Rethmann Australia Environmental Services Pty Limited v Botany Bay City Council
[2004] NSWLEC 96
•18 March 2004
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Rethmann Australia Environmental Services Pty Limited v Botany Bay City Council [2004] NSWLEC 96
PARTIES:
APPLICANT
Rethmann Australia Environmental Services Pty Limited
RESPONDENT
Botany Bay City Council
CASE NUMBER: 10613 of 2003
CATCH WORDS: Development Application
LEGISLATION CITED:
Botany Development Control Plan No 25 - Moore and Baker Streets Banksmeadow
Botany Development Control Plan No 33 - Industrial Development
Botany Local Environmental Plan 1995
Environmental Planning and Assessment Act 1979
Waste Avoidance and Resource Recovery Act 2001
CORAM: Pain J
DATES OF HEARING: 20/10/2003, 21/10/2003, 22/10/2003, 10/2/2004, 11/2/2004, 12/2/2004, 8/3/2004, 9/3/2004
DECISION DATE: 18/03/2004
LEGAL REPRESENTATIVES
APPLICANT
Mr A Galasso
SOLICITORS
Minter Ellison
RESPONDENT
Mr T Hale SC
SOLICITORS
Houston Dearn O'Connor
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10613 of 2003
Pain J
18 March 2004
RETHMANN AUSTRALIA ENVIRONMENTAL SERVICES PTY LTD
Applicant
v
BOTANY CITY COUNCIL
Respondent
Judgment
Introduction
1 This is an appeal against the refusal by Botany City Council (the Council) of Development Application No. 03/281 for a Materials Recycling Facility at 3-5 Moore Street, Botany (lots 5,6,7 and 8 DP1048677).
I thank Commissioner Tuor for her assistance. The Court also benefited from a view of the site and locality.
The site and its context
2 The site is located within the recent industrial subdivision of the former Ampol site in Moore Street within the large and long established Banksmeadow Industrial Area. The subdivision is located around a cul de sac. It includes 16 allotments all of which are currently vacant, although four development applications have been approved for seven of the allotments. The subject application involves four allotments that have a combined site area of 12,544m2 with a frontage of about 130m to the internal subdivision road and a depth of about 100m. The site is generally level and has no significant vegetation.
3 Land adjoining the site to the north and east is vacant. To the west is the Air Liquide facility and other industrial buildings fronting Baker Street. To the south is the Orica chemical plant. The surrounding area is characterised by industrial developments, including a mix of both heavy and light industry, ranging in size from major industrial complexes such as Orica and Visy Recycling to warehouse developments. The nearest residential area is about 500m from the site.
Proposal
4 The proposal is described in the Applicant's evidence as follows:
It is proposed to develop a materials recycling and fuel substitute generation facility on the development site which will be capable of processing up to 100,000 tonnes of material per annum, of which about 25% is to be converted to fuel substitute product. The materials recycling facility (MRF) will recover non-putrescible recyclable materials generated by commercial and industrial activities. This material would otherwise be disposed of to landfill. Domestic kerbside reyclables will not be received or processed.
The fuel substitute generation facility (FSG) has a nominal capacity to process 50,000 tonnes of waste, although it is expected that only 25% of the material in the waste stream received will be directed to the FSG plant. The FSG is designed to process material which is rejected by the MRF (ie. not otherwise capable of being recycled), into a product in either "fluff" form or "briquette" form which can be utilized by industry as a fuel substitute for conventional fuel. This material would otherwise be disposed to landfill.
The underlying aims of the proposal are to facilitate recycling and reclaim non-putrescible waste from the waste stream in a commercially and environmentally sustainable manner. Items processed will include cardboard, paper, plastic, and solid waste residuals. Glass and metal are not proposed to be received for processing. Any glass or metal found in the waste stream will be taken out of the waste stream for transportation off the site. No hazardous waste is accepted. Some very small quantities of putrescible contaminants may be found in the waste stream. These contaminants will be taken out of the waste stream and stored in sealed containers for daily disposal to land fill.
Statutory framework
5 The site is zoned Industrial 4(a) under Botany Local Environmental Plan 1995 (LEP 1995) meaning heavy industry is permissible. The proposal falls within the definition in the LEP of a "materials recycling yard" and is permissible with consent in this zone.
6 Botany Development Control Plan No 33 - Industrial Development (DCP 33) applies to industrial development in this local government area. The site is within the Botany Banksmeadow Industrial Precinct. DCP 33 describes the character of the Banksmeadow Industrial Precinct as an industrial area as:
The nature of uses, large allotment sizes and consolidated ownership of industrial landholdings in the precinct are significant on a local government area and sub-regional basis. The main uses include chemical and petro-chemical production, manufacturing, warehousing and transport.
The substantial plants and structures of the Botany Industrial Park (formerly ICI/Orica) dominate the character of this precinct. The Precinct also contains a number of pipelines carrying hazardous substances such as natural gas and jet fuel.
This precinct is largely bordered by residential uses, and apart from hazard, risk and environmental conflicts, the visual impact of any development is a major consideration. Conflicts between the industrial uses and residential uses (including industrial traffic in residential streets) is considered a major problem in the area.
7 Objective 05 for the precinct is "To ensure that industrial uses are compatible with adjoining established residential areas". Section 2.7 control C6 states that "Development is not to adversely impact on the surrounding established residential areas through noise, traffic, pollution and risk". Several areas of non-compliance with DCP 33 are raised by the Council.
8 Botany Development Control Plan No 25 - Moore and Baker Streets Banksmeadow (DCP 25) is a site specific DCP that applies to the approved subdivision in which the site is located. This DCP does not refer to noise generated by development, either operational or from traffic. No issue is raised by the Council in relation to non-compliance with this DCP.
9 Botany City Council also has its Industrial Noise Policy, which relates to noise emissions from new plant. Nothing in this policy relates to noise generated by traffic.
10 Both DCP 25 and 33 contain objectives and controls aimed at achieving a high standard of design for industrial development.
11 The application is designated development under Sch 3 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). Six submissions were received when the application was publicly exhibited. One objection was from a resident (not of Baker Street) and three were from other nearby industries. The main issue raised was the increase in traffic along Baker Street.
Issues
12 The Statement of Issues before the Court contains five issues, each with a number of sub-issues. These can be summarised into the following key issues:
(a) whether the noise generated from trucks and the plant operation will adversely affect the amenity of residential properties.
(b) whether the proposal achieves an acceptable standard of design.
13 The following experts gave evidence:
· For the Council
Mr H Saunders, town planner
Mr G Atkins, noise engineer
Mr P Vogt, environmental scientist
· For the Applicant
Mr N Juradowitch, town planner
Mr N Gross, noise engineer
Dr K Holmes, odour and dust consultant
Dr M Stammbach, Rethmannn Australia Environmental Services
14 Mr C Hallam, traffic consultant for the Council and Mr L Marshall, traffic consultant for the Applicant provided statements of evidence and prepared a joint statement but were not required to give evidence.
15 The Court also appointed Dr R Tonin as an independent noise expert during the hearing to answer specific questions which had arisen due to the substantial differences in opinion of the noise experts for each party. Dr Tonin provided a statement of evidence and was cross examined by the parties.
Noise
16 Noise from the proposal is generated by the operation of the facility itself and traffic generated by the nature of the facility. Traffic noise was the most significant issue with substantial disagreement between the Council and the Applicant on whether the impact on residences in Holloway Avenue and Baker Street was likely to be acceptable. Operational noise issues were ultimately less contentious.
(a) traffic
17 The facility is proposed to operate 24 hours a day as it requires delivery of office and other waste at night. This means there will be noise from trucks at night time. DCP 33 requires that noise not adversely impact on the surrounding established residential areas. The parties agreed that the residences that will be impacted upon by traffic noise are located approximately 500m from the site near the intersection of Baker Street, Holloway Street and Wentworth Avenue. This area comprises a single storey house at 116 Wentworth Avenue (zoned Industrial 4(b)) and three three-storey residential flat buildings at Nos 50, 52 and 54 Holloway Street (zoned Residential 2(a)). Section C5 of DCP 33 relates to noise and hours of operation. Control C4 requires that:
Any levels of noise generated from the operation or vehicles associated with the development is to be compatible with adjoining non industrial uses and the requirements of the NSW Environment Protection Authority “Environment Criteria for Road Traffic Noise” and Council’s adopted Noise Criteria.
There is no relevant noise criteria adopted by the Council.
18 The experts agreed that the ECRTN was the appropriate criteria to assess traffic noise against. This specifies that:
| TYPE OF DEVELOPMENT | DAY (7am - 10pm) dB(A) | NIGHT (10pm - 7am) dB(A) | WHERE CRITERIA ARE ALREADY EXCEEDED |
| 7. Land use developments with potential to create additional traffic on existing freeways/arterials. | LAeq (15hr) 60 | LAeq (9hr) 55 | Where feasible, existing noise levels should be mitigated to meet the noise criteria. Examples of applicable strategies include appropriate location of private access roads; regulating times of use; using clustering; using 'quiet' vehicles; and using barriers and acoustic treatments. In all cases, traffic arising from the development should not lead to an increase in existing noise levels by more than 2dB. |
| 8.Land use developments with potential to create additional traffic on collector road. | LAeq (1hr) 60 | LAeq (1hr) 55 | Where feasible and reasonable, existing noise levels should be mitigated to meet the noise criteria. Examples of applicable strategies include appropriate location of private access roads; regulating times of use; using clustering; using 'quiet' vehicles; and using barriers and acoustic treatments. In all cases, traffic arising from the development should not lead to an increase in existing noise levels by more than 2dB. |
TABLE 1: ROAD TRAFFIC NOISE CRITERIA FOR PROPOSED ROAD OR RESIDENTIAL LAND USE DEVELOPMENTS
19 Dr Tonin’s evidence was that the assessment of the impact of increased traffic noise should not be restricted only to that generated by this development but should include the traffic likely to be generated by the other developments in the subdivision based on the figures agreed to by the traffic experts (see Appendix A of Dr Tonin's report dated 4 March 2002). These figures agreed by Messrs Hallam and Marshall indicate that during the night time hours this development will generate the majority of traffic and also make allowance for a small number of vehicles from elsewhere in the subdivision. While the majority of the additional noise is from this proposal there is also allowance made for some traffic from the rest of the subdivision for the night time hours, effectively the five undeveloped lots remaining of 16 lots. The four development consents already granted for seven lots in the subdivision do not require 24 hour operation.
20 Dr Tonin’s evidence was that the existing noise environment at all of the affected residential properties generally exceeds the 55dB(A) night time level specified in the ECRTN. His opinion was that although Baker Street is classified as a collector road, the proximity of the residential properties to Wentworth Avenue, which is an arterial road, means that the night time Criteria 7 of the ECRTN (LAeq (9 hr) 55) was the appropriate criteria to assess the impact of increased traffic in Baker Street. Using this criteria the increase in traffic from the subdivision does not increase the existing noise level by more than 2dB(A) at any of the properties. This criteria in the ECRTN would therefore be met.
21 Dr Tonin also assessed the traffic noise against the stricter night time level in Criteria 8 in the ECRTN (LAeq (1hr) 55). Against this criteria the additional traffic generated by the subdivision during the critical midnight to 4 am period exceeded the 2dB(A) level at 116 Wentworth Avenue and 50 and 52 Holloway Street. No 54 is so adversely affected by traffic from Wentworth Avenue, being on the corner of this road, that the increased trucks in Baker Street have no identifiable impact.
22 In his opinion, as the existing environment is already adversely affected by noise because it generally exceeds the 55dB(A) specified in the ECRTN, it was appropriate to examine whether there were feasible and reasonable mitigating measures that could be employed, as required by the ECRTN. Under both ECRTN criteria, Dr Tonin’s evidence was that the increased noise impacts were not so significant as to warrant a reduction in night time truck movements beyond those set out in his report or refusal of the application. Dr Tonin stated that maximum, not average, truck movements should be specified in a condition and proposed an amendment to the wording of the draft condition which was proposed by the Applicant on this matter. This is now condition 3(a). Dr Tonin also supported the Applicant’s proposal to provide a fence at No 116 Wentworth Avenue as this would substantially assist in attenuating noise levels (condition 68). He stated that measures that would attenuate noise at the residential flat buildings included double glazing to bedrooms, air conditioning or noise barriers to the western side of the scout hall along Baker Street opposite the flats at 50 - 52 Holloway Street. The Applicant has agreed to provide double glazing to the bedrooms of those flats in Nos 50, 52 and 54 Holloway Avenue which face Baker Street, if the owners so wish (condition 72).
Sleep disturbance
23 These measures would also assist in addressing sleep disturbance. All the experts agreed that as Dr Tonin states:
… residents living in this area are currently affected by high levels of traffic noise at night and that it affects their sleep (whether they are aware of it or not). An increase in the number of trucks at night resulting from approvals in the subdivision will result in a corresponding increase in the number of high noise level events and an increase in the LAeq (1hr), however the maximum noise levels experienced are likely to remain unchanged and, according to my findings, the LAeq (9hr) will also remain unchanged.
24 The Council's expert Mr Atkins also sought to rely on a measure of 15dB(A) above a background of LA1(1 min) as a measure of sleep disturbance. According to Dr Tonin, this measure was adopted at one stage by the former Environment Protection Authority (the EPA) in the 1980s but it is not now applied to traffic generated by night time sleep disturbance.
25 The main difference in the submissions made by the parties was the conclusions that should be drawn from the evidence of Dr Tonin. The Council's submission was that the application must be assessed within a policy framework that had existed since 1979 and been consistently applied by the Council. This policy was to limit the impact of industrial development on residential areas and to reduce noise impacts where these were excessive. The conclusion the Council drew from Dr Tonin’s evidence was that any increase in noise levels above 55dB(A) was unacceptable at night and that truck movement should not be permitted between 10pm and 7am. Alternatively, if truck movements were allowed, any noise impact should be mitigated. The Applicant should provide double glazing and air-conditioning to all of the rooms in all of the units in 50-54 Holloway Street and to 116 Wentworth Avenue. The Council emphasised that approval of this application with night time truck movements would result in a precedent for other developments along Baker Street.
26 The Applicant drew the different conclusion that Dr Tonin was an independent expert advising the Court and that his evidence quantified the likely noise impact that would result from the trucks and found it to be acceptable. Dr Tonin recognised there would be an increased impact, however, he accepted that this was reasonable and not sufficient to warrant refusal of the application. The Applicant also submitted that there was no policy that had been consistently applied by the Council, on the contrary the site was zoned for heavy industry and the advice given by the Council before lodgement of the development application envisaged that there may be night time truck movements but that these would be limited. The operation of the facility requires night time truck movements as the paper and cardboard are to be collected from commercial offices and access to these offices must be out of office hours. The recycling facility and the fuel substitute generation facility are consistent with ESD objectives in the Waste Avoidance and Resource Recovery Act 2001 and the department known formerly as the EPA has provided General Terms of Approval. The Applicant had agreed to offer measures to mitigate the truck noise at effected properties. It was not reasonable that the Applicant should be required to completely solve a noise problem which already exists, that it is contributing to but not causing.
Finding on traffic noise
27 The Council argued strongly that it had a long established policy of strictly limiting night time traffic movements in this area. The evidence relied on by the Council to support this argument was a 1979 Planning and Environment Commission (PEC) study, the oral evidence of Mr Atkins, the traffic consultant relied on by the Council, who stated it was the Council's policy which he was aware of due to his work over 20 years in the area and numerous development consents tendered to the Court which have hours of operation limited to 6am to 10pm. I find this submission difficult to accept. If Council does have such a policy, it has not found its way into any of the legal instruments which must be considered under s 79C. There is simply no written Council policy that states that night time truck movements along Baker Street or any other industrial area are not acceptable at all once a certain noise level is exceeded, which was the submission the Council urged on this Court.
28 The PEC study identifies the conflict between industrial and residential development but does not specifically mention night time truck movements. While provided with a number of development consents relating to the Baker Street area which show the facilities in question do not operate at night, the Court has no evidence to indicate that longer hours were sought by these facilities. One consent granted to Australia Post by the Council in 1997 has hours of operation of 10pm to 6pm. There is no limitation on truck movements referred to in that development consent at all. Evidence heard by the Court was that Australia Post trucks currently travel along Baker Street all night. While I accept the aim of limiting noise impacts from traffic may well be an objective of the Council, and that such an objective is laudable, which was the evidence of Mr Atkins, there is no written policy framework where this is translated into a prohibition on night time truck movements in the circumstances before me.
29 DCP 33 has general provisions about limiting the impact of industrial development on residential areas and applies the ECRTN criteria (see par 17). The site specific DCP 25 does not mention noise, either operational or from trucks. The Botany Industrial Noise Policy refers only to operational noise, not traffic noise. Even the advice provided to the Applicant before lodgement of the development consent (letter from Council dated 20 September 2002) makes no mention of such a policy. Rather it stated that if consent was sought for night time truck movements these were unlikely to be accepted unless numbers were limited.
30 The Council in DCP 33 relies on the application of the ECRTN criteria. It was the evidence of Dr Tonin and indeed it is clear in the ECRTN policy itself that these criteria are non-mandatory. Exceedances of the criteria suggests that mitigating measures ought to be taken, as set out in the right hand column in the table above (in par 18). The Applicant has proposed mitigating measures in this case.
31 I accept the Applicant's submission and find that while the noise generated by trucks from the development will increase noise impacts at the affected residential properties, Dr Tonin's evidence is that this impact is reasonable and the application, subject to conditions limiting truck numbers and requiring noise mitigation measures, should not fail on this basis. I do not accept that truck movements need to be further limited beyond condition 3(a) or that it is reasonable to require the Applicant to undertake further mitigation works in addition to those proposed in conditions 68 and 72. The existing noise environment that is experienced by the occupants of the flats and the house is unacceptable during both the day and the night and Council should pursue options that can address this existing problem in a coordinated way. It is not reasonable to expect one development to solve a problem that has been around for a long time and that is being caused by a number of existing developments.
32 In reaching this conclusion I do not accept the Council's submission that approval of this development will result in a precedent for other developments, meaning that night time truck movements will be more difficult to refuse in future. Assessed on its merits, the impacts of this development are acceptable. If the Council is seeking to stop night time truck movements and is concerned about future development applications its policies and planning framework should explicitly state this. Any further development applications seeking night time truck movements will need to be assessed on their merits in light of their operational needs, and be assessed against the current truck and general traffic surveys and acoustic noise readings at that time. It may well be that the Council or this Court considers those night time truck movements are unacceptable.
33 The disparate approaches of the two noise experts retained by the parties proved very unhelpful in relation to traffic noise, necessitating the appointment of an independent expert. His analysis and conclusions differed markedly from the two parties' experts. My observations of the noise analysis required in this locality is that traffic noise from Wentworth Avenue must be included in any assessment of Baker Street near the intersection with Wentworth Avenue. Cars and trucks must be included when considering background noise, locations for collection of acoustic measurements must be agreed and these must be next to affected properties. There must be agreement on the appropriate logarithmic equations to be used and the criteria against which a proposal needs to be assessed, particularly for sleep disturbance, must be agreed. A single expert at the outset may well have overcome most of the difficulties in this case. Where there are two experts with fundamental methodological disagreements it is incumbent on the parties to alert the Court to these difficulties early, preferably well before the hearing starts. In this case, while there was a joint statement prepared by the two noise experts and some disagreement was indicated, the full extent of that disagreement only became apparent after much questioning by the Court after several days of hearing.
Operational noise
34 In relation to operational noise, Mr Atkins and Mr Gross agreed that 85dB(A) at the northern façade represents an appropriate operating noise level for the plant that would not adversely impact on residential properties. They agreed that this level could be achieved on the assumption that paper and cardboard would constitute 95 per cent of the recycled material and the activity would be contained within the structure proposed. The Applicant has now agreed that it will install quick opening doors which will be kept closed unless a delivery truck is entering or leaving (condition 47).
35 The Council raised concerns that if material other than paper and cardboard exceeded more than 5 per cent, the noise level may be exceeded. Council proposed a condition (condition 67) that sought to limit the minimum amount of paper and cardboard products to 95 per cent of the waste received at the facility. The Applicant objected to this requirement on the basis that it would not be able to be complied with as, despite their best endeavours, the paper and cardboard could be contaminated with other wastes that exceeded the 5 per cent maximum. Dr Stammbach’s evidence was that in the first year alone, the 5 per cent limit would be exceeded as it was expected that waste from Flemington would be contaminated with putrescible material. This was expected to reduce over time through an education programme about waste streaming that the Applicant is already undertaking.
36 The evidence of Dr Tonin was that the development would be able to satisfy the 85dB(A) criteria even if the paper and cardboard were contaminated with other materials such as glass. He stated that:
On the assumption that the noise experts have agreed to a condition of 85dB(A) at the northern internal facade, I am confident that it is not necessary to further regulate the activities within and therefore no restriction should apply to the composition of collected material.
37 The draft conditions of consent include such a condition (condition 70). The description of the approved development also states that the facility is to recycle paper and cardboard and there are also conditions (conditions 45 and 46) that specify that domestic and building waste and materials such as glass and metal are not to be recycled at the facility. I have therefore deleted condition 67 as it is unnecessary. Conditions 21, 45, 46 and 70 will ensure that residential properties are not adversely affected by operational noise from the plant.
Design Standards
38 The Council argued this proposal did not meet the design standards the Council wanted to have implemented in this area. The main difference between the experts, Mr Sanders (for the Council) and Mr Juradowitch (for the Applicant), was whether the development satisfied the requirements of both DCP 33 and 25 and achieved an acceptable level of design. The principle area of non compliance was s B4 of DCP 33 relating to Site Layout. Control C2 in Section B4 of DCP 33 states:
For new development (excluding multi unit industrial development) all loading and unloading facilities and the majority of car parking required for the development is to be provided at the rear or at the side of any buildings. It is not to be provided at the front of buildings. Visitor car parking may be provided at the front of buildings behind the setback required in Section 3 Part B (General Design Element B7 - Setbacks) of this Development Control Plan.
39 This requires that loading and unloading and the majority of car parking should be located at the rear of the building. I understand the objective of this control to be twofold, firstly to limit opportunities to view the recycling activities of the facility by having large doors which open at the front of the building to provide vehicle access. Secondly, to improve the streetscape by screening cars, trucks and loading or unloading activities behind the building. In this case deliveries of material are made to the front of the building and all deliveries from the site are made from the rear. All the car parking is at the front of the building. It will have a landscaped area of 5m at the front of the site between the car park and the access cul de sac.
40 Mr Sanders opinion was that the car parking and access to the front of the building clearly did not comply with the control and resulted in an unacceptable impact on the streetscape as recycled material would be able to be seen when the doors were open. Cars and truck would also be visible from the street.
41 Mr Juradowitch opinion was that the appearance of the building was acceptable and while it did not comply with the control it achieved its objective for the following reasons:
· The site is only visible from the internal subdivision cul de sac.
· The building, car parking and front access are set back from the service road and screened from view by landscaping.
· The roller shutters will be closed at all times except when trucks enter the building and the type of roller shutter to be used opens and closes quickly. Both these matters are included in conditions agreed to by the Applicant.
· The operation of the facility requires access at the front for delivery of material with collection to be from the rear of the site.
42 I prefer the evidence of Mr Juradowitch. The proposed development is consistent with the intention of Council’s planning controls that aim to improve the appearance of industrial developments. The development is set back from the street for operational reasons. Any view of recycled materials will be brief and will be from a distance from a cul de sac within a heavy industrial area. The site is dominated by other large industrial development, particularly the Orica site, which is immediately behind the proposal. All sorting, storage and processing will take place within the building. The facility will clearly have far less impact than the older recycling facilities nearby where sorting takes place in the open air. This facility is markedly superior to the materials recycling yards shown in s 5.7 of DCP 33, which suggests open air collection and sorting of material is possible in this zone. While this context is not an argument for a lower standard of design, the appearance of the building, its landscaping and the site layout are acceptable and not a grounds for refusal.
43 The Applicant has objected to the imposition of parts of conditions relating to landscaping (conditions 23 and 24). The particular aspects objected to relate to the requirement for trees in the car park to be every five spaces (condition 23), a bond to ensure that the landscaping is maintained for a period of four years, Council taking legal proceedings and Council undertaking landscaping works costing more than the bond (condition 24). As the landscaping is essential to screen the car parking and loading activities from the street I have not deleted that part of condition 23 the Applicant objects to.
44 In relation to condition 24, the Applicant would prefer a period of one year for the holding of the bond. The Council prefers four years on the basis that former industrial sites may take a longer period for landscaping to become established. Four years is the standard period in the Council's conditions and I accept that four years is reasonable. I will leave in "The lodgement of the bond is not intended to limit the period of compliance with the landscaping requirements to four (4) years." I have deleted part of condition 24 which stated the lodgement of the bond "shall not preclude the council initiating legal proceedings should the landscaping not be established and maintained in accordance with this consent" because that is unnecessary. The part of condition 24 relating to Council undertaking landscaping works and recovering monies expended in excess of the bond is also deleted. This lacks certainty as to what works could be undertaken by the Council and is not reasonable.
45 The Applicant also objected to the requirement in condition 71 that linen plans and proof of registration for consolidation of the site be submitted to Council prior to the issue of an occupation certificate. I accept the Applicant's argument that the linen plan be submitted within one month and proof of registration of the plan within six months of the occupation certificate as these requirements should not prevent occupation of the building. Once the facility is constructed across all four lots the Applicant will not be able to sell off any of the lots practically in any event.
Conclusion
46 In considering the application on its merits, firstly, the operation of the facility is dependent upon night time truck movements. A condition suggested by the Council which prohibits truck movement between 10pm and 7am would effectively prevent the development from operating. The facility also requires a location close to the city as its main source of recyclable material will be from CBD offices. Secondly, the expert evidence is that while the truck movements will increase noise impacts on the identified residents, this is acceptable. Thirdly the Applicant has proposed mitigation measures that will not solve the existing problem but will assist in noise attenuation. Fourthly, I accept the Applicant's submission that this is a development which is aimed to encourage waste minimisation, a worthwhile objective. Weighing up all these factors, which are relevant under s 79C, I consider development consent should be granted subject to a number of conditions.
Orders
47 The Court orders that:
1. The appeal is upheld.
2. Development consent be granted to development application no. 03/281 lodged with the Respondent on 22 October 2002 for:
(a) the construction and operation of a material recycling facility for the receipt and processing of dry commercial and industrial waste, comprising predominantly paper and cardboard, with a capacity to process a maximum of 100,000 tonnes per annum of such waste; and
(b) the construction and operation of a fuel substitute generation facility for the processing of waste not capable of being recycled, into a fuel substitute,on lots 5, 6, 7 and 8 DP 1048677, 3-5 Moore Street, Botany subject to the conditions in Annexure A.
3. The exhibits, except exhibits J, T, U, V and A2 may be returned.
ANNEXURE A
Development consent be granted to Development Application No. 03/281 lodged with the Respondent on 22 October 2002 for:
(a) the construction and operation of a Material Recycling Facility for the receipt and processing of dry commercial and industrial waste, comprising predominantly paper and cardboard, with a capacity to process a maximum of 100,000 tonnes per annum of such waste; and
(b) the construction and operation of a Fuel Substitute Generation facility for the processing of waste not capable of being recycled, into a fuel substitute, on lots 5, 6, 7 and 8 DP 1048677, 3-5 Moore Street, Botany subject to the conditions in this annexure.
1.The development shall be carried out in accordance with plans and associated documentation received by Council as indicated below:
Plan No Date Prepared by
CT002 Revision 8 8/8/2003 Connell Wagner
CT005 Revision 2 11/4/2003 Connell Wagner
CT006 Revision 2 11/4/2003 Connell Wagner
CT007 Revision 2 11/4/2003 Connell Wagner
CT008 Revision 2 11/4/2003 Connell Wagner
CT009 Revision 1 11/4/2003 Connell Wagner
CT010 Revision 6 23/9/2003 Connell Wagner
CT011 Revision 4 9/10/2002 Connell Wagner
CT012 Revision 3 9/10/2002 Connell Wagner
CT020 Revision 3 5/8/2003 Connell Wagner
CT021 Revision 2 5/8/2003 Connell Wagner
CT022 Revision 2 5/8/2003 Connell Wagner
CT023 Revision 2 5/8/2003 Connell Wagner
CT025 Revision 4 11/4/2003 Connell Wagner
CT026 Revision 2 17/10/2002 Connell Wagner
CT028 Revision 2 5/8/2003 Connell Wagner
LSP-01 Revision B 9/4/2003 Site Image
LSP-02 Revision B 9/4/2003 Site Image
LSP-03 Revision B 9/4/2003 Site Image
LSP-04 Revision A 9/4/2003 Site Image
23184P4B Issue E 5/6/2003 Wallis & Moore
Sk1d 7/4/2003 Horizon Architects
Sk2d 7/4/2003 Horizon Architectsand plans, sketches prepared by unknown as follows:
Plans Description Dated
Wash Bay Pit Undated
Wash Bay Isometric Pit 16/12/2003
Wash Bay – Plan View 16/12/2003
Detail Kwikflow Coalescing Plate Separators Undated
Extract Sydney Water Bunding Details Undated
Extract Sydney Water connection to sewer Undated
Basic Detail Truck Service Pit Undated
except where amended by the conditions of the Consent that follow:
2(a).The proposal shall be in accordance with the Fire Water Retention Study prepared by HLA-Envirosciences, project number H6090/2 dated 11 April 2003,
2(b).The proposal shall be in accordance with the Building Energy Performance report prepared by George Floth Pty Ltd, project number 03067 dated 15 April 2003.
2(c).There is no Condition 2(c).
2(d).There is no Condition 2(d).
2(e).There is no Condition 2(e).
2(f).There is no Condition 2(f).
2(g)There is no Condition 2(g).
3.(a) Vehicle movements to and from the site other than passenger vehicles and light courier vans (Class 3 vehicles and below as defined in the AustRoads 94 Classification Scheme) shall not exceed the following per hour in the period indicated:
Midnight to 6.00am 6
6.00am to midday 13
Midday to 6.00pm 7
6.00pm to midnight 8
(b)Subject to condition 3(a) above, vehicle movements to and from the site other than passenger vehicles and light courier vans are to be controlled in accordance with the Management Procedure for Control of Vehicle Movement and Weights, being Annexure D to Exhibit V (Supplementary Statement of Evidence of Dr Marc Stammbach).
The Applicant is to provide to the Council on an annual basis a report detailing in the relevant year the number of vehicle movements per week; the total incoming weight of waste and of recycled products leaving the site; and the destination of every fuel substitute, recyclable or land fill shipment.
(c)Deliveries to and from the site shall occur along the inward and outward routes as shown below:
(i) All vehicles used for delivery purposes to the Materials Recycling Facility between the hours of 6.00pm and 6.00am shall be no larger than Class 4, Medium sized heavy vehicles as defined in the AustRoads 94 Classification Scheme;
(ii) There shall be no movements of heavy vehicles, as defined in the AustRoads 94 Classification Scheme, to and from the Residual Waste Outload and Fuel Substitute Generation Facility between the hours of 6.00`pm and 6.00am.
(iii) Truck Movements are as follows:a. Inward Route
From Wentworth Avenue, Baker Street and Site Estate Road
b. Outward Route
Site Estate Road, Baker Street and Wentworth Avenue
These truck movements must be appropriately signposted at the site exit gate.
4. The further consent of Council shall be obtained prior to the use of any B-Double vehicles for delivery or other purposes associated with the site.
5.The City of Botany Bay being satisfied that the proposed development will increase the demand for human services facilities within the area and in accordance with Council’s Section 94 Contributions Plans Nos. 1-3, a sum of $19,109.06 towards the provision and/or improvement of public open space, childcare and libraries is to be paid to Council prior to the issuing of a Construction Certificate by the Principal Certifying Authority. The contribution consists of:
Open Space: $12,563.71
Child Care:$4,322.54
Libraries:$2,222.81
6. A total of 34 off-street car parking spaces shall be provided in accordance with the submitted plans. The car parking spaces shall be line marked and made freely available for staff and visitors during work hours. Car parking spaces 1 to 33 as shown on Drawing CT002 Revision 8 shall be sealed using interlocking pavers. All car parking spaces shall be clearly labelled “Staff/Visitor” parking.
7. All 90° parking bays are to have a minimum length of 5.4m in accordance with AS2890.1-1993.
8. The occupier shall ensure that any person employed on the premises shall park their vehicle, if any, in the employee parking area provided.
9. The unloading of MRF vehicles shall take place wholly within the building.
10. All wastewater and stormwater treatment devices (including drainage systems, sumps and traps) shall be regularly maintained in order to remain effective. All solid and liquid wastes collected from the devices shall be disposed of in a manner that does not pollute waters.
11. All vehicles shall enter and exit the premises in a forward direction.
12. No loading or unloading of goods to and from the premises shall be made from a public road or private road or road related area (eg- footpath, nature strip, shoulder, road reserve, public car park, service station, etc.).
13. All proposed traffic movements on roads and road-related areas adjoining the development and parking arrangements within the development shall conform relevantly to the Australian Road Rules, 1999 and the NSW Road Transport (Safety and Traffic Management) Regulations, 1999 and the relevant Council Development Control Plan unless otherwise stipulated under another condition of consent.
14. There is no Condition 14.
15. ‘No Parking’ signs shall be erected to prohibit parking within five (5) metres at either side of the two entry/exit gates.
16. There is no Condition 16.
17. The proposed ventilation system shall be designed in accordance with AS1668. Details of the ventilation system shall be submitted to Council prior to the issue of the Construction Certificate. The design shall be certified by a suitably qualified air quality or Mechanical Engineer.
18(i).There is no Condition 18(i)
18(ii). There is no Condition 18(ii).
19.There is no Condition 19.
20.There is no Condition 20.
21(a).The operation of all plant and equipment shall not give rise to an equivalent continuous (LAeq) sound pressure level at any point on any residential property greater than 5dB(A) above the existing background LA90 level (in the absence of the noise under consideration).
21(b). The operation of all plant and equipment when assessed on any residential property shall not give rise to a sound pressure level that exceeds LAeq 50dB(A) day time and LAeq 40 dB(A) night time.
21(c).The operation of all plant and equipment when assessed on any neighbouring commercial/industrial premises shall not give rise to a sound pressure level that exceeds LAeq 65dB(A) day time.
For assessment purposes, the above LAeq sound levels shall be assessed over a period of 10-15 minutes and adjusted in accordance with EPA guidelines for tonality, frequency weighting, impulsive characteristics, fluctuations and temporal content where necessary.
22.There is no Condition 22.
23.The landscape areas shown on the landscape plans Drawings No. LSP-01 Revision B, LSP-02 Revision B, LSP-03 Revision B and LSP-04 Revision A, all dated 9 April 2003 and prepared by Site Image, Landscape Architects shall be the subject of detailed landscape drawings and specifications which are to be submitted to, and approved by Council. The landscape documentation shall include:
A site plan at an appropriate scale showing building envelopes, paved areas and landscaped areas.
A planting plan at an appropriate scale (1:100 or 1:200) showing all plant locations. There is to be a dense planting of trees, shrubs and groundcovers within all landscaped areas and minimal turf. Plant spacings are to be clearly indicated.
A plant schedule listing all plants by botanical and common names, total plant numbers, plant spacings, pot sizes and staking.
Additional notation showing soil and mulch finishes, irrigation system, edging and other landscape hardworks such as retaining walls.
Trees shall be planted in the carpark at a rate of one for every 5 spaces with wheel stops to prevent damage.
Areas of paving and paver selection.
Fencing details – elevations and materials.
24. The applicant is to enter into an agreement with Council, to be prepared by Council's Solicitors at the applicant's expense, providing for the lodgement of a bond in the sum of $12,000.00 for a period of four (4) years, to establish and maintain the landscaping in accordance with the approved landscaping plan.
The applicant is to note that the bond specified under this condition must be remitted to Council either in the form of monies held in trust, or as a certified banker's guarantee, together with a sum of $250.00 (cash or cheque) for disbursements associated with the preparation of the agreement, prior to the issue of a Construction Certificate by the Principal Certifying Authority.
The bond may be applied by Council to the establishment and maintenance of the landscaping in accordance with the approved plans. The lodgement of the bond is not intended to limit the period of compliance with the landscaping requirements to four (4) years.
25(i).An automatic irrigation system shall be installed throughout all the landscaped areas. Such system shall provide full coverage of all landscaped areas with no over spray onto driveways and pathways. The system shall comply with all Sydney Water requirements, relevant Australian Standards;
25(ii).The nature strip adjoining the site upon the Estate footway shall be excavated to a depth of 150mm, backfilled with topsoil equivalent with 'ANL Organic Garden Mix', and re-turfed;
25(iii).The applicant shall maintain the naturestrip planting upon the footway adjoining the site at all times. Such maintenance shall include, but not be limited to, watering, mowing, fertilising and the removal of weeds and rubbish;
25(iv).Tree root barriers shall be installed where trees are planted beside pavements within the site;
25(v).A retaining edge of concrete, 150mm high, or other approved barrier, shall be erected around the landscaped areas to prevent the encroachment of motor vehicles and to contain soil and mulch finishes;
25(vi).The electrical substation is to be located behind the area dedicated for landscaping with a 1300mm pedestrian access around the edge of the substation; and
25(vi).The landscaped areas on the property shall be maintained in accordance with the approved landscape plans and be installed prior to the issue of the Occupation Certificate.
26.There is no Condition 26.
27.There is no Condition 27.
28.12 x 100 ltre Eucalyptus maculata trees, planted 10 metre centres and with a minimum height of 2.4 metres, shall be installed in the naturestrip adjoining the site and adjacent to the Estate road, with three 75 mm x 75 mm stakes ties and in accordance with Council's Landscape DCP
29.There is no Condition 29.
30.There is no Condition 30.
31.There is no Condition 31.
32. All raw materials, manufactured goods, and machinery shall be stored wholly within the factory building and not in adjacent forecourts, yards, access ways, car parking areas, or on Council’s footpath.
33. No offensive odour from any trade, industry or process shall be detected outside the premises by an authorised Council Officer as defined in the Protection of the Environment Operations Act 1997.
34. The operation of the premises shall be conducted in such a manner as not to interfere with or materially affect the amenity of the neighbourhood by reason of noise, vibration, odour, fumes, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil, or otherwise.
35. Sufficient supplies of appropriate absorbent materials shall be kept on site to recover any liquid spillage. Liquid spills shall be cleaned up using dry methods, by placing absorbent material on the spill, and sweeping or shovelling the material into a secure bin. Absorbent materials used to clean up spills shall be disposed of to an appropriately licensed waste facility.
36. Washing of vehicles shall be conducted in a truck washbay, which is roofed and bunded to exclude rainwater. All waste water from washing bay shall be discharged to sewer under a Trade Waste Agreement from Sydney Water. This may require the installation of a pre-treatment device. Alternative water management and disposal options may be appropriate where water is recycled, minimised or re-used on the site and must be approved by Council.
37. Dust emission from any stockpiles shall be suppressed by a permanently installed irrigation system in accordance with details to be submitted to Council prior to the issue of the Construction Certificate.
38. There is no Condition 38.
39. Should the construction process require a building waste container(s) (builders' skip), then such container must not be placed or left upon the public road, footpath, reserve or the like without the prior approval of the Council. The use of any part of Council's road reserve must also have prior approval of Council.
40. A Waste Management Plan shall be prepared in accordance with Development Control Plan No.29 - Waste Management and Minimisation Guidelines for the construction of the facility and submitted to the Principal Certifying Authority prior to the issue of a construction certificate.
The Plan shall be implemented at the commencement of construction works on the site and complied with at all times during the construction of the facility.
A copy of the Waste Management Plan shall be kept on-site at all times and made available to Council Officers on request.41.There is no Condition 41.
42. Building plans must be submitted to any Business Office of Sydney Water Corporation prior to commencement of work.
43. There is no Condition 43.
44. At no time shall retail sales of the proposed fuel be made from the premises with sales made only by
wholesale to the trade only.45. Domestic kerbside recyclables and construction and demolition waste (with the exception of separated carbon based materials such as paper, cardboard and plastic), will not be received or processed at the facility unless development consent is obtained to receive and process such recyclables and wastes.
46. The applicant shall ensure that glass and metal will not be processed beyond sorting it from the waste stream on site and should waste collected be contaminated these elements shall be removed from the waste and transported off site.
47. Each of the access doors to the front of building fronting the roadway will remain closed except for when vehicles are in the process of loading, entering or leaving the building. The doors are to be high speed opening and closing of the type in the catalogue of DMF International "Rapid Auto Roll Door" (Exhibit A2).
48. There is no Condition 48.
49. Any lighting on the site shall be designed so as not to cause nuisance to other residences in the area or to motorists on nearby roads, and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with AS4282-1997 Control of the obtrusive effects of outdoor lighting.
50. The building and land shall display a conspicuous street number of legible numerals, which has been allocated by Council for the allotment.
51. Street numbers shall be clearly displayed with such numbers being of contrasting colour and adequate size and location for viewing from the footway and roadway. Prior to the use and occupation of the building application must be made to Council for the allocation of a street number.
52. All intruder alarms shall be fitted with a timing device in accordance with the requirements of Regulation 12A of the Noise Control Act, 1975, and AS2201, Parts 1 and 2 - 1978 Intruder alarm systems.
53. The storage and handling of flammable and combustible liquids shall be in accordance with Australian Standards AS1940-1993 The Storage and Handling of Flammable Combustible Liquids.
54. An Emergency Spill Response Management Plan shall be prepared and submitted to Council within three months of the issuing of the occupation certificate. The Plan shall include the following:
(a)list of chemicals and maximum quantities to be stored at the site;
(b)identification of potentially hazardous situations;
(c)procedure for incident reporting;
(d)details of spill stations and signage;
(e)containment and clean-up facilities and procedures; and
(f)the roles of all staff in the Plan and details of staff training.
55(i)There is no Condition 55(i)
55(ii)The Occupation Certificate must contain an Environmental Compliance Report as required by the Section 88B Instrument.
56.For the purpose of inhibiting or preventing the growth of micro organisms that are liable to cause Legionnaires' Disease, all cooling towers, evaporative condensers, evaporative coolers, and warm water systems shall be designed, constructed and installed in accordance with the requirements of Public Health Act 1991 (Part 4 Microbial Control) and Regulations and AS3666 -2002 Air handling and water systems in building - microbial control. All waste water from the cooling tower/humidifier/evaporative cooler/warm water system shall be discharged to sewer under a Trade Waste Agreement from Sydney Water.
57.There is no Condition 57.
58.No sign/s that require development consent shall be installed or displayed at the premises without a development application being lodged with Council and consent thereto being given by Council in accordance with Council’s guidelines.
59.Prior to the issue of Occupation Certificate the applicant shall submit to Council a report stating that the conditions in the Site Audit Statement prepared by Nick Withers, dated 7 May 2002, audit number NJW026 have been complied with and form part of the development.
60.Building works associated with the erection and or demolition activities of the building shall be carried out between the following hours:-
Monday to Friday, inclusive 7.00 a.m. to 5.00 p.m.
Saturday7.30 a.m. to 4.30 p.m.
Sundays and Public Holidays No work.
61.(i) All building work must be carried out in accordance with the provisions of the Building Code of Australia;
(ii)The erection of the building shall not impart a noise or vibration nuisance to the land the buildings and the inhabitants of the surrounding locality and for this purpose the following criteria shall be observed:
(a)Where pile driving is carried out anywhere on the site, the ground vibration when measured at the closest point at or within the ground floor and/or at any elevated floor of any commercial/industrial building which is technically in good order shall not exceed a peak particle velocity of 10mm/sec. For buildings with existing defects, having visible cracks the maximum peak particle velocity shall not exceed 5mm/sec.
(b)Where pile driving is carried out anywhere on the site, the ground vibration measured at the closest point at or within the ground floor and/or at any elevated floor of any commercial building shall be measured as peak velocity and shall not exceed Curve 4 of BS6472 - 1984. With respect to workshop premises the vibration levels induced by the pile driving shall not exceed Curve 8 of the above standard and Curve 2 for residential premises.
(c)In accordance with the New South Wales Environmental Protection Authority, Environmental Noise Control Manual, where there is the likelihood of annoyance from noise associated with the pile driving the L10 noise levels shall not exceed 65dB (A) or the background noise level by more than 10dB (A). These levels shall be measured external to the facade of any commercial or industrial premises. For residential premises the noise levels shall not exceed 10dB(A) above background. Measurements to be taken at the residential boundary line.
(d)A review of likely vibration generation in relation to the building damage criteria in (a) above should be conducted by a suitably qualified acoustic consultant and a Vibration Management Plan prepared and submitted to Council outlining the need for permanent monitoring. Should permanent monitoring of vibration levels be required with respect to possible building damage in adjoining buildings during the piling operations this should be downloaded and reported weekly with all levels above half of the allowable limit being hard copied and logged for inspection by Council or its nominee.
(iii)Any site compaction works shall be subject to a work methodology prepared by a Geotechnical Engineer submitted to Council for approval prior to commencement of works and shall address the means of prevention of the following
(a)Vibration emissions from extending beyond the boundaries of the site generated from construction works with the subject site.
(b)Effect of compaction works on flow and displacement of the natural water table, particularly with regard to potential effects on adjoining land and buildings.
(c)Dust and noise.
(iv)(a) the applied finish of the building shall have a minimum aggregate thickness of 300 microns; and,
(b)There is no Condition 61(iv)(b).
62.A Part 3A permit shall be obtained from the Department of Planning Infrastructure and Natural Resources ('DIPNR') with respect to all works the subject of such permit:
(a)All works proposed must be designed, constructed and operated to minimise sedimentation, erosion and scour of the banks or bed of the watercourse / foreshore and to minimise adverse impacts on aquatic and riparian environments.
(b)Erosion and sediment control measures are to be implemented prior to any works commencing at the site and must be maintained for as long as necessary after the completion of works to prevent sediment and dirty water entering the watercourse / foreshore environment. These control measures are to be in accordance with the requirements of Council or the consent authority and best management practices as outlined in the NSW Department of Housing’s “Management Urban Stormwater: Soils and Construction” Manual (1998) – the Blue Book.
(c)The Part 3A Permit from DIPNR is issued for works on FREEHOLD land only. This Permit is null and void for any works on Crown Land.
(d)Rehabilitation of the area in accordance with the 3A Permit Conditions or any direction from DIPNR is the responsibility of the Permit holder and owner or occupier of the land.
(e)Work as executed survey plans of a professional standard and including information required by DIPNR shall be provided to DIPNR on request.
(f)If in the opinion of a DIPNR officer works are carried out in such a manner that they may damage or adversely affect the watercourse or foreshore environment, the DIPNR officer may issue an oral or written direction to immediately stop all works.
(g)If any DIPNR Part 3A Permit conditions are breached, the Permit holder shall restore the site in accordance with these conditions and any other necessary remedial actions as directed by DIPNR. If any breach of the Part 3A Permit conditions requires a site inspection by DIPNR then the permit holder shall pay a fee prescribed by DIPNR for this inspection and all subsequent breach inspections.
63.The applicant must prior to the issue of the Construction Certificate pay the following fees:
(i)Landscape Bond $12,000.00
(ii)Landscape Bond Preparation Fee $250.00
(iii)Section 94 Contribution $19,109.06
64.The Applicant shall obtain an Environmental Protection Licence under the Protection of the Environment Operations Act 1977 ("POEO Act") and with respect to the licensed activities shall comply with the following conditions:
(A)1.1Except as expressly provided by these general terms of approval, works and activities must be carried out in accordance with the proposal contained in:
· the development application 03/281 submitted to City of Botany Bay on 22 October 2002.
· any environmental impact statement Materials Recycling and Fuel Substitute Generation Facility lots 5, 6, 7 & 8 (DP1048677) Moore and Baker Streets Botany 11 October 2002 relating to the development; and
· all additional documents supplied to the EPA in relation to the development, including Rethmann AES Botany Response to EPA Questions 1 to 10.
(A)2.1Any licence obtained will authorise the carrying out of the scheduled development work listed below at the premises listed in A3.
A.Construct a solid waste processing and recycling and refuse-derived fuel manufacturing facility.
(A)2.2Any licence obtained will authorise a waste facility that stores or transfers, or recovers by way of separating or processing more than 30,000 tonnes of waste per year.
(A)3.1Any licence obtained will apply to the following premises: lots 5,6, 7& 8, DP 1048677. No’s 3-5 Moore Street Botany NSW.
(A)4.1The applicant must, in the opinion of the EPA, be a fit and proper person to hold a licence under the Protection of the Environment Operations Act 1997, having regard to the matters in s.83 of that Act.
(A)5.1the following points referred to in the table below are identified in this licence for the purposes of monitoring and/or the setting of limits for the emission of pollutants to the air from the point.
Air
| EPA Identification no. | Type of Monitoring Point | Type of Discharge Point | Description of Location |
| 1 | Air emissions monitoring | Discharge to air | Exhaust from Fuel Substitute Generation Facility |
(B)1.1 Except as may be expressly provided by a licence under the Protection of the Environment Operations Act 1997 in relation of the development, section 120 of the Protection of the Environment Operations Act 1997 must be complied with in connection with the carrying out of the development.
(B)2.1The operator of the Materials Recycling Yard and Fuel Generation facility ("Licensee") must not cause, permit or allow any waste generated outside the premises to be received at the premises for storage, treatment, processing, reprocessing or disposal or any waste generated at the premises to be disposed of at the premises, except as expressly permitted by a licence under the Protection of the Environment Operations Act 1997.
(B)2.2Except as provided by any other condition of a licence under the POEO Act, only the following inert and/or solid waste listed below may be stored or transferred, recovered by way of separating or processing at the premises;
Note: The Licensee will be required to provide a list of the specific types of inert and/or solid waste to be accepted at the premises as part of the EPA licence application.
(B)2.3 The quantity of inert and/or solid waste stored or transferred, recovered by way of separating or processing at the premises must not exceed 100,000 tonnes per annum.
(B)4.1For each monitoring/discharge point or utilisation area specified in the table\s below (by a point number), the concentration of a pollutant discharged at that point, or applied to that area, must not exceed the concentration limits specified for that pollutant in the table.
1.1.1.1 POINT 1
| Pollutant | Units of measure | 100 percentile limit | Reference conditions |
| Solid particles | mg/m³ | 20 | dry, 273 K, 101.3 kPa |
(C)1.1Licensed activities under the POEO Act must be carried out in a competent manner.
This includes:
A.the processing, handling, movement and storage of materials and substances used to carry out the activity; and
Bthe treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.
(C)2.1All plant and equipment installed at the premises or used in connection with the licensed activity:
A.must be maintained in a proper and efficient condition; and
B.must be operated in a proper and efficient manner.
(C)3.1No condition of any POEO Act licence identifies a potentially offensive odour for the purposes of section 129 of the Protection of the Environment Operations Act 1997.
Note: Section 129 of the POEO Act provides that the Licensee must not cause or permit the emission of any offensive odour from the premises, but provides a defence if the emission is identified in the relevant environment protection licence as a potentially offensive odour and the odour was emitted in accordance with the conditions of a licence directed at minimising odour.
(C)4.1 The premises must be maintained in a condition which prevents the emission of wind blown or traffic generated dust or litter from the premises.
(C)4.2All operations and activities occurring at the premises must be carried out in a manner that will minimise the emission of dust and litter at the premises.
(C)4.3 There must be no visible emissions of dust from the premises.
(C)4.4 Without limiting sub condition (C)4.1, (C)4.2, (C)4.3 the following measures must be followed to minimise dust and litter generation at the premises;
A.Loading of vehicles at the RWO facility and the FSG facility will not take place within the building but at the rear of the building, partly under cover. Loading of vehicles collecting from the MRF will also occur at the rear, partly under cover. However all unloading of trucks to the MRF will occur inside.
B.Litter generated at the premises must be cleaned up as soon as practicable;
C.The Fuel Substitute Generation (FSG) plant must only be operated when the dust extraction and collection system is operating.
(C)4.5 Trucks entering and leaving the premises that are carrying loads must be covered at all times, except during loading and unloading.
(C)5.1An Erosion and Sediment Control Plan (ESCP) must be implemented. The plan must describe the measures that will be employed to minimise soil erosion and the discharge of sediment and other pollutants to lands and/or waters during construction activities. The ESCP should be prepared in accordance with the requirements for such plans outlined in Managing Urban Stormwater: Soils and Construction (available from the Department of Housing).
(C)6.1 All stormwater discharging from the premises in less than 6 month 6 minute storm events will be treated by on – site gross pollutant trap (s) before discharge from the premises.
(C)6.2 The gross pollutant trap (s) must be designed and maintained to capture (by weight) at least:
A.90% of gross pollutants;
B.75% of coarse sediment greater than 0.04 mm diameter; and
C.95% of oil and grease.
(C)6.3 Stormwater flows up to 1 in 100 year events must be retained on site and discharged at the 1 in 20 year flow rate.
(C)7.1All leachate generated at the premises shall be kept separate from the stormwater collection system and lawfully discharged to sewer or on off-site liquid waste treatment facility. All liquid that has been in contact with waste is considered to be leachate.
(C)8.1All practicable measures must be taken to prevent and minimise harm to the environment as a result of the construction and operation of the development.
(D)1.1The occupier must record the following for each consignment of refuse-derived fuel sent for energy recovery from the premises:
A.The tonnage of the consignment;
B.The facility to which the refuse-derived fuel was dispatched; and
C.The quality control testing of the consignment.
(D)1.2All records required to be kept by the licence must be:
A.in a legible form, or in a form that can readily be reduced to a legible form;
B.kept for at least 4 years after the monitoring or event to which they relate took place; and
C.produced in a legible form to any authorised officer of the EPA who asks to see them.
(D)1.3The following records must be kept in respect of any samples required to be collected: the date(s) on which the sample was taken;
A.the time(s) at which the sample was collected;
B.the point at which the sample was taken; and
C.the name of the person who collected the sample.
(D)2.1Monitoring for the concentration of a pollutant emitted to the air required to be conducted by the EPA’s general terms of approval, or a licence under the Protection of the Environment Operations Act 1997, in relation to the development or in order to comply with a relevant local calculation protocol must be done in accordance with:
A.any methodology which is required by or under the POEO Act 1997 to be used for the testing of the concentration of the pollutant; or
B.if no such requirement is imposed by or under the POEO Act 1997, any methodology which the general terms of approval or a condition of the licence or the protocol (as the case may be) requires to be used for that testing; or
C.if no such requirement is imposed by or under the POEO Act 1997 or by the general terms of approval or a condition of the licence or the protocol (as the case may be), any methodology approved in writing by the EPA for the purposes of that testing prior to the testing taking place.
Note:The Clean Air (Plant and Equipment) Regulation 1997 requires testing for certain purposes to be conducted in accordance with test methods contained in the publication “Approved Methods for the Sampling and Analysis of Air Pollutants in NSW”.)
(D)3.1The EPA may require the Licensee to conduct annual monitoring of noise levels at the premises.
(E)1.1 the licensee must keep a legible record of all complaints made to the licensee or any employee or agent of the licensee in relation to pollution arising from any activity to which any poeo act licence applies. The record must include details of the following:
A.the date and time of the complaint;
B.the method by which the complaint was made;
C.any personal details of the complainant which were provided by the complainant or, if no such details were provided, a note to that effect;
D.the nature of the complaint;
E.the action taken by the Licensee in relation to the complaint, including any follow-up contact with the complainant; and
F.if no action was taken by the Licensee, the reasons why no action was taken.
(E)1.2The record of a complaint must be kept for at least 4 years after the complaint was made.
(E)1.3The record must be produced to any authorised officer of the EPA who asks to see them.
(E)2.1The Licensee must operate during its operating hours a telephone complaints line for the purpose of receiving any complaints from members of the public in relation to activities conducted at the premises or by the vehicle or mobile plant, unless otherwise specified in the licence.
(E)2.2The Licensee must notify the public of the complaints line telephone number and the fact that it is a complaints line so that the impacted community knows how to make a complaint.
(E)2.3Conditions (E)2.1 and (E)2.3 do not apply until 3 months after the conditions takes effect.
(E)3.1 The Licensee must complete and supply to the EPA an annual return in the approved form comprising:
A.a Statement of Compliance; and
B.a Monitoring and Complaints Summary.
(E)3.2A copy of the form in which the Annual Return must be supplied to the EPA accompanies any POEO Act licence. Before the end of each reporting period, the EPA will provide to the Licensee a copy of the form that must be completed and returned to the EPA.
(E)3.3An Annual Return must be prepared in respect of each reporting, except as provided below
Note:The term “reporting period” is defined in the dictionary at the end of this condition. Do not complete the Annual Return until after the end of the reporting period.
· Where any POEO Act licence is transferred from the Licensee to a new Licensee,
A.the transferring Licensee must prepare an annual return for the period commencing on the first day of the reporting period and ending on the date the application for the transfer of the licence to the new Licensee is granted; and
B.the new Licensee must prepare an annual return for the period commencing on the date the application for the transfer of the licence is granted and ending on the last day of the reporting period.
Note: An application to transfer a licence must be made in the approved form for this purpose.
· Where any POEO Act licence is surrendered by the Licensee or revoked by the EPA or Minister, the Licensee must prepare an annual return in respect of the period commencing on the first day of the reporting period and ending on
A.in relation to the surrender of a licence - the date when notice in writing of approval of the surrender is given; or
B.in relation to the revocation of the licence – the date from which notice revoking the licence operates.
(E)3.4The Annual Return for the reporting period must be supplied to the EPA by registered post not later than 60 days after the end of each reporting period or in the case of a transferring licence not later than 60 days after the date the transfer was granted (the ‘due date’).
(E)3.5 Where the Licensee is unable to complete a part of the Annual Return by the due date because the Licensee was unable to calculate the actual load of a pollutant due to circumstances beyond the Licensee’s control, the Licensee must notify the EPA in writing as soon as practicable, and in any event not later than the due date.
The notification must specify:
A.the assessable pollutants for which the actual load could not be calculated; and
B.the relevant circumstances that were beyond the control of the Licensee.
(E)3.6The Licensee must retain a copy of the annual return supplied to the EPA for a period of at least 4 years after the annual return was due to be supplied to the EPA.
(E)3.7Within the Annual Return, the Statement of Compliance must be certified and the Monitoring and Complaints Summary must be signed by:
A.the licence holder; or
B.by a person approved in writing by the EPA to sign on behalf of the licence holder.
(E)3.8A person who has been given written approval to certify a Statement of Compliance under a licence issued under the Pollution Control Act 1970 is taken to be approved for the purpose of this condition until the date of first review this licence.
(E)4.1The Licensee or its employees must notify the EPA of incidents causing or threatening material harm to the environment as soon as practicable after the person becomes aware of the incident in accordance with the requirements of Part 5.7 of the Act
(E)4.2Notifications must be made by telephoning the EPA’s Pollution Line service on 131 555.
(E)4.3The Licensee must provide written details of the notification to the EPA within 7 days of the date on which the incident occurred.
(E)5.1Where an authorised officer of the EPA suspects on reasonable grounds that:
A.where any POEO Act licence applies to premises, an event has occurred at the premises; or
B.where any POEO Act licence applies to vehicles or mobile plant, an event has occurred in connection with the carrying out of the activities authorised by such licence,
C.and the event has caused, is causing or is likely to cause material harm to the environment (whether the harm occurs on or off premises to which the licence applies), the authorised officer may request a written report of the event.
(E)5.2The Licensee must make all reasonable inquiries in relation to the event and supply the report to the EPA within such time as may be specified in the request. The request may require a report which includes any or all of the following information:
A.the cause, time and duration of the event;
B.the type, volume and concentration of every pollutant discharged as a result of the event;
C.the name, address and business hours telephone number of employees or agents of the Licensee, or a specified class of them, who witnessed the event; and
D.the name, address and business hours telephone number of every other person (of whom the Licensee is aware) who witnessed the event, unless the Licensee has been unable to obtain that information after making reasonable effort;
E.action taken by the Licensee in relation to the event, including any follow-up contact with any complainants;
F.details of any measure taken or proposed to be taken to prevent or mitigate against a recurrence of such an event;
G.any other relevant matters.
(E)5.3The EPA may make a written request for further details in relation to any of the above matters if it is not satisfied with the report provided by the Licensee. The Licensee must provide such further details to the EPA within the time specified in the request.
(F)1.1 a copy of any poeo act licence must be kept at the premises to which the licence applies.
(F)1.2Any POEO Act licence must be produced to any authorised officer of the EPA who asks to see it.
(F)1.3Any POEO Act licence must be available for inspection by any employee or agent of the Licensee working at the premises or operating the vehicle or mobile plant.
(F)1.4The EPA may require the Licensee to provide a financial assurance in favour of the EPA in respect to remediation of the premises in the event of abandonment and/or a catastrophic event such as fire or flood.
65.There is no Condition 65.
66.
(a) Putrescible waste is to be stored in sealed containers and not kept on site for any longer than 48 hours.
(b)The pressure drop across the bag filter proposed for the facility is to be continuously monitored with an alarm to warn of sudden pressure drops (indicating a broken bag).
(c)Collected bag filter fines must be stored in an appropriate manner and disposed of in an environmentally appropriate manner.
(d)All trafficable areas of the Site are to be sealed and a cleaning programme implemented.
(e)A complaints register is to be maintained and a response procedure developed.
(f)Recommendations made by HLA-Envirosciences to minimise the risk of any dust explosions occurring are to be implemented and maintained at all times.
67. There is no Condition 67.
68.A 2.4 metre high lapped and capped timber or similar fence is to be installed along the Baker Street side boundary of No. 116 Wentworth Avenue, prior to the issue of an occupation certificate, provided the owner consents and the Council grants development consent. The barrier is to incorporate a 500mm high plexiglass panel in the upper portion of the fence to reduce the impact of shadows on the property. If Council consent is refused, a 1.8m high lapped and capped timber or similar fence is to be installed prior to the occupation certificate, provided the owner consents.
69.Construction and operation of the subject development is to be undertaken in accordance with the Environmental Management and OHS Plan, Moore and Baker Streets, Botany, prepared by Rethmann Australia Environmental Services Pty Limited and dated 1 December 2003 which was approved by the Council in December 2003.
70.The LAeq noise level when measured over a period of 10-15 minutes, 2-3 metres from the northern façade and 1.2-2 metres above the floor (as a spatial average along the entire building length) shall not exceed 85dBA.
71.The separate allotments that form the subject site shall be consolidated into a single allotment. Linen plans for the consolidation shall be submitted to Council within one month after the issue of an Occupation Certificate. Proof of the registration of the plan of consolidation with the Land Titles Office to be submitted to the Council within 6 months after the issue of the Occupation Certificate.
72.The Applicant is to provide double glazing or similar treatment for the purpose of reducing noise, to the bedroom windows on the Baker Street façade of the residential flat buildings at 50, 52 and 54 Holloway Street Botany, where the owners of those units notify the Applicant in writing within six (6) months from the date of this consent, that they consent to the installation of double glazing or similar treatment.
To this end, within one (1) month of the grant of this consent, the Applicant is to notify in writing each unit owner in 50, 52 and 54 Holloway Street that the Applicant is required to provide double glazing or similar treatment to the bedroom windows on the Baker Street façade of those buildings prior to the issue of the Occupation Certificate, and request that the unit owner advise the Applicant in writing within six (6) months of the date of this consent:
(c) whether the unit owner's unit has any bedroom windows on the Baker Street façade; and
(d) if so, whether the unit owner agrees to the installation of double glazing or similar treatment.
The Applicant is to submit evidence to the Council of either:
(a) the installation of double glazing or similar treatment in accordance with this condition; or
(b) the unit owner's written refusal or failure to accept the offer;
prior to the issue of the Occupation Certificate.
Advisory Note:
1. The consent given does not imply that works can commence until such time that:
(a) detailed plans and specifications of the building have been endorsed with a Construction Certificate by:
(i) the Council; or
(ii) an accredited certifier; and
(b) the person having the benefit of the development consent:
(i) has appointed a principal certifying authority; and
(ii) has notified the Council of the appointment; and
(c) the person having the benefit of the development consent has given at least 2 days' notice to the Council of the person's intention to commence the erection of the building.
Prior to use and occupation of the building, an Occupation Certificate must be obtained under Sections 109C(1)(c) and 109M of the Environmental Planning and Assessment Act 1979.
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