Barca v Wollondilly Shire Council

[2015] NSWLEC 1124

Land and Environment Court

New South Wales

Medium Neutral Citation:	Barca v Wollondilly Shire Council & Ors [2015] NSWLEC 1124
Hearing dates:	8, 9 April 2015
Date of orders:	28 April 2015
Decision date:	28 April 2015
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	1. The appeal is upheld. 2. Development Application No 10.2012.281.1 for a metal resource recovery and waste management facility at Lots 30 and 31 DP 826690, 390-400 Picton Road Maldon is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits A, B, C, D, E, F, G, H, C5, C6, C7 and AM6.
Catchwords:	DEVELOPMENT APPLICATION – Resource recovery and waste management facility – Owner’s consent - Access to site - Traffic generation and vehicle movements – Acoustic impacts – Air Quality – Risk assessment and management
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Mine Subsidence Compensation Act 1961 Protection of the Environment Operations Act 1997 Water Management Act 2000 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 33- Hazardous and Offensive Development Wollondilly Local Environmental Plan 2011
Cases Cited:	Barca v Wollondilly Shire Council [2014] NSWLEC 118
Category:	Principal judgment
Parties:	Rosaria Maria and Mimma Barca (Applicants) Wollondilly Shire Council (First Respondent) Allied Mills Pty Ltd (Second Respondent) Sell and Parker Pty Ltd (Third Respondent)
Representation:	Counsel: Mr J Robson SC with Mr G Newport (Applicants) Mr S Simington, Solicitor (First Respondent) Mr C McEwen SC with Mr S Nash (Second Respondent) Mr P Lalich, Solicitor (Third Respondent) Solicitors: Bartier Perry (Applicants) Lindsay Taylor Lawyers (First Respondent) Gadens Lawyers (Second Respondent) Allens (Third Respondent)
File Number(s):	11246 of 2012

Judgment

1. Rosaria Barca and Mimma Barca have appealed under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the Wollondilly Shire Council (Council) of consent to development application No 10.2012.281.1 for a metal resource recovery and waste management facility at Lots 30 and 31 DP 826690, 390-400 Picton Road Maldon (the site).

2. The site is located on the southern side of Picton Road, and is triangular in shape, with the eastern boundary being Picton Road, the southern boundary being the main Southern Rail Line, and the western boundary being the facility operated by Allied Mills Pty Ltd (Allied Mills) at 330 Picton Road.

3. The site comprises two allotments with a combined area of 8.94ha. Each allotment currently contains a dwelling house with the remainder of the land being used as open grazing land. Vehicular access to the site from Picton Road is by Right of Carriageway over the Allied Mills site, Lot 1 DP 1128013.

4. The site is the eastern extremity of a band of land between Picton Road and the Southern Railway line. Land uses in this area include the Allied Mills flour mill, a go cart track, rural residential and public utility infrastructure. The land on the opposite side of the rail line is predominantly rural in character except for land to the west which is used as a cement works. The land on the opposite side of Picton Road and to the north is predominantly rural in character and is used for rural residential purposes and for a number of agricultural pursuits.

Proposed development

5. The proposed facility is intended to process up to 80,000 tonnes per annum of reclaimed materials from cars and white goods, to be sorted into steel, aluminium, non-ferrous materials, plastics, foam and carpet residues. Some materials would be stored and resold or recycled while others would be disposed of at a licensed facility. Sorted materials would be sold to various steel mills and foundries in New South Wales or exported.

6. The proposed development is to be staged. Stage 1 includes construction of roadways, stormwater system, concrete working platform for motor vehicle and white goods shredding processes and associated stockpile areas and installation of a container filling operation, weighbridges, offices, workshop and car and truck parking areas. Stage 2 includes the remaining concrete platform for the shear, the non-ferrous shed and storage bays, the offices associated with the education centre and bus drop off zone.

7. Once the facility is operational, deliveries will pass through a weighbridge at the entrance to the site, and vehicles inspected for batteries or other fuel sources. There are two storage areas for unprocessed materials: one located at the south east part of the site for large metallic objects, and the other at the south west part of the site for car bodies. The pre-shredder, and enclosed and partly enclosed metal processing plant, are located at the south west part of the site. The workshop with oil recovery bay and truck wash area is located on the western boundary of the site.

8. The proposed hours of operation are 7am-6pm Monday-Friday and 8am-1pm Saturday, with no operation on Sundays or public holidays.

9. The intersection at Picton Road of the access road serving the Allied Mills site and the subject site needs to be modified, and is now proposed as a “seagull” intersection, instead of an earlier proposal which would have restricted vehicle movements to left turn in and left turn out, and required construction of roundabout at the intersection of Menangle Road to the west. The easement over which vehicle access is presently obtained to the site will require widening to enable turning of heavy vehicles, and work to enable access by heavy vehicles including 26m B-Doubles. The widening of the access road will require work on Allied Mills land. The scope of the work proposed is shown on the following extract from the site plan (A01 Issue F):

Background to the application

10. The applicants lodged the development application (DA) on 21 May 2012. The proposed development is designated development, and the development application was accompanied by an environmental impact statement (EIS). The Council notified the DA and EIS to nearby and adjoining landowners and by newspaper advertisements, and the proposal was publicly exhibited between 5 July and 6 August 2012. An amended EIS was provided on 2 August 2012. There were two further periods of exhibition, between 27 August and 11 September 2012, and between 5 October and 22 October 2012, neither of which included publication of a notice in a newspaper. The Council forwarded the DA and original and amended EIS to a number of external agencies including the Environment Protection Authority (EPA) and the Roads and Maritime Services (RMS).

11. Submissions made to the Council included submissions by Urbis Pty Ltd on behalf of Allied Mills, and by Sell and Parker Pty Ltd (Sell & Parker), operator of a metal recycling business.

12. On 17 December 2012 the Council determined to refuse the development application on the ground that the application was not accompanied by the consent of the owners of Lot 1 DP 1128013 and works and access are required on that land, and the owners of that land had indicated that they will not provide such consent. The applicants lodged the appeal to the Court on 22 December 2012. On 5 February 2013 Allied Mills and Sell & Parker were joined to the proceedings pursuant to s 97A(4) of the Act.

13. The issue of whether the DA and EIS, and the exhibition and notification of those documents, complied with the requirements of the Act and the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) had been ventilated in submissions made to the Council on behalf of Allied Mills and by Sell & Parker, and in a statement of facts and contentions filed by Sell & Parker on 26 February 2013. On application made by Sell & Parker, the Court listed two preliminary questions for separate determination, being whether the DA had been exhibited as required by s79 of the Act, and whether the Court had jurisdiction to determine the DA as amended otherwise than by way of refusal.

14. On 7 August 2014 Pepper J determined the separate question: Barca v Wollondilly Shire Council [2014] NSWLEC 118, holding that the second and third exhibitions of the DA had not complied with s 79(1) of the Act; and that the Council’s determination of the DA was invalid. Her Honour held that as a consequence the Court did not have jurisdiction to entertain an appeal under s 97(1)(a) of the Act; however, there was jurisdiction pursuant to s 97(1)(b) of the Act by reason of the invalidity of the Council’s determination of the DA and the subsequent effluxion of time under s 82(1) of the Act in respect of the deemed refusal of the DA. Her Honour answered the questions posed for separate determination as follows:

1. the DA has not been exhibited as required by s 79 of the Act; and

2. the Court has jurisdiction to determine the DA as amended otherwise than by way of refusal.

15. On 21 August 2014 the applicants were granted leave to rely on an amended DA, which included amended architectural plans and landscape plans, an amended EIS (dated 7 June 2013) and amended annexures and attachments to the amended EIS. The amended EIS and annexures are in evidence as exhibit H (vols 1 and 2) (Final EIS); the plans for which leave was granted and for which the applicants seek consent are exhibits A, B, C, D, E, F and G.

16. The Council was directed to publicly exhibit the amended DA, and further directions were made to progress the matter for hearing. A conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) was conducted on 24 November 2014 by another Commissioner of the Court, and terminated on 16 December 2014. The matter was listed for hearing at the earliest date at which the parties’ respective expert witnesses were available.

Evidence

17. The hearing commenced on site with a view. Mr Robert McCotter, the applicants’ expert on hazard and risk assessment, outlined the proposed operations. The view included the intersection of the access road to the site along the right of carriageway with Picton Road.

18. Mr Marc Taylor, who had made a written submission to the Council, gave evidence on site as to his concerns about noise. He has lived on Menangle Road for 20 years and his biggest concern is the noise, and whether there will be truck movements after the proposed hours of operation.

19. The Council’s bundle of documents includes submissions made during the initial exhibition period from July - August 2012, and during the second notification period from September - October 2014 (exhibit C1 tabs 12, 13). Those submissions include the submissions made on behalf of Allied Mills and by Sell & Parker, and submissions made by Mr Taylor, and Mr Colin Tyson, a resident of Wilton Park Road Wilton. The Allied Mills submissions raised issues concerning insufficient information on noise, air quality and power impacts and stormwater and wastewater management, and inadequate assessment of traffic impacts, unjustified hours of operation and unsatisfactory landscaping. In his submissions Mr Tyson raised issues as to inconsistencies in the EIS and with the planning controls, visual and acoustic impacts, and inadequacy of design for stormwater and wastewater; and failure to consult neighbours and inadequacy of notification. Sell & Parker raised issues with the adequacy of the notification process and environmental and risk assessments. In his written submission Mr Taylor raised issues with impact of compression brakes at the access point, increased traffic and noise pollution and increase of industrial usage in the vicinity of residential/rural uses.

20. Expert evidence was provided on behalf of each of the parties as follows:

1. Applicants: Dr Tim Brooker (traffic), Mr Paul Mitchell (planning), Mr Scott Fishwick (air quality), Mr Najah Ishac (acoustic), and Mr Robert McCotter (risk);

2. Council: Ms Ruby Kan, EPA Air Technical Advisory Services Unit (air quality), Mr Larry Clark, Manager Noise Assessments Unit EPA (acoustic issues);

3. Allied Mills: Mr Graham Pindar (traffic), Mr Stephen White (planning), Ms Judith Cox (air quality), Mr Steven Cooper (acoustic), Mr Steven Sylvester (risk);

4. Sell & Parker: Dr Renzo Tonin (acoustic), Mr Leonard Gawecki (risk).

21. On traffic issues, Dr Brooker and Mr Pindar provided individual reports (exhibits L, AM1), and participated in a conference and prepared a joint report (exhibit P). On acoustic issues, Mr Ishac and Mr Cooper provided individual reports (exhibits M, AM3), and participated in conferencing with Dr Tonin and Mr Clark, providing a joint report (exhibit 12). On air quality issues, Mr Fishwick, Ms Kan and Ms Cox provided individual reports (exhibits N, C4, AM5), and participated in conferencing with Ms Cox, providing a joint report (exhibit O). On risk assessment issues, Mr McCotter and Mr Sylvester provided individual reports (exhibits K, AM4), and participated in conferencing with Mr Gawecki, providing a joint report (exhibit S). On planning issues, Mr Mitchell and Mr White provided individual reports (exhibits J, AM2), and participated in conferencing providing a joint report (exhibit Q), and after further conferencing, a Further Joint Planners’ Report (exhibit T).

22. The Council’s bundle of documents (exhibit C1) includes copies of responses to the development application from the NSW Police Force (tab 6), NSW Department of Primary Industries (Fisheries NSW) (tab 8), and NSW Department of Primary Industries (Agriculture NSW) (tab 10). The EPA and NSW Department of Primary Industries (Office of Water) provided General Terms of Approval (GTAs) (exhibit C1, tabs 5, 7). The Mine Subsidence Board (MSB) provided an approval (exhibit C7). The EPA GTAs include conditions relating to noise limits, monitoring, odour, dust, stormwater and sediment control, reporting conditions and operating conditions. The RMS provided its concurrence, advising its requirements (exhibit C1, tab 9).

23. Mr Gregory Frost, Operations Officer for the EPA, provided a statement of evidence on the EPA GTAs (exhibit C3).

Contentions

24. The Council and Allied Mills contended that the application should be refused because the proposed development requires upgrading and widening of the existing access easement over Allied Mills land, and the written consent of Allied Mills as owner to the making of the application is required under cl 49(1)(b) of the Regulation.

25. The Council contended in its Amended Statement of Facts and Contentions (exhibit C5) that its initial contentions relating to adequacy of the site access, noise impacts, air quality protection measures, and stormwater and wastewater management, could be addressed by conditions.

26. Allied Mills contended in its Further Amended Statement of Facts and Contentions (exhibit AM6) that the proposed development is a potentially hazardous industry and potentially offensive industry, and the risk assessment undertaken does not confirm whether the potential impacts of the development can be managed; it would create unsafe access conditions for the Allied Mills site by reason of the significant increase in vehicular traffic and heavy vehicle traffic; there is insufficient information on adverse air quality impacts; the assessment of noise impact is inadequate; the EIS is insufficient; the proposed development has been incorrectly classified and the GTAs provided by the EPA relate to the wrong type of scheduled activity; the development is contrary to the public interest; and the assessment of the application has not had regard to a development consent (DA 714/2011) which permits Allied Mills to expand its existing flour mill operation to incorporate food manufacturing facilities.

27. Sell & Parker contended in its Amended Statement of Facts and Contentions (exhibit SP1) that consent should be refused because the EIS is inadequate and as a consequence the DA fails to comply with s 78A(8)(a) of the Act; the hazard analysis is inadequate; noise impacts, including cumulative noise impacts, amenity criteria, peak air-blast levels from explosions in the metal shredder, and sleep disturbance impacts, have not been adequately addressed; and there is insufficient assessment of odour impacts.

28. The formal barrier to the granting of development consent as identified in the contentions of the Council and Allied Mills has been resolved by provision of written consent by Allied Mills to the lodgement of the development application, in a letter dated 9 April 2015 and filed in accordance with a direction made at the conclusion of the hearing.

29. The other issues identified in the respondents’ contentions were the subject of extensive conferencing of the parties’ experts, both during the s34 conciliation process, in the preparation of the respective joint reports, and during the course of the hearing. As a consequence of the conferencing the parties were able to reach agreement on conditions that would address their respective contentions.

Planning controls

30. At the time the DA was lodged the site was zoned RU2 Rural Landscape under the Wollondilly Local Environmental Plan 2011 (the LEP). On 31 January 2014 the site was rezoned to IN1 General Industrial by Wollondilly Local Environmental Plan 2011 (Amendment No 3).

31. The objectives of the zones, to which regard must be had under cl 2.3(2) of the LEP, and the permissible and prohibited uses for both zones are:

Zone RU2 Rural Landscape

1 Objectives of zone

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To maintain the rural landscape character of the land.

• To provide for a range of compatible land uses, including extensive agriculture.

• To provide areas where the density of development is limited in order to maintain a separation between urban areas.

2 Permitted without consent

Extensive agriculture; Home occupations

3 Permitted with consent

Agriculture; Airports; Animal boarding or training establishments; Bed and breakfast accommodation; Boat building and repair facilities; Boat sheds; Cellar door premises; Cemeteries; Community facilities; Crematoria; Depots; Dwelling houses; Educational establishments; Environmental facilities; Environmental protection works; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Freight transport facilities; Funeral homes; Group homes; Home-based child care; Home businesses; Home industries; Home occupations (sex services); Hospitals; Information and education facilities; Landscaping material supplies; Mortuaries; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Research stations; Roads; Roadside stalls; Rural industries; Rural supplies; Rural workers’ dwellings; Secondary dwellings; Signage; Transport depots; Veterinary hospitals; Water recreation structures; Water supply systems

4 Prohibited

Stock and sale yards; Turf farming; Any other development not specified in item 2 or 3

…

Zone IN1 General Industrial

1 Objectives of zone

• To provide a wide range of industrial and warehouse land uses.

• To encourage employment opportunities.

• To minimise any adverse effect of industry on other land uses.

• To support and protect industrial land for industrial uses.

• To ensure new development is sustainable and will not impact on land with high biodiversity value.

• To maintain the efficient operation of the regional and local road network.

2 Permitted without consent

Nil

3 Permitted with consent

Depots; Freight transport facilities; General industries; Industrial training facilities; Intensive plant agriculture; Kiosks; Light industries; Neighbourhood shops; Roads; Warehouse or distribution centres; Any other development not specified in item 2 or 4

4 Prohibited

Agriculture; Air transport facilities; Airstrips; Amusement centres; Animal boarding or training establishments; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Charter and tourism boating facilities; Child care centres; Commercial premises; Community facilities; Correctional centres; Crematoria; Eco-tourist facilities; Educational establishments; Entertainment facilities; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Forestry; Function centres; Health services facilities; Heavy industrial storage establishments; Highway service centres; Home occupations (sex services); Industries; Information and education facilities; Mortuaries; Places of public worship; Public administration buildings; Recreation facilities (major); Recreation facilities (outdoor); Registered clubs; Research stations; Residential accommodation; Restricted premises; Sex services premises; Tourist and visitor accommodation; Veterinary hospitals; Water recreation structures; Wharf or boating facilities; Wholesale supplies

32. Relevant definitions in the LEP are:

hazardous industry means a building or place used to carry out an industrial activity that would, when carried out and when all measures proposed to reduce or minimise its impact on the locality have been employed (including, for example, measures to isolate the activity from existing or likely future development on other land in the locality), pose a significant risk in the locality:

(a) to human health, life or property, or

(b) to the biophysical environment.

Note. Hazardous industries are a type of heavy industry—see the definition of that term in this Dictionary.

heavy industry means a building or place used to carry out an industrial activity that requires separation from other development because of the nature of the processes involved, or the materials used, stored or produced, and includes:

(a) hazardous industry, or

(b) offensive industry.

It may also involve the use of a hazardous storage establishment or offensive storage establishment.

Note. Heavy industries are a type of industry—see the definition of that term in this Dictionary.

industry means any of the following:

(a) general industry,

(b) heavy industry,

(c) light industry,

but does not include:

(d) rural industry, or

(e) extractive industry, or

(f) mining.

offensive industry means a building or place used to carry out an industrial activity that would, when carried out and when all measures proposed to reduce or minimise its impact on the locality have been employed (including, for example, measures to isolate the activity from existing or likely future development on other land in the locality), emit a polluting discharge (including, for example, noise) in a manner that would have a significant adverse impact in the locality or on existing or likely future development on other land in the locality.

Note. Offensive industries are a type of heavy industry—see the definition of that term in this Dictionary.

resource recovery facility means a building or place used for the recovery of resources from waste, including works or activities such as separating and sorting, processing or treating the waste, composting, temporary storage, transfer or sale of recovered resources, energy generation from gases and water treatment, but not including re-manufacture or disposal of the material by landfill or incineration.

Note. Resource recovery facilities are a type of waste or resource management facility—see the definition of that term in this Dictionary.

waste or resource management facility means any of the following:

(a) a resource recovery facility,

(b) a waste disposal facility,

(c) a waste or resource transfer station,

(d) a building or place that is a combination of any of the things referred to in paragraphs (a)–(c).

33. The State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) prevails to the extent of any inconsistency over any other environmental planning instrument (cl 8(1)). Division 23 of SEPP Infrastructure provides for waste or resource management facilities, and the relevant provisions are as follows:

Division 23 Waste or resource management facilities

120 Definitions

In this Division:

prescribed zone means any of the following land use zones or a land use zone that is equivalent to any of those zones:

(a) RU1 Primary Production,

(b) RU2 Rural Landscape,

(c) IN1 General Industrial,

(d) IN3 Heavy Industrial,

(e) SP1 Special Activities,

(f) SP2 Infrastructure.

resource recovery facility means a facility for the recovery of resources from waste, including such works or activities as separating and sorting, processing or treating the waste, composting, temporary storage, transfer or sale of recovered resources, energy generation from waste gases and water treatment, but not including re-manufacture of material or goods or disposal of the material by landfill or incineration.

waste disposal facility means a facility for the disposal of waste by landfill, incineration or other means, including associated works or activities such as recycling, resource recovery and other resource management activities, energy generation from waste gases, leachate management, odour control and the winning of extractive material to generate a void for disposal of waste or to cover waste after its disposal.

waste or resource management facility means a waste or resource transfer station, a resource recovery facility or a waste disposal facility.

waste or resource transfer station means a facility for the collection and transfer of waste material or resources, including the receipt, sorting, compacting, temporary storage and distribution of waste or resources and the loading or unloading of waste or resources onto or from road or rail transport.

121 Development permitted with consent

(1) Development for the purpose of waste or resource management facilities, other than development referred to in subclause (2), may be carried out by any person with consent on land in a prescribed zone.

(2) Development for the purposes of a waste or resource transfer station may be carried out by any person with consent on:

(a) land in a prescribed zone, or

(b) land in any of the following land use zones or equivalent land use zones:

(i) B5 Business Development,

(ii) B6 Enterprise Corridor,

(iii) IN2 Light Industrial,

(iv) IN4 Working Waterfront, or

(c) land on which development for any of the following purposes is permitted with consent under any environmental planning instrument:

(i) industry,

(ii) business premises or retail premises,

(iii) freight transport facilities.

(3) Development for the purpose of the recycling of construction and demolition material, or the disposal of virgin excavated natural material (as defined by the Protection of the Environment Operations Act 1997) or clean fill, may be carried out by any person with consent on land on which development for the purpose of industries, extractive industries or mining may be carried out with consent under any environmental planning instrument.

…

34. State Environmental Planning Policy No 33- Hazardous and Offensive Development (SEPP33) applies to development for the purposes of “hazardous industry” and “offensive industry”, and “potentially hazardous industry” and “potentially offensive industry”, those terms being defined in cll 3 and 4:

3 Definitions of “potentially hazardous industry” and “potentially offensive industry”

In this Policy:

potentially hazardous industry means a development for the purposes of any industry which, if the development were to operate without employing any measures (including, for example, isolation from existing or likely future development on other land) to reduce or minimise its impact in the locality or on the existing or likely future development on other land, would pose a significant risk in relation to the locality:

(a) to human health, life or property, or

(b) to the biophysical environment,

and includes a hazardous industry and a hazardous storage establishment.

potentially offensive industry means a development for the purposes of an industry which, if the development were to operate without employing any measures (including, for example, isolation from existing or likely future development on other land) to reduce or minimise its impact in the locality or on the existing or likely future development on other land, would emit a polluting discharge (including for example, noise) in a manner which would have a significant adverse impact in the locality or on the existing or likely future development on other land, and includes an offensive industry and an offensive storage establishment.

4 Other definitions

(1) In this Policy:

hazardous industry means a development for the purposes of an industry which, when the development is in operation and when all measures proposed to reduce or minimise its impact on the locality have been employed (including, for example, measures to isolate the development from existing or likely future development on other land in the locality), would pose a significant risk in relation to the locality:

(a) to human health, life or property, or

(b) to the biophysical environment.

…

offensive industry means a development for the purposes of an industry which, when the development is in operation and when all measures proposed to reduce or minimise its impact on the locality have been employed (including, for example, measures to isolate the development from existing or likely future development on other land in the locality), would emit a polluting discharge (including, for example, noise) in a manner which would have a significant adverse impact in the locality or on the existing or likely future development on other land in the locality.

35. The proposed development falls within the definition of “waste management facilities or works” in Sch 3 to the EPA Regulation by reason of the type of material handled, the scale of the proposed operation, and its location, and is designated development, requiring the provision of an EIS and compliance with the public participation requirements of the Act and the EPA Regulation.

36. The proposed development is “integrated development” as defined under s 91 of the Act, as it requires an environment protection licence under the Protection of the Environment Operations Act 1997 and a controlled activity approval under the Water Management Act 2000. As noted above, copies of the GTAs issued by the relevant agencies are in evidence, and those GTAs are included in the proposed conditions of consent. The parties agreed that at the time the DA was lodged it was not integrated development requiring an approval under the Mine Subsidence Compensation Act 1961; the applicants had obtained and submitted to the Council an approval from the MSB dated 17 April 2012 (exhibit C7) and conditions 21 and 22 address the requirement for a current approval from the MSB.

37. Pursuant to s 39(2) of the Court Act, the Court in determining the appeal exercises the functions and discretions of the consent authority. Section 39(6) of the Court Act provides that where a council or consent authority could not consent to an application except after consultation with, or with the concurrence or approval of, any person or body, the Court may determine the appeal whether or not the consultation has taken place or concurrence granted, and may vary or revoke any conditions imposed by that person or body. Section 39(6A) provides that the Court may determine the appeal whether or not the consent authority has obtained the general terms of approval of each relevant approval body; and may determine the appeal even though a development consent granted as a result of the appeal would be inconsistent with the general terms of approval of an approval body.

Consideration

38. The position of the parties at the conclusion of the hearing was that subject to the imposition of the conditions as agreed between the parties’ experts, the matters raised in the respondents’ contentions have been addressed. It is necessary for the Court, exercising the functions and discretions of the Council as consent authority pursuant to s 39(2) of the Court Act, to consider all the relevant matters under s 79C(1) of the Act, and in particular to be satisfied that the proposed agreed conditions are lawful and appropriately address the relevant s 79C matters, and to determine whether it is appropriate for consent to be granted.

Permissibility

39. The expert planners disagreed as to how the proposed facility should be characterised for the purposes of the application of the LEP, with Mr Mitchell of the opinion (exhibit J, pp 7-8) that it is a “resource recovery facility” as defined in the LEP while Mr White considered it to be “heavy industry” (exhibit AM2, p 4-5) on the basis that the use requires separation from other development because it will generate significant noise impacts through airblast overpressure that cannot be entirely mitigated by design of full enclosure. They agreed, however (exhibit Q, p 16), that whether or not it is “heavy industry”, which would be prohibited in the IN1 zone where only general industries and light industries are permissible, and even though the proposed use was prohibited under the RU2 zoning applicable at the date of lodgement of the DA, the proposed development is permissible under the SEPP Infrastructure as a “resource recovery facility” and thus a “waste or resource management facility”. I accept that evidence, and I am satisfied that the proposed development is permissible with consent under the SEPP Infrastructure.

Traffic

40. Allied Mills contended that the proposed development would significantly increase the vehicular traffic on the Allied Mills main access road and would result in a substantial increase in heavy vehicle traffic which would create unsafe access conditions for the Allied Mills site. Allied Mills contended that the development would require 200 heavy vehicle movements per day compared with Allied Mills’ existing 22 truck movements, which would jeopardise the operation of the intersection at Picton Road, and that there would be road safety and intersection difficulties with the need for trucks accessing the site to turn to and from the shared access road onto the development’s access road. In his statement of evidence (exhibit L) Dr Brooker noted that the applicants’ B-Double trucks would require access to and from the east on Picton Road, and no B-Double trucks would likely require access to and from the west. He disputed the contention that Allied Mills generated 22 daily truck movements, noting that his traffic survey determined it to be approximately 90, and stated that the future level of peak hourly truck movements could be accommodated by the proposed seagull intersection and by appropriate marking of road centre lines and installation of Give Way or Stop signs at the applicants’ approach to the Allied Mills access road intersection. He estimated that the development would generate approximately 60 daily vehicle movements by large trucks and 80 daily vehicle movements by cars or other light vehicles. Works are required between Picton Road and the existing right of carriageway to enable movement of B-Double trucks, and to widen and upgrade the roadway.

41. In his statement of evidence (exhibit AM1) Mr Pindar considered that the following traffic issues required resolution:

1. the need for swept paths for 26m B-Doubles entering and exiting the site based on an integrated plan that includes the site access and proposed seagull intersection design, based on an appropriate design speed as stipulated in Austroads, to confirm whether the site access geometry requires amendment including any further adjustments to the existing right of way;

2. the need for the approach from the applicants’ site to have “stop” sign control so that Allied Mills traffic has priority;

3. the need for linemarking;

4. the possible need to provide two exit lanes for cars; and

5. the need for preparation of a detailed Construction Traffic Management Plan demonstrating how the various stages of construction of the development will be managed without impacting on the operation of the Allied Mills development and timing for delivery of the proposed seagull intersection.

42. In their joint report (exhibit P) Dr Brooker and Mr Pindar agreed that those matters required further examination, and discussed the timing of detailed design matters and preparation of a Construction Traffic Management Plan, and stated their agreement that subject to drafting of appropriately worded conditions all the traffic matters relating to the proposed development can be satisfactorily resolved. Mr Pindar and Dr Brooker gave informal evidence on site to the effect that while the precise detail of the widened intersection required clarification that was a matter that could be resolved in accordance with the relevant standards. They noted that the change from the original proposal for all vehicles to exist the site to the left and with a roundabout at the intersection of Menangle Road to enable vehicles to turn to proceed east along Picton Road, to the seagull intersection as now proposed that would allow larger vehicles to turn right on exiting the site, would reduce traffic movement to the west of the site, including close to Mr Taylor’s residence.

43. In correspondence with the Council in response to its notification of the proposed development (exhibit C1 tab 9) the RMS stated that it did not object to the application and advised its requirements, including for upgrading of the intersection to a seagull intersection, and the requirement for the applicants to obtain final approval of road works and traffic control facilities. The RMS by letter of 25 November 2014, advised of a change in the speed limit on that section of Picton Road to 80km/h.

44. The proposed conditions of consent provide (condition (77)) for the matters required by the RMS, including upgrading of the intersection prior to the issue of an occupation certificate. Conditions (7), (8) and (9) require that prior to the issue of a construction certificate, the applicants must submit to the RMS and Council for approval a new swept path analysis incorporating the intersection design for B-Double vehicles entering from and exiting to the east and 19m articulated trucks entering from or exiting to the west; a detailed design of the works required to the right of carriageway including a Stop sign, 2 exit lanes at the intersection with Picton Road, and widening of the right of carriageway to accommodate the swept paths; and written evidence of an easement sufficient to allow for any required widening of the right of carriageway.

45. Having regard to the expert evidence, the advice from the RMS, and the agreed conditions, I am satisfied that the proposed conditions appropriately address the issues that require resolution for safe access for both the Allied Mills facility and the subject site, and to manage the increase in heavy vehicle traffic generated by the proposed development, and are in accordance with the RMS requirements as advised to the Council.

Acoustic impacts

46. Allied Mills contended that due to the proposed hours of operation and the methods involved in the material handling and metal recycling process the Noise Impact Statement (NIS), and the supplementary NIS, prepared for the facility is inadequate.

47. Allied Mills identified issues with acoustic impacts to non-residential neighbouring land uses, including the office component of the Allied Mills site; the need to address cumulative noise impacts, and to provide a quantitative assessment of off-site road traffic noise; whether the recommended noise mitigation measures including the proposed 10m high wall were realistic; whether the applicants could comply with the airblast overpressure levels of 120dB (Lin Peak) specified in the EPA GTAs; and adequacy of monitoring requirements proposed in the EPA GTAs.

48. Sell & Parker contended that the cumulative noise impacts of the proposed development and other industrial noise sources in the vicinity, being the existing industrial uses of Blue Circle Southern Cement cement manufacturing plant on Maldon Road Picton to the west and the Allied Mills flour mill, and potential uses as the subject site is one of nine lots in the Maldon area rezoned IN1 Industrial under the LEP on 31 January 2014, had not been adequately assessed; that the development would give rise to unacceptable cumulative noise impacts; that peak air-blast levels from explosions of fuel tanks and LPG tanks in the metal shredder had not been adequately or accurately predicted, and would exceed permissible night time noise levels.

49. At the time of preparation of Allied Mills’ Further Amended Statement of Facts and Contentions (exhibit AM6) and Sell & Parker’s Amended Statement of Facts and Contentions (SP1) the facility was proposed to operate 24 hours, 7 days per week. The proposed hours of operation are now 7am-6pm Monday-Friday and 8am-1pm Saturday, with no operation on Sundays or public holidays, in accordance with the EPA GTAs; accordingly, the respondents’ contentions relating to night time noise levels and sleep disturbance did not need to be addressed.

46. In their joint report (exhibit 12) Mr Ishac, Dr Tonin, Mr Cooper and Mr Clark addressed the contentions raised by Allied Mills and Sell & Parker:

1. acoustic impacts to non-residential neighbouring land uses: there was disagreement as to whether there should be a noise limit applied at the boundary of the subject site to protect the amenity of the Allied Mills site. Mr Cooper recommended an external noise level of 70 LAeq(period) to agree with Table 2.1 of the Industrial Noise Policy (INP), and 65 LAeq(period) at a location external to the office areas to address the commercial areas of Allied Mills not associated with the factory. Dr Tonin considered that the commercial use at Allied Mills is ancillary to its industrial approval and an external noise level of 70 LAeq(period) should apply. Mr Clark noted that the limits proposed for residential receivers would result in levels not greater than 70dBA at the boundary so setting limits at the residential receivers would make redundant a limit and monitoring equipment at the industrial boundary. Mr Ishac agreed that no limit should be imposed at the boundary.

2. whether the noise perceived at the residential receptors has tonal or impulsive characteristics so as to require a penalty of 5dB under the INP: Mr Ishac, Dr Tonin and Mr Clark did not consider that the noise would be tonal or impulsive; Mr Cooper considered that under predicted levels the use of an impulsive correction at the residential receivers was unlikely to be required, and corrections would be required if on compliance testing impulsive noise was found to occur. Mr Ishac recalculated the noise levels using a zero modification factor and provided noise limits for 8 residential locations which varied from those provided in the EPA GTAs. The other experts agreed that the contention has been addressed for residential receiver locations; Mr Cooper expressed a remaining reservation relating to the Allied Mills site.

3. cumulative impacts from approved and future potentially noise producing developments: while the experts disagreed as to whether the subject development should make allowance for cumulative impacts from the multiple lots ear-marked for industrial use, or only for existing industry and known current development applications, they agreed that the assessment of cumulative noise impact including information in the Council’s development control plan was appropriate, and that this contention was addressed.

4. off-site road traffic noise: the experts agreed with Mr Ishac’s assessment that road traffic noise of additional traffic on Picton Road complies with the EPA’s Road Noise Policy 2011.

5. noise mitigation measures: the experts discussed clarification of the proposed noise barriers, and relevance for night operation, and concluded that the contention had been addressed.

6. airblast overpressure: the experts agreed that the prediction of peak sound pressure level of 139dB at Allied Mills in the Final EIS could not be relied upon as the acoustic model used was not appropriate. The experts discussed whether they considered that the proposed facility was likely to generate fewer explosions than those recorded for the Sell & Parker facility at Blacktown and at Sims Metal St Marys; Mr Clark explained the reasoning behind the 120dB (Lin Peak) noise limit in the EPA GTAs, and recommended an amendment based on the over-pressure noise levels reported by Sell & Parker at their Blacktown facility. Mr Ishac and Dr Tonin agreed that if the amended condition is imposed the airblast overpressure level would be acceptable within the Allied Mills land; Mr Cooper noted that the amended condition did not impose a limit but a monitoring threshold, however the requirement to identify the actual level and provide a wave form trace is a significant improvement to previous conditions of consent.

7. monitoring requirements: Mr Ishac, Dr Tonin and Mr Clark agreed that annual monitoring is acceptable with the first assessment within 3 months of commencement of operations; Mr Cooper agreed, together with monitoring of operational noise at the Allied Mills boundary and monitoring of blast overpressure.

51. The acoustic experts continued their discussions during the course of the hearing, and reached agreement on conditions including conditions varying the EPA GTAs. The variations include Mr Clark’s recommended amendments to the noise limits for residential receivers; an amendment to condition L8.1 for reporting to the EPA any explosion that results in an air blast overpressure level of 120dB (Linear Peak) on the north eastern boundary; addition of a condition imposing noise limits at the Allied Mills boundary for an amenity noise contribution of LAeq (day) not exceeding 70dB including any adjustments for audible characteristics as required by the INP, and an air blast overpressure level not exceeding 140dBC Peak level; and an amendment to condition M4.1 for continuous monitoring for airblast overpressure levels. The comments in Attachment B-Noise Impacts to the EPA GTAs include the comment that the predicted operational noise limits do not exceed the applicable criteria, however the mitigation includes 10m high walls and limits on stockpile heights. The proposed walls were discussed between the acoustic experts, as noted above, and the proposed conditions include condition (10) limiting stockpiles to 4m, and condition (11) requiring construction of an additional 5m high acoustic barrier on the western side of the preshredder area.

52. Having regard to the agreed expert evidence and the response in the proposed conditions to the matters raised by the acoustic experts, I am satisfied that the agreed conditions address the matters raised in the contentions.

Air Quality

53. The Council contended that the measures proposed in the Final EIS to protect air quality were insufficient, and could be addressed by imposition of conditions requiring that internal and access roads be sealed, that a dust management plan is produced dealing with loading and unloading operations, and conditions consistent with the EPA GTAs. Allied Mills contended that there was insufficient information to support the conclusion that there would be no adverse air quality impacts as a result of the development, specifying wheel generated dust, details for the construction phase, details as to the reduction factors included in the operational air emission rates for particular equipment, assessment of cumulative air quality impacts, clarification of background air quality data, further information for emission factors, calculation of deposited dust levels and the scrubber point source. Sell & Parker contended that there is insufficient information to enable an assessment of odour impacts.

54. In their joint report (exhibit O) Ms Cox, Mr Fishwick and Ms Kan noted that in response to the respondents’ contentions regarding the assessment of potential air quality impacts in the Final EIS Mr Fishwick had undertaken a separate dispersion modelling exercise to predict particulate matter, toxic and odourous pollutant impacts in the area surrounding the proposed facility. His methodology and results of the additional modelling are provided in his statement of evidence (exhibit N). That statement of evidence responded to the specific issues raised in the Allied Mills and Sell & Parker contentions, and for the additional modelling work, details the assessment methodology, meteorological modelling, selection of receptor locations, quantification of background air quality for the site, and provides emission calculations for the construction and operational phases, and dispersion modelling results for particulate matter, toxic and odourous pollutants. Ms Cox and Ms Kan identified some minor discrepancies on their review of that report, and Mr Fishwick provided updated dispersion model results. Those updated results were discussed by the three experts, and they reached agreement that despite minor technical differences in modelling methodology the overall results of the modelling would not significantly change. The experts agreed that the overall project would result in low risk of air quality impact.

55. The experts recommended inclusion of specific conditions to ensure that emissions from operations are suitably controlled. Those recommended conditions are conditions (45), (46), (108) and in condition L9.1 of the EPA GTAs, and the variation of the EPA GTA O2.3 in condition (16)(a) to require that by-product stockpiles are stored in a fully enclosed structure; and external stockpiles are maintained in a condition that prevents or minimises the emission of dust, with as a minimum water application for externally stockpiled material on all material existing the shredder prior to stockpiling, as soon as practicable if stockpiled material is stagnant for more than 12 hours, during hot/dry and/or windy conditions, and when visible dust emissions are emitted from the product stockpiles. I agree with Allied Mills’ submission that there is, as a result of the conferencing of the experts, ample evidence that the potential adverse air quality impacts have been addressed in the form of the agreed conditions.

Risk management

56. Sell & Parker contended that there was insufficient information in the Final EIS and the Preliminary Hazard Analysis and Risk Management Plan to properly assess the risks to public safety associated with the proposed development, in particular risks relating to handling and storage of dangerous goods on the site including petroleum and LPG from vehicle fuel tanks, oil and batteries; transportation of dangerous goods from the site; and hazardous events including explosion of an LPG or fuel tank in the metal shredder and leakage of diesel from the 10,000 litre diesel storage tank. Allied Mills contended that the proposed development is contrary to the public interest because it will create safety risks including in terms of potential for explosions.

57. Mr McCotter responded to those contentions in his statement of evidence (exhibit K, paragraphs 6-39), concluding that the storage risks are nominal, transportation risks will be no different to operations in a normal industrial site in a metropolitan area, that cumulative events are not feasible and that overpressure and heat flux at the boundary of the adjoining industrial land are well within acceptable criteria. Mr Sylvester responded in his statement of evidence (exhibit AM4). In their joint report (exhibit S) the three risk experts agreed that inclusion of some additional conditions would satisfy all outstanding concerns. Those recommended conditions relate to updating and preparation of studies and plans, and compliance reports, for the preconstruction, pre-commissioning, pre-startup, post-startup, and ongoing phases. Those recommendations have been included in conditions (44) (Precommissioning studies) and (68) (emergency plan, pre-startup compliance report, and compliance assessment for storage of dangerous goods).

58. Sell & Parker’s position at the conclusion of the hearing was that the issues identified in its contentions as to the deficiencies in the hazard analysis and risk management had been resolved; Allied Mills relied on the agreement of the expert planners (exhibit Q) that the proposed development is not a “hazardous” or “offensive” industry. Based on the expert evidence, and with the incorporation of the conditions recommended by the experts, I am satisfied that there is sufficient information and documentation to support the conclusion that appropriate measures have been adopted to minimise adverse impacts, and accept the planners’ evidence that the proposed development is not “hazardous” or “offensive” industry.

Stormwater and wastewater management

59. The Council contended that its concerns as to stormwater and wastewater management could be addressed in conditions including conditions consistent with the EPA GTAs and the Department of Primary Industries (Office of Water) GTAs. Those conditions are included in the proposed conditions of consent, and additional conditions (69)-(73).

Suitability of the site

60. Allied Mills contended that the development is both a potentially hazardous industry and potentially offensive industry under SEPP 33 and that insufficient information had been provided to confirm whether the potential impacts of the development can be managed with a reasonable level of confidence and certainty, and that offensive or hazardous industry is inappropriate in this location. As noted above, Mr Mitchell and Mr White agreed that the proposed development is not offensive or hazardous industry. However, Mr White maintained his position that the proposed development is heavy industry, and that while this would not be an issue for permissibility of the proposed development, in his opinion the need for separation from other development would be a relevant matter for consideration in respect of the suitability of the site. In their Further Joint Planners’ Report (exhibit T) prepared during the course of the hearing, and based on consideration of the reports of the other experts and the proposed conditions, Mr White maintained his position that the need for separation from other development is a relevant matter for consideration in respect of the suitability of the site. However, after consideration of the conditions as discussed between the other expert witnesses, he and Mr Mitchell agreed (exhibit T) that all material issues in relation to potential external impacts had been clarified or resolved and therefore their difference of opinion was not consequential for the merits of the proposal. They agreed that most of their original points of difference about the suitability of the site for the proposed development had been resolved or clarified, and specifically in relation to noise, hazard and traffic issues, all their original concerns had been resolved by the proposed conditions. They had agreed in the original report that the only potentially unacceptable issue relating to impacts on the Allied Mills site was noise, and now agreed that those impacts would be acceptable assuming the agreed conditions are effectively implemented. I accept that evidence.

61. Mr White and Mr Mitchell maintained their original difference of opinion in relation to earthworks and visual impacts, in particular the visual exposure of the proposed facility because of the undulating topography of the site and need to undertake earthworks, however they agreed that this issue alone would not be sufficient reason for the proposal to be refused. An aspect of visual impact relates to the height of the stockpiles. The final agreed condition (10) limits the height of stockpiles to 4m which would, in Mr White’s opinion (exhibit T) minimise visual impacts and also mitigate noise and dust impacts. The landscape plans (exhibit G) provide for dense tree planting around the perimeter with mature tree height of the planting along the Allied Mills boundary to reach a maximum of 8m. On the evidence before me, that would fully screen the stockpiles, and reduce the visual impact of the development. I accept that agreed expert evidence. I am satisfied that subject to compliance with the agreed conditions of consent the potential impacts of the proposed development, as identified in the respondents’ contentions, have been addressed, and can be managed. On that basis I accept the expert evidence that the site is suitable for the proposed development.

Conclusion

62. The position of the three respondents is that through the process of preparation of individual statements of evidence and joint conferencing by the experts, there is now sufficient information on which to be satisfied as to the specific matters identified in their respective contentions, and that those matters are now adequately addressed in the proposed conditions of consent. Sell & Parker accepts that its contention concerning the adequacy of the EIS was addressed by the decision of Pepper J.

63. The legal barrier to the grant of development consent has been addressed by the provision of the consent of Allied Mills as owner to the lodgement of the DA, and by the imposition of condition (9) requiring, before issue of a construction certificate, written evidence of an easement over Lot 1 DP 1128013 sufficient to allow for any widening to the right of carriageway.

64. I am satisfied that the process of discussion between the parties’ experts and the provision of additional information and modelling have addressed the contentions relating to insufficient information. On the evidence before me there is no reason to dispute the conclusion of the expert planners (exhibit T) that given the significant amount of expert effort that has gone in to the formulation of the agreed conditions they represent leading practice and are likely to be effective. Having regard to the expert evidence before me as discussed above, I am satisfied that the proposed conditions of consent address the specific concerns raised as to potential impacts of the proposed development in terms of air quality, noise, and traffic generation. Where there remained differences of opinion as expressed in the experts’ joint reports, the final agreed conditions have adopted the more conservative position stated in those reports. I accept the agreed evidence of the risk experts that safety risks can be managed and addressed in the form of the plans and compliance reports recommended by them and required by the conditions.

65. Condition (19) incorporates as conditions of consent the GTAs of the NSW Office of Water. Conditions (21) and (22) require renewal of the MSB approval dated 7 April 2012, and that the development have a current approval at all times during construction works and at the time of the issue of any construction certificate. Condition (77) requires compliance with the requirements as notified by the RMS. Condition (16) incorporates the EPA GTAs, with some amendments. The proposed variations to the EPA GTAs as specified in condition (16) emerged from the discussions of the acoustic and air quality experts including Mr Clark, and are supported by the experts, and impose more stringent requirements on the operation and monitoring of the proposed facility than originally required by the EPA. I am satisfied that it is appropriate to exercise the power conferred by s 39(6A) of the Court Act to impose conditions that are inconsistent with those required by the EPA.

66. The specific matters raised by Mr Taylor and Mr Tyson have been addressed both through the process undertaken during the course of the appeal including additional notification of the amended DA, and the conferencing of the experts retained by, or assisting, all the parties, and in the form of the conditions agreed between the parties.

67. I am satisfied that it is appropriate to approve the proposed development subject to the conditions as agreed between the parties. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No 10.2012.281.1 for a metal resource recovery and waste management facility at Lots 30 and 31 DP 826690, 390-400 Picton Road Maldon is approved subject to the conditions in Annexure A.

3. The exhibits are returned except for exhibits A, B, C, D, E, F, G, H, C5, C6, C7 and AM6.

Linda Pearson

Commissioner of the Court

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Decision last updated: 29 April 2015