Waldrip v Lake Macquarie City Council and Johnson Property Group Pty Ltd

[2016] NSWLEC 1365

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Waldrip v Lake Macquarie City Council and Johnson Property Group Pty Ltd [2016] NSWLEC 1365

Hearing dates:

14 - 18 March 2016. Further submissions and conditions filed on or before 22 April 2016. Judgment and Directions on 31 May 2016. Further plans and filed on 15 June and 18 July 2016. Further submissions and conditions filed between 1 July and 22 August 2016.

Date of orders:

30 August 2016

Decision date:

30 August 2016

Jurisdiction:

Class 1

Before:

Tuor C and Speers AC

Decision:

1. The appeal against the First Respondent’s approval of the development application (DA/714/2014) is dismissed.
2. The development application (DA/714/2014) for a utility installation, being a water recycling facility for the treatment of sewage, at 615-617 Freemans Drive (Lot 12 DP 1158508, Lot 212 DP 1037011), Cooranbong, is approved in accordance with the plans filed by the Second Respondent on 18 July 2016 and subject to the Conditions in Annexure A.
3. The exhibits, except Exhibits 4, R2.1 and J, are returned.

Catchwords:

DEVELOPMENT APPLICATION: Water recycling facility. Compliance with Judgment and Directions. Conditions of consent.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Waste Industry Competition Act 2006

Cases Cited:

Waldrip v Lake Macquarie City Council and Johnson Property Group Pty Ltd [2016] NSWLEC 1212

Category:

Principal judgment

Parties:

Marvin Waldrip (Applicant)

 

Lake Macquarie City Council (First Respondent)

  Johnson Property Group Pty Ltd (Second Respondent)

Representation:

Counsel:
Ms J Walker (Applicant)

 

Mr J Connors (First Respondent)

 

Mr A Galasso SC (Second Respondent)

 

Solicitors:
Woolf Associates Solicitors (Applicant)

 

Corporate Legal Office Lake Macquarie City Council (First Respondent)

  Sparke Hellmore Lawyers (Second Respondent)

File Number(s):

2016/152812 (previously 10735 of 2015)

Judgment

1. The background and matters relevant to this appeal are set out in the decision of the Court in Waldrip v Lake Macquarie City Council and Johnson Property Group Pty Ltd [2016] NSWLEC 1212. The Court found at [101]:

The development in its current form impacts on the potential to conserve a wildlife corridor on the Land and the adjoining property and may result in odour impacts, which would impact on existing and future residential use of the adjoining property and the Land. The proposed changes discussed during the hearing are not sufficient to address these concerns. However, the impacts would be ameliorated to an acceptable level if the WRF was to be located within the cleared area of the Land and set back a minimum of 30m from the eastern boundary to provide a vegetation corridor with any buildings or structures set back a further 5m from the corridor to provide a buffer for any batters, retaining walls or tree removal. A minimum 5m wide landscape buffer is to be provided along the western boundary to adequately screen the development.

2. The following Directions at [105] were made:

(1)   The Second Respondent is to advise by ecourt on or before 7 June 2016 whether it chooses to amend the application in accordance with the findings in this judgment.

(2)   If the Second Respondent chooses to amend the application, the parties are to file by ecourt on or before 14 June 2016 agreed directions as to the filing of the amended plans, supporting information and agreed conditions;

(3)   Upon the receipt of the satisfactory information in Direction 2, orders will be made in Chambers approving the application.

(4)   If the Second Respondent chooses not to amend the application, orders will be made in Chambers refusing the application.

3. The Second Respondent (JPG) filed amended plans and supplementary ecology information on 15 June 2016 and 18 July 2016 in accordance with the findings in Waldrip. The amended plans had been reviewed by the Applicant and the First Respondent. Amended conditions and submissions on the condition (Condition 37) that remained in dispute were filed on 1 July 2016.

4. The Court reviewed the amended plans, conditions and submissions and advised the parties on 7 July 2016 that further amendments to the plans and conditions were required.

5. In relation to Condition 37, the version filed on 1 July 2016 stated:

37.   Odour Control

1.   The Odour Control Unit (OCU) shall be designed, installed and operated to ensure that emissions from the stack of the OCU shall:

(a)   be no greater than 277.5 odour units by volume per second (ou.m3/s) at a concentration not exceeding 500 odour units (ou); and

(b)   be no greater than 0.1ppm concentration of H2S.

2.   The remainder of the plant shall be designed, installed and operated to minimise the release of odour emissions, including fugitive odour emissions. The pre and post anoxic, membrane chambers and aerobic chambers shall be fully covered and sealed (including seals on any necessary access hatches) and vented under negative pressure to the OCU, so as to ensure fugitive emissions are minimised.

3.   Prior to the issue of a Construction Certificate, the proponent shall use air dispersion modelling to demonstrate, to the satisfaction of Council, that the plant is designed to meet the following criteria;

(a)   odour concentrations will not exceed 2 ou (at the 99th percentile) at the eastern boundary of Lot 12 DP 1158508; and,

(b)   H2S (hydrogen sulphide) concentrations will not exceed 1.38 µg/m3 (at the 99.9th percentile) at the eastern boundary of Lot 12 DP 1158508.

Air dispersion modelling shall be per the requirements for a level 2 assessment per the NSW EPA “Approved Methods for the Modelling and Assessment of Air Pollutants in New South Wales”

4.   The sum total emissions from the plant, per the results of air dispersion modelling, shall not result in off-site:

(a)   odour concentrations exceeding 2 ou (at the 99th percentile), and,

(b)   H2S concentrations exceeding 1.38 µg/m3 (at the 99.9th percentile).

5.   The proponent shall, prior to the commissioning of the subject development, establish a baseline correlation between the odour concentration in ou and the H2S (hydrogen sulphide) concentration in micrograms per cubic meter of air (µg/m3) of the emissions from the OCU stack. If such a relationship is found to exist and can be demonstrated to be robust to the satisfaction of Lake Macquarie City Council (LMCC), the level of H2S corresponding with 500 ou, may be used to satisfy condition 37(1), using the monitoring results as per condition 37(6).

6.   The proponent shall install in the OCU stack a continuous monitor of H2S to ensure compliance with condition 37(1)(b) above. Results shall be recorded at least each 10 minutes, kept electronically with all relevant metadata including date, time, calibration and zero check. Results are to be kept for 4 years from the date of recording, and provided to the Council or the NSW EPA within 7 days of receiving a request for this information. The monitor, its installation position, calibration and maintenance, shall comply with the relevant requirements in the NSW EPA “Approved Methods for the Sampling and Analysis of Air Pollutants in New South Wales”.

7.   A weekly summary of the results described in condition 37(6) above, showing maximum H2S readings for each hour of each day of the week, shall be made publicly available on a website operated by the operator of the water recycling facility within seven days of the end of the week to which the results relate. These results shall continue to be available for 2 years after the end of the week to which the results relate.

8.   This condition applies only after condition 37(3) is satisfied. The proponent shall lodge with each development application for a future stage or future stages of the North Cooranbong Residential Precinct a report demonstrating that the OCU, the remainder of the plant and plant overall is capable of complying with the criteria in conditions 37(1) and 37(3) with the additional load created by the proposed stages(s) or will be capable of complying if specified works and/or upgrade and/or replacement of equipment is carried out. In the event that the OCU, remainder of the plant or any other part of the plant requires replacement, upgrade or amplification the proponent must demonstrate to council that the operator of the water recycling facility has undertaken such replacement upgrade or amplification prior to the release of a subdivision certificate for the relevant stage that triggers the requirement for the works.

6. The parts of Condition 37 that were in dispute are shown in italics and are 37.1(a), 37.4, 37.5 and 37.7. The Applicant submitted that these should be included whereas JPG did not agree that they are necessary and the First Respondent (Council) consented to the conditions proposed by JPG and did not have sufficient information to consent to the version of the condition proposed by the Applicant.

7. The Court accepted the Applicant’s submission that a ‘flow rate’ should be included in condition 37(1)(a) as the evidence during the proceedings was that acceptable levels of odour are likely to be achieved if the OCU vent is maintained to a level not exceeding 500OU and that this is directly related to the rate at which the odour is emitted and its dispersion. We accepted that it is therefore necessary to control the odour emission rate from the OCU vent. Further submissions from the parties have adjusted the odour emission rate to 508.3 odour units by volume per second (ou.m3/s) which is agreed between the parties.

8. Condition 37(4) and (5) have subsequently been replaced by alternate conditions, which are agreed between the parties.

9. The Applicant submitted that making monitoring results available would make the operator more accountable to the community. The Court accepts JPG’s submission that Condition 37.7 is not required as there are other mechanisms to ensure compliance with the development consent. The Court is satisfied that the relocation of the facility in accordance with its decision in Waldrip and the proposed conditions, including monitoring will address issues associated with odour impacts on the general public.

10. The Court also had concerns about other aspects of condition 37 and a series of further submissions and Court responses were made including a telephone mention on 29 July 2016 and the parties obtained further advice from their respective odour experts, Dr Cox and Mr Todoroski.

11. On 22 August 2016, the parties filed an agreed Condition 37 which provides:

37. Odour Control

1.   The Odour Control Unit (OCU) shall be designed, installed and operated to ensure that emissions from the stack of the OCU shall:

(a)   be no greater than 508.3 odour units by volume per second (ou.m3/s) at a concentration not exceeding 500 odour units (ou); and

(b)   be no greater than 0.1ppm concentration of H2S.

2.   The remainder of the plant shall be designed, installed and operated to minimise the release of odour emissions, including fugitive odour emissions. The pre and post anoxic, membrane chambers and aerobic chambers shall be fully covered and sealed (including seals on any necessary access hatches) and vented under negative pressure to the OCU, so as to ensure fugitive emissions are minimised.

3.   The plant shall be designed, installed and operated to ensure that total emissions meet the following criteria measured at the boundaries of Lot 12 DP 1158508 or the nearest sensitive receptor (whichever is the closer):

(a)   odour concentrations will not exceed 2 ou (at the 99th percentile, nose response time (one second averaging period); and

(b)   H2S (hydrogen sulphide) concentrations will not exceed 1.38 µg/m3 (at the 99th percentile, nose response time (one second averaging period)

4.   Prior to the issue of a Construction Certificate, air dispersion modelling shall be carried out to demonstrate, to the satisfaction of Council, that the plant is designed to meet the criteria in Condition 37(1) and 37(3) above.

Air dispersion modelling shall be per the requirements for a level 2 assessment per the NSW EPA “Approved Methods for the Modelling and Assessment of Air Pollutants in New South Wales”

5.   After the commissioning of the subject development, the odour concentration in ou.m3/s of the emissions from the OCU stack must be tested in accordance with NSW EPA “Approved Methods for the Sampling and Analysis of Air Pollutants in New South Wales”. Sampling for such tests shall be carried out:

(a)   in the first week of each quarter at the time of day and week when peak of H2S levels are usually experienced, as measured in accordance with condition 37(6) below:

(b)   at any other time with 48 hours (or such other period of time as required by laboratory availability and the NSW EPA “Approved Methods for the Sampling and Analysis of Air Pollutants in New South Wales”) of receiving a reasonable request from Lake Macquarie Council (LMCC) in response to odour complaints.

The test results shall demonstrate that the subject development is complying with Condition 37(1) at times of peak H2S generation, and shall be submitted to LMCC.

6.   Prior to the commissioning of the subject development a continuous monitor of H2S shall be installed in the OCU stack to ensure compliance with condition 37(1)(b) above. Results shall be recorded at least each 10 minutes, kept electronically with all relevant metadata including date, time, calibration and zero check. Results are to be kept for 4 years from the date of recording, and provided to the Council or the NSW EPA within 7 days of receiving a request for this information. The monitor, its installation position, calibration and maintenance, shall comply with the relevant requirements in the NSW EPA “Approved Methods for the Sampling and Analysis of Air Pollutants in New South Wales”.

7. This condition 37(7) does not apply to any development that is the subject of a development consent granted prior to the date of this consent. The operator of the water recycling facility must not issue any notification under clause 6.2 of the Lake Macquarie Local Environmental Plan 2014 that sewerage services are or will be available for a proposed stage of residential development unless the notification demonstrates:

(a)   the OCU and the plant overall are capable of complying with the criteria in conditions 37(1) and 37(3) with the additional load created by that stage of residential development; or

(b)   the OCU and the plant will be capable of complying with the said criteria if specified works and/or upgrade and/or replacement of equipment is carried out.

8. In the event that the OCU or any other part of the plant requires replacement, upgrade or amplification as specified in condition 37(7), the operator of the water recycling facility must not issue any certificate of compliance under the Water Industry Competition Act 2006 to satisfy the requirements of section 109J(1)(e1) of the Environmental Planning and Assessment Act 1979 for the relevant stage of the proposed residential development unless it demonstrates to the Council that the replacement, upgrade or amplification has occurred.

12. The Court is now satisfied that the amended plans and conditions are in accordance with its Judgment in Waldrip and that the application can be approved.

Orders

13. The Court makes the following orders:

1. The appeal against the First Respondent’s approval of the development application (DA/714/2014) is dismissed.

2. The development application (DA/714/2014) for a utility installation, being a water recycling facility for the treatment of sewage, at 615-617 Freemans Drive (Lot 12 DP 1158508, Lot 212 DP 1037011), Cooranbong, is approved in accordance with the plans filed by the Second Respondent on 18 July 2016 and subject to the Conditions in Annexure A.

3. The exhibits, except Exhibits 4, R2.1 and J, are returned.

Annelise Tuor            Ross Speers

Commissioner of the Court      Acting Commissioner of the Court

Amendments

07 September 2016 - Typographical error

05 September 2016 - Orders corrected 'cover body' of judgment

Decision last updated: 07 September 2016