Sell and Parker Pty Limited v Blacktown Council - [2001] NSWLEC 12

Land and Environment Court

of New South Wales

CITATION: Sell & Parker Pty Limited v Blacktown Council [2001] NSWLEC 12

PARTIES:
APPLICANT:
Sell & Parker Pty Limited
ACN 000 101 315
RESPONDENT:
Blacktown City Council

FILE NUMBER(S): 10204 of 2000

CORAM: Lloyd J

KEY ISSUES: Development Application :- whether hazardous industry - whether offensive industry - components of development not to be considered in isolation for the purpose of characterisation

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 91 and s 97
Environmental Planning and Assessment Regulation 1994 Sch 3
Protection of the Environment Operations Act 1997
State Environmental Policy No. 33 - Hazardous and Offensive Development Pt 2 and Pt 3
Blacktown Local Environmental Plan 1998

CASES CITED: Rudman v Tweed Council, NSWLEC, Bignold J, 28 September 1993, unreported

DATES OF HEARING: 06/11/2000; 07/11/2000; 08/11/200; 09/11/2000;
10/11/2000; 05/02/2001 and 06/02/2001

DATE OF JUDGMENT:
05/11/2001

LEGAL REPRESENTATIVES:
APPLICANT:
Mr N A Hemmings QC (Solicitor)
SOLICITORS:
Allen Allen & Hemsley
RESPONDENT:
Mr M J Craig QC
SOLICITORS:
Michell Sillar

JUDGMENT:

Sell & Parker Pty Limited

ACN 000 101 315

Applicant

Blacktown City Council

Respondent

JUDGEMENT

1. This is an appeal under section 97 of the Environmental Planning and Assessment Act 1979 ("The EP&A Act”) against the deemed refusal by the respondent, Blacktown Council (“the council”) of a development application for a metal recycling facility. Following the filing of the appeal the council resolved to refuse the development application.

2. An amended statement of issues relied upon by the council lists twenty nine issues. It seems, however, that this is another example of the ingenuity of lawyers to say essentially the same things in a great number of ways. The basic issues which were raised at the hearing are discussed below.

3. The land to which the development applies is known as No. 45-54 Tattersall Road, Kings Park. The land has an area of about 2.91 hectares, having a frontage of about 100 metres to Tattersall Road, a depth of about 260 metres and a rear boundary adjacent to Breakfast Creek. The land has a fall of about 7.5 metres from Tattersall Road to Breakfast Creek.

4. On 27 November 1996 the council granted development consent for the establishment of a metal recycling facility on the central and southern (or rear) part of land. The development authorised by that consent is a metal shear facility, an office building, a weighbridge, storage bays, a stormwater detention dam and car parking. The approved development has been implemented and has, I understand, been in operation for about the last three years.

5. The present development application is for the establishment of a hammermill (also known as a fragmentiser or metal shredder) on the northern part of the land (near Tattersall Road), together with associated components. The development also proposes to make use of the existing administrative buildings, the existing maintenance facilities and the existing stormwater detention dam on the southern part of the land. The development also proposes some additional car parking on the southern part of the land and the extension of acoustical fencing and landscaping proposed for the northern part of the site onto the southern part as well.

6. The hammermill is designated development, being classified as a “mineral processing or metallurgical works" as described in Schedule 3 of the Environmental Planning and Assessment Regulation 1994. It is also integrated development within the meaning of section 91 of the EP&A Act, requiring approvals from the Environment Protection Authority (“the EPA”) pursuant to the Protection of the Environment Operations Act 1997; and from the Department of Land and Water Conservation pursuant to the Rivers and Foreshores Improvement Act 1948, as part of the proposed development is within 40 metres of Breakfast Creek.

7. According to the Environment Impact Statement (“the EIS”), the development will enable the processing of 60,000 tonnes of raw material per annum. About 90 per cent of the raw material will be industrial scrap metal and demolition waste and the remaining 10 per cent will comprise car bodies. The annual output of the development will be 4,000 tonnes of ferrous material and 250 tonnes of non-ferrous material such as aluminium, copper and smaller quantities of other material such as lead.

8. The main component of the development is the hammermill (which is also variously described in the evidence as a fragmentiser or shredder). This is a fairly awesome machine which breaks up the raw material which is fed into it at one end so that it emerges at the other end as fragmented or shredded pieces of metal suitable for re-processing.

9. The main components of the development are:

a) raw material stockpile with bunding and oil water separators;

b) rubber tyre materials handler to remove raw feed materials;

c) metal recycling plant equipment comprising:

d) waste enclosure;

e) product stockpile;

f) rubber tyre loader;

g) aboveground hydrocarbon storage tank with storage capacity of 5,000 litres with secondary containment.

10. The materials handler will feed all material into the metal recycling plant at the southern end and the finished product will be emitted from the northern end. The metal recycling plant is 17 metres high and will cover an area of approximately 70 metres by 50 metres. It will be situated directly behind a proposed retaining wall and a screen wall which is 7.5 metres from the front property boundary along Tattersall Road.

11. The development includes excavation of the site by up to 4 metres commencing 7.5 metres from the northern boundary to accommodate the metal recycling plant and concreting of the entire site.

12. The development also includes:

a) three additional car spaces adjacent to the existing office building and nine car spaces on the south eastern corner of the site;

b) new access roadway and weighbridge at the southern end of the site adjacent to the proposed additional car spaces and existing maintenance building;

c) a wheel wash at the exit from the site to Tattersall Road;

d) landscaping around the perimeter of the site;

e) reinforced concrete retaining walls on the northern, western and eastern sides of the metal recycling facility;

f) four metres high fencing on the northern, eastern and western boundaries of the site; and

g) use of the existing office building for staff amenities including lunchroom, bathroom and office space.

13. The processing operation of the metal recycling facility is to be as follows:

a) cars and scrap metal are fed into the conveyors by a raw materials handler;

b) the feed conveyor feeds material into the hammermill which shreds material into fist-size pieces;

c) a draft fan extracts air from the hammermill and passes it through the cyclone to remove particulates, then through a wet scrubber to remove fine dust;

d) fragmented raw material is then carried on an inclined conveyor belt and dropped into a conveyor chute and undergoes a cleaning process;

e) cleaned fragmented material then runs through a drum magnet, which collects ferrous materials and drops them onto a picking conveyor where operators manually remove non-ferrous material. Non-ferrous material drops beneath he drum magnet;

f) materials then continue along the conveyor which off-loads the ferrous product into the product stockpile via an eddy current separator, which collects aluminium copper and brass in a skip. The remaining material proceeds through various sorting and collection processes;

g) remaining material constitutes waste product and proceeds into a brick bunker. Waste products typically comprise mixed plastics, particulates, glass and foam. Solid wastes such as mud and loose dirt also result.

Is the development permissible under the planning controls?

14. The first issue in the case is whether the development is prohibited within the relevant zone. The subject land is within Zone No. 4(a) General Industrial Zone under the Blacktown Local Environmental Plan 1998 (“the LEP”). Clause 9(3) of the LEP states:.

Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on the land to which this plan applies unless the consent authority is of the opinion that the carrying out of development is generally consistent with one or more of the objectives of the plan and one or more of the objectives of the zone within which the development is proposed to be carried out.

15. The objectives of the zone include the following:

...

(b) to encourage the establishment of new industry and other compatible, large-scale activity in appropriate locations;

(c) to accommodate large industrial, warehousing and the like developments such as auction rooms, plant and equipment hire establishments, timber yards and the like, but to prohibit offensive or hazardous industries;

…

(f) to ensure permitted development creates areas which are pleasant to work in and are safe and efficient in terms of transportation and land utilisation

(g) to enhance and improve the physical environment of the City of Blacktown by minimising disturbances caused by air pollutants, water pollutants, other pollutants and noise pollution;….

16. The zoning table for the 4(a) Zone expressly allows, with development consent, an industry listed in Schedule 3 to the Environmental Planning and Assessment Regulation 1994, being designated development. The zoning table expressly prohibits hazardous industries and offensive industries within the 4(a) Zone.

17. A “potentially hazardous industry” is described in the LEP as follows:

potentially hazardous industry means a development for the purposes of an industry which, if the development were to operate without employing any measures (including, for example, isolation from existing or likely future development on other land) to reduce or minimise its impact in the locality or on the existing or likely future development on other land, would pose a significant risk in relation to the locality:

to human health, life or property; or

to the biophysical environment

and includes a hazardous industry and a hazardous storage establishment;

18. A “hazardous industry” is defined in the LEP in the following terms:

hazardous industry means a development for the purposes of an industry which, when the development is in operation and when all measures proposed to reduce or minimise its impacts on the locality have been employed (including, for example, measures to isolate the development from existing or likely future development on other land in the locality), would pose a significant risk in relation to the locality:

to human health, life or property; or

to the biophysical environment,

19. These two definitions are identical to the definitions of “potentially hazardous industry” and “hazardous industry” in State Environmental Planning Policy No. 33 – Hazardous and Offensive Development (“SEPP 33”).

20. Similarly, the definition of “potentially offensive industry” and “offensive industry” in the LEP are identical to those definitions in SEPP 33. Those definition are as follows:

potentially offensive industry means a development for the purposes of an industry which, if the development were to operate without employing any measures (including, for example, isolation from existing or likely future development on other land) to reduce or minimise its impact in the locality or on the existing or likely future development on other land, would emit a polluting discharge (including, for example, noise) in a manner which would have a significant adverse impact in the locality or on the existing or likely future development on other land, and includes an offensive industry and an offensive storage establishment.

offensive industry

means a development for the purposes of an industry which, when the development is in operation and when all measures proposed to reduce or minimise its impacts on the locality have been employed (including, for example, measures to isolate the development from existing or likely future development on other land in the locality), would emit a polluting discharge (including, for example, noise) in a manner which would have a significant adverse impact in the locality or on the existing or likely future development on other land in the locality.

21. Part 2 of the SEPP 33 applies to hazardous industries and to offensive industries. It provides that in determining whether a development is a hazardous industry or an offensive industry, consideration must be given to current circulars or guidelines published by the Department of Planning relating to hazardous or offensive development.

22. Part 3 of SEPP 33 applies to potentially hazardous and potentially offensive industries. It requires an applicant for such development to prepare in accordance with the current circulars or guidelines published by the Department of Planning, a preliminary hazard analysis and to submit the analysis with the development application (clause 12). In determining an application to carry out such development the consent authority must consider (in addition to other matters specified in the EP&A Act or in an environmental planning instrument applying to the development):

a) current circulars or guidelines published by the Department of Planning relating to hazardous or offensive development; and

b) whether any public authority should be consulted concerning any environmental and land use safety requirements with which the development should comply; and

c) in the case of development for the purpose of a potentially hazardous industry - a preliminary hazard analysis prepared by or on behalf of the applicant; and

d) any feasible alternatives to the carrying out of the development and the reasons for choosing the development the subject of the application (including any feasible alternatives for the location of the development and the reasons for choosing the location the subject of the application); and

e) any likely future use of the land surrounding the development. (Clause 13)

23. The applicant contends that the proposed development is not a hazardous industry nor an offensive industry, neither is it a potentially hazardous industry nor a potentially offensive industry. The council contends to the contrary.

24. The Department of Planning has published guidelines for the purpose of clause 12 of SEPP 33. The guidelines state that a preliminary hazard analysis should be prepared in accordance with a number of hazardous industry advisory papers prepared by the Department.

25. In Rudman v Tweed Council (NSWLEC, 28 September 1993, unreported) Bignold J held that the requirements of clauses 12 and 13 of SEPP 33 are properly to be regarded as directory and not mandatory. His Honour further held that it follows that non-compliance with those requirements does not produce invalidity in the resultant action, at least if it can be shown that there has been substantial compliance with the requirements. The conclusion of Bignold J is supported by a reading of the guidelines and advisory papers themselves, with statements such as “the PHA [the preliminary hazard analysis] should be prepared in accordance with Hazardous Industry Planning Advisory Paper No 6...” (not “must” or “shall”). On the same basis it would seem that clause 8 of SEPP 33, which requires that consideration must be given to current circulars or guidelines published by the Department of Planning in determining whether a development is a hazardous or potentially hazardous industry, or an offensive or potentially offence of industry, is similarly a directory and not mandatory requirement.

26. Both clauses 8 and 12 of SEPP 33 refer to circulars published by the Department of Planning as well as to guidelines. In one such a circular dated 16 March 1992 the Secretary of the Department stated:

The PHA need not be an elaborate or extensive study. For simple cases, a brief analysis, sufficient to satisfy consent authorities that the location and controls are appropriate should suffice.

This statement suggests again that substantial compliance with the relevant guidelines is sufficient.

27. If it can be said that the development is a potentially hazardous industry, then in the present case a hazard analysis substantially in accordance with the guidelines was prepared and was included as part of the EIS. Although called a “preliminary risk assessment” in the EIS it is, in substance, a preliminary hazard analysis which substantially complies with the above-mentioned circular and with the guidelines. Irrespective of the question of whether the development is a potentially hazardous industry or hazardous industry, there has, in my opinion, been substantial compliance with clause 12 of SEPP 33.

28. The applicant contends, however, that the development would not pose a significant risk in relation to the locality and is thus neither a potentially hazardous industry nor hazardous industry.

29. The council, on the other hand, contends that the development is either a hazardous or an offensive industry and is thus prohibited in the General Industrial zone. The significant risks to the locality posed by the development are said by the council to result from explosions (mainly the emission of projectiles, airblast overpressure and noise); fires in stockpiles (with resultant explosions and the emission of radiant heat and toxins); contamination (from the entry onto the land of toxic and hazardous materials); and the emission of polluting discharges. The council further submits that if the Court determines that the development is not characterised as either hazardous or offensive it should nevertheless be refused on its merits because of its unacceptable environmental impacts and/or because of the failure of the applicant to adequately identify and assess the potential environmental impacts.

30. I have set out the relevant definitions (in pars [17], [18] and [20] above). It seems to me that fundamental to the characterisation of the development is the answer to the question: what is “the development”?

31. The “development” in this case comprises the various components which I have set out (in pars [9] and [12] above), as described in the EIS. That is “the development” described in the application. The various components cannot, in my opinion, be considered in isolation from one another for the purpose of characterisation. To consider each component in isolation would be an artificial exercise and would corrupt the word “development” as used in the definitions which I have set out (in paras [17], [18] and [20] above).

32. In order to determine whether “the development” (which necessarily includes its various components) is within or without the definition of “potentially hazardous industry” or of “hazardous industry”, it is necessary to examine the whole proposal to determine whether it would pose a significant risk in relation to the locality. Similarly, in order to determine whether “the development” is within or without the definition of “potentially offensive industry” or “offensive industry”, it is necessary to examine the whole proposal to determine whether it would emit a polluting discharge in a manner which would have a significant adverse impact on the locality.

33. In another way, in order to make the determination called for by the definitions it is necessary to examine the impact of the proposed development in the same way that the merits of the proposal are assessed. That is to say, in assessing the merits of the proposed development one can at the same time reach the determination called for by the definitions. Conversely, reaching the determination called for by the definitions involves an assessment of the merits of the proposal.

34. An assessment of the merits of the proposal leads me to the following conclusions. In my opinion “the development” is neither a potentially hazardous industry nor is it a hazardous industry. Neither is “the development” a potentially offensive industry nor is it an offensive industry. If the development as proposed (which necessarily includes its various components) were to operate without employing any additional measures to reduce or minimise its impact, it would not, in my opinion, pose a significant risk in relation to the locality, neither would it emit a polluting discharge in a manner which would have a significant adverse impact in the locality. I have also come to the view that the development is acceptable on the merits. I have come to these views for the following reasons.

35. The key component of the development, the hammermill, is so designed that if an explosion does occur it will not have any significant consequences or pose any significant risk in relation to the locality. The hammermill is to be manufactured and supplied by Lynxs Shredder Technology Limited of the United Kingdom and it has a number of design features which make it different from American-made machines as used by other metal recycling facilities in Sydney. These design features were described in evidence by Mr T A Christian, a director of Lynxs Shredder Technology Limited and designer of the Lynxs hammermill. Mr Christian has been involved in the design and installation of similar Lynxs machines overseas. He was the only expert witness who was experienced in the design, installation and operation of such machines. I have no reason to doubt his evidence, which was tested by a long and searching cross-examination.

36. Without repeating the technical details of the design, I am satisfied by the evidence that no uncontrolled ejection of fragments can occur even if operator error results in combustible substances being introduced into the hammermill. Apart from the structure of the machine being designed to withstand explosion pressures, there is incorporated in the design a dust extraction system and the addition of water to dampen the feed materials and diminish sparking during the shredding process, thus reducing the probability of the ignition of any volatile fumes resulting from any residual hydrocarbons left after inspection and preparation of the feed material.

37. The evidence of the council contradicting Mr Christian’s evidence is less convincing. For example, Mr A Magrabi, a chemical and fire protection engineer who gave evidence for the council believed that the operating temperatures within the machine would be between 700 and 800 degrees Celsius (at which temperature the bearings would fail), whereas the design temperature is about 150 degrees Celsius. Moreover, Mr Magrabi had never seen a hammermill. I completely reject his evidence. I also prefer the evidence of Mr Christian to that of Dr Lozzi, senior lecturer in mechanical engineering at the University of Sydney and who was called by the council. Dr Lozzi's evidence seemed to be based on to some extent of his knowledge of a hammermill at a metal recycling plant operated by Simsmetal Limited at St Mary's, which has about five times the capacity of the proposed plant here, was made by a different manufacturer and does not possess a number of the design features of the proposed Lynxs plant.

38. The process to be adopted by the applicant involves the exclusion of dangerous goods, such as petrol, diesel oil or liquefied petroleum gas (LPG). LPG cylinders will be removed from the feed stock and then removed from the site. The storage and handling of unpurged cylinders will comply with the relevant Australian Standard. The proposed development includes the installation of a 5000 litre above ground tank for the storage of petrol, diesel oil and oil drained from the car bodies; and the storage of 1000 litres of hydraulic oil. The 5000 litre tank will be designed, installed and operated in accordance with the relevant Australian Standard. Car bodies will be handled in an upside-down position so that any fuel tanks (if present) can be discovered and removed before the car body is processed. Crushed or baled cars will not be accepted for processing. Fuel tanks will not be fed into the hammermill but will instead be processed at the presently existing metal shear facility. As noted above, in the unlikely event of scrap metal containing volatile flammable material being inadvertently fed into the hammermill resulting in an internal explosion, the hammermill is designed to accommodate such an event without any risk to anyone on the outside.

39. Noise levels are predicted to be an LA10 of 68dB(A) at the property boundary. This is within the EPA’s General Terms of Approval of a maximum LA10 of 70dB(A). Moreover, the noise will be non-impulsive. The plant incorporates a set of vibration isolating elements in its support structure so that there will be an imperceptible level of ground vibration at the property boundary. As to airblast overpressure in the event of an explosion within the plant, the development will comply with the EPA’s General Terms of Approval that any such airblast overpressure levels must not exceed 120dB (linear peak) when measured at the property boundary. The council’s acoustical consultant, Mr S E Cooper, accepts this as being an appropriate standard.

40. The dust generated by the development will arise mainly from the vehicle movements and the wet scrubber, and will be less than 0.1 gram per square metre per month (0.1gm/m2/month) and the annual average increase in total suspended particulates and PM10 would be less than 1 microgram per cubic metre (1g/m3) at the nearest residences. These are very low values and unlikely to be perceptible to householders. Flock-type waste will not be stored in the open but in a skip in an enclosed building from which it will be transported from the site to landfill after first being covered. Enclosed conveyors over the waste stream and a two-stage end extraction system will result in no dust escaping from the plant when it is in operation.

41. The council argues that as a result of the sealing of the northern part of the site, the volume of run-off containing leachate with concentrations of dissolved metal will increase, to be treated in the existing stormwater detention pond. It is then said by the council that such contaminants will be discharged into Breakfast Creek and will enter the groundwater system. The evidence shows that the active groundwater system is at present at a depth of less than 3 metres below the surface of the land; the groundwater beneath the surface will discharge into Breakfast Creek whenever the water level in the Creek is lower than the groundwater; and copper, lead and zinc are at present in the groundwater beneath the site at concentrations which exceed the Australian and New Zealand Environment and Conservation Council (1992) Guidelines (“ANZEC Guidelines”) for the Protection of Freshwater Aquatic Ecosystems. It is said that the washing of scrap metal in the primary stockpile area could cause contaminants to a be washed into the system; and stormwater run-off from parts of the site could be contaminated with oils, grease, sediment and metals generated during the operation of the development.

42. The testing of groundwater samples shows, however, that dissolved metal concentrations in the groundwater which is flowing onto the site are higher than those in the groundwater flowing off the site. This suggests that the existing detention pond and the site generally appear to be acting to reduce the concentrations of dissolved metals in the groundwater. Notwithstanding the existing metal recycling activities on the land, the site appears to be acting generally to improve the quality of groundwater from the up gradient to the down gradient. Moreover, leachate testing of the stockpile materials shows that concentrations of dissolved metals would be significantly lower than those occurring naturally in the existing groundwater. The proposed development site is to be sealed. This will in turn minimise the potential for any leachate to infiltrate the underlying ground. The capacity of the detention pond is such that it is designed to cope with a one in ten-year storm event; its capacity was approved by the council's engineer (who was not called) and who has stated that it will cope adequately with the proposed development; and the Department of Land and Water Conservation has approved it.

Conclusion

43. I am thus led to the conclusion that the development as proposed in this case would not pose a significant risk in relation to the locality to human health, life or property, or to the biophysical environment. It is thus not a potentially hazardous industry. It follows that it is also not a hazardous industry. Similarly, I am led to the conclusion that the development would not emit any polluting discharge in a manner which would have a significant adverse impact in the locality or on the existing or likely future development on other land. It is thus not a potentially offensive industry. It follows that it is also not an offensive industry.

44. The consequence of these conclusions is that the development is permissible with development consent. The discussion of the issues of merit which have led to these conclusions also shows that the development should be approved on merit, subject to the conditions which are attached to this judgment, most of which have been agreed to by the parties.

45. I should briefly indicate why those conditions which are disputed have been dealt with in the manner shown in the attached conditions.

Condition 2

46. Condition 2 provides: “the life of this consent is limited to a period of 20 years from the date of this consent.” This condition is imposed so as to be consistent with condition 3: “the development shall be carried out in accordance with the Environmental Impact Statement...” . The EIS states that the estimated life of the facility will be 20 years. The condition does no more than impose as a condition on the development consent a statement contained in the EIS. I accept the council’s submission that this condition is appropriate, so that if it is intended to continue the development beyond 20 years then advantage might be taken of any advance in the technology in that time.

Condition 3

47. The applicant seeks the inclusion of reference to figure 2.1, which is described in the development application plans as the existing site plan. The council opposes this because the plan is said by it to be not reflective of the state of affairs as they exist at the present time and it might otherwise be thought that consent is being granted to a modification of the existing development. I agree with the council’s contention. In order to remove any possible dispute as to what is the subject of the consent there will be no reference to figure 2.1 in the condition.

Condition 9(d)

48. This calls for the submission of engineering plans and design specifications. The applicant has no objection to this, but objects to the review of the design. This condition does not, however, require that there be a review of the material; it only requires that the drawings and specifications be furnished (so as to be included with or incorporated by reference in the construction certificate). This condition will be included.

Condition 9(e)

49. The parties have agreed on the amended condition in the form of the attachment hereto.

Condition 9(f)

50. This condition as sought by the council requires details of noise control and monitoring measures to be implemented during construction of the metal recycling facility to ensure that a level of 48 dB(A) LA10 will be achieved at all residences in accordance with Table 5.12 of the EIS. According to the council, what the condition seeks to do is to have identified for consideration the measures designed to ensure that the level is in fact met.

51. I do not think it is necessary to impose the condition. None of the acoustical engineers who gave evidence suggested that there would be any problem in meeting the nominated standard set out in the EIS. The condition is both onerous and unnecessary. It is deleted.

Condition 9(g)

52. The council seeks additional details in relation to the landscaping plan. The details sought by this condition are not included in the landscaping plan, neither are they included in the report of Dem Design which was tendered in evidence. In my opinion the additional information is both proper and necessary.

Condition 9(i)

53. This condition is in two parts. In the first part the council seeks to require that stormwater pollution controls be designed to meet the 95th percentile, five-day storm event. The need for this is said to arise from the uncertainty attaching to the capacity of the detention dam. The evidence shows, however, that stormwater pollution controls designed for the 75th percentile five-day storm would be appropriate. Both the EPA and the council’s engineer have expressed satisfaction with the storage capacity of the dam. I see no reason to adopt the standard sought by the council.

54. In the second part of the condition the council requires that waters in the post-construction phase which discharge into Breakfast Creek comply with the ANZEC Guidelines. The applicant argues, however, that the water in the dam meets drinking standard and is the same as the quality of the water in the creek and that the ANZEC Guidelines are excessive, onerous and cannot be met.

55. The evidence shows that stormwater goes through the ground and then into the detention dam, but the naturally occurring metals in the groundwater commonly exceed the ANZEC Guidelines. This is commonly the case throughout western Sydney. The minerality of the soil is a result of the weathering process of the underlying Wiaramatta shale. I thus accept the applicant’s contention that, for this reason, the condition as proposed by the council cannot be met. Condition 9(i) is amended accordingly to reflect these conclusions.

Condition 9(j)

56. The council seeks to impose a condition that, as part of the Erosion and Sediment Control Plan described in Condition 9(h), provision be made for the modelling of storm water pollution and to specify what the model must show.

57. I note that an Erosion and Sediment Control Plan is required by condition 03.1 of the EPA’s General Terms of Approval and that it must be prepared in accordance with the requirements for such plans outlined in the so-called “Blue Book”: Managing Urban Stormwater: Soils and Construction. In the light of the expert evidence adduced during the hearing I see no reason to impose different or other requirements. This condition, in my opinion, is not required and is deleted.

Condition 9(k)

58. The council requires an assessment of the adequacy of the existing water quality control measures on the site, including details relating to the existing sedimentation dam. The evidence adduced during the hearing, however, did not disclose any shortcoming in the operation, capacity or effectiveness of the dam or of water control measures on the site. In my opinion, this condition is unnecessary and is deleted.

Condition9(l)

59. Both parties have agreed to the deletion of this condition.

Condition 10

60. The council seeks to supplement Condition 9(h) by requiring the applicant to consult it regarding design parameters for the Erosion and Sediment Control Plan and requiring the system to be design in accordance with certain publication nominated by it. This condition may have the effect, however, of altering the design parameters in the “Blue Book” referred to in Condition 9(h) and in condition O3.1 of the EPA’s General Terms of Approval. I am not persuaded that this condition is either necessary or appropriate. It is deleted.

Condition 29

61. The council has sought to impose a condition to allow it to require additional erosion and pollution control measures in case the work is stalled and the site is left in an unfinished state, whether as consequence of liquidity problem on the part of the developer or otherwise. The applicant submits, however, that the council cannot reserve to itself the power to review conditions of the consent and such a condition would be ultra vires. I am inclined to agree with the applicant. The council’s position would be protected in such an event by other remedies. Condition 29 is deleted.

Condition 36

62. This condition which the council seeks merely repeats the noise criterion set out in the EIS. I can see no objection to specifically stating the criterion in a condition.

Condition 37

63. The parties agreed to amending this condition to the form in which it now appears.

Condition 50

64. The parties agreed to the deletion of this condition.

Condition 53

65. The parties agreed to the amendment of this condition to the form in which it now appears.

Condition 54

66. This condition has been amended to reflect the parties’ agreement to its form.

Condition 62

67. The council seeks to impose a condition requiring the applicant to obtain a licence from the EPA in relation to the discharge of waste waters into a watercourse; if the EPA does not require such discharges to be the subject of a licence then section 120 of the Protection of the Environment Operations Act 1997 must be complied with.

68. I agree with the applicant’s contention that this condition is inappropriate. The Protection of the Environment Operations Act is administered by the EPA and the applicant must comply with that Act in any event. This condition is also deleted.

Condition 64(e)

69. The council seeks to impose a condition requiring a fire safety study to be carried out to its satisfaction and to the satisfaction of the NSW Fire Brigades and WorkCover NSW, such study to be carried out in accordance with the relevant guidelines produced by the Department of Urban Affairs and Planning for the assessment of hazardous industries.

70. I agree with the applicant’s submission that this condition is unnecessary. The development application was referred to the NSW Fire Brigades which has expressed satisfaction with the operation and does not require a fire safety study. I see no reason why I should not accept the views of that body. The guidelines of the Department of Urban Affairs and Planning do not apply because the development is neither a hazardous industry nor a potentially hazardous industry. This condition is deleted.

Condition 71

71. This condition is amended as agreed to by the parties.

Condition 77

72. The parties agreed that this condition may be deleted.

Condition 78

73. The council seeks to verify the fact that no more than 10 per cent of the material processed comprises car bodies. It seeks by this condition to require the applicant to keep appropriate records and submit them to the council.

74. The applicant has no objection to the keeping of appropriate records, but objects to submitting them to the council for fear that its commercially sensitive records will became known to its trade competitors. The applicant proposes an alternative condition allowing officers of the council to inspect its records. I think that the applicant’s approach is appropriate and reasonable. The applicant’s alternative condition is adopted.

Condition 82(a)

75. The applicant agreed to accept this condition provided that the actual records do not have to be submitted to the council.

Condition 85

76. The parties agreed to this condition being amended in the manner in which it now appear.

Condition 88

77. This condition has been amended in the manner agreed to by the parties.

Condition 89

78. This condition is also amended in the manner agreed to by the parties.

Condition 102

79. This condition is amended to correct a reference to another condition.

Condition 103

80. This condition is amended to reflect what appears in table 3 in the report of Dr R Tonin (Exhibit D). The applicant objects to the fixing of any numerical standard, preferring a condition which requires compliance with the limits set out in the EPA Noise Control Manual and the Industrial Noise Policy 2000. In my opinion, however, the applicant should be held to what it says it can and will do.

Condition 111

81. The council accepts the alternative condition proposed by the applicant and which is now incorporated in this condition.

82. Conditions 112 and 113 deal with dust suppression. The council requires a water truck capable of supplying a water spray at a rate of 1.5 l/m2/hour to water unsealed traffic areas; and water spray for exposed material surfaces in the plant and stockpiles at a delivery rate exceeding 1.5l/m2/hour.

83. The applicant submits that the delivery rate proposed by the council of 1.5l/m2/hour is excessive and likely to cause run-off; the existing dry sweeper incorporates a vacuum extraction system and is satisfactory; and static dust supplement sprays are unnecessary

84. I agree with the applicant’s submissions. The EIS shows that the dust-generating standards can be met without the additional measures supported by the council. The two conditions proposed by the council are therefore substituted by a single condition to reflect the current and satisfactory practice.

Condition 115

85. This condition has been amended in accordance with the parties agreement.

86. Conditions 117 and 126A are, by agreement, deleted.

Condition 131

87. The council seeks a condition requiring the applicant to prepare an emergency plan in accordance with the relevant guidelines. The guidelines apply, however, only where the development is a potentially hazardous industry. I thus accept the applicant’s submission that there is no requirement for an emergency plan as sought by the council. This condition is deleted.

Condition 136

88. The parties have agreed on an amended condition which is accordingly included.

Condition 137

89. Similarly, the parties have agreed on an amended condition which is accordingly included.

Condition 140

90. The parties agreed to an amendment of this condition which is now in the agreed form.

Condition 147
91. The council seeks a cash bond or bank guarantee in the sum of $50,000 to ensure the effective establishment and maintenance of landscaping. The applicant opposes this but is prepared to consent to a bond or bank guarantee in the sum of $10,000.

There is no evidence to suggest what sum would be appropriate for such a purpose. There is nothing, however, to suggest that if the landscaping is not established and maintained, the council could not either prosecute the applicant or obtain an injunction from the Court to secure the observance of this or any other condition of consent. I would not have been inclined to require any bond or bank guarantee, but since the applicant agree to provide bond in the sum of $10,000 this is reflected in the condition.

92. Conditions 148, 149 and 151 are deleted as agreed by the parties.

Orders

93. I make the following orders:

2. Development consent is granted for a metal recycling facility and associated works at Nos. 45-54 Tattersall Road, Kings Park subject to conditions attached to these orders.

3. The exhibits, other than Exhibits A and B, may be returned.

CONDITIONS OF DEVELOPMENT CONSENT

Sell & Parker Pty Limited v Blacktown City Council

Lot 5, DP 7086, 45-54 Tattersall Road, Kings Park

Metal Recycling Facility -

Hammermill and Associated Works

1. This consent authorises the use of the northern part of the Site for the following purposes, subject to compliance with all other conditions of this consent:

METAL RECYCLING FACILITY (LYNXS SHREDDER AND ASSOCIATED COMPONENTS) WITH A MAXIMUM MASS FEEDSTOCK OF 60,000 TONNES PER ANNUM.

THE ONLY RAW MATERIALS PERMITTED TO BE SHREDDED ARE GENERAL METAL SCRAP AND CARBODIES. UNDER NO CIRCUMSTANCES ARE ANY PRESSURISED VESSELS OR ANY VOLATILE OR EXPLOSIVE SUBSTANCES TO ENTER THE METAL RECYCLING FACILITY.

2. The life of this consent is limited to a period of 20 years from the date of this consent.

3. The development shall be carried out in accordance with the Environmental Impact Statement dated December 1999 prepared by Environmental Resources Management (the “EIS”) and the Visual Impact Design by Dem design as amended by these conditions and the following plans:

Drawing No. Dated Council’s File Enclosure No.

SK-2 Large Rigid Truck undated

(12.5 metre) manoeuvring path

SK-3 Semi-trailer undated

turning paths (19.0 metre)

N00699-2-BE-SECT July 00 194C
Earthworks Plan &
Sections (Concept)

A1-R-2131-B October 00 355C

A1-R-2132-B October 00 355D

A1-R-2601-B October 00 355E
A1-R-302-A October 00 355F

219925-1B 19.8.00 352A

219925-2B 19.8.00 352B

219925-3B 19.8.00 352C

219925-4B 19.8.00 352D

4. In this development consent:

“Council” means Blacktown City Council.

“ EPA ” means the Environment Protection Authority of New South Wales.
“ DLWC ” means the Department of Land and Water Conservation.

“ Metal Recycling Facility ” means the metal recycling facility the subject of development application No. 99/7797.
“ Northern part of the Site” means the part of the Site between the existing office building, maintenance shed and the Tattersall Road frontage.

“ Sedimentation Pond ” means the sedimentation pond located on the southern portion of the Site.

“ Site ” means the land known as Lot 5 DP7086 being 45-55 Tattersall Road Kings Park.
“ Southern part of the Site” means the part of the Site to the south of the existing office building.

5. Any reference in this consent to a Construction, Compliance, Occupation or Subdivision Certificate is a reference to such certificates as defined by Section 109C of the Environmental Planning & Assessment Act 1979.

6. Separate approval is required for any ancillary activity not approved by this consent, including, without limitation, the erection of any advertising sign not being exempt development.

7. It is necessary to obtain a Construction Certificate (prior to construction of the approved development). A Construction Certificate may be issued either by Council or an appropriately accredited certifier. A separate application, complete with detailed plans and specifications, must be made for the Construction Certificate.

PRE-CONSTRUCTION CERTIFICATE MATTERS

Preamble

8. The following conditions in this section of the consent must be complied with or addressed prior to the issue of any Construction Certificate relating to the approved development, whether by Council or an appropriately accredited certifier. In many cases the conditions require certain details to be included with or incorporated in the detailed plans and specifications which accompany the Construction Certificate.

9. Prior to the issue of a construction certificate the following must be submitted to the Council or an appropriately accredited certifier:

(a) Details of the location of the decommissioning pit for vehicles, together with particulars of the size of the pit and the appropriate environmental safeguards and stormwater control.

(b) Details of external materials to be used on the waste enclosure. This is to include coloured samples in brochure form.

(c) Details of the location of the wheel wash and shaker pads together with particulars of the design, wash water recovery and sediment removal.

(e) Details of dust suppression and monitoring measures to be implemented during construction of the Metal Recycling Facility to achieve ambient air quality levels in accordance with the EPA Guidelines for Ambient Air Quality in respect of suspended particulate matter and dust deposition when measured at residential receptors.

(f) DELETED.

(i) Works required to ensure the stabilisation of any exposed soil areas.

(ii) Measures designed to ensure the survival of vegetation.

(iv) Details of the shade cloth to be erected on the Site, including, without limitation, the location, size and method of erection of the shade cloth. Shade cloths are to be used to augment the perimeter wall and fencing.

(h) An Erosion and Sediment Control Plan (“ ESCP ”) as required by condition 0.3.1 of the EPA’s General Terms of Approval for the Site (attachment “B” of this consent). The ESCP must be prepared in accordance with Council’s Soil Erosion and Sediment Control Policy and the state government’s guidelines entitled Managing Urban Stormwater: Soils and Construction (Department of Housing). The ESCP must incorporate (without being limited to) plans and details of the proposed measures and information on general Site management, material handling practices, soil stabilisation, water control, stormwater pollution control, wind erosion control and access protection measures during the construction and operation of the development.

(i) Stormwater pollution control works, as part of the ESCP, shall be designed to the following standards in the 75th percentile, 5-day storm depth:

(a) throughout the construction phase, achieve stormwater discharges of less than 50 milligrams per litre total suspended solids;

(b) in the post construction, the site is to be operated to prevent pollution of receiving of waters (Breakfast Creek), in accordance with the provisions of the Protection of the Environment Operations Act 1997.

DELETED.

(k) DELETED.

(l) DELETED.

Site Works and Drainage

10. DELETED.

Services

11. Information regarding the location of underground services may be obtained from the Sydney "Dial Before You Dig" service, telephone number 1100, fax number (02) 9806 0777. Enquirers should provide the street/road name and number, side of street/road and the nearest cross street/road.

12. The applicant is advised to consult with:

(a) Sydney Water Corporation Limited

(b) Integral Energy

(c) Natural Gas Company

(d) The relevant local telecommunications carrier
regarding their requirements for the provision of services to the development and the location of existing services that may be affected by proposed works, either on Site or on the adjacent public road(s). All approved building construction plans will need to be submitted to and stamped by Sydney Water Corporation Limited as an indication that they comply with the Corporation’s requirements. Sydney Water Corporation Limited may also require the applicant to obtain a Trade Waste Approval as part of the operation of the approved development. Enquiries should be made of the Corporation’s requirements for the eventual operation of the approved use.

Suburb Name

13. The land the subject of this consent is known to be located in the following suburb. This suburb name is to be used for all correspondence and property transactions:

Suburb: BLACKTOWN

14. Any advertising of land sales in association with the approved development shall clearly indicate that the development is located in the following suburb. No other estate names are to be used in any advertisements or other promotional information:

Suburb: BLACKTOWN

Other Fees and Security Deposits

15. The following fee must be paid to Council's Maintenance Section pursuant to Sections 608 and 609 of the Local Government Act 1993. The fee is subject to periodic review and may vary at actual time of payment.

(a) Vehicle Crossing Application and Inspection Fee: $176

16. Prior to the issue of a Construction Certificate, whether by Council or an appropriately accredited certifier, the following fee and bond are to be paid to Council. The fee and bond are subject to periodic review and may vary at actual time of payment.

Road inspection fee: $113

Road maintenance bond: $4776

Consistency with Approved Development Plans

17. Any Construction Certificate that may be issued in association with this development consent must ensure that any certified plans and designs are generally consistent (in terms of Site layout, Site levels, building location, size, external configuration and appearance) with the approved Development Application plans and in accordance with the conditions of the consent.

Compliance with Development Control Plan 1992

18. Except as otherwise approved, the design plans which accompany the Construction Certificate are to comply with the design criteria specified in Council's Development Control Plan 1992, Parts A and E.

Services and Service Authorities' Clearances

19. The following documentary evidence, if required, is to be obtained prior to the issue of any Construction Certificate.

(a) A Section 73 Certificate issued by the Sydney Water Corporation Limited or other evidence from the Urban Development Branch at the relevant Sydney Water Business Centre confirming that the Corporation does not object to the commencement of work on the basis of service availability.

Compliance with Building Code of Australia

20. All aspects of the building design shall comply with the applicable performance requirements of the Building Code of Australia so as to achieve and maintain acceptable standards of structural sufficiency, safety (including fire safety), health and amenity for the ongoing benefit of the community. Compliance with the performance requirements can only be achieved by:

(a) Complying with the deemed to satisfy provisions, or
(b) Formulating an alternative solution which :

(i) complies with the performance requirements, or

(ii) is shown to be at least equivalent to the deemed to satisfy provision, or

(c) A combination of (a) and (b).

Required Design Specification

21. All engineering works required by Part A must be designed and undertaken in accordance with the relevant aspects of the following documents, except as otherwise authorised by this consent:

(a) Blacktown City Council's Works Specification - Civil (Current Version)

(b) Blacktown City Council's Engineering Guide for Development
(Current Version)
Content and Type of Construction Certificate

22. Any Construction Certificate issued in relation to this consent shall incorporate and address the design of those works required by Part A of this consent and any ancillary works necessary to make the construction effective.

Hydrocarbon Tank

23. All licences and approvals required by the NSW WorkCover Authority, the NSW Fire Brigade and the EPA will be obtained in respect of the 5000L hydrocarbon tank prior to its commissioning.

PRIOR TO COMMENCEMENT OF CONSTRUCTION WORK

Notification to Council

24. At least 2 days prior to work commencing on the Site, Council must be informed, by the submission of Form 7 of the Environmental Planning & Assessment Regulation 1994, of the name and details of the Principal Certifying Authority (if applicable) and the date upon which the construction work is proposed to commence.

Toilet Facilities

25. Toilet facilities are to be provided, at or in the vicinity of the work Site on which work involved in the erection or demolition of a building is being carried out, at the rate of 1 toilet for every 20 persons or part of 20 persons employed at the Site.

Each toilet provided:

(a) must be a standard flushing toilet, and
(b) must be connected:

(i) to a public sewer, or

(ii) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or
(iii) if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council.

The provision of toilet facilities in accordance with this condition must be completed before any other work is commenced.

Signs on Building and Demolition Sites

26. A sign must be erected in a prominent position on part of the Site on which the erection or demolition of a building is being carried out:

(a) stating that unauthorised entry to the work Site is prohibited, and
(b) showing the name of the person in charge of the work and a telephone number at which that person may be contacted outside working hours.

This condition does not apply to:

(a) building work carried out inside an existing building, or
(b) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.

Soil Erosion and Sedimentation Control

27. All measures specified in the ESCP and the Construction Certificate to control soil erosion and sedimentation are to be installed prior to the commencement of construction works. Infringement Notices, incurring a monetary penalty, may be issued by Council where measures are not implemented or maintained.

28. To prevent sediment being removed from the Site on construction vehicles during the construction of the approved development, a portable wheelwash or similar device for cleaning truck wheels shall be installed at the exit point from the Site.

29. DELETED.

30. Structural details of all retaining walls, prepared and/or certified by a professional engineer or other appropriately qualified person, shall be lodged with Council prior to commencement or construction of any retaining wall.

Waste Disposal

31. For the purposes of effective off Site waste management, waste building materials and excavated soil wastes/fill materials must be disposed of to approved waste disposal depots or to licensed landfill sites.

32. Receipts from the licensed landfills or waste depots in respect of waste disposed of in accordance with Condition 38 must be submitted to the Council within 14 days of the disposal of the waste.

DURING CONSTRUCTION

Compliance with the Building Code of Australia

33. All building work must be carried out in accordance with the provisions of the Building Code of Australia.

Demolition

34. Demolition of the office building on the Northern part of the Site must be in accordance with the requirements of the Blacktown City Council Local Approvals Policy.

Noise Control

35. The hours of work for any construction work which generates noise are 7am to 5pm, Mondays to Fridays and 7am to 3pm Saturdays inclusive, with no such work to be conducted at any time on a Sunday or Public Holidays.

36. Any noise generated during the construction of the development shall not exceed 48dB(A) L10 at all residences.

Dust

37. Dust suppression and monitoring measures must be implemented to ensure that ambient air quality levels are in accordance with the EPA Guidelines for Ambient Air Quality in respect of suspended particulate matter and dust deposition when measured at the boundaries of the Site. This monitoring should at least include 30 day dust deposition [maximum dust deposition not to exceed 2 grams per square metre per month (2 g/m2/mth) above background to a maximum of 4 g/m2/mth total solids].

Construction Inspections

38. Compliance Certificates may be issued for the following applicable stages of the building construction:

Stage Nominated Work

(i) Footing system - placing concrete or covering.
(ii) Stormwater drainage - covering or backfilling.
(iii) Completion - occupation or use.

Any Compliance Certificate issued for the above stages of construction shall certify that all relevant ancillary or dependent work has been undertaken in accordance with the

Building Code of Australia

and any other condition of this consent.

39. Any Compliance Certificate issued for the above stages of construction shall certify that all relevant ancillary or dependent work has been undertaken in accordance with the Building Code of Australia and any other condition of this consent.

40. Any additional Council inspection, beyond the scope of any Compliance Certificate package and which is required to verify the compliance of any work, will be charged at the individual inspection rate nominated in Council’s Fees and Charges Schedule.

Building Materials and Wastes

41. Building and construction materials, plant and equipment are not to be placed or stored at any time on Council’s footpath or roadway.

42. Suitable and effective builder’s refuse and waste storage facilities are to be provided on the Site for the duration of construction works.

43. Roads adjoining the Site must be kept clean and free of materials excavated or transported from the Site.

Car Parking and Access

44. All required internal roads and car parking spaces are to be line-marked, sealed with a hard standing, all-weather material and maintained to a satisfactory useable standard.

45. All internal roads and other paved areas are to be graded to provide continuous surface drainage flow paths to approved points of discharge.

46. Entrance/exit points are to be clearly signposted and visible from both the street and the Site at all times.

47. Access to and parking for persons with disabilities is to be provided in accordance with Australian Standard 2890.1-1993.

Tree Protection and Landscaping

48. Barriers, tree guards and other measures employed to protect existing trees on Site are to be effectively maintained for the duration of construction works.

49. All landscaping is to be undertaken in accordance with approved plans/details. All turfed areas are to finish level with adjoining surfaces and shall fall evenly to approved points of drainage discharge.

50. DELETED.

Ancillary Works

51. The following ancillary works shall be undertaken, where required:

(a) the relocation of underground services where required by the positioning of new drainage and road infrastructure.

(b) the relocation of above ground power and telephone services.
(c) the matching of new infrastructure into existing or future designed infrastructure.

Public Safety

52. All works undertaken in a public place are to be maintained in a safe condition at all times. Council may at any time and without prior notification make safe any such works Council considers to be unsafe, and recover all reasonable costs incurred from the applicant.

Environmental Management

53. An Environmental Management Plan (“EMP”) which addresses the following matters is to be prepared in respect of development on the Site and provided to Council 3 months prior to the commencement of operations associated with the Metal Recycling Facility:

(a) Environmental management procedures required to ensure compliance with the Protection of the Environment Operations Act 1997, the Waste Minimisation and Management Act 1995, the Dangerous Goods Act 1975, the Contaminated Land Management Act 1997 and the Rivers and Foreshores Improvement Act 1948 and all associated Regulations (and all Acts which amend, repeal or supplement this legislation).

(b) Responsibility of all employees of the Metal Recycling Facility in relation to prevention of pollution and training requirements (including, without limitation, the prevention of explosions, fires and the pollution of water, soil and air);

(c) Remediation of contaminated soil and water on the Site (including groundwater) in accordance with condition 64;

(d) The storage and handling of all waste either brought onto the Site or generated as part of the development (including, without limitation, details of the lawful off-site disposal of all waste);

(e) Procedures to prevent pollution of air, surface and ground water and soil;

(f) Response procedures and preventative measures in relation to pollution incidents;

(i) How the Sedimentation Pond will have sufficient capacity to service all development on the Site (including details of a maintenance schedule to ensure the regular removal of sediment from the Pond)

(ii) Details of how the sediment will be removed from the Pond

(iii) An assessment of the potential for hydraulic connectivity between the Sedimentation Pond and groundwater

(h) The storage and handling of dangerous goods in accordance with the Dangerous Goods Act 1975, all associated regulations and the requirements of the NSW WorkCover Authority including without limitation the removal of volatile, explosive and hazardous materials from the feedstock; the triple rinsing of tanks and the removal of tanks from cars.

(i) The minimisation of the emission of noise and vibration to ensure compliance with the conditions of this consent;

(k) Details of an emergency evacuation plan.

Soil Contamination

54. All contaminated soil and other contaminated material excavated from the Site as part of the development must be removed from the Site and disposed of by a licensed contractor at a facility licensed under the Waste Minimisation and Management Act 1995. A report is to be prepared by a suitably qualified consultant detailing the contamination remediation measures required as part of the proposed excavation/construction works. Council may require remediation works and or removal of the soil and or groundwater, depending on the report's recommendations. Following this, an independent validation of the remediation works by an environmental consultant will be required and a report submitted to Council.

PRIOR TO ISSUE OF OCCUPATION CERTIFICATE

Road Damage

55. The cost of repairing any damage caused to Council's assets in the vicinity of the subject Site as a result of construction works associated with the approved development is to be met in full by the applicant/developer prior to the issue of an Occupation Certificate. Should the cost of damage repair work not exceed the road maintenance bond (see Part A of this consent) Council will automatically call up the bond to recover its costs. Should the repair costs exceed the bond amount a separate invoice will be issued to the applicant/developer in respect of these works.

Removal of Temporary Facilities

56. Any temporary toilet facilities provided during construction works are to be appropriately dismantled, disconnected and removed from the Site.

57. All temporary builder's signs or other Site information signs are to be removed upon the completion of Site works.

58. All temporary soil erosion controls employed during construction are to be removed and other permanent measures in accordance with the ESCP are to be implemented prior to the use or occupation of the development.

Works-As-Executed Plans

59. A work-as-executed plan (to a standard suitable for microfilming) prepared by a Chartered Professional Engineer or a Registered Surveyor must be lodged with Blacktown City Council when the engineering works (bulk earthworks) are complete.

Service Authorities

60. The applicant is to obtain a Trade Waste Approval from the Sydney Water Corporation Limited in relation to any discharges to the Corporation's sewerage system.

61. A final clearance is to be obtained from both Integral Energy and the Sydney Water Corporation if such clearance (in the form of a Notification of Arrangement or a Section 73 Certificate) has not previously been issued.

Discharges to Water

62. DELETED.

63. As the premises is a “Scheduled Premises” within the meaning of the Protection of the Environment Operations Act, 1997, an application for an environmental licence shall be made to the EPA. A copy of the licence is to be submitted to Council prior to the issue of the Occupation Certificate.

Fire Safety

64. The development must comply with the requirements of the NSW Fire Brigades including but not limited to the following:

(a) The hydrant system is to be extended to control and extinguish any fires.

(b) Details of how contaminated fire water is to be contained are to be provided to the Council.

(c) Clear, unhindered access is to be provided at all times for the NSW Fire Brigades vehicles at all times.

(d) At least a 1.0m clear access is to be provided between stockpiles and the Metal Recycling Facility and its components in the event of a fire hazard.
(e) DELETED.

65. A copy of the Stormwater/Management Scheme required by Condition O4.1 of the EPA’s General Terms of Approval (held at Attachment "B" of this consent) shall be provided to Council prior to the issue of the Occupation Certificate.

OPERATIONAL MATTERS

Compliance with the general terms of approval of the EPA and DLWC

66. The development must be carried out in accordance with the general terms of approval of the EPA and the DLWC which are annexed and marked “A” and “B” respectively, as amended by the conditions of this consent. A copy of all reports and information required to be submitted to the EPA and DLAWC, must be submitted to the Council contemporaneously.

Hours of operation

67. The hours of operation of activities associated with the Metal Recycling Facility shall not be outside of the following nominated times:

Approved hours of operation: Monday to Friday: 7.00am - 5.00pm
Saturday: 7.00am – 3.00pm

Restrictions on volumes of raw and processed materials

68. No more than 60,000 tonnes of raw scrap metal can be processed in the Metal Recycling Facility in any one year. The 60,000 tonne limit is inclusive of all material to be processed in the hammermill (including, without limitation, car bodies).

69. The only raw materials that can be processed in the hammermill facility is general metal scrap which contains no volatile or potentially explosive substances (including, without limitation, petrol tanks).

70. Each year, car bodies may comprise no more than 10% of raw material processed in the Metal Recycling Facility.

71. Each year, car bodies which are to be processed in the Metal Recycling Facility shall not comprise in excess of 10% of the raw materials stored on the Northern part of the Site.

Restriction on storage of materials

72. Car bodies which are to be processed in the Metal Recycling Facility must not be stored on the Southern part of the Site.

73. No goods, materials or trade wastes are to be stored at any time outside the building on either the internal vehicular driveway, car parking area, landscaping, footpath or other than in approved garbage receptacles.

Car parking and traffic

74. A minimum of 20 carparking spaces in total are to be provided on Site, each having minimum dimensions as follows:

(a) uncovered - 2.5m x 5.2m;

(b) parking for plant equipment - appropriately signposted, and linemarked;

(c) widen the entry driveway to 6.5 metres carriageway plus at least 300mm clearance to any structure;
(d) the queuing area is to be appropriately sign posted.

75. The internal driveway and parking areas are to be designed in accordance with Australian Standard 2890.1.

76. Soil and other material must not be deposited on roads adjoining the Site by vehicles entering or leaving the Site.

Enclosure of the Metal Recycling Facility

77. DELETED.

Requirement to keep records

78. Records must be kept of all scrap metal, including car bodies received for processing in the Metal Recycling Facility. In addition to the volumetric records from the vehicle weighbridges on the Site, records must be kept which particularise the type of scrap received, and the date on which it was received. These records must be made available to the Council officers for inspection annually following the commencement of the operation of the Metal Recycling Facility.

Video monitoring

79. Video surveillance equipment must be installed to record all raw material as it enters the Metal Recycling Facility.

80. Video recordings are to be on a “continuous tape” basis whereby the tape is retained in the event of an explosion or fire.

81. All video recording is to be kept for a period of 90 days except in the event of an explosion or fire in which case the video recording must be retained for 5 years and provided to the Council and the EPA upon request.

Inspection procedure

82. Prior to the commencement of the operation of the Metal Recycling Facility, an inspection procedure plan must be submitted to the Council detailing the following:

(a) How the type and tonnage of all scrap material (including car bodies) received each month for processing in the Metal Recycling Facility will be recorded;

(b) Inspection procedures to ensure that no volatile substance is processed in the Metal Recycling Facility;
(c) The installation of video monitoring equipment in accordance with the conditions of this consent;

(d) The keeping of written records of all materials which are received at the Site and processed in the Metal Recycling Facility;

(e) Procedures to be undertaken for:

(i) the safe removal from the Site of any explosive or volatile substance received at the Site:
(ii) the decommissioning of vehicles including, without limitation, details of the mechanisms for removal and draining of petrol tanks; and
(iii) the removal, storage and disposal of petrol, oil and all other fuels, fluids and substances removed from raw material received at the Site.

83. The development must be carried out in accordance with the inspection plan required to be submitted pursuant to condition 82.

Projectiles

84. No projectiles of any kind will be discharged from the Metal Recycling Facility.

Explosion prevention

85. No crushed cars can be received on the Site for processing in the Metal Recycling Facility except those vehicles inspected, treated and crushed by Sell & Parker.

86. All petrol tanks and LPG gas tanks must be manually removed from cars prior to the car being processing in the Metal Recycling Facility. Petrol tanks shall not be removed by way of a grab crane or any other mechanical device.

87. All petrol tanks must be drained of fuel and triple rinsed with water.

88. Petrol tanks removed from vehicles on Site must be stored in a separately bunded area in accordance with the requirements of the EMP referred to at condition 53.

89. Petrol tanks, LPG tanks, pressurised tanks or any tanks containing volatile substances shall not be processed in the Metal Recycling Facility.

90. All cars received on the Site will be separately stockpiled in the raw material stockpile area. Sufficient distances must be maintained between stockpiles of cars and other raw materials to allow Fire Brigade access in the event of a fire in either stockpile.

91. A separately bunded area will be provided for the purpose of draining of vehicle fuel tanks. This bunded area shall be located at a safe distance from the raw material stockpile area in accordance with the requirements of WorkCover NSW and the EPA. This bunded area shall not be located on the Southern part of the Site.

92. The bunded area referred to at condition 91 shall be roofed sufficiently to prevent the entry of stormwater into the bunded area. The design, construction and operation of the bunded area shall be in accordance with the EMP referred to at condition 53.

93. All LPG tanks, pressurised tanks or any tanks containing volatile substances removed from cars or any material that enters the Site must be placed in a separately bunded area and removed from the Site in accordance with the requirements of the EMP.

94. No material that may, either individually or in combination with another substance, cause an explosion if processed in the Metal Recycling Facility shall be processed in the Metal Recycling Facility.

95. A sign must be erected at the entrance way to the Site stipulating that the following substances must not be brought on to the Site:

(a) Flammable substances;

(b) Asbestos;

(c) Explosives;

(d) Radioactive materials;

(e) Toxic materials;
(f) Infectious materials.

96. All pressurised vessels received at the Site, including without limitation, LPG, butane and propane, shall be stored in accordance with the requirements of the Dangerous Goods Act 1975; the Dangerous Goods (General) Regulation 1999; the Occupational Health and Safety Act 1983; the Factories Shops and Industries Act 1962; the Workplace Injury Management and Workers’ Compensation Act 1998; the Workers’ Compensation Act 1987 and all associated Regulations (and all Acts which amend, repeal or supplement this legislation).

97. All decommissioned vehicles are to be kept in a separate storage area from vehicles which have not been decommissioned. Clear signage is to be erected on the Site distinguishing the separate storage areas.

98. All raw materials and processed materials are to be stored in separate storage areas at all times. Clear signage is to be erected on the Site distinguishing the separate storage areas.

Dust explosions

99. The water injection system in the Metal Recycling Facility is to be operational at all times that the metal recycling facility is in operation.

Noise

100. The noise amelioration works identified in all approved drawings and the EIS (as amended by these conditions) must be implemented and maintained.

101. Noise at the Site boundary of the premises must not exceed an LA10(15minute) noise emission criterion of 70dB(A).

102. Noise from all activities on the Site is to be measured on the adjoining premises within one metre of the boundary to determine compliance with condition 101.

103. The L10 residential noise boundary contribution from operations on the Site under isothermal conditions shall not exceed 50dB(A) at Sunnyholt Road and 44dB(A) at Camorta Close.

104. Within 90 days of the commencement of the development, noise measurements must be carried out showing compliance with the noise limits required pursuant to this consent. The results of the tests must be submitted to the EPA and the Council within 14 days of the tests being carried out.

105. If the noise measurements submitted to Council pursuant to condition 104 show a failure to comply with the noise limits at conditions 101 and 103, a noise mitigation plan must be submitted to the Council within 28 days of the submission of the noise measurements in accordance with condition 101 and 103. The noise mitigation plan must identify how compliance with these conditions will be achieved.

Overpressure

106. All air blast over pressure levels resulting from activities during the operation of the Metal Recycling Facility, including without limitation, explosions, must not exceed 120dBLin(peak hold) when measured at any boundary of the Site.

107. An air blast over pressure monitor must be installed at the boundary of the Site.

108. Records of all air blast pressure measurements in excess of 120dBLin (peak hold) must be submitted to Council in writing every 30 days following the commencement of the operation of the metal recycling facility. Information in relation to the cause, date and time of all air blast pressure measurements must be included in this report.

109. In the event that air blast over pressure levels from the operation of the Metal Recycling Facility exceed 120dBLin (peak hold), a plan of management must be submitted to the EPA and the Council within 14 days identifying how compliance with the maximum permissible air blast over pressure level will be achieved.

110. The over pressure monitoring system must be capable of measuring and reporting to a limit not less than 165dB(Lin).

Soil and Water Management

111. Soil and water management measures identified in the ESCP must be introduced and be effectively maintained to the satisfaction of the Council. Plans and details of the proposed measures must be submitted to the certifying authority with any application for a construction certificate. The plans should describe procedures for erosion control, surface and subsurface drainage and stabilisation structures as well as a schedule for any necessary phasing of these works.

Dust Suppression

112. A dry sweeper incorporating a vacuum extraction system is to be used to remove dust and other particles from the sealed traffic areas of the operation.

113. DELETED.

114. In periods of high wind (>8 metres per second), it will be necessary to reprogram dust generating activities which cannot be adequately controlled by water or other means and may cause nuisance to people or property.

115. During operation of the proposed metal recycling facility operations an air quality monitoring network must be established to the satisfaction of EPA and Council. This monitoring should at least include 30 day dust deposition [maximum dust deposition not to exceed 2 grams per square metre per month (g/m2mth) above background to a maximum of 4 g/m2mth total solids].

Car Parking and Access

116. All car parking spaces and internal roads shall be properly maintained and in a condition which is free of dust.

117. DELETED.

118. All vehicles are to enter and leave the Site in a forward direction, and all on-Site traffic is to be one-way. Appropriate directional signage is to be erected and kept in a well-maintained condition and should be clearly visible.

119. Both driveways shall be widened to 8.0m for at least the first 10.0m measured from the kerbline of Tattersall Road, with the addition of a 4.0m radius kerb return on the inside of each driveway (one side only).

120. The exit driveway is to be at least 6.0m sealed width, with additional side clearances for at least 0.3m.

121. A directional control signposting system must be installed to the satisfaction of Council.

122. Raw material stockpiles are not to be any closer than 30m from the northern kerb of the weighbridge access road or any location where the stockpiled material would affect the proposed circulation system, with stockpiling also to not prevent vehicular access to the material stockpile.

123. Signs shall be erected to prevent drivers entering the Site by way of the exit driveway.

124. A dynamic sign to be placed on the entry driveway approximately 110 metres from the front boundary of the Site. The sign shall direct drivers to the first available vacant weighbridge.

125. All loading and unloading operations are to take place at all times wholly within the confines of the Site.

126. No vehicles are to queue on Tattersall Road in connection with deliveries of material to the Site.

126A. DELETED.

Hydrocarbon Tank

127. The installation of the 5000L hydrocarbon tank referred to at Figure 2.3 of the EIS will be certified by an appropriately qualified environmental engineer.

Landscape Maintenance

128. All landscaped areas are to be maintained at all times in a suitable manner.

Use of Premises

129. The use of the approved development shall, at all times, be conducted in a manner consistent with the terms and conditions of this consent.

Emergency Procedures

130. Instructions concerning procedures to be adopted in the event of an emergency are to be clearly displayed on the premises for both public and staff information at all times to the satisfaction of Council, prior to commencement of the use.

131. DELETED.

Other Matters

132. A maximum of 6 skip bins are permitted to be kept on the Northern part of the Site and are to be stored on the location shown on the approved plans at all times.

133. A separate storage area which is bunded is to be provided for the storage of hazardous materials. This area will be maintained in accordance with the requirements of the New South Wales WorkCover Authority and the Dangerous Goods Act 1975 and all associated regulations.

134. All metal cutting/grinding activities are to be undertaken at a safe distance from any dangerous goods stored on the Site and comply with the requirements of the New South Wales WorkCover Authority and the Dangerous Goods Act 1975 and all associated regulations.

135. Unhindered access for all service/trade waste vehicles is to be maintained at all times. In particular, this applies to the waste enclosure on the north-western part of the Site, and the dangerous goods storage area.

136. The 4.0m high wall and all fencing is to be maintained in a satisfactory manner. No advertising is permitted on the wall fronting Tattersall Road.

137. No stockpile on the Northern portion of the premises is to exceed 7.0m in height. Permanent markings are to be placed on the inner side of the wall along the northern boundary of the premises to Tattersall Road to monitor the height. This marking is to run along the entire wall and be clear and visible at all times.

138. The Metal Recycling Facility and its components are to be provided with the necessary design features which will prevent any fallout of projectiles and/or debris. These features are to be employed at all times during the operation of the Metal Recycling Facility. These features are to be kept in a proper working order, and the Metal Recycling Facility is not to be operated without these additional safety measures.

139. A copy of the acoustical report required by condition L3.3 of the NSW Environment Protection Authority's General Terms of Approval (held at Attachment "B" of this consent) is to be provided to Council upon its preparation. Any components not previously identified as a noise source in the EIS are to be assessed. In addition to this, any noise emissions from existing structures or operations on the Site and any impact of this noise or employees working on the Site are to be assessed. A copy of the report detailing the noise mitigation measures are to be submitted to Council.

140. Within 90 days of commissioning of the Metal Recycling Facility a compliance certificate from an accredited acoustic consulting engineer shall be submitted to Council and the EPA setting out the results of monitoring and confirmation of compliance of the boundary criterion and the sound level pressure contribution at residential receivers.

141. Validation reports on the ongoing performance of the water quality control measures shall be provided to Council within six months of commencement of operation of the Metal Recycling Facility. Monitoring data is thereafter to be provided to Council at six-monthly intervals.

142. All plant and equipment powered or propelled by internal combustion or diesel engines used on the Site must be properly maintained to ensure exhaust emissions comply with the Protection of the Environment (Operations) Act.

Nuisance

143. Spillage of light, if any, shall be controlled so as not to cause nuisance to the amenity of adjoining land.

144. If artificial lighting is proposed full details are to be submitted indicating the manner in which adjoining properties are to be protected.

145. If an intruder alarm is installed on the premises it shall be fitted with a timing device in accordance with the requirements of the Protection of the Environment Operations Act 1997.

PART A - ENGINEERING WORKS

Drainage Works

146. Drainage from the Site must be connected into:

(a) the existing Site drainage system.

Other Matters

147. Landscaping Bond – a cash bond or bank guarantee in the sum of $10,000 is to be lodged with Council to ensure the effective establishment and maintenance of landscaping. The bond or guarantee is to be lodged prior to the release of the Construction Certificate and will be returned on the following basis:

(a) 50% on completion of landscaping to Council’s satisfaction;

(b) 25% six months after the completion date of the landscaping, subject to Council being satisfied that the maintenance program is proceeding satisfactorily;
(c) 25% residue to be refunded twelve months after completion, subject to satisfactory maintenance of the landscape area.

148. DELETED.

149. DELETED.

150. Restoration of Public Roads – restoration of public road and associated works required as a result of the development shall be carried out by Council and all costs shall be paid by the applicant.

151. DELETED.

CITATION:	Sell & Parker Pty Limited v Blacktown Council [2001] NSWLEC 12
PARTIES:	APPLICANT: Sell & Parker Pty Limited ACN 000 101 315 RESPONDENT: Blacktown City Council
FILE NUMBER(S):	10204 of 2000
CORAM:	Lloyd J
KEY ISSUES:	Development Application :- whether hazardous industry - whether offensive industry - components of development not to be considered in isolation for the purpose of characterisation
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 91 and s 97 Environmental Planning and Assessment Regulation 1994 Sch 3 Protection of the Environment Operations Act 1997 State Environmental Policy No. 33 - Hazardous and Offensive Development Pt 2 and Pt 3 Blacktown Local Environmental Plan 1998
CASES CITED:	Rudman v Tweed Council, NSWLEC, Bignold J, 28 September 1993, unreported
DATES OF HEARING:	06/11/2000; 07/11/2000; 08/11/200; 09/11/2000; 10/11/2000; 05/02/2001 and 06/02/2001
DATE OF JUDGMENT:	05/11/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr N A Hemmings QC (Solicitor) SOLICITORS: Allen Allen & Hemsley RESPONDENT: Mr M J Craig QC SOLICITORS: Michell Sillar