Muscat Developments Pty Ltd (formerly known as Muscat Hydroponics Pty Ltd) and ors v Wollondilly Shire Council Muscat Developments Pty Ltd (trading as Muscat Developments Pty Ltd) v Wollondilly Shire Council

[2017] NSWLEC 1681

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Muscat Developments Pty Ltd (formerly known as Muscat Hydroponics Pty Ltd) and ors v Wollondilly Shire Council Muscat Developments Pty Ltd (trading as Muscat Developments Pty Ltd) v Wollondilly Shire Council [2017] NSWLEC 1681

Hearing dates:

5 June 2017

Date of orders:

06 June 2017

Decision date:

06 June 2017

Jurisdiction:

Class 1

Before:

Brown C

Decision:

See orders pars 18, 19

Catchwords:

MODIFICATION: refusal by the council to modify development consent 10.21 12.125.4 for intensive livestock agriculture, poultry broiler farming

  BUILDING CERTIFICATE: refusal of the council to issue a building certificate for three water storage tanks, three partially constructed sheds and building pads and other structures associated with the raising of chickens

Legislation Cited:

Environmental Planning and Assessment Act 1979

Cases Cited:

Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] 106 LGERA 298

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Appeal No. 2016/386136

 

Muscat Developments Pty Ltd (formerly known as Muscat Hydroponics Pty Ltd) (First Applicant)
James Muscat (Second Applicant)
Catherine Mary Muscat (Second Applicant)
Wollondilly Shire Council .(Respondent)

 

Appeal No. 2017/137997

Muscat Developments Pty Ltd (trading as Muscat Developments Pty Ltd) (Applicant)
Wollondilly Shire Council .(Respondent)

Representation:

Counsel:
Dr J Smith, barrister (Applicants)
Mr S Nash, barrister(Respondent)

  Solicitors:
CA Williams Legal Pty Ltd (Applicants)
Marsdens Law Group (Respondent)

File Number(s):

2016/386136 and 2017/137997

Publication restriction:

No

Judgment

1. COMMISSIONER: These are two separate but related appeals in relation to the rural activities at 440 Cawdor Road, Cawdor:

2. Appeal No.16/386136 is an appeal against the refusal by the council to modify development consent 10.21 12.125.4 for intensive livestock agriculture, poultry broiler farming (the modification appeal).

3. Appeal No. 17/137997 is an appeal against the refusal of the council to issue a building certificate for three water storage tanks, three partially constructed sheds and building pads and other structures associated with the raising of chickens (the building certificate appeal).

4. The council files statement of facts and contingents in each appeal.

The modification appeal

5. The council raised the following matters that warranted the refusal of the application:

1. The ability to approve the application as it was “not substantially the same development for which consent was originally granted”;

2. The application is designated development for the purposes of the Environmental Planning and Assessment Act 1979 (EPA Act);

3. The inability for other approved uses on the site to operate together;

4. Insufficient evidence on the proposed conservation area;

5. Insufficient information on proximity to the existing watercourse;

6. Insufficient information on potential impacts on flora and fauna;

7. Insufficient information on odour impacts;

8. Insufficient information on noise impacts;

9. Insufficient information on traffic impacts;

10. Insufficient information on land contamination,

11. Insufficient information on heritage impacts.

The building certificate appeal

6. The building certificate appeal raised the same matters that warranted the refusal of the modification application with the exception of the first contention, the inability to approve the application because it was not substantially the same development for which consent was granted.

7. The hearing commenced on site and the Court heard from a resident who raised the following objections:

1. Noise,

2. Odour, and

3. Inappropriate development for the area.

The hearing

8. At the site inspection on the morning of the first day of the hearing, the parties advised the Court that since the matters had been listed for hearing, additional information had been provided by the applicant that has addressed the concerns raised by the council. I note a number of those concerns raised relate to the lack of information.

9. At the hearing, the Court had the benefit of joint reports from:

1. Mr S Fardoe and Mr P Kabaila on heritage matter;

2. Mr D Harm and Ms Stengl on ecological matters;

3. Mr Kelleghan and Mr Calvin on odour matters;

4. Mr McLaren and Dr Martens on traffic matters;

5. Mr Redwood and Mr Gould on acoustic matters;

6. Mr Norris and Mr Yenge on contamination matters;

7. Mr Hurley and Mr Lovell on town planning matters; and

8. Ms Cook and Dr Martens on engineering matters.

Is the modification substantially the same development for which consent was originally granted

10. The council contention relating to whether the proposed development was addressed by the planning experts. Section 96(2) of the EPA Act requires the Court “must be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.”

11. 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 the 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 contexts (including the circumstances in which the development consent was granted).”

12. In response, Mr Hurley for the council states, f28 and 29}:

The nominated changes to the operational conditions relating to the night time collection of birds, removal of the northwest mound, and changes to the configuration of the conservation done, are presently being assessed by others. However, at this stage, there is insufficient information to enable a proper set assessment in respect to potential odour, noise, traffic and ecological impacts when compared with the approved development. As stated previously, a number of the quantitative changes in isolation could be considered as substantially the same as the approved development. However, when comparing in context, the development as proposed with that as originally approved, it is my opinion that considering the above factors, the proposal represents a radical transformation from the application as approved.”

13. At the time of writing his evidence, Mr Hurley did not have the benefit of the additional joint reports dealing with odour, noise, traffic and ecological impacts. As these reports are now available, I am satisfied that any concerns Mr Hurley had in relation to odour, noise, traffic and ecology have been fully considered by the relevant experts and found to be acceptable.

14. Consequently, I am satisfied that the proposed modification is “substantially the same development as the development for which consent was originally granted.”

Other contentions

15. As I understand, the potential for the development to be classified as designated development was not an issue following further amendment to the plans that provided the further details that were absent when the application was lodged with council. While the council had no instructions to enter into consent orders, there are no outstanding issues remaining based on the council’s facts and contentions for both appeals.

16. Having read the joint reports, I am satisfied that there are no reasons why the modification application should not be approved, and that the building certificate application be dismissed based on the submissions made by the parties.

17. Of those matters raised by the objector, I accept that any concerns are satisfactorily addressed through the consideration of the expert evidence.

Orders

18. In Appeal No.16/386136 (the modification appeal) the orders of the Court are:

1. The appeal is upheld.

2. The application to modify DA 1Q.2012.125.001 for the construction of an Intensive Livestock Agriculture - Poultry (Broiler) Farm at 440 Cawdor Road, Cawdor is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibit 4.

19. In Appeal No. 17/137997 (the building certificate appeal) the orders of the Court are:

1. The Appeal is dismissed.

2. Building Certificate Application No.11/664430 lodged on 16 March 2017 for three water storage reservoirs, three partly constructed poultry sheds and building pads, associated underground services to sheds, three sets of two feed silos, associated drainage lines and earth mounds on the southern and eastern sides, concrete block retaining walls and concrete pads to support various farm structures (feed soils) at 440 Cawdor Road Cawdor, NSW (Lot 11 DP 664430) is refused.

__________

G Brown

Commissioner of the Court

386136.16 (C) gtb (351 KB, pdf)

Amendments

29 November 2017 - Annexure 'A' attached to judgment.

Decision last updated: 29 November 2017