WRF Property Pty Limited v Armidale Dumaresq Council

[2003] NSWLEC 223

>

Land and Environment Court

of New South Wales

CITATION:

WRF Property Pty Limited v Armidale Dumaresq Council and Another [2003] NSWLEC 223

PARTIES:

APPLICANT
WRF Property Pty Limited

FIRST RESPONDENT
Armidale Dumaresq Council

SECOND RESPONDENT
John Carr Architects

FILE NUMBER(S):

40279 of 2003

CORAM:

Talbot J

KEY ISSUES:

Judicial Review :- operation of development consent suspended until conditions satisfied - otherwise invalid for failure to take into account a relevant matter
Development consent :- failure to take into account a relevant matter - suspension of the consent until conditions satisfied - otherwise invalid

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979 s 25B
Environmental Planning and Assessment Regulation 2000 Sch 3, cl 15
State Environmental Planning Policy No 55 - Remediation of Land

CASES CITED:

Cameron v Nambucca Shire Council (1997) 95 LGERA 268;
Hill v Woollahra Municipal Council & Ors [2003] NSWCA 106, unreported;
Mison and Others v Randwick Municipal Council (1991) 23 NSWLR 734;
Remath Investments [No. 6] Pty Limited v Botany Bay City Council [No. 2] (Talbot J, NSWLEC, 11 December 1996, unreported);
Weal v Bathurst City Council and Another (2000) 111 LGERA 181

DATES OF HEARING:

23/07/2003, 24/07/2003, 25/07/2003, 15/08/2003 (final submissions)

DATE OF JUDGMENT:

09/30/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr WP O'Rourke (Solicitor)
SOLICITORS
Deacons

FIRST RESPONDENT
Mr MG Craig QC with Ms KJ Williams (Barrister)
SOLICITORS
Phillips Fox

SECOND RESPONDENT
Mr P R Clay (Barrister)
SOLICITORS
Michell Sillar

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40279 of 2003


Talbot J

30 September 2003

WRF Property Pty Limited

Applicant
v

Armidale Dumaresq Council

First Respondent

John Carr Architects

Second Respondent

Judgment

Introduction

1 On 27 August 2001 the first respondent, as consent authority under the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) resolved to grant deferred commencement development consent to a development application for a shopping centre on land, including the subject land bounded by Beardy, Jessie, Dumaresq and Allingham Streets and Dumaresq Creek, Armidale (“the site”).

2 Armidale Dumaresq Council (“the council”) previously used part of the site for the purpose of a gasworks. The former gasworks site contains contaminated soils (“Area 1”). The whole of Area 1, except the part currently used for public car parking is to be surrounded by a low permeability containment cell. The balance (“Area 2”) is to be capped with low permeability materials.

3 It was a condition of the deferred commencement consent that the applicant obtain all necessary approvals for contaminated soil treatment works so that the land may be used for its intended purpose and to carry out all necessary remediation activities safely and in accordance with adopted Government and industry protocol.

4 In 2002 the applicant lodged a development application seeking the consent of the council for remediation of contaminated land involving demolition of buildings, removal of some contaminants and the construction of a containment cell with ongoing monitoring of groundwater and gas emissions.

5 Following protracted negotiation and consultation with the Environment Protection Authority (“the EPA”) in respect of the treatment of contaminants in Area 1 the council entered a Voluntary Remediation Agreement (“VRA”) with the EPA on 4 December 2002. The VRA terms do not allow contaminated material to be imported into the proposed containment cell.

6 On 23 December 2002 the council determined the development application for demolition of existing buildings and structures and remediation of the contaminated land by granting consent subject to conditions. The development consent is part of the process of obtaining the necessary approvals for contaminated soil treatment works as required by the deferred commencement development consent.

7 It is alleged by the applicant that in its consideration of the 2002 development application the council failed to take into account relevant matters, it deferred consideration of relevant matters that were required to be taken into account and that it imposed a number of condition that may result in the development being significantly different from the development for which consent was sought. Furthermore, it is alleged the decision by the council to approve the remediation of the contaminated land was manifestly unreasonable. For these reasons the applicant claims that the development consent is void and of no legal effect and seeks a declaration to that effect and a consequential order that the first and second respondents, and their respective servants, agents and assigns be restrained from carrying out any development on the land pursuant to the development consent.

8 In the course of preparation for the hearing the applicant has limited its claim to a complaint about the three following conditions of the development consent:-

(1) Condition 7 - “Remediation Acceptance Criteria for contaminants in soils, sediments, surface water, ground water and gas emissions are to be in accordance with those accepted by the NSW Environment Protection Authority at the time that assessments, validation and/or monitoring are carried out.”

(2) Condition 84 – “The site is located within the Dumaresq Creek floodplain. Therefore, prior to the commencement of construction, the applicant shall undertake a flood analysis of the site. The analysis shall demonstrate how floodway capacity will be retained within the site such that the Dumaresq Creek flood level upstream and downstream are not affected by changes to site levels. Details, including final surface levels, to be submitted prior to issuing the Construction Certificate.”

(3) Condition 87 – “The capping layer of the containment cell is to be installed in accordance with RAP1. The minimum thickness of the capping layer is to be 1.2m and the clay sealing layer is to be at least 500mm thick.”

9 Mr O’Rourke submits, on behalf of the applicant, that the criteria referred to in condition 7 should have been specified in the development consent. Furthermore, as final surface levels may not be determined until the flood analysis referred to in condition 84 has been completed, the result could lead to a development which is significantly different to the development approved by the council. Relevant matters have also been deferred for future consideration and determination pursuant to condition 84. It follows, therefore, according to Mr O’Rourke, that approval subject to the condition is manifestly unreasonable.

10 Mr O’Rourke says that condition 87 also gives rise to uncertainty in respect of the finished levels of the development, again leading to a claim of manifest unreasonableness.

11 The first and second respondents deny the claims made by the applicant. In further defence of the entirety of the points of claim the first respondent says that the development, which is the subject of the consent, does not require development consent. The latter issue was raised immediately prior to the hearing. After argument the first respondent was given leave to rely on the further defence.

12 The argument of the first respondent is that as the remediation works do not involve the treatment and storage of more than 30,000m3 of contaminated soil they are therefore not designated development, and do not fall within the definition of Category 1 Remediation Work in cl 9 of State Environmental Planning Policy No. 55 – Remediation of Land (“SEPP 55”). Accordingly, no development consent is required in respect of the works.

The development application

13 The development application was lodged with the council on 4 July 2002. It was accompanied by an Environmental Impact Statement (“EIS”), which included a Remediation Action Plan dated February 2002 (“RAP 1”), a Remediation Action Plan dated May 2002 (“RAP 2”), a Construction Site Environmental Management Plan (“Construction SEMP”) and an Operational Site Environmental Management Plan (“Operational SEMP”).

14 According to the first respondent, the principal elements of the remediation scheme the subject of the development application are as follows:-

(a) demolition of existing buildings and structures on the site, including contamined [sic] structures such as the gas holder;

(b) excavation and removal of contamination “hotspots” such as soil contaminated by free-flowing tar or oils;

(c) construction of a cement bentonite slurry cut-off wall, keyed into bedrock, around Area 1, excluding Lots 13 and 14, to form a containment cell for contaminated materials remaining on site;

(d) construction of a low permeability clay capping layer over the containment cell; and

(e) construction of a low permeability capping layer over Area 2.

15 Most of the land to be remediated is in Area 1, which is owned by the council.

16 The council engaged Kathy Martin as an independent planning consultant to assess the development application. She describes the clean-up criteria for the contaminated land as follows:-

As a capping and containment remediation strategy has been adopted, the achievement of the required remediation acceptance criteria (RAC) for materials within the proposed containment cell on the gasworks site will be demonstrated by the successful installation of a containment cell with a target hydraulic permeability of 10 -9 m/s and maximum insitu permeability of 1 x 10 –8 m/s. That is, samples of the bentonite wall mix will require to have a maximum permeability of 1 x 10 -9 m/s, while the insitu wall permeability, including at the wall-bedrock contact, will require to be a maximum of 1 x 10 -8 m/s. Site validation therefore will focus on the verification of the establishment of an effective barrier to contaminant migration. The RAC will not take the form of a set of concentration criteria for various contaminants of concern in contained soils and groundwater.
Although RAP 1 allows for soils that do not meet any defined RAC (but are free of oils and tar) to be placed within the containment cell, the VRA does not permit contaminated soil from outside Area 1 to be placed within the cell.

17 Submissions were made to the council by the following authorities:-

(a) Department of Land and Water Conservation;

(b) Roads and Traffic Authority;

(c) Workcover;

(d) Planning NSW;

(e) NSW National Parks and Wildlife Service;

(f) NSW Heritage Office; and

(g) NSW EPA.

18 Ian Andrew Hosking, a Senior Principal of Coffey Geosciences Pty Limited (“Coffey”) is retained by the first respondent as the site auditor. In the course of his role as site auditor Mr Hosking has reviewed the sufficiency of RAP1, RAP2, the Construction SEMP and the Operational SEMP.

19 The RAPs and SEMPs were prepared by Douglas Partners Pty Limited (“Douglas Partners”).

20 The RAPs accompanying the EIS and incorporated in the development consent by force of condition 2 refer to the “cap and contain” system as being intended to specifically comply with the requirements of the NSW Site Auditor Scheme EPA (NSW 1999) by generally complying with the undermentioned requirements for containment systems as outlined in the “Guidelines for the Assessment of Onsite Containment of Contaminated Soil” (ANZECC 1999):-

§ In considering whether to employ on site containment as a means of managing contaminated soil, the primary objective of the decision making process must be to protect the health and safety of human and environmental receptors;

§ Remedial options should minimise the need for ongoing management and regulatory scrutiny of the site and minimise constraints on the reasonable and usual use of the land;

§ The preferred remedial option should support the best use of available waste treatment and disposal facilities and other public resources while providing an agreed and appropriate level of safety and environmental protection; and

§ Suitable set-back distances and buffer zones should be incorporated into the design plan.

21 The RAP goes on to refer to and summarise the ANZECC requirements for sufficient setbacks, a suitable buffer zone and regard for potential effects of flooding. The RAP particularly notes that the following have been considered:-

§ The proposed commercial redevelopment complex will be suspended above a ground level car parking area over the contained area;

§ Site users (at ground level) will be protected from buried gasworks wastes by an engineered cap and asphalt pavement. No public access to soils will be available on any part of the former gasworks site; and

§ Any volatile emissions that may be produced by the gasworks wastes will be diverted by soil gas relief measures incorporated within the cap over the cell to be released at controlled external areas.

22 Reference is made to selecting the rationale for specified permeability values for the consent. Bentonite cut-off walls and the potential negative effects caused by the components of the contaminated material and the importance of a proposed on-going program of groundwork monitoring from monitoring bores around the external periphery of the contaminant cell is noted. Remedial measures are foreshadowed in the event that contaminated groundwater is emanating from the cell and contaminant concentrations in groundwater immediately surrounding the site do not improve following a period of twelve months. It is foreshadowed in summary, that during the routine operation of the cut-off cell head difference is expected to be minimal and little flow of groundwater out of the cell should occur and that during assumed worst-case circumstances the contaminant cell will continue to substantially reduce the off-site movement of contaminants from the gasworks site.

The applicant’s case

23 The Contaminated Site Groups Manager of Sinclair Knight Merz, Dr Ian Swane, has given evidence in support of the applicant’s case.

24 In his opinion, Remediation Acceptance Criteria (“RAC”) needs to be defined as part of an application for development consent so that:-

§ The feasibility of alternative remediation strategies can be properly assessed;

§ The remediation strategy can be adopted that will be most appropriate for the proposed land use and be protective of human health and the environment;

§ The extent, design and likely cost of the remediation works can be properly estimated at the DA stage; and

§ The future impacts of any residual contamination remaining after the clean-up can be properly assessed.

25 He says the NSW EPA has not defined RAC for the clean up of gasworks sites as contemplated by condition 7. He told the Court that in Australia RAC are determined using the approach described in ANZECC and NHMRC (1992) Guidelines. He explained that RAC for contaminants in soils, sediments, surface water groundwater and gas emissions define the chemical concentrations that must not be exceeded following the completion of clean-up works at a site in order to protect human health and the environment. However, he concedes the guidelines are not entirely prescriptive and require interpretation.

26 In his opinion, the detailed design of the remedial work should be completed and submitted with the development application, together with an estimate of the amount of grossly contaminated material in order to assess the likely environmental impact that will remain following the completion of the remediation program. Furthermore, in his opinion, without an estimate of the amount of grossly contaminated material to be removed from the site it is impossible to adequately assess the development application. As there was no assessment of the need to treat material on-site prior to removal, in his view, there remains a significant uncertainty as to the viability of the strategies to remove grossly contaminated material from the site. It is very important to know the quantity of oil and tar material to be removed from the so-called hot spots for the purpose of assessing the availability of plant and sites to treat it and the cost.

27 Moreover, in his opinion, the susceptibility of the site to flooding is a fundamental consideration in assessing the feasibility of the proposed remediation strategy and the potential environmental impact. As a general principle the flood analysis needs to demonstrate that no part of the site is located on flood prone land. These matters should, according to Dr Swane, be considered prior to the granting of development consent.

28 Dr Swane also says that ascertainment of the finished surface level of the containment cell and the site is essential in order to ensure that a flood analysis can be completed, so that the scale of excavation works can be determined and the visual appearance of the site assessed by the council prior to the grant of the development consent. It appears to him that conditions 84 and 87 indicate that the final surface level of the containment cell and the site generally have not been defined.

29 Dr Swane only had regard to the documents referred to him, namely the EIS and the Notice of Determination of the development application. Volume 2 of the EIS comprising the appendices was not provided to him initially although subsequently he has obtained copies of a flood analysis. He has not had regard to any of the other documents that were actually before the council or notionally before the council at the time of its determination and, in particular, has not been asked to take account of any imputed knowledge of the council. The council first resolved to engage consultants to investigate the potential contamination of the site as far back as 30 September 1996.

30 It is Dr Swane’s view that on large sites flexible predetermined soil criteria is used to reflect local conditions whereas on the smaller sites the approach is generally to apply a fairly rigid adherence to a set of predetermined soil criteria. He agreed with Mr Craig in cross-examination that the subject proposal involves a recognised method that has the three following essential elements:-

(1) Removal of soil containing oil and tar from some of the “hot spots”;

(2) Leave the balance in place enclosed by a cap and walls; and

(3) The provision of check mechanisms in the form of monitoring and ventilating of gases in accordance with guidelines.

31 However, his concern is that the cement bentonite slurry cut-off wall proposed will not provide adequate containment. He also entertains doubts that the proposed monitoring system is capable of determining leaks from the cell as it is not intended to remove all contaminated material off-site.

32 Because, he says, the remediation procedure carries with it a level of uncertainty it is necessary to rely on a multitude of criteria and professional judgement at the planning stage to ensure compliance with guidelines set by statutory bodies and the State and Federal governments and to achieve a high level of confidence that goals will be achieved.

33 The difficulty Dr Swane has with the proposed mechanism is whether the monitoring will be able to distinguish between a source of contaminants outside the proposed wall and leakage under the wall in order to determine whether the wall is functioning in accordance with expectations. He maintains strong doubt about the long-term reliability of the wall as a consequence of cracking, shrinkage and break down of the cement due to interaction of chemicals.

34 Dr Swane refers to and relies upon sections of the RAP prepared by Douglas Partners in February 2002 where the author identifies problems which can arise and could have a detrimental affect on wall permeability.

35 In re-examination by Mr O’Rourke Dr Swane advised that his main concerns with the RAC are firstly, that it does not contain criteria to limit the level of contaminants in the cell to a safe level and secondly, there is no time frame or criteria set for achieving specified levels of contaminants in groundwater.

36 Mr Hosking provides the opinion that the RAPs and SEMPs contain sufficiently well defined RAC whereby he can draw the conclusion that the site remediation will yield a site which is suitably protective of human health and the environment because there will be:-

13.1 quantitative RAC for soil outside the containment cell, groundwater, surface water and creek sediment;

13.2 qualitative visual criteria for the grossly contaminated material that is to be excavated and removed from the containment area of Area 1; and

13.3 performance-based standards for the containment cell, such as the requirement that the bentonite wall will have a maximum permeability of 1x10 -9 m/s and the insitu wall and bedrock contact area will have a maximum permeability of 1 x 10 -8 m/s.

37 He generally joins issue with the opinions of Dr Swane in regard to the RAC to be applied and confirms that those adopted are, in his view, sufficient to assess the matters referred to by Dr Swane. Contrary to the view expressed by Dr Swane he says that although there is a degree of uncertainty associated with the volume of contaminated material to be removed, that is not an impediment to assessing that, in principle, the material can be excavated and treated appropriately. Furthermore, he points out that the RAPs and Construction SEMP recognise that the site is prone to flooding. Notwithstanding that characteristic, he claims it was appropriate to provide conditional Site Auditor approval to construction of a contaminant cell on the site.

38 Mr Hosking accepts the material which remains on-site will not be completely contained and that not all of the exposure pathways will be blocked by physical barriers. He also recognises that the effectiveness of the cell is an important element in the extent to which the natural attenuation of material occurs outside the cell over time. However, he says attenuation is also dependant on a number of other factors such as the starting concentrations of contaminants, their amenability to attenuation over time and the capacity of the site to contribute to attenuation.

39 Mr Hosking essentially agrees with Dr Swane that monitoring the escape of material from the cell may be difficult because of the existing contaminants in the area adjacent but he says that it was proposed in the RAP that wells can be used to test whether concentrations are declining.

40 The second respondent relies on the evidence of John Michael Nash, a Director of Douglas Partners, who has qualifications in geology and hydrogeology. He criticises Dr Swane for not having regard to the RAPs or SEMPs which were clearly referenced in the EIS which formed part of the development application. He asserts that in the case of the proposed remediation plan the cap and contaminant method will ensure that no contaminant exposure routes will be available or be able to be completed under normal conditions rendering the need to derive remediation criteria for the various exposure routes in respect to air surface water, groundwater and soil, unnecessary. He summarises his opinion in his affidavit as follows:-

Moreover, following completion of the proposed capping and containment measures and implementation of the related post constructional/operational site environmental management plan, all potential for exposure to, or contact with, any remaining contamination on site will be eliminated and thus there will be no remaining risk of any unacceptable impacts on human health or the environment.

41 Mr Nash concedes in cross-examination that notwithstanding his dogmatic assurances there is nevertheless a potential for levels of impacts on the environment from contaminated groundwater within the cell. There will be monitoring bores on either side of the wall and although he says it will be difficult to identify the flow of contaminated groundwater from the cell because of the level of contamination in the area along the bank of the creek, it nevertheless will be feasible. Although contaminants will remain in the area of containment and they can be transported by groundwater, Mr Nash asserts there will be a lower potential for harm because the main components of tar and oil will first be removed after visual identification. He agreed with Mr O’Rourke that the RAP does not impose any requirement to actually pursue resolution to acceptable levels except in the sense of time monitoring and a contingency plan.

42 In relation to the flooding issues raised by the applicant in respect of condition 84 Mr Nash makes the following observation:-

Flooding issues in relation to capping integrity were examined in the remediation action plan and approved by the site auditor as indicated above and were therefore before the Council and available to it to take into consideration as part of the consideration of the development application.

43 In so far as the final levels of the site are relevant to the effectiveness of the remediation action he says as follows:-

Final surface levels were not set at the time of preparing the remediation action plans, but an assumed site formation level was provided in the remediation action plan for the gas works site.
Any variations in surface level which may be required as part of the site development will not alter the overall remediation concept or design of the capping or containment system proposed. Whilst final site levels are required to be known from the point of view of flood analysis and mitigation, variation of the actual site level is not considered a major issue in relation to the integrity of the capping system and overall feasibility of the remediation program.

Condition 7 – Remediation Acceptance Criteria

44 The issues between the three expert witnesses in general amount to a difference of opinion in respect of the appropriate criteria and the effective management of the remediation process. All the experts nonetheless pursue the ultimate common objective of avoiding unacceptable risks of adverse impact on human health or the environment. The differences are not so precise that the Court is led to believe one or the other opinion is manifestly wrong. Furthermore, the Court is satisfied that the council, its advisors and those people who reported to it had before it, or was presented with, material that enabled the council to make a proper and legally appropriate judgment for itself.

45 The council had the benefit of the reports made to it, including the conclusions drawn by its own qualified officers and consultants as well as advice from the respondents’ witnesses.

46 The decision that led to the making of condition 7 was not reached in a vacuum. The council had before it advice in the RAP that identified the potential that “additional or more current thresholds accepted by the NSW EPA” could become available in the future. What the applicant’s argument overlooks is that as a matter of construction condition 7 can only apply if at the relevant time of assessment, validation and/or monitoring RAC that have been accepted by the NSW EPA exists. It is made plain in the reports to the council that criteria relied upon are intended as interim acceptance criteria only and may be updated. It is apparent from a reading of the documents lodged in support of the development application that the council was presented with a set of standards and measures. Condition 2 of the consent reads as follows:-

2. Development is to take place in accordance with the plans and documentation submitted with the application and subject to the conditions below, to ensure the development is consistent with Council’s consent. The Principal Certifying Authority for the project may request an application for modification of this consent or a new application in the event that changes to the approved plans are subsequently made.

47 Accordingly, absent RAC accepted by the EPA at the relevant time, the development is to take place in accordance with the plans and documentation submitted with the application. The documents submitted included the RAP. All that the council has done by imposing condition 7 is to ensure that if the EPA develops criteria in the future then that criteria is to be applied as the appropriate standard. Otherwise, the proposal in the RAP provides the control by setting the means of achieving an acceptable standard.

48 That interpretation of the effect of the conditions of consent nevertheless leaves open the question postulated by Dr Swane whether the council failed to take into account the alleged consideration of quantitative assessment criteria.

49 Both Mr Hosking and Mr Nash have given evidence that RAC can be qualitative standards based on performance rather than quantitative standards that rely upon maximum permitted chemical levels. The Court has been persuaded by the respondents’ witnesses that a combination of quantitative and qualitative standards, as proposed in the RAPs, are acceptable in the circumstances and will be generally consistent with ANZECC 1992. Issues of degree of compliance are not to be resolved in judicial review proceedings. Nor is it necessary to determine which experts opinion is to be preferred provided the Court can be satisfied that the council had relevant material before it and then considered the material in the course of determining the development application and that it was not unreasonable to adopt the recommendations made to it. The Court is satisfied in that respect.

50 Individual members of the council, or the council collectively, are not required to pursue every aspect of the advice they receive. They are entitled to rely on conclusions drawn by their own officers, suitably qualified, and relevant experts and either to accept or reject those conclusions. In this case there was a plethora of material available to the council supported by a comprehensive report prepared by Ms Martin.

51 Ms Martin may have lacked relevant expertise in respect of each of the various disciplines involved but, the Court accepts, she was competent to collate, assess and evaluate the opinions submitted in respect of the projected performance of the measures proposed for remediation, including RAC. That material was sufficient to allow the council to make an assessment that, provided the RAPs and SEMPs were followed, construction in accordance with the plans presented with the EIS would provide a suitable level of protection for human health and the environment.

52 Condition 3 of the consent dictates that a construction certificate shall confirm that the proposed work will comply with regulations and condition 5 requires final design drawings, construction specifications and management plans to be reviewed by the Site Auditor before submissions to the certifying authority. The review by the Site Auditor is to be submitted to the certifying authority. This is consistent with the scheme of approval contemplated by the EP&A Act (Hill v Woollahra Municipal Council & Ors [2003] NSWCA 106, unreported).

Conditions 84 and 87 – Flood analysis and finished levels

53 The council has always been aware of the flooding potential for the site. Starting with a site audit report by Coffey and Parkes in 1999 through to December 2002 when flood related issues raised by the applicant and others were the subject of comment by Ms Martin in her report.

54 It is the opinion of Mr Nash that, based on the information provided to the council in support of the development application, including the RAPs, the EIS and the requirements of the EPA and ANZECC guidelines, the council should have been in a position to form a balanced view in regard to future capping integrity under flood conditions. Mr Hosking’s evidence is to a similar effect. In the opinion of Mr Hosking it was appropriate to provide conditional site auditor approval of the RAPs and SEMPs notwithstanding that the site was flood prone land. There is no evidence to support a conclusion that the council simply turned a blind eye to all of the above information and took no account of the potential impact of flooding on the development itself. The advice it had from the experts was that the containment proposal would work despite flooding of the site.

55 If the advice proves to be wrong and the containment cell cannot be built unless there are radical changes to the design then that will be an issue to be addressed at the time of its determination. For the moment the proposal is to build in accordance with the design on the basis of the opinions and advice regarding potential impacts accepted by the council at the time of its determination.

56 The council was entitled to conclude that any variation in surface level would not alter the overall remediation concept of the proposed cell. Mr Nash’s evidence has re-iterated this advice.

57 Ms Martin’s report deals with flooding impacts and notes and comments made by the council Development Engineer that:-

§ The site is subject to inundation in a 1 in 100 flood event with the majority in the fringe or low hazard area

§ The site is bisected by an existing stormwater pipe which conveys stormwater from Beardy Street to Dumaresq Street.

§ Additionally the site contains an overland flow path that operates when the pipe system can no longer cope with the discharge. It is essential that this overland flowpath be retained during and post encapsulation to ensure flood levels in the Beardy Street precinct are not raised as a result of this development.

§ The Armidale Flood Mitigation Study has identified the site as flood prone and as such any additional filling on the site will impact on the predicted flood height upstream of the development.

§ In October 2000 it was identified that due to the bulk of part of the building (initial shopping centre proposal in DA 9900/3480 occupying some of the flood plain, provision had to be made within the development for floodwater storage. Consulting Engineers, Tierney and Partners, provided some sketches and flood modelling analysis, indicating that the loading dock at the rear of the premises would be excavated to provide additional storage for flood water to compensate for the loss of floodplain as a result of the building footprint. These details will need to be taken into account in determining the finished surface level of the carpark to ensure no loss of flood plain storage. Details should be provided and approved by Council prior to the commencement of construction.

§ In relation to the filling plan there appears to be approximately 150mm of fill in the immediate vicinity of the property at 106 Jessie Street.

58 Condition 84 is in the exact terms of a recommendation by the engineer.

59 Mr O’Rourke correctly concedes that the council did take the issue of flooding into account during its consideration of the development application. However, his point is that when condition 84 and condition 87 are read together it is apparent that the council did not take into account the impacts that the building of the remediation works might create. The evidence simply shows there was a concern. But ultimately the impacts were not assessed. Mr Nash so much as acknowledges this omission when he says, as quoted above at [43], that “final site levels are required to be known from the point of view of flood analysis and mitigation”.

60 It is contended by the applicant that the flood analysis may lead to a different development to the development, which the council purported to approve. Furthermore, the impact on flood patterns has not been assessed (Mison and Others v Randwick Municipal Council (1991) 23 NSWLR 734 at 740; Cameron v Nambucca Shire Council (1997) 95 LGERA 268 and Weal v Bathurst City Council and Another (2000) 111 LGERA 181).

61 Unlike condition 3 and condition 5, condition 84 has an addendum by way of a paragraph referred to as “Advising” in the following terms:-

ADVISING
As the site is proposed to be redeveloped post remediation as a commercial shopping centre, it is advised that the flood analysis should be undertaken with the proposed footprint of the development included in the analysis to establish any additional floodway capacity areas required as a result of the placement of building structures within the floodway.

62 No provision is made for review of the development or the means to impose conditions requiring the developer to establish “any additional flooding capacity areas”. It is open for the Court to construe the condition to have the effect that any information forthcoming to the council from the flood analysis is only for its information. There is no provision for modification of the development in any way. Nor is there any capacity to impose further conditions to deal with an adverse report on floodway capacity.

63 The Court rejects the submission by the respondents and, in particular, the first respondent that condition 84 ensures that neither the remediation works nor the future shopping centre will have an adverse effect on flood levels. There is no mechanism whereby any remedy, that is perceived to be necessary as a consequence of the outcome of the flood analysis, is to be implemented or enforced. The final site levels are not known. Even though eventually the projected range of levels may be achieved, the issue has not been finally determined.

64 The respondents rely on a series of historical documents starting with the 1999 Coffey report. However, none of the references, although recognising the location of the site as being in a floodway, address the issue of the potential effect on other properties, specifically as a consequence of building the containment cell as proposed in the latest development application. The council had been informed about the likely impact of the construction of the proposed retail development on flood behaviour. However, the design of the soil treatment works has arisen as a consequence of the deferred commencement conditions in the development consent granted in respect of the shopping centre development. The Court is not in a position to conclude that the flood studies, reports and reviews undertaken for the purpose of assessing the shopping complex applications took into account the specific development of the subject containment cell.

65 The requirement for a detailed flood analysis prior to the issue of a construction certificate does not reflect the two stages of the planning process. If the flood analysis dictates that changes to the design are necessary in order to alleviate the flooding impacts upstream and downstream of the site and the plans presented for certification nonetheless take no account of those changes but are otherwise in accordance with the approved concept there is no basis for accepting that the changes are mandated by the operation of the condition and can be enforced pursuant to its terms. Furthermore, the nature of prospective changes is essentially a matter of conjecture.

66 The issue is not just that the council failed to finally resolve the form of the development. More importantly, and indeed critically, the condition discloses that the council neglected to inform itself specifically about the effect on flooding capacity.

67 Moreover, it discloses an omission to consider the means, if any, by which it could ensure that the Dumaresq Creek flood levels upstream and downstream will not be affected by any changes to site levels following construction of the cell. It has been assumed that the levels achieved will be consistent with the levels adopted for the shopping centre. The terms of the condition itself recognises that there is no stipulation to that effect. It leaves the undertaking of the flood analysis to a future time after the actual site levels have been finally determined and submitted to the council. Otherwise, there could be no point of imposing the condition. That the final surface levels are yet to be determined is further confirmed by condition 87.

68 Even if the council had regard to the potential flooding impact in general terms, or the Court can recognise the accumulation of knowledge from the consideration of earlier development applications in respect of the retail development, it is not sufficient merely for the council to be aware of the problem. There needs to be an understanding and evaluation of the possible impacts of flooding before it can be accepted that the council relevantly took the flooding impact, as it relates to the subject development into consideration (see Priestly and Giles JJA in Weal). The council recognised, by the addition of condition 84, that the process of evaluation could not be completed without the flood analysis. If the council intended to prohibit development, except in the absence of impact upstream and downstream of the site, it failed to do so either by making the carrying out of development conditional upon that fact being demonstrated or by providing a mechanism to ensure the implementation of measures to ensure a desired outcome.

Whether development consent is required

69 The first respondent raised this issue in an amended points of defence filed on 1 September 2003. Notwithstanding the late filing of the amended points of defence leave was granted to rely on [15] as follows:-

In further defence of the entirety of the Points of Claim the First Respondent says that the development which is the subject of the Consent does not require development consent.

70 It is contended by the first respondent that the remediation work is classified as “category 2 remediation work” as defined in cl 14 of SEPP 55. That is, a remediation work that is not category 1 remediation work of a kind described in cl 9(a) to 9(f) of SEPP 55. The applicant submits that the proposed remediation work is relevantly “designated development” within the meaning of cl 9(a).

71 It is not in issue that each of the measures, including the demolition of existing buildings and structures, is concerned with “removing, dispersing, destroying, reducing, mitigating or containing” contamination within the definition of “remediation” contained in cl 4 of SEPP 55.

72 Relevantly, “contaminated soil treatment works” are defined under cl 15 of Pt 1 of Sch 3 – Designated Development to the Environmental Planning and Assessment Regulation 2000 (“the EPA Regulation”).

73 Both parties have concentrated on the effect of cl 15(c)(ii). The applicant also refers to cl 15(a)(v). The relevant parts of cl 15 are reproduced as follows:-

15 Contaminated soil treatment works
Contaminated soil treatment works (being works for on-site or off-site treatment of contaminated soil, including incineration or storage of contaminated soil, but excluding excavation for treatment at another site):

(a) that treat or store contaminated soil not originating from the site on which the development is proposed to be carried out and are located:


(i) within 100 metres of a natural waterbody or wetland, or

(ii) in an area of high watertable or highly permeable soils, or

(iii) within a drinking water catchment, or

(iv) …

(v) on a floodplain, or

(vi) …


(b) …

(c) that treat contaminated soil originating exclusively from the site on which the development is located and:


(i) …

(ii) treat otherwise than by incineration and store more than 30,000 cubic metres of contaminated soil, or

(iii) …

74 It is not seriously in dispute that the development application is referable to more than 30,000 m3 of contaminated soil within the site on which the development is located.

75 The real issues between the parties, therefore, are as follows:-

(1) whether the development application is to be regarded as relating to works that treat or store contaminated soil not originating from the site; and

(2) the construction of cl 15(c)(ii) of the EPA Regulation.

76 The development application in its original form contemplated that there could be transport of contaminated soil from another site. It is contended by the first respondent that the development application was relevantly amended prior to determination by the council so that the consent relates only to soil originating from within the site. Otherwise, it is clear to the Court that, for the purposes of cl15(a)(i), the site is within 100 metres of Dumaresq Creek and, for the purposes of Item 15(a)(v), it is clearly situated on a flood plain.

77 Although the evidence upon which the first respondent relies is not unequivocal, there is correspondence which strongly suggests that the applicant withdrew the concept of importing material from other sites prior to final consideration by the council. If further corroboration is needed the VRA entered into between the developer and the EPA expressly prohibited the importation of material.

78 The first respondent seeks to establish that the proposal for the construction of the containment cell in Area 1 and the capping layer in Area 2 does not constitute treatment and storage of contaminated soil on the basis that the proposed works will not “treat” contaminated soil. Mr Craig’s argument is that the soil will not be subject to any chemical or other process or action to eliminate or reduce the contaminants in the soil and there will be no physical or chemical change to the soil. This submission, in the Court’s view, overlooks the natural process of attenuation over time, the movement of groundwater and the ventilation of gases which, together with the removal of hot spots, will have the effect in both the short and long term of changing the constituents in the soil and the level of contaminants. Mr Craig submits that while this may constitute “treatment” of the contaminants it is not treatment of the soil itself. It is difficult to understand how the treatment of contaminated soil can be regarded as distinct from a treatment of contaminants in soil when it is the latter that characterises the soil as contaminated soil. The two aspects are integrated and should not be treated in isolation.

79 Both parties made reference to the decision in Remath Investments [No. 6] Pty Limited v Botany Bay City Council [No. 2] (Talbot J, NSWLEC, 11 December 1996, unreported). There are two significant distinguishing factors between what the Court is now addressing and the circumstances as they applied in Remath. Firstly, the definition of contaminated soil treatment works in Sch 3 to the EPA Regulation has been amended. Secondly, the proposal at the Remath site is similar to what is presently proposed only to the extent that the applicant in that case proposed a cap over the site.

80 The Court is satisfied that the development consent granted by the first respondent authorises the on-site treatment of contaminated soil.

81 The Court is also satisfied that the construction of the purpose-built containment cell will provide a chamber for storage of contaminated soil. It is not inconsistent with the accepted meaning of the word “store” as a means of providing for the safe-keeping of material for an indefinite period. The noun “storage” can have a corresponding and consistent meaning of the fact of storing for the purpose of maintaining material in a separated state. Although the particulars provided with the points of defence assert that the remediation works do not involve the treatment and storage of more than 30,000 m3, the Court does not understand the first respondent to claim that there is less than 30,000 m3 of contaminated soil on the site. The evidence is to the contrary.

82 Notwithstanding that there will be no importation of materials from off-site, the Court is satisfied that the proposals are relevantly works for on-site treatment and storage of contaminated soil. The works will treat contaminated soil originating exclusively from the site by means other than incineration. The containment cell proposed for part of Area 2 will comprise storage of contaminated soil. The volume of soil which is contaminated and is to be the subject of treatment and storage exceeds 30,000 m3.

83 The Court is satisfied, on the balance of probabilities, that the development application is in respect of contaminated soil treatment works within the meaning of that term as it is used in cl 15 of Sch 3 to the EPA Regulation and therefore development consent is required.

Conclusion

84 The Court is satisfied that condition 84 has left a material matter for future determination without any process in place that will ensure the achievement of the underlying purpose of the condition. If additional flooding capacity is required then provision for that capacity needs to be identified, designed and specified as a condition of consent. Until that point is reached and the council is satisfied with the result, the operation of the consent should, in the Court’s view, be suspended pursuant to s 25B of the Land and Environment Court Act 1979.

85 The order of the Court will be to the effect that the operation of the consent is suspended until the applicant undertakes the flood analysis referred to in condition 84 after determination of final surface levels. If the flooding capacity cannot be retained within the site such that the result contemplated by condition 84 is achieved with or without a further condition or conditions, then the consent will be declared invalid. If further works are required in order to achieve the result contemplated by condition 84 then the consent may be amended and re-instated with an additional condition or conditions specifying the further works to be carried out. Either the imposition of a further condition or satisfaction following the completion of the flood analysis will validate the consent.

86 The final form of such an order will obviously require some consideration by the parties. Accordingly, each of the parties is directed to serve the form of a proposed order on each of the other parties within 14 days. The parties are directed to file the form of any agreed order within 21 days. In default of agreement, the matter will be listed for further directions at 9:15am on 27 October 2003. However, if the parties have agreed as to the form of the formal order it will be listed for the purpose of making final orders at that time.

87 The question of costs has not been argued. Notwithstanding that the Court has not declared the consent to be invalid for all purposes but merely that it be suspended, the applicant has been successful in at least two material respects. In the absence of exceptional circumstances, that would entitle it to an order for costs by the exercise of the Court’s discretion in its favour as the successful party. The parties should also endeavour to reach an agreement on the question of costs. In the meantime, costs are reserved.