Australian Roadbase Supplies Pty Limited v Canterbury City Council
[2004] NSWLEC 367
•07/09/2004
Land and Environment Court
of New South Wales
CITATION: Australian Roadbase Supplies Pty Limited v Canterbury City Council [2004] NSWLEC 367 PARTIES: APPLICANT
RESPONDENT
Australian Roadbase Supplies Pty Limited
Canterbury City Council
.FILE NUMBER(S): 10513 of 2004 CORAM: Moore C KEY ISSUES: Development Consent :-
Modification of consent
Whether modified development would be substantially the same as that presently approved
.LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s96(2)(a)
.CASES CITED: Transport Action Group Against Motorways v Roads and Traffic Authority 1998 NSW LEC 293;
Moto Projects (No 2) v North Sydney Council [1999] 106 LGERA 298;
Vacik Pty Ltd v Penrith City Council (1992) NSWLEC (unreported);
Satellite Group (Ultimo) Pty Limited v Sydney City Council (1998) NSWLEC 244;
Moy v Warringah Shire Council 2004 NSWCCA 77;
.DATES OF HEARING: 9 July 2004 EX TEMPORE
JUDGMENT DATE :07/09/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr P Jackson, solicitor
Pike Pike & Fenwick
Mr J Johnson, barrister
INSTRUCTED BY
Michel Sillar
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMOORE C
9 July 2004
JUDGMENT04/10513 Australian Roadbase Supplies Pty Limited v Canterbury City Council
1 COMMISSIONER: This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the Act) concerning a proposal by Australian Roadbase Supplies Pty Limited to modify its operations at 11B Harp Street, Campsie where it operates a facility which includes the recycling of building materials and demolition materials by crushing them and reselling them for construction purposes. The application was determined by Canterbury City Council by refusal, notice of which is dated 24 March 2004.
2 The matter that comes before me for determination is a comparatively narrow one being whether the application complies with the provisions of s 96(2)(a) of the Act in that the modified development, if approved, must be substantially the same as the development for which consent was originally granted.
3 In this context, it is relevant to note that the definition of development contained in s 4 of the Act includes the use of land and is in fairly wide terms in its totality.
4 The approach I have taken in dealing with this application, as I indicated to the parties, is to consider the various elements within it to see whether any of them are substantially different to the appropriate element that arises from the consent that is proposed to be modified
5 Only if I am satisfied that one or more of those elements is not substantially the same as the corresponding element as modified, do I then turn to consider whether or not the development, in its totality, as modified, would be substantially the same as the development for which the applicant currently has approval.
6 There are three matters that the council says, through Mr Jackson, the council’s solicitor, that are offensive against the substantially the same test.
7 They are:
- First, a proposed substitution of the crushing plant presently permitted with one of the crushing plants that currently operates on the site;
- Second, the proposed changes to the storage facilities - both for the produced crushed materials and for the stockpiles of raw materials that feed the crusher; and
- Third, the proposed dust suppression measures which it is proposed replace the present measures with a water recycling facility and extensive dust trapping screens around two sides of the site
8 The approach that I am taking in looking at the parts before addressing the whole is consistent with the appropriate taken by Bignold J in Transport Action Group Against Motorways v Roads and Traffic Authority 1998 NSW LEC 293.
9 In this regard,I am also mindful of the tests set out in Moto Projects (No 2) v North Sydney Council [1999] 106 LGERA 298 where, at paragraphs 54 to 56, Bignold J summarises the approach he has taken to a similar set of issues and makes it clear that the comparison which is to be made does not merely
involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).
10 It is in that context that I turn to consider the issues advanced on behalf of the council.
11 First, with respect to the crusher, Mr Jackson helpfully provided a table setting out what he said was a schedule of the known differences between that which had been approved in the original consent and that which was proposed in the modification. Mr Johnson, counsel for the applicant, took no exception to the tabular presentation of this information.
12 There were four matters of broad comparative difference set out in that table.
13 The first related to the source and method of supply power to the crushing equipment. Although the proposed equipment is to be direct diesel powered and that which was originally approved was electrically powered, that which was originally approved was to be electrically powered from a diesel powered generator co-located on-site. That is sufficiently similar, in my view, not to occasion any distinguishing between that which is proposed that which was approved.
14 Second, there were a number of other matters relating to the height and the geographic location of the two pieces of equipment and the fact that that which is proposed is mobile (being a tracked vehicle) contrary to that which was originally approved which was a fixed vehicle at a fixed and designated location. Although there are some differences between the two, I am not satisfied that those differences are sufficiently large not to be capable of being dealt with by inviting the applicant, during a merits hearing, to seek a further amendment to the proposal in effect to locate the proposed plant at the site and under the circumstances of that which was originally approved. I do not consider that this difference between the two is sufficient and material so as not to constitute an element that is substantially the same if such amendment were sought and permitted. Even if such an amendment were not sought, this is a matter for merits assessment as it is not, in my view, so different as to be offensive against s 96(2)(a).
15 The third matter which was raised by Mr Jackson related to the power output of the machines. That which is proposed has a power output excess of 100 kW whereas, on one construction, that which is presently approved has an output of 50 kW or (having regard to the higher output of the generator) 80 kW. I did not consider that these elements between them constitute a sufficient difference so as to render the two machines materially different. In this regard, particularly, I have no evidence concerning whether the power of the junior recycler and of the generator which are mentioned as Folio 75 in council’s bundle of documents (which is a page of the original Environmental Impact Statement) should not be aggregated and regarded together in some fashion or combination. If aggregation were appropriate, that which is proposed is of lower power.
16 The final matter relating to the crushing equipment is, however, of more significance and relates to the capacity of the machines and their ability to produce crushed materials. The machinery which was approved in the earlier consent is described as having a typical capacity of 15 tonnes per hour whereas that which is proposed has a minimum capacity of 60 to 70 tonnes per hour. Whether that capacity of 60 to 70 tonnes per hour is a minimum or a maximum is not material in my view.
17 In terms of considering the comparison between the output of that proposed and that which was originally given consent, I am satisfied that the differences in capacity of a factor of at least four are sufficiently different so that that element is not substantially the same as that which was consented to in the original application.
18 That, however, is not necessarily fatal when I consider the overall question of the comparison of the developments.
19 The second matter that is in contention relates to the height of the storage bins and, as a consequence of the linkage in the 1997 consent between the height of the storage bins and the height of the stockpiles, the capacity of the stockpiles. There is also a proposed increase in a number of storage bids from 7 to 9 and for the storage bin located in the north western corner of the development to be modified in size and, therefore, the capacity of that bin.
20 A simple consideration of mathematical calculations shows that, if there is a 50% increase in the permitted height of the storage bins, volume (whether it is in conical, trapezoidal or cubic form) is directly dependent on height. Thus, a 50% increase in the height will approximate to a 50% increase in the volume capable of being stored in such a facility.
21 Further, the adding of the two extra storage bins and the enlargement and changed direction of proposed bin 3 in the north western corner would add, as an approximate mathematical calculation, at least a further 14% to the storage capacity of the produced materials on the site. Therefore, there would be, in crude terms, an increased storage capacity of materials on site of some two-thirds.
22 I satisfied that this is something that means that that element is not substantially the same in the modification application as that which is the subject of the present consent.
23 The third element relates to dust suppression measures on-site. That which is presently consented to appears in condition 8 of the conditions of the 1997 consent which requires that fixed water sprays must be used on stockpiles and internal roadways so that dust nuisance is not caused to surrounding properties. What this means is somewhat but not extensively fleshed out by the Environmental Impact Statement which is incorporated in the 1997 conditions of consent by condition 1.
24 Dust suppression measures are dealt with in the Environmental Impact Statement at Folios 77 and 93 of council’s bundle. They make it clear that surface water will be collected and discharged into an existing storm water drainage system – subject to a number of measures to trap particulates and greases and the like. The storm water drainage is not proposed to be reused but a number of measures relating to water pollution are set out in table 3.9.2 of the Environmental Impact Statement.
25 What the applicant seeks approval for in this modification application is contained in parts 8 and 9 of the amended s 96 modification application.
26 Essentially, these are in a number of parts –
- the creation of a recycled water system on-site with a 50,000 water holding tank;
- details being provided to the dust suppression system including dust suppression meshing along the eastern and southern boundaries of the site;
- further details of the location and frequency of location of the suppression nozzles; and
- installation of a wind direction monitoring system together with a system that will monitor dust deposition
27 I satisfied that those matters which are proposed in the s 96 modification application are qualitatively sufficiently similar to that which is required of the applicant pursuant to the present consent so as not to constitute an offence against s 96(2)(a).
28 I have reached this conclusion as the differences that arises, in my assessment, do so as a result of the lack of details in the current consent rather than because of the provision of details in the modification application.
29 To the extent that there is a quantitative difference arising from current drainage or water management philosophy and the recycling system (as opposed to discharge) of storm water, I am satisfied that, in the context of the overall matters addressed by the 1997 and current modification elements, these are, taken together with the qualitative objectives, effectively the same as that which use provided for in current consent. I am therefore not prepared to hold that the dust suppression elements offend against the tests that arises pursuant s 96(2)(a).
30 That, therefore, brings me to the issue of whether or not, taken together, the two matters which I have concluded are not substantially the same – that being the crushing plant throughput issue and the storage capacity issue (as it might generally be described) fail the test that was set out in Vacik Pty Ltd v Penrith City Council (1992) NSWLEC (unreported) where Stein J said, inter alia:
- In my opinion substantially when used in the section means essentially or materially or having the same essence
31 In this regard, it is also appropriate to consider the approach taken in Satellite Group (Ultimo) Pty Limited v Sydney City Council (1998) NSWLEC 244 were Talbot J took the position that a single element was capable of constituting such a major alteration as to taint the totality of the modification application.
32 I am satisfied that there is a significant change to the proposed operation as a consequence of the approximate quadrupling in of the capacity of crushes output and of the approximately two-thirds increase in stockpile so as to warrant further consideration against the tests in Moto.
33 In particular, I have had regard to what is seen in Folio 75 at page 18 of the Environmental Impact Statement where it shows that the annual machine hours that would be required for the approved equipment to reach the annual output limit will be approximately 2000 hours whilst it is possible, using the new machinery, that this output could be achieved in a quarter of that time. The reduction in time, coupled with the ability to store more finished product on-site, is that which I should test, in totality, against s 96(2)(a).
34 It is also appropriate to note two matters that I have specifically not undertaken in these proceedings.
35 Although that has been some passing mention of a possible triggering of a different zoning as a consequence of changes to the nature of the activities, I have not considered it necessary to determine that at this stage of the proceedings. Although this was mentioned to me by Mr Jackson, he has not pressed it as a basis on which I should determine the preliminary question.
36 Perhaps, of greater significance, is the fact that a document which was described as a location plan (for the purposes of enabling me to understand the present modification application) was tendered by Mr Johnson. This contained a number of differences when compared to the plan of the site that was incorporated the 1997 consent as part of the Environmental Impact Statement.
37 The present location plan shows materials processing and storage being undertaken over an extensive area of the site significantly different from that contained in the consent plan.
38 I have not dealt with that or considered that matter in these proceedings.
39 As I indicated to the parties, in the course of the proceedings, they are either matters that would be appropriately pursued by the council in another class of the Court's jurisdiction or may well go to the question of whether or not the activities, in a merits assessment, warrant approval by Court.
40 I, however, have not considered whether that difference is anything which would go to a distinguishing between the present operations and that proposed pursuant s 96 as the applicant has specifically disavowed the present location map from being incorporated, explicitly or by necessary implication, in the s 96 modification application.
41 In the course of proceedings, the applicant took me to a decision of the Court of Criminal Appeal in Moy v Warringah Shire Council 2004 NSWCCA 77 where Sperling J (with whom Sully and Simpson JJ agreed) said at paragraph 80:
- Section 96, on the other hand, is a facultative, beneficial provision. As such it is to be construed and applied in a way that is favourable to those who are to benefit from the provision.
42 It is in line with this sentiment expressed in Moy (which is a but recent restatement of earlier authorities to that effect) that I turn to consider whether or not the totality of the essential nature of the activities sought to be achieved by the modification application is substantially the same as the totality of those which are presently approved.
43 As a matter of fact, I am satisfied that it is a matter of very fine balance whether or not the totality of the essential nature of the future activities is substantially the same as the totality of the present ones. In reaching my conclusion, I have been mindful that I need have proper heed to a qualitative and quantitative evaluation of the present and the proposed. This means, in the present context, the “what” and the “how”.
44 Although there is a change in the rate at which the activities might be undertaken and there are some changes in the way the activities are to be undertaken, the overall result, if approved, would be a building materials recycling and processing yard with an annual output of some 30,000 tonnes. This is the same as that approved pursuant to the present consent.
45 There are a number of individual elements that I have found have significant differences from those in the 1997 consent – however, I do not consider that, when taken together, they would so marked change the totality of that which is currently approved so as to prevent the modified operation, if approved on the merits, from being substantially the same as that approved by the 1997 consent. As a consequence, although I have concluded that two of the three elements pressed by the council as determinative are not substantially the same as the corresponding elements of the 1997 consent, I do not consider that, taken together, they so change the overall essence of the operation as to cause it to falter at the s 96(2)(a) hurdle. This is consistent with the approach taken by Bignold J in Transport Action Group.
46 I thus consider it appropriate that the modifications proposed are tested on their merits.
47 I therefore formally conclude that, for the purposes of the proceedings continuing to the merits, the s 96 modification application does involve a development that is substantially the same as the development approved pursuant to the 1997 consent.
48 I stand the matter over to the Registrar’s callover on 21 July for the setting of hearing dates on the merits issues.
Tim Moore
Commissioner of the Court
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