Ironlaw Pty Limited v Wollondilly Shire Council (No 3)
[2014] NSWLEC 1057
•02 April 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Ironlaw Pty Limited v Wollondilly Shire Council (No 3) [2014] NSWLEC 1057 Hearing dates: 17, 18, 19, 25 February and 6 March 2014 Decision date: 02 April 2014 Jurisdiction: Class 1 Before: Dixon C
Adam ACDecision: (1)The parties are directed to file conditions of consent that reflect the Court's reasons for judgment within 14 days.
(2)In the event that the parties are unable to reach agreement in respect of the conditions of consent (in accordance with order 1) they have leave to approach the Registry for the purpose of having the matter relisted before the Court.
Catchwords: DEVELOPMENT APPLICATION - for a waste transfer facility on rural land - traffic and amenity impacts - weight to be given to zone objectives where the development is prohibited under the relevant LEP but permissible under the SEPP (Infrastructure) 2007 Legislation Cited: Waste Avoidance and Resource Recovery Act 2001 (NSW)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Threatened Species Conservation Act 1995 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
State Environmental Planning Policy (Infrastructure) 2007
Wollondilly Local Environmental Plan 2011Cases Cited: Australian Lifestyle Corporation Pty Ltd v Wingecarribee Shire Council [2008] NSWLEC 284
Hastings Point Progress Inc v Tweed Shire Council (2009) NSWCA 285
Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 146
Newcastle and Hunter Valley Speleologists Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48Texts Cited: NSW Department of Environment and Conservation Handbook for the Design and Operation of Rural and Regional Transfer Stations Category: Principal judgment Parties: Ironlaw Pty Limited (Applicant)
Wollondilly Shire Council (Respondent)Representation: Mr T Howard SC (Applicant)
Mr A Seton (Respondent)
Marsdens Law Group (Respondent)
Shaw Reynolds Lawyers (Applicant)
File Number(s): 10920 of 2012
Judgment
This is an appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) by the Applicant, Ironlaw Pty Limited, against the refusal of a development application by the Respondent, Wollondilly Shire Council (the Council) for the construction and operation of a waste or resource transfer station and resource recovery facility and truck depot with ancillary facilities, and off-site works including construction of a Crown Road at Lot 252 DP 257510 at 25 Government Road, Bargo (the site).
The Proposal
The background to the development application no 10.2012.336.1 lodged with the Council on 2 July 2012, including early modifications to the proposal are detailed in the judgment of Craig J in Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 146. The current development proposal is described in the Revised Environmental Impact Statement prepared by Precise Planning dated January 2013 (E I S - Exhibit D) and the plans in Exhibits B, C, Q, P and U.
The facility will have a capacity to receive a maximum of 49,000 tonnes of waste per annum from the following categories: putrescible, construction/demolition, residential, commercial, green waste and household.
The activities on the site include the mulching and chipping of green waste and the crushing/grinding of bricks, concrete and other ancillary uses including a truck depot, workshop on the site.
There will be no retail from the site with regard to mulch and chipped green waste and the crushed and ground bricks and concrete. These products will be stored onsite after the processing and sold to wholesale persons engaged by retail trade elsewhere or otherwise directly to construction sites. It is proposed that putrescible waste will not be stored onsite for more than 48 hours.
The facility will employ ten people on a shift basis but no more than seven at a time. The proposed operating hours are outlined in the following table. Some of the activities will not operate on public holidays.
Land Use/Activity
Proposed hours of operation
Waste or resource transfer station and resource recovery facility
Monday to Sunday 7.15am to 4.15pm - public
Monday to Saturday 7.15am to 4.15pm - commercial
Chipping/mulching of greenwaste
Monday to Friday 8am to 4pm
Crushing/grinding of concrete/bricks etc
Monday to Friday 8am to 4pm (limited to 10 days per year)
Truck depot
Monday to Saturday 5am to 10pm, Sunday 9am to 10pm
Operators vehicle
Monday to Friday 5am to 6pm
In order to facilitate the development the applicant requires approval to carry out the following off-site road works:
- construction of site access off Anthony Road at the south-east corner of the site;
- widening of the existing constructed section of Anthony Road;
- construction of an extension of Anthony Road along the unmade Crown road, from the current western end of the made Anthony Road to a new intersection with Great Southern Road. This work includes the construction of a bridge structure over a watercourse;
- widening of Great Southern Road from the intersection with the proposed new section of Anthony Road to Wellers Road;
- works at the intersection of Great Southern Road and Wellers Road
- work on the approaches to, and the bridge structure, of the Wellers Road railway overpass;
- reconstruction of the Wellers Road - Remembrance Drive intersection.
The applicant has amended and supplemented its application during the hearing. The following plans are now relied upon:
- Road Design Plan Set P1103296JD09V06, being drawings SK 001 - SK 022 Revision B, prepared by Martens & Associates and dated 3 February 2014 (Exhibit C). These plans provide details of road and intersection design and were prepared in response to matters raised by Road and Maritime Services.
- Plan of the green waste handling area (exhibit Q). This plan was prepared in response to questions from the Court and clarifies the generalised concept plan in the EIS.
- A cut and fill plan (Exhibit P) prepared by Martens and Associates in response to a question posed by the court. This plan replaces the figure in the EIS. The effect of the new plan is to remove the need to import fill onto the site to create the raised mound from which unloading putrescible waste onto the moving floor would occur. The mound will be lower by just over a metre from that which was originally proposed.
- A plan (Exhibit U) showing the area of Lot 252 to be subject to a covenant for the conservation of SSTF. This reflects the agreement of the parties' ecological experts.
The Council's Amended Agreed Statement of Facts and Contentions dated 24 January 2014 (Exhibit 2) sets out the agreed facts, the statutory controls and the contentions between the parties including those raised by the local objectors.
The parties are in agreement about the following matters:
Statutory controls
The site is located within the RU1 - Primary Production zone under the Wollondilly Local Environmental Plan 2011 (WLEP 2011) and the provisions of the Wollondilly Development Control Plan 2011 (DCP 2011) also apply to the land.
Under the land use table for the RU1 - Primary Production zone, development for the purpose of a "waste or resource transfer station and truck depot" is prohibited. However, State Environmental Planning Policy (Infrastructure) 2007 (SEPP (Infrastructure)) permits development for the purpose of a waste resource facility (with consent) in a prescribed zone: cl 121(1).
This site is within a prescribed zone under the SEPP (Infrastructure) and the parties agree that the proposed development is therefore permissible with consent by virtue of cl 8(1) of the SEPP (Infrastructure).
The development is also "designated development" under Schedule 3 of the Environmental Planning and Assessment Regulations 2000 (the REGS) as well as integrated development. Relevantly, General Terms of Approval have been obtained by the Applicant from the Environment Protection Authority on 12 February 2014; the NSW Office Of Water on 25 October 2012 and from the Mine Subsidence Board on 11 March 2013. These General Terms of Approval are incorporated in the Council's draft conditions of development consent.
The site
The site is located on the eastern side of Government Road, Bargo and north of the Government and Ironbark Road intersection. Anthony Road forms the site's southern boundary and immediately adjacent to the east is the Council's existing waste management facility 'Bargo Waste Management Centre', a landfill site that has operated for many years. The facility is not licensed to receive putrescible waste.
The site has an area of 12.583 hectares. It has an irregular shape and is divided into two portions. The northern area is vegetated and contains Shale/Sandstone Transitional Forest - an endangered Ecological Community under the Threatened Species Conservation Act 1995 (NSW) and the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) in good condition.
The remaining two thirds of the site is managed grassland that has been previously grazed and slashed. This grassland area with scattered of a remnant trees is also Shale/SandstoneTransition Forest in a modified form.
Locality
The town of Bargo is located at the southern edge of Wollondilly Shire and is bisected by a north - south corridor, comprised to the west by Remembrance Drive and to the east by Great Southern Road, between which is the main southern railway line. Consequently, there is no single main street in the town. Rather, there are two parallel roads, both of which have shops and other facilities, so that in the daily course of events residents and visitors have to cross both roads and the railway in the normal conduct of their business. The Hume Highway freeway is situated a few kilometres to the south and east of Bargo.
The site is to the east of Bargo. The closest existing residence to the proposed facility is about 500 m southwest on Ironbark Road. The only development within 100 m of the site is the Council owned Bargo Waste Management Facility. All other rural residential properties are at least 500 m from the site. There are no dwelling houses within 500 m of the development.
The site adjoins land zoned E2 Environmental Conservation under WLEP 2011 at the north-western corner of the land. To the north and northwest of the site is an undeveloped area of rural land and beyond that is land that is zoned E2 Environmental Conservation.
To the south of the site, beyond Anthony Road there is vacant land currently used for grazing. To the east of the site, as noted, is the Council's waste facility. Next to that land are further allotments of land zoned E2 Environmental Conservation.
To the west of the site is densely vegetated land. Beyond this lot are rural properties including an item of local heritage significance named 'The Old Coomeroo Homestead' and associated buildings. The unmade Crown Road adjoins this heritage-listed property.
The hearing
The Council arranged for the hearing to commence at the Bargo Community Centre so that the Court could receive evidence from some of the local objectors to the application. Eight local residents addressed the Court at that time. Following this, the Court accompanied by the parties and their experts, undertook a view. During the view, attention was focused on the Remembrance Drive - Wellers Road intersection, the railway overpass on Wellers Road, the Wellers Road - Great Southern Road intersection, the proposed intersection of Great Southern Road with the proposed extension of Anthony Road, the southwest corner of Lot 252, and the southeast corner of Lot 252 (the site of the proposed facility), and the Anthony Road verge (including the stand of the vulnerable species Pomaderris brunnea).
The view continued by driving south on Great Southern Road past the school and concluded at one of the alternative sites considered by Mr Bulfin, the Applicant's Planner, in preparing the EIS.
After the view the hearing adjourned and recommenced in Court in Sydney.
The Objectors' Evidence
The eight residents who spoke were a small subset of the more than 160 who had made written submissions on the development application and EIS. The objectors raised a number of issues, most particularly related to town planning matters, traffic and road safety and general amenity. Road safety was a matter of considerable concern, and several of the residents who spoke had experience in driving heavy vehicles in the area.
However, the objectors' evidence must be considered in light of the extensive expert evidence available to the Court. After a consideration of that expert evidence we are satisfied that the objectors' concerns about traffic and planning matters are comprehensively dealt with by the parties' experts in their oral and written evidence to the Court.
Similarly, the objectors' concern about the need for the proposed facility in Bargo (given the existing Spring Farm transfer station) and council's contract for waste to go to that facility until 2024 is not on the evidence a reason for refusal of this application under s 79C of the EPA Act. Nor is the economic viability of the proposal or the use of the facility by people outside the Wollondilly Shire a reason for a refusal of this application in this case.
Consideration of alternative sites for the proposal is discussed in the EIS and was the subject of oral evidence by applicant's planner Mr Bulfin. The Court had the opportunity to inspect one alternate site during the view. Based on that evidence, the Court is satisfied that the applicant has considered alternate sites in compliance with the Director's requirements (we deal with this issue in more detail later in the judgment).
Two issues that were raised by residents which were not covered in experts' reports was the applicant's failure to assess the development's impacts on the heritage listed property and associated bed and breakfast operation at the junction of Great Southern Road and Wellers Road, and whether or not part of the operation of the proposed facility could be characterised as being an organic waste processing facility.
A heritage report was included in the EIS (Appendix P in Exhibit D), but did not include discussion of the bed and breakfast property at 60 Great Southern Road, despite its listing on the local heritage schedule of the Wollondilly Local Environmental Plan 2011. However, consideration of local heritage issues is discretionary rather than mandatory, and the Council has not raised any contention concerning this matter.
The owner of the bed and breakfast property, Mr Barnes, gave oral evidence at the Bargo Community Hall in his capacity as a local resident and the President of the Bargo Progress Association. After hearing his concerns about the impact of the development on the amenity of his property the Court decided to take an inspection of that land.
The inspection enabled the Court to better appreciate the location of the bed and breakfast cottage close to the road and the existing railway line and bridge overpass. The main homestead was located some distance from the B&B. Based on that inspection and the conclusion of the acoustic experts that Mr Barnes' property will not suffer any additional unacceptable noise impacts from the development over the existing noise from the railway and bridge overpass (which are to be upgraded substantially as part of this development) we are satisfied that Mr Barnes's objections in respect of his property do not justify a refusal of this application.
The issue about the classification of the development as an organic waste processing facility was raised by one of the objectors Ms Law (Secretary of the Bargo Progress Association). The matter was subsequently the subject of submissions by both parties and is discussed later in this judgment.
Expert Evidence
Evidence from the expert witnesses was heard in Court. Joint reports and concurrent oral evidence was received from Mr Bulfin (Applicant) and Mr Brown (Council) in relation to town planning (Exhibit 12). Dr Martens (Applicant) and Mr McLaren (Council) in relation to traffic and road design issues. Ms Hayes (Applicant) and Mr Humphries (Council) in relation to ecological issues. Dr Greer (Applicant) and Mr Gauld (Council) on noise issues.
A joint report on odour issues prepared by Dr Rollings (Applicant) and Dr Roddis (Council) was in evidence. Dr Rollings also gave oral evidence.
Contentions
By the time of the hearing most of the Council's contentions had been resolved by amendments to the application and/or the imposition of agreed conditions of consent. In fact, the joint reports prepared by the parties' various experts reflect an agreed position on nearly every issue. Despite that circumstance, the Council pressed on with its opposition to the development, substantially relying on the evidence of the residents. Ultimately, there was little expert evidence in support of the Council's case.
We propose to deal with the contentions in the order pressed by the Council at the hearing and addressed by the applicant in its written submissions. (AWS).
Traffic Contentions 2, 3, and 5
Contention 2 The DA should be refused because it will have an unreasonable impact on the local road network, particularly as a result of increased traffic generation
As noted above, Mr Mc Laren is the traffic expert for Council and Dr Martens is the traffic expert for the applicant. Their joint report is exhibit 8. It assesses the road design plans (Exhibit C) (Martens and Associates Road Design Plan P1103269JD09V06 dated 3 February 2014; drawings SK001 - SK022 inclusive, Revision B).
The joint opinion of the traffic experts is there will be no unreasonable impact on the local road network from this development. Their opinion is subject to the carrying out of the road works proposed in this application, including upgrade of the Remembrance Drive/Wellers Road intersection and the construction of the currently unformed section of Anthony Road between Great Southern Road and Government Road works) and the documents identified at pp 3 - 4 of their joint report (Exhibit 8).
They are also of the opinion that the predominate vehicular route for vehicles will be that which is shown in Figure SK006 to the Traffic Study prepared by Martens & Associates dated June 2012, Ref: P1103296JR02Vo2 (Appendix S to the EIS (V2) Exhibit D at pp2 - 3 Exhibit C). In short they are of the opinion that the vehicles will:
- approach the locality from the north along Remembrance Drive;
- turn left from Remembrance Drive into Wellers Road (at the intersection which is being upgraded in accordance with (Exhibit C) over the Wellers Road bridge, north of the main section of Bargo village;
- turn right from Wellers Road into Great Southern Road;
- turn left from great Southern Road onto Anthony Road, along the currently unformed section of Anthony Road - thereby avoiding the route currently used by vehicles travelling to the council's waste landfill facility - continuing along Great Southern Road, then using Ironbark and Government Road and turning back into Anthony Road; and
- enter the facility by turning left from Anthony Road into the driveway of the facility located close to the boundary of the council's waste facility.
Their joint evidence is that the route out (again for the vast majority of vehicles, including all trucks 9 m in length or more) will be the same in reverse.
The traffic experts do not accept the view expressed by many of the objectors that trucks will travel through the centre of town or via the main residential areas of Bargo to the development. In their assessment they expect that the proposed road works (including the construction of the unformed section of Anthony Road) will result in the majority of vehicles (including larger trucks) taking the access route described above in [40]. They also expressed the opinion that much of the existing traffic to the council's landfill facility (which currently travels along Great Southern Road, Ironbark Road and Government Road) will also take the same route as detailed in [40]. In their assessment the proposed works will reduce the traffic movements along the residential street of Ironbark Road by about 27% and this will be a benefit for the occupants in those houses.
Contention 3 "the DA should be refused because it will have an unreasonable impact on the local road network, particularly in relation to road safety conditions along the routes, at junctions"
The experts are of the opinion that (subject to the proposed road works detailed in items (a) to (i) of their joint report (Exhibit C at p 4) the development will not cause unreasonable impacts for the local road system or compromise road safety.
In their expert opinion the Road Design Plans incorporate all of the necessary recommendations made by the Independent Road Safety Audit (Exhibit M) - including the provision of a footpath on Wellers Road over the bridge - with the exception of one recommendation which was unable to be complied with because of the nature of the structure of the Wellers Road Bridge.
The experts also gave evidence that the proposed works address the safety concern expressed by the objectors about the Remembrance Drive/Wellers Road intersection - (when vehicles wishing to turn left into Wellers Road from Remembrance Drive are unable to do so if vehicles are present at the intersection waiting to exist Wellers Road). Their evidence is that the upgrade of the intersection proposed by this application will improve the safety of that intersection.
Contention 5: "The DA should be refused because its traffic consequences cannot reasonably be controlled by any traffic management plan and drivers code of conduct. Any plan is likely to be unenforceable and impractical/unworkable"
The traffic experts gave evidence that the traffic management measures proposed by the Road Design Plans are workable and enable good control of the traffic routes for trucks to the site (subject to a maintenance regime being imposed as a condition of consent).
The traffic management measures they refer to include signage, a Traffic Management Plan and physical traffic measures to preclude larger vehicles from using certain routes. For example trucks 9 m or longer leaving the facility will physically be unable to turn left into Anthony Road into Government Road and instead will have to travel along Anthony Road to Great Southern Road. Additional measures are also proposed to assist pedestrian safety at the Remembrance Drive/Wellers Road intersection.
Vehicles approaching Bargo from the freeway will be directed from the Avon Dam Road bridge onto Remembrance Drive and travel north to the Wellers Road intersection, and then cross the railway, turn from Wellers Road into Great Southern Road and hence to Anthony Road. Use of the route would be indicated by signage and through advice to commercial drivers. The experts agreed that road signs directing traffic to and from the facility away from Great Southern Drive could be enforced.
Finally, the traffic experts expressed the opinion that the marginal increase in heavy vehicles past sensitive sites such as the primary school or residences generated by the proposed development (subject to the imposition of the proposed conditions) will not cause any unacceptable traffic or safety issues.
Acoustic - Contention 6: "The development application should be refused because the proposal will have an unreasonable acoustic impact on the residential properties along vehicular access routes, in particular Great Southern Road and future residential properties identified in the Growth Management strategy".
Acoustic impacts on residents
Mr Gauld is the acoustic expert for the Council and Dr Greer is the acoustic expert for the applicant. Their joint report is (Exhibit 11).
They have assessed the proposal after a consideration of number of documents including Environmental Noise Impact Assessment By AECOM dated 13 January 2013 and the NSW Industrial Noise Policy (INP) and associated application notes issued by the EPA. They have also considered the relevant provisions of the Protection of the Environment Operation Act 1997 and the LEP 2011, DECP 2011 and The Wollondilly Growth Strategy (Exhibit 11 p1), NSW Road Noise Policy (RNP) issued by DECCW dated July 2011 and Noise Guide for Local Government (NGLG) issued by the EPA and the Environmental Noise Management Manual (ENMM) issued by the RTA dated Dec2001.
After noise assessments they agree that the noise impact due to the operation of the proposal is likely to result in a noise impact of 56dBA at the most affected point on the boundary of the adjacent Bargo Waste Management Centre, which is less than the industrial noise criteria of 70dBA. They conclude that the noise impact of the operation of the proposal is acceptable (Exhibit 11 at 6.5)
They also agree following assessment that the road noise criteria applicable to the proposed development is complied with at the nearest affected residential receivers with no noise mitigating measures necessary (Exhibit 11 at 6.7). In short, they agree that the 4.5 m high acoustic barrier proposed by the applicant to control operational noise will achieve the required noise criteria at all existing residences.
Operator's Garbage Trucks
The experts have different opinions about whether the operator's two kerb side garbage trucks will disturb the sleep of the occupants of the bedrooms in the house at 75 Great Southern Road. The house is located about 46 m from the centre line of Great Southern Road.
Mr Gauld is of the opinion (based on his measurements that the two garbage trucks will generate a noise level of 63 67dBA outside the façade of the dwelling) and that will exceed the 50-55dBA recommended noise level limit inside. He could not say that sleep disturbance will be unlikely during garbage truck passbys.
Dr Greer's measurements of 62 and 63dBA for garbage truck passbys demonstrates that there will be a varying noise level which may be affected by factors such as speed, type of garbage truck, age of truck and net load carried by truck. She says such a small sample size is insufficient to determine that sleep disturbance will be unlikely. Therefore, Dr Greer recommends a condition for further monitoring for 3 days to determine the impact of garbage trucks passing prior to 7am and if the noise levels exceed 65dBA then she recommends that truck movement should be restricted until after 7 am.
Having regard to the evidence, we accept Dr Greer's recommendation for the imposition of a condition requiring further testing to assess the noise impact at the house as proposed by the Council. In the event that the testing proves nominated dBA criteria in the condition are not exceeded then the trucks should be able to leave the site as proposed in the application.
Odour Impacts - Contention 7: " The development application should be refused because it will result in adverse odour impacts on the likely future residents of Bargo".
Mr Rollings is the odour expert for the applicant. Mr Roddis is the odour expert for the Council. Their joint report is (Exhibit 9).
The experts accept the air quality modelling provided in the AECON Air Quality Impact Assessment dated 15 November 2013 (Appendix V to the EIS) and, agree that the air quality impacts of the development can be contained within the site boundary provided that adequate air quality management is implemented (pp 6 and 7 of Exhibit 9).
To that end the experts have proposed certain conditions and the applicant agrees to the imposition of those conditions on the development consent.
The only issue raised by the odour experts is whether there should be a 250m buffer from the site boundary to the nearest residence. It arises because Mr Roddis referred the Court to a statement in the NSW Department of Environment and Conservation Handbook for the Design and Operation of Rural and Regional Transfer Stations which states that it is desirable to have a 250 m buffer between regional waste transfer stations and residential properties.
There is currently no residence within 500 m of the site or the Council's landfill facility. The separation distance required for a landfill facility from a residence is 500 m under the Council's DCP 2011 (see Tab 80 Exhibit 4 Volume 5 - Industrial & Infrastructure Uses, Section 3.8 "Waste or Resource Management Facilities" at p 22 under the heading "Controls" and "Location" at para 1).
In this case the development complies with the 250 m separation distance set out in the handbook. Needless to say it is open to the Council in its consideration of any future residential development to have regard to any appropriate separation distance requirement from the development site.
With respect to the classification of the development as an "organic waste facility" we accept the applicant's submission on the oral evidence of Mr Bulfin that the definition does not apply to this development application given the small proportion of green waste which is to be accepted at the site (some 6,000 m3) and the fact that the activities do not include composting.
Planning Issues - Contentions 8, 9, 10, 11 and 19
Growth Management Strategy: contention 10 "the proposed development is inconsistent with the existing and future character of the area and is likely to impact on the future Growth of Bargo as depicted in the Council's adopted Growth Management Strategy"
In order to establish a framework for planning to accommodate a larger population, the Wollondilly Shire Council has prepared a Growth Management Strategy (GMS). In broad terms, the strategy identifies areas for new residential development as well as employment areas, while at the same time preserving the 'rural living 'character of the Shire. The interpretation of the GMS and the weight that should be given to it in assessing the current proposal was the subject of competing evidence and submissions by the parties.
Two Planning Proposals have been submitted to Council, seeking to create two new subdivisions in the general vicinity of the proposed facility. Council has deferred consideration of these Planning Proposals, pending the outcome of this appeal.
Development within the areas of the Planning Proposals, or in any other areas where the GMS anticipates growth, might experience adverse impacts from the existence and operation of the proposed facility. The opinion of Mr Bulfin, and other relevant experts (from both parties, including Mr Brown, the Respondent's planning expert) was that any impacts would however, be slight and manageable.
The GMS is an aspirational document, which will be subject to review and modification over time. The delineation of areas where development might occur is uncertain, and the correct interpretation of the map (Exhibit K) depicting potential development is open to several interpretations.
The Court accepts the evidence of the experts about the impacts of the development on existing and possible future properties and recognises that the GMS, at this stage in its life, necessarily embodies considerable uncertainty. This is not a criticism of the GMS, but it does mean that in determining the outcome of this appeal the GMS can be given little weight.
As noted the relevant local planning instrument is the Wollondilly Local Environmental Plan 2011 (WLEP) but in this case the State Environmental Planning Policy (Infrastructure) 2007 prevails to the extent of any inconsistency. The parties have competing views about the weight to be given to the zone objectives under the WLEP 2011 in this case.
The Council has referred the Court to the decision of Hastings Point Progress Inc v Tweed Shire Council (2009) NSWCA 285 which is a case involving SEPP (Seniors Living) 2004, and inconsistency between the SEPP and the LEP. McColl JA drew the following propositions from the judgment of Basten JA (who was in the minority):
6 Relevantly one can distil from Basten JA's reasons, the following propositions with which I agree:
(a) when any environmental planning instrument is relevant to a particular proposed development, it is required to be taken into account pursuant to s 79C of the EP Act;
(b) in considering whether to grant approval for a development which falls under the SEPP - SL, the consent authority must also take into consideration the matters set out in s 79C(b) - (e);
(c) it thus follows that the fact that a development proposal to which SEPP-SL applies accords with its provisions does not mandate that it be granted consent;
(d) accordingly, the fact that a consent authority has power to grant consent for a development which accords with the requirements of SEPP-SL does not prevent it, in the exercise of its discretion, from refusing to grant that consent;
(e) the distinction drawn by Preston CJ in Australian Lifestyle Corporation Pty Ltd v Wingecarribee Shire Council [2008] NSWLEC 284 referred to by Basten JA at [52] between the existence of the power to consent and the manner of its exercise as reflected in the present case, is reflected in proposition (d) above.
Applying these propositions to the present case, it is clear that the consent authority has discretion as to whether or not to grant consent to a development application to which SEPP (Infrastructure) applies. In exercising this discretion a consent authority must take into consideration relevant matters in s 79C of the EPA Act.
Clause 2.3(2) of WLEP states:
(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
It does not mandate that the consent authority must refuse consent to a development application, which does not meet the zone objectives. As such, cl 2.3(2) does not create any inconsistency between the WLEP and SEPP (Infrastructure), and the parties were in agreement that the Court should have regard to the zone objectives.
In most cases a category of development which is permissible (with or without consent) in a zone would generally be compatible with the zone objectives. Where a development, which is normally not permissible, is rendered permissible by virtue of a SEPP, then it would not be surprising if the development would not be compatible with some, if not all, of the zone objectives (and with some or all of the aims of the plan in cl 1.2).
The zone objectives of zone RU1 are given in the Land Use Table below:
Zone RU1 Primary Production
1 Objectives of zone
· To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.
· To encourage diversity in primary industry enterprises and systems appropriate for the area.
· To minimise the fragmentation and alienation of resource lands.
· To minimise conflict between land uses within the zone and land uses within adjoining zones.
· To provide for a range of land uses (including tourism-related uses) that support the agriculture industry.
· To provide areas within which the density of development is limited in order to maintain a separation between urban area
In oral evidence, Mr Seton elicited from the Applicant's planner, Mr Bulfin, an agreement that the proposal is inconsistent or not compatible with the first four of the zone objectives. However, Mr Bulfin said that the proposed land use does support the agricultural industry (zone objective 5) by providing that industry with a waste transfer/ facility. Furthermore, it is not inconsistent with (zone objective 6) because the design of the development ensures that the density of the development is limited to one area of the site in order to maintain a separation between the nearest residence or urban area. Furthermore, Mr Bulfin said that the proposal would maintain separation between urban areas because the site is accessed by a no through road. As such, Anthony Road does not connect multiple urban areas and therefore separation of urban areas will not diminish as a result of this proposal (pp 209 - 214 of the EIS Exhibit D).
The planners agree that the GMS is not proposing any particular future residential zones but merely identifies in s 7.2.1 "potential residential growth areas". (Exhibit 12 p 2 at [A]). It is a broad policy document, which is to be re exhibited shortly and more than likely amended.
Therefore, the planners' evidence is that it is not possible to determine with any degree of clarity that the development will adversely affect potential residential growth areas shown on the GMS because it merely indicates possible directions for 'potential residential growth areas'. Only a draft EPI, properly formulated, investigated, exhibited and supported can propose future residential zones.
Although regard has to be had to the zone objectives, it would be contrary to the intent of SEPP (Infrastructure) and defeat its policy purpose if inconsistencies between the SEPP and the zone objectives were used as a ground to refuse consent to this development. Where the RU1 zone objectives are inconsistent with the objectives of the SEPP then cl 8(1) provides that the SEPP prevails to the extent of the inconsistency. We are therefore persuaded by Mr Howard's submissions on this issue over those of Mr Seton. Having had regard to the RU1 zone objectives we find that the proposal's inconsistency with some of those zone objectives is not a basis for the refusal of this application.
Development Control Plan
The parties disagree about the relevance of DCP 2011 in our determination of this application.
The applicant relying on s 74C(5)(b) of the EPA Act submits that the DCP 2011 has limited application in this case. The section provides:
(5) A provision of a development control plan (whenever made) has no effect to the extent that:
(a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or
(b) it is inconsistent or incompatible with a provision of any such instrument.
Section 4 of the EPA Act defines an "environmental planning instrument" to include the SEPP (Infrastructure) but not DCP 2011. Therefore, the applicant submits that by operation of s74C (5)(b) any provision of DCP 2011 that is inconsistent or incompatible with a provision of the SEPP (Infrastructure.) to the extent of the inconsistency has no effect.
Despite s 74C(5)(b) the Council contends that any inconsistency with the objectives and provisions in DCP 2011 are a basis for the refusal of this development application. In the agreed statement (Exhibit 2 at p18 contention 11(c)) the Council contends that the development is inconsistent with the following provisions: the General Objectives - in the DCP 2011 Vol 2 - Objectives (a), (b), (c), (e) and (f); General Objectives for Industrial and Infrastructure Uses in the DCP 2011 Vol 5 - Objectives (d), (e), and (l); Objective (b) of clause 2.3.3 of DCP - Vol 5, Objective (a) and (b) of clause 2.3.12 in DCP 2011 - Vol 5; clause 3.8 Waste or Resource management facilities objective (g) and the Locational ,storage and noise/odour control in clause 3.8 of the DCP 2011.
The Council relies on the evidence of its planner Mr Brown in support its position. In the joint report he states: "...The DCP remains relevant by operation of s 79C(a)(iii) and remains consistent with s 74BA of the Act. The consideration of the DCP is not "more onerous" than the SEPP as the SEPP contains no standards for the assessment of the proposal [s 79C (3A] " (p 27 Exhibit 12).
Mr Bulfin however, is of the opinion that s 74BA(1) of the EPA Act is intended to "provide guidance" as distinct from mandatory controls and give effect to the aims of any environmental plan that applies to the development; facilitating development that is permissible under any such instrument and achieving the objectives of land zone under such an instrument: s 74BA(1)(a), (b) and (c).
His evidence is that the SEPP (Infrastructure) aims to provide regulatory certainty and efficiency through a consistent planning regime for infrastructure and the provision of services, and to provide greater flexibility in the location of infrastructure and service facilitates. Any objectives or controls in the DCP 2011 which would purport to restrict these aims is inconsistent with the SEPP and therefore of no effect.
Finding on the interpretation of s74C (5) (b)
The Court accepts that by operation of s 74C(5)(b) of the EPA Act a provision of the DCP 2011 which is inconsistent with a provision of the SEPP (Infrastructure) is of no effect. Consequently, the court's focus must be on those provisions within the DCP 2011 which are both relevant and not inconsistent or incompatible with the provisions of the SEPP (Infrastructure): 79C(iii) of the EPA Act.
To that end we accept the evidence of Mr Brown and Mr Bulfin that the provisions in Vol 2 of the DCP are not applicable to this development because it is not development for 'Primary Agriculture' or 'Rural' use. We also accept the planners expert assessment that objective (d) of the General objectives for Infrastructure Use in the DCP - Vol 5 is not relevant because the provision refers to a task, as opposed to being an obligation for development proposals (Exhibit 12 at p 12 para 2.6.3).
With respect to the remaining provisions at issue in these proceedings (as detailed at paras [85] and [90]) the evidence is as follows.
Mr Bulfin is of the opinion that the development, as located and subject to the mitigation measures proposed, is consistent with the existing amenity of the area (cl 2.2 objective (e)). He is also of the opinion that the development will be undertaken in a manner that minimises land use conflict (including the existing tip next door and the Crown Land surrounding the site) (cl 2.2 objective (l)). Following a consideration of the plans of the buildings proposed Mr Bulfin lists at p 31 of Exhibit 12 the design features of the development which he believes supports his assessment that the development is of good design and will ensure that the development does not have adverse impacts on the amenity of the area: objective (b) of cl 2.3.3 Building Design of DCP 2011 Vol 5). He specifically refers to the existing vegetation on the western boundary of the site significantly obscuring the location of the proposed facility from most vantage points and the additional screening from the regeneration of native vegetation within a 20 m wide buffer along the Anthony Road frontage.
The application also proposes a 4.5 m wide landscaped acoustic mound along the southwestern part of the facility that will provide further screening. The buildings are generally open sided structures with Butterfly roofs (except the truck workshop) and this design according to Mr Bulfin will minimise bulk. There is no longer sitting on a raised platform so the development will be lower on the site and given its isolated location in excess of 500 m form the nearest dwelling Mr Bulfin believes that the proposal will not have any adverse impacts on the amenity of the area.
Mr Brown does not agree because he is of the opinion that the development would be more appropriate in an industrial zone. In his assessment the buildings and the functions of the proposal are such that are not ordinarily found in a rural area. He states that the proposed acoustic mound and landscaping buffer cannot be considered consistent with the amenity of the area (Exhibit 12 at [31]).
With respect to cl 2.3.12 of the DCP 2011 the applicant submits on the evidence of Mr Bulfin and Dr Martens that the development will not adversely impact on surrounding rural or residential development subject to the imposition of the agreed conditions and appropriate traffic management measures.
As Mr Brown correctly states that the permissibility of this proposal is brought about by the provisions within the SEPP (Infrastructure) that aim to provide "...greater flexibility in the location of infrastructure service facilities": cl 2(ii). It is not a land use envisaged by the permitted use within the Wollondilly LEP 2011 and is clearly an industrial type operation located within a rural area on the edge of Bargo (p 23 Exhibit 12). With that in mind any provision in the DCP 2012 which is inconsistent with a provision of the SEPP must have no effect: s 74C(5)(b).
Having observed the existing amenity of the site and surrounding land at the Court view taken at the commencement of the hearing we accept Mr Bulfin's expert evidence that the design and location of the built form on the land together with mitigation measures proposes will ensure the development is consistent with the existing amenity of the area and will be undertaken in a manner that minimises land use conflict.
Furthermore, the Court is satisfied on the evidence of the acoustic experts, Mr Bulfin and Dr Martens and Mr McClaren that the development will achieve the relevant noise control objectives in (a) and (b) of cl 2.3.12 in the DCP 2011 Vol 5 by appropriate acoustic mitigation measures in accord with Controls 1 and 2.
With respect to cl 3.8 Waste or Resource management facilities in the DCP 2011 the applicant submits on the evidence of Mr Bulfin and its other experts that a conditional approval of this amended application will achieve the objective of "...orderly and economic development of waste management facilities in an appropriate location".
In saying this the applicant contends that for the reasons stated at p 33 of Exhibit 12 the proposal is not landfill and that the organic waste processing component of the proposal constitutes a minor part of the overall maximum annual waste volume (less than 10%). The proposal does not compose green waste therefore; the proposal is not an organic waste facility. .
However, if the Court determines otherwise the applicant concedes that the development cannot meet the locational criteria for setbacks of 500 m from all the boundaries of the site. In order to comply with this control, Mr Bulfin said, based on a facility occupying an area of 300 m x150 m, that compliance with the 500 m Control could only be achieved on a lot comprising 150 ha. Mr Bulfin considers that compliance with this Control is unreasonable and unnecessary given the minor scale of the organic waste processing proposed in this application particularly, when the impacts of the development are either contained onsite or mitigated.
Finding - is the development an organic waste facility?
In the Court's assessment it is not necessary for the application to comply with the location criteria in cl 3.8 of the DCP 2011 because in our assessment of the evidence the development is not an "organic waste processing facility". We have come to this view based on the evidence of Mr Bulfin as stated above and principally because the development does not propose any composting activities, which is a central activity of such facilities.
Finding - Does the development achieve the objective (g) in cl 3.8 of DCP 2011 "...orderly and economic development of waste management facilities in an appropriate location"
Mr Brown's evidence is that the setback control is to set parameters to be addressed when selecting sites for such uses. In these circumstances he says the applicant needs to demonstrate that whilst the locational criteria are not met the objectives have been met.
The amended development is to be located on land that is categorised as being class 3 agricultural land (T Hulme, T Grosskopf and J Hindle (200) Agricultural Land Classification. Agfact AC.25, NSW Agriculture). This places it in the middle classification - it is not the most productive but it is not the poorest. However, it has not been used for agricultural purposes except for a casual basis since the 1970s. The biodiversity values of the land, however, are recognised by both parties. The proposal is to protect those values through a covenant and enhance the natural resource base. In doing that however, the site is still capable of providing an accessible waste transfer facility development to complement the adjoining existing Council operated landfill site. The evidence is that the development will be incorporate appropriate acoustic mitigation measures and screening. The closest residence is some 500 m from the development and development is not being constructed near existing urban areas. The off-site road works will ensure appropriate and safe access to the site and to some extent the community will also benefit from the upgrade of the roads. Some residents will experience a decrease in traffic by up to 27% because of the altered traffic routes facilitated by an approval of this development.
The evidence demonstrates that the development's impacts in respect of odour and noise will be contained within the site and, that there has been compliance with the Director's requirements (Appendix A Exhibit D).
The EIS assessment concludes that the proposal is not inconsistent with, nor does it offend, any of the general objectives. In particular, notes that the proposal achieves objectives (a), (b), (c), (d), (f), (g), (h), (i), (j), (m) and (n) as they relate to infrastructure (Part H of the EIS (Exhibit D at paragraph 47.2.2 p 215). After a careful consideration of all the relevant provision of the DCP 2011 and the extensive written and oral evidence received by the Court from the experts we find the development to be located appropriately and compliant with any relevant distance provision in cl 3.8 of the DCP 2011 Vol 5.
Ecological issues - contention 12
Shale Sandstone Transition Forest (SSTF) is an Endangered Ecological Community (EEC) under both the TSCA and EPBC Act. Lot 252 is largely vegetated with SSTF, in good condition in the northern part of the site, in less good condition in the southern part. (Appendix L in the EIS - Exhibit D). Lot 252 is currently ungrazed. The southern part of the site is dominated by the native grass Themedaaustralis, flowering and fruiting heads of which stand in sharp contrast to the very low grazed grasses on properties to the south and west.
SSTF also occurs on the northern verge of Anthony Road immediately south of Lot 252 (appendix M, EIS - Exhibit D). This verge also provides habitat for a stand of the vulnerable shrub, Pomaderrisbrunnea.
The proposal involves the loss of 3.706 ha of SSTF grassland in the southeast of Lot 252. The applicant proposes as an offset for this loss the dedication, by registration of an appropriate covenant on title as a conservation area, an area of the EEC totalling 8.878 ha, as depicted in Exhibit U.
The ecological consultants, Ms Hayes for the Applicant and Mr Humphries for the Respondent, in their joint report considered that an offset area of 9.15 ha would be appropriate, indicating a deficit between the Applicant's proposal and the ecologists' target.
The experts suggested that the deficit could be addressed in one of two ways, by purchase of an additional (unspecified) area elsewhere, or through purchase (and retirement) of biodiversity credits.
Considerable time was spent debating the basis for the calculations of the credit which would be required.
Mr Howard submitted that there was no basis for requiring the Applicant to provide additional offset, either on a separate parcel of land or as biodiversity credits.
During closing submissions, the parties agreed that there was no requirement for additional offsets, so it is unnecessary for the Court to resolve either the question of authority or the calculation of credits.
The shortfall identified by the experts was based on anticipated loss of habitat through road widening and drainage during upgrading of Anthony Road. On the view, it was agreed, verbally, by the traffic experts (Dr Martens for the Applicant and Mr McLaren for the Respondent) that the necessary upgrading of the road could be conducted without impact on the vegetated verge. When this agreement is factored into consideration, the perceived shortfall in offsets disappears.
However, no plans have been tendered as yet, nor any condition offered, which provides an enforceable foundation to the agreement between the traffic experts.
The alternative site issues
A matter of considerable concern to residents, reflected in both the written submissions and oral evidence was the justification for the choice of the particular site. The respondent, in its contentions and submissions argued that the applicant had failed to properly address the Director General's requirements for the EIS in the discussion of alternative sites.
There is nothing to suggest that users of the proposed facility should be restricted to residents of Wollondilly. Waste consigned to the facility could be from anywhere. Given the Council has an existing contract for residential putrescible waste to be disposed of at the Jack's Gully (Spring Farm) facility in Camden LGA, the residents suggested that waste for Bargo could continue to be transported to Jack's Gully, a facility and a landfill resource recovery centre and a materials recycling facility.
Residents also argued that if additional capacity were required it could be provided at a number of localities not necessarily restricted to Bargo.
If waste for the new facility would be coming from outside Bargo, where would it be coming from? The EIS was based on the premise that the majority of waste would arrive from the north via Remembrance Drive, with traffic turning east onto Wellers Road and then south on Great Southern Road to the intersection with Anthony Road where traffic would turn east to the facility. The likely proportion of traffic travelling from the freeway and arriving at Bargo from the south was estimated in the EIS to be low. Any traffic from the south would be directed onto Remembrance Drive to the Wellers Road bridge.
The residents' submissions reflect a belief that the EIS and traffic studies underestimated the amount of traffic which would travel south along the freeway and then enter Bargo from the south.
However, the traffic experts agree with the scenario of traffic arrival from the north detailed in the EIS. In the absence of evidence of quantifiable data to overturn the agreed joint report the Court has no basis to reject that evidence.
While submissions were made that a site near Maldon would be preferable, there was no detailed analysis backed by data or demand for a Maldon site. The absence of nominated alternative sites again limits the Court's options, in that reasons to support specific alternate sites cannot be advanced.
The applicant submitted that the obligation to assess alternate sites had been satisfied by inclusion in the EIS of two alternate sites in Bargo and that there was no requirement, implied or otherwise, for the applicant to volunteer alternative sites at further distances.
In the applicant's written submissions (at paras [61]-[64]) Mr Howard submits that the EIS has been properly notified to the relevant agencies and potentially affected persons and that the public participation has not been prejudiced.
On the evidence of Mr Bulfin, he says that the EIS complies with the requirement to assess alternative sites. With respect to having regard to overseas experience and technologies Mr Bulfin told the Court that the DG's requirements referred to the relevant attachment as a guideline only and that the guideline applied generally to both landfill sites and waste transfer stations.
Mr Bulfin told the Court that the reference in the guideline to assessing overseas experiences and technologies 'was apt to landfill facilities' not waste transfer stations. His evidence was not contradicted by the Council's expert, so we accept his evidence.
With respect to the adequacy of the EIS in regard to fire and incident management we accept Mr Bulfin's uncontradicted evidence that it is compliant with the Director's requirements (AWS at [63]).
In his evidence Mr Bulfin pointed out that the EIS (s 9.4) assessed landfill as an alternative to waste transfer facility.
Based on the evidence we are satisfied that the applicant has satisfied the Directors' requirements and considered alternate sites in accordance with the requirement.
Conclusion
Mr Howard, for the Applicant, took the Court to a number of documents to demonstrate the long-standing concerns of the State Government to reduce waste and promote waste recovery. These included the EPA guidelines on Solid Waste Landfill (1996), the NSW Waste Avoidance and Resource Recovery Strategy, the Waste Avoidance and Resource Recovery Act 2001 and the Handbook for Design and Operation of Rural and Regional Transfer Stations (DEC 2006). Mr Seton for the Council acknowledged this policy framework for waste management.
The Wollondilly Local Government Area expects growth of up to 22,000 additional dwellings in the next 25 years. The appropriate management of waste is a critical component of sustainable growth and the Wollondilly Local Government Area does not have a waste transfer facility or resource recovery facility that is accessible by the public. The existing Bargo Waste Management Centre does not accept putrescible waste.
Having considered the provisions of s 79C of the EPA Act and assessed the evidence relevant to those matters identified in the section, including the evidence of the experts and the objectors, the Court has decided that it is appropriate to allow the development sought by the applicant. However, consent cannot be granted until the Court has adjudicated upon the terms of conditions that reflect our reasons for judgment. The parties have agreed in the main with the council's draft conditions however, where there remains disagreement the Court requires the following:
Conditions
The Court has decided to impose a condition requiring all of the works which fall within s 80A(2) of the EPA Act to be carried out to the satisfaction, determined in accordance with the regulations, of a person specified by the consent authority (Council).
In all other respects the conditions are to read private certifier.
With respect to the operator vehicles the evidence supports the imposition of the condition allowing truck movements between 5am and 7am on weekdays for two trucks (condition 98) but subject to the further testing as proposed by Dr Greer.
A condition requiring the Council to maintain the vegetation in the road reserve (near the threatened species) needs to be formulated.
A condition needs to be drafted to address the works on any land outside the site necessary to facilitate vehicle access and egress to the site.
The Court requires a condition to give effect to the matters raised in [115] -[116] of the judgment.
The Court imposes condition 45 for a period of 12 months.
The Court imposes condition 52 as proposed by the Council.
The Court does not impose the following draft conditions: condition 133, and condition 24 in its assessment can be dealt with at the construction certificate stage, with respect to condition 71 the Court considers it to be both unreasonable and unenforceable.
The Court asks the parties to prepare a condition requiring a qualified fauna expert to be present to protect fauna during the removal of trees and other vegetation to improve sight lines in the letter from Transport for NSW dated 3 March 2014 (Exhibit R).
The conditions are to include any comment from the RMS as detailed in their letter to the Council dated 12 February 2013 (exhibit 6).
Accordingly, the Court orders:
(1) The parties are directed to file conditions of consent that reflect the Court's reasons for judgment within 14 days.
(2) In the event that the parties are unable to reach agreement in respect of the conditions of consent (in accordance with order 1) they have leave to approach the Registry for the purpose of having the matter relisted before the Court.
Susan Dixon
Commissioner of the Court
Paul Adam
Acting Commissioner
Decision last updated: 02 April 2014
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