Lees v Cessnock City Council

[2011] NSWLEC 1098

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lees and anor v Cessnock City Council [2011] NSWLEC 1098

Hearing dates:

20 April 2011, written submissions 29 April 2011

Decision date:

02 May 2011

Before:

Brown C

Decision:

Appeal upheld

Catchwords:

MODIFICATION - condition requiring setback of dwelling to existing poultry shed - odour

Legislation Cited:

Cessnock Development Control Plan 2006
Cessnock Local Environmental Plan 1989
draft Cessnock Local Environmental Plan 2010
Environment Planning and Assessment Act 1979
Hunter Regional Environmental Plan 1989
Land and Environment Court Act 1979
State Environmental Planning Policy (Rural Lands) 2008
Uniform Civil Procedure Rules 2005

Cases Cited:

Ali v Liverpool City Council [2009] NSWLEC 1327 Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99
Lees and anor v Cessnock City Council [2008] NSWLEC 1221
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
North Sydney Council v Michael Standley & Associates Pty Ltd (97 LGERA 443
Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240
Zhang v Canterbury City Council (2001) 115 LGERA 373

Category:

Principal judgment

Parties:

APPLICANT
Geoffrey Lees and Julie Radford

RESPONDENT
Cessnock City Council

Representation:

APPLICANT
Mr G Williams, solicitor

RESPONDENT
Mr R Mallik, solicitor
APPLICANT
MRM Thompson Norrie

RESPONDENT
Mallik Rees Lawyers

File Number(s):

10128 of 2011

Judgment

1. COMMISSIONER: This is an appeal against the refusal by Cessnock City Council (the council) of an application to modify a condition of development consent under s 96AA(3) of the Environmental Planning and Assessment Act 1979 originally granted by the Court on the 21 May 2008 for the erection of a dwelling at 88 Sawyers Gully Road, Sawyers Gully ( Lees and anor v Cessnock City Council [2008] NSWLEC 1221). The consent was further modified by the council on 18 September 2010.

1. The hearing was conducted as a Conciliation conference under s 34 of the Land and Environment Court Act 1979. As no agreement was reached between the parties and in accordance with s 34(4), the conciliation conference was terminated. In accordance with 34(4)(b)(i), the parties consented to me disposing of the proceedings forthwith.

1. The condition in dispute is condition 18 of the consent modified by the council and states:

18. Prior to the issue of the Occupation Certificate the applicant must provide to Council, a survey for the proposed dwellings from a Registered surveyor to demonstrate that no part of the dwelling as constructed is sited no closer than 150 metres from the nearest poultry shed, 20 metres from the front boundary and 1.5 metres from the northern dividing property boundary.

Reason

To ensure that the dwelling as constructed is situated in the building envelope proposed by the applicant.

1. The agreed position of the parties was that the dwelling has been constructed and satisfies the 20 m front setback and the 1.5 m side setback but was located 134.5 m from the nearest poultry shed on the adjoining property, rather than 150 m.

1. The councils Statement of Facts and Contentions opposed the modification application for 19 separate reasons. These are:

• the dwelling, as modified, is not substantially the same as the dwelling, as approved (Contention 1),
• approval cannot and should not be granted to retrospectively amended or validate the dwelling that has been constructed in flagrant breach of conditions of consent (Contention 2),
• approval cannot and should not be granted retrospectively where a Construction Certificate has been issued in contravention of the Environment Planning and Assessment Act 1979 (the EPA Act) and is therefore invalid (Contention 3),
• approval cannot and should not be granted retrospectively which will have the effect of validating an Interim Occupation Certificate that has been unlawfully granted (Contention 4),
• approval cannot and should not be granted retrospectively to legalise building that is contrary to the development consent and an invalid Construction Certificate and invalid Occupation Certificate (Contention 5),
• in exercising its discretion, the Court should not grant approval because the applicant has accepted the benefits of the development but seeks to be relieved of the burden of the 150 m setback requirement (Contention 6),
• the development does not comply with the separation distance 150 m prescribed by the Cessnock Development Control Plan 2006 (the DCP) (Contention 7),
• the development does not comply with cl 9(3) of Cessnock Local Environmental Plan 1989 (LEP 1989) (Contention 8),
• the development does not comply with cl 10(1) of LEP 1989 (Contention 9)
• the development does not comply with aims, objectives etc in cl 2 of Hunter Regional Environmental Plan 1989 (REP 1989) (Contention 10)
• the development does not comply with Aims, objectives etc in cl 2 of REP 1989, particularly Part 4, Div 1, cl 4 objectives (Contention 11)
• the development does not comply with aims, objectives etc in cl 2 of REP 1989, particularly Part 4, Div 1, cl 27 (Contention 12),
• the development does not satisfy the requirements in Parts C and D the DCP (Contention 13),
• the development does not comply with cl 2(a) and (c) ands cl 7(a), (b) and (c) of State Environmental Planning Policy (Rural Lands) 2008 (the Rural Lands SEPP) (Contention 14),
• the development does not comply with cl 10(3)(a) to (e) of the Rural Lands SEPP (Contention 15),
• the development does not comply with the objectives of the proposed zone and cl 7.11 of draft Cessnock Local Environmental Plan 2010 (the draft LEP) (Contention 16),
• no satisfactory site-specific odour assessment has been provided (Contention 17),
• as no explanation has been provided for the breach of the development consent the council cannot be satisfied that any amelioration measures proposed to be put in place will be maintained, (Contention 18), and
• the proposal will provide an undesirable precedent (Contention 19).

1. During the hearing, Mr Mallik, the council's solicitor raised the following additional matters:

the proper process for considering modification applications, and

whether the odour assessment report provided by the applicant, satisfied the requirements of the Uniform Civil Procedure Rules 2005.

1. On the first matter raised by Mr Mallik, and while where was some disagreement between the parties on the proper approach for the consideration of a s 96 modification application, I accept that the approach adopted in North Sydney Council v Michael Standley & Associates Pty Ltd (97 LGERA 443 at 441) where the consideration of a modification application is to be tested against the original approval rather than as incremental changes created by the modification application is the correct approach. The second matter raised by Mr Mallik is addressed later in the judgment (see pars 25 to 27).

1. In considering the relatively scope of the proposed modification, the number of contentions raised by the council and for the "just, quick and cheap" disposal of the proceedings, Mr Mallik, the councils solicitor, was requested at the site inspection and prior to the hearing, to reconsider the range of contentions raised by the council. While grouping the contentions into more general areas, none were withdrawn by the council. In my view, the relevant contentions can be summarised as:

1. whether the development, as modified, is substantially the same development as approved (Contention 1),

2. whether the reduced setback increases the potential odour nuisance and threatens the agricultural use of the adjoining poultry farm (Contentions 7, 8, 9,10, 11, 12, 13, 14, 15, 16, 17 and 18) and

3. whether the proposed modification will be a precedent (Contention 19).

1. Of the other contentions, Contention 2 is not supported by the law (see Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240), for Contentions 3, 4 and 5; the question of invalidity is an unfounded assumption and in any event, are irrelevant matters for the consideration of the modification application, Contention 6 is not a contention but more appropriately a submission on discretion and Contention 18 is not supported by the law (see Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99).

Is the development, as modified, substantially the same development as approved?

1. Section 96(1A)(b) requires that the Court "must be is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified". In Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298, Bignold J (at 390) identified the relevant test. His Honour stated:

The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is essentially or materially the same as the (currently) approved development. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper context (including the circumstances in which the development consent was granted).

1. In this case I am satisfied the dwelling, as modified, will be substantially the same as that granted by the Court on 21 May 2008. There was no dispute that dwelling satisfies the front and side setbacks and that the form and size of the dwelling is essentially and materially the same as the approved development. The sole reason for the modification application is the breach of the setback to be nearest poultry shed on the adjoining property. In quantitative terms, the variation to the 150 m setback is 15.5 m. In my view, it could not reasonably be argued that this variation results in a development that is not essentially material or the same as the original approved development. In qualitative terms, and for the reasons set out in the following paragraphs relating to odour, I am satisfied that the modified development is also essentially or materially the same as the approved development.

Will the reduced setback increase the potential odour nuisance?

The evidence

1. The basis for a large number of the council's contentions is that the reduced setback will potentially increase the likelihood of an objection about odour from the residential dwelling, the subject of the modification application, about the adjoining poultry farm and that may lead to its closure or reduced productivity. This will be inconsistent with the general objective of protecting, maintaining and supporting agricultural activities in rural areas.

1. The contention as described in the evidence of Ms Sharp, the council's town planner, (at par 1.8.1) states:

Under Chapter c.4 Land use Conflict and Buffer Zones , dwellings on land adjoining land to poultry sheds are required to have a minimum separation distance of 150 m.

Under this Chapter where an application is received which is likely to result in a conflict with the existing law likely future adjoining land uses, it will be the responsibility of the "encroaching development" to provide the recommended buffer areas or satisfactorily reduce or remove the conflict through some other approved method.

In this instance the dwelling is the encroaching development on existing poultry sheds. The consent issued by the Court require the dwelling to be located a minimum distance of 150 m and arboreal screen (10 m by 70 m long)

A minimum distance of 150 m is required to residual emissions such as (deleted after objection by applicant) odour etc which can cause nuisance or discomfort to human beings a risk to health and well-being

1. Mr Allen, the applicant's town planner, disagrees on Ms Sharp's interpretation of the DCP. He states that s 4.2.3 in Chapter 4 categorises different land uses to assist in determining whether or not a conflict/buffer investigation should be undertaken, and to what extent. In the table to this section "Residential development" and "Rural residential development" are defined as Category A land uses and "Poultry farms" are defined as a Category C land use. Section 4.3.12 addresses Rural Residential Development and under the heading of "Methods for Reducing Conflicts", the third dot point states:

Where Category C uses are located nearby, setback will be determined on the merits of the case.

1. Mr Allen states that the DCP is clear and unlike the requirement for a 150 m setback for a new poultry farm from existing residences, there is no stipulated setback distance for a new dwellings proposed near an existing poultry operation. Therefore the suggestion of Ms Sharp that the dwelling does not comply with the prescribed 150 m separation distance is not applicable.

1. Further evidence was provided for the applicant by Mr Ronin Kellaghan, an environmental scientist with expertise in odour monitoring and assessment. His report addressed the difference in the likely odour from the nearby poultry shed between the approved separation distance of 150 m and the existing setback of 134.5 m. He states that:

Analysis of the predicted odour impact at the distance of 135 m and 150 m metres indicates the relative difference in odour would be less than 10%. Evidence suggests that a doubling of odour concentration is required to change the perception of odour. On this basis, a 10% difference in predicted odour concentration at 135 m and 150 m is unlikely to be perceivable.

1. He further states:

It is also noted that under the Australian Standard for the measurement of odour by dynamic olfactometry (AS 4323.3 : 2001), the accepted repeatability for two samples of the same testing material will not be greater than a factor of 3 at a 95% confidence level. In other words, duplicate samples analysed by a laboratory cannot differ by more than a factor of three. The percentage difference in odour predicted at 135 m and 150 m (10%) would therefore not be able to be measured in accordance with the Australian standard.

1. The evidence of Mr Kellaghan was challenged by the council and is addressed later in the judgment (see pars 25 to 27).

Findings

1. The issue of the separation distance between the proposed dwelling (as it was at the time of the original approval) and the nearest poultry shed on the adjoining property was the principal issue in the original proceedings.

1. The contentions raise provisions in REP 1989 (although now repealed) and the Rural Lands SEPP as providing support for the refusal of the application. While of some relevance, these documents provide general and broad planning objectives that are largely directed at guiding detailed planning at the local level (see par 26 of REP 1989) or general considerations for certain forms of development (see par 10 of the Rural Lands SEPP). In any event, the DCP (as distinct from REP 1989 and the Rural Lands SEPP) specifically addresses the relationship between potential conflict between rural activities and residential use and, in this case, is the more relevant planning document for the main contention in the proceedings.

1. At the time of the appeal, the applicant's tendered documents from their consultant indicated that a dwelling could be located on the site that satisfied all three setback criteria. This, however has proved to be incorrect. In addressing the setback to be poultry shed, the judgment relevantly stated (at par 10):

10. With the benefit of the site view, I accept that the position adopted by the council of maximising the setback and providing a vegetative screen is reasonable and an appropriate response to the particular characteristics of the application and the site. A setback greater than 150 m would effectively sterilise the use of the site as the use of the rear portion of the site has limitations through requirements for protection from bushfires. The approach adopted by the council is consistent with cl 4.1.2 of DCP 2006 of minimising land-use conflicts between potentially incompatible land uses. Part 6.6 deals specifically with the impact of further development or subdivision around poultry farms. Part 6.6 deals with conflict of minimisation and proposes means of dealing with the potential impacts. The potential impacts include visual, noise, lights, odour and dust. I note that Part 6.6 relies on vegetative screening as a consistent mechanism to address these impacts.

1. While the interpretation of the DCP by Mr Allen is strictly correct, it is not overly helpful in determining the appropriate setback to the poultry shed as it simply calls up a merit assessment. In my view, this could reasonably involve an odour modelling exercise. I note that while the DCP provides the option for odour assessment through modelling (s 4.3.1(a) 3), this was not an option taken up by the council for the original development application notwithstanding evidence from the Department of Primary Industries. In this regard, the judgment relevantly states (at par 6);

6. Ms Glenda Briggs, a Resource Officer with the Department of Primary Industries also provided evidence on site. She stated that it was the policy of her department to help resolve conflict between potentially conflicting land uses such as a dwelling and a poultry farming establishment. In her opinion, it would be more appropriate to conduct modelling of odour impacts rather than rely on a 150 m setback as proposed by the council. Based on a simple modelling exercise, she calculated that a setback of 347 m was required although she conceded that this was likely to be overly conservative. She supported the use of a vegetated screen providing it was of sufficient depth and planting.

1. The 150 m setback relied upon in the previous approval and by Ms Sharp in this appeal, comes from s 4.3.1 of the DCP however this subsection relates to " New poultry developments". I accept the evidence of Mr Allen that the 150 m setback distance does not strictly apply to this application. However, it is a standard that has been adopted by the DCP, that in general terms, is an acceptable separation between a poultry shed and a dwelling, putting aside the question of what is a new land use and what is an existing land use. Given the absence of any other numerical standard in the DCP and the reliance on this numerical standard in the original approval and this appeal, I see no reason why it should not be used as the basis for the consideration of the modification application. In my view, it would be unreasonable to adopt a totally different assessment regime for a modification application (as submitted by Mr Mallik) when there has been no change to the assessment regime in the DCP and was used for the consideration of the original application.

1. Ms Briggs again provided evidence for the council and largely reiterated her evidence in the original application. Again, I see no reason why the assessment regime that was used for the consideration of the original application should not be followed, given the specific requirements in the DCP relating to land use conflict (Chapter C.4).

1. This leads to the odour assessment report prepared by Mr Kellaghan. Mr Mallik objected to the expert report of Mr Kellaghan on the basis that his report relied on work undertaken by other persons and specifically the statement that " The odour modelling presented in this report has been performed by Fardasur Rahaman, Senior Air Quality Engineer at PAEHolmes (Curriculum Vitae attached as Appendix A)" Mr Mallik submitted that Mr Rahaman had not complied with Rule 31.23 of the Uniform Civil Procedure Rules 2005 (the Rules) and consequently the expert report was not admissible. For support he cited the decision in Ali v Liverpool City Council [2009] NSWLEC 1327 (pars 81 to 90).

1. Mr Williams, for the applicant, submitted that Mr Rahaman's role was to carry out odour modelling on behalf of Mr Kellaghan. Mr Rahaman was not the author of the expert report and that Mr Kellaghan adopted the modelling undertaken by Mr Rahaman and relied on that modelling for his conclusions. This was confirmed by Mr Kellaghan in his oral evidence at the hearing. Further, Mr William submitted that the role undertaken by Mr Rahaman, in this case, is clearly anticipated and acknowledged in Rule 31.27(1)(f) where it states that an experts report must include " any examinations, tests or other investigations on which the expert has relied, including details of the qualification of the person who carried them out,"

1. On this matter, I accept the circumstances in Ali can be clearly distinguished from the circumstances in this case and I have little trouble in concluding that the input of Mr Rahaman falls squarely within Rule 31.27(1)(f) and there is no reason why the expert report of Mr Kellaghan cannot be relied upon by the Court.

1. Chapter C.4 addresses land use conflict and buffer zones. Clause 4.1.2 identifies the purpose of the chapter as:

To provide consistent development guidelines for residents, developers, the Council and assessment staff when considering applications for development which:

• may conflict with the existing development or environmentally sensitive areas because of emission of odour, noise, vibration, visual impact or other nuisance and may therefore require a separation or other means of reducing the conflict to an acceptable level;
• is proposed to the location where there is an existing development which adversely affect it and may therefore need to provide its own separation or other means of reducing or removing the conflict in order to minimise land-use conflicts between potentially incompatible land uses.

1. Even accepting the evidence of Ms Sharp that the appropriate separation distance is 150 m in the DCP, and contrary to her evidence, it does not necessarily follow that the setback requirement cannot be modified. The emphasis to be given to a development control plan (DCP) is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative (my emphasis).

1. In this case, the unchallenged evidence of Mr Kellaghan is that if the separation distance of 150 m is reduced to 134.5 m, then any change in odour from the poultry shed is unlikely to be perceivable at the subject dwelling. I am satisfied that the relevant purpose of minimising land-use conflicts between potentially incompatible land uses is maintained through the reduced setback.

1. I am also satisfied that there are no requirements in the DCP, LEP 1989, REP 1989, the Rural Lands SEPP or the draft LEP relating to the potential impact on rural activities, that would support the refusal of the application given the evidence of Mr Kellaghan.

Precedent

1. Precedent can be a valid planning consideration ( Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75) in some circumstances however, I am satisfied that the particular characteristics of this case are unlikely to be replicated elsewhere and as such, the potential precedent does not arise.

Orders

1. The orders of the Court are:

1. The appeal is upheld.

2. The application to modify the development consent originally granted by the Court on the 21 May 2008 for the erection of a dwelling at 88 Sawyers Gully Road, Sawyers Gully ( Lees and anor v Cessnock City Council [2008] NSWLEC 1221) is approved by the deletion of condition 19 and its replacement with the following condition:

19. The location of the dwelling erected pursuant to this consent must be such that no part of the dwelling erected is sited any closer than 134.5 metres from the nearest poultry shed, 20 metres from the front boundary and 1.5 metres from the northern dividing property boundary.

Reason

To mitigate the impacts occurring between the dwelling and the nearest poultry farm development on the adjoining Lot 770

3. The exhibits are returned.

G T Brown

Commissioner of the Court

Decision last updated: 03 May 2011