Noble v Cowra Shire Council

[2001] NSWLEC 149

Reported Decision: 114 LGERA 440

Land and Environment Court

of New South Wales

CITATION:	Noble and Anor v Cowra Shire Council [2001] NSWLEC 149
PARTIES:	APPLICANTS Noble and Anor RESPONDENT Cowra Shire Council
FILE NUMBER(S):	40178 of 2000
CORAM:	Pearlman J
KEY ISSUES:	Judicial Review :- development consent - failure to consider a relevant matter - SEPP 30 - cattle feedlot
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 79C(1)(a) Land and Environment Court Act 1979 s 25B State Environmental Planning Policy No 30 - Intensive Agriculture
CASES CITED:	Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321; Corporation of the City of Enfield v Development Assessment Commission and Anor (2000) 106 LGERA 419; Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd and Ors (1986) 162 CLR 24; Parramatta City Council and Anor v Hale and Ors (1982) 47 LGRA 319; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; Timbarra Protection Coalition Inc v Ross Mining NL and Ors (1999) 46 NSWLR 55
DATES OF HEARING:	03/05/2001; 04/05/2001
DATE OF JUDGMENT:	07/19/2001
LEGAL REPRESENTATIVES:	APPLICANTS Mr W R Davison SC SOLICITORS McIntosh, McPhillamy & Co RESPONDENT Mr A M Hawkes (Solicitor) SOLICITORS Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND 40178 of 2000
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 19 July 2001

MICHAEL JOHN NOBLE and PATRICIA LYNNE NOBLE

Applicants

v

COWRA SHIRE COUNCIL

Respondent

JUDGMENT

Introduction

1. These class 4 proceedings concern the validity of a development consent granted by Cowra Shire Council to Mr C R Thompson and Mrs E M Thompson for the development upon land at Forbes Road, Cowra of a dairy, feed pad, machinery shed, hay shed and dwelling.

2. The applicants, Mr M J Noble and Mrs P L Noble, seek a declaration that the development consent is invalid and an order that it be set aside.

The development consent

3. The development consent was granted subject to conditions on 1 September 2000. It issued in consequence of development application (“the second DA”) numbered 218/00, which had been lodged with the council on 11 July 2000. A previous development application (“the first DA”) had been lodged, numbered 488/99, but the council had refused to grant development consent to it.

4. From the statement of environmental effects prepared by Terra Consulting (NSW) Pty Ltd which accompanied the first DA, and from supplementary information furnished by those consultants on 22 June 2000 and 17 August 2000, it may be deduced that the development for which consent was sought by the second DA had the following relevant features:

(1) The development was to take place on the property known as “Wirong”. That property is split into two holdings – Wirong West, comprising about 118 hectares located on the western side of Forbes Road, and Wirong South, comprising about 98 hectares on the eastern side of Forbes Road.

(2) The dairy infrastructure was to be located on Wirong West. Wirong South was to be used as a solids reuse area and for fodder production;

(3) The dairy operation was designed to accommodate 300 milking cows, plus about 60 dry cows and up to 200 young stock;

(4) It was intended that cows would be held within the milking shed and, after milking, in the feed pad for 4 – 6 hours per day, up to a maximum of 8 hours per day. In the feed pad, the cows would be provided with mixed feed rations and would have access to water;

(5) For the remainder of each day, about 16 hours each day, the cows would have access to a series of paddocks to be used in rotation for grazing and loafing. However, the principal feed rations would be supplied to the cows in the feed pad. The cows entering the paddocks would be well fed and there would be minimal grazing.

5. It is not in dispute that development for the purpose of a dairy is development which is permissible with consent under the relevant local environmental plan.

The applicants’ claim

6. The applicants contend that, in determining the development application, the council was bound to take into consideration the provisions of State Environmental Planning Policy No 30 – Intensive Agriculture (“SEPP 30”). They claim that the council did not do so.

7. As its name implies, SEPP 30 deals with “intensive agriculture”. It does not define what is meant by that expression, but it is clear from its terms that SEPP 30 applies to cattle feedlots of a particular size and to piggeries of a particular size. I have confined the outline which follows to cattle feedlots and omitted all references to piggeries.

8. The aims of SEPP 30 are stated in cl 2(1) as follows:

2(1) The aims of this Policy are:
(a) to require development consent for cattle feedlots having a capacity to accommodate 50 or more head of cattle …; and
(b) to provide for public participation in the consideration of development applications for cattle feedlots … of this size; and
(c) to require that, in determining a development application for cattle feedlots … of this size, the consent authority is to take into consideration:
(i) the adequacy of information provided; and
(ii) the potential for odour, water pollution and soil degradation; and
(iii) measures to mitigate potential adverse impacts; and
(iv) measure for the health and welfare of animals; and
(v) relevant guidelines,
so as to achieve greater consistency in environmental planning and assessment for cattle feedlots …

9. Clause 6 relevantly provides that a person must not carry out development for the purpose of a cattle feedlot having a capacity to accommodate 50 or more head of cattle except with the consent of the consent authority.

10. Clause 7 is concerned with the consideration of development applications for cattle feedlots. Clause 7(1) provides that the public notification sections of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) apply to cattle feedlots of the stipulated size in the same way as those sections apply to designated development. Clause 7(2) requires a statement of environmental effects which accompanies a development application to “include a description of the design features of the proposed feedlot” and an outline of the management practices intended to address various specified impacts. Clause 7(3) is in the following terms:

(3) In determining whether or not to grant consent to a development application for the purposes of a cattle feedlot … to which clause 6 applies, the consent authority must take into consideration:
(a) the adequacy of the information provided in the statement of environmental effects or environmental impact statement accompanying the development application; and
(b) the potential for odours to adversely impact on the amenity of residences or other land uses within the vicinity of the site; and
(c) the potential for the pollution of surface water and ground water; and
(d) the potential for the degradation of soils; and
(e) the measures proposed to mitigate any potential adverse impacts; and
(f) the suitability of the site in the circumstances; and
(g) whether the applicant has indicated an intention to comply with relevant industry codes of practice for the health and welfare of animals; and
(h) the consistency of the proposal with, and any reasons for departing from, the environmental planning and assessment aspects of any guidelines for the establishment and operation of cattle feedlots … published, and made available to the consent authority, by the Department of Agriculture and approved by the Director of Planning.

11. There was a debate during the hearing about whether there was a guideline in existence which conforms with the requirements specified in cl 7(3)(h). The Department of Planning (as it was then called) issued a circular on 10 March 1995 (numbered B23) in relation to SEPP 30. Under the heading “Guidelines” it referred to the guidelines published by “NSW Agriculture” including “The Feedlot Manual” and it made the following statement:

The Feedlot Manual has been approved for the purposes of clause 7(3)(g) of SEPP 30 whereby Councils must consider the consistency of a proposal with the planning aspects of the document.

The reference in this statement to “clause 7(3)(g)” is apparently wrong, because subcl (g) refers to “industry codes of practice” whilst subcl (h) refers to guidelines published by the Department of Agriculture and approved by the Director of Planning.

12. Furthermore, there was some doubt as to whether the Feedlot Manual, as the relevant guideline, had been made available to the council as cl 7(3)(h) contemplates. In his affidavit sworn on 29 January 2001, Mr A R Lindsay, the council’s environmental planning manager, stated that he did not know if it had been made available. There is no doubt that it had come to the attention of the council, because Mr Lindsay deposed to being familiar with its provisions, and the council was alerted as to its relevance and availability by NSW Agriculture on 31 January 2000. I am prepared to find that the Feedlot Manual constitutes the relevant guidelines specified in SEPP 30.

13. The essential nature of the applicants’ claim is that, whilst the proposed development is properly characterised as a dairy and is thus permissible with consent, it also falls within the description of a “cattle feedlot”. The applicants contend that the provisions of SEPP 30 were relevant by reason of this fact, but the council did not turn its mind to whether or not the provisions of SEPP 30 were relevant, and those provisions were not taken into consideration by the council in its assessment of the development application.

Failure to take into account a relevant consideration?

14. Section 79C of the EP&A Act relevantly provides as follows:

79C(1) Matters for consideration – general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument; and
…
that apply to the land to which the development application relates.

15. Pursuant to s 4(i) of the EP&A Act, an “environmental planning instrument” is defined to mean, amongst other things, a State environmental planning policy. SEPP 30 is, accordingly, an environmental planning instrument the provisions of which, pursuant to s 79C, the council would be bound to take into consideration if those provisions “are of relevance to the development the subject of the development application”.

16. A failure to take into account a relevant consideration can only vitiate a decision if the decision-maker is bound to take that consideration into account in making the decision (Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd and Ors (1986) 162 CLR 24 at 39). In this regard, the following passage from the judgment of Deane J (in the Federal Court) in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at p 375 is apposite:

This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account …

In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant … The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.

17. In this case, s 79C is central to the issue. By s 79C, the legislature has expressly stated that the provisions of an environmental planning instrument must be taken into consideration if those provisions are of relevance to the development the subject of the development application. It follows that the consent authority is bound to consider which, if any, provisions in an environmental planning instrument are relevant, and that is especially so where, as here, the proposed development is of an unusual kind with many possible environmental and planning consequences (Parramatta City Council and Anor v Hale and Ors (1982) 47 LGRA 319 at 340 - 341).

18. There is no doubt in my mind that the provisions of SEPP 30 were potentially relevant. It is an instrument which is cited as relating to “intensive agriculture”. In his report to the council dated 7 August 2000, the council’s consultant town planner, Mr W D McDonald, noted that the relevant local environmental plan requires that “intensive agricultural activities be undertaken only with consent of Council”. In his supplementary report to the council dated 23 August 2000, Mr McDonald went further and stated:

In respect of the permissible uses to which land zoned 1(a) Rural may be put, the proposal to establish a feed pad dairy requires (by the 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.

19. The proposed development was described as a “feedlot” in a number of submissions to the council. It was so described by the applicants in their submission dated 25 July 2000, and they specifically drew the council’s attention to both SEPP 30 and the Feedlot Manual. It was also so described in a submission to the council dated 23 July 2000 made by J and E A Ellsmore, and in the oral addresses made at the council meeting on 28 August 2000 by two supporters of the development application, Mr L Lamond and Mr P Cusack.

20. Of course, as the provisions of SEPP 30 show, the question of whether or not those provisions were actually relevant in the terms of s 79C depended upon a determination of a question of fact, namely, did the proposed development fall within the description of a “cattle feedlot”? In this case, the council was on notice of the potential relevance of the provisions of SEPP 30, and it was bound to consider whether those provisions were in fact relevant by reason of the nature of the proposed development. In these circumstances, a failure to consider whether the provisions of SEPP 30 were relevant will, in my opinion, amount to a failure to take into account a relevant consideration.

21. If it was the case that the council had considered the question, and determined that the provisions of SEPP 30 were of no relevance because the proposed development did not fall within the description of a cattle feedlot, the consequences might be different. That is because the Court has a limited role in cases of judicial review, such as this. It cannot substitute its own finding of fact for that of the decision-maker (Minister for Aboriginal Affairs v Peko-Wallsend at p 40). In particular, the Court will not interfere where the determination of fact is reasonably open to the decision-maker (Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at 356). From the evidence adduced in the hearing of this case, it is plain that minds might differ on the question of whether or not the proposed development was a “cattle feedlot”. The Feedlot Manual is ambiguous in its definitions, wavering between whether the cattle must be “completely” hand fed in order to fall within the term “feedlot” or whether it is nevertheless a “feedlot” if they are “substantially” hand fed. The expert opinion evidence was also divided. In the opinion of MR R V Ivey, an agricultural consultant who gave evidence for the applicants, the milking cows on Wirong will 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. In his opinion, the proposed development is properly described as a cattle feedlot. A contrary opinion was expressed by Professor I Lean, who is a veterinary scientist, and who gave evidence for the council. He thought that the proposed development was not a cattle feedlot, and his opinion was that that expression is rarely if ever applied to dairy farms, but it rather applied to situations where cattle are confined in pens for 100 per cent of the time. Professor Lean’s opinion was supported by Mr W Inglis, who is a member of the executive committee of the NSW Dairy Farmers’ Association Ltd. He said that the term “feedlot” is generally used in terms of beef cattle, where the cattle are fattened prior to sale, and it is not a term generally used in the dairy cattle industry. Mr A J Dymock, who is an agricultural environment officer working with NSW Agriculture, considered that there were both differences and similarities in a comparison of the proposed development with a feedlot, but on balance he held the view that the proposed development was not a feedlot. Hence, 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.

22. A different position would have arisen if the fact to be decided had been a jurisdictional fact, that is, a fact “the satisfaction of which enlivens the power of the decision-maker to exercise a discretion” (Corporation of the City of Enfield v Development Assessment Commission and Anor (2000) 106 LGERA 419 at 430). The determination of whether a fact is a jurisdictional fact depends upon the proper construction of the relevant statute. A useful guide in the determination of that question is set out in the following passage from the judgment of Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL and Ors (1999) 46 NSWLR 55 at 65:

The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power.

23. In the present case the question of whether or not the proposed development falls within the description of a “cattle feedlot” is not a factual reference which is preliminary or ancillary to the exercise of the statutory power to grant or refuse development consent. That power was enlivened by the characterisation of the proposed development as a dairy, a use which is permissible with consent under the relevant local environmental plan. Rather, the factual question arose by reference to the matters which the council was required to take into consideration, if relevant, under s 79C; that is, it arose in the course of consideration by the council in the exercise of its statutory power. Mr Hawkes, appearing for the council, submitted that the fact was not a jurisdictional fact, and Mr Davison SC, appearing for the applicants, did not expressly take issue with that submission. For the reasons which I have set out, I think that Mr Hawkes’ submission is correct.

24. I return then to the applicants’ claim that the council failed to take into account a relevant consideration. The onus is on the applicants to show that the council failed to do so. That requires the proof of a negative, which casts on onerous burden upon the applicants. But if an inference to that effect is available, the Court should not hesitate to draw that inference (Parramatta City Council v Hale at p 345). The applicants’ case is that the Court must infer from the evidence that the council did not determine whether or not the proposed development was a cattle feedlot, nor did it determine whether or not the provisions of SEPP 30 were relevant.

25. I have concluded that such an inference should be drawn. As I have said, the potential relevance of the provisions of SEPP 30 and the possibility that the proposed development fell within the description of a “cattle feedlot” were drawn unequivocally to the attention of the council. Yet the material from the council’s file which was tendered in evidence (ex 1 and ex 2) indicates that the council did not turn its mind to the question at all. In referring to the statutory requirements under s 79C in his report to the council of 7 August 2000, Mr McDonald simply noted that one of the relevant considerations was the provisions of environmental planning instruments and he repeated that in his supplementary report of 23 August 2000. But one searches in vain in those reports for any reference as to whether the provisions of SEPP 30 might be relevant by reason of the description of the proposed development as a “cattle feedlot”. Furthermore, although the full minutes of the meeting of council on 28 August 2000 at which the council resolved to grant development consent were not tendered in evidence, there is no reference to any consideration of the relevance of the provisions of SEPP 30 in those parts which were tendered, and the Court can infer that the missing parts would not have shown anything different.

26. The failure to take into account a relevant consideration will not justify the Court setting aside the development consent unless the relevant consideration was a material one (Minister for Aboriginal Affairs v Peko-Wallsend at p 40). In this case, the provisions of SEPP 30 were significant in the decision-making process. As I have set out, cl 7 required the council to take into account a number of environmental and planning matters, as well as the consistency of the proposed development with, and any reasons for departing from, the environmental planing and assessment aspects of the relevant guidelines. The environmental and planning aspects of the Feedlot Manual are particularly directed to the impact upon the environment and the amenity of neighbours. As Mr Davison pointed out, one of the relevant considerations under the Feedlot Manual was the matter of appropriate buffer zones, and that was a matter of particular relevance to the applicants, whose land is located approximately 400 metres from where the dairy operations are to take place on Wirong West.

27. I have concluded, for these reasons, that the applicants are entitled to the declaration which they seek. However, in its points of defence, the council raised two matters which must be taken into account before the Court imposes any order.

28. The first such matter goes to the exercise of the Court’s discretion to make the declaration sought by the applicants. The council claims that, insofar as cl 7 of SEPP 30 applies, it took into account all the matters which are there prescribed, and that accordingly the Court should refrain from making the declaration. The council points to the fact that the statement of environmental effects included the matters referred to in cl 7(2). Mr Hawkes also pointed out that the statement of environmental effects and other information supplied to the council included full reference to matters of odour, surface and ground water, soil, mitigation measures, the suitability of the site, and compliance with the industry codes of practice, as set out respectively in cl 7(3)(b), (c), (d), (e), (f) and (g). Furthermore, the council contends that, so far as cl 7(3)(h) is concerned and insofar as the relevant guidelines may be constituted by the Feedlot Manual, the proposed development is consistent with its environmental planning and assessment aspects.

29. The difficulty with this submission is that there is at least one matter which arises under the Feedlot Manual which is not adverted to in the material from the council’s files that was tendered in evidence. That is the question of buffer zones. The Feedlot Manual suggests, in the section on “Community Amenity” on p 3.14, that a separation distance of up to 5 kilometres from individual residences “may be needed”. No reason for a departure from that aspect seems to have been furnished to or considered by the council. Furthermore, as I have said, the matters raised in SEPP 30 are significant in the assessment of the environmental and planning impacts of cattle feedlots, and the Court cannot draw a conclusion as to what might have been the consequence to the development application if the council had concluded that SEPP 30 was relevant and had addressed its provisions. For these reasons, I would not refrain, in the exercise of discretion, in making the declaration and order sought.

30. The second matter which Mr Hawkes raised was s 25B of the Land and Environment Court Act 1979, which appears in div 3 of pt 3 of that Act, and empowers the Court, instead of declaring that a development consent is invalid, to suspend the operation of the development consent, and to specify the terms compliance with which will validate that consent. As s 25A(2) provides, the power conferred on the Court by div 3 of pt 3 extends to invalidity arising from any steps preliminary to the granting of development consent. Mr Hawkes submitted that, if the Court were to find that the council failed to take into account a relevant consideration, it should make an order suspending the development consent in this case, and specifying that the development consent will be valid if the council complies with its obligation to take SEPP 30 into account. I would not, as a matter of discretion, be willing to make such an order. That is because of the matter I adverted to above, namely, that the Court cannot safely conclude that, if the provisions of SEPP 30 had been taken into consideration, the council would have granted development consent. The omission to consider whether or not the provisions of SEPP 30 were relevant might result in a decision that they were relevant, and, in addressing them, the council might conclude that development consent should not be granted. In my opinion, it would be inappropriate in these circumstances to make orders of the sort contemplated by s 25B.

31. 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.

Formal orders

32. For the reasons I have set out, I have concluded that the council failed to take into account a relevant consideration which it was bound to take into account, and that, accordingly, the applicants are entitled to the declaration and order which they seek.

33. Since the applicants have been wholly successful in obtaining the declaration and order which they seek, it is appropriate to make an order for costs in their favour.

34. I make the following formal orders:

(1) I declare that the developmen t consent granted on 1 September 2000 by the respondent to C R and E M Thompson for a dairy, feedpad, machinery shed, hay shed and dwelling in relation to development application No 218/00 in respect of lots 85, 101 and 82 in deposited plan 752946 and lots 1 – 8 in deposited plan 19352 in the Parish of Merriganowry and located at Forbes Road, Cowra is invalid.

(2) I order that the said development consent be set aside.

(3) The exhibits may be returned.