George and Diana Goorkiz v Camden Council

[2003] NSWLEC 420

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Land and Environment Court

of New South Wales

CITATION:	George and Diana Goorkiz v Camden Council [2003] NSWLEC 420
PARTIES:	APPLICANT George and Diana Goorkiz RESPONDENT Camden Council
FILE NUMBER(S):	10300 of 2003
CORAM:	Murrell C
KEY ISSUES:	Development Application :- child care centre in rural residential area location with access from a main road impact to and from adjoining rural land-uses proximity of poultry farm
LEGISLATION CITED:	Environmental Planning and Assessment Act Camden Local Environmental Plan
CASES CITED:	Zang v Canterbury CC [2001] NSWCA 167; Terrace Tower Holdings v Sutherland Shire Council NSWCA 289; Ingham Enterprises v Kirra Holdings
DATES OF HEARING:	2nd and 3rd September 2003
EX TEMPORE JUDGMENT DATE :	11/25/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr D Wilson, barrister RESPONDENT Mr J Ritchie, solicitor Kencalo Ritchie

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10300 of 2003

Murrell C

25 November 2003

George and Diana Goorkiz
Applicant
Camden Council
Respondent
Reasons for Judgment

1 . This is an appeal under s 97 of the Environment Planning and Assessment Act against Camden Council’s refusal of a development application for the property known as 1435 Camden Valley Way, Leppington. The subject site is over 9000 m2 and is lot B in DP4072234.

2 . The development application submitted to Camden Council is for a childcare centre providing childcare of some fifty-six children. The subject property is on the western side of Camden Valley Way. To the north of Camden Valley Way there is an existing Shell Service Station and to the south of the subject site there is a rural residential property consisting of a dwelling and some minor agricultural purposes. Previously it would appear that there was a chicken shed also on that property.

3 . On the opposite side of the road, to the east of the site, there is a poultry farm and there is also a Flora International flower-growing establishment. These two developments are intensive agricultural purposes. The eastern side of the road is in the local government area of Liverpool City Council.

4 . The subject site is zoned 1B under Camden LEP 48, and the objectives of the zone are to provide for:

(a) rural residential living opportunities;
(b) to ensure that development maintains and contributes to the rural character of the locality and minimises disturbances to the landscape and agricultural productivity;
(c) to ensure that development does not adversely affect rural and residential amenity and does not create unreasonable or uneconomic demands for provision or extension of public amenities and services;
(d) to make provision for a reasonable range of suitable activities; and
(e) to permit alternative forms of accommodation which do not imperil the rural productivity of the area.

5 . The subject proposal of a childcare centre is permissible with development consent. It is not a prohibited use in the rural 1B zone. In terms of clause 3 of the LEP:

‘Council shall not grant consent’ ‘to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone in which the proposal is to be carried out’.


6 . Another relevant instrument is State Environment Planning Policy 11 --Traffic Generating Developments. In this regard the RTA’s comments were sought in respect of the development application.

7 . Camden Council has a Development Control Plan 101 for childcare centres and of particular note in these proceedings is:

‘Council will not consider the siting of childcare centres in the following locations unless the applicant provides a detailed submission justifying the reason or circumstances for selection of the particular site’.


8 . The first point under this section relates to ‘Sites Fronting Arterial Or Regional Roads’.

9 . There are a number of other controls within the DCP. With respect to parking, Council encourages a drive-through, drop-off and pick-up area for safe access and it also has requirements with respect to landscaping, outdoor playing areas, et cetera.

10 . The other relevant DCP is number 97 for car parking. There was no issue that the proposed development does not provide the requisite number of car-parking spaces.

The issues
11 . A statement of issues was provided and there were some 19 issues listed. These, however, can be grouped. The first concerns the appropriateness of the site for the use. The second relates to traffic and the direct access to Camden Valley Way. The third issue relates to noise in terms of the impact of the Camden Valley Way and the acoustic treatment required. Other issues relate to sewerage and on-site effluent disposal, and the hazardous risk of the service station in terms of the facilities and the incompatibility with a childcare facility.

12 . Whilst it was not originally identified during the proceedings the issue of odour arose. That is, the odour in terms of health risks to the children and staff of the centre emanating from the poultry farm opposite the subject site.

13 . On behalf of the applicant, evidence was given to the Court by: Mr Gary Rhodes, a consultant town planner; Mr Bridgeman, a traffic engineer, provided evidence to the Court and a statement; Mr Ishac provided evidence on the noise and risk issues; and Mr Johnson provided a statement on risk to the Court.

14 . The evidence given on behalf of the Council was by Ms Stalgis a senior environmental health officer, Mr Charles Johnson a traffic engineer, Mr Mackey a planner with the Council, and an acoustic engineer Mr John Andrews.

Discussion of Evidence and findings

15 . The Court also had the benefit of a site inspection, which was carried out with parties on the second day of the hearing. I have given careful consideration to this matter. I have considered all the evidence to the Court and I have considered it in the context of Council’s planning controls and the requirements under the Environmental Planning and Assessment Act s 79C.

16 . I will say at this point in my judgment that the evidence presented on behalf of the applicant has not persuaded me that the site is suitable for the proposed development, but I will detail my reasons quite clearly as to why I do not consider it appropriate.

17 . The issue of traffic was one that was raised by the Council as of concern. The concern was with respect to direct access to Camden Valley Way and the danger that would be associated with providing for a childcare facility with direct access to that road. It is noted that the RTA did provide comments to the Council and in its letter of 8 January 2003 the RTA assessed the proposal and provided the following comments:

‘Council should consider whether it is appropriate for a childcare centre to be located in a rural environment, adjacent an arterial road with relatively high traffic volumes and vehicle speeds. Ideally childcare centres should be located in an urban environment and within the local road network’.

18 . Point 7 in that letter reads as follows:

‘It is strongly recommended that Council’s planning for future development of land adjacent to Camden Valley Way take into account limiting/reducing direct access to Camden Valley Way where possible’.


19 . The RTA’s letter noted that for this particular application that it could be by way of a temporary access only.

20 . The RTA also considered that the entry and exit for the development should be via the one crossing and, the plan was amended to have regard to this. The plan was also amended during the proceedings to have regard to the risk associated with the adjoining service station facilities and, as a result of discussions during the proceedings, there was agreement that it be set back some 52 m. While the matter of risk from the service station hazardous facility is generally satisfied by the amended setback the Court is of the opinion that the site is not suitable for the proposed developmentbecause of other issues that are paramount in the Court’s mind and as discussed below are determinative for this development application.

21 . The Council’s Development Control Plan has a requirement that childcare centres not be located on arterial roads and 'proper, real and genuine consideration' must be given to Council’s DCP. I am not satisfied on the evidence that the variation to Council’s DCP is warranted in the circumstances. And the Court, as I said, must have real consideration to the provisions of development control plans as articulated in a Court of Appeal decision of Zang v Canterbury 2001 NSWCA 167 whereby it is stated that the provisions of a DCP must be 'a focal point of the decision-making process'. This is not to say that development control plan guidelines cannot be varied but such variations must justified having regard to the the circumstances of the case

22 . The issue of odour also leads me to the conclusion that the proposal should be refused. I will preface my comments on odour by saying that, during the proceedings, the applicant at one stage sought to tender a report on odour. This was not pursued and, in my consideration of the application, whilst odour is a reason for refusal, it is not the only reason. If it was the only reason I would have given the applicant the opportunity to come back with further information on odour. However, the application fails alos because of its location on the Camden Valley Way and therefore the site is considered inappropriate for a childcare facility.

23 . Whilst there may not have been evidence to this Court in respect of this application to suggest that the odour in the area is unbearable, as submitted by the applicant’s counsel, at the same time I can give consideration to the draft guidelines of the EPA in terms of odour and the Department of Agriculture guidelines with respect to odour. And clearly the site is not suitable for the proposed development having regard to these documents.

24 . The guidelines of the New South Wales Department of Agriculture on poultry farming of 1996 state that:

‘The integrity of poultry enterprises should not be compromised by the encroachment of other developments into buffer zones and that, the proper consideration of the effects of new developments on existing poultry facilities must be taken into consideration. A balance between the characteristics of new development and the existing poultry farm needs to be considered for each application.’


25 . A series of buffer zones is provided in that report, and in terms of urban residential areas, a buffer of some 500 m is recommended, and for existing rural residential some 300 m, and in the case of a dwelling on another property, 150 m.

26 . In terms of the proximity of the proposal, the poultry farm is some 165 to 200 m from the proposed childcare centre and in the Court’s opinion there would be an unreasonable conflict created by the location of a childcare facility within this proximity. As such, it would not satisfy the objectives of Council’s zone in terms of the 1B zone.

27 . The other document which is of assistance and which consideration should be given to is the draft policy for the assessment and management of odour from stationary sources in New South Wales. This is a document of the EPA. In this it is noted that:

‘Residential and sensitive land uses should not encroach on existing industry where odour is involved. Odour issues and impacts should be determined at the planning stage and are important in site selection. It is invariably extremely difficult and much more costly to try to ameliorate an odour problem than to avoid it in the first place. It also does provide more specific controls with respect to broiler chicken farms and there is also a formula for calculating the impacts of odour in terms of the number of chickens, et cetera’.


28 . And in this particular instance, the property opposite the subject site has 75,000 chickens at any one time taking some six to eight weeks in production before the process starts again. There is also a requirement that the sheds be cleaned out after each batch, and there is also an annual clean-out, which creates greater odour problems.

29 . As I said, it would be unfair to the applicant not to allow the opportunity for further information to be submitted if odour were the only reason on which the Court considers the application should be refused. It is also apparent that the issue of odour had not been addressed adequately when the application was submitted to the Council, and should have been a matter that was paramount in terms of the selection of the site.

30 . In terms of selection of sites, it is noted that the Department of Community Services has Best Practice Guidelines in Childhood Physical Environments , and the document states:

‘Site assessment needs to incorporate careful consideration of location, overall viability, adjoining land use, drainage services, parking and traffic, potential objections of neighbours to noise, traffic and so on’.

31 . In terms of site selection the guidelines refer to adjoining land uses such that:

‘The positives and negatives of the impact of adjoining land usage on the site needs to be carefully assessed’.


32 . Within the document there is a list: ‘What is the potential pollution, eg, from roads, industry, agricultural practice’. It notes that, “siting a childcare centre near major arterial roads, this may be unavoidable in heavily developed urban areas.” However, the current application before the Court is in an area that one could regard as a relatively green field situation and, in the Court’s mind, it is not justified and it is not orderly and economic development to allow a childcare facility on the subject site.

33 . I do note that the zone does permit the childcare facility but permissibility is merely a neutral consideration in the Court’s assessment of the application and the circumstances of the site including its location on a major road and other land uses in the area need to be considered.

34 . With respect to having regard to other documents, apart from the zoning or the DCPs, it is noted in the Court of Appeal judgment of Terrace Tower Holdings v Sutherland Shire NSWCA 289 - a judgment of his Honour Mason whereby he states that there are other relevant matters that can be taken into consideration in a merits assessment of applications. And in that regard I consider that the draft EPA guidelines and the Department of Agriculture guidelines are relevant matters for consideration in the Court’s determination.

35 . Other issues raised in the proceedings may not be fatal to the application and may be capable of being satisfied. These relate to the on-site sewerage management system. Clearly a commercial system would be required for the subject development because it has over 2000 litres of effluent per day that needs to be treated. And, whilst there may have been a condition provided for the on-site management of the effluent, nonetheless it was not a matter that was satisfied prior to the Court hearing the case. This is clearly an issue that would require further consideration if there were no other reasons to refuse the application.

36 . With respect to the issue of noise, once again, even if the Court is prepared to accept that the childcare centre’s playgrounds are what are known as ‘active’ playgrounds and allow a higher dBA in terms of noise, nonetheless the acoustic treatment required, even to satisfy the less stringent requirement of an active playground, may in fact lead to other inappropriate measures such as: is it appropriate to have air conditioning and high fencing, in terms of the amenity of the centre?

37 . As I said, this issue of noise levels, at the end of the day, did not become determinative to my assessment of the application, but nonetheless it is an issue that would clearly need to be given more comprehensive consideration if there were no other reasons for refusal.

38 . With respect to the issue of risk I have already indicated that at the time the matter was heard by the Court, it was agreed that it be set back some 52 m from the front boundary and, in the Court’s opinion, that would have been satisfactory in terms of the risk assessment. Once again, ideally, locating next to a service station for a childcare facility is not ideal. The Court recognises that its assessment is not what is the most ideal situation but whether in fact the proposed development is satisfactory. And it is not satisfactory in the Court’s opinion in terms of its location and access on Camden Valley Way. And in terms of odour, I do not believe the site is appropriate on the basis of the information available to the Court.

39 . There is a relevant decision, which was handed up by the respondent council that relates to development encroaching agricultural pursuits, that would have an economic impact on such pursuits, that is in this case the poultry farming. And it is the decision in Ingham Enterprises v Kirra Holdings , a Court of Appeal judgment of 29 March 1996. This judgment looks at the juxtaposition of a residential development within relatively close proximity to an existing poultry farm with battery hens, similar to the situation here. And it was determined that there was a fundamental incompatibility by the juxtaposition or the coexistence of the two uses, and this was due to odour and dust emissions in this case. At the end of the judgment the conclusion states:

In my opinion … development consent should not be granted unless, having weighed the factors requiring consideration, it could be said on balance that consent could be granted. If, at the time of considering whether consent should be granted, the incompatibility between the proposed development and that on an existing adjacent property cannot be resolved by the imposition of conditions upon the developer applicant, the development should be refused. Having found that the proposed development was fundamentally incompatible with the existing adjacent development which incompatibility could not be removed or adequately diminished by the imposition of conditions on the developer, the decision to grant consent was manifestly unreasonable .

40 . The above judgment was in respect of a development that had been approved by this Court and taken to the Court of Appeal where the matter was remitted back to this Court. The judgment identified a principle that any new development should be expected to accommodate the impact of existing lawful development on adjoining or nearby land and to recognise that any future residential development on adjacent land will need to take account of, and accommodate, the impact of existing development. For the current appeal before this court, that is the operation of the poultry farm.

41 . The Court in the case currently before it has given careful consideration to this established planning principle. I recognise that the poultry farm enjoys existing use rights and, in terms of existing use rights, they are equally valid in terms of the impact of development encroaching boundaries or buffers. To assist further in more recent years the EPA draft guidelines of 2001 and the Department of Agriculture guidelines of 1996, give further guidelines in terms of co-location of various uses and the question of incompatibility. They also do provide for buffer areas, which should be taken into consideration in selecting sites for more sensitive uses.

42 . Therefore, on the basis of my assessment, I have decided that the location of a childcare facility, which is a sensitive land use, should not be allowed on the subject site. I consider that the site on a main road is not suitable for the proposed development, and that the proposal would unreasonably impact on the economic viability of the intensive agricultural uses in the area, in particular the poultry farm.

43 . Therefore, on the basis of my assessment above , the orders of the Court are:

1. The appeal in respect of lot B DP4072234 Camden Valley Way, Leppington, is dismissed;

2. The development application submitted to Camden Council, and as amended, for a childcare facility is determined by the refusal of consent; and

3. The exhibits are returned.

_______________________
JS Murrell
Commissioner of the Court

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