W DONALD MILLIGAN PTY LTD 136 Top Forestry Road, Ridgewood -MCU12/0184 - Chicken farm application response from solicitor

Subject: W DONALD MILLIGAN PTY LTD  136 Top Forestry Road, Ridgewood -MCU12/0184 - Chicken farm application response from solicitor
From: Jack Lewis <[email protected]>
Date: Wed, 17 Sep 2014 01:01:14 +0000
To: "[email protected]" <[email protected]>

#ECMAll

From: Cliff Wirz [mailto:[email protected]]
Sent: Tuesday, 16 September 2014 2:16 PM
To: Kerri Coyle; Jack Lewis
Cc: Max Watterson & Associates; Bob Abbot; Joe Jurisevic; Tony Wellington; Sandy Bolton; Frank Pardon; Frank Wilkie; Noel Playford; [email protected]; [email protected]
Subject: RE: W DONALD MILLIGAN PTY LTD 136 Top Forestry Road, Ridgewood -MCU12/0184 - Chicken farm application
Importance: High

[GANTT LEGAL]

Dear Kerri and Jack.

Further information to be considered

I refer to my email dated 31 July 2014 below.

The applicant's contact for the development application, Max Watterson of Max Watterson & Associates is copied into this email.

I have read the agenda for the Noosa Shire Council's Planning and Organisation Committee meeting to be held on 16 September 2014.

I understand that the development application will then be decided at the Full Council meeting to be held on 25 September 2014.

There are inaccuracies and isues in the agenda report which this correspondence addresses.

Background information regarding odour issues

The applicant for the development application was W Donald Milligan Pty Ltd.

David William Milligan is the sole director of W Donald Milligan Pty Ltd.

Genevieve Milligan and David William Milligan are the company secretaries.

I enclose a company search of W Donald Milligan Pty Ltd.

I enclose a Smart Map of the land the subject of the development application and surrounding locality.

The development application was in relation to Lot 21 on SP226606 (highlighted in pink).

However the applicant also owns 4 adjacent Lots (highlighted in blue), namely:


1.     Lot 204 on RP892484 - owned by Genevieve Milligan and David William Milligan (i.e. David Milligan's house lot)

2.     Lot 20 on SP226606 - owned by W Donald Milligan Pty Ltd (vacant land)

3.     Lot 22 on SP226606 - owned by W Donald Milligan Pty Ltd (orchard)

4.     Lot 1 on SP100785 - owned by W Donald Milligan Pty Ltd (orchard).

Ben Hyde and Paul King (of MWA Environmental) prepared the Noise and Air Quality Impact Assessment dated 31 July 2014.

In terms of odour impacts on the 4 lots above owned by my client which did not form part of the development application, Ben Hyde has advised that:

"Based upon the odour modelling from our 31 July 2014 report (specifically Attachment 8), the following conclusions may be drawn for the relevant allotments:


*         Lot 1 on SP100785 - Current use for orchard - odour 'footprint' covers approximately half of the lot so potentially still able to construct a house outside of the affected area.

*         Lot 22 on SP226606 - Current use for orchard - odour 'footprint' covers the entire lot.

*         Lot 204 on RP892484 - Milligan's house block - odour 'footprint' covers the entire lot.

*         Lot 20 on SP226606 - No dwelling at present, previously used for grazing - odour 'footprint' covers approximately half of the lot so potentially still able to construct a house outside of the affected area."

185 Top Forestry Road

Page 30 of 145 of the agenda report states:

"The applicant has also not provided detailed modelling of odour impacts to 185 Top Forestry Road. There is an existing house on this property, and the current owners have lodged a letter of support for the application. Council's Environmental Consultant also advises that more detailed modelling could be undertaken around the house, and if done is more than likely to result in this sensitive receptor being outside the 2.5 odour unit contour.".

Ben Hyde of MWA Environmental has advised that his report titled "Noise and Air Quality Impact Assessment" dated 31 July 2014 includes results from the odour model for 185 Top Forestry Road which indicates compliance with the 2.5 odour unit guideline.

Proposed Covenant over Lot 1 on SP100785,  Lot 22 on SP226606, Lot 204 on RP892484 and Lot 20 on SP226606

Page 30 of 145 of the agenda report refers to 4 lots owned by my client which did not form part of the development application (namely Lot 1 on SP100785,  Lot 22 on SP226606, Lot 204 on RP892484 and Lot 20 on SP226606) and states:

"The applicant has not indicated they are prepared to include these properties as part of the application. As such there is no way of avoiding unacceptable odour impacts on future owners/residents of these properties."

My client has received advice from Christopher Hughes QC and Michael Williamson of Counsel with respect to this issue.

Christopher Hughes QC and Michael Williamson of Counsel have advised:

"Christopher and I are of the view that, rather than impose a condition, your clients could offer to provide a covenant to the Council under s. 97(a) of the Land Title Act 1994. The covenant would require land within the odour footprint to be used for buffer purposes while the poultry farm is operational.
A covenant could be registered on each of the four titles adjoining the subject land.  The covenant would be binding on successors in title whilst the poultry use continues to operate.
 The benefit of offering a covenant is that it avoids the need to amend the development application as well as avoiding any arguments in relation to the lawfulness of conditions relating to land which are not the subject of the development application.
 We would suggest that the Council be informed that the Applicants are prepared to provide covenants on the four adjoining lots owned by your clients for the purpose of a buffer whilst the poultry farm operates on the land the subject of the development application."
My client is prepared to provide covenants to the Council under s. 97(a) of the Land Title Act 1994 on the four adjoining lots owned by my clients (namely Lot 1 on SP100785,  Lot 22 on SP226606, Lot 204 on RP892484 and Lot 20 on SP226606) for the purpose of a buffer whilst the poultry farm operates on the land the subject of the development.

Yours faithfully
[Cliff Wirz]
Cliff Wirz
LLB MURP MDIA
Director
0401 102 694
[email protected]<mailto:[email protected]>
www.linkedin.com/in/cliffwirzlawyer

Level 22 69 Ann Street BRISBANE QLD 4000<https://maps.google.com/maps?q=69+ann+street+brisbane+australia&hl=en&ll=-27.469728,153.022344&spn=0.00183,0.003484&sll=37.0625,-95.677068&sspn=52.68309,114.169922&t=m&hnear=69+Ann+St,+Queensland+4000,+Australia&z=19>
1300 472 529
[email protected]<mailto:[email protected]>
www.ganttlegal.com.au<http://www.ganttlegal.com.au/>

Liability limited by a scheme approved under Professional Standards Legislation


From: Cliff Wirz
Sent: 31 July, 2014 6:16 PM
To: [email protected]<mailto:[email protected]>; Jack Lewis [[email protected]]
Cc: Max Watterson & Associates
Subject: W DONALD MILLIGAN PTY LTD 136 Top Forestry Road, Ridgewood -MCU12/0184 - Chicken farm application

[GANTT LEGAL]

Dear Kerri and Jack.

I refer to my email dated 30 July 2014.

The applicant's contact for the development application, Max Watterson of Max Watterson & Associates is copied into this email.

Amended reports

I enclose, on behalf of the applicant, W Donald Milligan Pty Ltd, copies of the following:


1.     Report titled "Noise and Air Quality Impact Assessment" prepared by MWA Environmental dated 31 July 2014;

2.     Report titled "Proposed Poultry Farm - 136 Top Forestry Road, Ridgewood, Traffic Engineering Report" prepared by Lambert & Rehbein dated 31 July 2014.

Traffic survey video

The video traffic surveys of Top Forestry Road, obtained from Wednesday 12 March 2014 until Tuesday 18 March 2014 can be accessed via the link below:

https://www.dropbox.com/s/krdgddonpaulnwj/B14101_Videos.zip

Lambert & Rehbein are sending a USB with the surveys to me. I will send the USB to you as soon as it is received.

The composting/manure stockpiles component of the development application

The officer report considered at the Council's ordinary meeting held on 14 November 2013 stated that "In terms of odour impacts, Pacific Environment on behalf of council advise that no data has been provided of the emissions from manure stockpiles and manure spreading.".

The Council resolution made at the Council's ordinary meeting on 14 November 2013 requested the applicant to provide further information regarding "3. composting and stockpiling methodology including data on management of emissions during these processes.".

The applicant advises that they are prepared to accept a condition of approval that no composting and stockpiling of poultry manure generated by the poultry sheds is to be undertaken on-site.

Overview of Noise and Air Quality Impact Assessment Report


*         Odour

As outlined above, the applicant is prepared to accept a condition of approval that no composting and stockpiling of poultry manure generated by the poultry sheds is to be undertaken on-site and therefore the spreading of manures generated on-site has not been considered in the updated modelling.

The updated odour modelling (MWA Environmental, 31 July 2014) includes additional receptor locations and considers all closest sensitive receiver locations and, based upon the modelling methodology requested by Council's peer reviewer, indicates compliance with the Queensland odour amenity guideline at all sensitive receptors.


*         Dust - Top Forestry Road

The Council resolution made at the Council's ordinary meeting on 14 November 2013 requested the applicant to provide further information regarding "2. feasibility of requirements to provide to seal to 50m in front of affected properties on Top Forestry Road or to enter into an infrastructure agreement with council.".

Assessment of traffic generation rates from the proposed broiler farm use by Lambert and Rehbein forecasts that the site will generate an additional 4 vehicles movements (2 in, 2 out) on average per day on Top Forestry Road.  This is a relatively minor increase in the traffic and potential dust emission from Top Forestry Road which would not be expected to have any significant effect on potential dust nuisance at residences along the unsealed road.

Sealing of Top Forestry Road for all locations where houses are within 50 metres of the road is not considered to be warranted based upon the minor traffic volumes.  Dust emission potential from Top Forestry Road may be minimised through appropriate maintenance of the road surface and reduction of heavy vehicle speed.


*         Noise

Lambert & Rehbein traffic projections indicate that the proposed development will generate in the order of 4 vehicle movements (i.e. 2 in, 2 out) on average per day. This minor traffic generation has no potential to cause any regulatory traffic noise planning levels to be exceeded at residential land uses.

Bird pick-up on approximately 5 days per 9 week cycle is forecast to generate in the order of 10 vehicle movements during the period 2:30am to 7:00am on those 5 days. This minor traffic generation has no potential to cause any regulatory traffic noise planning levels to be exceeded at residential land uses.

The overall impact on the existing acoustic environment from development generated traffic will not be unreasonable.

Overview of Traffic Engineering Report

The Council resolution made at the Council's ordinary meeting on 14 November 2013 requested the applicant to provide further information regarding "1. total vehicle trips including details of vehicles, purpose of trip, time of trip and number of trips per day.".

All requested information has been addressed in the Traffic Engineering Report" prepared by Lambert & Rehbein dated 31 July 2014.

According to the traffic report, "The activity associated with the proposed use would be generally a very low impact and very low activity with almost half of the days throughout a 63 day growth cycle expected to generate no external traffic activity.".

The traffic engineering report also outlines two options for minor mitigation works to Top Forestry Road which the applicant would like to discuss with Council, with a view to incorporating into an infrastructure agreement.

Request for a meeting to discuss amended reports

As set out in my email dated 30 July 2014, my client would like to engage in a further meeting with you and relevant Council officers to discuss the reports and any potential works that the Council may wish to see implemented.

The outcome of those discussions will help determine what works ought to be incorporated into an infrastructure agreement.

Please advise if Council is prepared to engage in further discussions, and if so, provide me with a suite of proposed times and dates so that a mutually convenient date for the further discussions to take place at the Council chambers can be arranged.

Can you please provide me with an indication as to how long Council officers (and/or any independent experts) will need to review the reports and data, so that fully informed discussions can be held at any subsequent meeting.

My client intends to bring his traffic engineering and odour/dust/noise experts and Max Watterson to that meeting.

The applicant requests that any decision of the development application be deferred, to give the parties an opportunity to meet and discuss.

Yours faithfully
[Cliff Wirz]
Cliff Wirz
LLB MURP MDIA
Director
0401 102 694
[email protected]<mailto:[email protected]>
www.linkedin.com/in/cliffwirzlawyer

Level 22 69 Ann Street BRISBANE QLD 4000<https://maps.google.com/maps?q=69+ann+street+brisbane+australia&hl=en&ll=-27.469728,153.022344&spn=0.00183,0.003484&sll=37.0625,-95.677068&sspn=52.68309,114.169922&t=m&hnear=69+Ann+St,+Queensland+4000,+Australia&z=19>
1300 472 529
[email protected]<mailto:[email protected]>
www.ganttlegal.com.au<http://www.ganttlegal.com.au/>

Liability limited by a scheme approved under Professional Standards Legislation



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