Gee Ha Pty Limited v Shoalhaven City Council

[2008] NSWLEC 1323

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Gee Ha Pty Limited v Shoalhaven City Council [2008] NSWLEC 1323

PARTIES:
APPLICANT
Gee Ha Pty Limited

RESPONDENT
Shoalhaven City Council

FILE NUMBER(S):
10694 of 2008

CATCHWORDS:
Appeal :- modification of condition of consent - contamination

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979

CORAM:
Brown C

DATES OF HEARING:
31/07/08

JUDGMENT DATE:
1 August 2008

LEGAL REPRESENTATIVES

APPLICANT
Mr M Craig QC
SOLICITORS
Gadens

RESPONDENT
Mr G Gleeson, solicitor
SOLICITORS
Morton & Harris

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

1 August 2008

10694 of 2008  Gee Ha Pty Limited v Shoalhaven City Council

JUDGMENT

1. COMMISSIONER:  This is an appeal against the refusal of an application to modify a condition of consent granted by Shoalhaven City Council on 7 August 2003 for Development Application 02.3830 that allows the construction of a mixed use commercial and residential development at 114A Quay Road, Callala Beach.  The proposed development has been constructed.

1. The condition in dispute is condition 15 which states:

   15.Prior to occupation, the site shall be remediated in accordance with the recommendations of the report prepared by Douglas Partners dated July 2003, with reference Project 38169B and the works recommended in the Site Specific Remediation Plan outlined in Condition 14 above, and a validation report shall be submitted by a suitably qualified consultant that the site has been remediated to a level suitable for residential use.

2. The applicant proposes that condition 15 should be replaced with the following condition:

   15.A final occupation certificate will be issued upon receipt of a report by a suitably qualified environmental consultant stating that from an environmental perspective, the site is suitable for residential use.  The report of Douglas Partners dated 24 April 2008 signed by Jane Smalley and G W McIntosh is a report fulfilling this condition.

3. As the hearing was expedited, oral evidence was provided by Mr Andrew Kohlrusch for the council and Mr John Nash for the applicant.  Both are engineers and Accredited Site Auditors under the Contaminated Land Management Act 1997.

1. By way of background, the site prior to its development for a mixed use commercial and residential development was used as a service station, including an underground storage tank.  Because of it’s use as a service station, the site was found to be contaminated and subject to specific conditions in the development consent.  Condition 14 required a site-specific remediation plan incorporating a groundwater management plan.  Condition 15 required, in part, a validation report.

2. The issue between the experts was whether the Douglas Partners report dated 24 April 2008 satisfied the requirements for a validation report.  Mr Nash says yes, and Mr Kohlrusch says no. 

1. Mr Nash relies on the following comments in the Douglas Partners report:

   Contamination exposure pathways to residents arise from exposure to groundwater and soil vapours.  Based on the findings of DP’s investigations, the groundwater plume is located outside of the residential area of the site,.  groundwater levels are approximately 4 m below ground level, no drinking water bores are located on site and concentrations of contaminants in soil vapours were below the adopted guideline health risk criteria. Therefore the exposure risks associated with residents and the contaminated groundwater plume are considered to be minor.
   Based on the findings of our investigation, DP considers from an environmental perspective that the site is suitable for residential use, however confirmation of any outstanding issues related to the off-site contamination of groundwater from the subject site will ultimately need to be determined by the DECC under the provisions of the Contaminated Land Management Act 1997.
   Recommendations for further work, in this regard, include ongoing monitoring of groundwater on a quarterly basis to further assess the extent and the concentrations of contaminants within the plume and the new ORC socks be installed in wells where previously installed (ie, within wells 104 to 106) and in the more recent Wells 202 and 304 to promote bioremediation.
   A final validation report will be prepared when groundwater monitoring results are within the Remediation Action Criteria as specified in DP’s Remediation Action Plan, Proposed Commercial/Residential Development, 1 Parkes Crescent, Callala Beach, Project 38169C dated 23 September 2003.

2. Mr Kohlrusch did not conduct any site investigations but relied on the documents provided by the council.  These were three reports from Douglas Partners dated 2005, 2007 and 2008.  He concludes by stating that additional works need to be undertaken in order to appropriately evaluate the significance of potential data gaps currently limiting the classification of the site as suitable for residential use.  These include:

   1.     additional groundwater monitoring,

   2.     vapour risk assessment,

   3.     a risk assessment in accordance with Appendix VII of the Site Auditor Guidelines (NSWDEC 2006), and

   4.     additional risk assessment of soils on future site occupants.

3. In considering the different positions taken by Mr Nash and Mr Kohlrusch, I am not satisfied that condition 15 should be amended in the form suggested by the applicant for a number of reasons.  Firstly, condition 15 calls for a validation report.  A validation report is a fundamental part of the contamination investigation of the site and is a matter specifically addressed in the NSW EPA Guidelines for Consultants Reporting on Contaminated Sites (s 2.4).  Its purpose is to ensure that the objectives stated in the Remediation Action Plan have been achieved. 

1. While a validation report was prepared in 2005 and was reviewed by Mr Kohlrusch, a requirement for a further validation report is contained in the Douglas Partners report relied upon by Mr Nash.  This is to ensure that groundwater monitoring results are within the Remediation Action Plan criteria of 23 September 2003.  While Mr Nash sought to differentiate between contamination on site and off site, the source of the contamination (since removed) was on the site.  There was no disagreement that the contamination plume is located on the site, although I accept that it is largely covered by impervious surfaces and buildings.

2. Secondly, a finding that the site is suitable for residential use must flow from the validation report if the EPA Guidelines and DEC Guidelines for the NSW Site Auditor Scheme are to be given any weight.  Mr Nash is an experienced engineer and it may well be that his conclusions prove to be correct.  However, I am not prepared to accept his evidence that the site is acceptable for residential use without an up-to-date validation report.  Importantly, Mr Nash conceded that there was no human health risk assessment as required by Appendix VII of the DEC Guidelines.  Again, Mr Nash’s experience may lead him to this conclusion that the site is suitable for residential use, however, I am not prepared to accept this without the assessment required by Appendix VII.

1. Thirdly, I am not prepared to give any weight to the Interim Occupation Certificate issued by the council on 23 May 2007.  The Interim Occupation Certificate clearly identifies the need for a further validation report to be provided and as such could not be seen as any basis that an Occupation Certificate would automatically flow from the Interim Occupation Certificate.

2. Fourthly, I agree with the submission of Mr Gleeson that the adoption of the applicant’s alternative condition would potentially leave for a later date necessary remediation works that would not necessarily fall on the applicant to address but potentially on future purchasers of the commercial and residential properties.  In my view, this would clearly be an unreasonable situation.

1. Fifthly, I do not accept the fact that Mr Kohlrusch was given only three of the thirteen reports on contamination provided to the council would be a reason to overturn the other reasons to refuse the modification application. There was no evidence to suggest that the data gaps found by Mr Kohlrusch were contained in any of the reports not provided to Mr Kohlrusch by the council.  Even though Mr Kohlrusch’s evidence was essentially an audit of the work carried out by the applicant’s contamination consultants, it is important that the contamination issues are thoroughly addressed.  In my view, this must be done through the appropriate guidelines in the EPA and DEC documents to ensure that future occupants of the building are properly protected.

2. For these reasons the orders of the Court are:

   1) The appeal is dismissed.

   2) The application to modify condition 15 of DA 02.3830 for the erection of a mixed commercial/residential development at 114A Quay Road, Callala Beach is refused.

   3) The exhibits are returned.

   ___________________

   G T Brown

Commissioner of the Court