For many years Arthur Poynting was Gloucester’s well known and much loved vet. He was always ably supported by wife Ros who assisted in the practice. Like most country vets Arthur was called out at all times and in all weathers to help deliver a calf struggling to be born or to aid an animal in distress.

When Arthur and Ros retired a few years ago they were looking forward to relaxing on their small acreage at Barrington and to spending more time with family and friends and enjoying other activities such as bushwalking and gardening.

The Poynting’s property looks out across green paddocks to the Barrington River and most of the time all they can hear, apart from visiting grandchildren, is the sound of birds and the occasional mooing of cows from the adjacent dairy farm.

However, Arthur and Ros’s peaceful life was uprooted when in October 2018 the MidCoast Council approved a DA for the development of a huge 500-cow capacity dairy within just over 200 metres of family homes, including the Poyntings. 

Outraged

When Ros and Arthur first heard of the proposal, they were outraged, but thought, somewhat naively, that there was no chance that it would be approved because it was inconsistent with all proper planning guidelines. 

They and other residents lodged objections and waited to hear that the elected officials of the Council would act to protect them from a noisy and smelly industrial size complex on their doorstep. 

How wrong this turned out to be.

From the very beginning the Council failed to follow its own protocols and guidelines. Many breaches were completely disregarded by the Council. Some of the defects were:

• A failure by the proponent to lodge a Statement of Environmental Effect as required by law.
• An incomplete DA form.
• No elevation plans.
• No details of relevant levels.
• No floor plans.
• No landscape plan.
• No proper site plan. What was provided was a poor hand drawn plan.
• No flood plain details. The dairy was near the Barrington River and just 4 kilometres above the source of the Gloucester water supply. The proposed dairy was adjacent to a watercourse that flowed into the Barrington River.
• An inadequate odour report.
• No consideration of the cumulative impact of the development.

The guidelines were that such a development should not be closer than 500 metres from any residence. This was ignored by the Council.

The approval would have allowed vehicles, including large trucks, to access the dairy via a rough dirt road within 50 metres of the Poynting’s home. The Council did not require the road to be sealed.

The Council imposed no time limits for the operation of the dairy meaning that cows could be herded and milked at any time of the day or night. 

Offensive odours are a common issue in relation to the operation of dairies, but the odour report initially accepted by the Council was so inadequate that Arthur and Ros were required to spend a large amount of money to obtain an independent expert report at considerable cost. 

Objections

Despite many objections from local residents the Councillors voted to approve the project by a vote of 7 to 2 leaving the locals with no other option but to challenge the decision in the Land and Environment Court. An expensive proposition indeed.

But Arthur and Ros did have the courage to take on the Council. What legal advice the Council and the proponent received will not be known because such advice is protected by legal professional privilege. However, just before a court hearing in late 2019 the Council and the proponent seemed to have realised that the development’s shortcomings were going to be exposed and the proponent offered to surrender the DA. But there was a catch. The catch was that Arthur and Ros had to pay their own legal costs, which at that stage were in six figures. 

This put Arthur and Ros in a very difficult position. They knew that if the hearing proceeded their legal costs would escalate substantially and although they were confident of a win, they also knew that there are no guarantees when it comes to the outcome of a court case. They had no real alternative but to accept the offer and the DA was withdrawn leaving Arthur and Ros much the poorer.

Council Principles

The NSW Local Government Act sets out certain principles which Councils are bound to follow such as:

• An obligation to act fairly, ethically and without bias in the interests of the local community.
• An obligation to consider social justice principles.
• An obligation to be transparent and accountable for decisions and omissions.
• An obligation to carry out its functions in a way that provides the best possible value for residents and ratepayers.

In this case the Midcoast Council failed on every count.

It is now obvious that the dairy should never have been approved, but more importantly, once the Council realised that it had made a mistake, it should not have allowed the Poyntings to be put in the invidious position of having to bear their own legal costs. On no view can this be regarded as fair and ethical.

It is not known what the whole fiasco cost the Council and therefore the community, but it must have been a significant sum. It is also not known what arrangement, if any, was made between the Council and the proponent for the surrender of the DA.

The Council needs to examine this whole shoddy incident to ensure that it doesn’t happen again. The least it can now do is offer to reimburse the Poyntings and to offer an apology to them and other affected residents.

A complaint to the Minister for Local Government, Shelley Hancock, the person charged with supervising Councils, fell on deaf ears.

John Watts

Retired Barrister, Gloucester resident, and author of ‘The Town That Said NO to AGL. How Gloucester Was Saved from Coal Seam Gas’.