The site in this appeal was large, but constrained. It was located in the Guragunbah floodplain and adjoined the Merrimac Sewerage Treatment Plant (STP).
The scale of the development proposal was also large. The appellant had lodged a development application seeking preliminary approval to facilitate development of the land for predominantly residential activities (up to 3,000 dwellings), with a range of other activities also contemplated (ranging from business, community, industrial, environmental, tourism and entertainment, transport and infrastructure activities). The proposal also involved up to 2,000m² gross floor area for a Neighbourhood Mixed Use Hub.
The development application was refused by the Council. In the appeal to the P&E Court, there were a range of issues, and the Court’s findings about air quality issues are particularly notable. The development proposed residential development within 400m of the nearest STP treatment unit. The STP operates 24-hours a day, seven days-a-week and the Court observed that it was a vital piece of community infrastructure. The air quality issues did not give rise to concerns about public health or safety. Rather, the issue was amenity.
The experts considered the STP’s operations under “normal operations” and “upset scenarios”. It is important to note here that the “upset scenarios” were described as unusual, but a normal and necessary aspect of the operation of the STP. The modelling demonstrated that, under “normal operations”, the odour concentrations at the development did not exceed the odour criterion, however, odours would still be perceptible from time to time under normal operating conditions (a situation that already occurred for the existing residential areas to the east and west of the STP). During two of the “upset scenarios”, the odour criterion would be exceeded at sensitive receptors at the site as well as existing sensitive receptors – also giving rise to potential amenity concerns.
The P&E Court ultimately determined that:
- the proposal would place a constraint on the STP, including its safe and optimal operation, which was inconsistent with the benchmarks in the 2003 Scheme and the 2016 Scheme;
- while the STP’s ability to treat additional sewage in the future would need to include odour abatement to address existing sensitive receptors, because the proposal placed additional sensitive receptors in closer proximity to the STP, the constraint would be more significant than presently exists;
- there was inadequate separation of the site from the STP, which had the potential to adversely impact upon residential amenity even under normal operations;
- the Court could not be satisfied that a “consistently high level of residential amenity” could be maintained consistent with residents’ reasonable expectations.
The assessment benchmarks required residential amenity at the site to be of a consistently high standard whilst not unreasonably constraining the STP. The Court noted that, due to the importance of the STP to the community, these were significant considerations that weigh strongly against approval of the proposal. The appellant did not discharge its onus in relation to this issue, or a number of other issues in the appeal.
The appeal was dismissed, and the decision of the Council to refuse the application was confirmed.