Key Takeaway

• The Court upheld the appeal against a refused development application (‘DA’) and granted development consent for intensive plant agriculture, finding that the proposed development would not have adverse traffic, acoustic or visual impacts.

Background

Mr Refalo, the Applicant, lodged a DA with Camden Council (‘Council’) for the purpose of developing an intensive plant agriculture (hydroponics) for the farming of lettuce at a property in Cobbitty in Greater Sydney. The proposed development site (‘Site’) also included the construction of a raised hydroponic farm pad, shed, pivot irrigation system and associated works.

The DA was refused in October 2020. Mr Refalo appealed against the refusal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (‘EP&A Act’).

The proposed development Hydroponics was a use permissible with consent under the RU1 Primary Production zone in the Camden Local Environmental Plan 2010 (‘CLEP 2010’).

The Council opposed the grant of the consent on the following grounds:

• The proposed development did not minimise the excavation of contaminated soil or other material.
• The proposed development would have adverse visual impacts.
• The number of truck movements required for the earthworks would create unacceptable traffic and acoustic impacts.

Judgment

The key issues before the Court were whether:

• The development would have adverse visual impacts
• The number of truck movements required for the earthworks would create unacceptable traffic and acoustic impacts
• The written consent of the owner of the land on which the right of way is located, is valid.

The Court determined that the proposed development would not cause adverse visual impacts because it would not be ‘obtrusive in the landscape’ and ‘out of character’ for the area.

The acoustic experts agreed that the impacts during the construction phase would meet the relevant acoustic criteria subject to the imposition of conditions on the consent.

The Court was satisfied that the impacts of truck movements during the construction phase of the proposed development would not cause an unacceptable risk.

There was insufficient evidence to establish that the written consent of the owner of the land was invalid.

Outcome

The Court upheld the appeal and granted the development consent subject to conditions.

The full judgement can be found at the following link: Refalo v Camden Council [2021] NSWLEC 1485

Disclaimer: Beatty Hughes & Associates acted for the Applicant in these proceedings.