AAMAC Warehousing & Transport Pty Limited v Auburn Council

[2009] NSWLEC 1410

Land and Environment Court

of New South Wales

CITATION:

AAMAC Warehousing & Transport Pty Limited v Auburn Council [2009] NSWLEC 1410

PARTIES:

APPLICANT
AAMAC Warehousing & Transport Pty Limited

RESPONDENT
Auburn Council

FILE NUMBER(S):

10363 of 2009

CORAM:

Hussey C

KEY ISSUES:

SECTION 121B ORDER :- cessation of unauthorised use, continuing use rights, dust amenity

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

8 and 9 December 2009

 
DATE OF JUDGMENT: 

9 December 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. Evans (barrister)
SOLICITOR
McKells Solicitors

RESPONDENT
Mr A. Hudson (solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

9 December 2009

10363 of 2009 AAMAC WAREHOUSING & TRANSPORT PTY LIMITED V AUBURN COUNCIL

JUDGMENT

Background.

1 This appeal was lodged against a s121B Order issued by council requiring the cessation of use of the premises at 41-45 Hill Road, Homebush Bay as a freight terminal and shipping container yard. The use was to cease by 5 June 2009.

2 The reasons stated in support of the Order were:

• Development consent is required for the use and no such consent has been granted.
• The current use is unauthorised.
• The land use is potentially impacting on the environment as the movement of vehicles on the non hardstand areas of the premises is causing the emission of dust from the site.
  

3 The appellant however challenged the contention that it does not have the benefit of a valid consent. It relies mainly on the continuation of a consent granted to Montague L Myer in 1989 for the storage and milling of timber. This apparently involved the use of the land for storage and associated transport.

4 However, the applicant advised the council that the current use is of a “temporary nature”, which should be concluded by 9 December 2010. The cessation of the use by that time is consistent with an alternate, existing consent for the site, which allows the construction of residential apartments.

5 Accordingly, the parties have given further consideration to possible control measures for dust suppression during the period until 2010 and based on an agreement by the respective environmental experts, the parties have now agreed to consent orders.

The evidence

6 Detailed evidence was presented by:

• Mr S Barnard; Council’s senior environmental health officer.
• Mr B Lapham; Applicant’s consulting engineer.
• Mr C Weatherby; Applicant’s consulting surveyor/planner.

7 These experts reviewed the Environmental Site Management Plan (ESMP) prepared by AAMAC. Council initially considered this plan inadequate, if the use was to continue for a prolonged period. Consequently, one of the fundamental premises of the review was that the use, if permitted, would be scaled down and ceased by 9 December 2010.

8 The ESMP proposed a number of dust suppression measures, on the following basis:

4.0 Environmental Management Control Measures
As the site is proposed to be used as a warehouse/storage facility for a relatively short period of up to approximately two years, replacement of all road base including compaction and sealing with asphalt or concrete is not considered feasible. The following practices are recommended to manage the issues of dust and sediment wash off. Plan F953EG-P1 in Appendix A shows the general arrangement. Photos of proposed location for some measures include in Appendix B.

4.1 Dust

(i) All hardstand (concrete) pavement areas to be swept and vacuumed as necessary to remove dust from re-suspension into the air.

(ii) Wet down all storage and manoeuvring areas as required to ensure that dust is not generated.
(iii) Any loose/failing area of road base to be replaced with DGB. Recycled concrete not to be used.

(iv) Where practicable, containers to be stacked on site along side boundaries and across Homebush Bay boundaries to reduce long open areas, minimising a "wind tunnel" effect and reducing wind velocities.

(v) Install and maintain geofabric wind break on existing chainwire security fence across Homebush Bay boundary.

(vi) Tidy the site area of stockpiles of loose material. Remove loose material from site. Remove rubbish to enable ease of access for maintenance.

(vii) Install wheel wash between existing shaker pad and site exit. Ensure that all vehicles leaving the site exit over the shaker pad and through the wheel wash.
(viii) Manage vehicle movements through the site sufficient to minimise dust generation. This will be a function of the dryness and nature of the base material.

4.2 Sediment


(i) Install silt fencing along Homebush Bay boundary. Also along southern boundary with Lot 8.

(ii) Install silt fencing across overflow channel to Homebush Bay, approximately 1.5 metres wide at 10 metre spacing at south west boundary before run off enters pits.

(iii) Install filter tubes at edge of concrete pavement on southern boundary to filter flow before entering open drain.

(iv) Clean out all surface inlet pits. Pits and pipes to be cleaned by eductor/vacuum methods, not by flushing downstream. Ensure that sediment is collected prior to being washed off site.

(v) Install Ingal Enviropod (or similar) filter bags into all surface inlet pits.

5.0 Ongoing Maintenance & Monitoring

(i) Continually monitor all soil erosion, sediment control and dust control measures.

(ii) Keep storage and manoeuvring areas wetted down as necessary to control dust. Do not over-wet to create a sediment wash-off problem. Hot, dry and windy days is likely to require almost constant watering of all areas.

(iii) Ensure that the wheel wash has sufficient water to effectively wash dust from wheels. The wheel wash is intended to be approximately 100mm deep, so splash action of trucks through the water and evaporation will require close monitoring of the water level and top up as necessary throughout the day.

(iv) Clean out pit filter bags regularly and remove sediment, replace bags as necessary. Ensure that sediment collected is disposed of so that subsequent dust or sediment issue is not created.

(v) Clean out sediment from behind silt fencing over filter tubes as required.

(vi) Manage truck speed through the site to minimise dust generation - approximately walking pace. Control AAMAC trucks leaving site to less than 50 km/h for 500 metres to minimise dust generation.

(vii) Appoint a person to be responsible for continual monitoring, management and maintenance of sediment and dust issues.

At least every day a monitoring inspection of all dust and sediment management issues should be made as well as following storm or high wind events.

A register to be kept of all inspections and maintenance issues as well as repairs carried out.

A separate register to be kept of any complaints and follow-up action, notification to complainant and/or Council if required.

Monitor Hill Street exit from the site. If any sediment or dust deposited on pavement, the area to be cleaned promptly.

9 It was then agreed by the experts that the proposed wheel washing be deleted and alternative street sweeping be undertaken. Also that wind protection fencing be erected along the southern car parking area and that recycled asphaltic concrete (AC) be used in lieu of the DGB material.

10 Another important provision is that there be regular joint inspections at 2 monthly intervals to ensure that adequate dust suppression is occurring. Otherwise remedial action is to be taken.

Conclusions

11 Having considered the evidence and undertaken a view, I am satisfied that the conditions contained within the consent orders satisfactorily address the environmental issues raised. In this regard, I note that the applicant did not pursue the challenge to the validity to the consent. Instead the applicant has agreed that the use is temporary and will cease by 9 December 2010.

12 The remaining issue then concerns the potential unsatisfactory environmental impacts from the trucks tracking dirt/silt from the unsealed yard area and depositing it on Hill Road, which contributes to unsatisfactory dust disamenity, as documented by the various complaints lodged with council.

13 I rely on the aforementioned expert’s opinion that the additional street sweeping and other internal control measures, as contained in the revised ESMP should control this to a reasonable level during the limited use period until 9 December 2010.

14 The Court makes the following order by consent:

A. The Court orders:
1 The appeal is upheld.
2 The order issued by the Respondent dated 5 May 2009, for the land the subject of the proceedings, Lot 9 DP776611 ("the land"), is modified in accordance with the Modified Order annexed and marked "A" dated 9 December 2009 ("the Modified Order").
3 The Applicant must vacate the land on or before 9 December 2010 ("the vacation date").
4 The Applicant must comply with the Modified Order from the date of this court order until the vacation date (including compliance with all items in paragraph 12 of the Modified Order within 14 days of the date of this court order).
5 The exhibits are returned except Exhibits 10 and 11.
6 Each party pay their own costs of these proceedings.
B. The Court notes by consent:
1. The Applicant agrees that:
(a) the land does not benefit from any section 106 existing use rights or section 109 continuing use rights, and
(b) there is no existing, current or operative development consent that authorises the Applicant's activities on and use of the land
2. The Council agrees that it will not take any enforcement action (including prosecution and class 4 proceedings) for any activities carried out by the Applicant on the land to the date of this order.
________________________
R Hussey
Commissioner of the Court
ljr

Annexure ‘A’

Modified Order

AAMAC WAREHOUSING & TRANSPORT PTY LIMITED
v AUBURN COUNCIL

AUBURN COUNCIL
Pursuant to s121 B of the
Environmental Planning and Assessment Act 1979


DATE: 9 December 2009
TO WHOM: AAMAC Warehousing and Transport Pty Limited (the company)
PREMISES: Lot 9 DP 776611, 41-45 Hill Road, HOMEBUSH BAY


This is an Order No. 1 pursuant to s 121 B of the Environmental Planning and Assessment Act, 1979 (NSW) (the ‘Act') given to the company because the company is using the premises as a freight transport terminal and shipping container storage yard which is a purpose for which development consent is required but has not been obtained under the Act.

ORDER NO. 1
TERMS OF THE ORDER AND PERIOD OF COMPLIANCE WITH ORDER (S121 M OF THE ACT):
1. Cease the use of the premises as a freight transport terminal and shipping container yard by 9 December 2010.
Reason: The premises is being used for activities that require development consent of the Consent Authority, under the provisions of the Act, however no development consent has been obtained.
2. During the period from the date of this order until the use ceases on 9 December 2010, the following conditions must be complied with:
A. Implement and maintain all environmental management control measures (item 4) and ongoing maintenance and monitoring (item 5), of the attached Environment Site Management Plan (ref: F952EG) dated December 2009 ("EMP") including the following:
• Item 4.1(v) within 14 days from the date of this order and ongoing;
• Item 4.1(vi) within 14 days from the date of this order and ongoing;
• Item 4.2(i) within 14 days from the date of this order and ongoing;
• Item 4.2(ii) within 14 days from the date of this order and ongoing;
• Item 4.2(iii) within 14 days from the date of this order and ongoing;
• Item 4.2(iv) within 14 days from the date of this order and ongoing;
• Item 4.2(v) within 14 days from the date of this order and ongoing;
• Item 5.0(vii) within 14 days from the date of this order and ongoing.
3. A copy of tipping receipts for all waste removed and disposed of from the premises shall be submitted to Council within 14 days of the date of removal/disposal of the waste.
Reason: To ensure all waste removed from the site is disposed of in an environmentally satisfactory manner at a facility that is appropriately licensed to take the waste.
4. Any dust or mud emitted from the operations of the premises which is required to be cleaned up by the Council will result in Council seeking reimbursement of costs incurred.
Reason: to protect waterways and stormwater systems from pollution
5. Any fill material to be imported shall be validated by an appropriately qualified person as posing no unacceptable risk to human health and the environment. Putrescible and non-putrescible solid waste (including demolition material) is not permitted on the premises.
All validation works must be carried out in accordance with Councils specifications the ANZECC and NH&MRC Guidelines and the applicable NSW Environmental Protection Authority Guidelines.
Reason: to ensure that any fill material introduced to the site is suitable for its intended use and will not result in the contamination of the site.
(1)
FAILURE TO COMPLY WITH THE ORDER

(1) It is an offence pursuant to s125 of the Act to fail to comply with this Order. Should the Order not be complied with, the Council may:


commence civil enforcement proceedings in the Land and Environment Court of NSW pursuant to s 123 of the Act seeking mandatory orders to compel compliance with the Order and any other order necessary and costs; and/or
(2) commence summary criminal proceedings in a Court of competent jurisdiction pursuant to s 127 of the Act seeking a conviction and pecuniary penalty; and/or


(3) issue a penalty notice pursuant to s 127A of the Act which carries a maximum penalty of $1,500 per penalty notice.

Note: That in relation to (2) above the Act carries a maximum pecuniary penalty of $1,100,000 and a further daily maximum pecuniary penalty of $110,000.


COUNCIL MAY CARRY OUT WORK (s 121ZJ of the Act)

In addition to (1), (2) & (3) above the Council may choose to exercise its powers pursuant to s 121ZJ of the Act to do all such things that are necessary to give effect to the Order and recover all associated costs incurred in giving effect to the Order as a debt in a court of competent jurisdiction.

NOTE

Compliance with the EMP and/or the terms of this order does not infer compliance with the requirements of Protection of the Environment Operations Act 1997 ("the POEO Act"). Should the company or the operators of vehicles from the premises be found to have caused or permitted breaches of the POEO Act such as the pollution of water or emission of air pollution further action may be taken against the company or the individual responsible for the breach.

Finally, should you choose to comply with the terms of the Order, then phone Samuel Barnard on 8745 9717 for a compliance inspection and the matter will be finalised without further action.