Sherringhams Nurseries v Baulkham Hills Shire Council - [2003] NSWLEC 307

Land and Environment Court

of New South Wales

CITATION: Sherringhams Nurseries v Baulkham Hills Shire Council [2003] NSWLEC 307

PARTIES:
APPLICANT
Sherringhams Nurseries
RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S): 10224 of 2003

CORAM: Nott C

KEY ISSUES:
Development Application :- Retail plant nursery - traffic and parking - adjoining a primary school - Rural 1(c) zone

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97

CASES CITED:

DATES OF HEARING: 18 & 19 August 2003, 27 & 28 November 2003

EX TEMPORE
JUDGMENT DATE :
11/28/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr D. Wilson, barrister
SOLICITOR
Mark McDonald
RESPONDENT
Mr D. Miller, barrister
SOLICITORS
PricewaterhouseCoopers Legal

JUDGMENT:

10224 of 2003

Nott C

28 November 2003

Sherringhams Nurseries
Applicant
v

Baulkham Hills Shire Council
Respondent

Reasons for Judgment

1 . This is an appeal against the council’s refusal of a development application for a retail plant nursery on lot 2 DP541329 at 626 Old Northern Road Dural.

2 . The development application was considered by council officers and was recommended for approval subject to conditions. However, the council resolved to refuse the application and the applicant appealed to this Court. On the second hearing day, the appeal was adjourned to enable the applicant to submit amended plans to meet certain criticisms, particularly relating to parking and layout on the site. The amended plans, exhibit R, included detailed architectural plans, landscape plans and drainage and other engineering design plans.

3 . In considering all the evidence and submissions, I have been aided by a view of the site and locality. For the reasons which I now give, I am of the opinion on balance that development consent should be granted subject to conditions.

4 . One of the issues was whether sufficient car-parking spaces would be provided on the site. As originally proposed, only 77 spaces were provided. The parties now agree, however, that the amended plans overcome any previous deficiency in this regard. There will be 99 car spaces available on Monday to Saturday, and in accordance with a Plan of Management, a total of 120 car spaces will be available on a Sunday or a public holiday between 11am and 4pm. The expert traffic engineering evidence of Mr Hallam who was retained by the council and of Mr L Marshall establishes that the layout of the car and truck parking areas and manoeuvring and other areas on the site are quite acceptable.

5 . As shown on the amended plans, significant changes will be made to Old Northern Road in front of the subject site in order to provide safe ingress and egress for vehicles. The Roads and Traffic Authority had indicated in respect of the original plans that the proposed changes appear to be satisfactory, subject to certain recommended conditions. The consent, which the Court will grant will require the approval of the RTA of the road works prior to any construction certificate being issued in respect of the proposed development or any part of it.

6 . Immediately to the south of the subject site is the Dural Primary School. There were objections from parents, from the principal of the school and from the Parents and Friends Association. One of the objections was that parents who presently park their cars outside the subject land and in front of it will not be able to do so with the proposed development, since a slip lane will be provided in front of the southern part of the subject land leading into the proposed entry to the nursery. The evidence is not clear as to whether a ‘No Stopping’ sign would prohibit parents from parking their cars immediately in front of the subject land. Nevertheless, some parents do park in front of the subject land now. Clearly if the proposed development interfered with cars which were stopping temporarily to put down or pick up children immediately outside the school frontage, the development would be unacceptable. However, it is apparent that on school days, the traffic generated by the proposed nursery will not affect the temporary setting down of children immediately in front of the school. The peak parking times expected for the proposed nursery are on the weekend and in particular between 11 am and 4 pm on Sunday.

7 . On the western side of Old Northern Road there is a bus stop immediately outside the school and to the south of that bus stop, also along the school frontage, is a ‘No Parking’ area. It was common ground that the ‘No Parking’ signs do not prevent a car from stopping to allow children to go to the school or to be picked up. It would appear that parking on the western side of Old Northern Road, either adjoining the school site or adjoining the subject site, is not altogether appropriate for the dropping off or picking up of school children as there is no separation or protection between the temporarily parked car and the adjoining single lane for north-bound vehicles. The road is extremely busy at times, with a high volume of traffic and many trucks use the road.

8 . Apart from the school itself making appropriate arrangements for additional parking on its own site, the preferable place for children to be picked up or put down could well be on the opposite side, that is, on the eastern side of Old Northern Road close to an overhead bridge, which has apparently been constructed specifically to give access for school children directly over the road and into the school site.

9 . Cars approaching the school site from the south have a dedicated right-hand-turn lane after passing under the bridge, from which the cars can turn across to a protected bypass road adjoining the entry steps to the bridge. The bypass proceeds southwards and joins back into the main thoroughfare of Old Northern Road. In this protected bypass there is provision for parallel parking of cars.

10 . For cars coming from the north, besides being able to enter this bypass, it appears that there is a flat area on the eastern verge of the road reserve immediately to the north of the entrance to the bypass. Also, immediately to the south of the bypass road, there is a relatively large unused section of road reserve with wooden bollards around it and a sign erected nearby by the Hornsby Shire Council to the effect that the display for sale of vehicles in the road reserve is prohibited. I have not received any evidence from the Hornsby Shire Council. However, prima facie, the timber bollards appear to serve no other purpose than to prevent cars being left for display or left semi-permanently in this flat area of road reserve. The flat area appears to be well removed from the main carriageway of Old Northern Road.

11 . Since the state government or public authorities have provided the overhead bridge for the school use, it would seem to be in the public interest that more adequate short-term parking for parents should be provided by the state government or public authorities on the eastern side of the road in the vicinity of the overhead bridge. Notwithstanding these comments, it seems to me to be the responsibility of the school and of the state government to ensure that safe parking generally is provided for parents who take their children to school by car.

12 . Most children arrive either by bus or by car from residential areas a considerable distance from the school. According to a sign at the vehicular entrance to the school, only staff parking and deliveries are permitted on the school site. However if proper provision were made by the school, it could be for example that staff parking could be directed to a newly created car-parking area further to the rear of the school site and appropriate changes made to the front part of the site in accordance with detailed traffic engineering designs for the provision of at least some car-parking spaces on the school site for the use by parents. However, it is not the role of the Court to solve the present parking problems of the school.

13 . For the purpose of this appeal, I am not persuaded that the present development application should be refused on the basis that some on-road parking immediately in front of the subject land will no longer be available for use by parents if the proposed development goes ahead. Although there is no obligation on the applicant to do so, the applicant, through the submissions of Mr D Wilson of counsel has indicated that the applicant would not object to parents parking their cars in the applicant’s car-park in order to take their children to school or to pick them up after school.

14 . The applicant volunteered a condition that the car-park shall be open during the hours of operation to members of the public. The hours of operation envisaged are from 6am to 7pm seven days per week with the site being closed on Christmas day, Good Friday and ANZAC day.

15 . I have considered the other safety matters referred to by the objectors. However, having regard to the design of the proposed entrance to the subject site, I am of the opinion that the proposed development should not be refused on traffic safety grounds.

16 . The subject land is zoned Rural 1(c) under the Baulkham Hills Local Environmental Plan 1991 except for a small part of the site at the north-east corner which is zoned 5(b) for future road widening. In the light of the issues raised by the council, particularly issues 1, 2, 3 and 4 relating to the objectives of the zone and relating to the character of surrounding development, I make the following findings.

17 . As seen in the photographs in exhibit D, the proposed development will be located in an area where there are other semi-rural and commercial type activities. Immediately to the north of the subject land is Hargraves Nursery, behind which is the Butterfly Farm and further to the north-west is a wholesale plant nursery.

18 . Adjoining the western boundary of the subject land is an orchard. This orchard or other orchards are also adjoining the western boundary of the school site. However, the orchard activities come much closer in many respects to the school buildings than many of the activities that will occur in the proposed development.

19 . The area on the eastern side of Old Northern Road in the vicinity of the subject land is semi-rural but it has these other non-rural uses that are apparent in the photographs and from the site inspection. There are some residences closer on the eastern side of the road but generally the residences are located a considerable distance from the site.

20 . In the context of surrounding development, it seems to me that the proposed development will be consistent with the objectives of the 1(c) zone and in particular with objectives (b) and (h).

21 . The character of the proposed development will be one of a landscaped activity, which is appropriately located in a semi-rural environment. The landscaping will be at least 20 m wide along the Old Northern Road frontage and will shield car-parking that might otherwise be seen beyond the landscaping. In expressing this opinion, I have taken into account also that the land is sloping. There will be low-level landscaping up to about a height of 1.8 m and then there will be canopy trees above that allowing for some view to the distance where the Blue Mountains can be seen. The fact that there will be a single driveway entrance to the subject site will not make the proposed development inappropriate in this location.

22 . As viewed from the school grounds, the subject site, to a large extent at the present time, is not readily visible because of trees or other vegetation along the common boundary of the school and the subject land. I do not consider the further extension of an earth mound or bund close to the school boundary to be of sufficient detriment visually to require the refusal of the proposed development. This earth mounding or bund is required because of the need to ameliorate or reduce any noise coming from the subject site.

23 . As viewed from the northern side boundary of the subject site, again there will be landscaping near the boundary, and the extensive car-parking areas on the subject site will also be landscaped.

24 . While I have taken into account the evidence of the council’s consultant town planner in relation to the visual aspect and character of the proposed development, I prefer the evidence of the applicant. I note in particular that Dr R Lamb expressed the opinion that the proposed development would enhance the character of the streetscape and existing site and that it would be appropriate in the rural context. I do not accept the submission on behalf of the council that the proposed development would be out of character because of the fairly dense landscaping that is proposed at the road frontage of the site.

25 . In relation to noise, the parties were agreed that various conditions of consent relating to noise could be complied with and that the conditions were appropriate. From an acoustic point of view, the proposed development is supported by Mr S Cooper, acoustic engineer, and I am of the opinion that the proposed development is satisfactory, having regard to the distance of the school buildings from the proposed activities that might cause noise on the subject site. The expert evidence also indicates that in respect of any outdoor activity in the nature of teaching occurring close to the side boundary, certain performance criteria relating to noise will be able to be met.

26 . The council called no expert in relation to dust or particle emissions coming from the subject site affecting school children. In the light of the expert opinion evidence given on behalf of the applicant by Dr K Holmes and Dr R Bentham, it appears that the proposed development will be satisfactory. Dr Bentham notes that the proposed development will store mulches and soil mixes in enclosed areas a significant distance from the boundary of the site with the school. In his opinion, dust emissions at the school boundary will be within EPA guidelines and will not alter current background levels produced by various activities, including traffic on the busy road and agricultural activities in the adjoining orchards.

27 . Various conditions also have been imposed relating to the management of the site so as to curtail the possibility of adverse impacts. Considering the appeal generally under s 79C of the Environmental Planning and Assessment Act 1979, I am of the opinion that development consent should be granted subject to a range of conditions, which have been put forward by the council and carefully considered during submissions and by the parties and the Court. Through discussion between the parties, most of the conditions have been agreed and the conditions that I propose to impose have been set out in a document headed ‘Annexure A Conditions’, initialled by me. Where I have not accepted on several occasions amendments proposed to the conditions by the applicant, the reason for not accepting the changes are as submitted on behalf of the council.

28 . The conditions in annexure A refer to a thirty-page environmental management plan dated 30 November 2003. This management plan, which is exhibit T, is adopted in the conditions in annexure A but with the changes to it mentioned in the transcript. A corrected copy of the environmental management plan will be annexed to the conditions in annexure A and sent to the parties with the Court’s minute of order.

Annexure A
Conditions
DA 1174/03

626 OLD NORTHERN ROAD, DURAL

DEFERRED COMMENCEMENT CONSENT

1. Submission to Council of suitable documentary evidence that indicates the creation of an easement to drain water 3m wide over the downstream property (Lot 9 DP 237576) has been registered with Land and Property Information New South Wales (LPI).

A2 The applicant must provide to the Council evidence sufficient to enable it to be satisfied of the matters in Condition A1 within 12 months of the date of this consent or such further period as the council or Land and Environment Court may determine is appropriate upon application being made by the Applicant.

B. Upon compliance with the requirements of Part A1, the Consent shall become operative issued subject to the following conditions:

Conditions of Consent

The development being carried out substantially in accordance with the plans prepared by Ladd-Hudson Architects Nos BHSC-DA 002(B), BHSC-DA 003(A), BHSC-DA 004(A), BHSC-DA 005(B), BHSC-DA 006(B), BHSC-DA 007(A), BHSC-DA 008(B), BHSC-DA 010(A), BHSC-DA 011(A), BHSC-DA 012 (A), BHSC-DA 013 (A), BHSC-DA 014 (A), BHSC-DA 015 (A), BHSC-DA 016 (A) and BHSC-DA 017(A) issued on 15 September 2003 and BHSC-DA 009(C) dated 27 November 2003 and the Engineering Drawings prepared by Lyle Marshall and Associates Pty Limited Nos 8419/5 Sheet 1B of 10, 8419/5 Sheet 2C of 10, 8419/5 Sheet 3C of 10, 8419/5 Sheet 4A of 10, 8419/5 Sheet 6B of 10, 8419/5 Sheet 7 of 10, 8419/5 Sheet 8A of 10, 8419/5 Sheet 9C of 10, 8419/5 Sheet 10B of 10, 8419/5 Supplement Sheet 1A and 8419/5 Supplement Sheet 2.(All exhibit R).Any changes to the proposal will require the further approval of Council.

There shall be no wholesale operations on or from the site.

Submission to, and approval by, Council or an Accredited Certifier of a construction certificate. Plans submitted with the construction certificate are to be amended to incorporate the conditions of the Development Consent.

In order to certify that engineering plans and specifications are in accordance with the Conditions of the Development Consent and Council’s Design Guidelines and/or Works Specification, an Engineering Construction Certificate is to be obtained prior to the commencement of any works.

To obtain an Engineering Construction Certificate, a completed application form and payment of the appropriate fee is required with the submission of the design plans and specifications for approval. Such plans and specifications are to be prepared by a suitably qualified person or company. The engineering design shall be based on plans of survey showing existing contours and levels prepared by a registered surveyor to Australian Height Datum (AHD).

Four (4) copies of the plans and specifications are required to be submitted with the Engineering Construction Certificate application.

A separate application being submitted to, and approved by, Council prior to the erection of any advertisements or advertising structures.

Any alteration to the above hours of operation will require the further approval of Council.

6. Provision of Parking Spaces

The provision and maintenance of 99 permanent off street parking spaces of which 4 are car trailer spaces and 4 are small truck spaces. An additional 21 peak demand off-street parking spaces are to be provided from 11.00am-4.00pm on Sundays and Public Holidays.

7. Vehicle Movements
There shall be no deliveries from the site by truck on Sundays and public holidays by or on behalf of the nursery proprietor.

8. Gutter & Footpath Crossing Application
The submission to Council of an application for gutter and footpath crossings, accompanied by the current fee as prescribed in Council’s Schedule of Fees and Charges.

8a The parking and access areas shall be paved. Other than for the main entry road and truck manoeuvring areas the car parking area, where constructed over natural areas, shall be constructed from pervious paving that permits the infiltration of rain water to the satisfaction of the Council.

9. Supervision of Works
All engineering works associated with the development are to be carried out under the supervision of a practising Professional Engineer.

All work in the road reserve shall be supervised by a suitably qualified and experienced Civil Engineer, Civil Engineering Foreman. The supervisor’s name, address and contact phone number shall be submitted to Council prior to the commencement of construction in the road reserve.

In this regard a construction programme and anticipated duration of construction shall be submitted in writing to Council prior to the commencement of any works in the road reserve.

10. Odour Emission

The use of the premises shall not cause the emission of any odours that, by reason of its level, nature, character or quality, is likely to be harmful to, or to interfere unreasonably with the comfort or repose of, a person who is outside the premises.

11. Storage of Bulk Material on Site

The storage of bulk landscape supplies shall be limited to eight (8) storage bays, the front of which are to be covered by a roll down shade cloth when not in use. Bulk storage bays are not to be open on Sundays in the period between 11.00am to 4.00pm, except when material is being removed from the bays, which shall not be by truck on Sundays or public holidays. There shall be no composting of bulk material or open storage of compost on the site. All composted material shall be stored on the site in bags only.

(1) The use of the premises, and operation of equipment shall not give rise to “offensive noise” as defined under the provision of the Protection of the Environment Operation Act 1997 (or any Act replacing that Act).

a) The LAeq for internal areas of the school classrooms shall not be greater than 35 dB(A) when assessed over the noisiest 1-hour period (when the school is in use).

b) The LAeq (1 hour) for outdoor teaching areas shall not be greater than 47 dB(A) when in use.

NSW Environment Protection Authority Guidelines - NSW Industrial Noise Policy.

The development shall comply with the Building Code of Australia for a Class 6 building of Type C construction.

15. Environmental Management Plan

The proponent shall comply with the Environmental Management Plan in respect of the site prepared by Hughes Trueman Pty Limited dated November 2003 (Job No. 03s761) [as amended on 28 November 2003, a copy of which is attachment 1 hereto].

On receipt of a notice in writing from the Council the proponent shall within 3 months of that Notice submit to Council for approval a Revised Environmental Management Plan. The proponent may also submit a Revised Environmental Management Plan at any time.

On receipt of any Revised Environmental Management Plan, Council may consult with (at its discretion) adjoining neighbours (including the Principal of Dural Public School) prior to its adoption by the Council. Council may also consult with other relevant statutory or expert authorities. Until such a Revised Environmental Management Plan is adopted by the Council, the previous applying Environmental Management Plan (or as previously revised) shall apply. Council may delegate the function of approval of a Revised Environmental Management Plan to a senior officer of the Council.

If there is any inconsistency between the management plan and the other conditions of this consent, these conditions shall prevail.

PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE

Discharge from exits shall comply with Part D of the Building Code of Australia. Details are to be submitted with the Construction Certificate application.

A “Waste Management Plan” is to be submitted with the application addressing all the requirements given in Council’s “Waste Management Plan Guidelines” for Development Applications”.

A certificate from a Practising Structural Engineer is to be submitted to the Principal Certifying Authority certifying the structural integrity of the existing building and its ability to support all new loads to be superimposed on it.

To ensure hazardous and toxic materials are not to become a threat to the environment they must be stored in a bunded area constructed and maintained in accordance with AS 1940-1993. Details of which are to be submitted to Council with the Construction Certificate

20. [Deleted.]

Council’s “Design Guidelines - Subdivisions/Developments” (June 1997).
Council’s “Works Specifications - Subdivisions/Developments” (August 1997).

Such works require an Engineering Construction Certificate to be obtained and are to include:-

Concrete footpath paving 1.5 metres wide across the Old Northern Road frontage of the development. The footpath is to be kept clear of any invasive vegetation and weeds at all times.

Heavy duty gutter and footpath crossings at all points of vehicular access to the site.

On-site stormwater detention is to be provided to control post development flows to pre development levels for all storms up to and including the 100yr ARI.

The construction of a deceleration lane in Old Northern Road to cater for vehicles entering the site from the south. The deceleration lane shall be designed in accordance with the relevant RTA standards and guidelines.

Kerb and Gutter, road shoulder and associated drainage construction including any necessary relocation of services across the Old Northern Road frontage of the site designed in accordance with the relevant RTA standards and guidelines.

The submission to and approval by Council of a proposed road widening plan indicating the extent of dedication as public road. Such dedication shall ensure the entire road construction fronting the site plus a minimum 3.5m wide footpath behind the back of kerb is located within the proposed road widening area.

The submission of written concurrence from Sydney Water indicating that suitable arrangements have been made regarding the location of the existing water main within the property.

Provision of a stormwater quality control interception pit to control stormwater discharge prior to entering the existing stormwater drainage system.

In order to provide satisfactory access and parking arrangements, the formation, paving, sealing and draining of all access roads, car parking and manoeuvring areas is required. The design of the parking area shall be in accordance with:

Australian Standard 2890.1 – 1993 – “Parking facilities – Off-street carparking”
Council’s Development Control Plan No. 102 – “Car Parking”
Council’s Design Guidelines for Subdivisions and Developments

All internal car parking spaces and access roads shall be prominently and permanently linemarked, signposted and maintained to ensure entry and exit is in a forward direction at all times and that parking and traffic circulation is appropriately controlled.

All access roads and carparking areas are to be separated from landscaped areas by means of a kerb or concrete dwarf wall.

All works required including maintenance and signposting are to be at the proponent’s cost.

In order to ensure the safety of the public during construction works within the road reserve, a Traffic Control Plan is required. In this regard, traffic control measures such as advanced warning signs, barricades, warning lights, after hours arrangements etc. are required where works are in progress on Old Northern Road and shall be in accordance with:

RTA Specification – October 1998 - “Traffic Control at Work Sites Manual” Australian Standard 1742.3 – 1996 - “Manual of Uniform Traffic Control Devices” & accompanying Field Handbooks (SAA HB81).

Prior to the issue of an Engineering Construction Certificate for works external to the site, Council’s inspection fees are to be paid in accordance with Council’s current schedule of fees.

The provision of a security bond to the value of $28,000.00 to guarantee the construction, completion and performance of all works external to the site is required. The amount of the security bond will be based on 150% of the value of providing all such works or $10,000.00 (whichever is greater) and shall be lodged with Council prior to the issue of an Engineering Construction Certificate.

The value of the External Works Security Bond shall be confirmed with Council prior to submission and may be in the form of cash or an unconditional bank guarantee. The bond is refundable upon written application, payment of the applicable bond release fee and subject to all work being completed to the satisfaction of Council’s Engineer.

Should a Bank Guarantee be the method of submitting a Security Bond, the guarantee is to:-
i) Have no expiry date.
ii) Be forwarded direct from the issuing bank to Council under cover of a suitable letter that refers to the consent and details Council’s Development Application Number (1174/02/HC).
iii) Should it become necessary for Council to uplift the Bank guarantee, a notice in writing will be forwarded to the applicant fourteen (14) days prior to such action being taken.

The lodgement of a suitable undertaking, under the common seal of the company, to complete all required engineering works within the site boundaries. Such works are to be completed prior to occupation and/or operation of any part of the approved development.

Detailed plans and specifications for the construction of the premises are to be submitted with the Construction Certificate.

Note:

[email protected]

The applicant is required to consult with the adjoining property owners regarding the provision of any boundary fencing adjoining their properties.

All fencing shall be provided at the expense of the applicant. Details are to be submitted prior to the issue of a construction certificate.

31. [Deleted.]

The submission of a ‘Notice of Requirements from Sydney Water regarding the provision of reticulated water to the site, prior to issue of the Construction Certificate.

PRIOR TO WORK COMMENCING

33. [Deleted.]

No work is to commence until a construction certificate for on-site stormwater detention is approved either by Council or a Private Accredited Certifier.

Erosion and sedimentation controls shall be in place prior to the commencement of site works; and maintained throughout construction activities until the site is stabilised. The controls shall be in accordance with the details approved by Council and the requirements of the Department of Land and Water Conservation. Additional erosion and sedimentation controls may be required on site as directed by Council's appropriate officer.

A stabilised all weather access point is to be provided prior to commencement of site works, and maintained throughout construction activities until the site is stabilised. The controls shall be in accordance with the requirements of the Department of Land and Water Conservation.

Duplicate copies of Structural Engineer's details of footings, concrete beams, slabs and stairs, retaining walls, structural steelwork, roof timbers and roof construction to be submitted to the Principal Certifying Authority prior to work commencing. The details shall also include certification of the required FRLs of the structural members in accordance with the Building Code of Australia.

DURING CONSTRUCTION

Adequate protection must be provided for Council infrastructure prior to work commencing and during building operations.

All work shall be completed in accordance with the development consent, Council’s Engineering Works Specification for Subdivisions/Developments and include any necessary works to make the construction effective. All works and public utility relocation shall incur no cost to Council.

The applicant shall contact Council’s Supervising Officer 48 hours prior to commencement of work in Council’s Road Reserve to arrange an on-site meeting between the superintendent (or applicant’s delegate), the contractor and council’s representative.

All contractors working in Council’s road reserve shall take out public liability insurance for a minimum amount of $10 million. The policy shall specifically indemnify Council from all claims arising from the execution of the works. Written evidence of this insurance shall be supplied to Council’s representative prior to the commencement of construction in the road reserve.

(i) Final inspection after all works are completed and “Works as Executed” plans have been submitted to Council.
(j) Concrete core test results and pavement density tests results

Work on the project to be limited to the following hours: -

The builder/contractor shall be responsible to instruct and control sub-contractors regarding the hours of work. Council will exercise its powers under the Protection of the Environment Operations Act, in the event that the building operations cause noise to emanate from the property on Sunday or Public Holidays or otherwise than between the hours detailed above.

A trade waste bin or a builder’s rubbish compound shall be provided on the site within the property boundaries during construction of the building. The compound shall be a minimum of 2 metres x 2 metres squared and shall be constructed of sediment fencing or shade cloth firmly staked into the ground. During construction of the building, all building waste shall be disposed of into either the trade waste bin or the rubbish compound.

An approved temporary closet connected to the sewers of the Sydney, or alternatively an approved chemical closet is to be provided on the land, prior to building operations being commenced.

You are advised that Council provides the service of carrying out the above inspections at the rate of $60.50 each (GST inclusive). Council may also issue a Compliance Certificate. Each Certificate for the above shall be at a charge of $71.50 (GST inclusive). 48 hours notice must be given, either in writing, or by telephone prior to Council carrying out the inspection. Should you, however, wish to obtain the services of a private accredited certifier to carry out the required inspections, you are required to notify Council of the Principal Certifying Authority within a minimum of 2 days prior to commencement of work.

NOTE

Submission to and approval by Council of an application to install an on-site sewage management system prior to installation of the sewage system.

50. Dust Suppression during Construction
Dust suppression techniques are to be employed during construction works to reduce any potential nuisances to surrounding properties.

PRIOR TO ISSUE OF AN OCCUPATION CERTIFICATE

The dedication of the proposed road widening as public road. This will require the submission of a separate development application for subdivision. The dedication shall be at no cost to Council.

Prior to the Occupation Certificate being issued, finalisation of the building project and/or strata subdivision, the builder/developer is to provide and updated road inventory report identifying any damage to local roads and means of rectification to these roads for the approval of Council.

The length and cost of constructed roadworks (i.e. roadworks to be dedicated as Public Road).
The length and cost of constructed drainage works (not including common drainage lines or inter allotment drainage).

The submission of works as executed drawings prior to a final inspection level. The drawings are to be prepared by a suitably qualified engineer or registered surveyor.

The submission of a certificate of hydraulic/hydrological compliance prior to a final inspection. This certificate is to be prepared by a suitably qualified engineer or registered surveyor and is to include details of any non-compliance with approved plans and specifications.

“Positive Covenant”

56. [Deleted.]

A maintenance bond to the value of 5% with a minimum of $5,000 shall be retained for a 12 month defect liability period to guarantee the performance of the external works. The release of the maintenance bond shall be subject to a written application and a satisfactory final inspection to be carried out 12 months after certified completion of the works.

The submission of works as executed plans in accordance with the requirements of Council’s “Design Guidelines - Subdivisions/Developments” (November 2001) including pavement density results, pavement certification, concrete core test results and site fill results where applicable.

60. Essential Fire Safety Measures
All essential fire safety measures are to be installed and appropriately certified prior to occupation of the building.

61. Certification of Acoustic Mound
A qualified acoustic consultant shall certify that the construction of the noise suppressant barrier as to its correct installation and that the required criteria have been met.

62. Workcover NSW Approval
The proponent is to obtain all necessary licences from Workcover NSW for the storage of Dangerous Goods. Details of which are to be submitted to Council prior to the issue of the occupation certificate.

Evidence of compliance of the above shall be submitted to Council prior to commencement of business.

64. Final inspection of Food Premises
Prior to the issue of the Occupation Certificate, a final site inspection relating to the works carried out on the premises shall be arranged by the applicant and shall be undertaken by Council.

65. Landscaping Prior to Issue of Occupation Certificate

The landscaping of the site to be carried out (prior to sales from the premises) and maintained in accordance with the approved plans.

66. Section 73 Certificate from Sydney Water

The submission of a Section 73 Certificate from Sydney Water prior to the issue of an Occupation Certificate.

**********

Appeal No. 10224 of 2003

Attachment 1

to Annexure A

of Court’s Orders of 28 November 2003

Sherringhams Nursery

626 Old North Rd Dural

Environmental Management Plan

November 2003

HughesTrueman

Job No 03s761

As amended by the Court on 28 November 2003

_________

Table of Contents

1.1

Background

1.2

Purpose and Scope of the Environmental Management Plan

1.3

Environmental Policy

1.4

Aims and Objectives

1.5

Revision and Updating

1.6

Structure of the EMP

2.1

Site Description and Topography

2.2

Site Layout

2.3

Site Activities

3.1

Air Quality Management

3.1.1

Dust

3.1.2

Odour

3.1.3

Airborne Contaminants from Organic Material

3.2

Traffic Management

3.2.1

Traffic Movement within the Site

3.2.2

Articulated Heavy Vehicle Movements

3.2.3

Car Parking

3.3

Noise Management

3.3.1

Site Operations

3.3.2

Articulated Heavy Vehicle Movements

3.4

Water Management

3.4.1

Wastewater

3.4.2

Stormwater Runoff

3.4.3

Water Conservation

3.5

Site Maintenance

3.6

Waste Management

3.6.1

Retail Plant Nursery Waste Management

3.6.2

Café Waste Management

3.7

Chemical Management

3.7.1

Fertilisers

3.7.2

Pesticides

4.1

Emergency Management

4.2

Responsibilities

4.2.1

Site Manager

4.2.2

Operations Supervisor

4.2.3

Operating Staff

4.2.4

Training and Environmental Awareness

5.1

Correspondence

5.2

Complaints

5.3

Non-Conformance and Corrective Action

5.3.1

Reporting to Council

List of Tables

Table 1: Allowable Entry/Exit Times for Articulated Heavy Vehicles
Table 2: Parking Layout
Table 3: Summary of Monitoring and Record Keeping
Table 4: EMP Review Items

_______________

Introduction

Background

Sherringhams Nurseries is a business owned by Australian Native Landscapes Pty Ltd (ANL). Sherringhams Nurseries has lodged a development application with Baulkham Hills Council seeking development consent to establish a Retail Plant Nursery with a café on Lot 2 in DP 541329, 626 Old Northern Road, Dural, New South Wales.

An appeal against the refusal of the development application by the Council is the subject of Land and Environment Court proceedings (Proceedings No. 10224 of 2003).

All referenced reports in this document are listed in Chapter 0. All referenced drawings were produced by Ladd-Hudson Architects and Lyle Marshall & Associates (Consulting Engineers, Transportation and Environmental Planners), and issued for the Land and Environment Court on 15th September 2003.

1.1 Purpose and Scope of the Environmental Management Plan

This Environmental Management Plan (EMP) is designed to ensure protection of environmental values during the operation of the site. It outlines the design features of the site and the procedures and management actions necessary to ensure the environmental performance of the site meets with all statutory requirements.

Council and objectors in the above-mentioned proceedings have raised concerns regarding perceived environmental and health impacts by the proposed development. This EMP will also address these issues and clarify the design features and implementation of management procedures to ensure the perceived impacts will be minimised.

Environmental Policy

Sherringhams Nurseries is committed to protecting the environment and human health. This will be achieved in the operation of the site by:
· complying with environmental regulations in all areas of operations;
· controlling any potential environmental impacts of the operations in accordance with the principles of ecologically sustainable development;
· providing adequate training to employees and continuing to undertake regular reviews to enhance effectiveness;
· demonstrating a commitment to continual improvement in environmental management;
· assessing, reviewing, auditing and reporting on environmental performance; and
· formalising its existing procedures in this EMP.

Aims and Objectives

The objectives of this EMP are to:

· document the main features and facilities on the site that relate to protection of the environment and human health;

· provide an overview of environmental management practices and arrangements for use by Sherringhams Nurseries and staff;

· demonstrate the implementation of sound environmental management practices;

· identify mitigation measures that will be applied in order to minimise any adverse environmental effects and improve environmental outcomes;

· assign responsibilities.

Revision and Updating

This EMP will be revised and updated on a regular basis in response to periodic review, to reflect the current environmental requirements and to incorporate improvements. Details of the EMP review process are included in Chapter 0.

Structure of the EMP

Chapter 0 of this EMP provides details of the proposed environmental management of site activities according to the following groupings:

1) Air Quality Management (Controlling Dust and Odours)
2) Traffic (and Parking) Management
3) Noise Management
4) Water Management
5) Site Maintenance
6) Waste Management
7) Chemical Management

Chapter 0 contains information regarding personnel responsibilities, roles and training requirements. Emergency response procedures are also detailed within this section.

Monitoring and Reporting requirements are presented in Chapter 0 and Chapter 0 covers considerations for reviewing the EMP.

SITE DESCRIPTION

1.2 Site Description and Topography

The Sherringhams Nursery site is located at 626 Old Northern Road, Dural within the Baulkham Hills local government area. The site is also known as Lot 2 in DP 541329.

The site covers an area of approximately 2 hectares with a frontage to Old Northern Rd of 135 m and a depth to the rear boundary of 182 m. On the northern boundary is a right of way which provides access to a number of neighbouring businesses including the Butterfly Café and Hargraves Nursery. Dural Public School adjoins the southern boundary of the site, and to the west (at the rear boundary) is an orchard.

The rear two thirds of the site slopes generally from RL 208 m AHD to RL 198 m AHD away from Old Northern Road to the west. The general topography of the site prior to development can be seen on the Site Plan (boundaries, buildings & contours) as prepared by William Backhouse Pty Ltd.

The site is located within the catchment of O’Haras Creek which is within the catchment of the Hawkesbury River.

Site Layout

The general arrangement of the site is shown on Drawing No. BHSC-DA 003(A) and includes the following:

· An upper retail area;

· An upper retail car parking area;

· A lower retail car parking area;

· A lower retail area;

· An on-site detention dam;

· Landscaping around all the site boundaries.

Site Activities

The proposed use of the site is a retail plant nursery. A café will operate on the site as part of the nursery.

Retail Plant nursery
The activities associated with the retail plant nursery include:
· delivery of plant stock by trucks;
· sale of plants;
· delivery and storage of bulk (loose) landscape materials including soil products, mulch products and sand/gravel products to 8 storage bins;
· sale of bulk (loose) landscape products other than loose potting mix or composted material or composted mulch. (All potting and composted material is to be delivered to the site, stored on site, and be sold and transported off site in bags.)
· delivery and storage of bagged landscape material products including potting mix and mulch products to storage bins and the under cover storage area beneath the café;
· sale of bagged products (ie potting mix, mulches, gravel products);
· pest control for maintaining plant stocks;
· storage and removal of wastes from the site;
· detention of stormwater runoff;
· use of street sweeper for keeping pavements clean;
· use of a small “bobcat” or similar machine for loading landscape materials.

Café:

The café will operate between the hours of 8.30 am and 5.00 pm. The activities associated with the café include:

· deliveries of food and drinks;

· storage of food;

· storage and use of cleaning equipment (general purpose and dishwashing);

· preparation of food and drinks;

· collection, treatment and disposal of wastewater using an Aerated Wastewater Treatment System (AWTS);

· collection and removal of grease trap waste;

· storage and removal of trade wastes.

Environmental Management

The following sections detail the management of specific site activities which have the potential to impact on the environment. The purpose of this chapter is to provide Sherringhams staff with a working document which:

· outlines the potential environmental issues associated with the proposed Retail Plant Nursery;

· sets out procedures to control any potential adverse environmental impacts on the site;

· provides methods of managing activities to ensure positive environmental outcomes;

· provides indicators which can be used to identify poor performance and the need for corrective action;

· nominates responsibilities of staff on the site for ensuring environmental performance; and

· details corrective actions for improving environmental performance.

Air Quality Management

Detailed assessment of the potential for impacts on air quality arising from site activities has been provided by Holmes Air Sciences (1997, 2002 and 2003), and reviewed by Dr Richard Bentham (2003). Potential air quality issues are:
· Dust generated by handling and storage of bulk landscape materials;
· Generation of odours due to the handling and storage of bulk landscape materials; and
· Airborne contaminants from the storage and handling of organic material.

The site is designed to include the following features which assist with controlling any potential air (dust and odour) impacts:
· Bunding and fencing along the southern boundary and planting vegetation to provide wind breaks along all boundaries of the site as shown on Drawing No. BHSC DA-005(B) and BHSC DA-006(B);
· Storage of all bulk landscape materials in covered storage bays as shown on Drawing No. BHSC-DA-006(B) and BHSC DA-017(A);
· All compost will be delivered to the site in bags;
· All loose material (soil products and mulch) will be delivered to the site in a damp condition.

Dust

Holmes Air Sciences (1997) and (2002) identified the following potential sources of dust due to site activities:
· movement of heavy vehicles;
· delivery and storage of bulk landscaping supplies;
· loading of bulk materials from the storage bays; and
· wind erosion of stored landscape materials.

Holmes Air Sciences concluded “normal operational practices can be used to control dust to levels that will ensure that any emissions have been reduced to acceptable concentration and deposition levels before leaving the boundary of the site.”

Management and operational measures:
Accordingly, the operational management measures recommended by Holmes Air Sciences for minimising dust emissions are:
· delivery of potentially dusty bulk landscape materials (sand, gravel and soil products) to the site in a damp condition;
· ensure that stored material stockpiles are enclosed within the storage bays;
· control vehicle speeds;
· ensure that all trafficked surfaces are as free from dust and loose materials as possible using a mechanical broom sweeper;
· bulk landscape materials which may potentially generate dust will be kept in a damp condition by the use of spray misting to minimise dust; and
· ensure that material is not removed from storage bays during wind storms.

Performance Indicators:
A complaints register will be kept for documenting any complaints relating to dust from the site. However, it is not expected, based upon the assessments undertaken by Dr Kerry Holmes and Dr Richard Bentham, that there will be any adverse dust impacts arising from the operation of the proposed development.

Corrective Action:

Incident

Corrective Action

Responsibility

Spilled landscape material Mechanical sweeper will be used to clean the spill immediately All staff

Potential dust from bulk storage bays due to severe wind storms Ensure that material is not removed from the storage bays during severe wind storms Operation Supervisor will direct staff.

Hot/dry weather dries out bulk materials Turn on spray misting as required to maintain material in a damp condition Operation Supervisor will direct staff.

Records:

· Any complaints regarding dust from the site will be logged in the Complaints Register.

· Details of the investigation and corrective action will be kept with the Complaints Register.

Odour

Holmes Air Sciences assessed the potential for odour generated due to storage of materials more odorous than those likely to be stored within the bulk landscape material storage bays. The 1997 report by Holmes Air Sciences concluded that when applying a maximum emission rate for odour generation at the site, there would be no excedance of the EPA’s 2 odour unit goal at the school or any nearby sensitive receptors.

Management:

Holmes Air Sciences (1997) recommends that no special control or management measures will be required to control odour beyond those contemplated as part of the application (spray misting sprinkler system, enclosed bays and mechanical street sweeper).

Performance Indicators:

· Odours which are noticeable.

· Complaints regarding odour.

Corrective Action:

The Operation Supervisor is responsible for organising the removal of any material from the site that is generating nuisance odours.

Records:

· Complaints about odours from the site will be kept in the Complaints Register.

· The investigation and corrective action taken resulting from a complaint will be documented and kept with the Complaints Register.

Airborne Contaminants from Organic Material

Objectors to the proposed development have raised a concern that organic mulch materials (bark, wood chips, and leaf mulch) may be a source of bioaerosols. It has been asserted that these bioaerosols may constitute a risk to children and staff at the adjacent public school.

This issue was assessed by Dr Richard Bentham (Statement of Evidence, 2003), and he concluded that “there is no scientific basis to support the assertion that the generation of dust in concentrations on the site is likely to cause significant risk to human health.”

Traffic Management

Traffic and parking provisions for the site were assessed by Lyle Marshall & Associates (2002) and subsequently reviewed by McLaren Traffic Engineering (2003). The issues addressed were:
· Traffic safety within the site;
· Articulated heavy vehicle movements to and from the site; and
· Car parking.

Traffic Movement within the Site

The traffic flow within the site has been designed to ensure the flow of traffic through the site is in a forward direction. Pedestrian crossings will be located where pedestrian access across trafficked areas is required between retail areas and car parks.

To ensure the safety of pedestrians, a site speed limit will be set at 15 km per hour.

The frequency of truck movements for waste removal will be very low, approximately 2 movements in and out per week and will be managed so that the movement of other vehicles within the site is not impeded.

Articulated Heavy Vehicle Movements

The expected number of articulated heavy vehicle movements at the site on weekdays is 2 semi-trailer movements (Lyle Marshall & Associates, 2002).

Management
The articulated heavy vehicles arriving at and leaving the site will be delivering bulk landscape supplies from ANL sites where the material is prepared. Therefore, ANL has full control over the timing and rules associated with these deliveries. This will minimise the risk of heavy vehicles adversely impacting on the traffic safety of the area.

The unloading areas are located as follows:
1. Adjacent to the waste storage bins as shown on Drawing No. BHSC-DA 002(B).
2. In the driveway adjacent to the basement storage area as shown on Drawing No. BHSC-DA 008(B).
3. The undercover storage bins for bags and bulk product numbered 1 to 8 as shown on Drawing No. BHSC-DA 017(A)

The delivery trucks entering and leaving the site will be in view of the Site Manager or Operations Supervisor who will direct the driver where to unload. All unloading operations will be monitored by the Site Manager or Operations Supervisor.

Articulated heavy vehicles will be prohibited from entering and leaving the site during the morning and afternoon drop off/pick up times from the school. There will be no semi-trailer movements on the site on weekends and Public Holidays. The allowable entry and exit times for articulated heavy vehicles will be:

Table 1: Allowable Entry/Exit Times for Articulated Heavy Vehicles

Days

Allowable Articulated Heavy Vehicle Entry/Exit Time

Monday – Friday 6.00 am to 8.00 am

Monday – Friday 9.30 am to 2.30 pm

Monday – Friday 4.00 pm to 6.00 pm

Performance Indicators:

Ensuring that articulated heavy vehicles do not enter the site on weekdays between 8.00 am and 9.30 am and 2.30 pm to 4.00 pm can be measured by keeping a log of articulated heavy vehicle movements entering and leaving the site.

Corrective Action:

As ANL controls the movement of articulated heavy vehicles to and from the site, articulated heavy vehicle movements can be controlled to ensure that such vehicles do not/will not enter or exit the site during the school pick up or drop off times detailed above.

Records:

· Records of the date, articulated heavy vehicle entry and exit times, and truck identifier (eg licence plate number, company name or driver) will be kept for weekdays only.

Car Parking

Lyle Marshall & Associates (2002) assessed the car parking requirements for the site and McLaren Traffic Engineering (2003) reviewed these requirements. As detailed on Drawing No. BHSC-DA 002(B), the parking layout will include:

Table 2: Parking Layout

Location

Permanent Parking

Overflow Parking

Totals

Top Retail
12

8

20

Upper Retail
31

8

39

Lower Retail
34

27

61

77

43

120

However, a total of 99 car spaces are required to be available for use at all hours the site is open to the public including 4 car trailer spaces and 4 small truck spaces. But on Sundays and Public Holidays, a total of 120 spaces are to be available between the hours of 11.00am to 4.00pm.

No coaches shall be permitted to enter or park on site on Sundays or public holidays.

Overflow car parking will be made available, among other places, in front of the bulk material storage bays as indicated on Drawing No. BHSC-DA 002(B). Parking spaces 60-77 (in front of the bulk storage bins) will be line marked and removable bollards with signs will be erected in front of the storage bays to maintain access to the bulk landscape materials. The signs will read:

PARKING 11AM – 4 PM SUNDAYS & PUBLIC HOLIDAYS.
NO PARKING OTHER TIMES.

The bollards will be placed such that access to the bulk landscape material storage bays by the “bobcat” is not impeded.

When the overflow parking in front of the bulk material storage bays is in use, the open front of the storage bays will be covered by a roll down shade cloth screen as detailed on Drawing No. BHSC-DA 006(B).

On Sundays and Public Holidays, the Operations Supervisor will nominate staff responsible for directing traffic on the site during the period from 11 am to 4 pm.

Noise Management

Steven Cooper Acoustics (2002) assessed potential noise impacts due to site operations. This assessment, reviewed by Philip Turner, Unisearch, concluded that compliance with the nominated acoustic criteria (Leq = 47 dB(A) at the outdoor teaching area) would be achieved through the selection of plant and the proposed layout/landscaping of the site.

The design of the site assists with minimising noise impacts due to the following features:
· 1.5 m timber acoustic barrier fence on top of an earth mound adjacent to the boundary between the retail plant nursery and the school (shown on Drawing No. BHS-DA 03(A);
· forward traffic flow through the site to minimise “reversing beepers”; and
· selection of noise-limited bob-cats for loading operations.
Site Operations

The following machinery will operate on the site as part of the plant nursery operations:
· small front end loaders (bob-cat or similar),
· low-noise mechanical (street) sweeper.

There will be occasional use of:
· small (10-12 horsepower) tractor; and
· forklifts (up to 2 tonne).

Management:
The Operations Supervisor will ensure that:
· all machinery is chosen for low noise emissions;
· all machinery used on site is well maintained to ensure noise emissions are minimised; and
· no on-site machinery is be fitted with reversing beepers.

Corrective Action:
If machinery operating on site is generating noise, the Site Supervisor will review the maintenance of machinery.

Performance Indicators:
Performance indicators for noise impacts are:
· The restriction on noise levels which are not to exceed the average noise level at the outdoor teaching area of the school of Leq = 47 dB(A).
· Noise from the site equipment will be monitored by site personnel,
· Complaints.

Records:
Any complaints will be recorded in the Complaints Register. Corrective action taken in response to a noise complaint will be detailed in the Complaints Register.

Articulated Heavy Vehicle Movements

As described in Section 0 above, there will be articulated heavy vehicles delivering landscape supplies to the site. During school hours heavy vehicles have the potential to impact on noise from the site. However, the topography and landscaping features of the Sherringhams site with respect to the school result in negligible impact of heavy vehicle movements on school activities.

Management:
As discussed, all articulated heavy vehicles entering the site will be owned and controlled by ANL.

· ANL will prohibit the use of engine brakes on all vehicles in close proximity (200 m) to the site.
· The site has been designed to allow moving traffic to travel in a forward direction. This will reduce the need for vehicles to reverse.
· ANL will ensure that all heavy vehicles entering the site are well maintained.
· ANL will ensure that traffic surfaces within the site are well maintained to minimise heavy vehicle noise.
· There will be no semi-trailer movements on the site on weekends and Public Holidays.

Corrective Action:

The Operation Supervisor will be responsible for investigating any complaints concerning heavy vehicle noise.

Records:

Any complaints will be kept with the Complaints Register.

Water Management
Wastewater

Wastewater will be generated by the Café and amenities blocks located on the site. All wastewater from the site will be treated by the Aerated Wastewater Treatment System (AWTS) to be located adjacent to the southern boundary at the rear of the Café and Upper Retail area as shown on Drawing No. BHS-DA 008(B).

A separate grease trap will pre-treat all wastewater from the kitchen area of the Café before diverting flow to the AWTS as shown on Drawing No. BHSC-DA 008(B).

The wastewater treatment system proposed for the site is to be supplied by Aerated Sewage Systems, Seven Hills. The major components of this system include:
· 4,500 L flow balancing tank
· 2 x 7,500 L primary settling tanks
· 2 x ASS-45 Sewage Treatment Plant with trickling filters and disinfection
· 22,500 L detention tank (to provide 3 days storage)

The AWTS will be sized to incorporate detention of effluent during wet weather (wet weather storage) and will also include the following features:
· Visible alarm for indicating mechanical failure of the system;
· Moisture sensors in the irrigation area to prevent irrigation when the soil is saturated.

Effluent from the sewage system will be directed to a dedicated irrigation area located within the landscaped frontage to Old Northern Road (as shown on Drawing No. 8419/5 Sheet 1A). The proposed irrigation system will operate at night using a pop up sprinkler system with an automatic controller.

Management:
· The AWTS will be supplied with an Operations & Maintenance Manual.
· The AWTS will be maintained in accordance with the manufacturer/suppliers specifications. Visual inspection of the system will be carried out on a weekly basis.
· Regular cleaning of the grease trap serving the café by a licenced contractor.
· The system will be desludged every 5 years in accordance with Council’s approval to operate an on-site wastewater management system.
· The aeration process of an AWTS relies on microbial processes which can be adversely affected by chemical disinfection products. Therefore, the use of strong chemicals and disinfectants will be avoided by Sherringhams providing “friendly” cleaning agents for cleaners on the site.

Contact details of the maintenance contractor will be clearly marked on the AWTS unit. A maintenance contract with the supplier will include a regular inspection and monitoring program to check for the following:

· Analysis of treated wastewater on a quarterly basis to ensure that adequate treatment levels are being maintained (BOD, TN, TP, faecal choliforms).
· Leaks in the system.
· Maintenance and servicing of mechanical and electrical components of the system.

Performance Indicators:
The following observations will indicate that the system is not performing to specifications and corrective action should be taken:
· Odours from the system;
· Visible leakage;
· Irrigation system operating during rainfall.

Corrective Action:
Any performance concerns with the AWTS will be reported to the Operation Supervisor.
The Operation Supervisor will report the fault to the maintenance contractor and arrange for inspection and repair of the system immediately.

Records:
A log book will be kept detailing the following:
· maintenance/inspection dates;
· name of person and company inspecting unit;
· results of water quality sampling taken at the time of inspection;
· system faults – description of the fault and remedial action taken.

Stormwater Runoff

Lyle Marshall & Associates assessed stormwater runoff from the site. The site is generally sloping away from Old Northern Road and an on-site stormwater detention dam will be located at the south-western corner of the site (as shown on Drawing No. 8419/5 Sheet 3C) to capture runoff from all impervious surfaces on the site.

Grates will be installed on stormwater pits in the upper and lower car parking areas to remove gross pollutants.

Silt traps will also be installed in pits in the vicinity of the trailer parking in the lower car park and the bulk material storage bins.

Management:
· All stormwater runoff from pervious surfaces will be directed to the on-site detention dam.
· The on-site detention dam will be dry between rain events, and will drain within 4 to 5 hours of filling.
· Access to the on-site detention dam will be restricted by a pool-safety fence as detailed on Drawing No. BHSC-DA 005(B).
· Overflow from the storage dam will be directed to a drainage easement through the rear of the adjoining property at 618 Old Northern Road.
· All stormwater grates will be cleaned after significant storms.
· Silt and litter will be removed from the on-site detention dam as required.

Water Conservation

Sherringhams is committed to efficient water use, therefore, where possible, standard fixtures on the site will be fitted with water-efficient products, ie dual flush toilets and aerated taps, to encourage water conservation.

The landscaped area along the frontage to Old Northern Road will be irrigated using treated effluent from the AWTS, providing a saving on water requirements for irrigation purposes.

Site Maintenance

The site will have extensive landscaping along all the boundaries for the purpose of improving visual amenity from the road and from neighbouring properties. The landscaping will also provide a buffer between the site and neighbouring properties to assist with minimising noise and dust impacts.

Management:

· The Site Manager will ensure that the landscaping around the retail plant nursery is well maintained.

· Specific maintenance activities will be scheduled by the Operation Supervisor to occur on a weekly basis.

· Plants chosen for landscaping will be suitable for the expected climatic conditions of the area.

· Sick or dying plants will be replaced immediately.

Waste Management
Sherringhams has a strong commitment to recycling and reuse, and all sites provide recycling of plant pots.

The details of the Waste Management for the site including the details of contractors for waste removal and estimated annual waste volumes will be included in a Waste Management Plan. The Waste Management Plan will be prepared and lodged with Baulkham Hills Council prior to issue of the Construction Certificate.

Retail Plant Nursery Waste Management

The waste storage area for the retail plant nursery is located adjacent to the lower retail parking area as shown on Drawing No. BHSC-DA 009(B). Sherringhams has a strong emphasis on recycling as much waste as possible. Therefore, three stand-alone bins will be available for:
· pot recycling;
· recycling of green waste; and
· general refuse.

The management of waste from the retail plant nursery operations will maximise the recycling potential thereby minimising the volume of general refuse going to landfill.

Management:
The three waste storage bins shown on Drawing No. BHSC-DA 009 (B) will be 6m x 3m and constructed using concrete “besser” blocks and adjacent to the loading area:

Bin 1 – contains recycled plastic pots which are placed into the bin by hand. The pots are loaded onto a small medium rigid truck by hand every two weeks for removal from site.

Bin 2 – will contain green wastes including spent pot plants and potted colour plant prunings which will be placed in the bin by hand or by wheel barrow.

Bin 3 – will contain general refuse stored in 240 litre plastic wheelie bins which will be emptied once a week by the waste contractor.

· Green wastes will be sent to a licenced green waste recycling depot.
· The Operation Supervisor will be responsible for ensuring that the bins are emptied on an “as required basis”.
· The operations staff will be encouraged to minimise the volumes of general refuse.

Records:
The Operation Supervisor will maintain records as required by the Waste Management Plan. These records will include:
· Contractor details for waste removal
· Dates, type and quantities of waste removed from the site.

Café Waste Management

The Café will produce mostly trade waste with a small amount of recyclable material. Trade waste will be stored in “otto bins” with lids and located beneath the upper retail building.

Management:
Trade waste will be collected daily or on an “as required” basis. Trade waste for collection will be transferred to the waste storage bays located next to the lower car park (as described in Section 0 above).

The “otto bins” will be transferred to the waste storage bays by fork lift.

Chemical Management

The chemicals kept on site will be small amounts of pesticides and fertiliser for use in maintenance of the retail plant nursery and landscaping. All chemicals (fertilisers and pesticides) to be used as part of retail nursery operations will be stored in areas not accessible to the general public.

All operational machinery will be refuelled by an off-site refuelling contractor. Therefore there will be no fuels stored on site.

Fertilisers

The fertilisers proposed to be used on the site will be slow release granules (such as “osmocote”). There will be no liquid fertilisers stored on site. Fertilisers to be used as part of the retail nursery operations will be stored in areas not accessible by the general public.

All packaged fertiliser for sale will be stored under cover in the retail area.

Pesticides

There will be small amounts of pesticides stored and used on the site.
All pesticides for sale will be stored under cover in the retail areas.

Management:
All pesticides to be used as part of the retail nursery operations will be stored in a lockable cabinet in accordance with the Pesticides Act, 1997.

Pesticides used on site will only be handled by a licensed person accordance with the Pesticides Act, 1997.

Records:
Records for management of pesticides used as part of the retail nursery operations will be kept as required by the Pesticides Act, 1997.

Emergency Management and SITE Responsibilities

Emergency Management
An evacuation plan and emergency response procedures will be developed for the site and will be kept by the Site Manager. All staff will be trained in emergency response procedures for the site

The following steps will generally be undertaken in emergency situations:
· define the problem;
· manage the situation.

Sherringhams will supply Council with the name and telephone numbers of the Site Manager, who will be available on a 24-hour basis. This person has the authority to take immediate action to shut down any activity, or to effect any pollution control measure as directed by an authorised officer of Council or EPA.

Responsibilities

Sherringhams is the owner and/or the sole operator of the site. The responsibilities of the key personnel within Sherringhams are outlined in the following sections.

Site Manager

The environmental responsibilities of the Site Manager in relation to this EMP include:
· obtaining and maintaining all necessary environmental approvals/licences;
· coordinating the environmental protection activities associated with the site;
· regularly reviewing the EMP;
· overseeing environmental management on the site;
· providing appropriate training for appropriate staff and suppliers.

Operations Supervisor

The Operations Supervisor reports to the Site Manager on matters directly relevant to the operation of the site on a day to day basis. The Operations Supervisor has the following environmental responsibilities:
· managing the site to meet the requirements of the EMP;
· contributing to the ongoing improvement of environmental protection measures;
· constructing and maintaining environmental protection measures to ensure that the requirements of this EMP are fully implemented;
· ensuring that all personnel under supervision, including suppliers and sub-contractors, comply with EMP requirements relevant to their scope of work;
· coordinating emergency response;
· training personnel to ensure that they are aware of their responsibilities and improve their capabilities;
· recording and addressing non-conformances, corrective and preventative actions;
· recording and updating complaints and other records.
· liaising with the Dural Public School.

Operating Staff

Each operating staff member is required to:

· be fully conversant with the requirements of the EMP;
· comply with the requirements of the EMP for operations as it relates to their scope of work;
· identify and record environmental non-conformances, immediately notify the staff member responsible for their rectification;
· recommend improvements to environmental procedures and methods that will improve environmental performance of the scheme’s operation.

Training and Environmental Awareness

All staff working at the site are advised of the requirements of the EMP through a training and induction program. Training includes the following issues where relevant to staff roles:

Environmental Awareness

Ø Sherringhams’s environmental policies and procedures;

Ø importance of conformance with Sherringhams’s environmental policy.

Site Specific Environmental Issues

Ø requirements of this EMP, particularly in relation to stormwater, dust and noise;

Ø safety management;

Ø emergency preparedness and response;

Ø incident reporting;

Ø complaint handling procedures and actions;

Ø site environmental procedures;

Ø roles and responsibilities;

Ø potential risks associated with their work activities.

Monitoring and Reporting

Records and reporting are the responsibility of the Site Manager with assistance from the Operations Supervisor. The Site Manager will be responsible for maintaining the following records:

Table 3: Summary of Monitoring and Record Keeping

Description

Purpose

Monitoring & Documentation

Complaints Register Keep a copy of all complaints relating to the environmental performance of the site. · date and time of the complaint;
· method by which complaint was made;
· personal details of complainant;
· nature of complaint;
· action taken;
· if no action was taken, the reasons why no action was taken.

Traffic Management Monitor heavy vehicle movements on week days · date;
· heavy vehicle entry and exit times;
· truck identifier (eg licence plate number, company name or driver).

Wastewater Management Ensure correct maintenance of the grease trap and AWTS · details of contractors;
· clean out and servicing dates;
· water quality results;
· operational problems;
· details of corrective action.

Waste Management Plan As required by Council
Assist with developing improved waste minimisation strategies · date;
· volume of material removed;
· cumulative volume of material for each waste stream;
· recommended waste minimisation improvements.

Chemical Management As required by the Pesticides Act, 1997 · As required by the Pesticides Act, 1997

Environmental Training Ensure all staff have the relevant training · staff member;
· training completed;
· training needs review date.

Correspondence

All correspondence will be directed to the appropriate personnel who will arrange, if appropriate, suitable actions within a reasonable time. The correspondence will be maintained within a register by the Site Manager, which will be made available upon request to Council.

1.3 Complaints

Any complaints received by Sherringhams from any outside person or organisation will be addressed. A complaint is defined as any expression of dissatisfaction in regard to the operation of the site. During induction and training all employees are to be advised of procedures to be undertaken during and following the receipt of a complaint.

Any complaint will be directed to the appropriate personnel who will arrange suitable corrective action within a reasonable time. The complaint will be recorded and maintained within a Complaints Register by the Site Manager, which will be made available, upon request, to Council. The record of the complaint will include details of the following:

· date and time of the complaint;
· method by which complaint was made;
· personal details of complainant;
· nature of complaint;
· action taken;
· if no action was taken, the reasons why no action was taken.

1.4 Non-Conformance and Corrective Action

Corrective and preventative action involves the management of environmental non-conformances or ‘incidents’ that may occur. An environmental incident is defined as an event that has, or could have, resulted in an adverse environmental impact.

During training and induction the Site Manager must emphasise to all personnel working on the site that all incidents must be documented. Incident investigations shall include the following basic elements:
· identifying the cause of the incident;
· identifying and implementing necessary corrective action(s);
· identifying personnel responsible for carrying out corrective action(s);
· implementing or modifying controls necessary to avoid them; and
· recording any changes in written procedures required.

Reporting to Council

Sherringhams is to provide an annual written report to Council detailing its compliance, or otherwise, with the performance indictors in this EMP.

REVIEW OF ENVIRONMENTAL MANAGEMENT PLAN

The Site Manager and Operations Supervisor will regularly review the effectiveness and proper implementation of the EMP. Monitoring results, non-conformances, corrective and preventative actions, current environmental issues, community concerns and staff induction/training will be reviewed and examined. Participation from specialist consultants and community representatives will be added to the agenda of particular meetings when necessary. It is recommended that the review be carried out annually, unless unexpected issues arise requiring more urgent attention. The Review will include the items as listed in Table 4.

Table 4: EMP Review Items

Item for Review
Frequency

1
A system critique during which improvements will be sought Annually

2
An operational critique during which the operation of the EMP will be examined Annually

3
Compliance with regulations (which have been checked to be current) Annually

4
Environmental procedures are being followed (site inspection) Annually

5
Environmental training records are in order Annually

6
Environmental reports are being completed and acted on Annually

7
Environmental incidents are being recorded and acted on As occurring

8
Environmental objectives are being achieved Annually

9
Compliance with environmental objectives and targets Annually

10
Number and nature of environmental incidents As occurring

11
Corrective action that has been implemented as a result of any incidents As occurring

12
Evidence to confirm that 'continuous improvement' is taking place Annually

13
Feedback from clients Annually

14
Effects of changes in legislation and changing circumstance As occurring

15
Review of requests for changes in environmental management or work methods As occurring

16
Additional staff training requirements Annually

17
Need for preventative action. As required

18.
Annual review/report to Council Annually

Continual improvement of the EMP will be achieved by evaluating environmental management performance against environmental objectives, strategies and targets for the purpose of identifying opportunities for improvement. The continual improvement process for will:
· identify areas of opportunity for improvement of environmental management which could lead to improved environmental performance;
· determine the root cause or causes of non-conformance or deficiencies;
· develop and implement a plan of corrective and preventative action to address root causes;
· verify the effectiveness of the corrective and preventative actions;
· document any changes in procedures resulting from process improvement; and
· make comparisons with objectives, strategies and targets.
Implementation of strategies to improve the environmental performance is the responsibility of the Site Manager.

REFERENCES
Holmes Air Sciences (1997), Analysis of Air Quality Issues: Proposed Retail Plant Nursery & Landscape Supply Facility at 626 Old Northern Road, Dural
Holmes Air Sciences (2002), Air Quality Assessment, Sherringhams at Dural
Holmes Air Sciences (2003), Statement of Evidence, Air Quality Issues, Sherringhams Nurseries v Baulkham Hills Shire Council, Land and Environment Court Proceedings No. 10224 of 2003
Ladd-Hudson Architects (2002), Design Statement, Sherringhams Nursery at Dural Retail Plant Nursery
Lyle Marshall & Associates (2002), Further Statement of Evidence in Reply to the Further Statement of Evidence of Chris Hallam dated November 2003. Sherringhams Nurseries vs Baulkham Hills Shire Council, Land and Environment Court Proceedings No. 10224 of 2003
Lyle Marshall & Associates (2002), Proposed Stormwater Drainage & On Site Detention, Proposed Retail Plant Nursery Development, 626 Old Northern Road Dural
Lyle Marshall & Associates (2002), Report on Traffic & Parking Effects of Proposed Retail Plant Nursery Development, 626 Old Northern Road Dural
McLaren Traffic Engineering (2003), Land and Environment Court of NSW, Matter No. 10224 of 2003, Sherringhams Nurseries vs Baulkham Hills Shire Council, August 2003.
Neil Richard Kennan (2003), Statement of Evidence, Sherringhams Nurseries vs Baulkham Hills Shire Council, 10224 of 2003.
Nexus Environmental Planning Pty Ltd (2002), Statement of Environmental Effects, Retail Plant Nursery, Lot 2 DP 541329, No 629 Old Northern Road Dural.
Nursery Industry Association of Australia (1997). Nursery Industry Water Management: Best Practice Guidelines.
Richard Bentham (2003), Statement of Evidence, Sherringhams Nurseries v Baulkham Hills Shire Council, Land and Environment Court Proceedings No. 10224 of 2003
Steven Cooper Acoustics (2002), Acoustical Assessment Review Sherringhams at Dural

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[NB The requirements of this management plan are in addition to the other conditions of the Court’s consent of 28 November 2003.]

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CITATION:	Sherringhams Nurseries v Baulkham Hills Shire Council [2003] NSWLEC 307
PARTIES:	APPLICANT Sherringhams Nurseries RESPONDENT Baulkham Hills Shire Council
FILE NUMBER(S):	10224 of 2003
CORAM:	Nott C
KEY ISSUES:	Development Application :- Retail plant nursery - traffic and parking - adjoining a primary school - Rural 1(c) zone
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 97
CASES CITED:
DATES OF HEARING:	18 & 19 August 2003, 27 & 28 November 2003
EX TEMPORE JUDGMENT DATE :	11/28/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr D. Wilson, barrister SOLICITOR Mark McDonald RESPONDENT Mr D. Miller, barrister SOLICITORS PricewaterhouseCoopers Legal

Incident	Corrective Action	Responsibility
Spilled landscape material	Mechanical sweeper will be used to clean the spill immediately	All staff
Potential dust from bulk storage bays due to severe wind storms	Ensure that material is not removed from the storage bays during severe wind storms	Operation Supervisor will direct staff.
Hot/dry weather dries out bulk materials	Turn on spray misting as required to maintain material in a damp condition	Operation Supervisor will direct staff.

Days	Allowable Articulated Heavy Vehicle Entry/Exit Time
Monday – Friday	6.00 am to 8.00 am
Monday – Friday	9.30 am to 2.30 pm
Monday – Friday	4.00 pm to 6.00 pm

Location	Permanent Parking	Overflow Parking	Totals
Top Retail	12	8	20
Upper Retail	31	8	39
Lower Retail	34	27	61
77	43	120

Description	Purpose	Monitoring & Documentation
Complaints Register	Keep a copy of all complaints relating to the environmental performance of the site.	· date and time of the complaint; · method by which complaint was made; · personal details of complainant; · nature of complaint; · action taken; · if no action was taken, the reasons why no action was taken.
Traffic Management	Monitor heavy vehicle movements on week days	· date; · heavy vehicle entry and exit times; · truck identifier (eg licence plate number, company name or driver).
Wastewater Management	Ensure correct maintenance of the grease trap and AWTS	· details of contractors; · clean out and servicing dates; · water quality results; · operational problems; · details of corrective action.
Waste Management Plan	As required by Council Assist with developing improved waste minimisation strategies	· date; · volume of material removed; · cumulative volume of material for each waste stream; · recommended waste minimisation improvements.
Chemical Management	As required by the Pesticides Act, 1997	· As required by the Pesticides Act, 1997
Environmental Training	Ensure all staff have the relevant training	· staff member; · training completed; · training needs review date.

Item for Review	Frequency
1	A system critique during which improvements will be sought	Annually
2	An operational critique during which the operation of the EMP will be examined	Annually
3	Compliance with regulations (which have been checked to be current)	Annually
4	Environmental procedures are being followed (site inspection)	Annually
5	Environmental training records are in order	Annually
6	Environmental reports are being completed and acted on	Annually
7	Environmental incidents are being recorded and acted on	As occurring
8	Environmental objectives are being achieved	Annually
9	Compliance with environmental objectives and targets	Annually
10	Number and nature of environmental incidents	As occurring
11	Corrective action that has been implemented as a result of any incidents	As occurring
12	Evidence to confirm that 'continuous improvement' is taking place	Annually
13	Feedback from clients	Annually
14	Effects of changes in legislation and changing circumstance	As occurring
15	Review of requests for changes in environmental management or work methods	As occurring
16	Additional staff training requirements	Annually
17	Need for preventative action.	As required
18.	Annual review/report to Council	Annually