G Nand L G Burgess v Selwyn District Council
| Jurisdiction | New Zealand |
| Judge | Environment Judge J E Borthwick,Environment Commissioner J R Mills,Environment Commissioner K A Edmonds |
| Judgment Date | 23 January 2014 |
| Neutral Citation | [2014] NZEnvC 11 |
| Date | 23 January 2014 |
| Court | Environment Court |
| Docket Number | (ENV-2013-CHC-042) |
[2014] NZEnvC 11
BEFORE THE ENVIRONMENT COURT
Environment Judge J E Borthwick Environment Commissioner J R Mills Environment Commissioner K A Edmonds
(ENV-2013-CHC-042)
In the matter of the Resource Management Act 1991 and of an appeal pursuant to s 120 of the Act
and
A Prebble for G Nand L G Burgess
P Rogers for Selwyn District Council
S W Christensen for J W McFall
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A: The appeal is dismissed and the decision to grant consent is confirmed subject to the amended conditions of consent marked “Annexure A” attached to and forming part of this decision.
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B: Subject to the directions given in this decision, costs are reserved.
In a decision dated 30 April 2013 the Selwyn District Council granted consent to Mr John William McFall to construct and operate an intensive livestock production facility which will house up to 80,000 broiler chickens.
Mr Gary Neil Burgess and Mrs Lynda Gay Burgess own a neighbouring farm and being concerned about the odour they have appealed the District Council's decision to the Environment Court, seeking that the consent be declined.
The proposal was described in detail in the planners' Joint Witness Statement. 1 The chicken sheds are purpose built and will use advanced equipment with the object of minimising odour discharges. 2 Mr McFall (the applicant) has obtained an air discharge permit from the Canterbury Regional Council, authorising the discharge of contaminants subject to conditions. 3
The applicant's site comprises approximately 10.1ha of land and is located 3.7km west of Leeston and 31km south-west from the outskirts of Christchurch City. The site is oblong in shape and essentially flat, with the only distinct feature being six rows of pine trees at the northern corner that provide shelter. 4 The site currently contains a dwelling and a number of accessory buildings, with the land use predominantly being pastoral farming and general lifestyle activities. 5
The land uses in the surrounding area include cropping, grazing, recreation and again, general lifestyle activities. Overall, the density of residential dwellings in the
area is low. A network of roads provides access to the site, other rural properties and townships in the vicinity, including Southbridge Dunsandel Road and Domain and Pooles Roads. 6Gary Neil Burgess and Lynda Gay Burgess (the appellants) own two neighbouring lots, including RS 10295 (referred to in this decision as “the lot”). 7 These lots, together with others they own, are managed as an overall unit making up a 344ha farm. 8 The proposal is to locate the two sheds in which the chickens will be housed approximately 30m from the common boundary of lot RS 10295.
The appellants are concerned about the broiler chicken fames potential effects on the 24ha lot. Mr Burgess summed up his concerns saying: “No, it's the old story. It's pigs, poultry and pylons, I'm afraid, you don't build beside them”.
Subject to compliance with the District Plan, the erection of a residential dwelling on the lot is permitted. As part of their retirement plan, the appellants had planned to build a house on the lot before selling the lot or alternatively, to sell the lot with a right to build. They would retire on the land if it did not sell.
In response to the application for resource consent to construct and operate broiler sheds on the adjoining property, the appellants applied for two certificates of compliance giving notice that the erection of dwellings on the lot could lawfully be undertaken without a need for a resource consent. 9 The first certificate was for a dwelling located 20m from the western boundary with the applicant's site. This certificate was surrendered during the course of the hearing. The second certificate of compliance was for a dwelling setback approximately 110m from the Domain Road boundary and about 190m from the western boundary of the applicant's site. This site is
the location of the appellants' preferred dwelling site and is referred to as the “preferred building site” in this decision. 10The appellants argue that if the certificate of compliance is a deemed resource consent and if the court is satisfied that it is likely that the dwelling will be erected at the preferred building site, the dwelling should be considered as part of the receiving environment when considering the effects of the proposal. They contend that the applicant's site is too small for the proposed 80,000 unit broiler chicken farm and as a consequence odours, which are a significant adverse effect, will be experienced at the preferred building site.
The appellants do not suggest that the applicant should fully internalise all odours on his site or that the proposal should not emit objectionable or offensive odours onto their site. Rather, they wish to preserve the opportunity to build a house at a location they deem best without being subjected to unreasonable odour effects. 11
Having considered the evidence and submissions the issues for determination are as follows:
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(a) does the receiving environment include a dwelling at the appellants' preferred building site?
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(b) if the receiving environment does include a dwelling will the proposal cause potential adverse effects on the environment and if so, what is the impact and significance of those effects?
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(c) is the proposal consistent with the outcomes sought by the relevant planning instruments?
The rearing of chickens in broiler sheds is intensive livestock production under the Selwyn District Plan. Being located within the Rural (Outer Plains) zone, the activity requires land use consent under the Selwyn District Plan and falls to be assessed as a restricted discretionary activity.
Section 104C of the Resource Management Act 1991 (the Act or the RMA) applies to the determination of such activities. This section provides:
104C
(1) When considering an application for a resource consent for a restricted discretionary activity, a consent authority must consider only those matters over which-
(a) a discretion is restricted in national environmental standards or other regulations:
(b) it has restricted the exercise of its discretion in its plan or proposed plan.
(2) The consent authority may grant or refuse the application.
(3) However, if it grants the application, the consent authority may impose conditions under section 108 only for those matters over which
(a) a discretion is restricted in national environmental standards or other regulations:
(b) it has restricted the exercise of its discretion in its plan or proposed plan.
Section 104(1) requires that, subject to Part 2, the court must have regard to the following matters:
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(a) any actual and potential effects on the environment of allowing the activity; and
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(b) the relevant provisions of the following plans:
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(i) the Canterbury Regional Policy Statement; and
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(ii) the Selwyn District Plan.
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Part 2 contains the purpose and principles of the RMA. Sections 5 and 7 are relevant. Section 7 provides that we are to have particular regard to the following matters (relevantly):
…
(b) The efficient use and development of natural and physical resources,
(c) The maintenance and enhancement of amenity values; and
(f) Maintenance and enhancement of the quality of the environment.
This case is concerned with the potential effects of odour and dust. Unless the context requires otherwise, s 3 defines “effect” which includes — regardless of the scale, intensity, duration, or frequency of the effect:
(e) any potential effect of high probability; and
(f) any potential effect of low probability which has a high potential impact. 12
For completeness we record that we have had regard to the decision of the District Council, as we are required to do under s 290A of the Act. The majority of the court agrees with the outcome of the decision, notwithstanding additional evidence and argument put before us, and finds no need to repeat or comment on the same. In accordance with s 104(1)(a) we consider next the effects of the activity on the environment.
With the exception of dust and odour, the appellants do not appeal the District Council's decision with regard to the other effects of the proposal on the environment.
The court heard from three air quality experts on the topic of dust and odour. Mr R Chilton gave evidence on behalf of applicant, Ms P Harwood for the appellants and Mr D Pullen for the District Council. We address next the effects of dust briefly, before moving on to consider odour.
While Mr Burgess remains concerned about the effects of dust emissions, particularly its effect on crops, 13 the opinion of the experts is that there is unlikely to be any offensive or objectionable dust effects. 14
With direction being given by the court, the parties agreed to modify the condition that controls dust so that it is certain and enforceable. We are satisfied that the condition will mitigate any adverse effect of dust and do not consider it necessary (as Mr Burgess suggested) to require any shelter belt to be established over a period of 5-7 years before the broiler sheds are constructed and operated. For the same reason we do not consider that the effects of dust make it appropriate for the sheds to be moved. 15
A dispersion model was used to calculate the concentration of odour contaminants at ground level in the area surrounding the proposed broiler sheds. The model includes inputs...
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