Noble v Cowra Shire Council - [2003] NSWLEC 178

No judgment structure available for this case.

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Pending Appeal: notice of appeal filed 26/08/03 notice dated 25/11/03

Land and Environment Court

of New South Wales

CITATION: Noble v Cowra Shire Council [2003] NSWLEC 178

PARTIES:
APPLICANTS:
Michael John Noble
Patricia Lynne Noble
RESPONDENT:
Cowra Shire Council

FILE NUMBER(S): 40020 of 2002

CORAM: Bignold J

KEY ISSUES: Judicial Review :- Development consent

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s68, s79C
Protection of the Environment Operations Act 1997, s96
Cowra Local Environmental Plan 1990, cl 9(3)

CASES CITED: Currey v Sutherland Shire Council (1998) 100 LGERA 365;
Emeritus Pty Ltd v South Sydney City Council (unreported, 1 February 1990, Cripps CJ);
Fast Buck$ v Dudley Pastoral Company Pty Ltd [2003] NSWCA 126;
Franklins Ltd v Penrith City Council (1999) NSWCA 134 ;
Hill v Woollahra Municipal Council (2003) NSWCA 106;
I W v City of Perth (1997) 191 CLR 1;
Ireland v Cessnock City Council (1999) 110 LGERA 311;
Jones v Dunkel (1959) 101 CLR 298;
Manly Council v Hortis (2001) 113 LGERA 321;
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24;
Municipal Council of Sydney v Campbell (1925) AC 338;
Noble and Anor v Cowra Shire Council (2001) 114 LGERA 440;
Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc (1996) 98 LGERA 335;
Schroders Australia Property Management Ltd v Shoalhaven City Council (1999) 110 LGERA 130;
Tooth & Co Ltd v Lane Cove Municipal Council (1967) 87 WN(NSW) 361;
Wheeler v JJ Sanders Ltd (1995) 2 All ER 697

DATES OF HEARING: 18/03/2003

DATE OF JUDGMENT:
07/31/2003

LEGAL REPRESENTATIVES:

APPLICANT:
P Clay (barrister)
SOLICITORS:
McIntosh Phillamy
RESPONDENT:
B Preston SC and H Irish (barrister)
SOLICITORS:
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND 40020 of 2002

ENVIRONMENT COURT Bignold J

OF NEW SOUTH WALES 31 July 2003

MICHAEL JOHN NOBLE and PATRICIA LYNNE NOBLE

Applicants

v

COWRA SHIRE COUNCIL

Respondent

Judgment

1 By class 4 proceedings filed on 12 February 2002, the Applicants seek a declaration that development consent granted by the respondent (“the Council”) on 12 November 2001 to development application No 218/2000 for the establishment of a dairy, feed pad, machinery shed, hay shed and dwelling on land situate at Forbes Road, Cowra (“the development consent”) is invalid.

2 In earlier proceedings in the Court between the same parties, Pearlman J declared invalid an earlier development consent granted on 1 September 2000 for the same development on the ground that the Council had failed to take into consideration a relevant consideration that it had been bound to take into account: see Noble and Anor v Cowra Shire Council (2001) 114 LGERA 440.

3 It was following her Honour’s judgment, handed down on 19 July 2001, that the Council reconsidered and redetermined the same development application (which had been lodged by Mr & Mrs Thompson) by granting development consent subject to specified conditions.

4 It is this regranted development consent which is the subject of the present proceedings in which the Applicants seek a declaration of invalidity and an order setting aside the development consent. This is the same type of relief which was sought and obtained in the earlier proceedings before Pearlman J and as with those earlier proceedings the persons with the benefit of the development consent (Mr & Mrs Thompson) have not participated in the proceedings (although invited to do so).

5 This appears to be a curious state of affairs accentuated by the fact that when the earlier proceedings were determined the dairy development sanctioned by the earlier development consent had been entirely completed and was operating (and has continued to operate to the present time).

6 However no point has been taken that the present proceedings are not properly constituted (both in terms of parties and of the relief claimed) and it would appear that the parties have proceeded upon the common assumption that if the Applicants succeed in the present proceedings the declaration of invalidity will be made and the same legal consequence that attended the earlier judgment of Pearlman J will again occur, namely that the development application made by Mr & Mrs Thompson will remain undetermined and it will be open to the Council to redetermine it yet again (that possibility itself involving the risk of pre-judgment).

7 Such an outcome of the declaration that the original development consent was invalid was explained by Pearlman J in her judgment in the earlier proceedings in the following passage at 449:

There is one final matter. The applicants have sought only a declaration that the development consent is invalid and an order that it be set aside. Orders of that nature have no effect upon the development application. Nor do such orders involve any consideration of the merits of the proposed development. The development application will remain on foot for the Council to assess and determine in accordance with the law.

8 It is to be noted that that explanation made no reference to the fact that the development the subject of the original development consent (about to be declared invalid) had already been carried out, with the inevitable consequence, hereafter explained, that the development application requiring re-consideration was necessarily a different development application from the one that had generated the original development consent.

9 However subsequent to the completion of the hearing of the present proceedings the recent decision of the Court of Appeal in Fast Buck$ v Dudley Pastoral Company Pty Ltd [2003] NSWCA 126 has cast grave doubt on to the correctness and viability of the parties’ common assumption in the present case. In particular, Meagher JA at par 2 said of the appeal that it was “doomed to failure”, because:

The appellant was seeking merely declaratory relief of no practical utility and was not interested in any consequential ruling; moreover, he had not joined the parties necessary to debate any such declaratory relief. It is of the utmost importance that Courts do not make speculative or theoretical declarations.

10 Notwithstanding these inherent difficulties with the present case, I shall adjudicate upon the Applicants’ claims which are disputed by the Council, since the case was fully presented (fortunately taking only one day) without demur from the Council concerning the viability or utility of the proceedings.

11 According to the Amended Points of Claim filed 18 March 2003, the Applicants allege the following conventional administrative law grounds of invalidity of the development consent:

i. the Council failed to re-determine according to law the development application afresh;

ii. the Council failed to properly take into account a relevant consideration, namely the odour impacts of the development on neighbouring properties;

iii. the Council failed to take account a relevant consideration, namely whether the development was consistent with the express objectives of the relevant zone contained in the Cowra Local Environmental Plan 1990;

iv. the Council took into account an irrelevant or improper consideration, namely the potential legal liability of the Council at the suit of Mr & Mrs Thompson in respect of the original grant of development consent (declared invalid and set aside by Pearlman J in the earlier proceedings); and

v. the Council’s decision to grant development consent without a proper consideration of the odour impacts of the proposed development was legally unreasonable (in the terms of Wednesbury unreasonableness).

12 These bases of challenge to the development consent are far more comprehensive than the sole basis successfully challenging the validity of the original development consent, namely the failure to take into account whether “State Environmental Planning Policy No 30 – Intensive Agriculture” (SEPP 30) applies to the proposed development.

13 As will be shown in the course of re-determining the development application the Council determined that SEPP 30 did not apply because the proposed development was not relevantly a “cattle feedlot” within the meaning of that Policy. The Council contests each of the grounds of invalidity of the development consent alleged in the Applicants’ Amended Points of Claim.

14 As will appear, the evidence adduced in respect of all these grounds of alleged invalidity was entirely documentary (comprising the Council’s relevant files) except for the Applicant’s evidence of Mrs Noble which deposes to what she heard said by three of the Councillors during the debate at the Council meeting held on 12 November 2001 when the Council redetermined the development application by granting the development consent. Mrs Noble’s affidavit also deposes to her observations of offensive odours emanating from the Thompson development experienced in her house (including a written record kept by herself of the experience of odour and dust events from December 2000 to November 2001), being a matter that is also referred to in the extensive documentary evidence (Exhibit 1) and that is the subject of the Applicants’ Notice to Admit Facts (Exhibit 3).

15 The following summary of primary facts which is derived from the documentary material focuses on the processing by the Council of the Thompson development application, and more particularly the Council’s redetermination of the application after the earlier consent had been declared invalid in the earlier proceedings. It will be supplemented by further facts that can be more meaningfully related to the different grounds of the Applicants’ challenge to the validity of the development consent.

16 On 11 July 2000 the Thompsons lodged a development application with the Council for the establishment on their rural property “Wirong” (comprising two parcels aggregating 216 hectares and situate on either side of Forbes Road) consisting of a dairy feed pad and associated buildings and a residence. The development application was accompanied by a detailed Statement of Environmental Effects (“SEE”) prepared by Terra Consulting.

17 The Council upon receipt of the development application consulted various public authorities and notified neighbouring property owners including the present Applicants. The Council’s contract Consultant Town Planner Mr McDonald appraised the application. In his final written Report on the development application, Mr McDonald summarised the results of the consultation and public notification processes including the objections received from three neighbouring property owners, including the present Applicants. His Report identified three options – (i) defer consideration to await further information sought by the Council; (ii) grant development consent subject to specified conditions; and (iii) refuse the application for specified reasons. The Council at its meeting held on 14 August 2000 decided to defer its determination pending the receipt from the applicants of further information sought by the Council’s contract Town Planning Consultant.

18 Mr McDonald provided to the Council’s meeting held on 28 August 2000 a Supplementary Report on the development application. That Report noted that despite the receipt of additional information some matters of concern raised by adjoining/adjacent landowners remained. Mr McDonald’s Report recommended that the development application be refused “as the long term potential impacts on the environment, by virtue of context and setting, air and micro-climate considerations, noise, social impacts and highly possible cumulative impacts on the existing and future amenity, character and lifestyle expectations of the locality outweigh any potential benefits likely to be generated to Cowra Shire by approval.”

19 However Mr McDonald’s Report also proffered recommended conditions of consent “should Council be minded to approve the development.” At the Council meeting held on 28 August 2000 there was an open forum discussion of the development at which persons supporting and persons objecting to the proposed development addressed the Council. Mrs Noble was one of the objectors to address the Council in the open forum discussion.

20 In the result the Council determined the Thompson development application by granting development consent subject to a large number of specified conditions which included the following:

11. Effective measures being taken at all times to prevent any nuisance being caused by noise, vibration, smell, fumes, waste water, waste products or the like.
....
15. Before the dairy is established the applicant shall provide substantive indication that effect on air quality in the vicinity of the proposal, in respect of potential odour sources other than the effluent treatment ponds, is expected to be minimal and an outline of likely mitigating measures for any disruption thereto to the satisfaction of Council.

21 Almost immediately following the grant of development consent the Council received a letter from the present Applicants’ solicitors advising that the Council’s determination was flawed because it had failed to consider the requirements of SEPP 30 and that unless the Council agreed to reconsider its determination the Applicants would bring proceedings in this Court to set aside the development consent upon the ground that the Council had failed to consider the State Policy in its determination of the development application.

22 Following the Council’s rebuttal of the alleged flaw in its determination of the Thompson development application the Applicants commenced proceedings in this Court which ultimately resulted in Pearlman J’s judgment of 19 July 2001. However in the meantime the approved dairy development had already been completed and the dairy had in June 2001 commenced to be fully operational.

23 In October 2001 the Council after considering legal advice in respect of the decision of Pearlman J decided “to proceed to re-determine the development application and to readvertise and notify the application for 21 days”. It also decided at its meeting held on 8 October 2001 “(T)hat the Environmental Planning Manager pursue the option of engagement of a suitably qualified disinterested party to monitor operations of the dairy for a period of 2 weeks.”

24 Following the re-notification of neighbouring property owners and of relevant public authorities of the Council’s intention to redetermine the Thompson development application the Council at its meeting held on 12 November 2001 considered a Report of its Environmental Planning Committee. That Report which had emanated from the Committee’s meeting held the previous week (5 November) which had been preceded by (i) the Committee’s inspection of the Thompson dairy and (ii) the Committee being addressed by a number of persons including both the present Applicants in relation to the Thompson development application. At that meeting the Committee had considered the Report of the Council’s Environmental Planning Manager (the content of which is principally adopted in the Report of the Committee that was submitted to the Council meeting held on 12 November 2001). The Committee’s Report was in the following terms:

3. Development Application 218100

CR & EM Thompson

Proposed Dairy, Feed Pad, Machinery Shed, Hay Shed & Dwelling

Lots 85, 101, & 82 DP 752946 & Lots 1-8 DP 19352 Forbes Road Merringanowry

Council at its meeting held on 8th October 2001 considered a Report from the Environmental Planning Committee Meeting held on the 2nd October 2001 following Counsel advice from J Hyland and resolved to re-determine the application for Thompson's Dairy – Development Application 218/00 following the application being set aside in the Land & Environment Court Proceedings 40178 of 2000 bought about by neighbours M & P Noble.

The application was readvertised and an on site inspection was carried out by the Environmental Planning Committee prior to the Environmental Planning Committee Meeting by members of the Environmental Planning Committee.

Three submissions have been received objecting to the proposal from M & P Noble, C Noble & J & A Ellsmore mainly in relation to odour, noise, runoff and dust problems.

The Dairy has been operating since June 2001 and ongoing complaints have been received by the Environmental Planning Department in regard to odour, dust, noise & runoff from neighbours M. & P. Noble.

A summary of the complaints investigated by the Environmental Planning Department were provided to the Environmental Planning Committee.

Council also resolved at its meeting of 8th October 2001 that the Environmental Planning Manager investigate the use of a disinterested person for a period of two (2) weeks to assess the alleged odour complaint. Quotations from Environmental Consultants were received however the quotations were more than what could be called affordable in this case.

The Environmental Planning Manager called a meeting of the Chairman of the Environmental Planning Committee & Mayor and it was unanimously decided to abandon such exercise because of the exorbitant cost of the exercise.

In the Land & Environment Court Proceedings Chief Judge Pearlman enquired of the applicants whether or not an injunction was sought and the applicants responded in the negative and as previously stated in the Chief Judges Judgement the Development Approval was merely set aside to give Council an avenue to redetermine the application which Council has now resolved to do as determined at its meeting held on the 8th October 2001.

The Nobles took Council to the Land & Environment Court on the basis that the Development Consent was invalid as Council in its assessment of the application had not considered SEPP 30 as the application was for a “cattle feedlot”.

Council’s Development Officers in assessment of the application from Day 1 had considered SEPP 30 and following advice from the Department of Agricultures Mr-. Tony Dowman (Livestock Officer Kempsey) considered the application as an intensive dairy but not as a cattle feedlot and therefore SEPP 30 did not apply. However, as the Chief Judge pointed out in her judgement the Officers had not actually documented this point in its Reports to Council

The issue of whether SEPP’s, REP’s, LEP’s, DCP’s etc had been considered by Council Staff have not as a normal practice been documented however, now due to a costly Land & Environment Court Case such considerations will be documented in future Reports and assessments by Council Staff.

The Chief Judge, in her judgement Clause 21 states that “It would have been reasonably open to the Council and thus not susceptible to judicial review to determine that the proposed development was not a cattle feedlot”.

The expert advice for the Noble’s contested that the proposal was for a cattle feedlot.

Professor Ian Lean (Veterinary Scientist - expert witness for Council) expressed his opinion that the development was not a cattle feedlot. Professor Lean’s opinion was supported by W. Inglis (Member of the Executive Committee of the NSW Dairy Farmers Association) and also Mr. AJ Dymock (Agricultural Environmental Officer - NSW Agriculture).

Mr. R V Ivey (an Agricultural Consultant) expert witness for the Noble’s stated the milking cows on Wirong would be entirely hand fed, taking into account the carrying capacity of the land and the fodder requirements of both the milking cows and the dry cows and calves.

Professor Ian Lean (Veterinary Scientist) who gave expert evidence for Council stated the proposed development was not a feedlot and a feedlot was where cattle are confined in pens for 100% of the time with no access to grazing.

Mr. Inglis (Member of the Executive Committee of the NSW Dairy Farmers Association Limited) said that the term “feedlot” is generally used in terms of beef cattle where cattle are fattened prior to sale, and furthermore is not a term generally used in the cattle dairy industry.

Mr. AJ Dymock (Agricultural Environment Officer with NSW Agriculture) said although there where similarities, in his opinion the Thompson’s proposal was not a cattle feedlot.

Mr. T Dowman (NSW Agriculture Livestock Officer) had also given verbal/written advice to Council’s assessment in the assessment period such proposal was intensive but not a cattle feedlot.

There is more than sufficient evidence before Council that the Development Application 218/00 for consideration that such proposal is not a cattle feedlot and therefore SEPP 30 is not applicable. It would appear the Council's Officers in the original assessment of the application should not have used SEPP 30 as a reference (Clause 28 of Judgement) as the Chief Judge stated “that if this was so a 5 kilometre buffer zone for individual residences may be needed”.

The Chief Judge in suggesting a 5 kilometre buffer to a single residence under the cattle feedlot guidelines I suggest should have said “the buffer is up to 5km rather than a 5km buffer zone to a single residence in all cases depending on the size of the cattle feedlot.”

The Thompson’s proposal is not a large operation in the context of “cattle feedlot guidelines” as the guidelines provide for cattle feedlots of up to 50,000 head of cattle. Small feedlots are described as 50 to 1000 head and an Environmental Impact Report is required which is less onerous than an Environmental Impact Statement as required for feedlots over 1,000 head.

N.B. - A comprehensive Environmental Impact Statement was submitted for Thompson’s proposal by Terra Consulting.

Council’s Officers have used the draft NSW Guidelines for Dairy Effluent Resource Management (which was released in Cowra on the 31st May 2000). It is a document developed by the NSW Dairy Farmers Association in collaboration with NSW Agriculture, NSW Environmental Planning Authority and NSW Dairy Corporation. These guidelines provide best management practice for handling dairy effluent from herds under 800 milkers and are “the current guidelines used in the Industry”. – T. Dowman 1/11/2001.

These guidelines provide buffer distances from effluent ponds & manure heaps and Thompson’s Dairy more than meets these buffer zones in relation to distance from neighbouring property boundaries and residences.

The guidelines also refer to feedpads and rotation of dairy stock through grazing paddocks which is the same proposal as the Thompson’s Dairy and again it is recognised that such proposal is not a cattle feedlot.

The Chief Judge’s determination in the Land & Environment Court Proceedings has left the redetermination to Council and 1 propose that Council before redetermining the application resolve that such Dairy is not a cattle feedlot in the first instance.

The Environmental Planning Committee considered at length the Environmental Planning Managers Report to the Environmental Planning Committee, the submissions made by Noble’s, Ellsmore’s & Colin Thompson and the Committee all recalled that in the previous dealings of the Dairy that the Environmental Planning Committee was definitely of the opinion that the application was not for a feedlot but for an intensive dairy only.

RECOMMENDATION

That the Council resolve that Development Application 218/00 for CR & EM Thompson on Lots 85, 101, 82 DP 752946 & Lots 1-8 DP 19352, Forbes Road, Cowra is not a cattle feedlot and the provisions of SEPP 30 do not apply.

The Committee then further considered the Environmental Planning Managers Report in regard to the approval and conditions of consent and felt that all of the original conditions of consent should be attached to any new approval with a notation that it had been complied with or altered for some reason and further that the Protection of the Environment Operations Act conditions be provided to enforce any problems in the future.

The Environmental Planning Committee in its deliberations of the proposal considered all previous advice from State Agencies and submissions. The Environmental Planning Committee were of the opinion the proposal should be approved by Council.

Both NSW Agriculture and the Department of Land and Water Conservation have recently inspected the Dairy and copies of their assessment are attached.

FURTHER RECOMMENDATION
That Development Application 218/00 for a Dairy, Feed Pad, Machinery Shed, Hay Shed and Dwelling on Lots 85, 101, 82 DP 752946 & Lots 1-8 DP 19352 applied for by CR & EM Thompson be approved subject to:

As the development has been operating since June 2001 and the majority of the original conditions have now been met by the applicant (see attached original conditions of consent and notations attached) such that if Council determines the application to be not a cattle feedlot the following conditions of approval be provided.

It is further recommended that Development Application 218/00 for a Dairy, Feed Pad, Machinery Shed, Hay Shed & Dwelling be approved subject to:

25 The Report recommended the imposition of 68 specified conditions, all but one of which had been imposed on the grant of the original development consent. The additional condition imposed on the redetermined grant of development consent is condition 68 which provides as follows:

68. In the event of any activity carried out on the premises resulting in Council, as the appropriate authority under the provisions of Section 96 of the Protection of the Environment Operations Act 1997, reasonably suspecting that such activity has been or is being carried out in an environmentally unsatisfactory manner Council will take appropriate action under the provisions of the Protection of the Environment Operations Act to ensure such activity is rectified.

26 At its meeting held on 12 November 2001 the Council wholly adopted the recommendations contained in the Report of its Environmental Planning Committee. In addition to that Report, the following documents (totalling over 100 pages) were submitted to the Council at that meeting:

· Letter NSW Agriculture to Cowra Shire Council dated 5 November 2001

· Letter Department of Land and Water Conservation to Cowra Shire Council dated 31 October 2001

· Public Notice – Redetermination of Development Proposal 218/00

· Letter NSW Agriculture to Cowra Shire Council dated 9 January 2001

· Letter Cowra Shire Council to Pike Pike & Fenwick 4 January 2001

· Letter Cowra Shire Council to Pike Pike & Fenwick 7 December 2000

· Consultant Town Planner’s late Report (committee of the whole) to Cowra Shire Council for its meeting 9 October 2000 (dated 9 October 2000) – prepared by W. D. McDonald

· Consultant Planner’s supplementary Report to Cowra Shire Council for the meeting to be held on Monday, 28 August 2000, dated 23 August 2000 – prepared by W. D. McDonald

· Copy Judgment Noble and Anor. -v- Cowra Shire Council [2001] NSW LEC 149

· Technical Notes Draft Policy – Assessment and Management of Odour from Stationary Sources in NSW January 2001 (page 34)

· NSW Guidelines for Dairy Effluent Resource Management (page 2)

· Extract from the Feedlot Manual (foreword page vii and page 3.15)

· Copy Affidavit Alan Roy Lindsay sworn 29 January 2001

· Copy Affidavit of William Inglis sworn 23 February 2001

· Copy Affidavit of Ian Lean sworn 22 February 2001

· Affidavit of Anthony John Dymock sworn 19 February 2001

· Copy Draft Affidavit of Richard Victor Ivey (unsworn)

· Copy letter Silvermere Holsteins (Colin and Erina Thompson) to Cowra Shire Council 30 October 2001 enclosing Report of Southern Cross Laboratories October 2001 (pages 2, 3 and 4)

· Letter John and Anne Ellsmore to Cowra Shire Council dated 31 October 2001

· Letter M. & P. Noble to Cowra Shire Council dated 31 October 2001 enclosing Report of Waratah Scientific Services dated 26 October 2001 and record of odour events prepared by Noble

· Letter C. H. Noble to Cowra Shire Council dated 29 October 2001

· Cowra Shire Council log of complaints to Environmental Planning Manager and action taken – 18 April 2001 to 30 October 2001

27 It is to be noted that the documents submitted with the Report of the Environmental Planning Committee to the Council fall into three classes:

28 Included in the last-mentioned class of documents were the detailed written objections to Council received in response to its re-notification of the Thompson development application from the present Applicants, Mr Noble (senior) and Mr and Mrs Ellsmore and the Thompson’s response to the Council’s letter dated 22 October 2001 calling for additional information particularly in respect of “potential odour problems and causation”. Also included was the response of the Department of Agriculture.

29 However the documentary materials did not include a response from the Environment Protection Authority, it being received immediately after the Council had redetermined the Thompson development application on 12 November 2001.

30 It will be necessary to examine some of the contents of these documentary materials when I come to determine the several bases of invalidity of the development consent alleged by the Applicants in the proceedings.

31 The documentary evidence does not record any discussion or debate by the Councillors (11 in number) who participated in Council’s decision to redetermine the Thompson development application by granting development consent subject to conditions. However there is evidence in the affidavit of Mrs Noble (one of the Applicants) that debate among the Councillors occurred at the Council meeting and paragraph 6 of her affidavit sworn 16 September 2002 states:

Cowra Shire Council reconsidered the development application. On Monday, 12 November 2001, I attended the meeting of Cowra Shire Council when the development application for the dairy was determined. Debate occurred, during the course of which statements were made by various Councillors. I recall Councillors saying in words to the effect of the following:

A. Councillor Ian Brown: “If Council does not again approve the dairy development, Council could become involved in paying costs that could bankrupt this Council if we are found negligent.”

“It is the duty of the Councillors present not to put the citizens of Cowra Shire in a position where they would be liable for damages of up to five million dollars”.

“Unfortunately there are odours and other problems. It is a tremendously emotional decision not only for Cowra but also for the people involved in the dairy and people living nearby. The fact is the dairy is there. We are not building a nuclear power plant, we are building a dairy.”

B. Mayor Bruce Miller: “Neighbouring families have put millions of dollars of investment into their properties, but I have no option but to very reluctantly support the application as it is in the best financial interests of our rate-payers. This matter has already cost our ratepayers about $70,000.00”.

C. Councillor Garry Starr: “I was against approving the application originally and nothing has changed. The development is far too close to the Lachlan River and I refuse to be pressured by the prospect of legal action and cannot support the development at any price. There are not many benefits I can see.”

At the conclusion of the debate the Council approved the development application.

32 The several grounds for the Applicant’s allegations of invalidity of the development consent, as stated in paragraph 14 of the Amended Points of Claim are as follows:

1. The Council failed to determine the development application according to law.

2. The Council took irrelevant considerations into account.

3. The Council failed to take into account relevant considerations.

4. The Council exercised the power under s79C of the EP&A Act for a purpose other than the purpose for which the power was conferred.

5. The Council exercised the power under s79C of the EP&A Act in a way that was so unreasonable that no reasonable determining authority could have so exercised the power.

33 I shall separately consider each of the allegations.

34 Although this ground was not elaborated upon in the Applicants’ presentation of their case it was not abandoned, and accordingly it needs to be determined.

35 The only particular ultimately advanced in support of this ground was that the development application was not considered afresh after the original development consent had been set aside by this Court. There is in my opinion, nothing in the documentary evidence which displaces the presumption of regularity which applies in respect of the Council’s redetermination of the Thompson Development application to the effect that in redetermining the development application, the Council considered ‘afresh’, the development application, and hence that determination, was made ‘according to law’. (This conclusion necessarily reserves the questions raised in the other particular allegations of invalidity and is intended only to address the question of due process as a matter of generality).

36 The application to the Council’s redetermination of the presumption of regularity is supported by the recent decision of the Court of Appeal in Hill v Woollahra Municipal Council (2003) NSWCA 106, where Hodgson JA (with whom the other members of the Court agreed) said at paragraphs 50 to 52:

50. The cases of

and

are authority for the proposition that, where a body such as a local council is required by a statute to address a question posed by that statute or by an instrument referred to by the statute, it must address that very question. If it does not do so, it will be in breach of the statute, even though it may have adverted to the topic of the question.

51 However, when a court comes to consider whether or not such a breach has occurred, the court will have regard to the presumption of regularity. This presumption was relevantly stated as follows by McHugh JA in

(1987) 9 NSWLR 154 at 164 at follows:

Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.

See also

[1946] AC 459 at 475;

[1971] 2 NSWLR 36 at 46-7.

52 I do not accept Mr. Walker's submission that this does no more than identify where the onus of proof lies. The presumption is a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs: see

(1906) 4 CLR 835 at 849-51 per Griffiths CJ. In deciding whether the presumption of regularity is rebutted, this inference from the ordinary course of human affairs carries some weight, which may vary according to the proved circumstances.

37 Moreover the documentary evidence itself independently of the presumption of regularity, supports the inference that the Council redetermined the development application ‘afresh’ and ‘according to law’ (notably s79Cof the EP&A Act). I am here principally referring to the content of the Report of the Council’s Environmental Planning Committee which was submitted to the Council meeting held on 12 November 2001. I have earlier set forth the full text of that Report and it speaks for itself on this issue. However I did not include in that quotation the notes of the Committee’s Meeting held on 5 November 2001 which meeting had been immediately preceded by Council’s inspection of the Thompson’s Dairy. The notes of the Committee’s meeting state the following:

At this stage Mr and Mrs Noble and Mr and Mrs Ellsmore attended the meeting and the Chairman welcomed the public to the meeting and asked if they wished to address the Committee on any matter.

Patricia Noble addressed the Committee first and was concerned with the late notice she was given of the late notice of the Environmental Planning Committee Meeting and asked the Environmental Planning Committee Meeting to look at the redetermination of the Thompson’s Dairy not as an existing development, but as a new development application. Patricia Noble was also concerned with the continuing odour problems.

Mr J. Ellsmore addressed the Environmental Planning Committee Meeting and was also concerned with odour from the Thompson’s Dairy.

Mick Noble then addressed the Committee and said that Russell Turner had cost the Council a lot of money with this development application by using political pressure and Ian Armstrong had urged the Department of Agriculture to sign off on the development application. Mr Noble claimed that the Environment Protection Authority and Department of Land and Water Conservation had advised Council that it was a feed lot.

Mayor Cr. B Miller asked the Nobles why an injunction was not sought in the Land and Environment Court.

The Nobles replied it would have been too costly for them to proceed with an injunction.

Mrs Ellsmore then addressed the Environmental Planning Committee Meeting and advised that the cows are being housed longer than what is claimed by the Thompsons.

Mick Noble addressed the Environmental Planning Committee Meeting again and claimed that Professor Lean’s advice to Council also indicated that it was a feedlot.

The Chairman then thanked the public for their attendance at the meeting and the Nobles and the Ellsmores left the meeting at 6.06pm.

38 Thus it appears that the Committee was briefly addressed by the two neighbouring property owners (the Applicants and the Ellsmores) who had lodged written objections to the Thompson development application.

39 As I have earlier noted the Committee’s Report essentially adopted the whole of the content of the Report dated 2 November 2001 by the Council’s Environmental Planning Manager which was submitted to the Committee’s Meeting held on 5 November 2001. However the Committee’s Report contains some additional matter that is not contained in the Report of the Council’s Environmental Planning Manager. This additional matter includes the following passages:

The Committee then further considered the Environmental Planning Manager’s Report in regards to the approval and conditions of consent and felt that all the original conditions of consent should be attached to any new approval with a notation that it had been complied with or altered for some reason and further that the Protection of the Environment Operations Act conditions be provided to enforce any problems in the future.

The Environmental Planning Committee in its deliberations considered all previous advice from State Agencies and submissions. The Environmental Planning Committee were of the opinion the proposal should be approved by Council.

Both NSW Agriculture and the Department of Land and Water Conservation have recently inspected the Dairy and copies of their assessment are attached.

40 The other additional material contained in the Report of the Council’s Environment Planning Committee is the adoption of all but one of the 67 conditions imposed on the original grant of the development consent together with the additional Condition 68 that I have earlier recited concerning possible remediation action being taken pursuant to the Protection of the Environment Operations Act 1997 (in comparison with the recommendation contained in the Report of the Council’s Environmental Planning Manager that some 35 of those original conditions be imposed on the regrant of the development consent).

41 Although a Report of the Environmental Planning Committee appears to concentrate attention on the question of whether SEPP 30 applied to the determination of the Thompson development application this perhaps is not a surprising feature of the Report in view of the fact that it was the absence of such consideration from the Council’s original determination of the development application that had been the sole basis for Pearlman J holding that consent to be invalid.

42 Once the Council had determined that the proposed development was not a “cattle lot” within the meaning of SEPP 30 and hence that Policy did not apply, it is again an unsurprising feature of the Committee’s Report that it did not in terms revisit the evaluation of the development application pursuant to s79C of the EP&A Act. Rather it relied on the evaluation that had informed the Council’s decision to grant the original development consent, together with the evaluation of the outcomes of (i) the process of readvertising the Thompson’s development application and (ii) the known experience of the impacts of the full operation of the Thompson dairy since June 2001. The Council’s reliance in its redetermination of the Thompson development application, upon its earlier decision to grant the original development consent in circumstances where that earlier decision had been successfully impugned upon the sole ground of the Council’s failure to consider whether SEPP 30 applied, and where the Council in its redetermination came to the decision that SEPP 30 did not apply, in my judgment does not suggest any failure by the Council to redetermine the development application “according to law” (ie. s79C of the EP&A Act). In this respect it is important to appreciate that that redetermination involved more than simply reviving the Council’s earlier decision to grant the original development consent. Most importantly the redetermination involved the Council’s consideration of the fact that the Thompson dairy had been operating since June 2001, including the experience of the Council having received multitudinous complaints by the present Applicants, particularly in respect of unpleasant odours apparently emanating from the Thompson dairy. This additional element of the Council’s redetermination of the development application indicates that the Council’s consideration of the development application was alive to the obvious fact that the development the subject of the undetermined development application was already in existence (having been brought into existence in reliance upon the original development consent at a time before Pearlman J declared that consent to be invalid).

43 The existence of the dairy necessarily meant that the Council’s redetermination of the development application could only competently address the prospective use of the already existing development since it was not within the competence of a development consent to grant ex post facto authorisation to the carrying out of development which already existed: see Ireland v Cessnock City Council (1999) 110 LGERA 311. In particular the regrant could not sanction the erection of the buildings that already existed.

44 It is not entirely apparent that the Council in redetermining the development application fully appreciated this inevitable legal consequence of the existence of the development (or at least the dairy components thereof). Indeed the imposition by the regrant of the same 67 conditions that had been imposed upon the grant of the original development consent (which of course was prospective in its operation) suggests that the Council proceeded in its re-determination upon the basis that it was considering an entirely prospective development (rather than the use of an existing development). However the Council may well have been excused in so proceeding because of the passage in the Chief Judge’s judgment that I have earlier recited to the effect that the Court’s orders left the development application “on foot for the Council to assess and determine in accordance with law”, and because of the representations by the present Applicants that Council must redetermine the application as if it were a proposed development rather than an existing development. Regrettably neither of these proffered guidelines precisely fitted the situation created by the already existence of the development, which although lawful when carried out, subsequently became unlawful when the original development consent was declared invalid in circumstances where the legal effect of that declaration was that the original development consent was invalid ab initio.

45 For all the foregoing reasons I hold that the Applicants have not established their allegation that Council’s redetermination of the development application was not according to law.

46 According to the Points of Claim the particular supporting this allegation is “the potential for Court proceedings for damages”.

47 In his final address Counsel for the Applicants more adequately explained the basis for this allegation, by reference to what was said by some of the Councillors at the Council Meeting held on 12 November 2001, as deposed to by Mrs Noble in her affidavit, namely the concern that if the Council did not “again approve the dairy” it might be sued for negligence in respect of its decision granting the original development consent.

48 It is not disputed that if the Council’s decision to regrant the development consent had been based upon, or materially influenced by, that consideration then the Council’s decision would be legally flawed because such a consideration would be an irrelevant consideration: cf Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc (1996) 98 LGERA 335 at 351-352 where the majority of the Court of Appeal (Priestley JA with whom Beazley JA agreed) held that a decision by a council in relation to its statutory function under s68 of the EP&A Act of referring a draft local environmental plan to the Department of Planning had been invalidated by taking into account an “impermissible consideration” namely the possible commercial implications to the Council of its decision.

49 The Applicants submit that in the absence of evidence from Councillors who attended the Council’s Meeting held on 12 November 2001 and voted in favour of the decision to regrant the development consent the Court would accept the evidence of Mrs Noble as to what she heard of the Councillors who spoke on the matter and that on the basis of this evidence the Court would and should infer that the Council’s decision to regrant the development consent had been impermissibly and improperly influenced by consideration of the Council’s possible legal liability for negligence in granting the original development consent which was later declared invalid by Pearlman J.

50 Evidence of what was said by Councillors during the debate on the matter at the Council’s meeting held on 12 November 2001 is clearly relevant to the question whether the Council in deciding to regrant the development consent took into account an irrelevant consideration: see Emeritus Pty Ltd v South Sydney City Council (unreported, 1 February 1990 per Cripps CJ) where a number of earlier cases are cited including Tooth & Co Ltd v Lane Cove Municipal Council (1967) 87 WN(NSW) 361, where Street J cited the Privy Council decision in Municipal Council of Sydney v Campbell (1925) AC 338 as demonstrating that “some probative weight attaches to discussions antecedent to a corporate decision”.

51 I accept Mrs Noble’s evidence of what she heard of the three Councillors who participated in the Council debate. It is clear that each of these Councillors was referring to the possibility of the Council incurring legal liability for negligence in granting the original development consent. However accepting this evidence the question is whether it (either by itself or in combination with any other relevant evidence) supports a finding by inference that the Council’s collegiate decision to regrant the development consent was affected or influenced by this irrelevant consideration. The Applicants point to no other evidence but place great reliance upon the fact that the Respondent has not called any witness to say what was said at the Council Meeting in respect of the Council’s consideration of the matter culminating in its decision to regrant the development consent (with only 1 Councillor voting against it).

52 In my judgment the Applicants’ reliance upon the absence of relevant testimony being adduced by any of the Councillors who participated in the Council’s decision to regrant the development consent means, to adopt the words of Kitto J in Jones v Dunkel (1959) 101 CLR 298 at 306:

that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference had not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence”.

53 However can the inference by drawn from the remarks made by three Councillors during the Council debate that the decision made by the collegiate Council (with one dissenting Councillor) was materially influenced by the irrelevant consideration that had been raised in debate by three Councillors? I think not because to conclude otherwise would involve an exercise in speculation rather than a finding by legitimate inference.

54 Whereas the inference is available, and I would draw it, that the three Councillors who raised the irrelevant matter in debate probably allowed that irrelevant matter to materially influence their decision to join in the majority collegiate decision to regrant the development consent (in this respect it is to be noted that despite what he said in debate Councillor Starr was not the sole dissenting Councillor) this finding necessarily falls short of a finding that the collegiate decision was materially influenced by the irrelevant consideration.

55 In so concluding I do not think that the facts of the present case attract the principle of a corporate or collegiate decision being invalidated by virtue of the fraudulent or biased decision by only one or a minority of members of that corporate or collegiate body, as discussed in the judgment of Gummow J on I W v City of Perth (1997) 191 CLR 1 at 46 to 51: cf per Toohey J at 31 to 33 and per Kirby J at 61 to 66.

56 Moreover, as I have earlier alluded to, the inference is available from the documentary materials that in regranting the development consent the Council was substantially relying upon its original decision to grant the development consent in the knowledge that it had safely negotiated the only basis upon which that original development consent had been set aside by Pearlman J once it had determined (as the Chief Judge had held that it was upon to the Council to so determine) that SEPP 30 did not apply to the development application.

57 For all the foregoing reasons I hold that the Applicants have not proven their allegation that in regranting the development consent the Council took into account an irrelevant consideration (namely its potential legal liability in negligence for its original decision granting the development consent).

(iii) Alleged failure to take into account relevant considerations.

58 Here the Applicants allege that the Council failed to take into consideration two separate relevant considerations – (i) the requirements of cl 9(3) of Cowra Local Environmental Plan 1990 (the LEP) and (ii) the environmental impact of the development in terms of its impact on air quality (odour). I shall separately consider those allegations.

59 Clause 9(3) of the LEP is a variant of a conventional provision contained in local environmental plans and provides as follows:

(3) In granting consent to the carrying out of development on land to which this plan applies, the Council shall have regard to whether the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

60 It is common ground that the relevant “objectives of the zone” are set out in the following extract from the Table to cl 9(1) applicable to Zone No.1(a) – Rural Zone

Objectives of zone

The objectives of this zone are:

(a) to encourage and preserve all forms of agriculture and to preserve prime agricultural lands; and

(b) to promote the use of agricultural land within its capability; and

(c) to provide opportunities for people to live in rural areas; and

(d) to establish a preference for non-agricultural development (particularly dwelling-houses) being located on land other than prime agricultural land, unless there are no alternative, practical and cost effective sites available; and

(e) to take into consideration the potential recovery of known mineral and extractive resources in the siting of buildings; and

(f) to provide for other types of development appropriate in rural zones, particularly tourist oriented and employment generating development within the capability of the land to support the development; and

(g) to permit development for small rural allotments of variable size to avoid waste and neglect of productive rural land; and

(h) to ensure that noxious forms of development are precluded or isolated in the interests of rural residential lifestyle; and

(i) to provide a choice of housing types and to support existing towns and villages.

61 The Applicants submit that the Court should infer that the Council did not consider cl 9(3) of the LEP because of the absence of any evidence that it did and that if this finding by inference be made, the Court should further hold that this failure of consideration invalidated the Council’s decision to regrant the development consent.

62 In my judgment both of these submissions should be rejected.

63 As to the first submission that the inference should be drawn by virtue of the absence of any evidence that the Council did give consideration to cl 9(3) of the LEP, there is in fact some evidence (acknowledged by the Applicants’ written submission) that consideration was given to the question of the consistency of the proposed development with the relevant zone objectives.

64 This evidence is found in the following extract from the Supplementary Report of the Council’s Consultant Town Planner, Mr Mc Donald which was originally submitted to the Council’s Meeting held on 28 August 2000 at which the Council granted the original development consent:

In assessing the proposal against the relative statutory requirements comprised within Cowra Local Environmental Plan 1990 and Section 79 C of the Environmental Planning and Assessment Act 1979 the following observations are provided.

Cowra Local Environmental Plan 1990

The LEP provides specific objectives relative to zones. In reviewing the proposal against these objectives for Zone No. 1(a) Rural, it is noted that the development has the potential to contravene objectives (b), (c), (f) & (h).

“(b) to promote the use of agricultural land within its capability.

(c) to provide opportunities for people to live in rural areas.

(f) to provide for other types of development appropriate in rural zones, particularly tourist oriented and employment generating development within the capability of the land to support the development.

(h) to ensure that noxious forms of development are precluded or isolated in the interests of rural residential lifestyle.”

In respect of permissible uses to which land zoned 1(a) Rural may be put, the proposal to establish feed pad dairy requires (by LEP definition of “intensive agriculture”) that such activity may only be carried out with the consent of Council, as the development exhibits characteristics relative to a feed lot establishment and is an intensive land use.

65 I have earlier recited Mr McDonald’s ultimate recommendation that development consent be refused for the reasons he advanced elsewhere in his Report. However as earlier noted the Council adopted Mr McDonald’s alternative recommendation (”should Council be inclined to approve the development…”) to impose specified conditions on the grant of the original development consent.

66 This Supplementary Report of Mr McDonald was included in the documentary materials that were submitted to the Council in conjunction with the Report of the Council’s Environmental Planning Committee which resulted in the Council’s decision on 12 November 2001 to regrant the development consent subject to conditions.

67 In the light of this evidence it is reasonable to infer that the Council in regranting the development consent did consider cl 9(3) of the LEP, even though it is not clear whether its consideration was to the effect that the development was or was not consistent with the relevant zone objectives.

68 However the doubt that exists as to which opinion the Council held as to the consistency of the development with the zone objectives does not mean or infer that the Council did not consider cl 9(3) in regranting the development consent. This is because cl 9(3) properly construed dos not require a finding or an opinion that the development is consistent with the zone objectives.

69 In this respect cl 9(3) is to be distinguished from provisions of local environmental plans which have been held in the decided cases to operate as conditions precedent to the grant of development consent. Many of those cases are referred to in the judgment of the Court of Appeal in Manly Council v Hortis (2001) 113 LGERA 321. That case involved a provision that did forbid the grant of development consent “unless the Council is of the opinion that the carrying out of the development…is consistent with the objectives of the zone…”. That provision operated generally in respect of development in all zones. In addition that case also involved a special prohibitory provision which only applied to land in a Foreshore Scenic Protection Area. In Hortis there was no direct evidence that the council considered either the general or the special prohibitory provisions. In particular neither provision was referred to in the minutes of the Council’s relevant meetings or the material which was before the council at the meetings and no witness was called to say that either provision was considered: see at 327. The Court of Appeal’s judgment was premised on its holding at 330 that both the general and special provisions “subjected the council’s power to issue the approval to cumulative preconditions” and it was because of this that the Court of Appeal held that it was unnecessary to consider whether this court had erred in inferring that the council had not considered the general pre-condition unless it was first established that the council had erred in inferring that the council had not considered the special pre-condition: see at 330.

70 In the event the appeal was dismissed because the Court of Appeal rejected the challenge to this Court’s inference that the council had not considered the special pre-condition: see at 334.

71 Nonetheless, it may be deduced from the reasons of the Court of Appeal that it discerned a significant difference between the general pre-condition and the special pre-condition – see especially at 334. The reasons for this differentiation are expressed at 329 and 330. In respect of the general pre-condition the Court noted that the relevant pre-conditions considered in the Court of Appeal’s earlier decisions in Currey v Sutherland Shire Council (1998) 100 LGERA 365 and Franklins Ltd v Penrith City Council (1999) NSWCA 134 were significantly different” from the general pre-condition in Hortis. In respect of that general pre-condition the Court of Appeal said at 329:

Clause 10 of the LEP, including clause 10(3), is a provision of general application to all land to which the LEP applies, irrespective of its zoning. The objectives specified for the various zones, including those specified for the Residential 2 zone, are general provisions imposing general standards for appropriate development in the respective zones. The objectives for each zone provide the essential context, together with any applicable DCP, for the Council's consideration of every development application relating to land in that zone. More particularly, the objectives of the Residential 2 zone and the DCP provide the essential context for the Council's consideration of every development application relating to land in the Residential 2 zone.

72 In respect of an identical general pre-condition as that considered in Hortis Pearlman J had earlier held in Schroders Australia Property Management Ltd v Shoalhaven City Council (1999) 110 LGERA 130 that it was relevant in determining an allegation that that pre-condition had not been taken into consideration to take cognisance of “the councillors’ actual or constructive knowledge… and that one matter supporting an inference that the councillors were aware of the ‘consistency issue’ was the fact that the general pre-condition ‘was a conventional clause…contained within the planning instrument operating since 1985…applying to all development in all zones under the LEP. (T)he inference must be drawn that cl 9(3) (ie the general pre-condition) had been applied by the council regularly and frequently”. (The Chief Judge’s decision was affirmed by the Court of Appeal in Schroders Australia Property Management Ltd v Shoalhaven City Council (2001) NSWCA 74).

73 In my judgment cl 9(3) of the LEP is clearly not to be construed as a pre-condition to the power of the Council to grant development consent, and having regard to the documentary evidence that I have referred to there is no foundation in that evidence for inferring that the Council failed to consider cl 9(3) in regranting the development consent.

74 Indeed, even if there had been no reference in the relevant documentary materials to the existence and requirements of cl 9(3) of the LEP the inference that the Council did take it into account would have been available simply based upon the general application of the provision in the LEP for more than the past decade and the consequential inference that in the course of determining development applications throughout that period the Council would have routinely been aware of, and taken into account, the requirements of cl 9(3): see Schroders and Hortis.

75 Moreover again, even if there had been no reference in the documentary materials to cl 9(3) of the LEP the Applicants’ allegation would in my judgment have been entirely answered and disposed of by the application of the presumption of regularity: see Hill v Woollahra Municipal Council.

76 In so concluding I note that in Franklins Stein JA (with whom the other members of the Court agreed) held that the presumption of regularity “had no part to play” in the Court’s consideration whether an essential pre-condition to the exercise of the power to grant development consent had been fulfilled.

77 In Hill the relevant provision of the local environmental plan which the council was required to have regard to ‘when considering an application for consent’ did not operate as a condition precedent. Likewise in the present case I have held that cl 9(3) of the LEP does not operate as a condition precedent. Accordingly the decision in Franklins does not preclude the application in the present case of the presumption of regularity in the same manner that it was held to apply in Hill and I would so apply it.

78 Finally, and for completeness, I would say that had I found that the Council had not relevantly taken into consideration cl 9(3) of the LEP I would have held that that failure would not have justified setting aside the impugned decision because of the limited nature of the obligation imposed by cl 9(3) in the context of the legal matrix that the only purposes of prohibited development in Zone No.1(a) stipulated by cl 9(2) of the LEP are “motor showrooms” and “residential flat buildings” which are irrelevant purposes in the present case: cf Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J.

79 For all the foregoing reasons the Applicants have failed to prove their allegation that the Council failed to take into consideration cl 9(3) of the LEP.

80 The second relevant consideration which the Applicants allege that the Council failed to consider is the environmental impact of the development in terms of the emission of odours from the dairy operation and their impact on neighbouring properties, and especially the Applicants’ property.

81 It is not in dispute that the environmental impact of the development was a relevant consideration in the present case in terms of s79C(1)(b) of the EP&A Act and in particular the emission of odours from the dairy operations and their impact on neighbouring properties owned respectively by the Applicants and the Ellsmores was known by the Council to be of considerable relevance and importance.

82 Although it is indisputably the case that the documentary materials indicate that the problems of odours emanating from the dairy operations were acknowledged and encountered, it is the Applicants’ case that the Council’s decision to regrant the development consent subject to conditions betrays a failure by the Council to give “proper, genuine and realistic consideration upon the merits” to the environmental impact of the development in terms of odour problems generated by the development. In so submitting the Applicants place considerable reliance upon the exposition of the nature and scope of the duty to take relevant matters into consideration expressed in the reasons for decision of the Court of Appeal in Weal v Bathurst City Council (2000) 111 LGERA 181.

83 In advancing this case, the Applicants call particular attention to the following conduct of the Council as revealed in the documentary evidence, the combined effect of which, it is submitted, provide the grounds for the Court drawing the ultimate inference that the Council in regranting the development consent failed to take into consideration this particular aspect of the adverse environmental impact of the development:-

(a) it did not seek any independent air quality/odour assessment – indeed it abandoned its own proposal that there be an independent assessment;

(b) it did not evaluate the odour impact – there being no analysis of the problem in the reports that were submitted to the Council and to the Council’s Environmental Planning Committee;

(c) it regranted the development consent without awaiting any submissions it had sought from the Environment Protection Authority; and

Protection of the Environment Operations Act

84 It is apparent from the documentary materials, that after the original development consent had been declared invalid by Pearlman J the Council was very much alive to the existence of virtually constant complaints from the Applicants of unpleasant odours impacting the amenity of their house and property from the Thompson dairy operation. Not only had the Council received multiple telephone complaints from the Applicants, but it was aware from correspondence received from the Applicants that they were asserting the experience of adverse odour impacts on almost a daily basis.

85 Additionally the Council was aware of such complaints being voiced by Mr Noble (one of the Applicants) in his capacity as a member of the Monitoring Committee that had been established pursuant to a condition of the original development consent and which continued to meet after the original development consent had been declared invalid. Moreover the Council was aware that the Applicants had complained to the Ombudsman about the Thompson dairy. It was with this comprehensive background knowledge that the Council’s General Manager sought the advice of the Council’s Environmental Health and Building Surveyor on possible recourse to action under the Protection of the Environment Operations Act 1997 against the Thompson dairy operation generating adverse odour impacts upon neighbouring properties. This advice was supplemented by the Council obtaining legal advice on the matter.

86 It is against that factual background of an awareness of the odour problem that the Council decided at its Meeting held on 8 October 2001 to re-determine the Thompson development application and to direct its Environmental Manager “to pursue the option of engagement of a suitably qualified disinterested person to monitor the operations of the dairy for a period of 2 weeks”.

87 As a part of that redetermination process the Council’s Consultant Town Planner wrote to the Thompsons on 22 October 2001 advising inter alia as follows:

To date issues of concern relative to odour, noise and dust have become evident from your current activities, and these need to be addressed prior to Council making formal redetermination. It is therefore requested that you provide Council with more detailed information relative particularly to potential odour problems and causation. The information supplied should be in accordance with NSW Environment Protection Authority’s draft policy on “Assessment and Management of Odour from Stationary Sources in NSW” to establish whether potential odour may cause

harm

and

or unreasonable interference

with an individual’s comfort, considering the likely frequency and duration of any odour impact, and should provide management options for mitigation of any such event.

88 The Thompsons replied by letter dated 30 October 2001. Their letter stated the following concerning odours:

We commenced operation of our dairy on 14 June 2001. Since then we have been made aware of some complaints relating to the following:

Odour

As we have discussed, odour at this time was caused by the effluent separator not operating correctly and the anaerobic pond not operating satisfactorily due to cold weather and insufficient time for bacteria build up. These problems have been addressed by:

* An agitation pump being installed in the collection sump to ensure separator operates satisfactorily at all times.

* Block walls being constructed around the solids catchment area to contain any run off and prevent spreading of manure around the area.

* Concrete drain being constructed from the catchment area to divert any run off back to the anaerobic pond.

* The warmer weather and bacterial build up has increased the biological activity in the anaerobic pond.

These measures have significantly reduced the amount of odour from the ponds, however, as anaerobic ponds produce methane gas, it is impossible to eliminate all odour.

Recently, Mr Robert Unsworth, from Southern Cross Laboratories visited the dairy and inspected the effluent system. He has taken samples from the anaerobic pond for testing and written a report and made recommendations that will help reduce odour further. This report is enclosed.

The product ACTIZYME and STINK STOPPER have been ordered from Southern Cross Laboratories.

89 The letter included a three page report prepared by Southern Cross Laboratories which addressed the odour problems caused by the effluent system. The letter concluded by inviting the Council’s Environmental Planning Committee to inspect the dairy prior to its meeting to be held on 5 November 2001 “to form their own opinions as to the effect of the operation of the dairy…on the environment and the neighbours”.

90 In addition to the response from the Thompsons the Council received in response to readvertising the proposal, written objections from the neighbouring property owners, the Ellsmores and the Applicants. Both written objections raised the problem of adverse odours generated by the dairy operations. The Applicants’ objections in respect of odours were quite detailed and noted that their property was situate 30 metres from the dairy and feed pad complex, with their home being “situate 450 metres distant at a level approximately 10 metres below the level of the dairy in a prevailing wind corridor”.

91 It is also relevant to note the response received from NSW Agriculture to the Council’s request that an Agricultural Environmental officer visit the Thompson dairy to comment on four specific features of the dairy operation including the issue of:

any perceived problems NSW Agriculture may see with odour issues from:

* silage bunkers;

* feeding of silage;

* effluent treatment ponds.

92 In respect of the odour issues the NSW Agriculture’s letter stated as follows:

Question 4. Odour issues

NSW Agriculture is not the authority on odour generation and its control.

Feeding of silage to dairy cattle is almost a universal practice. By its very nature silage has an odour. It is not unpleasant and is a normal “rural smell”. Opening up silage bunkers and disturbing the pile does generate some odour.

Similarly the mixing and feeding silage generates odour. In my opinion the odour generation on this dairy is consistent with any other similar enterprise. The feed barn is wide open which would assist in dispersing any odour generated.

The separated “solids” which are being stock piled for spreading have little odour. The anaerobic pond similarly will if not managed effectively, generate odour.

During my inspection there was a faint trace of odour from the anaerobic pond with 20 metres. That is not unusual for this type of effluent structure.

… …

The odour in my opinion is normal for a silage, effluent pond system.

93 On 17 October 2001 the Council’s Environmental Planning Manager received a facsimile from Envirowest Consulting proposing a methodology for assessing the odour from the dairy. The nature of the assessment was described as follows:

The assessment will be a subjective evaluation and determine the intensity and persistence of odours over a given period. The assessment can be used to indicate if the odour is ‘offensive’ and is dependent on certain weather conditions or time of day.

94 The proposal was for an assessment in the field over a 7 day monitored period. The methodology was outlined and the cost of $7,710 was quoted for 7 days monitoring with costs for shorter or longer monitoring times being based on pro rata rates.

95 The foregoing summarises the documentary evidence relevant to the Council’s consideration of the question of the environmental impact (especially its odour impact) of the dairy operation. I have not included in that summary reference to the materials relevant to the Council’s original decision to grant development consent because unlike the task confronting the Council upon the occasion of its original decision where the planning evaluation required by s79C of the EP&A Act was made upon the basis of an entirely future development the task confronting the Council upon the occasion of the redetermination of the Thompson development application was quite different inasmuch as the dairy development was already in existence and its continuous operation for the preceding 5 months had been known to create odour problems for neighbouring properties.

96 It is this vital feature of the case (which I suspect, for reasons I have earlier given was not truly or fully appreciated by the Council or its staff) which imposed the need for a different approach from that conventionally required in the case of determining a development application for the carrying out of a proposed development. The latter approach was aptly described in the following passage at 186 in the judgment of Mason P in Weal:

The need to take the noise problem into consideration did not require its exact detail to be determined before being weighed against all other relevant factors. Multifactorial decision-making is complex, and necessarily impressionistic. This is particularly the case when the decision-maker is determining upon future conduct as distinct from the traditional judicial task of applying a norm to a closed period of past conduct.

97 Unlike that normative situation, in the present case the Council in undertaking the redetermination was confronted by an existing (albeit unlawful) development with a history of odour complaints in the 5 month period that it had existed immediately prior to the Council’s redetermination.

98 In these unusual circumstances the evaluation of the environmental impacts of the development required by s79C clearly called for a genuine consideration of the known experience of the existing operation of the dairy in obvious preference to reliance upon the type of evaluation which had informed the Council’s original decision to grant development consent to what was then an entirely future development.

99 This brings me finally to examine in greater detail the Report of the Council’s Environmental Planning Committee submitted to the Council’s Meeting held on 12 November 2001 at which the Council redetermined the Thompson development application. Although that Report has earlier been fully quoted, I should again note its contents of relevance to the requirement imposed by s79C that the Council consider the environmental impact of the development (especially in the present case its odour impacts). The opening section of the Report appears to be in the nature of background material which includes the following:

The application was readvertised and an on site inspection was carried out by the Environmental Planning Committee prior to the Environmental Planning Committee Meeting by members of the Environmental Planning Committee.

Three submissions have been received objecting to the proposal from M & P Noble, C Noble & J & A Ellsmore mainly in relation to odour, noise, runoff and dust problems.

The Dairy has been operating since June 2001 and ongoing complaints have been received by the Environmental Planning Department in regard to odour, dust, noise & runoff from neighbours M. & P. Noble.

A summary of the complaints investigated by the Environmental Planning Department were provided to the Environmental Planning Committee.
Council also resolved at its meeting of 8th October 2001 that the Environmental Planning Manager investigate the use of a disinterested person for a period of two (2) weeks to assess the alleged oduor complaint. Quotations from Environmental Consultants were received however the quotations were more than what could be called affordable in this case.

100 The summary of complaints referred to in the Report comprises a two page document in tabulated format under the following headings:

Date Complaint Complainant Action

101 Various incidents are recorded in the overall period from 18 April 2001 to 30 October 2001 and there are recorded some 30 complaints of odour, all but two of which, were made by the Applicants.

102 The recorded ‘action’ for most of the recorded odour complaints is for the most part “No odour evident”. However sometimes the ‘action’ recorded is simply that the complaint was investigated by a Council staff member with no other outcome recorded. On a few occasions the ‘action’ records that odour was detected – sometimes it was said to be “not significant” and on one occasion the ‘action’ recorded was “Odour was offensive”.

103 Apart form the obvious incompleteness of some of the entries in the ‘summary of complaints’ document it should be noted that the documentary materials indicate that the Applicants made nine further complaints during the period recorded which are not recorded in the document and that the Council had been informed by the Applicants that there were many other specific occasions during the overall period recorded when odour problems were experienced by the Applicants, but where those experiences had not been translated into complaints made by the Applicants to the Council.

104 Notwithstanding the fact that the summary of complaints document has recorded for the vast majority of the 30 complaints, that the relevant action was ‘no odour evident’ it is apparent from the Council’s decision directing its Environmental Planning Manager to investigate the option of obtaining an independent assessment of odours from the dairy that the Council did not itself regard the summary complaints document as demonstrating that the problems of odours generated by the dairy operations had been satisfactorily resolved.

105 In these circumstances the decision taken on behalf of the Council to abandon the independent odour assessment because the quoted cost of $7,700 for 7 days odour monitoring was considered “exorbitant” cannot be regarded as anything other than a manifestly unreasonable decision.

106 In the context of the Council’s redetermination of the development application the Council’s acceptance of the decision to abandon the independent odour assessment provides a substantial basis for the drawing of the ultimate inference that the Council’s evaluation of the environmental impact (odour impact) of the dairy operation was legally deficient in that the Council clearly (and probably deliberately) failed to obtain a proper understanding of the nature and scope of the odour impact and failed to engage in an evaluation of that impact in a manner that would reflect a fair assessment of that impact and its significance to the decision required to be made in terms of s79C.

107 To so conclude , does not mean that the mere assertions in the Applicants’ complaints demonstrated the existence of odour problems. But the existence of the complaints clearly required investigation over and above the levels of investigation that were provided by the Council’s incomplete responses to some of the complaints made by the Applicants. Moreover the existing operation of the dairy provided the Council with the optimal opportunity for an evaluation of odour impact as required by s79C by reference to known or ascertainable fact rather than conjecture or opinion. But for reasons that are not apparent it chose to forego that opportunity to ascertain the facts. (In so concluding I necessarily set aside, as manifestly unreasonable, the decision to abandon the independent odour assessment at the quoted cost of $7,700 “because that cost was exorbitant”).

108 Moreover the Council redetermined the development application without waiting for the response from the Environment Protection Authority to the Council’s consultation with that body by letter dated 11 October 2001. The Environment Protection Authority letter dated 9 November 2001 (which was not included ion the documentary materials submitted to the Council’s Meeting held on 12 November 2001) had included the following advice:

As advised in previous correspondence in relation to this proposal, the number of dairy cows in the proposal is less than the threshold for the schedule of licensed activities under the Protection of the Environment Operations Act 1997 (POEO), therefore, the Environment Protection Authority (EPA) does not have a statutory role in the development.

The EPA notes that, as a result of a previous development consent set aside by the Land and Environment Court, this development currently exists. As you are aware, there have been a number of complaints in relation to this activity. As Council is the Appropriate Regulatory Authority (ARA) the regulation of these issues is a matter for Council. However, odour and water pollution appear to be matters requiring careful consideration by Council in relation to this re-determination.

The EPA reiterates its previous advice, as follows. The location of the nearest residences that may be impacted upon by odour and noise from the proposal should be considered. Particular attention should be given to the storage and spreading of the effluent and the potential for noise due to the increased activity during construction and during the proposed operational periods. In addition, erosion and sediment controls for the site should ensure that surface waters are protected, including during periods of flooding.

109 The Report of the Council’s Environmental Planning Committee next proceeds to consider the question whether SEPP 30 applied. In this context it rehearses the history and outcome of the earlier proceedings before Pearlman J including the opinion evidence given in those proceedings as to whether the Thompson’s proposed development was relevantly a “cattle feedlot” within the meaning of SEPP 30. This section of the Report culminates in the opinion that SEPP 30 does not apply. In comparison with the other contents of the Report, the section devoted to this topic is overwhelmingly predominant. Although I have previously suggested the probable reasons for this outcome, what is more important for present purposes is whether the preponderant consideration given to the question of SEPP 30 casts light on the question whether the Council properly considered the environmental impact (especially odour impact) of the dairy operation.

110 It may be readily accepted that there is an obvious link between the Council’s reliance upon what various Guidelines were suggesting in relation to appropriate distance buffers around dairy operations and the evaluation of the odour impacts of the dairy operations. However I do not think that the Council’s duty to consider environmental impacts of odours generated by the dairy operations was fulfilled by the Council’s decision that SEPP 30 did not apply, and hence the more extensive buffer requirements applicable under that Policy did not apply, and that in consequence of that decision reliance could be placed upon the lesser buffer standards contained in the Guidelines.

111 The reason for so concluding is founded upon the fact (previously noted) that the Council, in so proceeding to redetermine the Thompson development application, had the obvious advantage of evaluating the environmental impacts of the dairy operation as an existing operational dairy (having been so operating for the five months preceding the Council’s redetermination of the development application) in circumstances where the Council was fully aware that odour problems had manifested themselves and had generated significant levels of complaints from the neighbours to the dairy, and especially the Applicants. In these circumstances it is obvious that that duty would not be properly fulfilled merely by reliance upon buffer standards suggested in relevant guidelines, without proper investigation and evaluation of the known or ascertainable facts pertaining to odour problems caused by the dairy operation.

112 The final section of the Report of the Council’s Environmental Planning Committee is a very brief statement recommending that development consent be granted subject to all of the conditions that had been imposed on the original development consent, and that “the Protection of the Environment Operations Act conditions be provided to enforce any problems in the future”. (This additional condition was imposed as Condition 68 that I have earlier recited).

113 It is obvious that this section of the Report does not provide any reasons for the Committee’s recommendation or any evaluation of the environmental impacts (especially in terms of odour impacts) of the dairy operation, except possibly to the extent that such an evaluation may be deduced from the terms of the conditions imposed upon the regrant of the development consent. I have earlier identified conditions 11, 15 and 68 as conditions relevant to the regulation or mitigation of odour impacts generated by the dairy operation. In addition to those specific conditions, there are other conditions requiring the preparation of an annual environmental management report (conditions 47 and 48) and requiring regular monitoring for compliance with conditions of consent including the formation of a Monitoring Committee (conditions 62 and 63). Importantly all of these conditions except for Condition 68 replicate the conditions of the original development consent.

114 In my judgment the existence of Condition 68 does not demonstrate a proper consideration of the environmental impact (especially odour impact) of the dairy operation. It merely declares what is otherwise substantially provided in the relevant provisions of the Protection of the Environment Operations Act 1997. It does not expand the operation or effect of those substantive provisions. At best it commits the Council to take appropriate action pursuant to the Act in respect of the carrying out of the approved dairy use “in an environmentally unsatisfactory manner”.

115 The reimposition on the regrant of the development consent of the same conditions having relevance to the regulation or mitigation of odours as had been imposed on the grant of the original development consent, does not, in my judgment demonstrate a proper consideration by the Council of the environmental impact (especially odour impact) of the dairy operation in circumstances where the Council had fully known during the five months operation of the dairy that that regime of conditions had not prevented odour problems from the dairy frequently being experienced by neighbours of the dairy.

116 Moreover the reimposition of Conditions 11 and 15 in the known circumstances of odour problems having been frequently experienced by neighbours during the five months existence of the operation of the dairy provides a basis in the evidence for the inference that the Council’s decision to regrant the development consent upon the same conditions failed to properly evaluate the environmental impact of the dairy operation. To the extent (which seems likely) that the Council’s decision involved little or no further evaluation than that which had informed its original decision to grant the original development consent subject to conditions, such an approach was clearly a legally inadequate evaluation of the known or ascertainable environmental impacts (especially odour) of the dairy operation.

117 To the extent that the Council’s decision reflected its awareness of the odour problems and its reliance upon the documentary materials that were submitted to its Meeting held on 12 November 2001 together with the Report of its Environmental Planning Committee the inference is available that there was no real attempt to understand the nature and extent of the known or ascertainable problem of the odour impact of the dairy operation or to evaluate its significance to the decision required to be made by s79C of the EP&A Act.

118 The documentary materials that were submitted to the Council included the advice from NSW Agriculture. But most importantly that advice was prefaced by the statement that “NSW Agriculture is not the authority on odour generation and control”. (Although that statement did not nominate who was the relevant ‘authority’ the advice from the Environment Protection Authority clearly was that it was the Council itself which was the relevant authority under both the EP&A Act and the Protection of Environment Operations Act.)

119 The documentary materials also included professional advice obtained by the Thompsons for successfully overcoming the odour problems. But that advice which focussed on remedying the odour problems associated with the anaerobic pond was not incorporated in any relevant condition imposed on the regrant of the development consent. In this respect it is to be noted that Condition 15 (whatever its precise effect) is expressed not to apply to “the effluent treatment ponds” as a “potential odour source”.

120 There is nothing in the other documentary materials (including the various Guidelines) that either itself provided an evaluation of the environmental impact (especially odour impact) of the dairy operation or the means for making such an evaluation. The inspection of the dairy by the Environmental Planning Committee for a brief period on 5 November 2001 could provide no more than a solitary isolated “snapshot” experience, which could not provide the basis for a proper evaluation.

121 Having regard to the foregoing aspects of the documentary evidence the Applicants urge the Court to find that the Council did not come to a proper view as to the impact of odour or its amelioration – rather the Council merely adverted to the problem (insofar as it was raised in the documentary materials) and that the mere reimposition of Condition 15 (in a slightly variant form from the original condition) as the Council’s ostensible solution to the odour problem clearly demonstrated that the Council had failed in its duty.

122 These submissions are clearly enough founded upon the exposition found in the judgments in Weal of the nature of the statutory duty of a consent authority in terms of s79C of the EP&A Act to take into account relevant considerations. It is important to appreciate that the exposition in Weal occurred in the context of the imposition on the grant of development consent of a deferred commencement condition which stated that “the consent shall not operate until the applicant satisfies the Council that the relevant approvals by the Environment Protection Authority have been obtained”: see at 184.

123 It was common ground in that case that the deferred commencement condition had been imposed by the council as its response to its duty to take into consideration the environmental impact of the development in terms of noise emissions and their impact on neighbouring residences. Thus the question in Weal as formulated by Mason P at 184 (and agreed in by Priestley JA at 189) was whether that condition was “a legally deficient response or evidence of a legally deficient approach to the council’s duty”. In the result a majority of the Court (Giles JA with whom Priestley JA agreed) held that council in granting the development consent subject to conditions (including the deferred commencement condition) had not properly taken into consideration a relevant matter, (the noise impact of the development) and that in consequence the development was void and of no effect.

124 Much of the reasoning of the principal judgment given by Giles JA in Weal is concerned with the effect of the deferred commencement condition and the relevant provisions of the EP&A Act authorising the imposition of a deferred commencement condition. That aspect of the reasoning is not relevant to the present case (which does not involve a deferred commencement condition). But in elaboration of the duty to give “proper consideration” to a relevant matter, Giles JA said at 201:

Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration (

at 335-6, 339;

at 384;

(1998) 100 LGERA 365 at 374-5).

125 To similar effect is the following passage at 204:

“…but its consideration (of relevant matters) had to include an understanding of the state of affairs and an evaluation of relevant matters with that understanding.”

126 Although Mason P delivered a dissenting judgment he expressed agreement with the judgment of Giles JA as “identifying the relevant legal principles” (at 183) and the President’s judgment had the agreement of Priestley JA insofar as it had stated “the general approach [that] both the Land and Environment Court and this Court should take to appeals of this kind” (at 189). ie proceedings by way of judicial review of administrative decisions granting development consents etc.

127 In the context of considering the inherently flexible boundaries of judicial review the President made the following observations at 185:

There is little point in searching for a definitive statement of what is involved in taking something into consideration. I am however, attracted to Gummow J's formulation of

. This was in the context of s5(2)(f) of the

1977 (Cth) (see

(1987) 14 ALD 291 at 292). The formulation has been carried across to the proper consideration ground of review and now appears to have general acceptance in the Federal Court of Australia (see

(1998) 160 ALR 24 at 57 where the authorities are collected by Merkel J).

128 In elaboration of the duty imposed upon the council in considering the environmental impact (noise) of the development the President said at 185:

The weighing of factors tugging in opposite directions was the task of the Council, not the Court. Nevertheless, the duty to take noise into consideration required more than simple advertence to the noise issue. I agree with Giles JA that there had to be an understanding of relevant matters and their significance to the decision required to be made, as well as a process of evaluation sufficient to warrant the description of the matters being taken into consideration. Legally sufficient consideration of the noise issues extended to consideration as to appropriate conditions limiting and controlling noise if consent was to be forthcoming.

129 That exposition is further elaborated in the following passage from the President’s judgment at 186:

I agree that, for this project, proper consideration required an adequate understanding of the state of affairs involving noise and the evaluation of the relevant s90 matters consistent with that understanding. Generally speaking, understanding the scope of a problem is a prerequisite to addressing its solution (by imposing a condition or, in an extreme case, rejecting the development application). But I respectfully part company with Giles JA at his conclusion that the Council's understanding was so deficient as to vitiate the particular consent. In my view, a problem can be recognised and addressed without precise determination of its scope, at least so long as the decision is made in the light of an understanding of the outer limits of the problem and so long as the chosen means

a fair assessment of their potential impact. This is what happened here, for the reasons stated above.

130 The competing submission advanced on behalf of the Council was that the documentary evidence reveals that the Council had knowledge (both actual and constructive) of the environmental impact, particularly in terms of odours emitted from the dairy operations and that in the light of that documentary evidence and the inferences available to be drawn from it, it was incumbent that the Applicants establish that the Council, as a collegiate body, “shut its mind to, and hence failed to consider” the relevant matter.

131 In my opinion the Council’s submission does not accurately reflect the true nature and scope of the Council’s duty to consider the environmental impact of the development (especially its odour impact ) as expounded and illustrated by the Court of Appeal’s decision in Weal.

132 The relevant legal standard or criterion that is established by Weal is that in discharging its duty to take a relevant matter into consideration the consent authority must do more than merely ‘advert’ to the matter – it must ‘understand’ the matter and its significance to the decision required to be made and it must ‘evaluate’ that matter by adopting a ‘fair assessment’ of it. (This is a summary of the passages I have already quoted from the judgment of Mason P).

133 In applying that legal standard or criterion to the decision of the Council to regrant the development consent subject to conditions as revealed by the documentary evidence, I have come to the conclusion that the Council’s decision betrays a legally deficient response or approach to the duty imposed upon the Council to take into consideration the environmental impact of the development especially the impact caused by odours generated from the dairy operations.

134 My reasons for coming to this conclusion, which is derived as an ultimate inference from the relevant documentary materials, have substantially been already stated as I have proceeded to analyse (i) the Report of the Council’s Environmental Planning Committee, and the other documentary materials that had been submitted to the Council’s Meeting held on 12 November 2001, and (ii) the Council’s decision to regrant the development consent, subject to conditions.

135 As I have attempted to demonstrate those documentary materials provide the basis for the drawing of the ultimate inference that in regranting the development consent subject to conditions the Council failed to properly take into consideration the environmental impacts (especially odour impacts) of the dairy operation. In particular the inference is available that the Council failed to understand the true nature and extent of the odour impact problems and failed to evaluate by way of a fair assessment, the significance of that impact to the decision required to be made by s79C of the EP&A Act. These failures are highlighted by the Council’s manifestly unreasonable decision to abandon its proposal for there to be conducted an independent assessment of the odour impacts generated by the dairy operation, thereby leaving itself to be confronted by a miscellany of documentary materials, which themselves provided neither the required evaluation of environmental impact (especially odour impact) of the dairy operation nor even the basic data for such an evaluation to be undertaken.

136 In the absence of evidence being called by the Council as to how it evaluated the odour impact in coming to its decision to regrant the development consent, the inference that it failed to properly consider the environmental impacts of the dairy operation might be more confidently drawn (Jones v Dunkel) and I draw it.

137 The presumption of regularity does not apply to this aspect of the Council’s decision because the documentary evidence that I have referred to is of such a nature as to provide contrary evidence in rebuttal of the presumption.

138 It has not been, nor could it reasonably be, disputed that if the Applicants succeed in their allegation, the failure relevantly vitiates the Council’s decision to regrant the development consent, because of the obvious and acknowledged importance of the odour problems already experienced with the dairy operation.

139 Accordingly for all the foregoing reasons I hold that the Applicants have proven that the Council has failed to properly consider the environmental impact (especially odour impact) of the dairy operation, and that failure necessarily vitiates the decision to regrant the development consent.

140 In presenting their case at the hearing, the Applicants linked this allegation with their allegation that the Council had taken into account an irrelevant consideration, namely the possible legal liability of the Council in granting the original development consent which Pearlman J was later to declare invalid.

141 Since I have held that the Applicants have failed to establish that earlier allegation it follows that they should likewise be held to have failed to establish the separate allegation of ‘improper purpose’.

142 Accordingly I hold that this allegation has not been established.

(v) Wednesbury Unreasonableness

143 The Applicant’s allegation of ‘Wednesbury’ unreasonableness is founded upon the same considerations which they have asserted in support of their other allegations which I have earlier determined. Although there can be cases where some of these administrative law grounds overlap, ‘Wednesbury’ unreasonableness itself constitutes an independent ground for impugning administrative decisions.

144 Mason P in Weal expounded ‘Wednesbury’ unreasonableness in the following passage at 188 which I would respectfully adopt and apply to the present case:

The test is stringent. When,

(

(1999) 197 CLR 611 at 627 per Gleeson CJ and McHugh J, quoting Mason J in

(1986) 162 CLR 24 at 42). The decision must amount to an abuse of power (

(1990) 170 CLR 1 at 36) or be so devoid of plausible justification that no reasonable person could have taken that course (

(1995) 183 CLR 273 at 290). See also

(1996) 91 LGERA 31.

145 In view of my determination upholding the Applicant’s allegation that the Council’s decision was flawed on account of its failure to properly consider the environmental impact (especially odour impact) of the dairy operation it cannot, consistently with that conclusion, concurrently be concluded that the Council’s decision is legally unreasonable because, for example, it gave too little weight to the environmental impact (especially odour impact) of the dairy operation. My conclusion that the Council did not properly consider the relevant environmental impact was not based upon any view that the Council gave too little weight to that consideration. Rather it was based on the legal deficiency (lack of evaluation) in the process of the Council’s decision.

146 Although ‘Wednesbury’ unreasonableness extends beyond cases of the decision maker giving too much or too little weight to a relevant consideration I do not think it can be concluded on the facts of the present case (including all available inferences) that the Council’s decision was ‘so devoid of plausible justification that no reasonable person could have taken that course’.

147 The facts of the present case have not risen to the level where it could be held that by regranting the development consent the Council had knowingly sanctioned an outcome that would necessarily involve the inevitable consequence of the creation of a nuisance. It was of such a situation that Sir John May in Wheeler v JJ Sanders Ltd (1995) 2 All ER 697 expressed the following opinion at 713:

Thus while the inevitability of a nuisance could well be the ground for refusing planning permission, the grant of the latter could not in my view license such nuisance. Indeed, I think that if a planning authority were with notice to grant a planning permission, the inevitable consequence of which would be the creation of a nuisance, then it is well arguable that that grant would be subject to judicial review on the ground of irrationality.

148 In my judgment the Applicants have not established this ground of their attack upon the validity of the Council’s decision.

149 For all the foregoing reasons I have concluded that the regranted development consent is void and of no effect on account of the failure by the Council to properly consider the environmental impact (especially odour impact) of the existing dairy operation.

150 No case has been advanced by the Council that there are any discretionary grounds for refusing the declaratory relief to which the Applicants have established their entitlement.

151 Declaratory relief is the sole relief claimed, and in my judgment it should be granted because the Council’s decision to regrant the development consent has been shown to be legally flawed.

152 This means that the Council’s two determinations of the Thompson Development application have been held to be of no legal effect. To suggest that the determination of the development application remains outstanding is not an accurate analysis of what has happened. The fact that the dairy development was in existence when the Council redetermined the development application in November 2001 necessarily meant that the original development application was no longer on foot in the precise form that it had been originally made. That position remains today nearly two years after that redetermination. To suggest that that development application remains to be determined would be misleading and unhelpful.

153 Even if it were the case that the original development application was still capable of being redetermined the fact that the Council has twice previously ineffectively granted development consent would pose a real difficulty for the Council itself redetermining the application.

154 For all the foregoing reasons I make the following orders:

1. Declare that the Council’s decision on 12 November 2001 regranting development consent to development application No. 218/00 in respect of land fronting Forbes Road Cowra is void and of no effect.

2. The exhibits be returned.

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Citations

Noble v Cowra Shire Council [2003] NSWLEC 178

Most Recent Citation

Polly Roberts v Sydney City Council [2004] NSWLEC 83

Cases Citing This Decision

5

Noble, M J & Anor v Thompson, C R & Anor; Cowra Shire Council v Thompson, C R & Anor [2006] NSWLEC 583

GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303

Cases Cited

12

Statutory Material Cited

3

Ireland v Cessnock City Council [1999] NSWLEC 250

Luxton v Vines [1952] HCA 19

CITATION:	Noble v Cowra Shire Council [2003] NSWLEC 178
PARTIES:	APPLICANTS: Michael John Noble Patricia Lynne Noble RESPONDENT: Cowra Shire Council
FILE NUMBER(S):	40020 of 2002
CORAM:	Bignold J
KEY ISSUES:	Judicial Review :- Development consent
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s68, s79C Protection of the Environment Operations Act 1997, s96 Cowra Local Environmental Plan 1990, cl 9(3)
CASES CITED:	Currey v Sutherland Shire Council (1998) 100 LGERA 365; Emeritus Pty Ltd v South Sydney City Council (unreported, 1 February 1990, Cripps CJ); Fast Buck$ v Dudley Pastoral Company Pty Ltd [2003] NSWCA 126; Franklins Ltd v Penrith City Council (1999) NSWCA 134 ; Hill v Woollahra Municipal Council (2003) NSWCA 106; I W v City of Perth (1997) 191 CLR 1; Ireland v Cessnock City Council (1999) 110 LGERA 311; Jones v Dunkel (1959) 101 CLR 298; Manly Council v Hortis (2001) 113 LGERA 321; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24; Municipal Council of Sydney v Campbell (1925) AC 338; Noble and Anor v Cowra Shire Council (2001) 114 LGERA 440; Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc (1996) 98 LGERA 335; Schroders Australia Property Management Ltd v Shoalhaven City Council (1999) 110 LGERA 130; Tooth & Co Ltd v Lane Cove Municipal Council (1967) 87 WN(NSW) 361; Wheeler v JJ Sanders Ltd (1995) 2 All ER 697
DATES OF HEARING:	18/03/2003
DATE OF JUDGMENT:	07/31/2003
LEGAL REPRESENTATIVES:	APPLICANT: P Clay (barrister) SOLICITORS: McIntosh Phillamy RESPONDENT: B Preston SC and H Irish (barrister) SOLICITORS: Pike Pike & Fenwick