SCE Transport and Logistics Pty Ltd v Wollongong City Council

[2017] NSWLEC 1097

Land and Environment Court

New South Wales

Medium Neutral Citation:	SCE Transport & Logistics Pty Ltd v Wollongong City Council [2017] NSWLEC 1097
Hearing dates:	6 February 2017
Date of orders:	01 March 2017
Decision date:	01 March 2017
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	DEVELOPMENT APPLICATION: designated development; materials handling facility; application for adjournment; whether amendments are minor; whether impacts of proposal are acceptable
Legislation Cited:	Environmental Planning and Assessment Act 1979; State Environmental Planning Policy (Three Ports) 2013; Wollongong Local Environmental Plan 2009; State Environmental Planning Policy No 55 – Remediation of Land 2005; State Environmental Planning Policy No 71 – Coastal Protection; State Environmental Planning Policy (Infrastructure) 2007; Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	SCE Transport and Logistics Pty Ltd (Applicant)   Wollongong City Council (Respondent)
Representation:	Counsel: Ms S Duggan SC (Applicant) Mr M Wright (Respondent)   Solicitors: Mr M Cole Minter Ellison (Applicant) Mr J Reilly Wollongong City Council (Respondent)
File Number(s):	2016/158981
Publication restriction:	No

Judgment

1. SCE Transport & Logistics Pty Ltd (SCE) lodged Development Application DA-2015/368 seeking consent from Wollongong City Council to construct and operate an uncovered materials handling facility to accommodate three stockpiles at Lot A DP 31497, Lot 1 DP 417095, Lot A DP 90141, Lot A DP 417095 and Lot 53 DP 652788 Old Port Road, Port Kembla.

2. The council refused the application on 18 September 2015 and SCE is appealing that decision pursuant to the provisions of s97(1) of the Environmental Planning and Assessment Act 1979 (EP&AAct).

The site and its context

3. The site comprises four contiguous allotments at the north eastern corner of Old Port Road and Christy Drive, Port Kembla. It has a site area of approximately 3.02ha and is generally vacant with a hardstand area along the eastern side and a small administrative building along the Christy Drive frontage to the site adjacent to its vehicular entrance that is located in close proximity to a roundabout that services a large industrial complex on the opposite (southern) side of that road. The remainder of the site is covered with blast furnace slag.

4. According to the council’s Statement of Facts and Contentions (SoF&C), the site was previously used as a British Petroleum fuel storage depot. The fuel storage tanks have been subsequently demolished and removed and the ground levelled.

5. To the immediate north of the site lies processing and coke stockpile areas for the Bluescope Steelworks and immediately to the east is land used for industrial purposes and then Outer Port Kembla Harbour. A bulk storage facility and the Gateway Jetty loading facility are located to the immediate south and to the west is the Hyrock Materials and Blending Plant.

6. Residential areas of Port Kembla commence approximately one kilometre to the south in Wentworth and Horne Streets and the residential areas of Cringila and Warrawong are to the west and south west of the site. Those areas are in close proximity to the proposed haulage routes from the site.

Background and the proposal

7. The council has provided a description of the proposal in its SoF&C as follows:

The proposed material handling facility comprises three separate bays for stockpiles, as well as vehicular pathways, an administration building, parking for 10 cars, drainage and landscaping works. the facility will handle two separate materials, crushed gypsum and granulated blast furnace slag.

The proposal is said to be limited to a total throughput of 500,000 tonnes per annum, with the maximum amount of gypsum limited to 200,000 tonnes per annum and the blast furnace slag to 300,000 tonnes.

Crushed gypsum is a sulphate material composed of calcium sulphate dehydrate and granulated blast furnace slag is a by-product of smelting ore. It comprises calcium, silicon, aluminium, magnesium oxides and other trace metals.

It is proposed that the gypsum and blast furnace slag will be transported by ship to either the Gateway Jetty in Port Kembla Outer Harbour, or from a jetty located to the north of the Gateway Jetty. The material will then be loaded on to trucks, and transported to the site where it will be stockpiled. A bucket chute will be used to load the trucks from the ship. A truck unloader and telescopic stacker will then be used to transport the material from the trucks to the stockpiles.

Thereafter, separate trucks will enter the site and have material loaded from the stockpiles via a front end loader. The trucks will then transport the material via the proposed haulage routes to the west and the north, along Flinders Street, Five Islands Road to the Highway or via Springhill and Masters Roads to the Highway.

Vehicle access and egress is limited to Christy Drive, on the southern side of the site.

The facility will operate 24 hours a day, seven days a week during ship unloading and from 5am to 5pm Monday to Saturday at other times.

Up to 4.3 full time equivalent staff are proposed, over three shifts.

8. The works involve construction of biobasins with sediment traps, first flush capture, treatment and reuse of stormwater from those facilities and water sensitive urban design (WSUD) elements including a rain tank on the office building and bioretention in the carpark. These works are to address water quality treatment, detention and reuse of runoff.

9. The final design of these water quality facilities arose from joint conferencing and vary from that originally detailed in the Environmental Impact Statement exhibited as part of the notification of the application as required under s79 of the EP&AAct.

10. The council sought adjournment of the hearing on the basis of that change and the fact that it had not been notified.

11. The provision of s79(6) provide for circumstances in which public exhibition may be dispensed with. It provides that if a development application for designated development is amended before it has been determined and the consent authority has complied with the notification requirements set out in subclauses 1, 2 and 3 and the consent authority is of the opinion that the amended application differs only in minor respects from the original application it may decide to dispense with further notification.

12. I gave my reasons during the hearing for not granting the adjournment sought. In summary, I found that the proposed amendments to the plans and details addressing in particular the water quality treatment methods were minor.

13. The system of managing surface water is still the same as was originally described in the EIS. It relies on a series of sediment basins and bio-filters. That has not changed. What has changed is the addition of retaining walls instead of earth bunds to confine the basins and the introduction of first flush capture, treatment and reuse from the sediment traps and the change from a clay base to using an impervious lining. This does not alter the fundamental concept espoused in the original documentation.

14. It will, according to the evidence before me, improve the management of the surface waters but does not in any way change the nature of the system that will be utilised. These facts led me to determine the change was minor and that renotification would not be required.

The planning controls

15. The site is zoned SP1 Special Activities pursuant to the provisions of State Environmental Planning Policy (Three Ports) 2013 (SEPP2013). Clause 14(2) of that policy requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the SP1 zone are:

• To provide for special land uses that are not provided for in other zones.

• To provide for sites with special natural characteristics that are not provided for in other zones.

• To facilitate development that is in keeping with the special characteristics of the site or its existing or intended special use, and that minimises any adverse impacts on surrounding land.

• To maximise the use of waterfront areas to accommodate port facilities and industrial, maritime industrial, freight and bulk storage premises that benefit from being located close to port facilities.

• To enable the efficient movement and operation of commercial shipping and to provide for the efficient handling and distribution of freight from port areas through the provision of transport infrastructure.

• To provide for port related facilities and development that support the operations of Port Botany, Port Kembla and the Port of Newcastle.

• To facilitate development that by its nature or scale requires separation from residential areas and other sensitive land uses.

• To encourage employment opportunities.

16. The proposed use is permissible with consent under the provisions of SEPP2013.

17. The provisions of Wollongong Local Environmental Plan 2009 do not apply and therefore nor do the provisions of the associated Wollongong Development Control Plan 2009.

18. Other relevant environmental planning instruments are State Environmental Planning Policy No 55 – Remediation of Land 2005 (SEPP55); State Environmental Planning Policy No 71 – Coastal Protection (SEPP71) and State Environmental Planning Policy (Infrastructure) 2007 (SEPPInfrastructure) however none of the contentions in the case relate to these policies.

19. As “Shipping facilities (Wharves or wharf-side facilities at which cargo is loaded onto vessels, or unloaded from vessels, or temporarily stored, at a rate of more than:

(a)  150 tonnes per day, or 5,000 tonnes per year, for facilities handling goods classified in the Australian Dangerous Goods Code, or

(b)  500 tonnes per day or 50,000 tonnes per year”

the proposal is designated development. It is also integrated development in accordance with the provisions of the Environmental Planning and Assessment Act 1979 (EP&AAct).

20. As stated above, the application and the associated Environmental Impact Statement (EIS) was notified as designated development in accordance with the relevant requirements of that Act and I have determined that the proposed changes to the water quality management system are minor so that no further notification would be required.

21. General Terms of Approval (GTAs) were issued by the NSW Environment Protection Authority (EPA) on 9 February 2017 following the completion of the hearing and are incorporated into the conditions of consent that were filed with the Court on 22 February 2017 in accordance with directions given during the hearing.

The issues

22. Other than the assessment of the matters raised by objectors to the application, the council no longer presses any of the contentions raised in the Statement of Facts and Contentions filed on 16 November 2016 (Exhibit 9). That is because of the additional work done by the applicant and the position reached by the experts in assessing that information reach a conclusion that the development is appropriate subject to the imposition of recommended conditions of consent.

23. It is the council’s position that the application is capable of receiving consent subject to conditions including the EPA’s GTAs.

The evidence

24. The Court had viewed the site at the commencement of a conciliation conference held pursuant to the provisions of s34 of the Land and Environment Court Act 1979 (LECAct). The view included inspection of a site operated by the applicant at Shellharbour Road Kemblawarra. Of particular interest to the parties and the Court were the stockpiles of gypsum.

25. No agreement was reached during the conciliation phase and the matter is now heard pursuant to the provisions of s34(4)(b)(i) of the LECAct.

26. At the commencement of the site view evidence was heard from a number of objectors to the proposal. The issues raised are summarised as follows:

• Facility should be enclosed and not open stockpiles to ensure no air quality issues arise from dust;

• Impacts of proposal will result in adverse health issues, particularly in relation to air quality;

• Transportation will affect residential areas;

• Potential water quality issues that may adversely affect harbour waters;

• Ineffective dust suppression measures;

• Cumulative impact of development when added to existing open stockpiles in the locality;

• Inadequate measures employed to address hazardous materials.

27. At the commencement of the hearing, an objector, a representative of the “Port Kembla Pollution Meeting” addressed the Court. The group he represents was founded 30 years ago, and according to its letterhead, “provides an open forum for local community, industry and relevant government agencies to work co-operatively reducing levels of pollution that impact on the health and comfort of the community”. Many of the persons who spoke during the site view were members of this group.

28. The issues raised are also summarised, many repeat those made on site and are detailed below:

• Open air stockpiles fail the tests for cumulative air pollution, effective self-regulation, appropriate monitoring, effective pollution mitigation action and accurate measurement of the actual volume of air borne particulates;

• Proposal is a cheap alternative that compromises the health and quality of life for Port Kembla residents and surrounding suburbs;

• SCE produce unacceptable, unabated fugitive dust emissions from its existing site;

• Development is likely to cause harm to the environment;

• Granulated blast furnace slag is irritating to the eyes, slightly corrosive and irritating to the respiratory system and skin;

• The release of 50,000 kilograms of dust per annum is unacceptably understated and immeasurable in any way that permits an accurate compliance check with any licence condition that may be imposed;

• Real time dust monitoring should be one of the conditions of consent with a raft of other stringent controls;

• High cost of dealing with respiratory conditions, many caused from industrial activities;

• Development must comply with the provisions of the Protection of the Environment Operations Act 1997;

• The proposed operation should be housed in a negative pressured shed.

29. Mr Peterlin provided a series of photographs of dust from nearby facilities and a map that shows the location of other open stockpiles in Port Kembla. His submission and supporting documentation was tendered as Exhibit 2. That document includes the original submission lodged by the group which was also used by a number of other persons when lodging their objections to the council in response to the notification of the designated development application.

30. The EPA has worked with the council in the assessment of the application and its staff have provided Statements of Evidence in these proceedings as follows:

• Exhibit 6, Mr R Watson, air quality issues;

• Exhibit 7, Mr T Riding, potential water pollution issues; and

• Exhibit 8, Mr J Knight, potential groundwater pollution issues.

31. These reports identified deficiencies in the matters included in the EIS and subsequent reports were prepared for the applicant including expert reports in these proceedings. The EPA experts, where sufficient detail had been provided, also recommended conditions of consent that should be imposed and gave reasons where the council’s draft condition differed from that proposed by the applicant.

32. The applicant’s experts are Mr A Todoroski, air quality; Mr R Harwood, groundwater and hydrology; Mr M Brown, stormwater and flooding and Mr T Lawrence, traffic.

Air quality

33. The experts are in agreement on all key air-quality matters regarding the potential for dust impacts on receptors in vicinity of the project. Overall they agree the project would not result in unacceptable air quality outcomes or impacts and they recommend implementation of conditions which reflect what is proposed and ensure that the operation is adequately managed. Those conditions form part of the general terms of approval provided by the EPA.

34. Of particular note is a condition that requires the site to be designed and constructed in such a manner so as not to preclude the retrofit of total enclosure of all material stockpiles at the site. Further, restrictions on the height of stockpiles, moisture content and loading operations are imposed with the proponent required to install and operate a meteorological monitoring station to measure a range of parameters and to prepare and air quality management plan.

35. Independent environmental audits are to be commissioned within one year of commissioning the project and every three years thereafter unless otherwise agreed in writing by Council and the EPA. That audit is to assess the environmental performance of the project and its effect on the surrounding environment; the effectiveness of the measures identified within the air-quality management plan and compliance with the Environment Protection Licence (EPL) and development approval conditions and requirements.

36. It is also to review the adequacy of dust controls and management measures for the project against performance indicators and include a summary of any dust complaints received and actions taken to reduce dust emissions where complaints are verified recommending any feasible and practical measures or actions to improve the environmental performance of the project and/or its environmental management and monitoring system and must include an agreed timetable for implementation of any identified mitigation measures or management practices identified.

Groundwater

37. Mr J Knight (EPA/Council) and Mr R Harwood prepared Statements of Evidence and a Joint Report, Exhibit 10 that dealt with the contentions regarding impacts to groundwater.

38. They are in general agreement on groundwater issues in relation to impacts from the proposed stockpiles on water quality and agree that the proposed stockpiles will not adversely affect the quality of the groundwater or the mounding of the groundwater in relation to the anticipated volume and nature of groundwater which is likely to recharge stockpile mounds. They have also recommended conditions to reflect what is proposed and ensure that the operation is adequately managed. More rigorous conditions have been imposed by the EPA in its GTAs.

Surface Waters

39. The final Joint Expert Report of surface water experts, Mr M Brown, Mr T Riding and Mr A Norris, Exhibit 3, considered the revised design surface water treatment. That report examined the three key components of the new design solution documented and proposed by the applicant which is summarised as follows

1. Bio basins with sediment traps (previously documented) with amendments to the design of both to address issues raised in earlier reports

2. First flush capture, treatment and reuse from sediment traps (not previously documented). 15 mm of run-off is captured and reused from Basins 1 and 2, and 10 mm of run-off is captured and reused from Basin 3. It is noted no first flush is provided on the office carpark catchment (subcatchment 2B).

3. WSUD elements in catchment 2B (rain tank on the office building and bioretention in the car park) (previously documented).

40. The experts agree that combined, these measures provided for water quality treatment, detention and beneficial reuse of run-off. The footprint of biobasins 1 and 2 has not changed from the original application however the sediment trap in bio Basin one has doubled to 200m². This was done to prevent interaction of groundwater in this location. All basins are now proposed to be vertical walled structures (to increase capacity within the same footprint) and to be lined to make them impermeable.

41. Extended detention has been provided over biobasins, and they will need walls to detain water in them.

42. It is these changes that were subject to the application for an adjournment and, based on this information, as stated above, are considered to be minor changes that did not require re-notification or amendment to the EIS.

40. MUSIC and DRAINS modelling for the project was updated to assess the new design solution now proposed and the experts agree that the proposed system satisfies council's requirements that post development flows are no worse than predevelopment flows for the five-year and 100 year rain events and the treatment system exceeds Council's 80/55/40 criteria for total suspended solids/total phosphorus/total nitrogen.

41. They also agree the treatment system demonstrates that less pollution for the materials will be omitted from the site and currently occurs.

42. Their recommended conditions of consent have been incorporated into the GTAs.

Conclusion and findings

46. The council does not submit that the application should not be approved and in fact argues that it is capable of approval subject to the imposition of appropriate conditions of consent including those recommended by the EPA in its GTAs. Those conditions have now been agreed and filed and I note that they contain all of the conditions as recommended by the experts in these proceedings including in some instances more onerous and rigorous requirements.

47. Section 79C of the EP&AAct sets out the relevant matters that must be taken in determination of a development application. In this matter they are the provisions of SEPP2013, SEPP55, SEPP61 and SEPP Infrastructure noting that there is no development control plan associated with those policies. having regard to the evidence, the proposed development would not be inconsistent with the objectives of the SP! Special Activities zone.

48. In addition, the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality must be considered as must the suitability of the site for the development, any submissions made in accordance with the Act or the regulations and the public interest.

49. Having regard to the evidence, I am satisfied that the development is consistent with all relevant environmental planning instruments.

50. The expert evidence provided to the Court deals with the likely impact of the development including environmental impacts of the development on the natural and built environments and supplements the information provided in the EIS. This evidence also provides the Court with information that enables consideration of the social and economic impacts.

51. Based on the evidence before me, I am satisfied that the proposed development constructed in accordance with the details described in the EIS and subsequent evidence and subject to the proposed conditions of consent including the stringent terms of the EPA’s GTAs, would not result in adverse environmental, social or economic impacts.

52. In relation to those matters raised by objectors to the proposal, I note that the conditions proposed include a requirement for future enclosure of the facility and should the applicant fail to meet the stringent monitoring and compliance provisions of those conditions, that option is available.

53. The evidence before me is that the proposal will not result in adverse health issues, particularly in relation to air quality and again, the conditions provide for stringent monitoring of emissions. Similarly, conditions require loads to be covered and transportation of materials through residential areas will be reduced as a result of the relocation of the facility to the site.

54. The expert evidence is that the proposed water quality issues that may adversely affect harbour waters are adequately addressed in the design of the proposal and monitoring is also required through the conditions that are to be imposed. Similarly, dust suppression measures have been found to be appropriate and therefore the concern of cumulative impact of development when added to existing open stockpiles in the locality is negated.

55. Adequate measures are to be employed to address hazardous materials.

56. The GTAs provide for daily monitoring of pollutants.

57. The conditions will also ensure that the development must comply with the provisions of the Protection of the Environment Operations Act 1997.

58. My assessment of the technical aspects of the application is reliant on the evidence before me and in particular, that of the officers of the EPA. It in no way derogates the views and concerns of the local community which are entitled to protection from adverse impacts of any development. I am satisfied from the evidence that the proposed development operated in accordance with the conditions of consent is an appropriate development for the site, is well located in terms of port access and includes provision for suitable monitoring and licencing.

59. There being no reasons why consent should not be granted, the Orders of the Court are:

1. The appeal is upheld.

2. Development Application DA-2015/368 for the construction and operation of an uncovered materials handling facility to accommodate three stockpiles at Lot A DP 31497, Lot 1 DP 417095, Lot A DP 90141, Lot A DP 417095 and Lot 53 DP 652788 Old Port Road, Port Kembla is approved subject to the conditions in Annexure A.

3. The exhibits, other than exhibit 9, are returned.

______________________

Sue Morris

Commissioner of the Court

158981.2016 Annexure A (113 KB, pdf)

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Decision last updated: 01 March 2017