Billbergia Developments Pty Ltd v The Minister for Planning

[2010] NSWLEC 1025

Land and Environment Court

of New South Wales

CITATION:	Billbergia Developments Pty Ltd v The Minister for Planning [2010] NSWLEC 1025
PARTIES:	APPLICANT Billbergia Developments Pty Ltd RESPONDENT The Minister for Planning
FILE NUMBER(S):	10667 of 2009
CORAM:	Brown C
KEY ISSUES:	CONSENT ORDERS :- modification of condition requiring no Occupation Certificates to be issued prior to remediation of adjoining site
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s75W(4)
DATES OF HEARING:	15, 16, 18 December 2009, 27,28, 29 January 2010
EX TEMPORE JUDGMENT DATE:	29 January 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti SC SOLICITORS Maddocks Lawyers RESPONDENT Ms S Duggan, barrister SOLICITORS Department of Planning

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

29 January 2010

10667 of 2009 Billbergia Developments Pty Ltd v The Minister for Planning

JUDGMENT

1 COMMISSIONER: On 13 November 2007 The Minister for Planning approved Major Project No. 05_0110 under Part 3A of the Environmental Planning and Assessment Act 1979 (the EPA Act) on land known as Site 1A, Precinct B, 40 Walker Street, Rhodes (the site). The development comprised four buildings containing 256 residential dwellings, basement car parking over two levels containing a total of 319 spaces, associated landscaping works and shared facilities and strata subdivision.

2 On 27 July 2009, the applicant lodged an application to modify Major Project No. 05_0110 with the Department of Planning. Section 75W(4) provides that The Minister may modify the approval (with or without conditions) or disapprove of the modification. On 9 September 2009, the Department of Planning issued Director Generals Requirements for the modification application. The deemed refusal period of 40 days that applies under s 75W(5) ended on 16 September 2009. The appeal was filed on 17 September 2009.

3 Section 75W(5) provides a right of appeal to the Court for the proponent of a project who is dissatisfied with the determination of a request under this section or with the failure of the Minister to determine the request within 40 days after it is made.

4 The modification seeks to modify condition F1 of the approval. Condition F1 states:

F1 Issuing of Occupation Certificates
No Occupation Certificate (including interim certificates) shall be issued prior to the completion of remediation activities in Precinct B. In this regard, a Site Audit Statement is to be prepared in accordance with the Contaminated Land Management Act 1997 and completed by a site auditor accredited by the Environmental Protection Agency. The site auditor statement shall be provided to the PCA verifying that the whole of the 40 Walker Street (also known as Precinct B) is fully remediated in accordance with the development consent DA437-12-2002.

5 The modification seeks to replace condition F1 with the following:

F1 Issuing of Occupation Certificates
An Occupation Certificate may be issued for Site 1A (Lot 102 in DP 1101827) prior to the completion of remediation activities in Precinct B only given the provision of the following to the Principle Certifying Authority:
A Site Audit Statement prepared in accordance with the Contaminated Land Management Act 1997 for Stage 1 and 2 of remediation (including Site 1A) and completed by a site auditor accredited by the Environmental Protection Authority.
The Site Audit Statement referred to shall be provided to the PCA verifying that the whole of Stage 1 and 2 (Lots 98, 99, 101, 102 and 103 in DP 1101827 and Lots 202, 203 and 204 in DP 1101828) of remediation is fully remediated in accordance with the development consent DA 437-12-2002.
A detailed Environmental Management Plan for the subject site is to be adopted based on the Interim Environmental Management Action Plans and implemented whilst remediation activities are being undertaken on the remainder of the Precinct B site.
The Environmental Management Plan is to be made in accordance with the recommendations and measures provided in the Report on Human Health Risk Assessment prepared by Douglas Partners Pty Ltd dated May 2009.

6 Put simply, the original condition F1 provided that an Occupation Certificate for any of the units within the proposed development could not be issued until the remediation activities in the adjoining site, Precinct B, were completed. The modification application seeks to amend this condition by deleting the original condition F1 and replacing it with a modified condition F1 that provides for an Occupation Certificate to be issued prior to the completion of the remediation activities but subject to the specific requirements in the modified condition.

7 Precinct B is also known as the Lednez site and the Minister for Infrastructure and Planning granted development consent for the remediation in May 2004. As explained to the Court, the remediation of the Lednez site has taken longer than anticipated and consequently the 256 units on the site has been largely completed prior to the full remediation of the Lednez site. The consequence being that Occupation Certificates cannot be issued for the units.

8 The predominant issue in the proceedings is the potential health impacts on the occupiers of the units from contaminated materials generated by the remediation activities on the Lednez site if Occupation Certificates were issued prior to the full remediation.

9 The hearing commenced on site on 15 December 2009 and proceeded on 16 and 18 December 2009 and 27 and 28 January 2010. On 29 January 2010 the parties presented Consent Orders to the Court. The Consent Orders provide for the deletion of original condition F1 and its replacement with four new conditions, being conditions F1A, F1B, F1C and F1D. In summary, these conditions provide for:

Condition F1A

10 This condition provides that an Occupation Certificate shall not be issued unless all contaminated material within the contaminated material storage area on the Lednez site has been classified and subsequent air quality monitoring at the subject site demonstrates that the Hazard Index is less than 1 or air quality monitoring at the subject site demonstrates that the Hazard Index is less than 1.

Condition F1B

11 This condition provides, notwithstanding condition F1A, an Occupation Certificate may be issued for individual buildings, or parts of the individual buildings if the air quality monitoring at the building or at the relevant part of the building, demonstrates to the satisfaction of the Director General that the Hazard Index is less than 1.

Condition F1C

12 This condition provides that if the buildings on the subject site are to be occupied prior to the completion of the remediation or construction work being carried out adjacent to or in close proximity to the subject site than the proponent shall prepare and Environmental Management Plan prior to the occupation of the buildings and implement the Environmental Management Plan until the nearby remediation and construction works are completed.

Condition F1D

13 This condition provides that prior to the occupation of any building of the subject site, the proponent must register a notation on the title(s) for the subject site in accordance with the document titled Notation on Title and attached to the condition. The document advises of a range of matters occurring on the Lednez site and the wider Rhodes peninsula.

14 Having heard much scientific evidence on the need to protect future occupants of the development from contaminated materials generated by the remediation activities on the Lednez site and relying on the explanation of the operation of the proposed conditions F1A to F1D from both parties, I accept that the granting of the Consent Orders is appropriate in the circumstances.

15 The Orders of the Court, by consent, are:

1. Appeal No 10667 of 2009 is upheld.
2. Major Project No. 05_0110 approved by the Minister of Planning on 13 November 2007, is amended in accordance with Annexure A.
3. No order as to costs
4. The exhibits are returned with the exception of exhibit 19.
_____________
G T Brown
Commissioner of the Court