Blacktown City Council v The Penatrators Pty Limited

Breach of the Environmental Planning and Assessment Act 8The carrying out of development where consent is required is a breach of the Environmental Planning and Assessment Act 1979 (EPA Act) s 76A, and where the activity is prohibited it is in breach of s 76B. A breach is capable of being remedied or restrained under s 124 of the EPA Act.

The Hamilton Street Land 9The Hamilton Street Land is zoned IN2 (Light Industrial) under State Environmental Planning Policy (Sydney Growth Centres) 2006 (SEPP). It is close to residential land. 10The zoning table for that zone is found in Appendix 3, which provides: Objectives of zone To provide a wide range of light industrial, warehouse and related land uses. To encourage employment opportunities and to support the viability of centres. To minimise any adverse effect of industry on other land uses. To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area. Permitted without consent Nil Permitted with consent Depots; Drainage; Earthworks; Food and drink premises; Freight transport facilities; Funeral chapels; Funeral homes; Landscape and garden supplies; Light industries; Mortuaries; Neighbourhood shops; Resource recovery facilities; Roads; Service stations; Timber and building supplies; Vehicle body repair workshops; Vehicle repair stations; Vehicle sales or hire premises; Warehouse or distribution centres; Waste or resource transfer stations; Any other development not specified in item 2 or 4. Prohibited Agriculture; Air transport facilities; Airstrips; Biosolid waste applications; Bulky goods premises; Business premises; Caravan parks; Cemeteries; Correctional centres; Entertainment facilities; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Function centres; Helipads; Home-based child care; Home businesses; Home industries; Home occupations; Home occupations (sex services); Hospitals; Industries; Information and education facilities; Office premises; Public administration buildings; Recreation facilities (major); Recreation facilities (outdoor); Residential accommodation; Restriction facilities; Retail premises; Tourist and visitor accommodation; Waste or resource management facilities. (Emphasis added) 11The relevant definitions are found in the Dictionary to the SEPP: Resource recovery facility means: "a building or place used for the recovery of resources from waste, including works or activities such as separating and sorting, processing or treating the waste, temporary storage, transfer or sale of recovered resources, energy generation from gases and water treatment, but not including re-manufacture or disposal of the material by landfill or incineration". Waste or resource transfer station is defined as "a building or place used for the collection and transfer of waste material or resources, including the receipt, sorting, compacting, temporary storage and distribution of waste or resources and the loading or unloading of waste or resources onto or from road or rail transport". Waste or resource management facility is defined as "a waste or resource transfer station, a resource recovery facility or a waste disposal facility". 12In that zone, "waste or resource transfer stations" are permissible, but only with consent of the Council. "Waste or resource management facilities" in the form of a waste disposal facility is prohibited. To the extent to which the activity has comprised the disposal of waste on the land without more, the activity is prohibited. To the extent to which the activity of depositing building and construction waste on the land has also involved elements of temporary storage, sorting and distribution, the activity would constitute a waste or resource transfer station, which is permissible with consent. In any event, no element of the use has the consent of the Council. 13The material deposited on the Hamilton Street Land comprises building waste including building materials such as bricks and timber, carpet, garden waste, scrap metal, plastic, steel and mattresses. Although no material has been tested, it has also included material believed to be asbestos. The evidence before me includes the evidence that was before Pepper J on the interlocutory application, which her Honour summarised as follows: (a) company searches indicate that Mr Galainy is the sole director of the company; (b) the site is covered with stockpiles of construction and demolition waste, such as bricks, soil, concrete, timber, plastics, steel and other metals; (c) approximately 70% of the site is covered with this waste, some of which is stockpiled underneath power lines and the height of which in places exceeds the fence surrounding the perimeter of the site; (d) there is no equipment on the site that would indicate that the sorting and recycling of material, as claimed by Mr Galainy, is in fact taking place; (e) some of the material stored on the site appears to be fibro and there is therefore a risk that asbestos is present within the accumulated waste that is not being appropriately managed; (f) photographs taken during several inspections of the site indicate that: (i) the quantity of waste being deposited on the site has increased dramatically during the past two weeks; and (ii) vehicles registered to the company have been depositing excavation and building materials at the site; (g) the site is burdened by an easement for an electricity transmission line vested in the New South Wales Electricity Transmission Authority (now formally "Transgrid"). Demolition material has been deposited in close proximity to these power lines and appears to be encroaching upon the easement; ... (j) a search of the council records reveals no record of any development consent, including any complying development certificate, having been issued in relation to this site. ...these records indicate that there is no development application before the council for the current use of the site to receive and store waste; (k) there is no protection for surrounding properties if fragments of the material stored on the site become airborne; and (l) the council has received approximately 30 telephone calls from members of the community complaining about the activities on this site. 14After the interlocutory injunction was made on 4 October 2013, a development application was lodged for the Hamilton Street Land for the purposes of a "Waste transfer station". The development application was rejected by the Council on 24 October 2013 pursuant to clause 51(1) of the Environmental Planning and Assessment Regulation 2000. The applicant was Mr Joseph El Bayeh. He is the sole shareholder of Riverstone. It may be that he wishes to carry on such business through Riverstone. 15The Council submits, and I accept, that the most appropriate characterisation of what has been observed on the Hamilton Street Land is that it has been used for the purposes of a waste disposal facility, which is a prohibited use of the land. This is because there has been no element of sorting or distribution of waste that would be characteristic of a resource recovery facility or a waste transfer station. Rather, the waste has simply been dumped on the land and left in situ. There has been no change in volume of material since an inspection on 25 November 2013. It seems that the interlocutory injunction has been complied with.

The Melbourne Road Land 16The Melbourne Road Land is zoned 4(a) Industrial General under Blacktown Local Environmental Plan 1988. The zoning table for the 4(a) zone is in the following terms: 1 Objectives of zone The objectives are: (a) to provide areas for accommodating both traditional and modern forms of industrial, warehousing and like development outside areas used or zoned for residential or business purposes and so encourage economic and employment growth in Blacktown, (b) to encourage the establishment of new industry and other compatible, large-scale activity in appropriate locations, (c) to accommodate large industrial, warehousing and like developments such as auction rooms, plant and equipment hire establishments, timber yards and the like, but to prohibit offensive or hazardous industries, (d) to enable development for the purposes of retailing only where it is associated with, and ancillary to, manufacturing purposes on the same land or where it serves the daily convenience needs of the local workforce, (e) to enable development for the purposes of commercial offices only where it is associated with, and ancillary to, industrial, warehousing or like purposes on the same land or where it serves the daily convenience needs of the local workforce, (f) to ensure permitted development creates areas which are pleasant to work in and are safe and efficient in terms of transportation and land utilisation, (g) to enhance and improve the physical environment of the City of Blacktown by minimising disturbances caused by air pollutants, water pollutants, other pollutants and noise pollution, and (h) to enable development for the purposes of community facilities such as child care facilities either in association with or independent of other permitted development to serve the needs of the workforce of the area. 2 Development that does not require consent Nil. 3 Development which requires consent Any purpose other than a purpose included in Item 2 or 4 of the matter relating to this zone. 4 Prohibited Amusement centres; boarding houses; bulky goods retail establishments; caravan parks; commercial premises (other than those ancillary to and used in conjunction with a purpose permissible in this zone or which serve the daily convenience needs of the workforce of the industrial area); dual occupancy or dwelling-houses (other than those ancillary to and used in conjunction with a purpose permissible in the zone); exhibition homes; exhibition villages; group homes; hardware stores; hazardous industries; hazardous storage establishments; home activities; hospitals, housing for aged or disabled persons; institutions; integrated housing; intensive lot feeding of livestock; manufactured home estates; medium density housing; methadone dispensaries; mineral sand mines; mines; mixed businesses; motels; offensive industries; offensive storage establishments; professional consulting rooms; professional offices; recreation establishments; residential flat buildings; roadside stalls; rural industries; rural workers' dwellings; shops (other than those ancillary to and used in conjunction with manufacturing purposes permissible in this zone or which serve the daily convenience needs of the workforce of the industrial area); tourist facilities. 17Waste transfer stations, waste or resource management stations or resource recovery facilities are not found in items 2 or 4 of the zoning table. Accordingly all are permissible but only with the consent of the Council. No development consent has been granted for the use of the land for any of these purposes. 18The material seen to be deposited onto the Melbourne Road Land comprises building waste, including timber and stockpiles of demolition waste including bricks and metal. 19The Council submits, and I accept, that the most appropriate characterisation of what has been observed on the Melbourne Road Land is that it has been used for the purposes of a waste or resource transfer station, without consent having been obtained. The use of the Melbourne Road Land appears to be different to the Hamilton Street Land because there is evidence of the sorting of material into various types so it is ready for transfer. There has been no change in the volume of material between at least 25 November 2013 and 29 January 2014.

The Hamilton Street Land 20In respect of the Hamilton Street Land, the relevant person carrying out the activity without consent has been Penatrators. 21Penatrators is a company of which the sole shareholder and director is Michael Galainy, the second respondent. 22Despite unsworn allegations from the bar table by Mr Galainy during the interlocutory application in respect of the Hamilton Street Land, that the work was not being carried out by Penatrators, this is contradicted by the following evidence: (a)The presence of a Ford Utility on site registered to Penatrators. (b)Conversations between Mr Apps and Mr Bayeh indicating that Mr Galainy was a person having control and knowledge of the site. (c)The presence of Mr Galainy on site on 1 October 2013 and conversations with him concerning the operations in which he did not deny that Penatrators was carrying out the development or assert any fact to the contrary. (d)Admissions that a waste transfer station is being operated - again without any suggestion that it is being carried out by an entity other than Penatrators at the direction of Mr Galainy. (e)Admissions of an intent to lodge a development application for the activity. No assertion was made that it would be lodged by an entity other than Penatrators. (f)The web page for Penatrators describes its activities as including "concrete cutting, floor grinding, stairs and demolition". Demolition waste seen on the Hamilton Street Land is consistent with such activities, albeit that clearly some waste has been deposited by others for payment to Penatrators (see (g) below). (g)Receipts and/or invoices issued by Penatrators to companies that have been invited to tip waste materials, namely Democorp Pty Limited trading as State Demolition and Stevcar Pty Limited trading as "Get Wasted". 23Even though there are other entities carrying out the dumping of material on the land, this is evidently being done with the agreement of those that seemingly have control of the site - Mr Galainy and a company of which he is the sole director, Penatrators. 24As a consequence of unsworn assertions from the bar table on 3 October 2013 that the company carrying out the work was "Riverstone Waste", the Council undertook searches of such an entity and identified a company known as Riverstone Waste Transfer Pty Limited (Riverstone). Mr Galainy is the sole director of Riverstone. On account of these assertions from the bar table, the Council moved the Court for orders joining Riverstone to the proceedings. That motion was heard on 9 October 2013 and Riverstone was joined to the proceedings: Blacktown City Council v The Penatrators Pty Limited (No 2) [2013] NSWLEC 170. 25However, since that date the Council has received documents produced under subpoena by Stevcar Pty Limited and Democorp Pty Limited. They reveal that receipts and/or invoices were issued by Penatrators. Further, the registration of Riverstone occurred only on 13 September 2013, after the commencement of these proceedings; and since the interlocutory injunction was granted on 4 October 2013 no activity has been carried out on the land as far as can be ascertained by the Council. Thus, to the extent (if any) to which any activity was being carried out by Riverstone, it can only have been between 13 September 2013 and 4 October 2013. 26The sole shareholder of Riverstone is Joe Bayeh. He was present on site when the Council first observed the activity of material being deposited on the land. He was also the applicant for development consent. However, he made that application in his own name, not in the name of Riverstone. A person known simply as "Joe" also telephoned Mr Compagnon, the director of Democorp Pty Ltd, on 20 September 2013 indicating that Mr Galainy had sold the business to him. Inferentially, this conversation was probably with Mr Bayeh. 27Despite this, there is no clear evidence that invoices for receipt of waste has been carried out by Riverstone and the Council does not press for final relief against it. Rather, there is clear evidence that Penatrators has received payment for the deposit of waste on the land.

The Melbourne Road Land 28In respect of the Melbourne Road Land, communications between Mr Galainy and Mr Tregenza, who is the father of the owner and who manages the land on behalf of the owner (his daughter), indicate that the depositing of waste material on that land has also been carried out by Penatrators. 29Inspections by Council officers have also revealed that work has been carried out by people wearing t-shirts marked "The Penatrators" and Mr Galainy has been observed on site.

The role of Mr Galainy 30The evidence implicates Mr Galainy in much of the unlawful activity. It was for this reason that he was joined in his personal capacity to the proceedings in the event that further investigations revealed that he was carrying out the activity in his personal rather than on behalf of Penatrators. However, it is now evident from receipts and invoices issued by Penatrators that the work has been carried out by Mr Galainy in his capacity as sole director for Penatrators. 31Mindful of the Court of Appeal's dictum in Botany Bay City Council v Saab Corp Pty Limited [2011] NSWCA 308, (2011) 82 NSWLR 171; 183 LGERA 228 at [115] that orders under s 124 of the EPA Act can only be issued to the person actually in breach who has carried out the work, unless it can be established that Mr Galainy carried out the work in his personal capacity, the Council cannot obtain orders against Mr Galainy. 32Accordingly, in the case of both parcels of land and both proceedings, Council seeks orders only against Penatrators.

ORDERS 33The orders of the Court in proceedings 13/40699 (re the Hamilton Street Land) are as follows: (1)Declaration that the first respondent has carried out development for the purposes of a waste disposal facility at Lot 23, Lot 24 and Lot 25 Section 47 in DP 1480 at Hamilton Street Vineyard (the Property), in the State of New South Wales in breach of s 76B of the Environmental Planning and Assessment Act 1979. (2)Order pursuant to s 124 of the Environmental Planning and Assessment Act 1979 that the first respondent, by itself, or its servants and agents, be restrained from carrying out development for the on the Property for the purposes of a waste or resource management facility as defined under the State Environmental Planning Policy (Sydney Growth Centres) 2006 including, without limitation, the receipt, storage, separating, sorting, processing or treating, compacting or distribution of waste or resources, except with consent under the Environmental Planning and Assessment Act 1979 or in compliance with Order 3. (3)Order that the first respondent remove from the Property all waste materials stored on the Property and transport to a place lawfully authorised to receive that material within 60 days of the date of this order. (4)Order that the first respondent procure a receipt and submit each receipt to the applicant in relation to each consignment of material removed from the Property in conformity with order 3, issued by the occupier of the place to which the material has been transferred. (5)Order that the first respondent pay the applicant's costs of these proceedings. (6)Order that the proceedings are dismissed against the second and third respondents. (7)Order that service of these orders on the first respondent may be effected by the applicant by: (a) Delivering the orders by registered post to the first respondent's registered office; and (b) Sending a copy electronically to galainy@gmail.com (8)The exhibit may be returned. 34The orders of the Court in proceedings 13/40700 (ie the Melbourne Street Land) are as follows: (1)Declaration that the first respondent has carried out development for the purposes of a waste or resource management facility at Lot 18 and 19 Section 6 in DP 1480 in DP 1480 at 74 Melbourne Road Riverstone (the Property), in the State of New South Wales without consent, in breach of s 76A of the Environmental Planning and Assessment Act 1979. (2)Order pursuant to s 124 of the Environmental Planning and Assessment Act 1979 that the first respondent, by itself, or its servants and agents, be restrained from carrying out development for the on the Property for the purposes of a waste or resource management facility as defined under the State Environmental Planning Policy (Sydney Growth Centres) 2006 including, without limitation, the receipt, storage, separating, sorting, processing or treating, compacting or distribution of waste, except with consent under the Environmental Planning and Assessment Act 1979 or in compliance with Order 3. (3)Order that the first respondent remove from the Property all waste materials stored on the Property and transport to a place lawfully authorised to receive that material within 30 days of the date of this order. (4)Order that the first respondent procure a receipt and submit each receipt to the applicant in relation to each consignment of material removed from the Property in conformity with order 3, issued by the occupier of the place to which the material has been transferred. (5)Order that the first respondent pay the applicant's costs of these proceedings. (6)Order that the proceedings are dismissed against the second respondent. (7)Order that service of these orders on the first respondent may be effected by the applicant by: (a)Delivering the orders by registered post to the first respondent's registered office; and (b)Sending a copy electronically to galainy@gmail.com (8)The exhibit may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2014