Simpson v Wakool Shire Council

[2012] NSWLEC 163

Land and Environment Court

New South Wales

Medium Neutral Citation:	Simpson v Wakool Shire Council [2012] NSWLEC 163
Hearing dates:	14-15 June 2012
Decision date:	17 July 2012
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	Orders as set out at [108]
Catchwords:	JUDICIAL REVIEW - development consent for change of use to a dairy processing plant - development control plan required notification of persons affected by development - whether development control plan applicable - failure to consider and comply with development control plan - noise and odour impacts of development - whether council considered impacts - failure to consider impacts not established - remedy for breach of statutory notification requirement - discretion not to make declaration of invalidity under remedy power and under s 25B of the Land and Environment Court Act 1979 - whether discretion should be exercised - declaration of invalidity of development consent made
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4, 5, 29A, 72, 74C, 79, 79A, 79C, 103, 104 Environmental Planning and Assessment Regulation 2000 cls 87-91 Land and Environment Court Act 1979 ss 25B, 25C, 25E Local Government Act 1993 s 68
Cases Cited:	Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 Boral Resources (Country) Pty Ltd v Clarence Valley Council (No 2) [2009] NSWLEC 133 Broomham v Tallaganda Shire Council (Unreported, Land and Environment Court of NSW, Stein J, 31 October 1986) Cameron v Nambucca Shire Council (1997) 95 LGERA 268 Centro Properties Limited v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257 Csillag v Woollahra Council [2011] NSWLEC 17 Csillag v Woollahra Council (No 2) [2012] NSWLEC 135 CSR Ltd v Yarrowlumla Shire Council (Unreported, Land and Environment Court of NSW, Cripps J, 2 August 1985) Curac v Shoalhaven City Council (1993) 81 LGERA 124 Farah v Warringah Council [2006] NSWLEC 191 Helman v Byron Shire Council (1995) 87 LGERA 349 Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43 Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 Johnson v Lake Macquarie City Council (1996) 91 LGERA 331 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333 Monaro Acclimatisation Society v Minister for Planning (Unreported, Land and Environment Court of NSW, Stein J, 2 March 1989) Nelson v Burwood Municipal Council (1991) 75 LGRA 39 Parramatta City Council v Hale (1982) 47 LGRA 319 Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 Remath Investments No 6 Pty Ltd v Botany Bay City Council (No 2) (Unreported, Land and Environment Court of NSW, Talbot J, 11 December 1996) Scott v Wollongong City Council (1992) 75 LGRA 112 Scurr v Brisbane City Council (1973) 133 CLR 242 Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148 SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229; (1963) 10 LGRA 210 Transport Action Group Against Motorways Inc v Roads & Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598; (1999) 104 LGERA 133 Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589; (2001) 115 LGERA 373
Category:	Principal judgment
Parties:	William Allan Simpson (Applicant) Wakool Shire Council (First Respondent) Jonesy's Dairy Fresh Pty Limited (Second Respondent)
Representation:	Mr P McEwen SC with Ms A Hemmings (Applicant) Submitting appearance (First Respondent) Mr N Eastman (Second Respondent) Barker & Associates (Applicant) Submitting appearance (First Respondent) Cosgriff Orchard Legal (Second Respondent)
File Number(s):	41264 of 2011

Judgment

Nature of case and conclusion

1. On the northern side of the Murray River lies the rural town of Barham. The local council for the town, Wakool Shire Council ('the Council'), granted development consent to Jonesy's Dairy Fresh Pty Ltd to use an existing industrial building at 49 Parkman Avenue, Barham ('the land') for a dairy processing plant. Many local residents of the town oppose the proposed dairy processing plant.

1. One of the residents, Mr Simpson, has brought judicial review proceedings challenging the validity of the Council's decision to grant development consent. The grounds of review are basically twofold: first, procedural impropriety by the Council failing to notify affected land owners and occupiers of the development application as required by Development Control Plan No 8 - Notification Policy ('DCP 8'), and secondly, irrationality by the Council failing to consider the relevant matters of the noise and odour impacts of the proposed dairy processing plant on surrounding residential properties. Mr Simpson claims the Council's decision and the development consent should be set aside.

1. The Council entered a submitting appearance save as to costs. The consent holder, Jonesy's Dairy Fresh Pty Ltd, defended the proceedings.

1. The consent holder contests that the Council's decision was affected by procedural impropriety or irrationality in the ways claimed by Mr Simpson. It submits that the Council was not obliged to comply with the notification requirements of DCP 8 and the Council did consider the relevant matters of the impacts of noise and odour. If, however, the Council did err by failing to give notification of the proposed development or to consider noise and odour impacts, the consent holder submits the Court should exercise its discretion not to set aside the development consent, either inherent in the power to remedy the breach or under s 25B of the Land and Environment Court Act 1979 ('Court Act').

1. I find the Council's exercise of power to grant the development consent has miscarried by the Council failing to give proper notification of the proposed development, in breach of the applicable statutory requirements. However, I find that Mr Simpson has not established that the Council failed to consider the relevant matters of noise and odour impacts of the proposed development. I consider that the appropriate remedy for the breach of the notification requirements is to declare the development consent invalid. I do not consider it appropriate to exercise the discretion not to make a declaration of invalidity.

Failure to notify the development application

The applicable statutory requirements

1. The land is zoned 2(v) (Village or Urban Zone) under the applicable Wakool Local Environmental Plan 1992 ('LEP'). In that zone, development for the purposes of 'industry' or 'rural industry' is permissible with consent. The proposed dairy processing plant was for either of these purposes.

1. Pursuant to s 29A of the Environmental Planning and Assessment Act 1979 ('EPA Act'), cl 21 of the LEP identifies certain development as advertised development for the purposes of the EPA Act. The development identified as advertised development is development for the purposes specified in sch 2 of the LEP. The proposed development of a dairy processing plant is not development for any of the purposes specified in sch 2 of the LEP. Hence, the proposed development is not identified as advertised development by the LEP.

1. Two development control plans, adopted by the Council under what was then s 72 of the EPA Act, apply to the land. The first is Development Control Plan No 1 - Shire of Wakool ('DCP 1'). DCP 1 applies to parts of five villages in the Shire of Wakool, including Barham, shown on Maps 1 and 2 of DCP 1. The land is within a part of the village of Barham shown on these maps. DCP 1 divides land to which DCP 1 applies into precincts. The land is within Precinct 4(a) - Industrial. DCP 1 represents the Council's policy for land use precincts (cl 3.1 of DCP 1). For the industrial precinct, the policy is to concentrate industrial activities in the industrial precinct to avoid conflict between industrial land use and other uses (cl 4.3(a)(i) of DCP 1). Use for the purposes of industry or rural industry is permissible with consent in the industrial precinct.

1. DCP 1 requires notice to be given of certain proposed developments in the industrial precinct. Clause 4.3(a)(ii) provides:

Any proposed development of vacant industrial land or change of land use within an existing industrial premises will require written notification to the adjoining property owners and occupants prior to the application being determined by Council. The notice shall allow a fourteen (14) day period for any submissions to be lodged with Council.

1. The second development control plan is DCP 8. DCP 8 applies to all land within the Shire of Wakool. Hence, it applies to the land. DCP 8 provides requirements for public notification of proposed development additional to the public notification requirements in the EPA Act, Environmental Planning and Assessment Regulation 2000 ('EPA Regulation') and cl 21 of the LEP. DCP 8 states that it 'applies where the proposed development is not required to be advertised under state or federal legislation; or is not listed in the Wakool Local Environmental Plan 1992: Schedule 2 - Development which must be advertised'. As I have noted, the proposed development of the dairy processing plant is not development identified in sch 2 of the LEP as development which must be advertised. DCP 8 identifies particular purposes of development to which the notification policy in DCP 8 applies. Industries in the zone 2(v) (Village or Urban Zone) are such development. DCP 8 states the notification that is required:

Both owners and occupiers of land that adjoins a site where an application has been received and owners and occupiers of land that may be affected by a development proposal will be notified in writing. Adjoining land will include land that is opposite or directly abuts a site, or is separated from it only by a pathway, driveway, laneway or similar thoroughfare.

Council reserves the right to notify any public authority likely to be affected, or any other individual, organization, group or similar that may be affected by the proposal.

Notification will include the address of the subject premises, applicants' details, a brief description of the development, details of where and when the application can be viewed, and details of the period in which Council will accept submissions.

Applications can be inspected for a period of seven (7) days. Details of this period will be provided in the notification letter.

1. Section 79A of the EPA Act requires proposed development identified as advertised development or specified as other notifiable development to be advertised or notified in accordance with the applicable requirements for advertising or notification. In particular, s 79A(2) provides:

A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application.

The notification given

1. The Council did give notice of the proposed development. However, it did so under DCP 1 only and not under DCP 8. Hence, it gave notice only to adjoining landowners, being seven persons who own six parcels of land to the north, east and south of the land.

1. The written notice was in the form of a letter dated 12 August 2011 identifying the development application ('development application 31/11'), the address of the land ('Lot 47, 94 & 115 DP 756508 - 49 Parkman Avenue, Barham'), the applicant's details ('Jonesy's Dairy Fresh Pty Ltd'), a brief description of the development ('change of use to a dairy processing plant producing cheese, yoghurt and flavoured milk'), details of where and when the application could be viewed ('the full application is available for viewing at the Barham Office during normal business hours'), and details of the period in which the Council would accept submissions ('Any objection to the proposal must be in writing, and addressed to the General Manager, Wakool Shire Council, Private Bag 40, Moulamein 2733. It must reach Council no later than 4pm Friday 26 August 2011').

1. The letter enclosed a proforma response form which could be used by persons wishing to comment or lodge an objection. The letter also enclosed the proposed site plan for the development.

1. Three of the people notified by the Council lodged objections to the proposed development, completing the proforma response form.

The notification was defective

1. Mr Simpson submits that the Council's notification of the development application was defective because the Council did not comply with the notification requirements of DCP 8 that were applicable. I agree.

1. DCP 8 requires notification to be given not only to owners and occupiers of land that adjoins the proposed development site but also to owners and occupiers of land that may be affected by the development proposal. The Council only ever sought to notify immediately adjoining owners. This was because the Council only sought to comply with the requirements of DCP 1. DCP 1 only requires notification to be given to 'the adjoining property owners and occupants'. The Council never sought to apply DCP 8 and hence did not consider who might be 'owners and occupiers of land that may be affected by' the proposed development. That the Council only considered and applied DCP 1, and not DCP 8, is evident from the council officer's report to the ordinary council meeting on 21 September 2011, which states expressly that, '[a]s required by DCP No. 1 the application was notified to immediately adjoining owners', as well as from the notification letters themselves which all stated that each of the persons being notified is 'an adjoining landowner'. Nowhere in the Council's file, or in the evidence before the Court, is there any indication that the Council considered DCP 8, or sought to give notification as required by DCP 8.

1. The Council was required, under s 79C(1)(a)(iii) of the EPA Act, to take into consideration the provisions of any applicable development control plan. DCP 8 was an applicable development control plan that the Council was required to take into consideration.

1. DCP 8 provides the notification policy for development applications for development of all land in the Shire of Wakool, including specifying the classes of persons to whom notification is required to be given (stated in the section 'Notification format' in DCP 8). Taking DCP 8 into consideration for a particular development application entails identifying the particular persons who fall within the classes of persons to whom notification is required to be given under DCP 8. The Council was, therefore, required to identify not only the owners and occupiers of land that adjoins the site of the proposed development of the dairy processing plant but also the owners and occupiers of land that may be affected by the proposed development. Although the Council did identify the persons who were the adjoining landowners, it did not consider and identify whether there were any other owners and occupiers of land that may be affected by the proposed development. The Council thereby failed to take into consideration DCP 8.

1. The Council's failure to consider DCP 8 led to its failure to give notification in accordance with DCP 8. The Council gave notice to owners and occupiers of land that adjoins the site of the proposed development but not to any other owner or occupier of land that may be affected by the proposed development.

1. As a matter of fact, other owners and occupiers of land in the vicinity of the proposed development made submissions objecting to a later application to modify the development consent, and some of these persons have given evidence at the hearing, claiming that they would be adversely affected by traffic, noise, odour and amenity impacts of the proposed development. There were, therefore, owners and occupiers of land whom the Council could have considered may be affected by the proposed development and, in that event, to whom notification would therefore have needed to have been given under DCP 8.

1. A failure to notify the development application for the proposed development in accordance with DCP 8 is a breach of s 79A(2) of the EPA Act.

1. The consent holder does not contest that, as a matter of fact, the Council did not comply with the notification requirements in DCP 8 and, in particular, did not notify all owners and occupiers of land that may be affected by the proposed development, but the consent holder submits that the Council was not required to do so. The consent holder submits that DCP 8 did not apply because the proposed development was required to be advertised under the EPA Act (and hence the proposed development did not fall within the 'Application' section of DCP 8). The reason the consent holder submitted that the proposed development was required to be advertised under the EPA Act was that it was required to be notified under cl 4.3(a)(ii) of DCP 1. Under s 74C(1)(b) of the EPA Act, a development control plan can identify development as advertised development. Development so identified by a development control plan is 'advertised development' for the purposes of the EPA Act (see definition of 'advertised development' in s 4(1) of the EPA Act). If development is advertised development then the statutory requirements for notification would not be those provided in s 79A(2) but rather those provided in s 79A(1) of the EPA Act. The Council would not, therefore, have been required to comply with the notification requirements of DCP 8 or s 79A(2) of the Act.

1. I reject the consent holder's argument. The facts that DCP 1 applies to the land and cl 4.3(a)(ii) requires written notification to be given to adjoining property owners and occupiers, do not make the proposed development 'advertised development' for the purposes of the EPA Act. The definition of advertised development in s 4(1) and the provisions of ss 29A(1) and 74C(1)(b) make clear that the environmental planning instrument or development control plan must 'identify development as advertised development'. Identification requires that the environmental planning instrument or development control plan specify that particular development or development of a particular class is advertised development for the purposes of the EPA Act or state that the provisions of the EPA Act and EPA Regulation regarding advertised development apply to such development.

1. In this case, the LEP, by cl 21, does identify particular development, being development for the purposes specified in sch 2 of the LEP, as advertised development by applying the provisions of the EPA Act regarding advertised development to the identified development. The proposed development of the dairy processing plant is not one of the identified purposes of development. However, neither DCP 1 nor DCP 8 similarly identify any particular development or class of development as advertised development.

1. Clause 4.3(a)(ii) of DCP 1 does not identify any particular development or class of development but rather applies to '[a]ny proposed development of vacant industrial land or change of land use within an existing industrial premises'. The clause does not specify that any such development is advertised development for the purposes of the EPA Act or apply the provisions of the EPA Act and the EPA Regulation regarding advertised development to any such development. Indeed, the clause does not require advertisement by way of published notice in a local newspaper (as would be required for advertised development), but rather only requires written notice to be given to adjoining landowners and occupiers.

1. DCP 8 does specify the particular development to which DCP 8 applies but does not identify such development as advertised development by specifying that such development is advertised development for the purposes of the EPA Act or by applying the provisions of the EPA Act or EPA Regulation regarding advertised development to such development. Indeed, DCP 8 expressly excludes from its application development which is required to be advertised under the EPA Act and the LEP.

1. Hence, the proposed development of the dairy processing plant is not identified by the LEP, DCP 1 or DCP 8 as advertised development. The notification requirements in DCP 8 are therefore applicable to the proposed development, as are those in s 79A(2) of the EPA Act.

1. I should note that the consent holder's argument that the proposed development was advertised development would not have assisted the consent holder in any event in disproving a breach of the notification and advertising requirements. If the proposed development had been advertised development, the Council would have been required to have notified and advertised the development application in accordance with s 79A(1) of the EPA Act and cls 87-91 of the EPA Regulation. Amongst the requirements are that notice of the development application be published in a local newspaper and that the written notice to be given to adjoining landowners and occupiers state that the period for inspection and submission commences on the day after the day on which the published notice was first published in a newspaper. In this case, the Council did not publish any notice in the local newspaper of the development application and the written notice it gave to adjoining landowners and occupiers did not specify a period for inspection and submission commencing on the day after any published notice was given. Hence, the Council did not comply with the notification and advertisement requirements for advertised development in any event.

1. In conclusion, the Council has failed to comply with the notification requirements of DCP 8 and s 79A(2) of the EPA Act in relation to the development application for the proposed dairy processing plant.

Failure to consider noise and odour impacts

Noise and odour impacts are relevant matters to consider

1. The Council was obliged under s 79C(1) of the EPA Act, in determining the development application, to take into consideration, amongst other matters, the likely impacts of the proposed development, including environmental impacts on the natural and built environments. Local residents who made submissions objecting to the proposed development identified that it would be likely to have impacts in terms of traffic, noise and odour and on the amenity of the surrounding neighbourhood. The council officer's report assessing the development application also identified these impacts. They were relevant matters the Council was bound to take into consideration in determining the development application for the proposed development.

The parties' competing contentions on failure to consider relevant matters

1. Mr Simpson contends the Council failed to take into consideration the noise and odour impacts of the proposed development. Although the issues of noise and odour impact were raised by the objecting residents and the council officer, Mr Simpson contends that there was insufficient information on these impacts for the Council to discharge its duty to take these impacts into consideration. Consideration of relevant matters involves more than the matters merely being adverted to or given lip service: Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 at [86]; Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 at [58]. There needs to be an understanding of the 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: Weal v Bathurst City Council at [13], [96]; Centro Properties Limited v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257 at [37]. Mr Simpson submits that the Council had identified that the information before it on noise and odour impacts of the proposed development was inadequate yet it went ahead and granted development consent notwithstanding this information deficiency. There was, Mr Simpson contends, a failure to consider the noise and odour impacts in these circumstances.

1. Alternatively, Mr Simpson contends that the Council, in granting development consent subject to condition 2 (which provided for a trial period of 18 months) and condition 16 (which required provision of an acoustic report on noise generated from certain plant and equipment), deferred consideration of the relevant matters of noise and odour impacts: Remath Investments No 6 Pty Ltd v Botany Bay City Council (No 2) (Unreported, Land and Environment Court of NSW, Talbot J, 11 December 1996) at 9-10; Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275-276; Weal v Bathurst City Council at [91]-[97]; Farah v Warringah Council [2006] NSWLEC 191 at [66]. This too, Mr Simpson submits, involved a failure to consider the noise and odour impacts at the time of determining to grant consent to the development application.

1. The consent holder disputes Mr Simpson's contentions. It says the issues of traffic, noise, odour and amenity impacts of the proposed development were squarely raised in the materials before the Council, analysed, and addressed by conditions of consent. The fact that the local residents, or the Court if it had been the consent authority, might have dealt with and determined the development application differently, does not negate the adequacy of the Council's consideration of these issues.

1. The question of whether a relevant matter has been considered is an evaluative process based on what the decision-maker has said, written or done: Anderson v Director General of the Department of Environment and Climate Change at [58], [60]. Where the decision-maker is a collegiate body such as a local council, the members of the local council can rely on the consideration and conclusions in the officer's report considered by the members: Parramatta City Council v Hale (1982) 47 LGRA 319 at 346; Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 at [59]; Centro Properties Limited v Hurstville City Council at [54], [55]. The officer's report that was considered and adopted by the Council in this case is evidence of what the Council as the decision-maker has said, written or done.

1. The Council in this case determined the development application at its meeting on 21 September 2011. The Council had before it a council officer's report assessing the development application and two sets of attachments. The first attachment comprised the plans for the proposed development, a brief statement of environmental effects submitted by the applicant with the development application, and a letter from the applicant responding to the council officer's request for further information on the proposed development and its impacts. The second attachment comprised the three letters of objection from local residents.

1. The consent holder submits that these information materials were sufficient to enable the Council to consider the noise and odour impacts of the proposed development and that the Council, by adopting the officer's recommendation and determining to grant development consent on the conditions it did, actually considered the impacts of noise and odour at the time of granting consent and did not defer consideration of the matters.

Failure to consider relevant matters not established

1. I agree with the consent holder that Mr Simpson has not established either that the Council had insufficient information to discharge its duty to consider the impacts of noise and odour or that the Council did not in fact take into consideration the impacts of noise and odour in determining the development application for the proposed development.

1. First, the Council was informed of the essential characteristics of the development. The development application proposed a change of use and fitout of an existing industrial building, which was formerly used as an office facility/process plant for water treatment plants by the former Wakool Water. The Council owned the land and was selling it to the applicant. The Council must be presumed to have knowledge of the land and the existing building on the land that it owned. The plans submitted with the development application (and attached to the officer's report before the Council) showed the existing factory and the re-use proposed. The officer's report described the proposed development, including the following summary:

2.Description of the development

The applicant intends to establish and operate a dairy processing plant comprising the following elements and details:

(i)producing flavoured milk, skim milk, yoghurt (including drinking, flavoured and Greek style), cheese (camembert, brie, hard);

(ii)potential to process up to 1.4 million litres of milk;

(iii)30,000 litre inward milk silo, 12,000 litre outward storage silo;

(iv)pasteurizer for milk treatment;

(v)separator - separate butterfat from the milk;

(vi)4 vats for cheese making - approximately 1,000 litres each;

(vii)boiler and water chiller;

(viii)Stated hours of operation:

Initially one shift per day, 7am - 6pm Monday to Friday.

With growth of the business a second shift is proposed entailing hours of operation from 6am to 12am Monday to Friday.

Delivery of milk to the premises on Sundays if required (times not specified).

The applicant has also stated that once the plant is established it is intended to show case local product and set up a tearoom in the mezzanine floor area to provide tastings and buy local product. It is hoped to attract busloads of tourists as well as private individuals.

An extract of the lodged DA plans and other relevant documentation is at Attachment 1.

1. Attachment 1 to the officer's report contained information submitted by the applicant in support of the development application, including a description of the development. In the supplementary letter of 2 August 2011 (also attached to the officer's report before the Council), the applicant said:

Processing Procedure

Milk will be brought in from the farm in a raw state, it will be then placed in a holding silo and processed as required. The first stage of this will be pasteurization, which requires the milk to be heated to 72 degrees and held for 3 seconds. The butterfat will be separated from the milk depending on the product to be made it will be directed to either cheese manufacturing or flavoured milks or other products.

Products to be generated

Flavoured milk

Skim Milk

Drinking Yoghurt

Camembert Cheese

Brie Cheese

Hard Cheese

Flavoured yoghurts

Greek style yoghurt

Description of the Major Plant

Inward milk storage silo - 30,000 litres.

Outward storage silo for whey 12,000 litres.

Pasteurizer for the treatment of milk.

Separator to separate butterfat from milk.

4 vats for cheesemaking. Approx. 1,000 litres each.

Water chillers.

Boiler.

Capacity of the equipment

The pasteurizer and the separator have the capacity to do 4,000 litres per hour. However it is not intended that these will operate for long periods of time and the processing at the plant will be small scale and labour intensive compared to big milk processors.

We anticipate that [in] financial year 2013-2014 that we would process ... approximately 1.4m litres of milk, this is our best estimate as it is difficult to project too far forward at this stage.

1. Secondly, the Council was informed of the issues raised by objectors and the Council's Senior Health and Building Surveyor relating to noise, odour, traffic generation and amenity. These issues were discussed in the officer's report before the Council. The 'considerable concern' raised by objectors was summarised in a table in the officer's report:

Issue

Detail

Noise

Concerns in relation to noise include noise from:

traffic using the site, vehicles loading and unloading and noise being more of an impact during night time hours;

refrigeration units.

Odour

Concerns are held for potential odour from the processes involved and from break downs and spills.

Traffic generation

Concerns are held for the nature and volume of additional traffic in the locality including dust from Parkham [sic] Avenue and noise associated with increased truck movements.

Amenity

From the above issues concerns are held for the proposal to adversely impact the amenity and lifestyle of existing (and future) residents in the locality.

1. Copies of the three submissions made by objectors were attached to the officer's report before the Council. The first submission stated:

As we have plans for the development of 32 house blocks directly alongside this factory we have huge reservations in regard to odour and noise issues which may devalue our investment significantly. Having spoken to someone who has worked in a cheese factory for years, I would seriously question the merit of building one in such a central urban area. Break-downs and spills are inevitable and a factory working nightshift is bound to have noise issues including traffic.

1. The second submission stated:

My concern re this development is the odour level that will come from this processing plant also the level of noise from refrigeration units, and who and how these will be monitored.

1. The third submission stated:

We have a granny flat in our backyard where Les' mother who is in her 80's resides. We are concerned about the impact of the factory on her lifestyle as well as our own. A factory producing cheese and yoghurt would surely have odour issues, the traffic on Parkman Ave (dirt road dust, the noise from trucks loading, unloading, cleaning machinery) - probably not huge through the day - but working 24 hours would not be tolerable.

1. The officer's report noted that the Council's Senior Health and Building Surveyor had raised concerns about the proposed development and the sufficiency of information provided in the development application. The whole of the Senior Health and Building Surveyor's memorandum dated 22 August 2011 was quoted in the officer's report. In relation to the issues of noise and odour, the Senior Health and Building Surveyor said:

There appears to be no detail on the location or noise reduction method proposed for the compressors that will be required for the refrigeration system. Given the nature and size of the cool rooms, it is imperative that Council is provided with comprehensive details of the installation, and in particular, the method of minimising noise disturbance to adjoining residential development. It is suggested that this should be the subject of an investigation and report by a qualified consultant, as this aspect of the development is probably the one that will cause the most complaints. The following condition should be attached to the Development Consent:

'Council must be furnished with a report from a suitably qualified consultant that includes the following:

(a)A detailed assessment of background noise levels.

(b)A detailed assessment of the type and location of all proposed refrigeration equipment and all associated machinery.

(c) A detailed assessment of any operational equipment that is proposed to be used in the processing of the product, and its likely impact on surrounding residential development.

(d)An analysis of traffic movement and the likely impact on the surrounding residential development.

(e)A detailed proposal that addresses any issues that are identified at items (b) (c) & (d), including, but not limited to, the appropriate design of any noise reducing barriers or enclosures.

This report must be submitted to Council as a part of the documentation required for the assessment of the Construction Certificate'.

There is only a brief reference in the application to odour and it is doubtful that the type of processing involved can be undertaken without creating odour. Given the proximity to residential development, it would be appropriate for the applicant to amplify his statements about this aspect, and perhaps also appropriate for him to provide some form of documentary evidence from a suitably qualified and independent consultant that could confirm his assertions that there will be no odour.

1. Thirdly, the Council was informed of the assessing officer's consideration of the issues of noise, odour, traffic generation and amenity, as well as liquid trade waste, including how these issues should be addressed by appropriate conditions of consent.

1. In relation to noise, the officer's report said:

As mentioned above concerns were raised in relation to noise in all three (3) submissions made to Council on the application. These concerns include the potential for noise from:

traffic using the site, vehicles loading and unloading and noise being more of an impact during night time hours;

refrigeration units.

As little documentation has been submitted in relation to the noise generating potential of this development, particularly night time operation it is not surprising that concerns are raised. The DA makes no statement nor provides any information about projected noise levels associated with the development (machinery/ equipment, processes, traffic movements etc) despite being requested to do so in information handed to the applicant in a 'pre-DA' meeting with the applicant on 27 May 2011.

There are no details provided of where compressor/refrigeration units are to be located or on the number and specification of such units. The compressor/refrigeration units are likely to be a source of noise generation and complaint to nearby residences in the evening hours in particular. Traffic movement to and from the site and external activity on site such as loading and unloading is likely to also cause local noise nuisance in the evenings.

It is considered for these reasons that night time operations should not be permitted at this stage. This can be conditioned as part of the development consent. However, should the enterprise operate in a responsible manner it may be possible to consider a section 96 application for modification of consent seeking a variation of approved hours of operation provided that a noise assessment report that meets the guidelines set out in the former NSW EPA's 'NSW industrial noise policy' (including determining the project-specific noise levels, predicting level of noise from the source and determine noise impact, considering mitigation options, negotiation of acceptable level of impact) is submitted by the applicant.

1. This assessment identifies noise impacts as arising from two sources: traffic using the site, including vehicles loading and unloading, and refrigeration units. Both noise sources would have more impact during night time hours. The officer recommended addressing and mitigating those noise impacts by imposition of conditions. These proposed conditions were included in Schedule 1 to the officer's report.

1. The officer's proposed conditions 3 and 4 addressed the potential sources of noise from traffic and loading and unloading of vehicles by limiting the hours of operation so as to exclude evening and night time operations. Hence, if conditions 3 and 4 were imposed, there would be no traffic using the site or vehicle loading and unloading in evening or night time hours and hence no noise impact on surrounding residential properties from these potential sources of noise in these hours. Proposed condition 3 stated:

Approved hours of operation - The approved hours of operation are:

From 6am until 6pm, Monday to Friday for any manufacturing, processing, or service and maintenance operations, heavy vehicle deliveries or dispatches, loading and unloading operations.

From 7am until 5pm [on] Saturdays

On Sundays and Public Holidays there shall be no operations permitted (that is no manufacturing or processing, service and maintenance of vehicles, plant or equipment) however milk delivery trucks will be permitted to deliver to the site on Sundays, but only between the hours of 7am and 6pm.

Reason - to protect and maintain the amenity of the adjacent residential neighbourhood and to ensure that adjoining residents are not subjected to intrusive and offensive noise, and other impacts that have not been disclosed by the application.

1. Proposed condition 4 stated:

This Consent specifically excludes the following:

(a)Evening or night time operations of any kind or description outside of the approved hours of operation specified in condition 3.

(b)Approval for use, for any purpose whatsoever, of the mezzanine area. A separate and specific application and consent to use this space is required.

Note: The applicant's attention is drawn to the provisions of the Premises Standards that may affect the use of this area.

Reason for 4(a) - to maintain the amenity of the adjacent residential neighbourhood and to ensure that adjoining residents are not subjected to intrusive and offensive noise, particularly in the evenings.

Reason for 4(b) - there is no current approved use of the mezzanine which was indicated on the approved plans for DA 21/02 and CC 88/03 as future office (and future stairs).

1. The officer's proposed condition 15 addressed the second potential source of noise from the refrigeration units by requiring verification from an acoustical engineer that the refrigeration units would not cause intrusive noise. This verification was required to be submitted before the issue of a construction certificate and hence before the applicant could carry out the development. If verification that the refrigeration units would not cause intrusive noise was not provided, the construction certificate could not be issued and the proposed development could not be carried out. The officer's proposed condition 15 provided:

The applicant must, prior to the issue of a Construction Certificate, provide details of the number, nature and location of internal and external compressors and other refrigeration plant/equipment, including details of enclosure and sound proofing, with verification (e.g. an acoustical engineer's report) that night time operation in particular will not cause an intrusive noise impact ie in general, where the equivalent continuous (energy-average) A-weighted level of noise from the source (represented by the LAeq descriptor), measured over a 15-minute period, does not exceed the background noise level measured in the absence of the source by more than 5 dB (or LAeq 15 minute is less than or equal to rating background level plus 5), where:

LAeq 15 minute represents the equivalent continuous (energy average) A-weighted sound pressure level of the source over 15 minutes.

Note: Other descriptors may be used as appropriate provided they can be justified on the basis of being characteristic of the source (see Section 2.3 NSW industrial noise policy). This is to be assessed at the most-affected point on or within the residential property boundary - or, if that is more than 30m from the residence, at the most-affected point within 30m of the residence. Rating background level is the background level to be used for assessment purposes as determined by the method outlined in Section 3.1. NSW industrial noise policy.

Council reserves the right to require the applicant, at their sole cost and expense, to engage the services of an appropriately qualified person to determine compliance with the foregoing condition, in any case where Council is in receipt of a bona fide complaint from any occupant of an affected residence.

Reason - to ensure that any externally located compressors and other refrigeration plant/equipment not disclosed or documented as part of the application operate within reasonable limits set by noise management guidelines and policy.

1. The officer's proposed condition 2 provided an additional safeguard limiting the duration of the consent to a trial period of 18 months in order to verify that the development could operate without causing intrusive and offensive noise or impairing the amenity of the neighbourhood. The officer's proposed condition 2 provided:

Operational period of consent - Consent to operate the premises in the manner approved is granted for a maximum period of 18 months. This period is to commence from the date of the issue of an Occupation Certificate or Interim Occupation Certificate in respect of this Development Application and Consent. The Council in its absolute discretion will determine whether to extend this period following a review of the operation of the premises over the first twelve months of this period. The period of any extension so granted will be dependent on the satisfactory compliance with the terms of the conditions of consent attached to this Consent.

Should the applicant not apply for, or be issued with, an Occupation Certificate or Interim Occupation Certificate, then this consent will lapse 12 months after the date shown on this Development Consent.

Reason - to protect and maintain the amenity of the adjacent residential neighbourhood and to ensure that adjoining residents are not subjected to intrusive and offensive noise, and other impacts that have not been disclosed by the application.

1. In relation to odour, the officer's report stated:

Again as mentioned above concerns were raised in relation to possible odour issues in all three (3) submissions made. These concerns are held due to unknown nature of the manufacturing processes involved and from possible break downs and spillages for instance.

The containment and minimisation of spills and the quick cleaning up of spillage will be one key measure to reducing and managing odours as will the adequate treatment and disposal of liquid waste. Also key to odour reduction will be the containment and minimisation of odour from manufacturing processes. There is no detail in particular in relation to this aspect. Processing will occur within the existing but to be modified shed - however there are no details of the nature and kind of potential odours, containment, treatment or otherwise.

In the circumstances it would seem reasonable to issue a time limited consent initially (e.g. 18 months) for an enterprise that operates largely through daylight hours.

1. The officer's report also dealt with odour in the section on amenity, discussed below.

1. Attachment 1 to the officer's report contained information from the applicant, including on the issue of odours. In the original statement of environment effects (attached to the officer's report before the Council), the applicant said:

By Products & Waste Water

By-products such as whey that would be generated through the process would be carted off site and fed to stock back at Kerang. The process will not produce odours, and the only waste that will be on the site will be washdown water from the washing of equipment and storage tanks. This water will gravitate to a treatment tank where it will be held and the pH level monitored and treated if necessary. The water would be then pumped into tanks for re-use on gardens or diverted into the sewerage system. These storage tanks would be a total storage volume of 40,000 litres. We believe that we would use approximately 4,000 litres per day. 1,000 litres of this to wash the milk tanker and approximately 2,500 washing pasteurisers, separator, vats and floor. The water will be a combination of hot and cold water, alkaline detergents and caustic soda would be used in the cleaning of the plant which would be the same detergents used in a normal dairy. This water as mentioned will be held, monitored, treated and released.

1. In the supplementary letter dated 2 August 2011 (also attached to the officer's report before the Council), the applicant said:

Odours and Waste

The whey material will be transported off site and the remainder of the product will be processed and packed, so we are confident that there will be no odours. Testimony to this is the current processor that we use in Kyabram, who are processing a far larger quantity of milk than we envisage being done at Barham, their plant is in an industrial estate and there are no smells or odours relative to this amount of processing.

1. The officer's report did not propose any conditions directly dealing with odour. However, the officer's proposed conditions 3 and 4 limiting the hours of operation by excluding evening and night time operations would limit the potential for emission of odours from processing at those times and hence limit adverse effects from odour. The officer's report also noted that the proposed condition 2 fixing a trial period of 18 months would allow demonstration that the development, which would operate largely through daylight hours, can operate without causing odour impacts as stated by the applicant.

1. In relation to traffic, the officer's report noted the concerns raised by objectors about additional traffic and noise associated with increased truck movements. The officer's report, in the section on noise and in the proposed conditions, recommended limiting the operation to daytime hours so as to avoid traffic movement to and from the site in the evening and night times. In the section on traffic generation and access, the officer's report also recommended specification of the route of access for heavy vehicles to reduce impacts on local residents:

The route of access for heavy vehicles has not been identified by the applicant. The route of access that is likely to have less impact on the local road system and on local residents is via Moulamein Road, Lawson Street turning into Parkman Ave at its northern end. This is mostly sealed road except for a small section of Parkman Avenue north of the site.

Any approval of the development should be conditioned to require that heavy traffic accessing the site be via the northern end of Parkman Ave using Moulamein Road, Lawson Street. This will reduce the impact on the longer length of the unsealed section of Parkman Avenue south of the site and confine such heavier transport movements to mostly sealed road.

1. The officer's proposed condition 17 implemented this recommendation. It stated:

Heavy vehicles traffic accessing the site shall only do so via the northern end of the Parkman Ave using Moulamein Road, Lawson Street. This is the approved heavy vehicle route for the development. In this condition heavy vehicles includes all vehicles larger and heavier than a conventional sedan, station wagon or utility.

Reason - to reduce the impact on the longer length of the unsealed section of Parkman Avenue south of the site and confine such heavier transport movements to mostly sealed road.

1. In relation to amenity, the officer's report stated:

Impacts on local residential amenity are likely to be associated with any potential noise and odour that might be generated and via heavy truck movements.

In the case of noise if the approval is limited to a specified limited period (e.g. 18 months) and a largely day time enterprise initially and the operation demonstrates that it can perform its business without an unacceptable level of noise approval may be considered to extend the consent for daylight operations (via a modification of development consent process).

However before an extension of operating hours is considered the applicant should be required to provide a noise assessment report that meets the guidelines set out in the former NSW EPA's 'NSW industrial noise policy' (including determining the project-specific noise levels, predicting level of noise from the source determining noise impact, considering mitigation options, negotiation of acceptable level of impact) that demonstrates that the enterprise can operate within acceptable noise levels against lower background noise levels that prevail at night time.

Similarly, in the case of odour the issue of an initially time limited consent should allow Council to determine if odour emission is an issue with the enterprise. If so extension of the consent and/or operating hours should only [be] considered if either the enterprise has shown to operate with no odour problems or [the] applicant take steps to address the matters by submitting an odour assessment and management study (with a modification of consent application) that addresses this issue particularly addressing means of reducing and managing odours within acceptable levels.

1. The proposed conditions referred to are those to which reference has already been made, namely the officer's proposed conditions 3 and 4 limiting operation to daylight hours, condition 15 requiring noise assessment and verification before construction, and condition 2 fixing a trial period of 18 months.

1. In relation to liquid trade waste, the officer's report noted that the proposed development would generate liquid trade waste which would need to be disposed of into the Council's sewer. This required a separate application and approval under s 68 of the Local Government Act1993. The liquid trade waste application and the approval would address the sources and the proper storage, containment and disposal of liquid waste. The proper storage, containment and disposal of liquid trade waste would mitigate odours from liquid trade waste. The officer's report recommended a condition of consent requiring application and approval for liquid trade waste to be obtained prior to the commencement of the development. The officer's proposed condition 13 stated:

An application and approval under the provisions of Section 68, Local Government Act 1993, to discharge liquid trade waste to Council's sewer system must be obtained from Council prior to the commencement of any operation or process that involves the discharge of any liquid waste to Council's sewer.

Note: This application and approval will require the prior concurrence of the NSW Office of Water.

Reason - to ensure compliance with the Local Government Act 1993 [and] the NSW Government's Liquid Trade Waste Regulation Guidelines.

1. After dealing with these specific issues, the officer's report assessed generally the relevant matters in s 79C(1) of the EPA Act, including paragraph (b):

(b)the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

Comment: the application is not expected to have an adverse environmental, social and economic impact upon the local environment nor upon the natural and built environment of the locality provided the development:

is well managed;

operates within acceptable environmental limits and within the scale outlined in the application; and

otherwise complies with approved conditions.

1. The officer's report concluded that the development application should be supported provided appropriate conditions are imposed. The officer's report stated:

In conclusion it is considered that the development application can be supported provided appropriate conditions are imposed and adhered to so as to ensure that it operates in a manner and at a scale whereby it does not result in any adverse impacts such as noise, odour and poor waste water/liquid trade waste management.

The submissions to the application have been considered and adequately reported on in this report. The proposed development consent conditions outlined in Schedule 1 to this report following the recommendation are proposed to help control impacts of the development, meet statutory requirements and protect the public interest.

1. The Council, at its meeting on 21 September 2011, considered the officer's report, including the attachments, and resolved unanimously to adopt the recommendation of the officer's report that development consent be granted on the conditions proposed in Schedule 1 to the report. The proposed conditions were renumbered in Schedule 1 to correct a typographical error of having two conditions numbered 4 in the officer's report, but there was no change to the text of the proposed conditions.

1. By considering the assessment of the relevant matters, including of noise and odour impacts, and the recommendations made in the officer's report, including the recommended conditions to address the relevant matters, the Council took such relevant matters into consideration: Parramatta City Council v Hale at 346.

1. As I have indicated, the process to be undertaken on judicial review on the ground of failure to consider relevant matters is an evaluative one, based on what the decision-maker has said, written or done. Here, the decision-maker was the Council as a collegiate body. Its consideration of the development application included the consideration of the development application by the officer in the officer's report to the Council. I do not accept Mr Simpson's contention that the officer in his report failed to consider, actually or constructively, the noise and odour impacts.

1. Although the officer identified that there were deficiencies in the information submitted by the applicant on the impacts of the proposed development, including on the noise and odour impacts, the officer considered that these information deficiencies were able to be overcome by way of imposition of appropriate conditions.

1. First, the officer noted that noise and odour impacts on surrounding residential areas were of most concern in the evening and night time hours. A solution to not having sufficient information on the noise and odour impacts in those hours of most concern was to preclude operations and any concomitant noise and odour impacts in those hours. This was the solution recommended by the officer and adopted by the Council. Conditions 3 and 4 precluded operation at those times of most concern, resulting in an enterprise that operates only through daylight hours.

1. Hence, there would be no noise impacts from traffic using the site, vehicles loading and unloading, or traffic passing through the residential streets en route to or from the site, during the evening and night time hours. There would also be no odour impacts from the manufacturing process or breakdowns or spillages during manufacturing process in the evening or night time hours. The only potential source of noise in the evening and night time hours would be from the refrigeration units which would continue to run through those hours. However, condition 16 of the consent (the officer's proposed condition 15) required verification, such as by an acoustical engineer's report, that night time operations in particular will not cause any intrusive noise. Only if such verification were to be provided, could the construction certificate be issued and the development be carried out. This mechanism overcomes the information deficiency regarding noise from the refrigeration units and fixes a performance outcome of no intrusive noise.

1. Secondly, although noise and odour impacts were of most concern in the evening and night time hours, other conditions did mitigate noise and odour impacts during daylight hours. Noise and dust impacts from traffic passing through residential areas to and from the site were to be mitigated by specification of an access route and confining heavy traffic to that route (condition 18 of the consent and the officer's proposed condition 17). Odour impacts from liquid trade waste generated during operations were to be mitigated by requiring an application and approval under s 68 of the Local Government Act 1993 to discharge liquid trade waste to the Council's sewer system. The process of approval of liquid trade waste involves addressing and requiring the proper storage, containment and disposal of liquid trade waste, thereby minimising odours from the liquid trade waste.

1. The officer stated in the report that the development was not expected to have an adverse environmental, social or economic impact upon the local environment if it complies with the proposed conditions. However, the officer recommended a further condition to check that adverse impacts do not occur by imposing a trial period of 18 months (condition 2). If the applicant wished to extend the operation of the development beyond the 18 month trial period, it would need to demonstrate that the development can operate without unacceptable noise and odour impacts by reference to its performance during the trial period.

1. The imposition of a trial period does not involve a failure to take into consideration or a deferral of consideration of likely impacts of a proposed development. As Spigelman CJ held in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589; (2001) 115 LGERA 373 at [83]-[85]:

I do not see any necessary incompatibility between the imposition of a condition limiting a proposed use to a probationary or trial period and the statutory requirement that the decision-maker 'take into consideration' both the 'likely impact of the development' and 'the suitability of the site for the development'. It is possible to 'take into consideration' matters even though their full significance cannot be known with precision.

Where, as in this case, the nature of the development application is for the 'use' of existing premises - and, accordingly, adverse effects are readily reversible - a probationary or trial period may be an appropriate exercise of the statutory discretion.

The implications of the approach adopted by Talbot J would unnecessarily limit the statutory power to permit development for a specific period where the full implications of the development are not known or cannot be stated with sufficient certainty. In any such case, the 'likely impact' or 'suitability' will never be capable of complete assessment. Indeed, that is the very purpose of the probationary or trial period. The scope and purpose of the Act is better served by permitting experimentation, at least in circumstances where adverse effects will cease if the development consent were not, in the event, extended. The focus is then on 'likely impact' during the probationary period.

1. The proposed development in this case also involves a use of existing premises (for a dairy processing plant), and any adverse impacts, including noise and odour impacts, are readily reversible. Imposition of a trial period was an appropriate exercise of the statutory discretion.

1. Hence, I do not accept Mr Simpson's submission that the insufficiency in the information on the noise and odour impacts before the Council did not enable it to discharge its duty to take into consideration noise and odour impacts in determining the development application. This is not a case where a decision-maker has merely adverted to or paid lip service to the relevant matters. The relevant matters have been identified, analysed and addressed by appropriate conditions of consent.

1. I also do not accept Mr Simpson's submission that the Council, by imposing conditions 2 (the trial period) and 16 (the verification of no intrusive noise), deferred for later consideration noise and odour impacts.

1. As I have stated, condition 16 effectively fixes and implements a performance outcome of no intrusive noise from the proposed development's refrigeration units. The condition ensures the development will meet this performance outcome by requiring verification before a construction certificate can be issued and the development carried out. The facts that details of the refrigeration units and verification that the refrigeration units will not cause an intrusive noise impact are to be submitted after consent has been granted, and that council officers may need to assess the adequacy of submitted information and supervise compliance, does not mean that the Council has deferred consideration of noise impacts or not finally determined the development application. Retention of practical flexibility, leaving matters of detail for later determination, and delegation of supervision of some stage or aspect of the development, may all be desirable and be in accordance with the statutory scheme under the EPA Act: see Scott v Wollongong City Council (1992) 75 LGRA 112 at 118; Transport Action Group Against Motorways Inc v Roads & Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598; (1999) 104 LGERA 133 at [117]-[122]; Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [17]-[19], [32], [39], [108], [124]; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [55]; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 at [89]; Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20 at [78].

1. Condition 2, setting a trial period to enable assessment of whether, and demonstration that, the noise and odour impacts of the development are as predicted and are acceptable, is also an appropriate exercise of the discretionary power and within the statutory scheme: Zhang v Canterbury City Council at [84], [85].

1. For these reasons, I find that Mr Simpson has not established that the Council failed to take into consideration the relevant matters of the noise and odour impacts of the proposed development in determining the development application.

Remedy for breach of failure to notify

The parties' competing contentions on discretion

1. I have found that the Council failed to notify the development application in breach of DCP 8 and s 79A(2) of the EPA Act. Mr Simpson submits that the appropriate order to remedy that breach is to declare invalid the development consent. The Council would then be required to notify the development application in accordance with DCP 8 and reconsider and redetermine the development application, taking into account any submissions received in response to the notification. Mr Simpson submits that the notification requirements of DCP 8 and s 79A(2) of the EPA Act are important community participation provisions of the EPA Act and should be upheld: Johnson v Lake Macquarie City Council (1996) 91 LGERA 331 at 341-342.

1. The consent holder submits that the Court should exercise its discretion not to declare the development consent invalid or, instead of declaring the development consent to be invalid, make an order under s 25B(1) of the Court Act. The consent holder submits the breach is minor and, in any event, notification to other persons in accordance with DCP 8 and s 79A(2) of the EPA Act would not add to the considerations under s 79C of the EPA Act or lead to a different result. The consent holder referred to the evidence of persons who claimed to be adversely affected by the proposed development, and hence persons who would be notified in accordance with DCP 8, that the matters they would raise in their submissions objecting to the proposed development would be the same as the matters that were raised by the three occupiers of land adjoining the site of the proposed development in their submissions to the Council. These were the matters of noise, odour, traffic generation and loss of amenity summarised in the officer's report. The consent holder submits, therefore, that any further submissions of affected owners and occupiers of land would not raise any new matters and therefore would not lead to the Council determining the development application differently.

Discretion to decline relief

1. I will start with the consent holder's submission that, in the exercise of the Court's discretion to remedy the breach, a declaration of invalidity should not be made.

1. Courts have held repeatedly that statutory requirements for notification and advertising of development applications are mandatory and the observance of the requirements of notification and advertising is a condition precedent to the exercise of the statutory power to determine the development application by the consent authority. A purported exercise of the statutory power has no validity where a condition for the exercise of the power has not been fulfilled: SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 245-246; (1963) 10 LGRA 210 at 230-231; Scurr v Brisbane City Council (1973) 133 CLR 242 at 255-256; Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at 518; CSR Ltd v Yarrowlumla Shire Council (Unreported, Land and Environment Court of NSW, Cripps J, 2 August 1985) at 9-10; Monaro Acclimatisation Society v Minister for Planning (Unreported, Land and Environment Court of NSW, Stein J, 2 March 1989).

1. The failure to comply with the statutory requirements in DCP 8 and s 79A(2) of the EPA Act for notification of the development application was not a minor or merely technical breach of the EPA Act: Nelson v Burwood Municipal Council (1991) 75 LGRA 39 at 45; Curac v Shoalhaven City Council (1993) 81 LGERA 124 at 129.

1. Compliance with mandatory, statutory requirements for notification and advertisement is in the public interest. As Stein J noted in Curac v Shoalhaven City Council at 128: '[r]easonable opportunities for public participation in plan making and in the development process are crucial to the integrity of the planning system provided under the Environmental Planning and Assessment Act.' Statutory provisions requiring notification and advertising of development applications, such as ss 79 and 79A of the EPA Act, are 'requirements intended to ensure public participation in the planning process. They are, in effect, statutory requirements to service the public interest inherent in the objective contained in s 5(c)' of the EPA Act. See also Broomham v Tallaganda Shire Council (Unreported, Land and Environment Court of NSW, Stein J, 31 October 1986) at 5; Johnson v Lake Macquarie City Council at 341; Boral Resources (Country) Pty Ltd v Clarence Valley Council (No 2) [2009] NSWLEC 133 at [18].

1. More recently, Craig J observed in Csillag v Woollahra Council [2011] NSWLEC 17 at [32], [33]:

By requiring the advertising and notification of development applications, the DCP is giving effect to an important object of the EPA Act. That object, as expressed in s 5(c), is 'to provide increased opportunity for public involvement and participation in environmental planning and assessment.' Relevantly, s 79A(2) gives statutory force to the DCP by mandating notification and advertisement of a development application in accordance with its provisions (Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 at [58]).

The purpose achieved by giving effect to the legislative object is twofold. First, it affords a form of procedural fairness by providing an opportunity to those who have an interest in or who may be affected by proposed development to learn of its detail before any decision is made. Secondly, it affords the opportunity to improve the process of decision making by enabling the consent authority to make a decision, fully informed of the potential consequences of development as perceived by the community.

1. I do not accept the consent holder's submission that the giving of notice in accordance with DCP 8 and s 79A(2) of the EPA Act would have made no difference. Again, courts have held repeatedly that the court cannot know whether, if notice had been given in accordance with statutory notification and advertising requirements, other objectors would have made submissions, or made submissions raising different grounds of objection, or even if raising the same grounds as other objectors had raised, referred to different facts and circumstances in support of those grounds, or put their objection differently and perhaps more persuasively: see Scurr v Brisbane City Council at 251-252, 257-258; Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council at 518; Nelson v Burwood Municipal Council at 43-44; Curac v Shoalhaven City Council at 130; Helman v Byron Shire Council (1995) 87 LGERA 349 at 360; Johnson v Lake Macquarie City Council at 342; Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148 at [179]-[180].

1. By its failure to comply with the statutory requirements for notification of the development application, the Council deprived itself of the opportunity of considering submissions of other owners and objectors who may be affected by the proposed development.

1. The Court cannot know whether the Council would have made the same determination of the development application had it complied with the statutory requirements for notification. If other objectors had made submissions raising different grounds of objection or stating their objections differently, the Court cannot conclude that the Council would have been unmoved by the number of submissions objecting to the development and the content of those submissions, and instead made the same determination to grant development consent and on the same conditions without any modification. As Stein J said in Nelson v Burwood Municipal Council at 45, in response to a similar discretion argument that the giving of notice of a development application would have made no difference:

Who knows? Ms Mitchelmore submits that no injustice has been worked by Council's failure to notify residents because their views were known and taken into account. Again, this statement is hypothetical because the possible objectors and their objections cannot be known.

1. As far as other factors relevant to the exercise of the Court's discretion, such as the guidelines discussed in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-340; (1987) 63 LGRA 361 at 365-366, these do not support declining to make a declaration of invalidity.

1. As I have said, the breach was not a purely a technical breach. There was no material delay in bringing the proceedings, causing prejudice to the consent holder. The consent holder has not implemented the development consent by carrying out the development as of yet.

1. The orders sought involve the enforcement of not a private right but rather a public duty imposed by the EPA Act, to uphold the public interest in public participation in the development approval process.

1. There are no circumstances justifying the Council's non-compliance with the notification requirements.

1. The orders sought concern development involving a prospective change of use, not a static development that has already occurred, and therefore, is able to be restrained readily and at no great cost. The breach can be remedied by the Council complying with the notification requirements and reconsidering and redetermining the development application taking into account submissions received in response to the notification of the development application.

1. In these circumstances, I consider it would not be appropriate or just to exercise the discretion not to make a declaration of invalidity. To do so would condone the breach of a mandatory statutory requirement in the public interest and leave it unremedied.

Discretion under s 25B of the Court Act

1. I now turn to consider s 25B of the Court Act. Section 25B gives the Court a discretion to make orders which will validate a development consent instead of declaring it invalid. The Court has a duty to consider making an order under s 25B instead of declaring a development consent invalid: see s 25E of the Court Act and Kindimindi Investments Pty Ltd v Lane Cove City Council [2007] NSWCA 38; (2007) 150 LGERA 333 at [23], [27], [47]. Section 25B provides:

(1)The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order:

(a)suspending the operation of the consent in whole or in part, and

(b)specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).

(2)Terms may include (without limitation):

(a)terms requiring the carrying out again of steps already carried out, or

(b)terms requiring the carrying out of steps not already commenced or carried out, or

(c)terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

1. If the Court makes an order under s 25B, the Council as the consent authority can do three things: first, it can revoke the development consent, whether or not the terms imposed by the Court under s 25B of the Court Act have been complied with (s 103(2) of the EPA Act); secondly, if the terms imposed by the Court under s 25B of the Court Act have been substantially complied with, it can regrant consent by revoking the original development consent whose operation has been suspended by the Court under s 25B of the Court Act, and granting a new development consent with such alterations to the revoked consent as the consent authority thinks appropriate having regard to the terms themselves and to any matters arising in the course of complying with the terms (s 103(2) of the EPA Act); and thirdly, it can apply to the Court for an order under s 25C of the Court Act, on the grounds that the terms specified under s 25B of the Court Act have been substantially complied with and that either it is not proposed to regrant development consent with alterations or that development consent has been regranted with alterations, declaring that the terms have been substantially complied with or complied with, the original consent or the regranted consent is valid, and/or the suspended development consent has been revoked, and/or revoking the order of suspension (see s 25C(1) and (2) of the Court Act).

1. A development consent declared to be valid under s 25C of the Court Act is final and operative from the date the consent originally took effect and a regranted development consent declared under s 25C of the Court Act to be validly regranted is also final and takes effect from the date of the declaration or another date specified by the Court (s 104(1) and (2) of the EPA Act).

1. This process of suspension of an original development consent and validation either of the original consent or a regranted consent has been discussed recently and thoughtfully by Biscoe J in Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43 at [30]-[46].

1. A significant difficulty in making a suspension order under s 25B and a subsequent validation order under s 25C is being able to craft appropriate orders which will not only lead to a validation of either the original consent or the regranted consent, but to do so in a way which does not impede or frustrate the objects of the statutory notification requirements breached and the intended statutory process for consideration and determination of a development application.

1. In the circumstances of this case, I do not consider that it would be appropriate to suspend the operation of the development consent on terms that the Council give notice of the development application in accordance with DCP 8 and s 79A(2) of the EPA Act and then reconsider and redetermine the development application taking into account any submissions received in response to the notification.

1. As I have observed earlier, compliance with the mandatory requirements for notification of development applications is in the public interest. Public participation in the development process is crucial to the integrity of the planning system under the EPA Act and promotes the objects of the EPA Act. It is not to be viewed as a technical and tokenistic speed hump designed to slow but not divert or prevent the inexorable passage of a development application along the highway to approval. To the contrary, if notification is undertaken in accordance with the statutory requirements, the consent authority's consideration and determination of the development application might change.

1. One cannot know who might make submissions in response to being notified, what the content of their submissions might be, how cogent or compelling their submissions might be, or how the Council might consider and weigh their submissions. The matters the Council as consent authority is obliged to consider under s 79C of the EPA Act, the facts and circumstances of the matters, and the relative weight to be assigned to the matters, might all change as a result of the new submissions and the Council's consideration of them. There is utility in having the process of notification, submission, consideration and determination of the development application undertaken in accordance with the EPA Act. This should be done not in the shadow and servitude of a suspended existing development consent pending validation but in the light and freedom of a development application that has become undetermined by reason of the existing development consent being set aside.

1. I consider that the circumstances of this case are distinguishable from those, and justify a different exercise of discretion from that, in Csillag v Woollahra Council [2011] NSWLEC 17 and Csillag v Woollahra Council (No 2) [2012] NSWLEC 135 where Craig J did make an order under s 25B of the Court Act suspending the operation of a development consent on terms requiring renotification and readvertising of a development application and an order under s 25C of the Court Act declaring that the development consent had been validly regranted. In that case, there was proper notification to owners of adjoining and neighbouring land in accordance with the applicable development control plan as well as an advertisement in the local newspaper, however the advertisement insufficiently described the address of the land to which the proposed alterations to the apartment related. In the present case, there was no compliance with the notification requirements in DCP 8 at all and in particular no notification was given to owners and occupiers of land that may be affected by the proposed development. Therefore, the breach was different to the breach in the present case.

1. The nature of the proposed development and its impacts in that case were also different to the present case. There, the proposed development involved alterations and additions to one apartment in a residential flat building. Craig J found that, without suggesting that the alterations and additions could have no external impact, it would appear that the impacts, if any, would be limited to relatively few people: Csillag v Woollahra Council [2011] NSWLEC 17 at [59]. Moreover, the proposed alterations and additions were, by any objective standard, relatively small in their scope of work and cost (at [59]). In those circumstances, Craig J considered it appropriate to suspend the operation of the consent under s 25B of the Court Act. In contrast, the proposed development in the present case is of an industrial nature likely to have external impacts in terms of noise, odour, traffic generation and loss of amenity, which have more potential to adversely affect more people in the neighbourhood of the proposed dairy processing plant.

1. For these reasons, I do not consider it appropriate to make an order under s 25B of the Court Act instead of declaring the development consent invalid.

Costs

1. The applicant and consent holder have not yet made submissions as to costs. The Council made a submitting appearance save as to costs. The parties should be given an opportunity to make their submissions on costs. Accordingly, I reserve the question of costs to allow the parties to apply, within seven days, to list the matter to obtain a date for a hearing on costs.

Orders

1. The Court:

(1)   Declares that the development consent for development application no DA 31/11 granted by Wakool Shire Council to Jonesy's Dairy Fresh Pty Ltd dated 28 September 2011 for the change of use to a dairy processing plant at 49 Parkman Avenue, Barham, being Lots 47, 94 and 115 in DP 756508, is invalid.

(2)   Reserves the question of costs.

(3)   Directs the parties, within 7 days, to apply to the Court to list the matter for a hearing on costs.

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Decision last updated: 17 July 2012