Peare v Hawkesbury City Council
[2001] NSWLEC 180
•09/04/2001
Land and Environment Court
of New South Wales
CITATION: Peare v Hawkesbury City Council [2001] NSWLEC 180 PARTIES: APPLICANT
RESPONDENT
Peare
Hawkesbury City CouncilFILE NUMBER(S): 11118 of 2000 CORAM: Cowdroy J KEY ISSUES: Development Application :- development application for the use of land as proposed tyre landfill LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97(1)
Land and Environment Court Act 1979 s 17(d)CASES CITED: Schaffer Corporation v Hawkesbury City Council [1992] 77 LGRA 21 DATES OF HEARING: 12/6/01, 13/6/01, 14/6/01, 15/6/01, 18/6/01 DATE OF JUDGMENT:
09/04/2001LEGAL REPRESENTATIVES:
APPLICANT
Mr C McEwen (Barrister)SOLICITORS
Robilliard & RobilliardRESPONDENT
SOLICITORS
Mr J Cole (Solicitor)
Abbott Tout
JUDGMENT:
22
| In the Land and Environment Court of New South Wales | Heard by: Cowdroy J with Commissioner Bly Decision date: 4 September 2001 |
N E Peare Pty Limited
Hawkesbury City Council
Judgment
1 This appeal has been heard with Commissioner Bly who has assisted in the preparation of the judgment. The appeal relates to a development application made to the Hawkesbury City Council (“the council”) for a waste management facility involving a landfill for the burial of tyres and the subsequent reclamation of agricultural land (“the proposal”). The proposal relates to land being Part Portion 45 of lot 1 DP 123962 in Level Crossing Road, Vineyard (“the site”). Access to the site is across lot 2 DP 123962. The site and surrounding lands are flood prone and are mainly used for farming purposes. In accordance with a development consent issued in 1995 part of the land has already been used for tyre landfill and the proposal will enable a similar activity.
2 The proposal involves the burial of tyres which have had the side walls removed and the recyclable rubber buffed off. The burial will occur in cells which are to be progressively excavated over 4.31 ha. Up to 16 tonnes of tyres will be stored awaiting burial with an average of 8 tonnes being buried each day. Tyres would be delivered to the site by truck and an estimated average of one delivery per day is anticipated.
3 The method of disposal requires the use of excavated cells which are to be trenches 5 m deep, 6 m wide at the top and 3 m wide at the bottom with a 2 m gap between each trench. After filling the trenches with tyres they are covered with 2 m of excavated fill and topsoil resulting in a finished level approximately 1 m above the existing levels. The land may thereafter be used for agricultural purposes.
4 Suggested benefits include reduced salinity resulting from better subsurface drainage and reduced flood liability by enabling surface waters to dissipate more rapidly.
4 The activity is likely to extend over a period of some 15 years, disposing of up to 19,000 tonnes of tyres.
5 The proposal is designated development pursuant to Part 1 of Schedule 3 of the Environmental Planning & Assessment Regulation 2000 (“the 2000 Regulation”), being classified as ‘waste management facilities or works’. The application was accompanied by an environmental impact statement (“the EIS”) as required for designated development by s 78A(8) of the Environmental Planning & Assessment Act 1979 (“the EP&A Act”).
6 The site is zoned Rural 1(b) under the Hawkesbury Local Environmental Plan 1989 (“the LEP”). In this zone, landfill is permissible with consent in accordance with the land use matrix in cl 9 of the LEP.
7 Clause 9 of the LEP provides that:-
- Before granting consent to development within a zone the Council must be of the opinion that carrying out the development is consistent with the relevant objectives of the zone in which the development is proposed to be carried out.
8 The objectives of the 1(b) zone are set out in cl 9A of the LEP as follows:-
It was not suggested that objectives (b) or (c) are relevant.
10 Relevantly, cl 40B of the LEP provides that:-
- 40B (1) A person must not use land to which this plan applies for burying used motor vehicle tyres.
- (2) This clause does not prohibit a person from burying the remains of a motor vehicle tyre which has been shredded or otherwise treated in a manner satisfactory to the Council.
11 Also applicable is Sydney Regional Environmental Plan No. 20 – Hawkesbury Nepean River (“SREP 20”) which appears to include part of the landfill site in the South Creek Catchment Area. The map attached to SREP 20 is of such a small scale that the definition of the catchment boundaries cannot be determined with certainty. However for the purpose of this application the Court accepts that at least part of the site would be included within the South Creek Catchment Area.
12 Clause 3 of SREP 20 aims to protect the environment of the Hawkesbury-Nepean River System by ensuring that the impacts of future land uses are considered in a regional context.
13 Clause 5 of SREP 20 contains the following general planning considerations:-
14 Clause 6 of SREP 20 contains a number of specific planning policies and recommended strategies which deal inter alia with environmentally sensitive areas; water quality; agriculture/aquaculture and fishing; recreation; and tourism.
15 The dictionary in SREP 20 defines environmentally sensitive areas as:-
- environmentally sensitive areas are areas where environmental characteristics mean that the potential impacts of landuse are greater than elsewhere in the catchment. Environmentally sensitive areas identified by the Hawkesbury-Nepean Environmental Strategy in the Hawkesbury-Nepean catchment are: the river; riparian land; escarpments and other scenic areas; conservation area sub-catchments; national parks and nature reserves; wetlands, other significant floral and faunal habitats and corridors; acid sulphate soils and potential acid sulphate soils.
16 The recommended strategies for environmentally sensitive areas as identified by cl 6(2) of the SREP 20 are:-
- Strategies:
(a) Rehabilitate parts of the riverine corridor from which sand, gravel or soil are extracted so that attached aquatic plant beds are replaced and water quality and fauna habitats improved.
(b) Minimise adverse impacts on water quality, aquatic habitats, riverine vegetation and bank stability.
(c) Minimise direct and indirect adverse impacts on land reserved or dedicated under the National Parks and Wildlife Act 1974 or the Forestry Act 1916 and conservation area sub-catchments in order to protect water quality and biodiversity.
(d) Protect wetlands (including upland wetlands) from future development and from the impacts of land use within their catchments.
(e) Consider the need to include buffer zones (such as adequate fire radiation zones) for proposals on land adjacent to land reserved or dedicated under the National Parks and Wildlife Act 1974 or the Forestry Act 1916.
(f) Consider the views of the Director-General of National Parks and Wildlife about proposals for land adjacent to land reserved or dedicated under the National Parks and Wildlife Act 1974.
(g) Consideration should be given to the impact of the development concerned on the water table and the formation of acid sulphate soils.
(h) New development in conservation area sub-catchments should be located in areas that are already cleared.
17 Clause 11(18) of SREP 20 provides that waste management facilities or works require development consent and that consultation with the Hawkesbury-Nepean Catchment Management Trust (“the Trust”) is required in accordance with cl 9 of SREP 20. Such consultation has been carried out by the council. Clause 11(18) of SREP 20 identifies the following additional matters for consideration by a council authority:-
(a) Any potential for groundwater contamination.
(b) The adequacy of the proposed leachate management system and surface water controls.
(c) The long-term stability of the final landform and the adequacy of the site management plan.
(d) If extraction of material is involved in the creation or other development of the waste management site, whether the extractive operation will have an adverse impact on the river system.
18 Also applicable to the site is Hawkesbury Development Control Plan No. 4 – Landfill (“DCP 4”).
19 Clause 1.8 and appendix 1 of DCP 4 defines tyre landfill as:-
- the placement or layering of shredded rubber, nylon and similar motor vehicle tyres in excavated trenches with the excavated material being placed above trenches. The trenches are in turn backfilled with finished clean fill.
20 In cl 3.1.9 of DCP 4, the term ‘shredded’ means:-
- a motor vehicle tyre dissected into a minimum of three (3) parts.
20 DCP 4 also sets out the required information which should accompany an application to the consent authority for landfill.
21 A number of Performance Criteria are contained in cl 3.1.9 of DCP 4 which apply to shredded tyre landfill:-
22 Clause 1.3.8 of DCP 4 refers to cl 40B of the LEP and states inter alia:-
- The filling of land by the placement of shredded tyres shall generally be restricted to lands above the 1 in 100 year flood frequency level. However, in cases where flood liable lands are only subject to very low velocity back-up water flooding and where satisfactory provision has been made for shredded tyre retention measures, such filling will be considered by Council.
Public Notification and Consultations
23 The application including the EIS was placed on public exhibition but no submissions were received by the council.
24 There were however, in response to consultations a number of submissions from various government authorities including:-
· Hawkesbury Nepean Catchment Management Trust
· Sydney Regional Development Advisory Committee
· Department of Land and Water Conservation
· NSW Agriculture
· NSW National Parks and Wildlife Service
· Integral Energy
· NSW Fisheries
· NSW Rail Estate
· Department of Urban Affairs & Planning
The Evidence
25 On behalf of the respondent council, expert evidence was given by:-
· Mr G Falsen - town planner
· Mr H Fiander - engineer
26 On behalf of the applicant, expert evidence was given by:-
· Mr S Smith - engineer
· Mr W Peare - farmer and owner of the subject land
The Issues
27 There are essentially two issues to be decided by the Court in this matter:-
1. Whether the application and the EIS provide sufficient information and an adequate analysis of the proposal and the site to enable the application to be considered.
2. Whether in the context of the various statutory requirements the site is suitable especially in relation to:-
· Farmland
· Scenic qualities
· Flooding
· Archaeology
· Flora and fauna
· Groundwater
· Transport and access
28 Other general matters include:-
· EPA Licence
· Electricity easement
· The Trust’s opposition
· Cumulative impacts
· Alternate sites
The EIS
28 Clause 54A of the Environmental Planning & Assessment Regulation 1994 (“the 1994 Regulation”) requires that an EIS must include the matters referred to in any relevant EIS Guideline prepared by the Department of Urban Affairs and Planning (“DUAP”). It was argued that the EIS Guideline for Landfilling (“Guideline for Landfilling”) is relevant to the proposal pursuant to the 1994 Regulation. However by its own terms this Guideline does not deal with the inert non-degradable waste which is to be buried on this site. The Court accepts the submission that the Guideline for Landfilling does not have statutory effect although it needs to be taken into consideration in the assessment of the proposal.
29 Clause 55 of the 1994 Regulation requires that an EIS must have regard to the Director-General of DUAP’s requirements. These requirements were included in the EIS as an annexure. They include references to:-
· SREP 19
· SREP 20
· Flooding
· Scenic quality
· Land use conflicts
· Site works
· Threatened species
· DUAP’s EIS Guideline for Landfilling
30 The EIS was the subject of much criticism by council. Such criticisms include:-
· Grammatical and syntax errors and a repetitious nature made it difficult to comprehend;
· It contains many unsupported statements and factual errors and lacks objectivity;
· It lacks proper scientific assessment;
· It fails to meet the landfill guidelines and the requirements of the Director-General of DUAP;
· Maps and plans are incomplete or unsatisfactory in terms of site features and details of the proposal; and
· There is an absence of analysis of alternative sites and cumulative impacts.
31 Conversely, Mr Smith believed that all of these matters had been sufficiently dealt with in the EIS especially in relation to the Guidelines for Landfilling; the LEP; SREP 20; and DCP 4.
32 Mr McEwen accepted that the EIS contains errors and omissions but contended that this does not make it invalid. In Schaffer Corporation v Hawkesbury City Council [1992] 77 LGRA 21 at 31 Pearlman J decided that an EIS is not required to be perfect and need not cover every topic or explore every avenue.
34 In relation to the question of the adequacy of the EIS the Court finds that the public would gain an understanding of the proposal, the impacts thereof and the measures proposed that would mitigate such impacts. While the criticisms of council relating to the adequacy of the EIS are justified they are not sufficient to render the EIS invalid.
Suitability of the site
Farmland
36 The EIS notes that the land has in the past been extensively cleared and utilized for cattle grazing for many years. The soils in the area are extremely poor in terms of nutrients, organic material and the soil has a low pH.
37 Mr Peare has been farming this property for many years and has previously completed a tyre landfill (“the old site”) located a short distance away from the site. Mr Peare gave evidence that the old site was highly saline before being filled and regraded. Such land is now more productive and the pH level is greatly reduced.
38 Another benefit resulting from the burial of tyres at the old site is that the site dries out more rapidly following floods. The presence of buried tyres has thus assisted in draining the site of floodwater.
39 Mr Falson said it was difficult to contemplate how such a relatively small landfill would have any meaningful impact on the ability of the land to be farmed. He observed that the site will continue to be flood prone and will provide no flood refuge for animals.
40 I prefer the evidence provided on behalf of the applicant and am satisfied that the proposal is not antipathetic to objective (a) of the 1(b) zone in the context of cl 9A of the LEP. That is, the proposed use is consistent with the agricultural use of the land. The likelihood that the landfill activity will continue for some 15 years does not alter this conclusion.
Scenic Qualities
42 As indicated earlier the landfill site is partly within the south Creek Catchment Area for the purposes of the Hawkesbury-Nepean Scenic Quality Study (“the study”). Its landscape character is of local significance and described as:-
- Flat to gently undulating plain, relatively featureless, with the same riparian vegetation throughout. Water channels are small and winding, with intimate scenes. Park-like fields, essentially pastoral, with recent hobby farms and industrial sites, plus small semi-urban settlements and power transmission lines. The creek is regarded as something at the bottom of the back paddock, a source of irrigation water, and a rubbish sluice.
43 The site comprises a relatively featureless landscape (apart from the numerous electricity transmission lines). On the assumption that this site is in a riverine corridor, cl 6 and cl 7 of SREP 20 seek to ensure that the proposed development is consistent with the landscape character as described in the study.
45 The EIS deals in part with visual impacts as follows:-
Users of the street outside the development have no vista of the proposed site. The residents in the adjoining houses are all located on rural land and can see other rural activities in the area. There is no view of the proposed site from the adjacent developments. The visual sensitivity of this group is low to rural activities involving the type of mechanical equipment proposed to be utilized.
The nature of the proposal is in [sic] visually in keeping with rural land activities.The foreshore land along South and Eastern Creeks has a high visual sensitivity, however, it is private land and not available to passive recreation uses. The proposed site is visible from the paddocks of the adjoining properties, the users of these paddocks have a low visual sensitivity to rural activities involving the type of mechanical equipment proposed.
46 Mr Falson was of the opinion that the proposal was not consistent with the aim of the study, particularly in relation to restoration. He was also concerned that the landfill site was visible from neighbouring houses and land.
48 Mr Smith did not believe that the proposal would be visible from neighbouring properties. Objective (f) of cl 3 of DCP 4 provides:-
- (f) Maintain and enhance the visual and scenic quality of locality by controlling form, bulk and scale to complement the environment and have environmental impact.
49 In this context Mr Smith explained that:-
- The proposal is to have a small section of the fill site in operation at any one time and in keeping with minor earthworks compatible with an operating farm.
50 I have considered this issue whilst visiting the site and prefer the evidence of Mr Smith to Mr Falcon, mainly because of the relatively small scale of the operation; the distance of separation between it and nearby houses; and the likelihood that it will not be seen from public places. The site will revert to agricultural use once the landfilling has been completed.
53 The Court finds that the site, being located at least in part within a catchment area has scenic importance and can thus be classified as an ‘Environmentally Sensitive Area’ pursuant to SREP 20. The Court has considered the strategies in cl 6(2) of SREP 20 and finds that they are not infringed by the proposal to the extent that they are applicable.
51 The Court accepts that the objectives of DCP 4 and SREP 20 are not infringed. The Court also accepts for the purposes of cl 9A of the LEP that the proposal is not antipathetic to objectives of (d) of the 1(b) zone which seek to maintain rural character and minimize disturbance to the landscape.
53 The EIS notes that the site is flood prone, being at a level which is subject to the 1 in 100 year flood event. According to Mr Peare, such events occur when the riverbank level is overtopped. There is usually at least 12 to 24 hours warning before this happens and flood waters move slowly across this land. The EIS states that:-
- The proposal will have no effect on flooding of adjacent, upstream land as the total land raising is to be at or lower than the levee bank located along the north western boundary of the property. In addition the property is not located in the main floodway.
54 The EIS makes the following observation in relation to impending floods:-
- Upon noting rising flood water or receiving advance warning all uncovered tyres are either removed or immediately buried. All equipment and tyres to be removed are to be transported to higher ground until the flood water recedes.
55 During times when the site is inundated with floodwaters the EIS says:-
The proposal is to be operated in such a fashion that only three trenches will be open at any one time. In addition completed areas will be grass seeded immediately upon filling and compaction. These procedures will reduce the impact of sedimentation during flooding. It should also be noted that the area is noted for its low velocity flood profile.The proposal has no affect on the down stream waterway or the land in that area. The land raising will be below or at the level of the adjacent levee bank. This levee bank is located at the north eastern boundary of the property and was constructed by Council.
56 In relation to the potential for tyres to float to the surface the EIS makes reference to an analysis carried out by Coffey and Partners, a firm of consulting engineers. This analysis demonstrated that uncut tyres would not resurface with a soil loading of 0.95 m. The proposal will have a soil cover of 2 m and the tyres are to be cut in such manner that there are likely to be few air pockets.
57 Mr Smith explained that the landfill site is not in a floodway and that the proposed finished level will be below the top of the levee. Mr Smith also explained that in the context of the Eastern Creek Flood Plain management plan the proposal would not significantly alter the flood storage capacity of the flood plain.
59 In relation to tyre landfill DCP 4 provides that:-
The shredded tyre retention measures are required to minimise the long term upward movement of tyre particles, and the possible floating problems of these particles into watercourses during periods of flooding.The filling of land by the placement of shredded tyres shall generally be restricted to land above the 1 in 100 year flood frequency level. However, in cases where flood liable lands are only subject to very low velocity back-up water flooding, and where satisfactory provision has been made for shredded tyre retention measures, such filling will be considered by Council.
60 Mr Fiander was concerned that water movement across the site would most likely cause erosion although there is no suggestion that the soils on this site are especially vulnerable in this regard. Mr Fiander was concerned that once notice of an impending flood is received there may not be enough time to secure the site.
59 Mr Peare explained that he has managed the old tyre landfill site during times when the site was inundated with flood waters and had no difficulty in filling the cells prior to the arrival of these flood waters.
63 In relation to flooding, I accept the evidence of the applicant. I am satisfied that the proposal meets the requirement of DCP 4 in that it is in an area of low velocity flooding and the tyres to be buried are to have 2 m of soil cover thus eliminating floating problems. I also accept the evidence of Mr Peare that the cells can be backfilled and tyres either removed or buried and that matters of soil erosion has not been a problem in the past because of the low velocity of water movement across the site.
64 The proposal is of such a relatively small scale that any impact on flood storage capacity is likely to be inconsequential. The site is not in the main floodway.
65 The EIS notes that for the last 35 years the same family has farmed this land. It has been repeatedly ploughed and sown with crops. Drains and a dam have been constructed.
66 According to the owner, no artefacts of religious aboriginal or heritage significance have been discovered.
67 There is no reference to this site in council’s Development Control Plan 1989 as an area or site of archaeological significance.
68 In 1992 the National Parks and Wildlife Service (“NPWS”) advised that indigenous people inhabited the area prior to white settlement but this was limited to an area within 50 m of South Creek which excludes the subject site.
69 Despite these matters, Mr Falson said:-
- Whilst the applicant has indicated that there is no likelihood of archaeological significance due to past farming activities, the landfill will excavate deeper than these past farming practices and artefacts may be situated due to past aboriginal use of the land and that these artefacts may be covered by flood deposition over a long period of time and disturbed by the proposed works. The applicant has undertaken no professional assessment of aboriginal habitation of the site and its surrounds.
70 In response, Mr Smith repeated the matters referred to in the EIS. He also referred to advice from the NPWS that an assessment need only be carried out if the proposal involves disturbance to substantially undisturbed ground surfaces. Mr Smith said that because the site has been substantially modified, further investigation is not required.
71 I accept that there are no sufficient indications of artefacts and should any artefact of archaeological significance be discovered the operator has a statutory obligation to protect such a discovery and notify the NPWS.
72 Mr Falson was of the opinion that the site had the potential for containing flora and fauna species which require investigation. He also noted that there is a wetland within the site area and remnant vegetation along the common boundary with the adjoining site.
73 In relation to flora the EIS comments that:-
The original vegetation along South Creek was of the eucalypt genus, however, since much of the land has been cleared re-growth is generally of the non-native grasses, with some patches of original eucalypts.The area is heavily developed in terms of rural activities; these are scattered native trees to be found specifically at the edge of the proposed site. No trees are within the three (3) sites chosen as possible fill areas. No trees are proposed to be removed as part of the proposal.
74 In relation to fauna the EIS comments that:-
Cattle are currently grazing on the proposed fill site.No detailed examination has been undertaken with regard to fauna as the existing development of the site is totally denuded of natural habitat, with the exception of native birds and rabbits. The disposal site is devoid of Koala sustaining native trees.
75 Mr Smith noted that:-
- The proposal has no effect of any threatened species. There are no “Critical Habitats” in or on the proposed site. The site has been tilled and sown with non-native crops for 130 years. The site has also been used for cattle grazing in that period. The site is highly unlikely to support threatened native flora or fauna.
76 In general he commented:-
- The existing Flora and Fauna of the site and the surrounding environment will not be affected by the proposed development. The area is heavily degraded as a fauna habitat. Native flora has been substantially removed and replaced with non-native grass species. The existing native trees will not be disturbed. This situation will not change.
77 The site of the proposed landfill has been farmed for a long time and the site inspection confirmed that it is presently used for grazing of cattle and is devoid of any significant native vegetation. The alleged wetland is simply a farm dam. Whilst it may attract some fauna, its removal is not a matter of determinative concern. Accordingly in relation to flora and fauna I accept the evidence of the applicant.
78 Clause 11(18)(a) of SREP 20 requires that any potential for groundwater contamination be taken into consideration.
79 Mr Falson believed the site to be sensitive because there is groundwater about 500 mm below the bottom level of the cells. Indeed he believed that some cells may actually intrude into the water table. Mr Fiander said there was a high variability of the water table.
80 In this regard the EIS states that:-
- The potential for groundwater contamination by disposal of tyres has been assessed by Coffey & Partners International in May 1995. They surmised that cut or shredded tyres produced the most potential to cause zinc, cadmium and copper problems, whereas whole tyres remained inert to US EPA leachate tests. The removal of the side walls and buffing the treads to remove recyclable rubber will not expose the leachable components. Monitoring of the wells upstream and downstream of the existing fill area (located nominally 500 m to the east) indicate that the fill has not produced any groundwater contamination.
81 Mr Fiander nevertheless had a number of concerns despite the fact that tyre waste is classified as ‘inert non-liquid waste’ and is not expected to present any problems relating to leachate of heavy metals and other substances.
82 Mr Fiander was also not satisfied that the test wells associated with the completed tyre landfill were appropriately located or had been in place for a sufficiently long time to produce meaningful test results. He also contended that a study and analysis of groundwater in the area was required.
83 Mr Smith advised that tests on the acidity in the soils, taken in June 2000 indicate that the soils have no risk of acid sulphate conditions. The monitoring of the groundwater bores in the vicinity of the completed tyre-landfill indicate a satisfactory performance. Soil salinity levels have been reduced.
85 Tyre waste as proposed is inert, non-hazardous and non-degradable and I accept that the burial as proposed will not adversely affect the quality of the groundwater or water table.
Transport and access
86 Pursuant to the LEP objective (c) of the 1(b) zone seeks to prevent the establishment of traffic generating development along main or arterial roads. Mr Fiander was concerned that the proposal will increase traffic on Windsor Road and that works will be required on Level Crossing Road to accommodate the heavy traffic generated.
87 Mr Smith was of the opinion the number of vehicle trips generated by this proposal would be minimal, involving an average of one return truck movement per day. Truck deliveries would normally be outside peak traffic times. He noted that existing roads in the area clearly have the capacity to handle these numbers of vehicles which are the same as those associated with the previous tyre landfill development.
88 The number of vehicle movements is clearly very small and the impact on existing roads as a consequence will be minimal and not critical to the application. Parts of Level Crossing Road are not presently in good condition but given the small numbers of vehicle movements this factor would not warrant rejection of the application.
Other General Matters
89 It was agreed between the parties that a licence under s 48 of the EP&A Act will be required from the Environment Protection Authority (“EPA”) and its issue would be a pre-requisite to the implementation of the proposal. In its letter dated 19 June 2000 the EPA expressed concern as to the location of the site in a flood prone area despite having licensed the previous tyre landfill on nearby land which is also flood prone.
91 The applicant has agreed to a deferred commencement condition such that the consent will not become effective until the licence has been granted. It is a matter for the EPA to make an independent determination of the application and whether it should issue a licence.
94 As to the electricity easement which crosses the land, Integral Energy advised that it has concerns about the use of the easement for construction or operational works, particularly in relation to vehicle use, storage, access and ground levels. A similar condition requires the consent of the Department of Land and Water Conservation in relation to the filling of the (man-made) watercourse on the site.
93 To meet these objections a condition of consent can ensure that all works and activities are kept clear of the easement. Accordingly this is not a reason to reject the application.
94 The Trust objected to the proposal. However each of the Trust's concerns including tyre flotation, sediment escape, and metal leachate have all been addressed by the applicant. Given that this form of landfill is specifically permitted with consent in the LEP an objection in principle would not, by itself, constitute sufficient reason to refuse the application.
95 One general concern raised in relation to the adequacy of the EIS involved the matter of the cumulative impact of two consecutive tyre landfills in close proximity to one another.
96 There was no evidence that the existing tyre landfill has had, or is likely to have, any serious adverse impact on the environment. The Court accepts that the proposal will similarly not result in any demonstrable adverse environmental impact.
97 Finally, it is noted that other possibilities for waste tyre disposal were referred to but not considered in detail. Having found no reasons to reject the proposal for the subject site, the failure to examine other alternatives is not a matter which would be sufficient to warrant rejection of the proposal.
Conclusion
97 For the above reasons, the Court is satisfied that the proposal is appropriate if carried out subject to conditions of consent.
Conditions
98 The conditions to be attached to the consent are all of those sought by council plus the additional conditions as offered by the applicant in Exhibit T.
Orders
99 The orders of the Court are:-
1. The appeal be upheld.
2. The development application for a tyre landfill on land in Level Crossing Road, Vineyard, being Part Portion 45, Lot 1 DP 123962 is approved subject to the conditions in Annexure A hereto.
3. The exhibits be returned.
I HEREBY CERTIFY THAT THE PRECEEDING 93 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE DENNIS A COWDROY OAM
Conditions of Development Consent
Annexure A
N E Peare Pty Limited v Hawkesbury City Council
A. A. Deferred Commencement Consent
This consent does not operate until such time that the applicant furnishes the Council with evidence that it has not obtained the following:-
i) a licence from the EPA to operate a waste disposal facility in accordance with this application.
ii) a copy of a permit from the Department of Land and Water Conservation pursuant to the Rivers and Foreshores Improvement Act 1948 granting permission to infill the south western water course within the landfill site.
1. To confirm and clarify the terms of this approval, the development shall take place in accordance with the plans and supportive documentation submitted with the application, except where modified by the following conditions.
C. Prior to Works Commencing
The following conditions in this section of the consent must be complied with or addressed prior to the works commencing
1. The payment of a bond or bank guarantee of $50,000 (fifty thousand) for rehabilitation and restoration of the landfill operation. Should the plan of rehabilitation not be carried out in accordance with the plan, this money will be used for such work. The performance bond for rehabilitation of the site will be reviewed annually. The review will take into consideration the performance of the landfill and movement in the Consumer Price Index. The balance of any shortfall is to be paid upon request from Hawkesbury City Council
2. A landfill environmental management plan (LEMP) shall be submitted for approval of Council prior to any works commencing. The LEMP is to be in the prescribed format as shown in "EIS Guidelines - Landfilling", Department of Urban Affairs and Planning. The LEMP shall detail how the environmental impacts and predictions identified in the EIS are to be managed and monitored. This shall include, but not necessary limited to, those matters addressed in the EIS which relate to:
- a. the location of the proposed trenches/cells;
b. erosion and sedimentation controls including bunding, diversion drains, dust control measures and site revegetation;
c. site security;
d. soil and tyre stockpile location and management;
e. flood and storm event management and site rehabilitation procedures to be implemented after these events;
f. volume of material and filled;
g. vehicle servicing;
- h. emergency procedures;
i. noise levels and controls;
j. final landform ie tyre and soil compaction methods and analysis, finished land heights and grades, depth and type of filled material, batters, revegetation;
k. transportation of tyres to and within the site;
l. monitoring, containment and treatment of leachate;
m. groundwater testing procedures; and,
n. site closure and ongoing monitoring and groundwater, vegetation and tyre compression.
4. The submission to Council of all necessary licences/approvals.
D. OPERATIONAL CONDITIONS
1. Prior to any tyres being brought onto the site, the applicant shall drill ground water monitoring bores above and below the landfill site in locations approved by the Department of Land & Water Conservation. Such bores are to be the subject of a licence by the DLWC. The applicant shall sample and arrange independent analysis of the ground water at six monthly intervals for salinity levels and heavy metal levels, including zinc and cadmium. Copies of the analysist's certificates shall be forwarded to the Council within seven days of receipt.
2. The applicant shall ensure that no more than three cells are open at anyone time during the life of the consent. The dimensions of the cells shall not exceed a length of 8.1 metres or a width of 6 metres. The cells shall be limited in depth to a level which is not less than 500 mm above the underlying ground water.
3. Any tyres stored above ground shall be so located that they are capable of being removed from the site or buried prior to inundation of the site by flood water.
4. A maximum of two trucks per day is permitted upon the site in connection with the development.
5. The applicant shall construct a gravel roadway from the existing internal road to the landfill site. The construction of the roadway shall be to the reasonable satisfaction of the Council in accordance with its prevailing rural internal access way standards.
6. The minimum finished surface grade of the filled land must be 2% in order to allow satisfactory surface run off and overcome potential or water logging above the finished tyre cells.
7. Stockpiles of material excavated from the site shall be protected from the possibility of soil erosion by the placement of filtration fences and hay bales in locations specified by the Council.
8. The landfill site shall be operated so as to ensure that at all times the site drains to the existing channel, which directs surface flows toward eastern creek through the existing flood valve.
9. All works are to be completed within fifteen (15) years of commencement in accordance with the provision of the EIS and LEMP. Written advice of the date of commencement is to be forwarded to Council within 7 days of commencement.
10. The hours of operation being limited to 9 am – 4 pm Monday to Saturday.
11. The development shall be conducted in such a manner so as not to interfere with the amenity of the neighbourhood in respect of noise, vibration, smell, dust, waste water, waste products or otherwise.
12. Access to the site is to be available at all times to Council staff.
13. The activity is to be registered with the NSW Tyre Recycling Council Limited.
14. The activity shall not extend into any Integral Electricity easement without the prior approval of that authority.
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