Tipfast Pty Limited v South Sydney City Council

[2003] NSWLEC 291

>

Land and Environment Court

of New South Wales

CITATION:	Tipfast Pty Limited v South Sydney City Council [2003] NSWLEC 291
PARTIES:	APPLICANT: Tipfast Pty Limited RESPONDENT: South Sydney City Council
FILE NUMBER(S):	11059 of 2002
CORAM:	Bignold J - Watts C
KEY ISSUES:	Development Application :- to expand existing recycling yard-environmental impact-consistency with Industrial Zone objectives-Need to enforce conditions.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 80(3) and 97
CASES CITED:	Tipfast Pty Ltd v South Sydney City Council (2002) 120LGERA 292
DATES OF HEARING:	30-31/07/03, 1/08/03, 8/08/03
DATE OF JUDGMENT:	11/14/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr C McEwen, Barrister SOLICITORS Spiegal and Associates RESPONDENT: Mr A Hawkes, Solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND Matter No

. . 11059 of 2002

ENVIRONMENT COURT Coram

: Bignold J

OF NEW SOUTH WALES

14 November 2003

TIPFAST PTY LIMITED

Applicant

v

SOUTH SYDNEY CITY COUNCIL

Respondent

JUDGMENT

A. INTRODUCTION

1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the decision of South Sydney City Council (the Council) to refuse a development application to expand the currently approved use of premises at Lot 14 DP 606737, being 5A Canal Road, St Peters (the development site) as a recycling yard to include the following additional activities—the crushing, screening, transferring and storing in the short-term of construction and demolition wastes, and servicing the premises with vehicles up to 19m in length. The current use of a recycling yard derives from a development consent granted by the Council in 1994 to a predecessor of the Applicant which commenced using the premises in 2001 as the lessee of the Roads and Traffic Authority which owns the development site.

2. The present development application was the Applicant’s response to civil enforcement action taken by the Council to restrain the carrying out of the additional activities that were being undertaken at the recycling yard. Initially, that enforcement action took the form of a statutory enforcement notice issued pursuant to s 121B of the EP&A Act. Currently, it is by means of class 4 proceedings (No 41037 of 2002) which were heard concurrently with the present appeal on the common assumption that the outcome would substantially be governed by the outcome of the present class 1 proceedings. Unlike most cases of the concurrent hearing of related class 1 and class 4 proceedings, there is no complete overlap between the two proceedings inasmuch as some activity being undertaken by the Applicant is located on land adjoining the development site, which land and activity are not the subject of the development application because the owner of that land, which is also leased by the Applicant, has not consented to a development application being made in respect of that land.

3. In hearing the class 1 proceeding I have been assisted by Commissioner Watts pursuant to the Land and Environment Court Act 1979, s 37(1).
B. The DEVELOPMENT site AND ITS ENVIRONS

4. The development site is situated on the northern side of Canal Road between Burrows Road and the Princes Highway. It is slightly trapezoidal in configuration with a street frontage of 14.6 m and a rear boundary of 21.295 m and with side boundaries of 246.67 m and 244.27 m. It is fairly level. It has an area of some 4,396 m2.

5 The use extends (by virtue of the storage of stockpiles of processed materials) onto adjoining land with an area of some 3,100 m2 to the west of the central section of the development site, being a perimeter to the St Peters Tip. This site was, until early 2002, owned by the Council of the City of Sydney and is now owned by Alexandria Landfill Pty Limited. This land is leased to the Applicant and the lease will expire on 8 April 2006.

6. Abutting the site to the south east is Nos 1-3 Burrows Road, known as the “Macquarie Goodman site”, which comprises eleven (11) factory / warehouse type units, about 20 to 40 years old. The units on this land are used for a variety of storage and manufacturing uses. Located closest to the subject site are Units 1 and 2, occupied by Expo Hire, Units 4 & 5, occupied by T B Clarke a book warehouse and Unit 9A, which is now vacant, but was previously occupied by Davies Freight. The occupants of each of these units have complained to the Council about the Tipfast operations.

7. Premises situate immediately to the west of the development site at No 5 Canal Road, (referred to as “Building Recyclers premises”) commenced operations in September 2001, as a recycling yard for building and demolition waste materials involving screening and crushing of materials. Apparently that use was commenced without the requisite development consent and on 25 July 2003 the Council commenced class 4 proceedings (No 40868 of 2003) seeking orders restraining that use. That enforcement action was followed up by the developer commencing class 1 proceedings appealing against the Council’s refusal of a development application for that use (Matter No 10857 of 2003). Both proceedings have not been advanced beyond preliminary stages.

8. A large landfill site immediately to the north and north west of the development site known as the St Peters Tip, commenced operations in February 2002, as a recycling yard for building and demolition waste material involving screening and crushing of waste.

9. Three other neighbouring developments (which involve undertaking similar activities to those conducted by the Applicant) are:
· 25-29 Burrows Road adjoins 1-3 Burrows Road and contains a rock crushing plant including stockpiling of raw and processed materials operated by South Sydney City Council. This development crushes road base.
· 53-57 Campbell Road located at the corner of Campbell Road and Burrows Street is a large site of over 2 hectares and it adjoins Councils’ rock crushing plant, and contains stockpiles of demolition material at or to the rear of this site.
· Bradshaw Pty Ltd stockpile site at No 1 Woodley Street which adjoins 53-57 Campbell Street.

10. All these nearby uses are shown on figure 3 of Mr Brindle’s Planning Report (Exhibit 2) a copy of which figure is annexed hereto and marked “A”.
C. Relevant planning controls

11. The development site is zoned Arterial Road Reservation 9(a) under South Sydney Local Environmental Plan 1998 (the LEP) and by virtue of cll 30(4) and (6) any use is permissible with development consent provided it has the concurrence of the Roads and Traffic Authority, (RTA) pending the implementation of the arterial road proposal.

12. The RTA on 6 March 2003 granted conditional concurrence subject to the following conditions:
· that all vehicles must be able to enter and leave the site in a forward direction; and
· that all works associated with the proposed development shall be at no cost to the RTA.

13. The stated objectives of the Arterial Road Reservation 9(a) Zone are:

(a) to identify land to be acquired for arterial roads and widening of arterial roads; and

(b) to provide flexibility in the development of sites identified for future arterial roads by allowing development which is permissible in an adjacent zone and consistent with the objectives of that zone.

14. Relevantly the Industrial 4 Zone is an “adjacent zone” within the South Sydney Council area (the development site is located close to the boundary with the Marrickville local government area which traverses St Peters Tip site) and the objectives of that Zone are:

(a) to facilitate and encourage suitable types of industrial development ranging from general industry to high technology industry, including warehousing, manufacturing and distribution centres, or other land uses which due to their type, nature, scale, transport requirements or impacts, cannot reasonably be located in another zone, and

(b) to allow for a range of ancillary, non- industrial land uses that provide direct services to industrial activities and their workforce, including associated research, administration, commercial and retail facilities, and

(c) to ensure that development is carried out in a manner that does not detract from the amenity enjoyed by residents in neighbouring localities, the viability of commercial centres in the vicinity, or from the efficient operation of the local and regional road system, and

(d) to provide for appropriate forms of industrial development which will contribute to the economic and employment growth of the area, and

(e) to improve the environmental quality of the City of South Sydney by ensuring that industries conform to strict environmental and hazard reduction guidelines, and

(f) to ensure that the scale, design and materials of construction and the nature of the development, contribute positively to the visual quality of major access routes.

15. Clause 10 of the LEP provides—

…the Council must 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 proposal is consistent with the objectives of the zone within which the land is located.

16. It is common ground that the proposal does not involve “designated development” (“crushing, grinding or separating works” as referred to in Schedule 3 to the Environmental Planning and Assessment Regulation 2000) because:

· its capacity, is less than 30,000 tonnes per annum; and

· the site is more than 40 m from a natural or artificial water body so is not protected land under the Rivers and Foreshores Improvement Act 1948; and

· the site is more than 250 m from the nearest residence; and

· the site is more than 500 m from the nearest residential zone.

17. The present case has been conducted upon the common assumption that notwithstanding cl 30(6) of the LEP, the proposed development may be granted consent only if the Court is of the opinion that it is consistent with the stated objectives of the Industrial 4 Zone (vide cl 10 and cl 9(b)).
D. THE PLANNING HISTORY OF THE DEVELOPMENT SITE

18. Development Application U93-01054, submitted to the Council on 15 November 1993, by Sin Bins Pty Limited sought consent to use Lot 14 (5A Canal Rd) as a ‘recycling yard’. That application did not propose the processing of any material.

19. On 22 July 1994 the Council granted development consent for the use of the premises as “…a recycling yard involving the transfer and short term storage of steel, timber and related demolition material and the erection of a 2m x 1.5m pylon sign generally in accordance with the plans submitted with the application.”

20. That consent was subject to twenty-one (21) conditions the most relevant being:

(1) That no goods shall be stored on the premises except in the areas designated on the plans as storage areas;

(6) That the size of trucks servicing the premises shall be limited to a maximum of 7.5 metres;

(15) That the use of the premises shall not give rise to the emission into the surrounding environment of gases, vapours, odours, dust, or other impurities which are a nuisance or injurious or dangerous or prejudicial to health;

(17) That the use of the premises shall not give rise to:

transmission of vibration to any place of different occupancy, or

a sound level at any point on the boundary of a site greater than the background levels specified in Australian Standard 1055, Acoustic-Description and Measurement of Environmental Noise or

an offensive noise as defined in the Noise Control Act 1975.

21. In 1995 a development application was lodged to erect one 19 m x 13.8 m steel shed on the site (File U95-00919). The RTA refused to grant concurrence to the application and the Council refused that application on 24 November 1995.

22. After the 1994 consent was granted, Sin Bins Pty Limited operated the recycling yard in the years prior to Tipfast’s occupation. Sin Bins Pty Limited vacated the site prior to April 2001, when Tipfast commenced operations. Tipfast leased the site from the RTA, and when it commenced operations there were large piles of unrecycled building and demolition waste and general rubbish on the site. As lessee the RTA required Tipfast to clean up the site by processing and recycling the building and demolition waste left by the previous occupier of the site, prior to accepting, processing and recycling further building and demolition waste.

23. For the first 6 months, Tipfast worked on processing and recycling the waste material that had been left by the previous occupants. This involved the use of a trommel to sort waste and, from time to time, the use of a crusher to crush building material for recycling.

24. After completing the site clean up, Tipfast received and processed other building and demolition waste.

25. On 14 November 2001, after processing of materials had commenced at the Canal Road end of the development site, the Council issued an order under s 121B(1)(b), of the EP&A Act, requiring the Tipfast to cease crushing and screening activities at the site. An appeal against the order resulted in Court upholding the Council’s order and staying for a period of six months that order (which stay was later extended until determination of the present appeal): see Tipfast Pty Ltd v South Sydney City Council (2002) 120LGERA 292.

26. In upholding the Council’s Order, Pain J determined on a preliminary question of law that the crushing and screening activities were not covered by the 1994 consent. Her Honour granted a six (6) month stay during which the additional activities could continue to be undertaken subject to conditions (i) that noise levels be maintained at or below the NSW EPA Industrial Noise Policy Guidelines; (ii) that the materials to be recycled be limited to steel, timber and related demolition material; (iii) that each incoming load be inspected; (iv) that dust suppression methods be employed, so that no nuisance would be caused or activities injurious or dangerous or prejudicial to health were carried out; and (v) that the EPA licensed machinery and or equipment employed at the site would be operated in accordance with that license.

27.. Development application No U02-01182 was lodged with the Council on 23 October 2002, to use the premises as a recycling yard involving the crushing, screening, transferring and storing in the short-term, construction and demolition wastes and to service the premises by vehicles up to 19m in length.

28. Since Pain J had held that the existing use of the subject site, approved by the Council in 1994 was limited in scope (in terms of the development consent) the present proposal means that there will be added to the approved activities a mobile crusher and a trommel, which is a type of mechanical sieve, and would involve access to the site by vehicles up to 19m in length (instead of 7.5m length vehicles limited by the earlier consent).

29. The development application was notified to twenty-five (25) owners and twenty-six (26) occupiers in December 2002 and two (2) submissions were received by the Council both on behalf of the occupiers of the Macquarie Goodman site at Nos 1-3 Burrows Road.

30. By notice dated, 29 January 2003, the Council refused the application for reasons that are reflected in the issues raised by the Council at the hearing.
E. The issues RAISED BY THE COUNCIL

31. On 30 January 2003 the Council filed its final Statement of Issues raising the following issues:

1. The effect of the development on the environment of the surrounding properties and in particular the environmental amenity of nos. 1-3 Burrows Road by virtue of the emission of noise and vibration and dust.

2. Whether the size and shape of the premises, having regard to the materials stored on the site, allow the satisfactory manoeuvering of trucks up to 19 metres in length so as to be able to enter and leave the subject premises in a forward direction.

3. The cumulative environmental and amenity impact of this use combined with the similar activity at 3-5 Canal Road (Building Recyclers Pty Limited).

4. Whether the proposal is contrary to objectives (c), (e) and (f) of the Industrial zone under South Sydney Local Environmental Plan 1998 (which applies by virtue of objective (b) of the Arterial Road Reservation 9(A) zone) in that:

· the servicing of the site by vehicles up to 19m in length would detract from the efficient operation of the local and regional road system (objective (c));

· the use would detract from the environmental quality of the area (rather than improve it due to the open air nature of the use and the resultant inability to achieve appropriate environmental and hazard reduction standards (objective (e));

· whether the nature of the development, in particular the use and condition of the site detract from, rather than contribute positively to the .visual quality of Canal Road (a major access route).

5. Circumstances of the case and the public interest, issues raised by objectors.

F. The PLANNING EVALUATION

32. At the hearing the Court heard evidence on behalf of the Council from the following persons:
· Mr K E Iverson, Building Supervisor, Macquarie Goodman;
· Ms P Chan, General Manager, Expo Hire (Aust) Pty Limited, and tenant of Macquarie Goodman;
· Mr S J Muller, Administration Manager, T B Clarke Book Distribution Pty Limited and tenant of Macquarie Goodman;
· Mr M J McCauley, Marketing Manager, Davis International;
· Mr N Juradowitch, consultant town planner; and
· Ms C M Edney, town planner, City Environment Department of South Sydney City Council.
· Mr J Hollis, senior transport planner;
· Mr P W Stephenson, dust control engineer

33. On behalf of the applicant evidence was given by:
· Mr D Brindle, consultant town planner.
· Mr S Cooper, acoustic engineer
· Dr N E Holmes, dust control engineer
· Mr Gilder, a Director of the Applicant

34. During the course of the hearing, most of the issues that had been raised by the Council were resolved as a result of the joint conferencing of the acoustic experts, the traffic experts and the air quality experts, whose joint reports were respectively introduced into the evidence, avoiding the need for (i) any of their evidence in chief to be relied upon and (ii) any oral testimony from them.

35. In the case of the acoustical and air quality experts, their joint reports had respectively opined that the relevant adverse environmental impacts would be satisfactorily mitigated and controlled by the imposition of a strict regime of conditions of development consent (including supplementation by way of deferred commencement conditions to be imposed pursuant to the EP&A Act, s 80(3).

36. I need only refer briefly to the solutions jointly proffered by the respective experts as follows:
(a) Dust suppression Amelioration

37. On 31 July 2003 the dust engineers Dr Holmes and Mr Stephenson consulted on the outstanding issues of control of dust from the site. They agreed that conscientious use of water would be sufficient to control dust from the site to a level that emissions would not cause nuisance impacts on the factory / warehouse Macquarie Goodman site at Nos 1-3 Burrows Road. Deferred commencement conditions are proposed in respect of “the dust suppression works”.

38. Under s 80(3) of the Environmental Planning and Assessment Act 1979 the consent will not operate until the Applicant satisfies the Council that the dust suppression works are completed. This would ensure that no activities would take place on the site that would cause dust nuisance to occupants of the adjoining Macquarie Goodman site.
(b) Noise Vibration Amelioration

39. The acoustic experts agreed that effective measures could be taken to reduce to an acceptable level the impact noise on the adjoining factory / warehouse Macquarie Goodman site at Nos 1-3 Burrows Road. Conditions are proposed that would require the proposal to not exceed an LAeq(7am-6pm) noise level at any point on an adjacent property of 65 dBA.

40. This would be achieved by erecting a solid noise barrier of a minimum height of 3m above the ground level of Nos 1-3 Burrows Road along the eastern boundary of the Tipfast site between the site entrance gate on Canal road and the access gate north of the office tenancy in Unit 9A, and further, by erecting a solid masonry barrier of a minimum height of 5m relative to the ground level of Nos 1-3 Burrows Road along the eastern boundary of the Tipfast site between the access gate north of the office tenancy Unit 9a and the northern boundary of the site.

41. In order to ensure that the noise levels predicted by the experts are complied with a condition is proposed that would require an acoustic compliance test of noise emission from the site by an accredited independent acoustical engineer, approved by the Council within 30 days of the erection of the acoustic barriers, in order to check compliance with the noise criterion nominated in the relevant Condition of development consent.

42. I am satisfied on the basis of the expert evidence and the imposition of appropriate conditions that the proposal would be likely to protect the amenity of the neighbouring Macquarie Goodman site at Nos 1-3 Burrows Road from unreasonable noise impacts.

43. Despite the resolution of these significant environmental impact issues, the Council maintained its opposition to the proposed development on three grounds, two of which are the residual issues raised by the Council in its Final Statement of Issues and one of which derives from the experts’ proffered solution (via the imposition of strict conditions in respect of dust and noise amelioration). These remaining issues are—

(i) whether the proposed development is consistent with the stated objectives for the Industrial 4 Zone;

(ii) whether the development site is too confined in its width dimension and the development is too close to the Macquarie Goodman industrial development to be an industrial good neighbour; and

(ii) whether the need for continuing and strict surveillance of the regime of conditions imposes an unreasonable burden of enforcement upon both the Council or Macquarie Goodman and its tenants.

44. In determining these outstanding issues, I have had the benefit of the competing planning opinions of Mr Brindle on the one hand and Ms Edney and Mr Juradowitch on the other, together with a very comprehensive view of the development site and its environs, including the Macquarie Goodman development.

45. In my opinion, the proposed development is consistent with the stated objectives of the Industrial 4 Zone. In so concluding, I place considerable weight upon the following factors—(i) the physical context of the development and its relationship to the several similar, but far larger, neighbouring operations as shown on the plan annexed hereto and marked “A”; (ii) the fact that the development is in the nature of additional operations (entirely consistent with a recycling yard) to the existing approved neighbouring yard; (iii) the fact that a far more rigorous environmental regime will be imposed upon the whole of the Applicant’s expanded operations (the conditions of consent require the surrender of the existing 1994 consent); and (iv) the fact that the Applicant’s use is necessarily a temporary use pending the development of the land by the RTA for the proposed arterial road purpose.

46. Of course, I recognise the legitimate expectation of the Macquarie Goodman development to not suffer any unreasonable nuisance or other adverse environmental impact from the Applicant’s development. Because of spatial limitations of the development site, there can be no buffer separation between the developments and the sheer physical proximity of the Applicant’s development, given its nature and incidents, creates its own imperative for strict environmental management and control, in the interests of being a good neighbour.

47. However, it must not be forgotten that the relevant context is an industrial area in which all types of industry are permissible developments. In that context, I am satisfied that provided the environmental amelioration regime of conditions is strictly observed by the Applicant, no unreasonable environmental impact will be created for the Macquarie Goodman development.

48. The evidence of existing unreasonable impact on the Macquarie Goodman development by dust emissions satisfies me that a significant contribution to that problem is made by the Building Recyclers’ development, which it must be emphasised, has not been granted development consent, and is the subject of current civil enforcement proceedings brought by the Council.

49. So far as Zone objective (f) is concerned I am satisfied that the development, by virtue of its narrow frontage of 14 m to Canal Road, is virtually not visible to passing traffic.

50. My reasons for concluding that the proposal is relevantly consistent with the Industrial 4 Zone objectives have also, incidentally, canvassed and resolved the two other issues raised by the Council in opposing the proposal.

51. Although the regime of environmental management and amelioration conditions is not entirely self-regulating, I do not think their effectiveness will depend upon any uncommon degree of vigilance or supervision required on the part of the Council. The Macquarie Goodman development tenants and occupiers are on the spot and can be expected to keep a close eye on the performance of the Applicant in strictly observing the relevant conditions.

52. For all of the foregoing reasons, I am of the opinion that development consent subject to the imposition of a regime of appropriate conditions (including deferred commencement conditions) and subject to strict observance of those conditions should be granted in this case.

53. The conditions, generally agreed upon by the parties as reflected in Exhibit X (as re-engrossed) should be adopted. They include the deferred commencement conditions earlier identified in respect of dust and noise amelioration works. They also include a condition requiring the Applicant to provide to the Council a certificate of a qualified structural engineer that the existing office on the site is substantially safe and adequate for its purpose. They also include a condition requiring the surrender of the 1994 development consent so that the whole of the Applicant’s activities are governed by the new consent and conditions of consent.
G. Orders

54. Accordingly, I make the following orders—

1. The appeal be upheld

2. Consent be granted to the development application No U02-01182 to use the premises at Lot 14 DP 606737, being 5A Canal Road, St Peters, as a recycling yard involving the crushing, screening, transferring and storing in the short-term, construction and demolition wastes and to service the premises by vehicles up to 19m in length, subject to Conditions 1 to 37 as set forth in Annexure B hereto.

3. The exhibits (with the exception of Exhibits D, K, U, V and 1) be returned.

4. No order as to costs.