Coca-Cola Amatil (Aust) Pty Ltd v Gosford City Council

[2006] NSWLEC 278

Land and Environment Court

of New South Wales

CITATION:

Coca-Cola Amatil (Aust) Pty Ltd v Gosford City Council [2006] NSWLEC 278

PARTIES:

APPLICANT
Coca-Cola Amatil (Aust) Pty Ltd

RESPONDENT
Gosford City Council

FILE NUMBER(S):

10429 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Section 96 Modification to depth of groundwater extraction

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Gosford Local Environmental Plan
Water Sharing Plan of Kulnura Mangrove Mountain Groundwater Sources

DATES OF HEARING:

23-24/05/2006

 
DATE OF JUDGMENT: 

05/24/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Tomasetti, barrister

RESPONDENT
Mr M Frazer, barrister
SOLICITORS
P J Donnellan & Company

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

24 May 2006

10429 of 2005 Coca-Cola Amatil (Aust) Pty Ltd v
Gosford City Council



JUDGMENT

Background

1 These proceedings involve a s 96 Modification to a development application involving the extraction of groundwater, treatment and bottling approved by the Court on 29 September 2005, for a property at 22 Euloo Road, Peats Ridge. The development is operated by Coca-Coca Amatil (CCA). This consent contained a number of conditions, including the following designated condition 2.3a, which was imposed pursuant to the requirements of the Department of Natural Resources (DNR).

2 This condition as follows, was one of the controls imposed to regulate and monitor the amount and level of water extraction.

2.3 a) in the event that any record of the depth to water in monitoring bores constructed to licences 10BL157301, 10BL159157,and 10BL158736 has been greater than 10 metres below the casing collar pumping of all production bores shall cease immediately and the Department advised of the exceedence,…

3 The other controls imposed by the conditions of consent restrict the annual extraction volume to 66 ML with not more than 11ML in any 28day period. This extraction was subject to a trial period ending on 31 December 2007. Also, a hydro-geological report was required after two years of monitoring as described the General Terms of Agreement (GTA).

4 Following the commencement of operations for this development, the new water monitoring indicated that the 10 m trigger was approached on a number of occasions, resulting in the restriction of operations. Consequently the s96 Modification sought the deletion of this condition.

5 In order to assess the merits of the modification application before the Court, the parties agreed to Mr A. Lane being the Court-appointed expert (CAE) for hydrogeological assessment issues. He prepared a detailed report (Exhibit 9) which addressed the following:

1. Would there be any permanent adverse impact on the aquifer or groundwater resources of the area?
2. Would there be any significant impact or interference with the access to groundwater by the neighbouring land owner/occupiers?
3. Would there be any detrimental effect on the groundwater quality extracted by CCA at the site?

6 After consideration of this report, the parties arranged a joint conference of the respective experts on this issue comprising:

• Mr A Lane, Court appointed expert for hydrogeology with 30 years experience in this discipline,
• Dr P Beck, consulting hydrogeologist for the applicant,
• Mr J Williams, hydrogeologist with DNR.

7 From this conference, agreement was reached by the expert's that condition 2.3a could be modified to in effect allow the "trigger" to be increased to 15m, together with the revision of other associated conditions. This outcome, has resulted in the parties presenting Consent Orders to the Court.

8 Initially four other respondents initiated action but discontinued prior to the hearing.

9 The hearing on this matter was notified and a number of objectors attended and presented their concerns. These include:

10 Ms O Blacha, resident 16 Robertson Road, who was concerned about the effects of further extraction on the availability of groundwater, relative to her situation where she has been denied a water extraction license for her Waratah nursery. Also, the effect of increased water extraction by CCA on her bore, which is apparently unreliable, even though it is at 110 m. Her property is situated approximately 1km from the subject development site.

11 In response to these concerns, Mr Lane says that the nature of the aquifer is such that the 1 km separation distance means that modification has no locational relationship with groundwater extraction at Ms Bacha’s property. Also her other concerns about recharge of the aquifer from a broader catchment area including the Blue Mountains is misplaced, because the subject aquifer is recharged by rainfall.

12 Mr P Campbell, resident Peats Ridge Road, who raised following concerns:

• the adverse likely effects of allowing the total annual volume to be increased from 25ML to 66ML;
• inadequacies of the scientific assessments to adequately account for recent rainfall events leading to current drought conditions so as to ensure the groundwater supply is sustainable;
• unsatisfactory nature of the unrestricted s 96 Modification application.

13 Following the cross-examination of Mr Campbell and the subsequent response evidence from Mr Lane, it appears to me that the concerns expressed have been reasonably addressed along the following lines:

• The unrestricted nature of the s96 Modification application has been addressed by the revised conditions, which alter the "trigger" water level from 10m to 15m. In the event of the water reaching this level, further extraction is subject to the requirements of DNR, which is the authority responsible for allocation of water extraction licenses. The approval of the proposed alteration is not unrestricted as first thought by Mr Campbell;
• The increase in water extraction to 66ML remains as already approved by DNR, which is in accordance with the Water Sharing Plan;
• In so far as some criticisms were made about the groundwater modelling, nevertheless Mr Lane acknowledged in his assessment the limitations of the MODFLOW model, which were identified in a critique by E R M Consultants. He says it is routinely used for the designated "purposes by experienced practitioners who can recognise the limitations and use it accordingly. In summary, the critique focuses on the models weaknesses to predict local drawdown, which is conceded, rather than on its representation of impact on resource".
• Furthermore, he acknowledged the more detailed and costly model being prepared by Dr Merreck (whom he consulted) at UTS, but said that he could "draw inferences from the 2004 model in terms of the apparently limited drawdown created by this extraction which is consistent with the view that the extraction would not produce a large stress on resource".

14 With respect to the concerns raised about rainfall and drought conditions Mr Lane maintained his position and stated in his report as follows:

The state of the resource (storage and flow of groundwater in the aquifer) is dependent on variations in the actual amount of recharge experienced from year to year. Figure 4 shows the long-term rainfall records for the region, which shows a highly variable climatic pattern. It follows that recharge will vary significantly from year to year. Taking a series of years from 1982 to present, it can be seen that:
• the 1980s were much wetter than the following years.
• 11 of the last 13 years have been below average rainfall at Peats Ridge.
• there has been a declining trend in rainfall in the years 1998 to present.

15 On this matter he concludes that:

" In summary, there seems to be no compelling evidence that the groundwater resource is overstressed in the vicinity of the PRS site, and that much of the variation in average water level may be due to climatic variation."

Conclusions

16 Having considered the evidence and the submissions, I am firstly satisfied that the s 96 modification application applies to the originally approved development. Secondly, the modification application has been notified and objectors given the opportunity to present their concerns at this Courts hearing. The objections have been considered in terms of the merits assessment of the s96 modification application.

17 It appears to me that the principal merit issue concerns the overall effect on the groundwater, including impacts on the nearby bores on neighbouring properties and other properties in the catchment area, resulting from further extraction by allowing the increase in the depth of the water in the monitoring bores from 10 m to 15 m.

18 Otherwise the consent remains unchanged in terms of the maximum annual allowable extraction of 66ML, which is restricted to not more than 11ML in any 28 day period. Furthermore, this extraction is allowed for a trial period until 31 December 2007, prior to which another application can be made.

19 Importantly, I have considered the merits of the proposal within the framework of the Water Sharing Plan for Kulnura Mangrove Mountain Groundwater Sources (WSP), which was made by the Department of Infrastructure, Planning and Natural Resources on 7 February 2003 and amended 1 July 2004. This WSP identifies a coverage area, which includes the subject site in Zone 8 and provides a basis for water sharing. It lists a long-term average extraction limit of 2,444 ML/year in this zone. The water sharing flowchart is Attachment 1.

20 The statistical table in the WSP contains the following allocations in Zone 8.

Table – Recharge, Environmental Provisions and Water Requirements

at the start of the Plan-ML/year

Zone	Average Annual Recharge*	Volume of recharge for the environment	Extraction Limits*	Basic Landholder Rights	Total Licensed Share Component
Zone 8	9,007	6,447	2,444	445	694

* These figures are subject to further review after year 5 of the plan.

21 The responsibility for administration of the WSP is primarily with the Department of Natural Resources.

22 Accordingly, I note that Mr Lane (CAE) has addressed the proposal within this WSP framework and arrived at the following conclusions:

• In the event that the "10m trigger condition" is deleted, and assuming the validity of the data provided by CCA, including the ERM reports, and given my assessment of the relative magnitude of the available resource compared with the approved PRS license of 66ML/year, I consider it is unlikely there would be any adverse impact on the overall resource availability to groundwater users in the Peats Ridge area.
• The proposed amendment of the license conditions will not significantly affect the risk of contamination of groundwater at the site, particularly from the eastern boundary, subject to regular review, particularly if the drawdown is greater than has been predicted.
• Because of some uncertainties about external extractions and possible changes in climatic conditions, the proposal is within acceptable limits of risk and the collection of the monitoring information should provide extremely valuable in the reviews of the WSP.

23 These conclusions have been considered in the joint conference of the hydrogeologist’s, which included Mr Williams from DNR. He made reference to the original hydrogeological investigation by ERM Consultants, which recommended the 15 m trigger level and said DNR took a conservative approach in prescribing the initial 10m trigger. Following review of the monitoring information, he was now satisfied that modification to increase the trigger level was within acceptable limits, which can be further evaluated over the trial period.

24 Insofar as I have considered the objections made, I do not consider that any substantive evidence was presented, which would displace the joint agreement of the hyrogeologists. I am therefore satisfied that the modification is consistent with the provisions of the WSP and should be allowed for the trial period.

Court orders

25 The following consent orders are made:

1. The development consent granted by the Court on 29 September 2005 be modified by deletion of Condition 1D and replacement with:


D) Compliance with the General Terms of Approval (GTA's) formerly made under the Water Act 1912 (but now brought under the provisions of the Water Management Act 2000) issued by DIPNR now being the Department of Natural Resources (DNR) as attached to the letter dated 28 January 2005 annexed to these conditions and marked "A”, but subject to the deletion of condition 2.3a from the GTA's and replacement with:

“a
a 1. The extraction of groundwater volume of 66 mega litres is subject to the operating requirement that in the event any record of the depth to water in the monitoring bores MB5:10BL157301, MB10:10BL159157 and/or MB11:10BL158736 at or greater than 15 metres below top of casing pumping shall cease immediately and the department (DNR) advised. (NOTE: The 15 metre water level below the top of the casing is a measure of all the influences that affect water levels in the monitoring bores. This would include the licensee's extraction, climatic influences and external off-site interference affects estimated at approximately 2 metres)

a 2. In the event that the cease to pump level licence condition has occurred, the licensee shall consult with the department and provide an interpreted report concerning the groundwater behaviour of the subject monitoring bores.

a 3. Pumping at levels below the 15 m (top of casing in the subject monitoring bores) requires prior approval from the department (DNR).

a 4. In the event that the cease to pump level licence condition has been activated, the licensee shall not resume any pumping from the production bores until directed in writing by the department, or the water levels of the subject monitoring bores recover to a level less than 15 m."

2. Exhibits be retained with the exception of AD/2.

Note: The Court notes that the applicant and the first respondent shall each pay one-half of the costs of the Court-appointed expert Mr Lane as and from the date of the withdrawal from the proceedings of the second to fifth respondents.

___________________

R Hussey
Commissioner of the Court

rjs

ATTACHMENT 1 Appeal No. 10429 of 2005

This chart shows how the rules of the Plan are put into effect and relates these 8 key steps to the relevant section in the statutory water sharing plan.

STEP 1

- DEFINE THE RECHARGE

Based on historical records of rainfall, surface water/groundwater linkages and hydrogeology, assess the amount of recharge to each of the groundwater sources on a long-term average basis.

Part 3 - basis for water sharing

STEP 2 - PROVIDE WATER FOR THE ENVIRONMENT

Reserve the storage component of each of the groundwater sources and a portion of the recharge for the environment. The remaining recharge is the sustainable yield for extraction.

Part 4 - environmental water provisions

STEP 3 - PROVIDE WATER FOR BASIC LANDHOLDER RIGHTS

Estimate total requirements for domestic and stock rights and native title rights.

Part 5 - basic landholder rights

STEP 4 - DETERMINE REQUIREMENTS FOR WATER EXTRACTION

Assess the total requirements of all access licences and rules for granting additional access licences. Assess the relationship between requirements and the sustainable yield.

Part 7 - requirements for water for extraction under access licence, and Part 8 - rules for granting access licences

STEP 5 - SET LIMITS ON WATER FOR EXTRACTION AND SHARE THAT BETWEEN WATER USERS

Set the sustainable yield as the annual extraction limit for each groundwater source. Provide for other local limits if necessary to protect water supplies, water quality and dependent ecosystems.

Part 9 (Division I) - long-term average extraction limit,

and Part 10 (Division 3 - management of local impacts

STEP 6 - PROVIDE FLEXIBILITY FOR LICENCE HOLDERS

Set rules to provide flexibility in how water accounts are managed, and define the trading rules.

Part 10 (Division 2) - water allocation account management, and Part 11 - access licence dealing rules

STEP 7 - PROVIDE CLEAR LICENSED RIGHTS

Translate Steps 5 and 6 into mandatory conditions on individual access licences and approvals, and specify if and how a plan rule can be amended.

Part 12 - mandatory conditions and Part 14 - amendment of the Plan

- MONITOR PLAN

Review the implementation of the Plan each year and audit performance of the Plan mid-term (Year 5)

Part 13 monitoring and reporting