Greenwood v Warringah Council
[2013] NSWLEC 1119
•18 June 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Greenwood v Warringah Council [2013] NSWLEC 1119 Hearing dates: 20 and 21 February 2013, 19 and 20 March and 18 April 2013 and 3 May 20913 Decision date: 18 June 2013 Jurisdiction: Class 1 Before: Dixon C
Ritchie ACDecision: (1)The appeal is dismissed.
(2)The development application (DA2010/1822) for the shredding and stockpiling of green and wood materials on Crown land at 9994 Mona Vale Road, Belrose is refused consent.
(3)The exhibits are returned.
Catchwords: APPEAL - development application for the expansion of a landfill and waste recovery facility on Crown land to incorporate the shredding and stockpiling of green and wood materials; acoustic impacts, inadequate information Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Warringah Local Environmental Plan 2011
Warringah Local Environmental Plan 2000Cases Cited: Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302
Blackmore Design Group Pty Limited v North Sydney Council [2001] NSWLEC 279 at paras [29-30]
Greenwood v Warringah Council [2012] NSWLEC 152
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289
Vigor Master Pty Limited v Warringah Council [2008] NSWLEC 1128
Wang and Anor v Canterbury City Council [2013] NSWLEC 1098Category: Principal judgment Parties: Scott Robert Greenwood (Applicant)
Warringah Council (Respondent)Representation: Counsel
Mr A Pickles
Mr M Flaherty (Applicant)Mr I Hemmings
Storey and Gough Lawyers (Respondent)
Mr A Gough (Respondent)
Solicitors
Michael Flaherty Solicitors (Applicant)
File Number(s): 10405 of 2011
Judgment
The applicant, Scott Robert Greenwood, conducts a landfill and waste recovery facility on Crown land at 9994 Mona Vale Road, Belrose. The business is known locally as "Greenwood's Quarry "and involves the receipt of waste materials for the screening of recyclable material such as timber, steel and brickwork. The materials recovered are stockpiled temporarily before removal off site for resale. Any inert waste remaining is used as landfill or for restoration in the shale quarries on the land.
The business operates on the site under a Permissive Occupancy and a series of Mining/Mineral Leases (ML 46, ML47 and ML52) from the Crown. There is also an Environmental Protection Licence (EPL 4669) in place authorising the disposal and storage of particular waste on ML46 and ML47. These proceedings concern a development application (DA2010/1822) for the use of a part of ML46 for the shredding and stockpiling of green and wood waste.
The original development application was lodged with Warringah Council on 3 November 2010 and refused by the Council on 25 March 2011. This is an appeal from that decision, under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act), but it relates to an amended application. Before I describe the amendments it is appropriate to explain how a jurisdictional issue, concerning the absence of landowner's consent, outstanding at the conclusion of the hearing, has now been resolved.
Owner's Consent - jurisdictional issue
On 18 April 2013 and while the matter was part heard, the Court was advised by an eCourt communication from the applicant's solicitor that the owner of the land, the NSW Department of Trade and Investment Regional Infrastructure and Services, (NSW Trade & Investment), had on 8 April 2013 consented to the lodgement of the applicant's development application. That consent, however, was subject to a notification requirement that expired on 3 May 2013. The proceedings were therefore adjourned to accommodate that date. As this period has now expired the parties' have asked the Court to deliver its judgement without any further hearing.
The amended proposal
The applicant claims that the amended application addresses the contentions identified by the Council in its statement of facts and contentions dated 4 December 2012 (exhibit 2).
The most significant change is the restriction of the proposed activity to a defined area within ML46 (although access to the development remains through ML47). It is detailed in the amended concept plan prepared by Footprint Green Pty Ltd dated 14 March 2013 (exhibit M) and the amended operational plan (exhibit P). The amendments also incorporate the recommendations of the applicant's acoustic consultant, Mr Atkins, contained in his report dated March 2013 (exhibit N). They include the erection of an acoustic bund around the perimeter of the site (exhibit C). Although, the length, material and external treatment of the acoustic bund is undecided, Mr Atkins recommends a permanent 250m long, 4.5m high and 2.4m wide landscaped acoustic bund/ wall around part of the perimeter of the site (exhibit C). The applicant however, proposes a deferred commencement condition to address the detail but suggests a shale wall, which is not permanent. The current application also incorporates the applicant's version of the recommendations of the NSW Rural Fire Service (in respect of stock piles heights and distances) as detailed in its correspondence to the applicant dated 15 March 2013.
In addition to the above, the amended application proposes a number of deferred commencement conditions. The Council's marked up version of the draft conditions (exhibit R) details the parties' preferred deferred commencement conditions. They include: A Revegetation and Rehabilitation Management Plan - detailing landscaping, suitable endemic species and weed removal plans for the embankments and mounds around the perimeter of the work site; the revegetation of the shale stockpile area - generally in accord with the amended concept plan; a complete rehabilitation and revegetation plan for ML46 to be completed within 24 months from cessation of activities and an ongoing monitoring plan (Condition 5 of exhibit R). A Soil and Water Management Plan, prepared by a qualified environmental consultant, including: an erosion and sediment control plan demonstrating appropriate measures to prevent pollution of adjoining bushland; details of an active leachate extraction system to minimise environmental impact; designs for pollution control systems including waste water collection (condition 3 of exhibit R); Certification of Stormwater Management by a suitably qualified engineer - certifying the structural integrity and functionality of the existing stormwater management system - and, in the event that the system has failed; or, is not appropriate for the approved use, a plan for appropriate remedial works and a timeframe for implementation (Condition 4 of exhibit R).
Council's contentions
Despite the provision of additional information, and the amendment of the proposal, the Council contends the application does not contain sufficient detail to allow a proper evaluation of the development's impacts. It contends that the applicant's reliance on deferred commencement conditions to address essential matters underlines the deficiencies of the application. In those circumstances it submits the Court cannot be satisfied (as required by cl 12(3) (b) of the Warringah Local Environmental Plan 2000 (WLEP 2000) that the proposal is consistent with the Desired Future Character of the relevant Locality Statement. It believes the Court will have no choice but to find on the evidence that that the development is likely to have an adverse environmental impact upon the natural and /or built environment when assessed under s 79C(1)(b); the site is unsuitable for the development under s 79C(1)(c); and, the development is not in the public interest under s 79C(1)(e).
The planning framework
The application was lodged before the commencement of the current plan the Warringah Local Environmental Plan (WLEP 2011) and, it is agreed by dint of the savings provision in cl1.8A, that the application must be assessed against the repealed instrument; the Warringah Local Environmental Plan 2000 (WLEP 2000).
The parties, however, do not agree about the weight, if any, to be attributed to the current WLEP 2011 in the Court's evaluation of this application. Clause 1.8A states:
1.8A Savings provision relation to development applications
If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
Section 79C of the Act sets out the matters for consideration in determining a development application and states:
79C Evaluation
(1) Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iii) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and
(v) any coastal zone management plan (within the meaning of the Coastal Protection Act1979),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.
The Council submits the Court should give significant weight to WLEP 2011 because it is a proposed instrument within s 79C(1)(a)(ii) of the Act and its gazettal is both certain and imminent. In making this submission the Council relies on the Court's interpretation of the saving clause in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289; Blackmore Design Group Pty Limited v North Sydney Council [2001] NSWLEC 279 per Lloyd J at paras [29-30].
The problem with the Council's submissions is that they rely upon case law that deals with a different saving provision and an earlier version of s 79C(1)(a)(ii) of the Act. The clause considered by the Court in Terrace Tower Holdings directs the consent authority to treat the new plan as a draft instrument in its consideration under s 79C(1)(a)(ii). However, the clause under review in this case does not direct the Council to treat the new plan as a draft instrument; or, as a proposed instrument (as is the current wording in s 79C(1)(a)(ii) of the Act).
The Council submits the removal of the word draft from the savings provision in cl1.8A was intended to reflect the change in the wording of s 79C(1)(a)(ii). Adopting a purposeful and common sense reading of the savings provision the Council submits that the intent of the provision is to include WLEP 2011 as a proposed instrument as it has been placed on public exhibition as referred to in s 79C(1)(a)(ii). This interpretation is pressed by the Council despite the omission of the word proposed in the savings provision. However, if it was the intent of the Parliament to require a consideration of a proposed instrument under s 79C(1)(a)(ii) then why was the word proposed left out of cl1.8A of WLEP but included in s 79C(1)(a)(ii) of the Act?
I am not persuaded the Council's explanation as to how WLEP 2011 should be considered under s 79C(1)(a)(ii) is correct. The provision does not refer to a proposed instrument which has been the subject of public consultation under this Act and that has been notified to the consent authority in cl1.8A. In my opinion such wording is necessary to trigger a consideration of the savings provision under s 79C(1)(a)(ii) of the Act.
In my assessment the Council's submissions do not overcome the clear and unambiguous direction within cl 1.8A of WLEP 2011 to treat the new plan as having not commenced.
The applicant asks the Court to follow the decision in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302, a decision endorsed by the Senior Commisioner of the Court in Wang and Anor v Canterbury City Council [2013] NSWLEC 1098 at paras [9 -14]. In Alamdo the Court interpreted a saving clause in the same terms as cl 1.8A of WLEP 2011 and held that the new local enviromental plan should be regarded as having not commenced and not existing, in effect. It decided it should be given no weight in the evalutuon process under s 79C of the Act. It decided that the the new plan is not a proposed instrument under s 79C(1)(a)(ii) or relevant as part of the public interest under s 79C(1)(e) because the clause directs the Court to treat it as not having commenced. If it has not commenced it can have no legal effect.
Accordingly, I will deal with this application as if WLEP 2011 has not commenced and does not exist, in effect.
The relevant statutory control
In light of my decision about WLEP 2011 the following statutory controls are relevant to the assessment of this application:
Statutory Controls
Environmental Planning and Assessment Act 1979
Protection of the Environment Operations Act 1997
Contaminated Lands Management Act 1997
Environmental Planning and Assessment Regulation 2000
State Environmental Planning Policy No 55 - Remediation of Land
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007
State Environmental Planning Policy (Infrastructure) 2007
Warringah Local Environment Plan 2000
The site and its context
As stated the Council's main objection to this development is its inconsistency with the Desired Future Character of the C10 Mona Vale Road West Locality Statement under WLEP 2000. To better understand the Council's case it is necessary to appreciate the features of the site and its context in the locality. This requires repetition of some of the detail in the Council's statement of facts and contentions.
The site, which has an area of 7.5 ha, adjoins the Garigal National Park along its southern, eastern and western boundary. Bear Creek extends across the southern side of the site with a tributary extending towards the north along the eastern boundary. Another tributary of Middle Harbour Creek extends along the full length of the western boundary of the site. Various walking trails are located around the site.
The site falls in a north to south direction and the current use is located on an excavated part of land situated approximately 20 m below the street level of Mona Vale Road. The site then falls steeply into the Garigal National Park by approximately 22 m to the southern boundary. The Garigal National Park then continues to slope steeply downwards from the site by approximately 88 m towards the south to form valley systems associated with Bear Creek and Middle Harbour Creek.
Other development in the vicinity of the site includes the former St Ives Tree lopping Tip and the Honda Australia Roadcraft Training Centre to the west; a private residence to the north (across Mona Vale Road) and the Garigal National Park to the south, east and west. A small commercial estate is located further to the northeast on the corner of Mona Vale Road and Forest Way. The Belrose Waste Management and Recycling Centre is located further to the east on Forest Way.
The site is delineated by the boundaries of a licence issued by the Environment Protection Authority and consists roughly of three former mining leases being ML46, ML47 (also known as ML909) and ML52. The western boundary of the site forms a local government boundary with KuRingGai Council.
The existing facility for the importation, recycling and stockpiling of material is accessed via a partially sealed driveway from Mona Vale Road. The site area accommodating the facility has largely been cleared and includes:
- to the east - a masonry stockpile area, a sandstone stockpile area and mobile crusher
- to the west - a mixed timber/waste stockpile, a shale stockpile and a mobile timber shredder.
An excavated area, which was formerly a shale quarry/mine is located within the southeastern corner of the site and is currently partly filled with water. A weighbridge, office, machinery compound and toolshed are located within the centre of the site.
Development history of the site
On 15 May 1956, the County of Cumberland Council issued development consent for the extraction of clay and clay shale in the area occupied by mining lease 47. On 17 December 1987, the Council issued Development Consent No 87/455 for the importation, stockpiling, recycling and resale of material in the area (former) mining lease 47. Condition 8 of that consent provided:
Only material imported to the site for restoration purposes may be screened for the recycling of sandstone.
On 17 October 1994, the council consented to the modification of Development Consent No 87/455. Condition 8 of the consent was modified to read:
Only material imported to the site for restoration purposes may be screened for the recycling of sandstone, soil, masonry and vegetation.
On 29 November 1994, the respondent issued Development Consent No 94/524 to the "restoration, landfill and vegetation", in the area of former permissive occupancy 7815M ML46, 47 and 52.
On 9 July 2012 Sheahan J in Greenwood v Warringah Council [2012] NSWLEC 152 made the following orders:
(1) A declaration that condition 14 of Development Consent 87/455, imposed on 17 October 1994, and purported modification of the original consent is null and void and of no effect.
(2) A declaration that Development Consent 87/455, as otherwise modified on 17 October 1994, permits the screening of imported materials, but is limited to the recycling of sandstone, soil, masonry and vegetation.
(3) A declaration that Development Consent 87/455, as so modified on 17 October 199, is limited in its operation to the area of ML lease 909 (formerly mining lease 47) and does not extend to the areas of former mining lease 46 and 52.
(4) A declaration that only the area of mining lease 909, and not the areas of mining lease 46 and 52, enjoy existing use rights.
On 9 December 2011, the applicant lodged the development application the subject of these proceedings, in respect of the area described as former mining lease ML 46. During the course of the hearing however it became apparent that the works, the subject of the application, in fact extend beyond the boundary of the mining lease, but still within the land owned by the Department of Lands or the Crown.
As noted above, cl 1.8A of WLEP 2011 saves the application so that it is to be dealt with under WLEP 2000. The use falls within the definition of "waste management" under WLEP 2000. As a consequence, it is classified as a Category 2 development, rendering it permissible with development consent.
The original application was notified in accordance with the regulations and as a result of the public exhibition process, four submissions were received.
On 12 January 2011, the applicant was advised by the Council that the assessment process had identified "fundamental problems" that would not allow for the application to be supported in its current form. According to the facts and contentions prepared by the Council, the applicant was encouraged to withdraw the application and resubmit the application when all of the identified issues were addressed. However, the application was not withdrawn and the Council refused it on 25 March 2011.
Acoustic evidence
The applicant relies upon the acoustic evidence prepared by Mr Atkins. There are two reports and a supplementary report. The first report is dated October 2010. That report accompanied the development application lodged with the Council. The second report was prepared for the hearing and the supplementary report (exhibit N) was prepared during the course of the hearing to better assess the noise from the green waste recycling activities at the Mona Vale Road Waste Recovery Facility.
As the site operates (without development consent) a green waste recycling facility on ML 46 with stockpiling on ML47 Mr Atkins was able to make an accurate assessment of the noise impacts generated. At p 16 of his report in exhibit N, Mr Atkins concludes that several noise mitigation measures are currently in place and he believes that they need to continue to be employed and maintained if this application is approved.
He makes several recommendations including the provision of an acoustic barrier/moulding/stockpiles, along the southern boundary for a distance of some 250 m at a height of 4.5 m. In his assessment the predicted assessment noise goals to protect the nearest residences across the valley in St Ives can be achieved if his recommendations are implemented. The complete list of his recommendations is set out at p 14 of the supplementary report and the applicant has accepted them in principle.
However, despite the inclusion of the acoustic bund on plan, the applicant made clear through Mr Boston, its planner, that the detail of the acoustic mound on the southern, western and part eastern sides of the green waste working area was yet to be determined. This was because during their concurrent evidence Mr Atkins and Mr Boston agreed that to ensure the stability of the acoustic bund (of the proportions detailed in Mr Atkins report) a base with a width of about 27 m is necessary. Assuming a batter gradient of 1:3 to 1 was constructed, this mound at 4.5 m high and 250 m long would, according to Mr Boston, take away about 50% of the green waste working area on the site, the subject of this application. After Mr Boston's evidence it was unclear what gradient the acoustic mound would be. The Council suggested that the mound's stability required the 1:3 to 1 gradient suggested in the weed management plan for the site prepared by Bush-it Pty Limited in exhibit J. Mr Boston, however, had noted that the concept plan referred to a 1:7 to 1 gradient, and, based on an enquiry to the author of the concept plan (Mr Colston an Ecologist) that figure had been something suggested by him.
At the end of the evidence it was certainly unclear to the Court the basis for either the 1:7 to 1 or 1:3 to 1. To overcome this problem, the applicant accepted a deferred commencement condition for the preparation of a vegetation and rehabilitation and management plan, generally in accordance with the concept plan drawing, and, a detailed plan of the noise attenuation measures, as required by the Atkin's report dated March 2013.
Operational plan
The applicant has made three attempts to finalise an operational plan for this development. The latest incarnation of that plan is exhibit P.
An operational plan is necessary to detail the proposed use and the integration of functions with the adjoining operations on the former mining licence number 47 (ML 909). The applicant however did not, during the course of the hearing, adequately finalise the operational plan and ultimately proposed a deferred commencement condition, requiring the preparation of such a plan within six months of a consent.
The list of matters, which the plan must cover, is outlined in draft deferred commencement condition 8 as set out below:
Operational Environmental Plan of Management
A Plan of Management detailing the proposed use and integration of functions with the adjoining operations on former Mining/Mineral Licence No 47 (also known as ML 909) is to be prepared and submitted to Council for Approval.
To ensure the environmental management, mitigation measures and monitoring of the site meets environmental best practice over time, prior to commencement of the use, an Operational Environmental Management Plan (OEMP) that incorporates the requirements of the conditions of this development consent and the requirements of the Environment Protection Licence issued by the Environmental Protection Authority ("EPA") shall be developed by a suitably qualified and experienced environmental consultant, or environmental consultancy and submitted to the EPA and Council for review.
The OEMP shall include, but not be limited to the following parameters:
Hours of Operations
Access and Egress
Pick-up and Drop-off Points
Circulation of Vehicle Movements
Car Parking Areas
Queuing Aisles
Directional Signage
Complaints Management
Air Quality and Dust Management (to include defining the windy weather conditions (eg trigger wind speeds, wind direction) when no crushing or processing activities will take place)
Noise
Traffic
Water Quality/Water Quantity Management
Waste Management (to include what must be done if asbestos containing materials are encountered on site)
Site Security
Employee/Contractor/Subcontractor Induction
OHS Plan
Site Compliance, Monitoring and Annual Reporting
OEMP Review and Updating
Many of those matters are not dealt with at all in exhibit P. The long list demonstrates the extent of the deficiencies in the plan before the Court.
Miss McCabe's evidence is that it is inappropriate to defer the preparation of the detail of the operational plan, to a time after the issue of consent. She submits the Court needs to understand the operation of this site, before it approves the development.
Desired Future Character
As noted earlier, the development is defined as "waste management" and is classified as a Category 2 use under the WLEP 2000. It is permissible with development consent.
However, before a development consent can be granted cl12 (3)(b) of the WLEP 2000 requires the Court to be satisfied that the development is consistent with the Desired Future Character described in the relevant Locality Statement (which in this case is the Locality C10 Mona Vale Road West - exhibit appendix C 1 p 64). It states:
Desired Future Character
The present character of the Mona Vale Road West locality will remain unchanged except in circumstances specifically addressed as follows.
The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be grouped in areas that will result in the minimum amount of disturbance of vegetation and landforms and buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged.
Development will be limited to new detached style housing confirming with the housing density standards set out below and low intensity, low impact uses.
A dense bushland buffer will be retained or established along Mona Vale Road West.
Development in the locality will not create saltation or pollution of Middle Harbour.
The Council's position is that there is not sufficient detail before the Court to enable the Court to be satisfied that the development is consistent with the Desired Future Character described in the Locality Statement. There is no detail about essential matters such as: site contamination and remediation works (if necessary), soil and water management investigations and plans, a stormwater management plan, a revegetation and rehabilitation management plan with detailed landscaping species and distances from stockpiles so as to minimise bushfire risk, weed removal and revegetation of embankments adjoining the natural bushland or a traffic management plan or a comprehensive operational plan. The Council submits that dealing with these matters by way of deferred commencement conditions makes it impossible to be satisfied before the issue of a consent that the development is consistent the matters raised by cl12 (3)(b). In short the Court is precluded from approving this use on this site without the detail necessary to inform the satisfaction required by the clause.
It contends that the Court cannot be satisfied on the available information, as required by cl12 (3)(b), that the natural landscape including landforms and vegetation will be protected and, where possible, enhanced by this development. Relying on Ms McCabe's evidence, the Council submits that the use has the potential to highly disturb the surrounding vegetation and the natural landscape; particularly, by the offsite transport of contaminants and pollution into to nearby watercourses and Middle Harbour. Furthermore, without specific detail about the size, material or finish of the acoustic bund to be erected along the prominent perimeter of the site there can be no assessment of its impact on the natural landform.
Mr Boston's evidence is that the site is already disturbed; therefore, it is outside the natural landscape referred to in the Locality Statement. His initial evidence was that the proposal, which is positioned on a well-defined portion of the site, could be accommodated without adverse impact on the established planted mounds around its perimeter. He told the Court that the development's location on a previously disturbed area of the site would ensure that the surrounding vegetation would not be physically disturbed. He assessed the use as low impact and low intensity and concluded that the natural landscape would not be further impacted upon by an approval of this consent. Mr Boston went as far as to suggest that the development had the potential to enhance the natural landscape, if necessary, through revegetation of the northern portion of the site generally in the location of the shale stockpile.
However, Mr Boston's evidence changed during the course of the hearing when he understood that the concept plan proposed an acoustic bund on an area beyond the ML46. In that circumstance he accepted that the acoustic bund could adversely impact the natural landscape. While initially he was of the opinion that any acoustic mound should be vegetated and a permanent feature of the landscape in the final rehabilitated site his evidence changed during the hearing. At the conclusion of his evidence he told the Court that any acoustic wall should be comprised of a shale mound without landscaping and be removed at the end of the use. He was forced to agree with Mr Hemming the Council's advocate that it is difficult to argue that a shale mound/ structure with a length of 250 m and a height of 4.5 m and possibly a width of 27 m (depending on specific engineering detail which was not available at the time of the hearing) would not have an adverse impact in the natural landscape and be consistent with the existing natural landform.
Despite Mr Boston's evidence the applicant's advocate, Mr Pickles, submitted that the development was not inconsistent with the Locality Statement for the site. It was submitted that the character of the locality would remain unchanged if this development were approved because the objective to protect and possibly enhance the natural landscape does not speak to this site because it is already disturbed. It is not a natural landscape therefore; the Locality Statement does not require this site to return to a natural landscape, because it never can. Relying on the Council's assessment report in respect of the original application (at p 203 of exhibit A) the applicant submitted that the development was a lowintensity activity consistent with the reasoning in Vigor Master Pty Limited v Warringah Council [2008] NSWLEC 1128. As such the applicant submitted it is development which "has a low level of activities associated with it" and that fact makes it a development which "...has a minimal or minor impact and is unlikely to significantly change the amenity of the locality".
Findings
The applicant's reliance upon the assessing officer's report about a different proposal is obviously problematic. His determination that it is low-intensity or low impact is irrelevant particularly, in light of Mr Atkins evidence in this case about the need for an acoustic bund to achieve acceptable acoustic levels. Without further evidence, including a comprehensive operational plan, the Court accepts the Council's submission that it is impossible to assess whether the current proposal is low-intensity and low-impact and, thereby, consistent with the Locality Statement.
The development before the Court relies on an amended concept plan, which proposes works that Mr Boston concedes are likely to impact on the surrounding natural landscape including its vegetation and landform. However, those impacts cannot be assessed because there is insufficient detail before the Court. There is not sufficient detail about essential matters such as: exiting site contamination and remediation works (if necessary), soil and water management investigations and plans, a stormwater management plan, a revegetation and rehabilitation management plan with detailed landscaping species and distances from stockpiles so as to minimise bushfire risk, weed removal and revegetation of embankments adjoining the natural bushland or a traffic management plan or a comprehensive operational plan.
The site is as Miss McCabe states in the joint report at p 8 is "highly disturbed" but it sits within a broader vegetated natural landscape adjoining the Garigal National Park. We do not accept Mr Boston's evidence that the site is disturbed; therefore, the natural landscape is outside the site. In our assessment the Locality Statement applies and, therefore, the Court must be satisfied, as required by cl 12(3)(b), that the development is consistent with the Desired Future Character in the relevant Locality Statement. The adjoining natural landscape in the national park is not pristine as was evident at the Court' view of the site and its locality however, that cannot mean that the national park it is not part of the natural landscape. So too is this site.
Accepting that the Locality Statement applies to this site we agree with the Council's submissions (based on Ms McCabe's evidence) that there is not sufficient evidence to satisfy the Court that the proposed use is consistent with the relevant Locality Statement under cl 12(3)(b) of WLEP2000 which is relevant under s 79C(1)(a) of the Act. The lack of detail in this application also precludes a proper assessment of the likely impacts of the development, including environmental impacts on the natural and built environments under s 79C(1)(b) and, ultimately the suitability of the site for the development under s 79C(1)(c) of the Act.
For the reasons stated the Court orders:
(1) The appeal is dismissed.
(2) The development application (DA2010/1822) for the shredding and stockpiling of green and wood materials on Crown land at 9994 Mona Vale Road, Belrose is refused consent.
(3) The exhibits are returned.
Susan Dixon
Commissioner of the Court
Mike Ritchie
Acting Commissioner of the Court
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Decision last updated: 05 July 2013
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