Keith Harold McNamara v Parry Shire Council
[1989] NSWLEC 218
•07/14/1989
Land and Environment Court
of New South Wales
CITATION: Keith Harold McNamara v. Parry Shire Council [1989] NSWLEC 218 PARTIES: APPLICANT
Keith Harold McNamaraFIRST RESPONDENT
SECOND RESPONDENT
Parry Shire Council
C.J. and D.E. RefaloFILE NUMBER(S): 10526 of 1987 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Clean Waters ActCASES CITED: DATES OF HEARING: 06/04/88, 07/04/88, 08/04/88, 11/04/88, 12/04/88, 13/04/88, 14/04/88, 15/04/88, 18/04/88, 19/04/88
03/04/89, 04/04/89, 05/04/89, 06/04/89, 07/04/89DATE OF JUDGMENT:
07/14/1989LEGAL REPRESENTATIVES: SECOND RESPONDENT
APPLICANT
P.R. Grogan
Phillip Mendes & Co
FIRST RESPONDENT
W.R. Davison
Everingham Solomons
M.G. O'Brien & A.R Blondel
Egan Maclean & Co
JUDGMENT:
HIS HONOUR: The second respondent was the owner of Lot101, D.P.243163, Parish of Tangaratta, Shire of Parry, which has been subdivided into Lots1 and 2, D.P.609864. On 3rd September, 1987 the first respondent as consent authority under Local Environmental Plan No.1987 Shire of Parry granted development consent to an application for an expansion of an existing piggery, i.e. |CF2.|PSI"for an intensive piggery for three hundred and fifty sows and progeny"|CF1.|PSO on the said Lot101. The said consent is in respect of designated development and the applicant as an objector has appealed to this Court pursuant to s.98 of the Environmental Planning and Assessment Act, 1979 (the"E.P.&A.Act").
The subject premises is situate approximately fifteen kilometres west of Tamworth and, pursuant to the said L.E.P.1987, is zoned Rural1(a) in which the objectives are:|CF2.|PSI
"a) to enable the continuation of traditional forms of rural land use and occupation and encourage consolidation of existing undersize allotments and their conversion into productive commercial farmholdings;
b) to ensure that development is carried out on land within the zone in a manner which conserves, enhances and does not adversely affect the environmental and scenic qualities of the land;
c) to conserve crop and pasture land in units or holdings which may be efficiently used for forms of agriculture common in the locality;
d) to ensure that new rural holdings created by subdivision are of a suitable size for their proposed use;
e) to enable other secondary forms of development which are associated with rural activities, or which support tourism, to be accommodated in an environmentally acceptable manner;
f) to permit the development of mines and offensive and hazardous industries, where required, in an environmentally acceptable manner; and
g) to permit the development of intensive commercial horticulture and specialised agriculture where fertile land and a reliable water supply are available."|CF1.|PSO
Pig keeping is a purpose for which development may be carried out only with development consent, and Council may consent to the carrying out of such development only when it |CF2.|PSI"is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out"|CF1.|PSO (cl.8(3)).
The subject premises is part of an existing rural environment of generally cleared undulating land with a nominal slope of about 4-6%. The majority of holdings in the locality is of similar size to the subject premises and used for various agricultural purposes including intensive poultry farms and a piggery. Soil type is brown loam generally to a depth of approximately one metre, underlain by various types of shale. The land falls generally to the south east corner which is cut by Tangaratta Creek.
Erected on the 5.2ha parcel subdivided from the subject premises (Lot2) is a dwelling house and poultry farm. On the subject land (Lot1) is a complex of large piggery sheds and associated buildings and plant which has development approval for 100sows, but actually accommodates 140and their progeny. Liquid wastes are spray irrigated over an area of some 8ha of the subject premises. The irrigated areas are cropped with oats and turnips, or used for grazing purposes.
The development application was exhibited in accordance with s.90 of the E.P.&A.Act and fourteen submissions were received by the first respondent. Most submissions raised objection to the existing operation and the extension as proposed. The objections were summarised in a report to Council as:|CF2.|PSI
"a) Inadequacy of land available for the disposal of effluent.
b) The impact of excessive nutrients from effluent.
c) Effect on Tangaratta Creek and underground water sources as a result of build ups in nitrate, nitrites, fluorides.
d) Inadequate effluent storage.
e) Inordinate length of time (10.00 a.m. to 4.00p.m.) for effluent spraying.
f) Effect of winds not conducive to dissipation of aerial pollutants.
g) Topography unsuited to such an intensive development.
h) Water consumption.
i) Current management practices.
j) Potential for the spread of leptospirosis.
k) Method of disposal of solid wastes.
l) Effect on the quality of life.
m) Effect on property values in the area.
n) Increasing volume of heavy vehicular traffic using ByameeLane and potential dust hazard.
o) Existing pollution concerns in relation to Tangaratta Creek.
p) Impact on ground water supplies and lack of practical alternatives.
q) Potential odour and spray pollution.
r) Feasible alternatives not fully explored.
s) Planning objectives not adequately addressed in the E.I.S.
t) Marketing economics of pigs not adequately addressed in the E.I.S.
u) Proposal conflicts with Council's own guidelines in respect to effluent storage requirements, and those relating to the number of pigs per hectare."|CF1.|PSO
Notice of the application was given by the first respondent to the following public authorities: the Department of Health N.S.W., the Department of Agriculture, the Soil Conservation Service of N.S.W., the Pastures Protection Board, the State Pollution Control Commission and the Department of Environment and Planning. Notice was not given to the Department of Water Resources.
The first respondent at its meeting on 27thAugust, 1987 considered the application, representations of public authorities, submissions and a joint report of the Chief Health Surveyor and the Shire Clerk. The application was approved subject to conditions.
It is common ground that this appeal must proceed by way of a hearing de novo, and extensive evidence was called by each party to assist the Court in its determination of the application. It is also common ground that the development is designated development within Schedule3(O) of the Regulations to the E.P.&A. Act.
The second respondents primarily rely upon the evidence of C.J.Refalo, who is responsible for the day to day management of the existing piggery on the subject premises, and the evidence of C.T.Ellis, a director of Ellis Environmental Services Pty Ltd, who is also the author of the environmental impact statement submitted to the first respondent in support of the application.
MrRefalo claims that he needs only 6ha to dispose of the existing effluent of 140sows and progeny by spray irrigation, and says that there is no run-off. However, tests of the soil or nutrient levels initially were not taken, nor were management procedures adopted for the even spreading of the effluent. However, Iam satisfied on the evidence that the subject piggery business is modern and well run and, up to the time of the subject application, was never the subject of any complaint to any relevant public authority.
The existing piggery buildings are located away from the public road and the boundaries of the premises, and are clustered in a generally central location thereon. The family home of the second respondents is located on the adjoining Lot1 and there is another adjoining dwelling within about 2m of the boundary. Otherwise, owing to the larger areas of parcels in the locality, most dwellings are located long distances from the subject premises.
The subject application is to provide additional buildings and facilities for the purpose of intensively housed piggeries accommodating up to 350sows and progeny. Iam satisfied that the most likely average number of pigs thereby accommodated would be 3,500, with a likely maximum of 4,000.
The second respondents intend to proceed with the proposed development in stages by initially constructing a weaner shed, then a farrowing shed, a grower shed and finally a sow and boar shed. No timetable for such stages has been specified.
The effluent from the piggery will not be treated, but spray irrigated in a similar manner to that employed for the existing piggery. The effluent will be used for the growing of crops and as a soil conditioner prior to the sowing of crops.
MrEllis estimates that such piggery with underfloor drains and "flush buckets" of 1,400 and 900L capacity, if emptied twice daily, will generate 39,800L per day of effluent. Such effluent will flow to a 90,000L collection well with a mechanical agitator. The collection well will be emptied automatically by a float level switch fitted with a time clock to regulate irrigation to between the hours of 10.00a.m. and 4.00p.m. Notwithstanding alleged uncertainty as to the nature and extent of licenses held to extract ground water from the subject premises, Iam satisfied that the applicant has access to an adequate water supply for the proposed development.
The environmental impact statement contained a typographical error and stated that the area of the subject premises was 44ha, with 34ha available for irrigation. It is now clear that the environmental impact statement assessed Lot101 prior to subdivision, that the piggery is confined to Lot2, and that the available area for irrigation depends upon areas excluded for roads, buildings, drains, bores, etc., and buffer areas.
The first respondent called its Chief Health Surveyor who jointly reported to Council on the subject application. His experience with piggeries and effluent disposal therefrom was limited, and he disavowed any claim to expertise in that field. It was clear that he relied entirely on the advice of the officers of the State Pollution Control Commission and their future supervision of the piggery. In his report to Council he made an observation that |CF2.|PSI"the disposal site does not show any sign of excessive hydrolic overloading"|CF1.|PSO. The report otherwise expressed no opinion nor offered Council any advice to assist it in its consideration of the application, apart from a list of the relevant matters referred to in s.90 and a warning that -|CF2.|PSI
"In determining this matter, Council must confine its deliberations to the heads of consideration set out in Section90 of the Environmental Planning and Assessment Act (copies of which have already been provided to Councillors) and, as difficult as it may be, emotive considerations, and the circumstances of private individuals, must be divorced from the decision-making process as they are deemed irrelevant.
Council's decision can only be made on planning grounds and to consider other matters may invalidate its determination.
To assist Council in its consideration of the application Ihave taken the liberty of enclosing with your business papers a Section90 check list which may be of value in assessing the proposal."|CF1.|PSO
The Council gained thereby little assistance from its officers in the discharge of its functions pursuant to the E.P.&A. Act. The respondents do not rely upon the opinions of the Chief Health Surveyor with respect to the conduct of piggeries or the disposal of effluent.
The Court was informed that before making the decision to approve the application most Councillors had a view of the subject premises and were experienced in agricultural matters. However, in these proceedings the Court is the consent authority and will determine the matter on the quality of expert and technical evidence called by the parties.
The application was assessed by the State Pollution Control Commission prior to consideration by the first respondent, and advised |CF2.|PSI"that there would be no reason on pollution control grounds to withhold development consent"|CF1.|PSO. MrJennar, who was at the relevant time the local Pollution Control Engineer of the State Pollution Control Commission, gave evidence that he made the original assessment and was still of the same opinion.
The first respondent has a Code and the Department of Agriculture gives advice with respect to piggeries, but Iam satisfied, notwithstanding criticism by the objector's experts, that the appropriate standard in the industry is contained in a State Pollution Control Commission document entitled "Pollution Control for Small to Medium Sized Intensive Piggeries" (Exhibit3A). The base document from which it was prepared was made by MrTerrence Knowles, Pollution Control Engineer of the State Pollution Control Commission, who was called by the first respondent. MrKnowles had been interviewed by the Chief Health Surveyor prior to the preparation of the joint report to clarify the relevance of apparent departures in the environmental impact statement from Exhibit3A and the first respondent's Code, and for what purpose he attended at the subject premises.
MrKnowles was also a personal friend of one of the objectors and had provided independent advice concerning the subject application. He is of the opinion that the subject premises is suitable for a 350sow piggery and could not see any problem in the issue of a licence pursuant to the State Pollution Control Commission Act or, if required, the Clean Water Act. In his opinion, the results of calculations of effluent volumes and B.O.D. degradation in the environmental impact statement were what he expected. He considered that the first respondent's Code was inappropriate and that because the guidelines in Exhibit3A were to apply generally, in his opinion the calculations in the environmental impact statement were more accurate. He confirmed that 350sows would be likely to produce an average pig population of 3,500, and a maximum of 4,000. He made a number of calculations at different times to estimate the area required for disposal of untreated effluent on the premises, and they indicated a need for an area of 2
5-29.5ha. Such areas, in his opinion, allow for "resting" of portions and winter demand. Whilst MrKnowles did not carry out any soil test nor a detailed inspection of the subject premises, nor had he any knowledge of likely storm events in the locality, he nevertheless gave strong support to the application.
MsHoward of the Department of Agriculture was the author of that Department's representations to Council with respect to the subject application in which a standard of a minimum area of 0.5ha per sow was recommended. However, in evidence it was explained that the responsibility of the Department was limited to the piggery shed, and it had no jurisdiction or expertise in respect of effluent disposal. She informed the Court that the Department relied upon the State Pollution Control Commission for control of such matters, and had no idea how the Department's recommended area was calculated. In her opinion the subject piggery building was modern and well run.
MrJennar is no longer the relevant pollution control engineer of the State Pollution Control Commission, but he informed his successor of the application to expand the piggery at the subject premises and his original assessment. An application for a licence for the subject premises has been deferred by the State Pollution Control Commission pending the outcome of this appeal, but an approval with draft conditions has been prepared. MrJennar is firmly of the opinion that, owing to the size of the land, the proposed development meets the State Pollution Control Commission guidelines (Exhibit3A), and that there is therefore no reason for him to oppose the grant of development consent on environmental grounds. Whilst he is aware of the complaint of alleged pollution of the water table and Tangaratta Creek, he concludes from the results of tests contained in the State Pollution Control Commission file that the existing piggery is not the source of pollution.
MrCollett, District Agronomist with the Department of Agriculture at Tamworth, was the author of correspondence from that Department to the first respondent. He explained his lack of expertise in matters other than agronomy, particularly with respect to the likely change in nutrient values of the soil and the disposal of effluent from a piggery. He was reluctant to make other than a guess at the chemical content of the area required for the disposal of effluent for a piggery.
MrEllis is an expert with long experience, and estimates that the amount of land needed to degrade 30kg of biochemical oxygen demand (5days) of the estimated effluent is an area of 17ha. He is of the opinion that 24ha may be necessary for irrigation in winter to accommodate likely lower evaporation and transpiration rates. He contends that his estimate is on a different basis but is consistent with the estimates of MrKnowles, who adopted the more conservative (higher) assumptions recommended by the State Pollution Control Commission guidelines (Exhibit3A). MrEllis relies upon his experience for likely waste volumes. He has assumed that run-off from the site is unlikely except in abnormal storm conditions, or if irrigation takes place immediately after rainfall of 25mm or more.
The subject premises has been provided with erosion control contour banks to the satisfaction of the Soil Conservation Service. Overflow therefrom would be collected by an artificial grassed drain which discharges directly into an adjoining property, and then presumably into Tangaratta Creek. MrEllis is of the opinion that irrigation should take place over contour banks, but not over the drain. Inote that the latter concession is consistent with the said State Pollution Control Commission guidelines (Exhibit3A).
MrEllis at the hearing of the appeal modified the proposed buffer areas. In the application a 50m buffer was proposed only to the frontage to Byamee Lane. A 100m buffer was provided to the eastern boundary of Lot2 (being the second respondents' home) and to Tangaratta Creek. A larger buffer was provided to part of the eastern boundary. In the modified proposal a 50m buffer is recommended to the balance of the boundaries.
MrSimon Smith, Regional Environmental Officer of the Department of Water Resources, opposed the grant of development consent. He investigated complaints made by MrMcNamara after the application was made. He concluded that MrMcNamara's dam was polluted by discharge from another piggery which was not being carried out in a satisfactory manner. MrSmith formed the opinion that the effluent handling guidelines of the State Pollution Control Commission and the Department of Agriculture were |CF2.|PSI"... independent of soil characteristics and hence can only be regarded as average not the minimum required"|CF1.|PSO. He was also critical of the first respondent and reported:|CF2.|PSI
"The problem is basically one of land use, planning and the zoning procedures of Council. Parry Shire Council has deemed the area suitable for intensive agricultural industries, but the animal population is now at the point where the environment's capacity to correct the pollution has been exceeded."|CF1.|PSO
Inote that this criticism of the recently notified environmental planning instrument is made by this officer of the Department, MrSmith, notwithstanding that that Department was represented on the standing committee for the promulgation of the said scheme.
MrSmith did not inspect the subject premises, but concluded that the subject proposal, whilst unlikely to affect MrMcNamara, could affect others because |CF2.|PSI"... the catchment in general is under pressure".|CF1.|PSO
MrSmith was critical of the environmental impact statement and recommended refusal of the application or modification thereof pending a study of the environment and assessment of cumulative effects and further concentration of livestock and agriculture, unless the site could |CF2.|PSI"... match the development's size to the environment's ability to assimilate the nutrients and chemicals contained in the effluent".|CF1.|PSO
MrSmith conceded that the site was large enough to accommodate the volume of the proposed effluent and run-off, except after major storms, and this could be prevented with appropriate design and management.
MrCollin, a hydrologist with the Department of Water Resources, carried out a number of borehole tests in the locality including the subject land. Spraying of effluent was taking place thereon at the time of testing. He estimates ground water level at the creek bore to be less than 2m, and the piggery bore about 12-8m. Tests indicate contamination of the water with e-coli of 16 at the piggery bore and 2 at the creek bore. The presence of e-coli indicates pollution by animal faeces. It is common ground that in an agricultural area the presence of e-coli is common and to some extent inevitable.
Written objection was made to the development by a large number of occupants of premises in the neighbourhood. Oral evidence was given by MrC.A.Geddes, MrJ.W.Ballam, MrsV.D.Levendel, MrS.J.Monckton, MrK.H.McNamara and MrL.Pengelly. These objectors complain of injury to the amenity of the neighbourhood as a consequence of the existing operation. They express concern that the expanded complex will exacerbate the existing unsatisfactory situation. MrMonckton claims that he has observed spraying of effluent on the subject property which was in the area denied by MrRefalo, and close to the boundary. MrMcNamara gave extensive evidence and is obviously most disturbed by what he perceives as a nuisance from the use of the subject premises.
The applicant's proposal was amended a number of times during the presentation of evidence. It is now proposed that spraying be limited to the area shown in PlanA of Exhibit14B. This provides for substantial set back from the boundaries and an area of approximately 24ha for the disposal of effluent. The objector criticizes that plan in the following way:|CF2.|PSI
"a) By comparing PlansA and B (and e.g. Ex.MM) it would appear that PlanA does not allow sufficient area in the bottom right-hand corner to exclude all the flood prone land in that area plus a buffer of 50m as previously indicated by His Honour would be required.
b) The Plan does not allow for or show compliance with the following requirements of Ex.3A (pp.19-22):
i) the diversion of stormwater from higher areas away from the effluent disposal area and its re-irrigation;
ii) the provision of wet weather storage;
iii) the provision of a 50m buffer zone around bores (the bores are not shown);
iv) provision to divert away from the catch dam any stormwater run-off occurring after 15minutes of a one-in-one year return;
v) a system to divert uncontaminated stormwater away from all units of the effluent collection, treatment and disposal systems.
c) The location and dimensions of the water causeway as shown seem to be sketched and approximate only.
d) No allowance is made for the location and effect of the graded banks to control erosion (Ex.G, and see also Ex.MM).
e) No allowance is made for compliance with draft condition12 accepted by the developer.
f) Only one dam is shown on the Plan. As we understand the evidence there are at least two dams on the property and, if so, any such dam would require a 50m buffer."|CF1.|PSO
The objector relies mainly upon the evidence of MrR.A.Patterson, who has qualifications and experience in soil and water science and management. In his opinion, the effects of sodium and other chemicals will create a greater hazard than the organic matter is able to buffer. The soil will degrade structurally with a subsequent decrease in infiltration and the increased run-off coefficient. MrPatterson challenged not only the conclusions reached by the experts called by the applicant and the Council, but also the State Pollution Control Commission criteria upon which such opinions relied.
The hearing was adjourned to enable the Council and the applicant to meet the doubts raised and the opinions of MrPatterson, which were not documented in exchanged reports. At the resumed hearing two experts, DrT.Talsma and DrD.E.Smiles were called to answer MrPatterson's criticisms, and gave evidence as to their assessment of the appropriateness of the subject land to be used for the disposal of the volumes of effluent involved in the proposed development.
Ido not propose to set out fully the evidence and opinions of DrTalsma and DrSmiles. It is sufficient to say that Ihave no hesitation in accepting them as experts and Iprefer their opinions to those of MrPatterson. The opinions and doubts expressed by MrPatterson were theoretical and not a consequence of his inspection and assessment of the subject land, or the uses thereon. His opinions were drawn mostly from unidentified literature on the subject. His personal experience with pig effluent was extremely limited and, in my opinion, of little assistance in the evaluation of the subject development. On the other hand, DrTalsma and DrSmiles are undoubtedly experts in the field and made an assessment of the subject property and the proposed development. They had the advantage of soil tests from the land. They were of the opinion that the manner in which the subject premises had been already used for the disposal of effluent was a reliable indicator of the suitability of the balance of the land for a more intensiv
e but similar purpose. They were of the firm opinion that in the proposed activities there are no problems with nitrogen, phosphate, potassium, or sodium, and that MrPatterson's fears of degradation of soils as a consequence of disposal of effluent on the subject land are unfounded.
MrD.C.Collin ultimately conceded that water problems generally in this area are typical of rural areas and in no way the result of the activities on the subject land. Inote that, notwithstanding the prior evidence of its officers, the Department of Water Resources now does not oppose the subject application. Iaccept the opinions of DrSmiles and DrTalsma that the prospect of effluent from the subject premises passing through the subsoil to groundwater is so slight as to be of no importance. If Iaccept such opinions, it must follow that Iaccept that there is no reason why the proposed development should be considered as likely to have any deleterious effect upon groundwater in the locality. With respect to alleged water pollution, Iam satisfied on the evidence that the activities of the company on the subject land have not caused pollution of ground or creek water, and subject to the imposition of appropriate conditions, are not likely to do so if this development application is approved.
Ihave given consideration to the complaints of neighbours and particularly to their concern about the existing and likely emanation of offensive odours. Iam persuaded that most complaints are exaggerated. Ihave considered the nature of the neighbourhood and the existing and likely future environment. For more abundant precaution, the spraying of effluent should be limited by conditions to areas set well back from the property boundaries. Iam satisfied that PlanA of Exhibit14B provides for adequate set back for spraying activities.
Iam satisfied therefore that the objection to the approval granted by the Council to an expansion of the existing piggery was unjustified, and that the decision should be confirmed. However, this Court had the benefit of a greater amount of technical evidence than that available to the Council when it made its decision. The approval must be subject to appropriate conditions, and Iam persuaded that the conditions originally imposed should not stand but should be amended. The parties have made submissions with respect to conditions which should be imposed.
The most contentious conditions are those imposing obligations to undertake the monitoring of soil and water on the subject premises. The parties disagreed not only as to the need for such monitoring, but to the regularity of such testing. Inote that DrSmiles, whilst called in support of the application, was in favour of such monitoring. MrCollin also considers that the development should be monitored. The Department of Water Resources withdrew its objection, subject to the Council undertaking periodic monitoring (water samples) with reference to the Department if at any time increased contamination readings be received.
Ireject the objector's submission that the Council and other statutory authorities could not be relied upon to properly discharge their duties to monitor and control the use of the subject premises so as to ensure compliance with conditions of consent, and otherwise to protect the environment.
The Council has expressly undertaken to co-operate with the Department of Water Resources and the State Pollution Control Commission.
At this stage Ipropose to limit the number of sows to 300. Iam unpersuaded that the number applied for (350) is based upon any precise calculation or need. If in the future the subject premises is conducted in a satisfactory manner for 300 sows, it is open to the owner to make an amended application for a further extension of the number of animals.
The orders of the Court are:
1. Objection dismissed.
2. Development consent confirmed, subject to amended conditions in the Schedule attached hereto.
3. Exhibits may be released.
4. Costs reserved.
___________________________________________________________
|CF2.|PSI
I HEREBY CERTIFY THAT THIS AND THE PRECEDING
SEVENTEEN PAGES ARE A TRUE AND ACCURATE
COPY OF THE REASONS FOR JUDGMENT HEREIN
OF THE HONOURABLE MR JUSTICE N.A. HEMMINGS.
ASSOCIATE
|CF1.|PSO
|CF4.|PSI
LAND AND ENVIRONMENT COURT of NEW SOUTH WALES
RECORD OF HEARING
|CF1.|PSO
_______________________________________________________
|CF2.|PSICoram|CF1.|PSO: HEMMINGS J.
|CF2.|PSIMatter|CF1.|PSO: KEITH HAROLD McNAMARA
v.
PARRY SHIRE COUNCIL and ANOR
|CF2.|PSINumber|CF1.|PSO: 10526 of 1987
|CF2.|PSIHearing Dates|CF1.|PSO:
6, 7, 8, 11, 12, 13, 14, 15, 18 and 19 April, 1988
3, 4, 5, 6 and 7 April, 1989
|CF2.|PSIJudgment|CF1.|PSO Reserved
|CF2.|PSIJudgment Date|CF1.|PSO:
14th July, 1989
|CF2.|PSIAppearances|CF1.|PSO:
Applicant - P.R. Grogan
First Respondent - W.R. Davison
Second Respondents - M.G. O'Brien, then A.R. Blondel
|CF2.|PSISolicitors|CF1.|PSO:
Applicant - Philip Mendes & Co, Armidale
First Respondent - Everingham Solomons, Tamworth
Second Respondents - Egan MacLean & Co, Tamworth
McNamara v. Parry Shire Council and Refalo
Matter 10526 of 1987
SCHEDULE
1. Environmental Management:
i) That all dead pigs be collected daily and removed from the property by a waste disposal contractor approved by the Council.
ii) That spilt and wet feed be removed daily from the sheds and not permitted to become rancid.
iii) That an ongoing fly control programme be implemented to the satisfaction of the Council.
iv) a) That a landscaping plan be prepared and submitted to the Council for approval.
b) That the approved landscaping plan be implemented as soon as practicable and be maintained thereafter to the satisfaction of the Council.
c) The developer shall lodge a surety to the satisfaction of the Council.
2. Access Road:
a) That the developer be required to contribute an amount of $766.00, being assessed to one- sixth of the estimated cost of gravel patching required to be undertaken on Byamee Lane over the following sections:
From 0.32km to 0.60km
From 0.93km to 1.28km
From 1.28km to 1.54km (intermittent sections)
Such works to involve gravel re-sheeting to a minimum width of 6m and minimum compacted depth of 50mm.
b) All heavy vehicle movements in and out of the property shall take place between 7.00a.m. and 8.00p.m.
3. Structure on-site:
All site structures and buildings shall be properly designed and comply with the relevant S.A.A. Codes and Building Regulations, and be subject to a building application.
4. The owner or manager of the piggery shall at all times reside on the land or contiguous land whilst the subject development is carried on.
5. An underflow or open channel effluent collection system capable of twice daily flushing shall be installed in all pig accommodation areas.
6. A raw effluent collection pit shall be installed with at least two days' capacity from which effluent shall be irrigated, such capacity calculated at 20litres per pig per day.
7. The effluent pit shall be fitted with a suitable agitation system to prevent the settlement of solids during irrigation activities.
8. The effluent collection and disposal system shall be assessed in service by an officer of the State Pollution Control Commission. The necessity for aeration equipment in the collection well and/or a manure separator prior to the irrigation system shall be determined by that officer. Any requirement for aeration equipment shall be complied with.
9. Effluent from the collection well shall be disposed of by an irrigation system installed for the purpose. The irrigation system shall be designed such that no ponding or channelling of waste water occurs. Rate of disposal of effluent shall not exceed 5mm per ha per day.
10. The irrigation system shall be flushed out with clean water after use each day.
11. A stand-by mechanically driven irrigation pump shall be provided.
12. A stormwater diversion system shall be constructed to prevent uncontaminated surface waters from entering the waste water collection well and irrigation area.
13. A waste water collection system shall be installed so as to prevent any run-off of contaminated effluent from the irrigation area. Such system to be installed to the satisfaction of the State Pollution Control Commission, the Council and the Soil Conservation Service.
14. The effluent collected in the waste water collection system at Condition13 shall be re- applied to the irrigation area as soon as is practicable after the rainfall event, or disposal of by land application at any other point, appropriately licensed to accept effluent for discharge by the Commission.
15. The agitation system installed in the collection well shall be in operation prior to the commencement of irrigation activities, and shall remain continually in operation until irrigation ceases.
16. Irrigation of effluent shall only be carried out between the hours of 10.00a.m. and 4.00p.m. each day.
17. The irrigation of effluent shall not be carried out within the areas shown in pink and blue on sheet "A" of Exhibit14B, other than the area shown in pink in the top left-hand corner thereof, being the area shown as 199.57m x 50m.
18. The irrigation area shall not be less than 24ha. Effluent shall be applied evenly over the entire irrigation area over a four month period.
19. Each effluent spray irrigator shall be relocated daily. Following one day's irrigation, the areas irrigated in that day shall not be subjected to irrigation for a minimum period of five days during dry weather, or twelve days during periods of extended wet weather.
20. The applicant shall consult regularly and at least annually with the Department of Agriculture as to an appropriate cropping programme for the purpose of recovering as far as reasonably possible all nutrients added to the site by aerial spraying of effluent.
21. Compliance with any reasonable requirement of the Department of Agriculture in respect of cropping the irrigation area and soil treatment of the site necessary to remedy any soil degradation of the site caused by the operation of the piggery.
22. The grant of a pollution control approval by the State Pollution Control Commission pursuant to s.17K of the State Pollution Control Commission Act 1970, and compliance with any condition of such approval.
23. The developer shall institute a programme to the satisfaction of the Council for monitoring the effect of the activity on the property so that soil samples from the property are obtained and tested for water soluble and exchangeable cations, sodium, phosphorus, calcium, PH and the exchange complex, and the results of all such tests shall forthwith be notified to the Department of Agriculture for the purposes of conditions20 and 21 above. The developer shall keep or cause to be kept daily records of the area and volumes sprayed. The developer shall comply with any direction by the Department of Agriculture as to the location and number of soil samples to be obtained from the property and tested.
24. At any time the number of pigs on the property shall not exceed three hundred (300) sows. The developer shall keep or cause to be kept records of the number of pigs on the property at any time and shall make such records available to an officer of the Council or other public authority at all reasonable times.
25. The developer shall institute or cause to be instituted at its expense a monitoring programme as follows:
a) at least every twenty-four (24) months, or as directed by the Council in writing, water samples shall be taken from one or more bores on the property as may be directed by the Department of Water Resources and surface water samples shall be taken from Tangaratta Creek upstream and downstream of the property;
b) the samples shall be analysed for Ecoli, nitrate, phosphate and total dissolved solids and such other matters as may be directed by any of the authorities mentioned in (c); and
c) the results shall be notified to the State Pollution Control Commission, Department of Health, Department of Water Resources and Parry Shire Council.
26. All buildings, plant and machinery associated with the proposed use shall at all times be properly maintained and in working condition to the satisfaction of the responsible authority.
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