Moonlight Mushrooms Pty Ltd v Temora Shire Council

[2009] NSWLEC 1092

Land and Environment Court

of New South Wales

CITATION:

Moonlight Mushrooms Pty Ltd v Temora Shire Council [2009] NSWLEC 1092

PARTIES:

APPLICANT
Moonlight Mushrooms Pty Ltd

RESPONDENT
Temora Shire Council

FILE NUMBER(S):

10021 of 2009

CORAM:

Taylor C

KEY ISSUES:

DEVELOPMENT CONSENT :- Appeal against refusal for mushroom substrate production facility, consent orders

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

27/03/2009

EX TEMPORE JUDGMENT DATE:

27 March 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. Graham, solicitor
of HWL Ebsworth Lawyers

RESPONDENT
Mr G. Granleese, solicitor
of Greaghe Lisle Temora

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Taylor C

27 March 2009

09/10021 Moonlight Mushrooms Pty Ltd v Temora Shire Council

JUDGMENT

1 This is an appeal against a refusal of a development application (DA0708/1070) for a mushroom substrate production under s 97 (1) of the Environmental Planning and Assessment Act 1979. The proposed facility is located at 71 Research Station Road, Temora, NSW.

2 Following the initial refusal of the application and subsequent case management, the Applicant agreed to a series of amendments such that the amended application was deemed acceptable to the Council.

3 The Council received 41 objections to the original proposal. These were objections in principle to the proposed facility. The main objector, Mr and Mrs Crawford, who live approximately 1.3 kms from the proposed facility. The primary concern of the Crawford’s relates to the emission of undesirable odours from the facility.

4 In response to this issue and also potential noise from the facility the Council consulted with the Department of Environment and Climate Change regarding appropriate noise and dust conditions. In addition, the Council also engaged Sinclair Knight Merz to undertake a further, independent review of the odour management plans, including inter alia, the introduction of a Complaints Feedback Management System.

5 The review by Sinclair Knight Merz was referred back to Council to determine whether or not they were to continue to defend the appeal given that the review supported the development application.

6 The Council reviewed the amendments to the application and at a special meeting on 26 February 2009 resolved to allow the appeal, with the inclusion of more stringent conditions as recommended in the Sinclair Knight Merz review (Exhibit D).

7 Consequently, the parties are seeking consent orders from the Court.

8 On reviewing the exhibits and listening to Mr Crawford’s oral evidence at the consent orders hearing, it would seem to me that his concerns have been addressed in so far as there are processes and procedures to deal with the facility, including a management plan as part of the conditions of consent. The conditions of consent include special conditions for a complaints/feedback management system, which may mean, if necessary that the licensee may be required to undertake further odour assessments and if necessary carry out mitigation strategies.

9 As result of the amendments to the application and the 88 conditions of consent, I am satisfied that the resident’s objections have been dealt with appropriately and that consent orders may be issued.

Orders

10 The orders of the Court by consent are:

1. The appeal in respect of the application for a mushroom substrate production facility at 71 Research Station Road, Temora, NSW is upheld.

2. Development Consent is granted to development application No. DA0708/1070 for the production of mushroom substrate at 71 Research Station Road, Temora, NSW, subject to the agreed conditions of consent marked as “A”.

3. The exhibits except the plans (Exhibit B), Mr Dunstan’s affidavit (Exhibit D) and the filed copy of the agreed conditions (Exhibit A) are to be returned.


___________________
Dr M Taylor
Commissioner of the Court