Pocket Herbs and Produce Pty Ltd v Tweed Shire Council [2021] NSWLEC 1253

Pocket Herbs and Produce Pty Ltd v Tweed Shire Council [2021] NSWLEC 1253

The modification application should be approved because the modified development remained substantially the same micro herb production facility as originally approved, with additional growing facilities, ancillary buildings and environmental controls; the amended stormwater management plan comprehensively addressed stormwater and pollutant impacts; and the acoustic evidence established that, with acoustic barriers, operational limits, the Operational Noise Management Plan and compliance testing conditions, noise would meet the adopted goal of no more than 5 dB above background measured as LAeq over 15 minutes. Those measures made the use compatible with adjoining and nearby land uses in...

Jurisdiction
Australia
Judgment Date
17 May 2021
Procedural Posture
Class 1 Appeal Concerning a Modification Application Under S 4.55(2) of the Environmental Planning and Assessment Act 1979 / Final Judgment After Hearing; Appeal Against Council's Partial Approval of the Modification Application
Outcome
Appeal upheld; development consent DA13/0712 modified by the addition of conditions.
Legal Topics
['rural Industry' 'micro Herb Production Facility' 'stormwater Management' 'acoustic Impacts' 'operational Noise Management Plan' 'substantially the Same Development' 'resident Objections' 'ru2 Rural Landscape Zone Compatibility']
['environmental Planning and Assessment' 'development Consent Modification' 'land Use Planning'] ['rural Industry' 'micro Herb Production Facility' 'stormwater Management' 'acoustic Impacts' 'operational Noise Management Plan' 'substantially the Same Development' 'resident Objections' 'ru2 Rural Landscape Zone Compatibility']

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Procedural Posture

Class 1 Appeal Concerning a Modification Application Under S 4.55(2) of the Environmental Planning and Assessment Act 1979 / Final Judgment After Hearing; Appeal Against Council's Partial Approval of the Modification Application

Legal Issues

  1. 1 ['Whether the development as modified would be substantially the same development as the development for which consent was originally granted under s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether stormwater collection, disposal, water quality management and environmental controls were acceptable.' 'Whether acoustic impacts on neighbouring rural residential properties would be acceptable having regard to the NSW Environmental Protection Authority Noise Policy for Industry and the proposed acoustic barriers and Operational Noise Management Plan.' 'Whether the proposed modification was compatible with the RU2 Rural Landscape zone objectives and adjoining rural residential uses.' 'Whether the Operational Noise Management Plan was satisfactory and enforceable as a condition of consent.']

Ratio Decidendi

The modification application should be approved because the modified development remained substantially the same micro herb production facility as originally approved, with additional growing facilities, ancillary buildings and environmental controls; the amended stormwater management plan comprehensively addressed stormwater and pollutant impacts; and the acoustic evidence established that, with acoustic barriers, operational limits, the Operational Noise Management Plan and compliance testing conditions, noise would meet the adopted goal of no more than 5 dB above background measured as LAeq over 15 minutes. Those measures made the use compatible with adjoining and nearby land uses in...

Court Disposition

Appeal upheld; development consent DA13/0712 modified by the addition of conditions.

Orders

  • ['The appeal is upheld;' 'Development consent DA13/0712 dated 1 April 2014 for a micro herb production facility including two greenhouses, two pump sheds, potting shed/office, water tank, driveway access and associated earthworks at Lot 3 in Deposited Plan 1191598 known as 67 Howards Road, Burringbar is modified by...