Statewide Development Pty Limited v Minister for Planning and Da Hui Wu & Ors

[2007] NSWLEC 73

Land and Environment Court

of New South Wales

CITATION:

Statewide Development Pty Limited v Minister for Planning and Da Hui Wu & Ors [2007] NSWLEC 73

PARTIES:

APPLICANT
Statewide Development Pty Limited

RESPONDENT
Minister for Planning

INTERVENORS
Da Hui Wu & Ors

FILE NUMBER(S):

11628 of 2003

CORAM:

Brown C

KEY ISSUES:

Appeal :- modification of conditions of consent - contamination

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

23,24/01/07

EX TEMPORE JUDGMENT DATE:

24 January 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Miller, barrister
SOLICITORS
Gadens

RESPONDENT
Mr J Ayling SC
SOLICITORS
Department of Planning

INTERVENORS
Dr S Berveling, barrister
SOLICITORS
G Loupos & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

24 January 2007

11628 of 2003 Statewide Development Pty Limited v Minister for Planning and Da Hui Wu & Ors

JUDGMENT

1 COMMISSIONER: This is an application to modify, under s 96 of the Environmental Planning and Assessment Act 1979 (the EPA Act), a number of conditions of consent from DA No 298-8-2002 for a mixed-use development at 10 to 16 Marquet Street, Rhodes.

Background

2 On 24 June 2004 the Land and Environment Court granted development consent for 274 residential units, a café, basement car parking and associated site works subject to conditions. The consent was modified on 5 April 2006. On 3 November 2006 the applicant lodged an appeal for further modification of the consent, which is the subject of this appeal.

3 A number of persons have signed contracts with the applicant for the purchase of units to be constructed pursuant to that consent. Construction on the site is nearing completion. On 20 December 2006, Talbot AJ granted leave to some of those persons to appear in the proceedings, to call evidence to examine, to cross-examine witnesses and to make submissions (the intervenors).

The basis of the modification application

4 The modification application deals largely, but not exclusively with conditions relating to the contamination of the site. The approval provides for the removal of all contaminated material from the site (conditions B1.9, B1.10 and B1.11). The site auditor, Dr Ian Swane, is of the view that there is the possibility that some contaminated material may still remain on the site, albeit in a limited area of Stage 2 located beneath the basement parking slab. His concern is based on the inadequate documentation from the applicant’s contractors who removed the contaminated material from the site.

5 The wording of the consent is such that subdivision certificates and occupation certificates cannot be released all contamination is removed from the site. Removal (or confirmation that the contaminated material was removed) would require the excavation of the basement and demolition of parts of the building.

Dr Swane’s evidence

6 Dr Swane has provided a Site Audit Report dated 11 October 2006 that stated the Stage 2 area of the site is suitable for the proposed residential use. However it is subject to a requirement that the site be monitored on an ongoing basis through an Environmental Management Plan (EMP). The cost of ongoing monitoring is to be funded through interest from a $30,000 contribution from the applicant to be controlled through a trust fund.

The contamination issue

7 The significant issues raised by the respondent and the interveners relate to the possibility of future incidents that may require the excavation of the basement carpark slab. Costs associated with any work required in this area are not covered by the EMP. The respondent’s position was that an additional $70,000 should be provided by the applicant (in the same form as the $30,000 contribution) for any future excavation of the basement area.

8 The intervenors sought a contribution of $270,000 for the further investigation of any contaminants in the Stage 2 area. They also sought that the $30,000 contribution for the implementation of the EMP be increased to $100,000.

9 The applicant rejected both the respondent and intervener’s claims with Mr Miller submitting that any further funds to address the potential contamination of the site were not appropriate for a number of reasons. These being:

• the EMP is adequate.
• Dr Swain has found that Stage 2 is suitable for residential development.
• any problems would be covered by the builder’s warranty insurance for 7 years.
• beyond 7 years any failure of the slab would be seen as a latent defect and therefore not the responsibility of the Owners Corporation, and
• there is no evidence to suggest that the slab would fail and the contamination would be exposed.
Findings

10 In balancing the submissions I agree with the respondent that it is appropriate that the applicant provide some financial contribution in the event that the potentially contaminated area of Stage 2 needs to be disturbed. If the development consent conditions were fully complied with then the Owners Corporation would not be potentially subject to any costs associated with the contamination. Instead, the potential exists, although I accept that based on the evidence of Dr Swane, the risk is relatively low. He describes the risk as “extremely remote”.

11 The likely damage to the basement slab is not a matter that can be readily quantified. The potential for accidents and structural failure exists, however, I accept that the level of risk is relatively low but not zero. I am mindful that any contamination is well below ground level and that the services under the slab are limited to stormwater where the pipes are relatively well quarantined from the surrounding soil.

12 For these reasons I propose that the applicant’s contribution should be $20,000. This should take the same form as the ongoing monitoring of the EMP but should be separate in terms of its administration. The higher contribution proposed by the intervenors for the ongoing monitoring of the EMP should be rejected as the $30,000 contribution would adequately cover the inspection fees, which the evidence suggests range from $600 to $1000.

Other issues

13 The other conditions in dispute are firstly, whether a new condition should be imposed that allows for the site auditor to amend the EMP. On this proposed condition I accept the respondent’s submission that it is inappropriate as it would effectively deny the opportunity for residents of the proposed development to make submissions on any proposed changes. In my view, the terms of the approval should be reflected in the condition of consent. An application under s 96 of the EPA Act is the appropriate method to achieve any change.

14 Secondly, whether some existing conditions should be amended through an overarching condition that makes reference to each condition or whether each condition should be amended individually. While I did not understand there to be any dispute over the content of the conditions, I accept that the individual amendment to each condition provides greater clarity and less potential for misunderstanding.

15 I also record that leave was granted to amend the appeal to include an amendment to condition A1.2. The application to amend was not opposed.

16 The parties are directed to file and serve draft conditions that reflect the findings in the judgment.

17 The orders of the Court are:

1. The appeal is upheld.
2. The application to modify DA No 298-8-2002 for the erection of a mixed use development at 10-16 Marquet Street, Rhodes is approved in the manner set out in Annexure A.

3. The exhibits are returned with the exception of exhibit A1.

___________________

G T Brown
Commissioner of the Court