Kluve v Kiama Municipal Council - [2010] NSWLEC 1291

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Kluve v Kiama Municipal Council [2010] NSWLEC 1291

PARTIES:
APPLICANT
Ms R Kluve
RESPONDENT
Kiama Municipal Council

FILE NUMBER(S): 10480 of 2010

CORAM: Fakes C

KEY ISSUES: CONSENT ORDERS :- mineral water bottling plant; water level monitoring requirements

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Kiama Local Environmental Plan 1996
Drinking Water Catchments Regional Environmental Plan

DATES OF HEARING: 26/10/10

DATE OF JUDGMENT:
28 October 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Tomasetti SC [barrister]
SOLICITORS
Bartier Perry
RESPONDENT
Mr G Gleeson [solicitor]
SOLICITORS
RMB Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

28 October 2010
10480 of 2010 Kluve v Kiama Municipal Council

JUDGMENT

1 COMMISSIONER: This is an appeal made under s97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Kiama Municipal Council (the council) to grant consent for Development application DA10.2007.379.1 for a 25 megalitre per annum mineral water bottling facility on Lot 28 DP751292 Knights Hill Road, Knights Hill (the site).

2 The proposal is an application for the extraction and bottling of mineral water from an aquifer located beneath the site. The proposal includes a bore, bottling shed, access road and parking facilities. The proposal is described as a ‘rural industry’.

3 The council refused the application on the basis of concerns regarding the impact of the proposal on the surrounding aquifer and watershed including the hanging swamps and waterways down stream. The council considers the application is against the public interest.

4 The site is zoned part 1(a) “Rural A” and part 7(e) “Rural Environmental Protection (Hinterland)” under the Kiama Local Environmental Plan 1996 (KLEP). The majority of the 7(e) zoned land on the property and in the immediate locality includes land deemed to be of high conservation value (HCV).

5 A ‘rural industry’ is permissible with consent on the land zoned 1(a) “Rural A” but prohibited within the 7(e) land. The aquifer extends into land-zoned 7(e) and classified as HCV.

6 As a consequence of the location and characteristics of the site, this integrated development requires the concurrence of a number of government departments and agencies. Since the lodgement of the application in late 2007, some of the departments have amalgamated.

7 The council’s ‘Director of Environmental Services Report – Ordinary Meeting’ of 20/04/2010 summarises the issues, compliance with statutory provisions and the response of the other authorities.

8 As all of the works will be undertaken in the land zoned Rural 1(a), the proposal is generally consistent with the zone objectives and is permissible. The proposal generally complies with relevant DCPs however some conditions of consent are required.

9 As the site is within the Drinking Water Catchments Regional Environmental Plan (deemed State Environmental Planning Policy), the proposal was referred to the Sydney Catchment Authority. Concurrence was received with the conditions of that concurrence to be incorporated into the conditions of consent.

10 The former Department of Water and Energy, [the ‘water’ arm is now incorporated in to the Department of Environment Climate Change and Water – DECCW], has issued General Terms of Approval that must be incorporated into the conditions of consent. The department has limited the extraction of water to 13ML per year and requires a monitoring station to be installed.

11 Concerns were raised by the then Department of Environment and Climate Change (DECC), and in public submissions, over the potential impacts of the proposal on environmentally sensitive areas including the nearby Buddaroo National Park and associated swamps and rainforests. The council report considers these concerns can be addressed through the monitoring process that halts pumping if water levels fall below a certain level.

12 The Rural Fire Service has recommended conditions of consent.

13 Subsequent to council’s refusal, the applicant has provided additional information and as a result the contentions between the parties have been resolved. The parties are seeking Consent Orders from the Court. In accordance with the “Practice Note – Class 1 Development Appeals (cll35 and 36) the “consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account”.

14 Nineteen submissions were received and the following concerns were raised:

The proposed activities may not be in accordance with the Kiama LEP, in particular if works occur in the HCV land;

The proposal will have an unsustainable impact on groundwater resources and the downstream environment and adversely impact on the surrounding rainforest, creeks and the adjoining National Park;

Vehicle movements will cause a safety hazard;

Unacceptable noise impacts; and

General concerns with the bottled water industry including its carbon footprint, climate change, waste management issues especially with the use of plastic bottles.

15 I have read the submissions and the various reports provided by the applicant and the council. I am satisfied that the proposal complies with the relevant clauses of the KLEP and that the conditions of consent meet the requirements of the other relevant consent authorities.

16 At the hearing, the Court was assisted by Mr Lee a geoscientist who prepared the report on the aquifer testing and groundwater assessment on the site. Mr Lee advised the Court on the function and location of the monitoring bore, the DECCW water licensing arrangements and the period over which a licence runs. The application for a water licence is an additional step the applicant must take. Mr Lee was able to confirm that further conditions are likely to be imposed if and when a water licence is granted for the water bottling use. A licence must be obtained for any other use of the water.

17 This information was of great benefit in refining the conditions of consent, in particular conditions Part A 12, 13 and 16 which go to the monitoring and reporting of the water levels and the pumping regime. I am satisfied that these refinements address many of the concerns relating to the sustainability of the aquifer and the potential impacts downstream.

18 With respect to the traffic and noise issues, I am satisfied with council’s review of the issues and the advice of the acoustic specialists that neither of these issues is likely to have a detrimental impact on the safety or amenity of nearby residents.

19 The Court, in the ‘shoes’ of the council is restricted to assessing the impact of the proposal itself and not the water bottling industry as a whole although it was confirmed at the hearing that Part B condition 22 requires the use of glass bottles.

20 I am satisfied that the proposed orders comply with the relevant clauses of the KLEP and that the conditions meet the requirements of the other relevant consent authorities. I am also satisfied that the objections have been properly taken into account as required under s 79C of the EPA Act. I therefore accept that the granting of Consent Orders is appropriate in the circumstances

21 The Orders of the Court, by consent are:

_____________________________________

Commissioner of the Court

ANNEXURE A

CONDITIONS OF CONSENT

Development Description: mineral water bottling facility
Development Application Number:

10.2007.379.1

Premises:

LOT: 28 DP: 751292 & LOT: 2 DP: 208387 - Knights Hill Road KNIGHTS HILL 2577

Date of Determination: -

Consent Granted to Operate From:

Consent to Lapse On: The Date being five (5) years after the date of determination.

Department of Water & Energy – works requiring a Water Licence under the Water Act 1912

2) Any amendments or modifications to the proposed water resource development may render these GTA invalid. If the proposed works/activities are amended or modified the Department of Water and Energy must be notified to determine if any variations to the GTA will be required.

Water Act 1912 Mineral Water Extraction Licenses – Requirements for Part V license applications.

4) An approval will only be granted to the occupier of the lands where the works are located, unless otherwise allowed by the Water Act 1912.

5) When the Department grants an approval, it may require any existing approvals held by the applicant relating to the land subject to this consent to be surrendered or to let lapse.

6) All works subject to an approval shall be constructed, maintained and operated so as to ensure public safety and prevent possible damage to any public or private property.

7) All works involving soil or vegetation disturbances shall be undertaken with adequate measures to prevent soil erosion and the entry of sediments into any river, lake, waterbody, wetland or groundwater system.

8) The destruction of trees or native vegetation shall be restricted to the minimum necessary to complete the works.

10) A license fee calculated in accordance with the Water Act 1912 must be paid before a license can be granted.

11) Any license so issued, from the date of issue, will be subject to Annual Cost Recovery Water Management Charges as set by the Independent Pricing and Regulatory Tribunal.

12) The licence will be conditional on the installation of a monitoring bore in the same aquifer to that of the production bore. The monitoring bore shall be installed down gradient along the same geological lineament/trend line (as reported by Hydroilex, Hydrogeological investigation May 2009). The suggested location is approximately 100 to 150 metres to the north west of the production bore and not in any area of High Conservation Value or in land zoned 7(e).

13) Continuous water level monitoring is to be undertaken on both the production bore and monitoring bore for the life of the approval and/or the rural industry. Monitoring should be undertaken whether the production bore is in use or not. Results are to be interpreted by a suitably qualified person and reported to the Department and the Council for review on an annual basis commencing at the end of the first year of operation outlining the impact of pumping on the aquifer at a distance of 100-150 metres and on groundwater discharge areas.

14) Rainfall is to be monitored and a record of measurements kept.

15) Pumping shall be undertaken in accordance with the pumping regime provided as part of a licence approval and as approved in a development application.

16) Records of the pumping regime shall be kept including date, time for start of pumping, time for finish of pumping, pumping rate and volume pumped and a copy provided to Council on an annual basis.

The estimated safe yield of the aquifer and the groundwater resource.
Sustainable pumping capacity of the bore. Policy is to use the test rate extrapolated to 18 hours/day for 200 days/year. For example 1 L/second sustainable test rate equates to a safe annual extraction of 13ML.
Authorised water requirement.

18) Extraction of water under the approval to be issued shall be subject to conditions with regard to availability of supply and such restrictions as are deemed necessary by the Department from time to time to ensure an adequate flow remains for other water users and the environment (unregulated streams).

19) If and when required by the Department, suitable devices must be installed to accurately measure the quantity of water extracted or diverted by the works.

20) All water measuring equipment must be adequately maintained. It must be tested as and when required by the Department to ensure its accuracy.

21) If required by the Department the extraction and use of water must be recorded and reported as specified by the Department. For instance, the Department may require that annual return of information on hours pumped, monthly extraction rate.

22) The water extracted under the approval to be granted shall be used for the purpose of Commercial (Mineral Water Bottling) Purposes and for no other purpose. A proposed change in purpose will require a replacement license to be issued.

23) In order to protect the environment and the interests of other water users the approval may further specify how the water may be used.

24) The conditions of the approval may specify how water is to be distributed (for instance by the use of pipes) in order to prevent wastage or accessions to groundwater. The Department may alter the conditions of the approval at any time for these reasons.

Any adjoining public or crown land or roads;
Any other person’s land;
Any crown land;
Any river, creek or watercourse;
Any groundwater aquifer;
Any area of native vegetation;
Any wetlands.

Minimum Construction Requirements for Water Bores in Australia – Second Edition.
Water Act 1912 Mineral Water Extraction Licenses – Requirements for Part V license applications.

28) Works for construction of bores must be completed within such period as specified by the Department.

29) Officers of the Department or other authorised persons must be allowed full and free access to the works for the purpose of inspection and testing.

30) All works must be constructed and maintained to properly control the water extracted to prevent wastage or any reduction in quality of the sub-surface water. The Department may direct that any necessary repairs or alterations be undertaken to maintain the works in good working order.

31) If the bore ceases to be productively used, the Department must be notified and the aquifer must be sealed by a method acceptable to the Department.

a General

(1) The development shall be implemented generally in accordance with the details set out on plan/drawing No MITTA2-5669 (pages 1&2 of 2) and the floor plan prepared by BevTech Consulting dated 18/12/07 Rev 4, endorsed as 10.2007.379.1 and the following documents:

(a) Management Plan for Water Bottling Plant prepared by BevTech Consulting Pty Ltd dated 13 December 2007.
(b) Report on Aquifer Testing and Groundwater Assessment HG.07.11.8b.SH prepared by Hydroilex Pty Ltd dated November 2007 (as supplemented by Hydroilex letter dated 21 May 2009).
(c) Noise Impact Assessment prepared by Renzo Tonin & Associates dated 20 October 2009.
(d) Bush Fire Risk Assessment prepared by Fire Based Consulting dated 1 November 2007 (as amended by RFS letter 20 February 2008).
(e) Access Road Re-Alignment plans prepared by Landteam dated October 2010 (Dwgs 202241.00-05).

except as amended by the following conditions:

(2) The applicant will provide with the construction certificate drawings detailed driveway and access plans compliant with AS 2890 and the Planning for Bushfire Protection 2006 document for the entire length of the proposed access road.

(3) The applicant will provide with the construction certificate drawings a consolidated plan of access road realignment to incorporate the design details in the Peter Smith & Co 8183eng Plans E2; E3 and E6 with the Landteam plans dated October 2010.

(4) No development/work is to take place until a Construction Certificate has been issued for the development and the necessary conditions of development consent satisfied to enable release of a Construction Certificate.

(5) The development shall not be occupied until such time as all conditions of this Development Consent are met or unless other satisfactory arrangements are made with the Principal Certifying Authority.

(6) The authorised annual entitlement of the water bottling plant the subject of this consent shall not exceed 13 Megalitres.

(7) The water bottling facility and all aspects of its wastewater treatment and disposal system must be located outside the Shoalhaven hydrological catchment.

(8) The property owners shall be made aware that all Aboriginal relics in NSW are protected under Section 90 of the National Parks and Wildlife Act 1974, which makes it an offence to knowingly damage, disturb, deface or destroy an Aboriginal relic or site, without first obtaining the written consent of the Director-General of the National Parks and Wildlife Service. If such a site is discovered, the Southern Zone Archaeologist of the National Parks and Wildlife Service shall be contacted immediately.

(9) This approval is in respect of the plans submitted with the development application and as modified by the terms of this consent. If for any reason, including the making of alterations necessary to meet the requirements of another Authority, changes to the approved building design layout are proposed, then the approval of Council shall be obtained prior to commencement of any works on site.

(10) The developer shall not carry out any work other than emergency procedures to control dust or sediment-laden runoff outside the normal working hours, namely, 7.00am to 5.00pm, Monday to Friday and 8.00am to 1.00pm Saturday, without the prior written approval of the Principal Certifying Authority. Any request to vary these hours shall be submitted to the Principal Certifying Authority in writing detailing:-

a The variation in hours required.

b The reason for that variation.

c The type of work and machinery to be used.

(11) All adjustment to existing utility services made necessary by the development are to be undertaken by the developer at no cost to Council.

(12) A Section J report under the Building Code of Australia shall be submitted to the Principal Certifying Authority specifying compliance with Artificial Lighting and Power and Hot Water prior to release of the Construction Certificate.

(13) A full detail plan for disabled persons access, toilet facilities and car parking, at a scale of 1:50, shall be submitted to the Principal Certifying Authority prior to release of the Construction Certificate.

(14) Above ground water storage tanks shall be coloured in earthy, recessive tones to blend with the surrounding environment.

(15) Glass bottles only to be used for the bottling of water at the water bottling facility.

(16) All development associated with the water bottling facility is not to occur or encroach upon land mapped as being of high conservation value pursuant to KLEP 1996.

i. Prior to Commencement of Works

(17) Prior to commencement of any works on site, a security of $500.00 shall be paid to Council as a bond in order to cover the costs of any damage caused to infrastructure within the road reserve and compliance with the Waste Management Plan for the development during the course of construction. This bond shall be refunded in full subject to completion of the project and the following:-

No damage caused to the infrastructure within the road reserve;

The issue of an Occupation Certificate for the development; and

The submission and approval by Council of a Waste Compliance Certificate, inclusive of supporting documentation (dockets/receipts) verifying compliance with the Waste Management Plan as provided to Council.

(18) The developer must lodge with Council a bond of $6,000, in the form of an unconditional bank guarantee or cash, prior to the commencement of any work, as a security for new and remedial work associated with the development proposal and covering all work within the public roads administered by Council under the Roads Act 1993 and compliance with the submitted Waste Management Plan during the course of construction.

The developer shall submit a dilapidation survey prior to commencement of any work within the road reserve.

The bond shall be refunded in full subject to the following:-

There being no damage to the infrastructure within the road reserve.

Twelve (12) months has elapsed from the date of issue of the Occupation Certificate and/or Subdivision Certificate.

The submission and approval by Council of a Waste Compliance Certificate, inclusive of supporting documentation (dockets/receipts) verifying compliance with the Waste Management Plan as provided to Council.

(19) Under the provisions of the Act, work may not commence on the development until the following is carried out:

a Detailed plans and specifications of the building must be endorsed with a Construction Certificate by Council or an Accredited Certifier; and

b You must appoint a Principal Certifying Authority (can be either Council or an Accredited Certifier); and

c You must notify the Council of the appointment; and

d You must give at least two (2) days notice to Council of your intention to commence work.

(20) A separate application shall be submitted to Council for the septic tank installation prior to construction commencing.

(21) A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

a Showing the name, address and telephone number of the Principal Certifying Authority for the work;

b Showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours; and

c Stating that unauthorised entry to the work site is prohibited.

(22) No building work is to commence until details prepared by a practising structural engineer have been submitted to and accepted by the Principal Certifying Authority for any reinforced concrete slabs, footings or structural steel.

(23) Details of compliance with conditions of consent under the heading Bush Fire Hazard Management and AS3959 – Building in Bush Fire Prone Areas shall be provided to the Principal Certifying Authority prior to the release of the Construction Certificate.

b
c Civil Engineering Design

(24) All flexible pavements are to be designed in accordance with the AUSTROADS publication “A Guide to the Design of New Pavements for Light Traffic – APRG Report No.21”.

(25) The proposed pavement treatment must be identified and the design detail shall be submitted to the Certifying Authority for assessment prior to the release of the Construction Certificate.

(26) All concrete roads shall be designed and constructed in accordance with the principals of the Cement Concrete and Aggregates Australia Technical Notes. The completed technical notes shall be submitted with the Construction Certificate application.

(27) The developer shall comply with the civil engineering requirements set out in Kiama Development Control Plan 32 – Kiama Development Code in regard to the construction of the proposed access roadway and the treatment for the crossing over the existing roadside tabledrain.

(28) The applicant shall provide design swept paths for the turning head apron on detailed civil engineering drawings for the largest service vehicle to access the development. The modelling shall meet with the design requirements of the Roads and Traffic Authority publication “Guide to Traffic Generating Developments” the Standards Australia publication AS 2890 and the AUSTROADS “Design Vehicle and Turning Path Templates”.

(29) The developer shall submit details of all civil engineering works, on engineering drawings, to the Certifying Authority for approval prior to the issue of the Construction Certificate.

d Car Parking and Vehicular Access

(30) Car parking and manoeuvring shall comply with the requirements of the Standards Australia publication AS/NZS 2890.1 Parking Facilities Part 1: Off Street Carparking and the design requirements of Kiama Development Control Plan 32 - Kiama Development Code.

(31) The developer shall bear the cost of relocation of any service utilities required in the provision of vehicular access.

e Stormwater Management

(32) The developer shall provide a detailed stormwater drainage network in accordance with the requirements of the Kiama Development Control Plan 32 – Kiama Development Code and civil engineering drawings approved by the Certifying Authority.

The developer must design and construct all stormwater drainage infrastructure to reflect the needs and requirements of the Kiama Municipal Council Stormwater Management Plan.

f
g Site Facilities

(33) An appropriate temporary toilet facility shall be provided on site, located inside the property boundaries, prior to commencement of works. The temporary toilet shall be maintained in a clean/sanitary condition at all times.

(34) During construction the applicant shall provide, inside the property boundaries a suitable waste container for the disposal of all papers, plastics and other light weight materials.

(35) A sign must be erected in a prominent position on the premises on which the erection or demolition of a building is being carried out:

a Stating that unauthorised entry to the premises is prohibited; and

b Showing the name of the builder or other person in control of the worksite and a telephone number at which the builder or other person may be contacted outside working hours.

Any such sign is to be removed when the erection or demolition of the building has been completed.

h Erosion and Sedimentation Controls / Soil and Water Management

(36) Effective erosion and sedimentation controls are to be installed prior to any construction activity, including earthworks for the facility and site access. The controls must prevent sediment entering drainage depressions and watercourses and are to be regularly maintained and retained until works have been completed and groundcover established.

(37) All practical measures must be taken to ensure erosion and subsequent sediment movement off-site does not occur. In particular:

a A silt fence or equivalent must be provided downhill from the cut and fill area (or any other disturbed area). Such fence must be regularly inspected and cleaned out and/or repaired as is necessary, and all collected silt must be disposed of in accordance with Council's Sedimentation Control Policy.

b Unnecessary disturbance of the site (eg; excessive vehicular access) must not occur.

c All cuts and fills must be stabilised or revegetated as soon as possible after the completion of site earthworks.
d All the above requirements must be in place for the duration of the construction works.

(38) The developer shall submit to the Certifying Authority for approval prior to the issue of the Construction Certificate, a detailed soil and water management plan designed in accordance with the requirements of the Department of Natural Resources. All works on the site must be in accordance with the approved soil and water management plan for the full duration of construction works.

The soil and water management plan must provide an overall site detail as well as, where required, the development staging plan and must comply fully with the manual “ Department of Housing (2004) Managing Urban Stormwater – Soils and Construction ”.

(39) The developer shall ensure that sediment-laden runoff from the site is controlled at all times subsequent to commencement of construction works. Sediment control measures must be maintained at all times and checked for adequacy at the conclusion of each day's work.

(40) The developer shall control the emission of dust from the site and in this regard watering equipment shall be kept on the site and used for this purpose. The developer must ensure that the contractor is able to control emission of dust from the site on weekends when windy conditions prevail. (cec025.doc)

(41) The developer shall construct all tailout drains to the invert of the natural watercourse with grouted rock pitching unless otherwise approved by the Principal Certifying Authority. Specifications for the rock pitching are as follows:

Rock: 100 millimetres – 200 millimetres nominal size hard rock.
Grout: 100 millimetres thick concrete.

Rock projection: 75 millimetres above bed.

Rock coverage: 90% in plan view.

Inspections

(42) The building work shall be inspected at critical and other stages as required by the Principal Certifying Authority for the development.

k Building Construction

(43) All building work must be carried out in accordance with the requirements of the Building Code of Australia.

(44) The roadway, footpath or Council reserve shall not be used to store building material without the prior approval of Council.

(45) All excavations and backfilling must be executed safely in accordance with appropriate professional standards.

(46) All excavations must be properly guarded and protected to prevent them from being dangerous to life or property.

(47) No building work is to commence until details prepared by a practising structural engineer have been submitted to and accepted by the Principal Certifying Authority for the retaining walls in excess of 1.0 metre high.

(48) A survey shall be undertaken and a copy be made available to Council or an accredited certifier, certifying that the building is correctly located in relation to the boundaries of the site and in accordance with the approved plans. Such survey shall be submitted at peg out stage.

(49) Construction and demolition work, delivery of materials and plant, etc shall only take place between the following hours;

Monday to Friday - 7.00 am to 6.00 pm
Saturdays - 8.00 am to 1.00 pm
No construction work is to take place on Sundays or Public Holidays.

(50) The Waste Management Plan shall be strictly adhered to at all stages during the demolition, construction and/or subdivision work. All waste nominated for disposal must be disposed of at a licensed landfill facility. All waste nominated for recycling must be reused or recycled.

(51) The completed Waste Management Compliance Sheet (Appendix 1C) shall be submitted to Council prior to release of the Occupation Certificate and release of any bond or security deposit paid in relation to this application.

Supporting documentation (dockets/receipts) verifying recycling and disposal shall be attached to the Compliance Sheet.

l

Health

(52) The development is to comply with the following:-

Design, construction and fit-out of food premises AS4674-2004

Food Act 2003

Food Regulations 2004

The Food Standards Australia New Zealand (FSANZ) sets the minimum standards for all types of bottled water. These regulations are set out in the Food Standards Code. The primary Standard is 2.6.2 "Non-alcoholic Beverages & Brewed Soft Drinks". Bottlers must also comply with all the other requirements of the Code including "Labelling and Other Information Requirements" (Standard 1.2), Contaminants and Residues (Standard 1.4), Microbiological and Processing Requirements (Standard 1.6) and the Food Safety regulations (Standard 3.1)

The Protection of the Environment Operation Act 1997.

m Bushfire Hazard Management

(53) Asset Protection Zone:

a At the commencement of building works and in perpetuity the property around the building to a distance of 50 metres shall be maintained as an inner protection area (IPA) as outlined within Planning for Bush Fire Protection 2006 and the Service’s document ‘Standards for asset protection zones” . b The Inner Protection Area shall comprise of the following:

i Minimal fine fuel at ground level;

ii Vegetation that does not provide a continuous path to building/s for the transfer of fire;

iii Shrubs and trees that do not form a continuous canopy and vegetation is planted/cleared into clumps rather than continuous rows;

iv Species that retain dead material or deposit excessive quantities of ground fuel are avoided;

v Shrubs and trees are pruned or removed so they do not touch or overhang the building/s; and
vi Vegetation is located far enough away from the building/s so that plants will not ignite the building/s by direct flame contact or radiant heat emission.

(54) Water and Utilities:

a Water, electricity and gas are to comply with Sections 4.1.3 and 4.2.7 of Planning for Bush Fire Protection 2006 .
b Any new overhead electrical transmission lines are to be installed, unless crossing gullies, gorges or riparian areas; and no part of a tree is to be closer to a power line than the distance set out in accordance with the specifications in ‘Vegetation Safety Clearances’ issued by Energy Australia (NS179, April 2002).
c Reticulated or bottled gas is to be installed and maintained in accordance with Australian Standard AS/NZS 1596:2002 ‘The storage and handling of LP gas’ and the requirements of relevant authorities. Gas cylinders kept close to the building shall have release valves directed away from the building and be located at least 2 metres away from any combustible material. Connections to and from gas cylinders are to be metal. d In recognition that no reticulated water supply exists, a 20,000 litre dedicated water supply or tank, (non flammable or shielded from the threat), shall be provided. This supply should be located more than 10 metres from the building within the IPA and adjacent to the building access driveway. Any tank shall be coloured in earthy, recessive tones to blend with the surrounding environment. e A suitable connection for fire fighting purposes shall be made available and located within the inner protection area (IPA) and away from the structure. f The gate or ball valve, pipes and tank penetration shall be adequate for full 50mm inner diameter water flow through the Storz fitting and are metal rather than plastic. A Rural Fire Service standard 65mm metal Storz outlet shall be provided with a gate or ball valve.

Alternatively, provide a metal Pillar hydrant with metal 65mm Storz fitting and metal lever action ball valve installed and plumbed from the tank/supply to a location adjacent to the plant building access driveway).

(55) Internal roads shall comply with following requirements of Section 4.2.7 of Planning for Bush Fire Protection 2006:

a A minimum carriageway width of 4 metres for rural-residential areas, rural landholdings or urban areas with a distance of greater than 70 metres from the nearest hydrant point to the most external part of a proposed building (or footprint). b The internal road surfaces and bridges shall have a capacity to carry fully-loaded fire fighting vehicles (15 tonnes). Roads shall be clearly signposted to indicate load ratings.

(56) An Emergency/Evacuation Plan is to be prepared consistent with the NSW Rural Fire Service Guidelines for the Preparation of Emergency/Evacuation Plan and detailing the following:

a Under what circumstances will the complex be evacuated;

b Where will all persons will be evacuated to;

c Roles and responsibilities of persons co-ordinating the evacuation;

d Roles and responsibilities of person remaining with the complex after evacuation; and

(57) New construction is to comply with Appendix 3 – Site Bush Fire Attack Assessment of Planning for Bush Fire Protection 2006. In this regard the following design standards for construction are to be incorporated into the development:

a New construction shall comply with Australian Standard AS3959- 2009 and align with Bushfire Attack Level BAL 12.5 as referenced under that standard.
b Roofing shall be gutter less or have leafless guttering and valleys to prevent the build up of flammable material. Any materials used shall have a Flammability Index no greater than 5. c All building glazing shall be capable of withstanding up to 12.5kW/m ² of radiant heat flux loading. d The construction certificate drawings shall make provision for an external pedestrian door on the Western (up hill) end of the plant to provide safe evacuation entry/exit. e Roller doors, tilt-a-doors and the like shall be sealed to prevent the entry of embers into the building. f All structure vents and weepholes shall be screened with non-corrosive resistant steel with an aperture not greater than 1.8mm. Where fixed or rotary roof venting is proposed for installation, they also shall be similarly screened.

(58) Landscaping to the site is to comply with the principles of Appendix 5 of Planning for Bush Fire Protection 2006. In this regard the following landscaping principles are to be incorporated into the development:

a Suitable impervious areas being provided immediately surrounding the building. b Grassed areas/mowed lawns/or ground cover plantings being provided in close proximity to the building. c Restrict planting in the immediate vicinity of the building which may over time and if not properly maintained come in contact with the building.

(59) This approval is based on the Bushfire Risk Assessment report prepared by Fire Base Consulting and dated November 1, 2007. All report recommendations (other than those modified by the above conditions) shall be complied with.

n Prior to Occupation

(60) The whole or part of the building must not be occupied unless an Occupation Certificate has been issued in relation to the building or part in accordance with Clause 109M of the Environmental Planning and Assessment Act 1979. NOTE: A Fire Safety Certificate must be provided in accordance with the Environmental Planning and Assessment Regulations 2000 prior to the issue of an Occupation Certificate excepting Class 1(a), 10(a) & 10(b) structures.

(61) The developer shall complete all civil engineering works prior to the issue of the Occupation Certificate.

o Prior to Operation

(62) Prior to operation a Licence from the Food Authority must be obtained and a copy of such supplied to Council.

(63) Prior to operation the proprietor must contact Council’s Environmental Health Officer to arrange a satisfactory final inspection.

Site Operations

(64) The hours of operation of the water bottling facility shall generally be restricted to between 8.00am and 6.00pm, Monday to Friday, inclusive.

(65) The site/premises shall not be used for the retail sale of goods, materials or products.

(66) The development shall not interfere with the amenity of the neighbourhood by reason of noise, dust, fumes, odour, waste products or otherwise.

(67) Noise emissions from the development must comply with those outlined in the Protection of the Environment Operations Act 1997 & Regulations and not be greater than 5dB above background.

Actions

Download as PDF Download as Word Document

Citations

Kluve v Kiama Municipal Council [2010] NSWLEC 1291

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

3

CITATION:	Kluve v Kiama Municipal Council [2010] NSWLEC 1291
PARTIES:	APPLICANT Ms R Kluve RESPONDENT Kiama Municipal Council
FILE NUMBER(S):	10480 of 2010
CORAM:	Fakes C
KEY ISSUES:	CONSENT ORDERS :- mineral water bottling plant; water level monitoring requirements
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Kiama Local Environmental Plan 1996 Drinking Water Catchments Regional Environmental Plan
DATES OF HEARING:	26/10/10
DATE OF JUDGMENT:	28 October 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti SC [barrister] SOLICITORS Bartier Perry RESPONDENT Mr G Gleeson [solicitor] SOLICITORS RMB Lawyers