Newton Denny Chapelle v Richmond Valley Council
[2006] NSWLEC 675
•26/10/2006
Land and Environment Court
of New South Wales
CITATION: Newton Denny Chapelle v Richmond Valley Council [2006] NSWLEC 675 PARTIES: APPLICANT:
Newton Denny Chapelle
RESPONDENT:
Richmond Valley CouncilFILE NUMBER(S): 10226 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Staged development of an ‘animal establishment’ 240,000 birds; conflict with Rural Residential Development Strategy LEGISLATION CITED: Richmond River Local Environmental Plan 1992, (RRLEP)
North Coast Regional Environmental Plan 1988, (NCREP)
Environmental Planning and Assessment Act 1979, ss79C and 97DATES OF HEARING: 26/10/2006 EX TEMPORE JUDGMENT DATE: 10/26/2006 LEGAL REPRESENTATIVES: APPLICANT:
Mr P McEwen, barrister, instructed by
Mr Hannigan, solicitor
SOLICITORS:
HannigansRESPONDENT:
Mr D Wilson, barrister instructed by
Mr N D Howie, solicitor
SOLICITORS:
Wilshire Webb
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
26 October 2006
102256 of 2006 - Newton Denny Chapelle v Richmond Valley Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by the Richmond Valley Council (the council) of a development application for the staged development of an ‘animal establishment’ of six (6) x chicken sheds with a maximum capacity of 240,000 birds, associated earthworks, silos, sediment control, water storage, stormwater management, vehicular driveway and landscaping, at Lots 128 & 129, DP 755602, being No 4145 Bruxner Highway, Woodview.
2 I visited the land in company with the parties on the morning of the hearing
3 I have concluded that the Court may endorse the consent orders and consent is granted in its terms.
The land
4 The land is situated on Benns Road at Woodview about 14 kilometres from Casino. It comprises two lots that have a combined area of about 70 hectares.
5 The subject land is in the rural Woodview area, where large rural holdings predominate. However, nearby, there are a few smaller, 1 to 4 hectare allotments. The subject land and areas nearby to the north and east are included in the council's Rural Residential Development Strategy.
Relevant planning controls
Richmond River Local Environmental Plan 1992, (RRLEP)
6 Under cl 9 of the RRLEP the land is zoned Rural 1(b1) Secondary Agricultural Land, and the proposal as an ‘animal establishment’ is permissible with consent.
North Coast Regional Environmental Plan 1988, (NCREP)
7 In a draft strategy made under the NCREP the Department of Planning has set a target for population increase for the Richmond Valley up to the year 2031 of 9,900 dwellings of which it is estimated that around 25% of that increase of 1,825 dwellings might be met by rural residential development of rural land.
8 On 15 December 1998 the council adopted, under the NCREP, a Rural Residential Development Strategy (RRS) to plan for rural residential development of rural land within the Shire. The Director-General of the Department of Urban Affairs and Planning approved this strategy on 4 March 1999. The present proposal for an animal establishment is considered by the council to be in conflict with projected rural residential development.
The proposal and its history
9 Development application No 2005/0188 was lodged with the respondent council on 21 October 2004 for the staged development of an ‘animal establishment’ of six (6) x chicken sheds with a maximum capacity of 240,000 birds on the land.
10 Approval under part 3, ch 3 of the Water Management Act 2000 (NSW) is required for the construction and use of the bore and is integrated development under the provisions of cll 5 and 86 of the Environmental Planning and Assessment Regulation 2000.
11 On 26 October 2004, the council outlined deficiencies in development application and sought additional information. This was received from the applicant on 17 January 2005.
12 On 25 March 2005 the council officers inspected the subject land and on the same occasion they visited the site of another proposed chicken farm at No 355 Benns Road, Shannonbrook. Mr R Whitehead of NSW Department of Agriculture also attended. The applicant submitted an Odour Impact Assessment report to the council.
13 Mr and Mrs F Hannigan submitted a Biosecurity Report by Greg Poole of Pooled Resources to the council.
14 Then the council forwarded a copy of the biosecurity report to NSW Agriculture for its review and comment. The Regional Director, Primary Industries Relations forwarded comments on the biosecurity report to the council on 1 November 2005. The council requested applicant to address two additional details as a result of the comments made by NSW Agriculture, being:
i) The prospect of avian influenza, its impact on employees involved with the proposed development and any particular requirements of WorkCover Australia in this regard;
ii) The prospect of avian influenza and its impact on residents in existing dwellings in close proximity to and future dwellings within any rural residential development in the areas as defined in Council's Rural Residential Development Strategy which surround the proposed development.
15 The council requested WorkCover NSW and NSW Department of Health to advise on the biosecurity issues relating to the proximity and separation distance between the farms.
16 On 2 November 2005, the council received a response from applicant referring to the commitment by Sunnybrand Chickens to be bound by the guidelines set out in the National Biosecurity Manual - Meat Chicken Farming, May 2002.
17 On 7 December 2005, the council requested WorkCover NSW and the NSW Department of Health again to address the biosecurity issues relating to the proximity and separation distance between the farms.
18 On 20 December 2005 the North Coast Area Health Service responded to the council’s request, and advised that a 3-kilometre quarantine zone would apply should there be an outbreak of Avian Influenza (AI) and stating that the applicant should address risk management relating to the disease.
19 On 17 January 2006 a copy of NSW Health Department the council forwarded correspondence to the applicant for information and response.
Notification
20 On 3 February 2005, the application was notified to nearby owners and occupants and the council received two (2) objections from:
· Rehome Pty Limited, trading as Eastern Rural Casino at No 535 Benns Road, Shannonbrook; and
· Mr C Yates of No 660 Benns Road, Shannonbrook.
21 Mr N Yates the son of Mr C Yates gave evidence of concerns for dust, flooding and odour.
22 Mr J J Hession, Planning Officer, Richmond Valley Council prepared the statement of basic facts dated 4 May 2006.
The council’s decision
23 By notice dated 27 March 2006, the council refused the application for the following reasons, [Note: Exhibit 1, Tab 8]:
1. The proposed development is located within an area, which is outlined in the Richmond River Rural Residential Development Strategy. The establishment of the proposed development could have significant impacts on the future expansion of rural residential development both within the subject property and on adjoining properties.
2. The siting of a chicken farm within the land included in Council’s Rural Residential Development Strategy is contrary to the planning principles and the strategic planning approach of the Strategy.
3. The proposed development does not conform with Council’s requirement that poultry farms accord with the provisions of the NSW Meat Chicken Farming Guidelines, which includes, inter alia, a requirement for a minimum separation distance of 2 kilometres between poultry farms. The proposal is located at a distance of only 1.35 kilometres, a factor of 32.5% shortfall in the distance required.
4. The proposal has insufficient separation from at least one existing rural dwelling on an adjoining property to the west.
5. Advice from the NSW Department of Health indicates that the proposed use would be within a 3 kilometre buffer of future rural residential development.
6. The application, including any supporting information submitted does not sufficiently address the issue of biosecurity, in terms of the impacts on existing or potential land uses in the surrounding area, should an outbreak of a notifiable disease such as Avian Influenza – H5N1 Virus, occur on the subject site.
7. The establishment of an intensive chicken farm in the proposed location would have a major negative economic impact by sterilising a significant area of land – 785 hectares, for rural residential development purposes.
The hearing
24 The appeal was filed on 23 March 2006 on the basis that the application had been deemed refused.
25 Mr Pratt was the Court-appointed town planning expert and Dr Scott was the Court-appointed expert on avian diseases.
26 On behalf of the applicant evidence was given by Mr J Hession, Planning Officer, Richmond Valley Council who prepared the statement of basic facts dated 4 May 2006.
27 The parties also relied on a joint odour experts report dated October 2006, prepared by Dr N Holmes, Messrs G Hamer and R Ormerod.
The issues
28 On 16 June 2006 the council filed an amended statement of issues.
- Odour/dust/noise impacts
- Health/Biosecurity
- Economic impacts
- The competing proposal
- Public interest
29 On 24 October 2006, the Court granted leave to the respondent to amend the issues to add paragraphs 6A (vegetation removal) and 6B (traffic impact) in the further amended statement of issues (Annexure A to the Notice of Motion dated 20 October 2006).
30 The salient issue was the potential conflict with Rural Residential Development Strategy.
The evidence and findings
Conflict with Rural Residential Development Strategy
31 Mr Wilson for the respondent submitted that conditions are imposed to protect the Rural Residential Strategy land, and the council is content to enter into consent orders.
32 I am satisfied that with Conditions 7 and 8 in place that limits the duration of the development and provide for the surrender of the consent after that time, the Rural Residential Strategy land would be protected. Conditions 7 and 8 read:
8. Upon the expiration of the period of twenty (20) years from the date of this consent the consent is to be surrendered by delivery to the Council of a notice of surrender in accordance with clause 97 of the Environmental Planning and Assessment Regulation 2000.7. The operation of the development is limited to a period of twenty (20) years from the date of this consent, at which time the development is to cease, the buildings and works are to be removed and the site restored to its original condition.
33 Vegetation removal and traffic impacts have been dealt with by condition.
34 For the above reasons, the appeal is upheld by consent.
Conditions
35 The conditions are those in Exhibit 2 as amended during the hearing.
Consent orders
36 The consent orders that I make are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 2005/0188 lodged with the respondent council on 21 October 2004 for the staged development of an ‘animal establishment’ of six (6) x chicken sheds with a maximum capacity of 240,000 birds, associated earthworks, silos, sediment control, water storage, stormwater management, vehicular driveway and landscaping, at Lots 128 & 129, DP 755602, being No 4145 Bruxner Highway, Woodview, is approved subject to Conditions 1 to 50 in Annexure A.
3. The exhibits are retained.
S J Watts
Commissioner of the Court
sw
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
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