Site Plus Pty Limited v Wollongong City Council
[2011] NSWLEC 1371
•14 November 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Site Plus Pty Limited v Wollongong City Council and anor [2011] NSWLEC 1371 Hearing dates: 7, 8, 9, 10 November 2011 Decision date: 14 November 2011 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is dismissed.
2. Development Application 2009/1636 to use part of an existing quarry for a resource recovery facility at 133-141 Five Islands Road, Cringila is refused.
3. The exhibits are returned with the exception of exhibits 2 and 101.
Catchwords: DEVELOPMENT APPLICATION - use of part of a disused quarry for a resource recovery facility - permissibility of the proposed development - the shared use of the site with the council - inadequate response to the requirements of the Director-General - contrary to the zone objectives - inadequate traffic access - proximity of the proposed development to a school and residential properties Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Act Regulation 2000
State Environmental Planning Policy (Major Development) 2005
Wollongong Local Environmental Plan 1990
Wollongong Local Environmental Plan 2009Cases Cited: Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 2002
Attorney-General (Commonwealth) v Oats (1999) 198 CLR 162
Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400
Hillpalm v Tweed Shire Council [2002] NSWCA 332
Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352
Renaldo Plus 3 Pty Limited v Hurstville City Council (2005) NSW LEC 315Category: Principal judgment Parties: Site Plus Pty Limited (Applicant)
Wollongong City Council (First Respondent)
Southern Region Joint Regional Planning Panel (Second Respondent)Representation: Mr P Tomasetti SC (Applicant)
Mr R O'Gorman-Hughes, barrister (First Respondent)
Mr P Clay SC (Second Respondent)
Bahlmann Burke Lawyers (Applicant)
Wollongong City Council (First Respondent)
RMB Lawyers with Morton + Harris (Second Respondent)
File Number(s): 10527 of 2011
Judgment
ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by the Southern Region Joint Regional Planning Panel (the JRPP) of Development Application 2009/1636 to use part of a disused quarry for a resource recovery facility at Lot 2, DP 217590,133-141 Five Island Road, Cringila (the site), south of Wollongong. The site is owned by Wollongong City Council (the council).
The site
The proposal relates only to Lot 2, DP 217590, and relies on access via an existing sealed road across Lots 41 and 42, DP 841437. Lot 2 is irregular in shape and has an area of 7.6 hectares. The site is a former latite quarry site and the area of excavation is located towards the centre of the site. The quarry has been excavated into the original hillside, and as a result the land naturally rises from the top of the excavated walls, creating an amphitheatre type appearance with vertical excavated walls up to 15 to 20 m in height. The site has been extensively cleared and degraded by its previous uses. The entrance to the site on Five Island Road is located approximately 250 m from the intersection with Lake Avenue, and 190 m from the intersection with Springhill Road.
The council has most recently used the site for the storage of recyclable construction materials and currently conducts activities on the site, but not for the purposes of a resource recovery facility.
The site is visually isolated from surrounding properties as a result of it being excavated into the original hillside, and bordered by dense vegetation on its eastern side. The nearest dwellings to the site are on Jarvie Road, on the ridge to the south-east. These dwellings are approximately 35 metres from the south-east corner of the site, although 200 metres from the centre of the quarry.
To the west of the site is dense bushland. Approximately 280 m from the site entrance are local sportsgrounds, which are accessed from Merrett Avenue. Further to the west is the village of Cringila, a low-density residential suburb with detached dwellings occupying allotments generally along east-west streets. The closest dwelling in the village of Cringila from the centre of the quarry is some 405 metres in a south-easterly direction.
To the north and north-west of the site are industrial uses, accessed from Five Islands Road and Industrial Road.
The proposal
The proposal seeks to develop and operate a resource recovery facility with capacity to process up to 70,000 tonnes per annum of construction and demolition waste into viable secondary materials for reuse. The proposal does not involve any storage of materials within the site. Proposed building works will primarily involve construction of an entrance weighbridge, amenities building, site office accommodation and minor plant storage. The proposal will involve use of a crusher on site to process materials, as well as front-end loaders, a bobcat, excavator, soil sieve, truck and water tanker. Landscape and environmental rehabilitation works are also proposed.
The site will operate from 7.00am to 5.00pm Monday to Friday and 7.00am to 1.00pm Saturdays with access from Five Islands Road. The applicant seeks a 20-year time limit on the approval.
The proposal excludes an area of 4,000 sq m that is to be operated independently of the proposed development by the council, although the particular use of this area is undetermined at this stage. This area will use the same access arrangements from Five Islands Road.
Background
The history of the assessment of the development application is uncontroversial, and is set out in some detail in a number of the documentation associated with the appeal, but it is necessary to identify a number of events that impact on the site and the current development application.
On 9 October 1957, development approval was granted for a quarry on the site. It is understood that quarrying operations were undertaken on the site for approximately 20 years. During this period of use, the quarry was also used for storing equipment, mostly associated with extractive industry.
On 28 December 1990, Wollongong Local Environmental Plan 1990 (LEP 1990) was gazetted. LEP 1990 zoned the site 7(b) Environmental Protection Conservation. Amendment 236 was gazetted on 25 November 2005. The effect of Amendment 236 was to include a resource recovery facility on Lot 2 in Sch 2 of LEP 1990. Clause 39 allows those matters identified in Schedule 2 to be carried out "despite any other provisions of this plan".
In 1993, Development Application 1993/774 was submitted by the council to use Lot 2 for "Land rehabilitation for Passive Recreation Utilising Proposed Cringila Builders Waste Landfill Facility". A Statement of Environmental Effects (SEE), prepared by GHD, accompanied the application. In January 1995, Development Application 1993/774 had not been determined and was modified to provide for disposal of council construction waste only, and eventual rehabilitation. On 16 June 1995, DA 1993/774 was approved, and included two stages of development. Condition 1 requires compliance with the SEE. Stage 1 allowed for the use by council for "stockpiling, recycling and minor emplacement of council construction waste". Stage 2 allowed for "General Builder's Refuse Emplacement" and ultimately rehabilitation. Stage 2 specifically provided for recycling activities, limiting processing volume to crushing of 200 tonnes per annum, and wood chipping to 4,000 cu m per annum. However, prior to Stage 2 commencing, consultation with State government departments was required and criteria relating to rehabilitation were to be satisfied.
The consent did not, however, place any limitation on the overall amount of waste that could be delivered to the site, sorted and then transferred elsewhere for Stage 1 or Stage 2. Notwithstanding the absence of limitations in the consent, the development assessment report considered by the council noted that Stage 1 would involve stockpiling and reuse of up to 30,000 tonnes per annum, and Stage 2 would accept up to 110,000 tonnes per annum. The SEE also notes that the use would likely generate an average of 15 trucks per day to the site for Stage 1 and 270 trucks plus 130 cars per day for Stage 2.
Only Stage 1 of the consent has been taken up; that is, no permanent emplacement of construction waste has occurred and the site has not been rehabilitated. The consent places no time frame on Stage 2 occurring, and therefore the site could effectively continue to be used by council for stockpiling and recycling indefinitely.
Wollongong Local Environmental Plan 2009 (LEP 2009) was gazetted on February 2010 and zoned the site E3 Environmental Management. A resource recovery facility is a prohibited use in this zone but permissible by way of Sch 1- Additional permitted uses that work in a similar way to Sch 2 in LEP 1990.
On 18 March 2009 a Planning Focus Meeting was held between the applicant and the council staff to further discuss submissions and requirements for a development application. Following that meeting, the applicant obtained Director-General's Requirements in accordance with cl 73 of the Environmental Planning and Assessment Act Regulation 2000, which outlined the statutory matters that must be included in any environmental impact statement (EIS).
The subject development application was lodged with the council on 17 December 2009, however, the proposal has been referred to the JRPP pursuant to 13B(1)(e) of State Environmental Planning Policy (Major Development) 2005. The development is for designated development pursuant to Sch 3 of the Environmental Planning and Assessment Regulation 2000.
The assessment regime can be summarised as the council undertaking further consultation and requesting additional information that resulted in the preparation of an independent town planning report that recommended the approval of the application, subject to conditions. The JRPP conducted a briefing meeting and site inspection on 18 March 2010; further meetings on 28 October 2010 and 5 April 2011 that resulted in the refusal of the application on 5 April 2011.
The appeal was filed on 20 June 2011, with the council being the first respondent and the JRPP being the second respondent. The council initially raised no contentions in relation to the appeal however on 31 October 2011 resolved that:
1. Council, after having heard further from the community and the applicant for consent, determined to oppose the grant of development consent to the applicant.
2. Council instruct its lawyers to:
(a) Appear at the hearing on behalf of council;
(b) Advise the Land and Environment Court, the applicant and the JRPP that council opposes the grant of consent on the grounds raised by the JRPP, including traffic access and the direct and detrimental impact on the local community of Cringila;
(c) Take an active and vigorous role in the proceedings, including cross-examining witnesses and making submissions on evidence;
(d) Assist the JRPP by the provision of administrative and other assistance as required.
The contentions
The JRPP filed a Statement of Contentions that identified the following matters:
1. the permissibility of the proposed development,
2. the inadequacy of the documentation relating to -
2.1. the shared use of the site with the council,
2.2. the requirements of the Director-General.
3. the proposal is contrary to the objectives of the 7(b) zone and E3 zone, particularly the absence of full rehabilitation of the site,
4. inadequate traffic access; and
5. the public interest, particularly the lack of consideration of alternative locations for the proposal.
On the first morning of the hearing, and prior to the site inspection, the Court heard from a number of residents and representatives of the community. They supported the contentions raised by the JRPP and the council, and raised the following matters not raised by the JRPP or the council:
1. proximity of the proposed development to a school and residential properties in Cringila;
2. increased traffic movements;
3. increased dust;
4. increased noise; and
5. additional pollutants into the environment.
Relevant planning controls
At the time the development application was lodged, the applicable planning Instrument was LEP 1990 where the proposal falls within the definition of light industry. Under LEP 1990, the site is zoned 7(b) Environmental Protection Conservation, which prohibits light industry. Notwithstanding this, the use is permitted pursuant to Schedule 2, Additional Uses.
The site is currently zoned E3 Environmental Management under LEP 2009, which was gazetted on 26 February 2010. The proposed use is prohibited within the E3 zone; however cl 39 and Sc 1 - Additional Permitted Uses, specifically permits the proposed use on the site. The application is also subject to savings provisions in clause 1.8A of LEP 2009 which state:
1.8A Savings provision relating to pending development applications
If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not finally been determined before that commencement, the application must be determined as if this Plan had not commenced.
There was agreement that the applicable planning instrument was LEP 1990.
Is the use permissible?
The question of permissibility arises from the proposed access to Lot 2. The proposal provides for access from Five Islands Road over Lot 41 and 42 to Lot 2. While Lot 2 is not landlocked and has a street frontage to Jarvie Road, access to this street is not proposed. Access over Lot 41 is via an existing right of way, and access over Lot 42 (owned by the council) forms part of the lease of Lot 2 that the applicant proposes to enter into, if approval to the development application is granted.
There was agreement that the proposed development is permissible, and that there was also agreement that the proposed development was a prohibited use on Lot 41 and 42 as it was not included in Schedule 2. The only reference in Schedule 2 being to Lot 2.
Mr Tomasetti SC, for the applicant, submits that properly characterised, the only use of Lot 41 and 42 is as a road to the development site. This road currently exists and as no new development is proposed on Lot 41 and 42, a further development application in respect of these lots is not required. The use of Lot 41 and 42 as a road is a lawful and permissible use under LEP 2009.
This submission is supported by the decision in Hillpalm v Tweed Shire Council [2002] NSWCA 332 at (12) where the question of what land an application relates to must be determined by an examination of the terms of the application. In this case, the application relates only to Lot 2.
Further support comes from Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 2002, where a battleaxe handle of the lot in question was zoned residential and the remainder of the site was zoned industrial. It was held that a road was a permissible use in the residential zone, even though its sole purpose was to serve as access to an industrial use on the land in a different zone, and which use would have been prohibited in the residential zone.
Mr Clay SC, for the second respondent, relies on the decision in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400, where access was provided to a shopping complex and ancillary facilities on commercially zoned land over land zoned residential. In this case it was held that the access was part of the purpose of a shopping complex, and as such, prohibited in the residential zone.
In considering the competing submissions, I agree with the conclusions of Mr Clay. The general approach to characterisation for planning purposes is best set out by Preston CJ in Chamwell , where his Honour includes the relevant cases and relevantly states, at 27 and 28:
27. In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535, and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which the land is seen to serve. It describes the character which is imparted to that land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534.
28. In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the 'physical acts by which the land is made to serve some purpose' at 508.
His Honour further relevantly states at 33-36 and 45:
33. The fact that the nature of the use is of different components or parts of the development may vary is not necessarily of importance. Obviously the only part of the proposed development that will have a use of the specific nature of supermarket is that part of the building which incorporates the supermarket. The nature of the uses of the other parts of the building, such as the car park, driveways, access ways, and landscaped forecourt is different.
34. However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 and Warringah Shire Council v Raffles (1978) 38 LGRA 306 at 308.
35. In this case, the use of the car park, driveways, access ways and landscaped forecourt are each designed to serve the end of enabling the supermarket to be carried on. That is their purpose, and that purpose imparts on the land on which those uses are pursued the character of the shop, including the supermarket. The end to which the parts of the land in Lot D is to serve is not roads.
36. The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions and processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310.
45. The characterisation of the purpose must also be done in a common sense and practical way.
The general thrust of the findings in Chamwell is that the characterisation must focus on the purpose of the land. This must be done at a level of generality and in a common sense and practical way that is sufficient to include the individual uses that make up the purpose. While there may be a number of different uses, these different uses may still serve the same purpose.
In this case, I have little trouble in concluding that the purpose is for a resource recovery facility. The nature of the access over Lot 41 and 42 is to serve Lot 2 for the purposes of a resource recovery facility. The use of Lots 41 and 42 is to provide access to the resource recovery facility. The end to which part Lot 41 and part Lot 42 is to be put is not a road. In the words used in Chamwell (at 38), the resource recovery facility "constitutes one integrated and indivisible business or activity", and the separate characterisation of the access as a road is not appropriate in these circumstances. It follows that, as the access is part of the purpose of a resource recovery facility and this use is prohibited on Lots 41 and 42 (as it is not included in Sch 2), there is no permissible access to Lot 2, and as such, development consent must be refused because of the unsuitability of the site for the purposes of a resource recovery facility.
I am satisfied that the proposed development and the use of Lots 41 and 42 has similar characteristics to that in Chamwell and that, for the same reasons identified in par 49, Argyropoulos can be distinguished.
I also note that a future development application would be required for the access over Lots 41 and 42, contrary to the submission of Mr Tomasetti, because of the agreed evidence of the traffic engineers requiring the upgrade of the existing access to provide passing bays for trucks travelling in opposite directions along the access way.
Traffic/access
Evidence on the traffic and access issues was provided by traffic engineers Mr Graham Pindar for the applicant and Mr Tim Rogers for the JRPP. The experts prepared individual reports and a joint report that identified some shortcomings in the access to the site from Five Islands Road. Put simply, Mr Pindar maintains that any problems regarding access can be addressed through the proposed Truck Management Plan (the TMP) and a Driver Code of Conduct (DCC), while Mr Rogers acknowledges that such documents are widely used to address traffic issues, however in this case, the requirements in the TMP and DCC are not feasible or practical.
The TMP provides a wide range of requirements, but relevantly provides for:
1. registration of drivers to read, understand and agree to the requirements in the TMP (cl 3);
2. registration is to be via internet or on site (cl 3);
3. specified truck routes to the site (cl 10);
4. enforcement provisions, including a written warning for a first breach, a written warning explaining consequences of a third breach, and expulsion from working on the site for a 5-year period for a third breach (cl 11);
5. a dedicated complaint line at the site (cl 12); and
6. monitoring and reporting with annual reports submitted to the council (cl 13).
The concerns of Mr Rogers centre largely on the unsafe movement for vehicles turning right from Springhill Road into Five Islands Road and then sharply into the site and the alternate truck routes in the TMP. The particular problem routes to the site are identified as:
1. west to the site;
2. north to the site; and
3. south to the site.
The alternate truck route in the TMP from these directions is via Five Islands Road, Flinders Street, Old Port Road and Five Islands Road to the site. From the intersection of Five Islands Road and Springhill Road, the alternate truck route requires an additional distance of some 8 kilometres and an estimated additional travel time of around 10 minutes to the site.
Mr Rogers accepts that the alternate truck route in the TMP is a reasonable response to the unsatisfactory right turn movement from Springhill Road into Five Islands Road and the unacceptable weaving movement required to gain access to the site as this would avoid vehicles weaving across two lanes of traffic that merge into a single lane near the entrance to the site.
Mr Rogers however maintains that the requirement in the TMP that requires drivers to turn left at the intersection of Springhill Road and Five Islands Road, and drive a further 8 kilometres, with an extra time penalty of ten minutes to gain access to the site, is unlikely to be used by all drivers, given that the entrance to the site is only 170 metres from the Springhill and Five Islands Road intersection. The consequence of drivers accessing the site by turning right from Springhill Road, according to Mr Rogers, is an unsafe traffic movement that could result in a major accident.
Mr Pindar states that a requirement to follow an alternate truck route is commonplace and truck drivers are frequently required to take diversions. The 8 kilometre diversion is not dissimilar in principle for those drivers attending the site that seek to turn right out of the site but are prohibited in doing so because of the traffic island blocking such movements. These drivers need to turn left and use the roundabout at Glastonbury Avenue, thereby adding an additional 2.8 kilometres to their trip.
Mr Pindar also states that the accident history does not support the suggestion that the movement to gain access to the site from Springhill Road is a dangerous manoeuvre.
On the question of whether the TMP is appropriate, Mr Rogers and Mr Pindar addressed the questions set out in the judgment in Renaldo Plus 3 Pty Limited v Hurstville City Council (2005) NSW LEC 315 that should be considered in determining whether a plan of management is appropriate for a particular use and situation.
The questions raised in Renaldo are:
1. Do the requirements in the management plan relate to the proposed use and complement any conditions of approval;
2. Do the requirements in the management plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case;
3. Can the source of any breaches of the management plan be readily identified to allow for any enforcement action;
4. Do the requirements in the management plan require absolute compliance to achieve an acceptable outcome;
5. Can the people, the subject of the management plan, be reasonably expected to know its requirements;
6. Is the management plan to be enforced as a condition of consent;
7. Does the management plan contain complaint management procedures; and
8. Is there a procedure for updating and changing the management plan, including the advertising of any changes.
The relevant questions were identified as 2, 3, 4 and 5.
In considering these questions identified in Renaldo it is necessary to have an understanding of the likely traffic generation of the proposed development. The EIS identifies that there will be an average of 40 truck movements per day, that is, 20 movements in and 20 movements out. This equates to one truck movement every 7.5 minutes, with higher movements in the morning and evening peak periods. The EIS also indicates that 50% of the materials delivered to the site will be from private developers, 40% from the council, and 10% from the applicant.
In considering the competing evidence of Mr Rogers and Mr Pindar, I agree with the conclusions of Mr Rogers for a number of reasons.
First, and in response to question 2 in Renaldo , I accept that some drivers, but not necessarily all drivers, would likely disregard the requirement to use the alternate route in TMP. The access to the site is visible from this intersection, and given the undoubted desire to maximise the number of trips per day, it is, in my view, likely that trucks will turn right to access the site, particularly as it is a legal manoeuvre.
Second, the right turn movement from Springhill Road and then into the site access was seen, at best as an unsafe movement by Mr Pindar, Mr Rogers and the Roads and Traffic Authority (RTA) in their correspondence with the council. Mr Pindar expressed concerns over the potential safety implications if the TPM was not successful.
In relation to question 4 in Renaldo, I accept that absolute compliance is not necessary, however the configuration of the intersection requires significant compliance because of the potential for a serious accident. As explained by Mr Rogers, the intersection of Springhill Road and Five Islands Road is offset from the intersection of Lake Avenue and Five Islands Road. With the protected right turn movement from Springhill Road into Five Islands Road, there is still a regular stream of traffic along Five Islands Road that is not affected by the right turn movement from Springhill Road. While this stream of traffic is affected by the signalised intersection at Lake Avenue, it is still subject to traffic movements that turn left from Lake Avenue into Five Islands Road.
While it could not be said that Five Islands Road has a constant flow of traffic, it nonetheless has relatively short periods when there is no traffic to allow an unencumbered movement from Five Islands Road into the site. I note Mr Rogers unchallenged evidence that Five Islands Road has high traffic flows, between 600 and 500 vehicles in the weekday morning and afternoon peaks, and this is particularly a concern when combined with a 80 kilometre speed zone near the entrance to the site.
Third, I do not accept the conclusions of Mr Pindar that the absence of any poor accident history near the site is a sound basis for supporting the proposal. In my understanding, there was no conclusive evidence to indicate the extent of truck movements to and from the site during the time that the council has operated from the site. Any reliance on the 1995 consent that allows up to 400 vehicles per day must be considered to be unreliable in the absence of any specific traffic movement surveys.
Fourth, and in response to question 5 in Renaldo , I am not satisfied that all people who use the facility could know the requirements of the TPM. The EIS identifies 50% of the likely patrons as private developers. While some users may have a knowledge of the requirements through regular use, I am not satisfied that this would necessarily apply to all drivers from private developers, particularly if they are contractors. This needs to be compared to other situations, such as in Renaldo where most drivers were from the same company, or where other drivers had contractual obligations with the company.
Fifth, and in response to question 3 in Renaldo , I have doubts that the monitoring and enforcement of any breaches is a practical and viable option. While Mr Pindar and Mr Rogers agreed that there was likely to be a monitoring system that could be developed, and that the TPM provides sanctions for noncompliance, the evidence of Mr Pindar and Mr Rogers suggests that compliance checks of trucks would involve following trucks to ensure that there was compliance. Any monitoring of the TMP, in practical terms, must be proportional to the scale of the operation, and while I accept that monitoring of trucks is possible, further details would need to be provided and found to be acceptable, prior to accepting that the monitoring and enforcement provisions in the TPM would be viable and practical.
For the reasons mentioned in the preceding paragraphs, I agree with the expert evidence that the right turn movement from Springhill Road into Five Islands Road, and the weaving manoeuvre into the site, is potentially unsafe and dangerous, and is not satisfactorily addressed by the TPM, although I accept the later was not a conclusion reached by Mr Pindar.
In my view, this is also a sufficient reason to refuse the development application.
I also accept the submissions of Mr O'Gorman-Hughes, for the council, that, contrary to applicant's submissions, no reliance can be placed on the 1995 consent and the access road provided by that approval. I agree that condition 4 of the 1995 consent did not grant consent for the use of Lot 41 and 42 for a road. In the 7(b) zone that applied at the time, development for the purposes of a road was prohibited. To the extent that the 1995 consent granted council the use of Lot 41 and 42, it could only be for the purposes of the proposed development, that is, to use Lot 2 for "Land rehabilitation for Passive Recreation Utilising Proposed Cringila Builders Waste Landfill Facility". The proposed development application is a new application and must be considered on its own individual merits.
As there are two substantive reasons (that is, permissibility and access) why the development application must be refused, I will briefly deal with the other outstanding issues between the parties.
The council excluded land
The JRPP raised concern with the exclusion of an area of 4,000 sq m from Lot 2 for the undisclosed use by the council. The JRPP argued that this area was, firstly, not actually defined, and secondly, it was not possible to accurately assess the cumulative impacts from Lot 2 without knowing its full future use.
The applicant submitted that the area was, firstly, accurately defined in the lease, and secondly, any future impacts, including cumulative impacts, could be assessed as part of the consideration of a development application for the future use of the 4,000 square metre area.
On this matter, I accept the applicant's submissions on this contention and find that the contention would not support the refusal of the application.
The Director-General's Requirements
The Director-General's Requirements relevantly require:
4. An analysis of any feasible alternatives to the carrying out of the development, having regard to its objectives, including the consequences of not carrying out the development.
Expert evidence on this contention was provided by Mr Gamble for the JRPP and Ms Todd for the applicant. Both experts prepared individual reports and a joint report. Their reports were comprehensive and many of the sites identified in their evidence were viewed on the site inspection.
The contention focused on whether the Director-General's Requirements have been met, that is, whether there has been an adequate analysis of any feasible alternatives to carrying out of that development.
With the benefit of the evidence of Mr Gamble and Ms Todd, I am satisfied that there has been more than an adequate analysis, and notwithstanding Mr Gamble's conclusions, I do not accept that his evidence would be a reason to refuse the application.
The zone objectives
The parties differed as to whether the zone objectives were a relevant consideration in the assessment of the development application. The objectives of the 7(b) Environmental Protection Conservation zone are as follows:
(a) to identify, protect and enhance areas that have special conservational, aesthetic or scenic qualities that enhance the environment; and
(b) to identify and protect escarpment areas that enhance the visual amenity and pose a special aesthetic or conservational value; and
(c) to allow some diversity of activities on degraded land that will not prejudice achievement of the objectives referred to in paragraphs (a) and (b), or significantly detract from the environmental or visual quality or character of the locality or the amenity or operation of any existing or proposed development in the locality.
Clause 9(3) of LEP 1990 states:
9 Zone objectives and development control table
(1)
(2)
(3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.
Clause 39 of LEP 1990 states:
"39. Additional Development. Despite the other provisions of this plan, a person may, with the consent of the council, carry out development on land referred to in column 1 of schedule 2 for a purpose specified in column 2 shown opposite that land, subject to any requirements or limitations specified in column 3 shown opposite that land being met."
Mr Tomasetti submits that the development is not inconsistent with the objectives of the zone, but in any event, cl 39 prefaces the clause with the words, "Despite the other provisions of this plan, ..". He submits these words are beneficial and facultative and override other provisions of LEP 1990 because of the use of the word "despite". In his submission, "despite" is a synonym for the word "notwithstanding" ( Attorney-General (Commonwealth) v Oats (1999) 198 CLR 162 at 178) and has the effect of making clause 9(3) of no force or effect, and consequently overrides other provisions of the plan.
Mr O'Gorman-Hughes disagrees and submits that the objectives of the zone cannot be disregarded unless they are inconsistent with cl 39 ( Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352). He submits that cl 39, which permits a resource recovery facility on Lot 2, is not inconsistent with the zone objectives, as not every resource recovery facility is inconsistent with the identified objectives.
On this matter I agree with the submissions of Mr Tomasetti. The words, "Despite other provisions of this plan,.." must include a reference to cl 9(3), and a proper reading of those words would, in conjunction with the rest of the words, mean that development can be carried out for a purpose in Sch 2 without reference to cl 9(3).
Amenity impacts
Amenity impacts relating to noise and dust, particularly considered in the proximity to residential dwellings and community facilities, including a school, was an issue raised by local residents and community representatives. It was not however identified as a contention of significance by the respondents (as compared to other contentions) and it was not the subject of any expert evidence. The only expert evidence on air quality, noise and vibration, land contamination and water quality was contained in the applicant's EIS.
While I accept that the matters raised by the local residents were sincerely felt, the absence of any expert evidence to refute the technical assessments in the EIS is problematic and could not be a reason to refuse the development application.
While Mr Clay raised concerns over parts of the acoustic report, particularly the location of the acoustic mounds, and on face value his concerns may be justified. If the development application was to be approved, I would accept that his concerns should be the subject of a further acoustic report, rather than being a reason to refuse the application.
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. Development Application 2009/1636 to use part of an existing quarry for a resource recovery facility at 133-141 Five Islands Road, Cringila is refused.
3. The exhibits are returned with the exception of exhibits 2 and 101.
G T Brown
Acting Senior Commissioner
Decision last updated: 03 January 2012
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