Woodhouse v Wyong Shire Council

[2005] NSWLEC 709

Land and Environment Court

of New South Wales

CITATION:	Woodhouse v Wyong Shire Council & Others [2005] NSWLEC 709
PARTIES:	APPLICANT Harvey Woodhouse FIRST RESPONDENT Wyong Shire Council SECOND RESPONDENTS Michael and Mary Jane Schembri
FILE NUMBER(S):	10145 of 2005
CORAM:	Cowdroy J
KEY ISSUES:	Development Consent :- poultry farm - conflicting expert evidence relating to odour - staged validation approach - Environmental Planning and Assessment Act s 80A(4) - noise - subdivision - undersized lot - objection under State Environmental Planning Policy No 1
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 5(a), s 80A(4), s 98 Environmental Planning and Assessment Regulation 2000 Pt 1 of Sch 3, cl 21(4) Protection of the Environment Operations Act 1997 State Environmental Planning Policy No 1 - Development Standards Sydney Regional Environmental Plan No 8 (Central Coast Plateau Areas) Wyong Local Environmental Plan 1991 cl 10(3), cl 14(2)(b)
CASES CITED:	Gillespies v Warringah Council (2002) 124 LGERA 147; Mackenzie v Warringah Council [2002] NSWLEC 131 ; Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734 ; Scott and Others v Wollongong City Council and Another (1992) 75 LGRA 112 ; Winn v Director-General of National Parks and Wildlife and Others (2001) 130 LGERA 508 ; Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46
DATES OF HEARING:	26/09/05, 27/09/05, 24/10/05
EX TEMPORE JUDGMENT DATE:	12/22/2005
LEGAL REPRESENTATIVES:	APPLICANT G Green (solicitor) SOLICITORS Pike Pike & Fenwick FIRST RESPONDENT J Reilly (solicitor) SOLICITORS Abbott Tout SECOND RESPONDENTS C McEwen SC SOLICITORS Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

22 December 2005

10145 of 2005

HARVEY WOODHOUSE
Applicant

WYONG SHIRE COUNCIL
First Respondent

MICHAEL SCHEMBRI and MARY JANE SCHEMBRI
Second Respondents

JUDGMENT

1 Cowdroy J: The appeal is made pursuant to s 98 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) which entitles an objector who is dissatisfied with the determination by a consent authority of a development application for designated development to appeal to this Court. In this appeal the Court has been assisted by Commissioner Brown.

2 The appeal relates to the grant of development consent by Wyong Shire Council (the Council) on 17 February 2005 relating to rural land at Kulnura. The consent permitted the re-subdivision of the land, which is currently two lots, to create two different lots, the demolition of five naturally-ventilated poultry sheds, and the construction of with six tunnel-ventilated poultry sheds.

3 A view of the property known as "Longridge Estate", RMB 2210 Springs Rd, Kulnura (the subject site) and surrounding area was undertaken on the first day of the hearing in the company of representatives from the applicant, respondents and local residents. Some local residents gave evidence in support of their objections during the view.

The subject site

4 The subject site consists of two separate allotments, being Lots 11 and 12 in DP 825783. Both lots have access to Springs Rd. Lot 11 has area of 1.63 ha and contains an existing dwelling house (“the older residence”). Lot 12 has an area of 13.36 ha and contains an existing poultry farm and a newer dwelling house (“the new residence”) (see Attachment 1). The existing poultry farm contains five sheds, each with dimensions of 120.7 m x 12.2 m providing for a carrying capacity of 120,000 birds.

5 The site is located at the top of an undulating ridge that eventually falls to the rear boundary and to Ourimbah Creek. The general area is generally used for grazing purposes with well-pastured paddocks.

The proposal

6 The proposal provides for:

· the complete demolition of four existing poultry sheds and the partial demolition of one existing poultry shed,

· the conversion of the partially demolished existing poultry shed to a machinery shed,

· the construction of six tunnel ventilated poultry sheds, each measuring 144 m x 15.85 m towards the southern part of the subject site,

· increased carrying capacity to 248,800 birds,

· the re-subdivision of the existing two lots to provide for two new lots with Lot 1 having area of 4.86 ha and containing the newer residence, and Lot 2 having area of 9.72 ha and containing the poultry farm and the older residence (see Attachment 2).

7 During the proceedings the applicant proposed that the six new sheds be constructed in four separate stages pursuant to s 80A(4) of the EP&A Act. Stage 1 will provide three sheds containing 125,000 birds with of stages 2 3 and 4 stage providing one additional shed, each containing 41,666 birds. Upon the implementation of each stage, the operator would test odour emissions. If emissions were within agreed levels, the operator would be able to implement the next stage.

Relevant planning controls

8 The subject site is zoned No 1(a) (Rural Zone) under the provisions of Wyong Local Environmental Plan 1991 (LEP 1991). The proposed development is a permissible use within the zone. Clause 10(3) provides that consent must not be granted unless the proposed development is compatible with the objectives of the zone. The objectives are:

( a) to protect, enhance and conserve agricultural land in manner which sustains its efficient, sustainable and effective agricultural production potential, and
(b) to facilitate development requiring a rural or isolated location or associated with agricultural pursuits, and rural industry, provided that it is unlikely to;
(i) prejudice the present environmental quality of the land within this zone, or
(ii) generate significant additional traffic, or create or increase a condition of ribbon development on any road, relative to the capacity and safety of the road, or
(iii) prejudice the intent of the objective specified in paragraph (a) or
(iv) have an adverse impact on the region's water resources.

9 Clause 14(2)(b) of the LEP provides that a person shall not subdivide land in zone 1(a) (Rural Zone) unless the allotment has an area of 20 ha. An objection pursuant to State Environmental Planning Policy No 1 – Development Standards (SEPP 1) accompanied the application to show that strict compliance with the minimum area development standard was unreasonable and unnecessary in this instance.

10 The proposed development is designated development under Pt 1 of Sch 3 of the Environmental Planning and Assessment Regulation 2000 (the Regulations)). It is defined as a poultry farm under “Livestock feeding industries” (cl 21(4)) and is designated development as it is "within a drinking water catchment" (cl 21(4)(b)(ii)) and "within 150 metres of a dwelling not associated with a development" (cl 21(4)(b)(iv)). Poultry farms "that accommodate more than 250,000 birds" (cl 21(4)(a)) are also defined as designated development but as the proposal seeks approval for only 248,800 birds, the proposal is not defined as designated development based on the number of birds.

11 Under the Protection of the Environment Operations Act 1997 (the POEO Act) poultry farms that exceed 250,000 birds are Scheduled Premises and require a licence for the premises from the Environment Protection Authority (EPA) which is part the Department of Environment & Conservation. Licences may control the air, noise, water and waste impacts of an activity and are ongoing and subject to inspection and annual audit reports for compliance with environmental objectives. Based on the proposed number of birds, the proposal does not comprise a Scheduled Premises under the POEO Act.

12 Sydney Regional Environmental Plan No 8 (Central Coast Plateau Areas) (REP 8) also applies. The applicant raised no specific issues in relation to this document.

13 Other relevant documents include:

· EIS Guidelines: Poultry Farms produced by the Department of Urban Affairs and Planning (1996),

· NSW Meat Chicken Farming Guidelines,

· Development Application Guidelines for the Extension of Poultry Meat Farms produced by NSW Agriculture.

The issues

14 The applicant filed a Further Amended Statement of Issues that contained 13 issues and a number of sub-issues. Following further discussion it was agreed between the parties that the issues relating to hydrological impacts (Issue 6), some acoustic impacts (Issues 7 and 8), the provision of a waste management plan (Issue 10) and the provision of a landscape plan (Issue 11) could be addressed through appropriate conditions. The applicant did not press the issues relating to insufficient acoustic information (Issue 12) and dust impact (Issue 14). The remaining issues are:

1) whether the proposed development will create unacceptable odour impacts (Issue 5),
2) whether the proposed development will create unacceptable noise impacts (Issues 7 and 8), and
3) whether further information is required to address the long-term management of the proposed development (Issues 9 and 13) and
4) whether the SEPP 1 objection is well founded (Issues 2, 3 and 4).

15 The issues relating to the misdescription of the proposal (Issue 1A) and the content of the Environmental Impact Statement (Issue 1) were not seen as determinative by the applicant and are generally addressed as part of the consideration of the above issues.

The evidence

16 The applicant provided evidence from:

· Mr Chris Oliver, town planner,

· Mr Barry Murray, acoustic engineer,

· Dr Kerry Holmes, air quality consultant and

· Dr Daniel Martens, hydrological engineer.

17 In addition to the letters of objection received when the application was advertised, further evidence for the applicant was provided by local residents, namely Mr and Mrs Franks of RMB 2185 Springs Rd.

18 The second respondents provided evidence from:

· Mr Paul Grech, town planner,

· Mr Dick Benbow, air quality and acoustic engineer and

· Mr Toby Fiander, hydrological engineer.

19 Letters of support were provided by:

· Mr James Mooney of RMB 2220 Springs Rd

· Mr Nicholas Lawson of RMB 2208 Springs Rd and

· Mr Sam Calleja of RMB 2205 Springs Rd.

20 The first respondent maintained a watching brief and did not provide any expert evidence but tendered a bundle of documents containing the Council’s consideration of the application.

Noise
The hypothetical subdivision

21 In considering the question of odour impact (and noise impact), Mr Oliver provided details of a hypothetical subdivision of land owned by the applicant (see Attachment 3). The property surrounds the site with frontages to Spring Road. It has an area of approximately 100 ha and based on the 20 ha minimum allotment size, 5 hypothetical lots are proposed. Only 3 of these lots adjoin the subject site (Lots 1, 2 and 3). The hypothetical subdivision also provides an optimal dwelling location and also a secondary dwelling location for each of the 3 affected lots. These are:

· Lot 1:

H1 - (optimal dwelling location),
H2 - (secondary dwelling location),

· Lot 2:

H3 - (optimal dwelling location),
H4 - (secondary dwelling location),

· Lot 3:

H5 - (optimal dwelling location),
H6 - (secondary dwelling location).

22 The location of these dwellings formed the basis for the assessment of potential odour and noise impacts. Mr McEwen SC, for the second respondents, submitted that the Court should give little weight to the hypothetical subdivision and dwelling locations because no subdivision application had been lodged with the Council and there had been no assessment of the merits of the subdivision and dwelling locations as required by the EP&A Act and the Council planning controls.

23 The subdivision potential of the adjoining property was not a matter addressed by Council in its consideration of the development application. However, the Court is satisfied that the potential subdivision of the adjoining property and the likely location for the erection of dwellings (“the hypothetical dwellings”) is a relevant and valid consideration. This is consistent with the object of the EP&A Act relating to “the promotion and co-ordination of the orderly and economic use and development of land” (s 5(a)(ii)). Prima facie, the 100 ha property can be subdivided into 5 lots and a dwelling can be erected on each of these lots. This is a consideration in determining development on the adjoining land.

24 Mr McEwen SC submitted that the hypothetical dwellings were located in a position largely to frustrate the proposed development. The applicant submitted that such locations seek to take advantage of views, prevailing winds and avoid the lower areas of the lots that contain existing vegetation.

25 Since there is no specific approval for the subdivision and dwellings, there must be some flexibility with respect to the locations identified by the applicant. However the general locations identified are logical and desirable locations for the erection of dwellings on the hypothetical lots.

26 Mr Murray and Mr Benbow conferred on the potential noise impacts and agreed that the 35 dBA night time criterion was the appropriate goal.

27 It was agreed that with two fans operating on each shed no existing residences would fall within the 35 dBA noise contour. Proposed residence H2 falls within the 35 dBA noise contour. With six fans operating on each shed (including silencing devices) no existing residences or optimal dwelling location or secondary dwelling locations fall within the 35 dBA noise contour although the noise contour extends a significant distance from the site to the east and south.

28 It was agreed that the goal for intermittent traffic movement was 45 dBA LAMAX. The older residence falls within this noise contour, as does dwelling H5. Mr McEwen SC submitted that it is unnecessary for the older residence to comply with the noise goal as is located on the same lot as the poultry farm. It is further submitted that dwelling H5 is currently affected by truck noise from the existing poultry operation and that proposed secondary dwelling H6 is well outside the 45 dBA LAMAX noise contour.

29 Mr Murray and Mr Benbow also agreed upon the location and dimensions of three noise barriers within the site to address noise associated with the proposed sheds and internal access roads.

30 On the issue of noise impact, the Court accepts that there are no impacts that would justify the refusal of the development application.

Odour
The evidence

31 Contrary to the evidence of Mr Oliver, Dr Holmes and Mr Benbow agreed that it was not appropriate under the EPA Guidelines to require poultry farms to restrict all odour impacts to the poultry farm property itself. The guidelines require the assessment point for odour impact to be "the nearest residential receptor".

32 Dr Holmes and Mr Benbow agreed upon a number of the factors that made up the odour modelling including the appropriate meteorological data and the use of the AUSPLUME model. The appropriate odour goal was also agreed, being 5 OU on the basis of the existence of the hypothetical rural residences.

33 Dr Holmes and Mr Benbow agreed that the proposed development should be tested against the 5 OU goal. Dr Holmes and Mr Benbow also agreed that an odour emission rate (OER) of 420 OU m3/s per 1000 birds will achieve compliance with the 5 OU goal at all residential locations (existing and hypothetical) with the exception of H3. H3 is affected to a similar degree by the existing operation. The experts also agreed that, at stage 1 level the poultry farm (125,000 birds) would meet the 5 OU goal.

34 Dr Holmes and Mr Benbow disagreed however upon the odour impact from the total development of the site with 248,800 birds. Mr Benbow believes that the OER will not exceed 420 OU m3/s per 1000 birds whereas Dr Holmes is of the opinion that the OER is likely to be 800 OU m3/s per 1000 birds. Consequently, Dr Holmes believes that the 5 OU goal cannot be achieved if all stages of the proposal are implemented.

35 The evidence from local residents on the existing operation was inconclusive. While Mr Franks expressed concern at the odour emanating from the existing operation, his property is located some distance from the site and outside the most conservative isopleth modelled by Mr Benbow. The evidence of Mr Mooney, Mr Nicholas and Mr Calleja who all reside closer to the site on Springs Rd suggested that the operation did not impact on the use of the properties taking into account the rural nature of the area. The Court also notes that there were no recorded objections to the operation of the poultry farm.

Findings on odour

36 The impact of odour was a significant issue in the proceedings. Dr Holmes and Mr Benbow, each of whom is highly experienced and qualified in this field, reached different conclusions. Dr Holmes and Mr Benbow relied on different research for their conclusions but both were adamant that their respective positions could be supported. In these circumstances, the Court is not satisfied that more than three sheds can be constructed without exceeding acceptable odour limits.

The validation approach

37 The second respondents submitted that the s 80A(4) of the EP&A Act provides a means by which the Court may approve the development even though there is disagreement between the experts concerning the potential odour impacts.

38 Section 80A(4) provides:

(4) Conditions expressed in terms of outcomes or objectives A consent made granted subject to a condition expressed in matter that identifies both of the following:
(a) one or more expressed outcomes or objectives that the development or a specified part or aspect of the development must achieve,
(b) clear criteria against which achievement of the outcome or objectives must be assessed.

39 The second respondents submitted that the proposition by the applicant that the approval should be limited to 125,000 birds should be rejected. He submits that it is entirely reasonable to permit a stocking density of 248,800 birds with a condition that the stocking proceeds in stages and with verification upon completion of each stage. Dr Holmes and Mr Benbow have agreed on an appropriate odour goal and an odour monitoring regime. Mr McEwen SC submits that if Dr Holmes is correct in her assessment then it is likely that the total development of the site will not exceed 125,000 birds. This is an outcome the second respondents are willing to accept.

40 Mr Green opposes the staged validation approach. He submits that this approach provides no certainty and that it is necessary to know the final configuration and total impact of the proposal to be approved. He submits that there is no certainty that a poultry farm of 248,800 birds can ever be achieved and accordingly approval to such proposal should not be granted.

41 Section 80A(4) of the EP&A Act has clearly been included to offer greater flexibility to conditions which may be imposed upon development consents. However, s 80A(4) cannot be used where the resulting consent is uncertain. The relevant principles in relation to certainty are outlined in Mison and Others v Randwick Municipal Counciland Others (1991) 23 NSWLR 734 Clarke JA (with whom Priestley and Meagher JJA agreed) observed (at 740):

Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could later the proposed development in a fundamental respect, it is difficult to see how that consent could be regarded as final.

42 In Winn v Director-General of National Parks and Wildlife and Ors (2001) 130 LGERA 508 Stein JA said at 546 ([207]):-

In essence, the principle is that where a condition has the effect of significantly altering the development or to leave open the possibility that the development carried out in accordance with the condition will be significantly different to that applied for, then it is not a consent to the application. If the consent leaves for later decision an important aspect of the development which will alter it in a fundamental respect, the consent cannot finally determine the application: see in particular the judgments of Priestley JA and Clarke JA.

43 In Scott and Ors v Wollongong City Council and Anor (1992) 75 LGRA 112 at 118, Samuels AP said:-

However, it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the proposal with absolute precision.

44 In the present instance, the Court is not satisfied that the six sheds proposed will be capable of satisfying the odour criteria. The number of sheds to be constructed is not a matter of mere detail, as referred to in Scott, but is fundamental to the development proposed. Section 80A is intended to provide flexibility where the decision-maker is satisfied that, ultimately, the objective of the condition can be achieved. It is not appropriate in the present circumstances where significant parts of the development applied may not be achievable. To apply s 80A in these circumstances would result in an uncertain consent: see Mison and Winn.

Whether the SEPP 1 objection is well-founded

45 The appropriate test for dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 at [26]. The first question is whether cl 14(2)(b) of the LEP is a development standard. The parties agree, and the Court concurs, that this is the case. The second consideration is the underlying object or purpose of the standard. The Court must also consider whether compliance with the development standard is consistent with the aims of SEPP 1, whether compliance with the development standard tends to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EP&A Act and whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case.

46 The aims of SEPP 1 state:

3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

47 These objects in 5(a)(i) and (ii) of the EP&A Act state:

5. The objects of this Act are:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
(ii) the promotion and coordination of the orderly and economic use and development of land.
The evidence

48 As cl 14(2)(b) of the LEP does not provide any specific objectives for the development standard Mr Grech and Mr Oliver agreed on the following underlying objectives for the development standard:

1) to protect and promote effective agricultural production potential of land,
2) to minimise impacts on scenic rural landscape,
3) to minimise the unreasonable and uneconomic demands for the provision or extension of public amenities and services, inclusive of augmented traffic facilities,
4) to minimise potential for water quality impacts in the region,
5) to be of adequate size to provide suitable area for development as permitted in the zone, and
6) to regulate the spread of developments and intensity of potential impacts on the environment of the area.

49 Mr Oliver offered the following additional underlying objectives:

7) to ensure lots are of a sufficient size to ensure developments do not rely on adjoining properties to buffer impacts, and
8) to avoid the proliferation of built form on small lots.

50 Mr Grech states that the redevelopment of the poultry farm is consistent with the objectives of the zone and would represent a desirable outcome. He relies on the Environmental Impact Statement to conclude that the proposed poultry farm lot will represent a viable agricultural activity even though the lot is to be reduced from 12.948 ha to 9.72 ha. The proposed non-poultry farm lot is to increase from 1.63 ha to 4.86 ha and based on the classification of the agricultural land in REP 8, will have greater potential for agricultural uses.

51 In relation to visual impact, even though the proposal provides for additional sheds, the sheds are located further from Springs Road. The proposal would reduce impact on the landscape scenic quality of the locality. Substantial landscaping is proposed in addition to existing vegetation. Mr Grech concedes however that the sheds may be visible from across the valley.

52 Mr Grech states that redivision of the lots would not necessarily constrain any potential future uses of land permitted by the zone. Having regard to the fact that there are already two existing lots, the subdivision in effect seeks only a reconfiguration of these lots. It does not propose to create two new undersized lots but only to amend the boundary between the two existing undersized lots. In his opinion, the subdivision should be dealt with separately to the proposed change to the poultry establishment.

53 Mr Oliver takes a different view. He maintains that the consideration for subdivision component of the development application should have regard to the proposed poultry establishment. In his opinion, the proposed poultry farm is high-intensity and high impact in terms of noise, odour impacts and requires a substantial buffer. The 20 ha minimum lot size is a bare minimum for a development of this nature and as this cannot be achieved the combined 14.5 ha area of both lots should be provided. This will allow the sheds to have less impact on the surrounding property and allow easier compliance with the relevant noise and odour criteria.

54 Mr Oliver maintains that it is necessary to consider the impact on both of the proposed lots and as well as on the adjoining land. The subdivision will leave the newer residence with no proper buffers and the older residence as an odd shaped allotment, impacting on the rear and side boundaries and increasing building site coverage inappropriately.

55 Mr Grech and Mr Oliver each applied the Winten test to the SEPP 1 objection but with different results. Mr Grech concludes that the SEPP 1 objection is well founded whereas Mr Oliver comes to the opposite conclusion.

Findings

56 In considering the evidence of Mr Grech and Mr Oliver there are a number of matters raised in the SEPP 1 objection and Mr Oliver’s response that require comment. Firstly, the evidence of Mr Oliver that the lots should be amalgamated to form one lot would clearly address some of the concerns raised in his evidence. However the amalgamation of lots is not a matter that is before the Court. The Court must decide whether the subdivision, as proposed, is acceptable.

57 The second matter relates to the evidence of Mr Grech where he indicates that the subdivision should be considered independent of the redevelopment of the poultry farm. In this case, the subdivision forms part of the development application and is an integral part of the redevelopment of the poultry farm. For these reasons, the poultry farm is a relevant matter for consideration of the SEPP 1 objection.

58 As a starting point, the Court accepts the underlying objectives agreed to by Mr Grech and Mr Oliver. There did not appear to be any dispute concerning the objective relating to the provision or extension of public amenities (Objective 3). The impact on water quality was considered by other experts and found to be acceptable (Objective 4).

59 Dr Holmes and Mr Benbow agreed that the odour need not be contained within the site. In addition, there is no evidence that a 20 ha site would entirely contain the impacts in any event. Accordingly the Court must reject Objective 7 suggested by Mr Oliver. The Court accepts that the minimum lot size is intended to alleviate impacts on adjoining properties, but not necessarily to prevent them entirely.

60 With respect to Objective 8, the Court considers that the proliferation of buildings would be a consideration adequately addressed under Objective 2, which was agreed between the experts. Accordingly, Objective 8 does not need to be separately considered.

61 The remaining objectives can be grouped into two main themes. These are:

· to allow agricultural uses on land that can accommodate the uses without impacting on the character and natural environment of the area (Objectives 1, 5 and 6), and

· to allow agricultural uses that minimise visual impacts on the rural landscape (Objective 2).

62 In considering the first of the two grouped objectives, Mr Grech and Mr Oliver rely largely on the evidence of their respective noise and odour experts for their conclusions. In relation to odour, based upon the Court’s findings above, the Court is satisfied that the subdivision will not create an unacceptable impact on the adjoining property if limited to three sheds.

63 The issue of noise is addressed in [21] to [30]. The proposal was found to satisfy the relevant noise requirements through the erection of noise attenuation walls and the imposition of operating conditions.

64 The proposal will add built form to the rural landscape. However this built form is consistent with the form of development envisaged by the zone namely “development requiring a rural or isolated location or associated with agricultural pursuits” (Objective (a)). Even though the site is below the minimum lot size, the development will not be inconsistent with its location. For this reason and with the additional landscaping proposed with the application the Court is not satisfied that the proposed development will have an unacceptable visual impact on the rural landscape.

65 With respect to consistency with the aims of SEPP 1 and the objects of the EP&A Act, Pain J in Mackenzie v Warringah Council [2002] NSWLEC 131 at [98] adopted a meaning of "not antipathetic, nor incompatible or inconsistent with". Bignold J in Gillespies vWarringah Council (2002) 124 LGERA 147 at 166 adopted a meaning of "agreeing or accordant; not self-imposed or self-contradictory; consistently adhering to the same principles, course, etc". If either meaning is used the proposal would be consistent with the aims of SEPP 1. Strict compliance would tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

66 The Court finds that strict compliance with the development standard is not reasonable or necessary in the circumstances of the case. It follows that the SEPP 1 objection is well founded.

Conclusions and orders

67 While the applicant proposed that the development be limited to three sheds and 125,000 birds, this was not a proposition adopted by the second respondents. However, the Court would be willing to consider such a proposal if it were put forward by the second respondents. The issue of odour was the only issue not addressed to the Court’s satisfaction.

68 The Court is of the view that the second respondents should be given the opportunity to reconsider the proposed development based upon the findings in this judgment. The Court’s findings on the odour issue may prompt changes to the proposal that could address the odour issue in part or in full.

69 The Court considers that the long-term management of the farm can be appropriately addressed through appropriate conditions. The Court will give further attention to the conditions to be imposed if the second respondents wish to bring an amended proposal to the Court.

70 The Court will not make final orders at this stage so that the second respondents have an opportunity to consider their position and amend the proposal if they wish to do so. Accordingly, the Court makes the following order:

1. The proceedings be listed for mention at 9.30 am on 20 January 2006 before Commissioner Brown for the making of final orders or if conditions have not been agreed, directions for a further hearing confined to the conditions.

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