Toplace Pty Ltd v City of Parramatta Council

[2021] NSWLEC 1454

Land and Environment Court

New South Wales

Medium Neutral Citation:

Toplace Pty Ltd v City of Parramatta Council [2021] NSWLEC 1454

Hearing dates:

3 and 4 May 2021

Date of orders:

6 August 2021

Decision date:

06 August 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court directs that:

(1) the Respondent is to file with the Court final, agreed, conditions of consent, reflecting the conclusions of this judgment above at [12] to [26], by no later than midday on Friday 20 August 2021;

(2) the matter is listed for mention on Tuesday 24 August 2021 at 4:15pm;

(3) if direction (1) above is complied with, an order will be made granting development consent and the mention on Tuesday 24 August 2021 will be vacated;

(4) the Parties are granted liberty to restore on three days’ notice.

Catchwords:

DEVELOPMENT APPEAL – groundwater treatment and reuse system – reverse osmosis – construction environmental management plan – how to deal with groundwater pending implementation of reverse osmosis system – conditions of consent – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Parramatta Local Environmental Plan 2011

State Environmental Planning Policy No 55 – Remediation of Land

Water Management Act 2000

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Category:

Principal judgment

Parties:

Toplace Pty Ltd ACN 135 918 491 (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2020/228352

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 being an Appeal against the actual refusal of development application DA283/2019 seeking development consent for the method of treatment of groundwater as part of the approved 30 storey mixed use development and for that groundwater to be reused for irrigation of landscaping and toilet flushing (the Proposed Development) at 189 Macquarie Street Parramatta legally described at Lot 1 in DP 1214839 (the Site).

2. The Statement of Facts and Contentions filed 20 October 2020 (SOFAC) (Exhibit 1) includes a detailed chronology dating back to 2013 when the Applicant lodged Development Application No DA/852/2013 seeking consent for the construction of a 30 storey mixed use development containing 425 apartments, 317m² of retail floor space, 715 public car parking spaces over one level of basement and six levels of podium and three levels of basement car parking containing 389 spaces for residential use (SOFAC Part A at [15]). There has since been a modification approved including reducing the number of public car parking spaces from 715 to 695 (Modification Application 852/2013/B). I will refer to this development consent as the 2013 Consent. It is relevant to note that the 2013 Consent was granted for tanked basement levels.

3. Leave was granted on 6 April 2021 to the Applicant following a Notice of Motion filed 26 March 2021 to rely on amended documentation and the Applicant tendered the documents as listed in paragraph 10 of the Affidavit of Graham McKee sworn 26 March 2021 and these were marked Exhibit B.

4. The parties rely on the Joint Expert Report prepared by Lee Douglass, Hydrologist and Ka Ki (Gary) Chan, Hydraulic Engineer for the Applicant, and Dr Daniel Martens, Geotechnical and Environmental Engineer and Environmental Scientist for the Respondent filed 2 May 2021 (Groundwater JER) (Exhibit 3).

5. The parties also rely on the Joint Expert Report prepared by Larissa Brennan, Planner for the Applicant and David Ryan, Town Planner for the Respondent filed 29 April 2021 (Planning JER) (Exhibit 2).

6. There is agreement between the experts in the Groundwater JER that all contentions raised by the Respondent in the SOFAC are resolved through the inclusion of a reverse osmosis groundwater treatment plant and various updates to documents which provide for long-term management of the groundwater re-use infrastructure. The Planning Experts agreed in the Planning JER at [6] that:

"based on the assumption and understanding that the substantive matters particularised in the contentions are resolved to the satisfaction of the relevant technical experts, the statutory considerations raised in the contentions are adequately addressed and satisfied”.

7. The remaining issue in dispute between the parties is the terms of the conditions of consent and can be summarised as follows:

1. The status of the Construction Environmental Management Plan (CEMP) prepared by Lee Douglass, Principal Hydrologist of Reditus Consulting dated 27 June 2019;

2. What conditions of consent are appropriate to address groundwater management during the interim period pending the implementation of the reverse osmosis groundwater treatment system which could be as long as 12 months after the date of consent.

8. The parties filed written submissions on 6 May 2021 (Respondent written submissions) and on 10 May 2021 (Applicant written submissions). Pursuant to directions made during the hearing, the Respondent filed Proposed Conditions of Consent on 4 May 2021 at 6.44 pm which I have marked Exhibit 4 and the Applicant filed Proposed Conditions of Consent without any track changes on 6 May 2021 at 11.30 am which I have marked Exhibit E. I have reviewed and compared the competing proposed conditions of consent word for word as I note that there are numerous unmarked differences throughout. I will address these differences and my findings below.

9. The Respondent’s case is a two pronged approach of requiring regular ongoing groundwater monitoring and having a contingency treatment plan in the event that the groundwater is polluted during the period leading up to the implementation of the groundwater reverse osmosis system. The Respondent argues that the status of the CEMP is uncertain and lacks the required nexus to the Proposed Development because the CEMP was prepared pursuant to condition 59 of the 2013 Consent which approved a tanked basement. Accordingly, the Respondent proposes a deferred commencement condition. The importance and relevance of the CEMP is that the Applicant relies on it for frequency of groundwater monitoring and what steps or contingency plans are to be taken if the groundwater is found to be polluted. The Respondent submits that:

“Council’s overarching concern is that the water that is being pumped out is, number one, monitored on a continual basis, and … without an updated CEMP, there is nothing in place to really require the ongoing monitory. And secondly, the council wants to put in place, through a CEMP, a reactive plan in the event that some pollutant or otherwise … is found in the water that may be contrary to the Australian New Zealand Standards and would be likely to cause a pollution event . . .those are the two things that the council is mindful to achieve, that is, during the 12 month period before the reverse osmosis and the lead up to when the reverse osmosis system is installed, the council wants some comfort that some monitoring of the ground water is going to occur in that period and thereafter.” (Transcript 4 May 2021, page 11 at par 44 to page 12 at par 9)

10. The Applicant submits that the CEMP should be amended so as to be relevant to and approved within the development application the subject of these proceedings and that the Applicant is “willing to accept a deferred commencement condition requiring an updated and amended CEMP to be prepared and independently approved prior to the consent becoming operative.” (Applicant written submissions at [12]) (emphasis added)

11. There is substantial agreement between the parties however they have been unable to reach agreement on the final terms of the Proposed Conditions of Consent. There are a number of differences between the Proposed Conditions of Consent (Exhibit 4 and Exhibit E) and I will now address these below. The list of difference is as follows:

1. In Schedule 1 Condition 1 there is disagreement between the parties as to who will ‘approve’ the new CEMP. I am to determine whether it will be Council’s Group Manager as sought by the Respondent, or an independent engineer as sought by the Applicant. This will also be relevant for the final wording of consent condition 31.

2. The parties differ on the frequency of monitoring in Schedule 1 Condition 1 (c) and I am to determine whether it is to be fortnightly, as sought by the Respondent, or monthly monitoring of the groundwater as sought by the Applicant.

3. The Applicant seeks additional wording to include a reference to consent condition 41 in Schedule 1 Condition 1(e) and in the addition of (f).

4. The Applicant seeks the inclusion of the CEMP in the table of approved plans and documents in consent condition 1.

5. The wording of consent condition 3 is different, impacting on the calculation of the 12 month period leading up to the implementation of the reverse osmosis system.

6. Finally, the numbering of the conditions and some minor formatting and typographical errors will need to be attended to.

Who will ‘approve’ the new CEMP? Council’s Group Manager or an independent engineer? (Deferred Commencement condition 1 in Schedule 1 and consent condition 31)

12. The deferred commencement condition drafted by the Respondent requires that the new CEMP be ‘to the satisfaction of Council’s Group Manager, Development and Traffic Services’, whereas, the Applicant seeks a ‘jointly appointed suitably qualified independent engineer’. There is a similar difference in consent condition 31 where the Applicant has deleted the word ‘council’ before the word ‘approved.

13. This issue was not raised during the hearing and arises only after the conclusion of the hearing in the written submissions and the resulting conflicting versions of the Proposed Conditions of Consent.

14. In response to the Respondent’s submissions during the proceedings and in written submissions that the CEMP approved by a Council staff member may have been approved without proper delegation. I accept the Applicant’s submission that this allegation is made without any supporting evidence and I do not make any finding as to whether the CEMP was properly approved or not and in any event the Applicant has agreed that the CEMP needs to be updated and be approved as part of the Proposed Development.

15. The Applicant seeks a condition that an independent engineer approve the updated CEMP and submits at paragraph 17 of written submissions that “given the conduct of Council, it would not be reasonable, appropriate or fair to require the applicant to seek further consent/approval from Council for an amended CEMP.” I do not agree with the Applicant’s submission because Council is the consent authority and there being no evidence to the contrary, it is proper and appropriate for Council to approve, in the ordinary exercise of Council’s function, the amended CEMP in accordance with the Respondent’s Proposed Conditions of Consent.

Frequency of monitoring the groundwater – fortnightly or monthly? (Deferred Commencement condition 1(c) in Schedule 1)

16. Schedule 1, clause 1.d. of the Respondent’s version of the conditions of consent reads as follows:

“Identification of the groundwater quality monitoring regime such that at a minimum, samples are collected every 2 weeks from all groundwater discharged from the Site” (emphasis added)

17. Schedule 1, clause 1.d. of the Applicant’s version of the conditions of consent reads as follows:

“Identification of the groundwater quality monitoring regime such that at a minimum, samples are collected monthly from all groundwater discharged from the Site” (emphasis added)

18. Mr Douglas gave evidence that fortnightly monitoring, that is in place and currently occurring, is adequate or sufficient to provide the relevant information to the council (Transcript 4 May 2021, page 13 at par 40-44). Mr Douglas explains that the existing CEMP provides a good mechanism to detect any future water quality issues that may or may not occur during the construction phase prior to implementing the reverse osmosis treatment system. (Transcript 4 May 2021, page 19 at par 46)

19. The evidence of Dr Martens during the hearing is that he had no objections to the content of CEMP saying that "it seems reasonable” (Transcript 4 May 2021, page 17 at par 3) and Dr Martens goes on to say as follows in relation to groundwater monitoring and regarding the contingency plan if the groundwater is found to be polluted:

“I think it is more than reasonable that monitoring the period between this when this consent was granted, from the date of consent to the day in which the first osmosis treatment plan is implemented, and that that monitoring should continue and that that monitoring should be tied to consent so that there is an obligation under this consent to undertake monitoring” (Transcript 4 May 2021, page 18 at par 25)

20. Dr Martens also agrees that there will have to be an amendment or an updating CEMP to take into account the fact that a reverse osmosis system will be in place. (Transcript 4 May 2021, page 19 at par 35)

21. The Applicant’s expert, Mr Douglass, was not asked and did not give any evidence about reducing the regular groundwater monitoring from fortnightly to monthly. The Applicant’s written submissions are also silent in relation to this proposed change. As the Applicant’s proposed change to the condition of consent from fortnightly to monthly is not supported by the evidence I reject the proposed change and find that the Respondent’s version, seeking fortnightly monitoring of the groundwater be included in the Schedule 1 of the conditions of consent.

22. In the absence of any argument or evidence, I find that fortnightly monitoring of the groundwater is appropriate, as proposed by the Respondent in Exhibit 4 Schedule 1, 1.d.

The balance of the differences between the parties proposed conditions of consent.

23. The Applicant seeks a reference to consent condition 41 in Schedule 1 Condition 1(e) and in the addition of (f). Again, there is nothing in the Applicant’s submissions in support of this amendment sought by the Applicant and I am not satisfied that these additions are appropriate or required in the circumstances.

24. The Applicant seeks the inclusion of the CEMP in the table of approved plans and documents in consent condition 1. I am not satisfied that the CEMP should be included as an approved document for this Proposed Development because both parties agree that the CEMP needs to be updated and amended to be then approved for the Proposed Development.

25. The difference in the wording of consent condition 3 has an impact on the calculation of the timing of the 12 month period leading up to the implementation of the reverse osmosis system. There was no submission made regarding this amendment sought by the Applicant and the evidence before the Court is that the parties had agreed to a period of 12 months from the date of determination for the implementation of the reverse osmosis system. Accordingly, and on the basis that there are deferred commencement conditions in Schedule 1 which address the treatment of the groundwater pending the implementation of the reverse osmosis system, I have no reason argued before me to deviate from this position, and the wording of the Respondent’s condition 3 is accepted.

26. Finally, there are a number of relatively minor formatting and inconsequential typographical errors such as paragraph numbering which do not change the meaning or content of the balance of the agreed conditions.

The check on jurisdiction:

27. I note that proposed consent condition number 7 evidences the general terms of approval provided by Water NSW on 21 April 2021 pursuant to s 91 which constitutes satisfaction of any statutory requirements of the Water Management Act 2000.

28. Clause 7 of the State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55) requires consideration of contamination and I accept and agree with the parties that the introduction of the reverse osmosis system and implementation of the groundwater reuse water quality management plan prepared by Reditus satisfies the requirements of SEPP 55.

29. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 requires consideration of any negative impact on the Sydney Harbour Catchment area. I am satisfied that the introduction of the reverse osmosis system will ensure that all water reused on-site will be treated so that it is not contaminated or polluted together with any excess water that is disposed of by tanker truck and that there will not be any negative impact on the Sydney Harbour Catchment area.

30. I am satisfied that the relevant clauses of the Parramatta Local Environmental Plan 2011 (PLEP) have been considered and are complied with as follows:

1. The Site is zoned B4 Mixed Use and the Proposed Development is permitted development pursuant to cl 2.1 of the PLEP.

2. As required by cl 6.1 the Proposed Development is supported by an acid sulfate soils management plan as the works will exceed a distance of 2m below natural ground level. The acid sulfate soils management plan prepared by Reditus dated 8 March 2021 concludes that:

“Based on the key findings of this ASS assessment, the proposed development will not result in ASS impacts on or offsite. Given the proposed development (groundwater reuse system) will not result iln ASS impacts, as ASS management plan is not required for the proposed development.

Reditus note that the ASSMAC (1998) Assessment Guidelines require that best practice in managing any off-site water quality impacts is undertaken, even it a management plan is not required. As such, the mitigation measures to manage the risk of pH reductions in groundwater is presented in section 5.1 below.”

3. Finally, flood planning considerations of cl 6.3 have been adequately addressed and I accept that it is agreed between the parties that the Proposed Development does not raise any issues in relation to flooding.

31. During the proceedings I raised with the parties that the evidence tendered did not include documentary evidence of owner’s consent to the Proposed Development. The parties agreed that owner’s consent had been provided but that it had been omitted from the evidence tendered and the Applicant undertook to provide it to the Court. The Applicant has provided evidence of owner’s consent to the Court by way of a title search of the Site establishing that the owner of the Site is JKN Para Pty Ltd together with a letter from the sole director of JKN Para Pty Ltd ABN 53 159 177 170 authorising lodgement of a Development Application for Water Reuse at 189 Macquarie Street Parramatta. I find that this jurisdictional prerequisite has been satisfied.

Directions

32. It will be necessary that the Parties undertake work to finalise conditions of consent so that final orders can be made to dispose of the appeal by way of a grant of approval to the Proposed Development subject to conditions of consent. To that end, I make the following directions.

33. The Court directs that:

1. the Respondent is to file with the Court final, agreed, conditions of consent, reflecting the conclusions of this judgment above at [12] to [26], by no later than midday on Friday 20 August 2021;

2. the matter is listed for mention on Tuesday 24 August 2021 at 4:15pm;

3. if direction (1) above is complied with, an order will be made granting development consent and the mention on Tuesday 24 August 2021 will be vacated;

4. the Parties are granted liberty to restore on three days’ notice.

​​​​​​​……………………….

E Espinosa

Commissioner of the Court

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Decision last updated: 06 August 2021