurring over approximately four days at the end of each six week growth cycle.
115. In his statement of evidence and in oral evidence, he also assessed the impacts of the noise generated by trucks delivering grain and during bird pick-up.
116. These impacts were assessed against the EPA recommended levels for day time and night time activities.
117. There are several methods recommended by the EPA for determining the acceptability of noise impacts, with varying degrees of stringency. The ideal situation is for a proposed development to comply with the most stringent of those guidelines, but compliance with the less stringent goals is also regarded as a legitimate basis for assessing noise impacts.
118. The most stringent EPA method, when applied to the site, led to a recommended planning level of 38 to 40 dB(A) during the day and 27 to 34dB(A) at night time (defined as commencing after 10pm).
119. An alternative, but less stringent, method involves calculating the outdoor background noise level and adding 5dB(A) to set a maximum noise limit. The background noise at the subject site was measured by Procter to range between 33 to 43 dB(A) during the day and between 29 to 37 dB(A) at night.
120. Consequently, the maximum daytime noise level range was calculated as being between 38 to 48 dB(A) and the night time range between 34 to 40 dB(A) (the night time level was limited to a maximum of 40 dB(A) because that is the “extreme” limit pre-set by the EPA for night time background noise in rural areas).
121. Procter measured noise levels from similar poultry farm operations at Nelsons Plains in the Hunter Valley and Mangrove Mountain on the Central Coast to assess likely impacts of the proposed development. The noise impacts of the “normal” activities ranged between 26 to 30 dB(A) (day and night time) and broiler collection impacts ranged between 30 to 36 dB(A) (day and night time).
122. It is clear, therefore, that the proposed development can be expected easily to achieve day time planning noise levels, whether assessed against the most stringent EPA goal, or against the goal of background noise plus 5 dB(A).
123. However, it is also apparent that night time planning levels would be exceeded by broiler collection activities by two dB(A) (36 cf limit of 34).
124. Procter conceded in cross-examination that a more accurate prediction of the noise impacts of broiler collection activities on the nearest residences was a range of 32 to 38, on the basis that he had incorrectly plotted the closest residence as 310 metres from the proposed development, when the actual figure should have been 240 metres. Consequently, the night time planning levels would be exceeded by 4 dB(A).
125. Procter nevertheless believed that the proposed development would produce a noise level that will not adversely affect the surrounding local noise environment. He said that the effect of the noise exceeding the recommended planning level by 2 dB(A) would be “barely perceivable”. On the basis that the noise would exceed the recommended level by 4 dB(A), his evidence was that one would start to look at implementing mitigation measures such as acoustic barriers, but that it was more appropriate, firstly, to monitor the performance of the operation before resorting to such measures.
126. I am satisfied from this evidence that the noise impacts of the normal activities and broiler collections are not likely to adversely impact on the locality. I note that the predicted noise levels of the broiler collections at night comply with the EPA guideline of background noise level plus 5 dB(A), and I am satisfied that the proposed condition 5 will ensure that, in the event that noise impacts prove to be a source of complaint, they will be suitably remedied.
127. Procter also considered the noise impacts of truck movements to and from the site and concluded that their impact is likely to be negligible. They would be well within the EPA Environmental Goal for Road Traffic Noise for a new development in a rural area, ie, not more than 50dB(A).
128. While concern was raised by some of the local residents that their sleep may be disturbed by the truck movements to and from the site, it appears from the evidence that this is highly unlikely.
129. The criteria used by the EPA to predict noise levels likely to disturb sleep is an “L1” level of 15 dB(A) above background noise. The L1 level is the noisiest one percent of the recorded or predicted range for a particular activity. The L1 level for this type of activity was said by Procter to be not very far above “L10” levels, which, for this operation, were found to be similar to background noise levels. The L1 level would not approach background noise plus 15 dB(A).
130. Accordingly, I am satisfied that the entirety of noise impacts of the proposed operation are likely to be within acceptable limits, and that there is a suitable method in place, namely that outlined in condition 5, to remedy any impacts should they prove to be more adverse than expected.
K. HEALTH CONCERNS
131. As recounted in section G above, a number of nearby residents gave evidence of their concerns that dust and feather drift from the proposed development would aggravate their pre-existing respiratory problems and other medical conditions. Attached to the affidavits of Robyn and Luke Witkowycz and Albert Day were letters from doctors advising that their health would most probably be adversely affected by the introduction of new allergies to the area.
132. Douglass states in his report to Council that “the proponent has not clearly demonstrated that feather drift will not adversely affect the existing residences in the locality”. He notes that an inspection of the Mangrove Mountain operation revealed some feather and dust material being blown outside of the shed confines, although the material did not travel far (up to approximately 30 metres).
133. However, Douglass conceded in cross-examination that he would have recommended to Council that the application be approved if he was satisfied that the odour impacts would be acceptable.
134. Poole gave evidence that, in his opinion, the risks that this development poses to public health are minimal. He said that there were many existing farms in much closer proximity to residences than the proposed development with no reported adverse impacts on human health. He thought that the separation distances are sufficient to dilute odours and dust to levels that are unlikely to cause problems.
135. On balance, while I am very mindful of the particular sensitivity of the neighbouring residents and understand their legitimate concerns, I am satisfied that the dust and feather drift from this development is not likely to be sufficient to affect their health adversely.
136. I accept the evidence of Poole, who has 25 years experience in the regulation of the poultry industry, that a modern shed operated in accordance with modern practices (as exemplified by his management plan that the Court will apply to this development) will most likely produce minimal dust and feather drift impacts to neighbouring residences, which are 240 metres or more from the operation.
L. CONCLUSION AND ORDERS
137. For all the above reasons I have come to the conclusion that, notwithstanding the understandable concerns of the neighbours, the evidence before the Court suggests the impacts of Murdens’ proposal are likely to be within acceptable limits.
138. Therefore, consent should be granted, subject to stringent conditions as proposed and agreed.
139. The track turning area should not encroach upon the zone boundary; so the seventeenth condition discussed (see section F) should be imposed.
140. The formal orders of the Court are:
(1) The appeal is allowed.
(2) Development Application E1917/94 is determined by the granting of consent on the conditions set forth in Annexure “A” to this judgment.
(3) The exhibits may be returned.
(4) No order as to costs.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 33 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.
Associate:
Dated: 18 September 1998
AI
ANNEXURE “A”
CONDITIONS OF CONSENT
MURDEN v PORT STEPHENS SHIRE COUNCIL
1. The development shall take place in accordance with the Environmental Impact Statement and plans submitted with the Application excepting as modified by these further conditions.
2. The development is to be carried out in accordance with the Farm Operational Plan submitted by Pooled Resources Pty Limited and dated May, 1998 (copy attached as pages A4-A5).
3. No filling or debris is to be placed within any water course or drain.
4. The provision of an advertising sign shall be in the form of a name plate on or near the entry gate describing the occupation. Name plates are to be a maximum size of 1.2 metres in length and 0.6 metres in height.
5. Noise generated from the development is not to exceed background plus 5dB(A) measured at the nearest off site dwelling. The operator, prior to purchase/installation of mechanical equipment (e.g. feeders, fans), will make all reasonable attempts to obtain equipment with lower sound power levels. If noise from the operation attracts complaints from residents, the operator shall at the earliest reasonable opportunity commission a qualified noise consultant to monitor noise levels and if background plus 5dB(A) is exceeded, to recommend noise mitigation measures that will limit noise to background plus 5dB(A). Such noise mitigation measures as are required to reduce the noise levels to background plus 5dB(A) shall be implemented by the owner and operator as soon as reasonably possible.
6. Truck speeds at the site shall be restricted to not more than 10 kilometres per hour. Signage is to be placed on the property to give effect to this condition. Details of the proposed signage is to be submitted and approved by Council prior to commencement of works.
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7. Trucks entering and exiting the site, except trucks removing chickens, shall have their loads covered to limit the generation of dust and odour from the development.
8. A detailed landscaping plan shall be submitted to the Council for its approval and the approved landscaping shall be maintained in perpetuity by the existing or future owners and occupiers of the property. In this respect, a satisfactory final shall not be granted on the Application until the landscaping planting is complete.
9. The flooring of the proposed sheds is the Westlig 120 Floor Design System. The flooring is to be designed and installed in accordance with the specifications prepared by Wesco Technologies Australia. A certificate is to be supplied by Wesco Technologies Australia certifying that the floor has been designed and installed in accordance with their specifications and will act as an impervious pavement.
10. Stockpiling of waste at the site is not permitted. All waste from the development is to be trucked off-site and disposed of by a suitable trade waste disposal system.
11. The disposal of dead birds is to be carried out as follows:
(a) in the gas fired incinerator proposed. Operation of the incinerator is not to exceed 300 kilograms per hour unless an Environmental Protection Licence is issued; or
(b) by such method as is approved by Council.
Dead birds shall, until disposed of, be kept refrigerated or frozen.
12. The cleaning of the sheds is to be carried out as follows:
- (a) by MI Organics Pty Limited or similar contractor using an industrial vacuum loader (SV-3200-DT) or similar. This is to involve the vacuuming of the entire inside of the sheds and containment of waste within the vacuum hopper; or
(b) such other method as may be approved by Council.
Particular care is to be taken to prevent the spilling of waste outside the sheds. Records are to be kept regarding the date and time of all cleaning activities as well as special notes pertaining to any events or accidents that may occur while the sheds are being cleaned.
13. All erosion and sediment control measure/work and other pollution control and rehabilitation measures undertaken on the site shall conform to the specifications and standards contained in the current versions of:
· “Urban Erosion & Sediment Control Handbook No.2” (New South Wales Department of Land & Water Conservation).
· “Pollution Control Manual for Urban Stormwater” (Environment Protection Authority).
In this respect an erosion and sediment control plan investigating pre and post-construction shall be submitted for approval prior to commencement of work.
14. The shed floors are to be concrete bunded to prevent the escape of nutrients from the shed into the water catchment. The Applicant is responsible for ensuring that the concrete bunding is maintained as an impervious barrier to surface runoff.
15. For the purpose of limiting the effects of odour emission the tunnel fans shall be fitted with vertically venting stacks constructed to a height of 1 metre above the ridge line of the sheds.
16. All truck movements associated with the development shall take place during the day, as defined by the Environmental Protection Authority. Day is defined as 7.00am to 10.00pm Monday to Saturday and 8.00am to 10.00pm Sundays and public holidays. This limitation does not apply to the pick up of birds during daylight saving time where collection may occur after 10.00pm.
17. Proposed turning and parking area to be relocated to a position, to be approved by Council, within the area
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