Boral Resources (NSW) Pty Ltd v Camden Council

Land and Environment Court (NSW)|2018-08-23|Before: Dr J

Solicitors: Minter Ellison (Applicant) Bartier Perry (Respondent) File Number(s): 2017/256851 Publication restriction: No

Judgment

ACTING COMMISSIONER: On 31 May 2016, the Applicant sought designated development consent to co-locate a mobile concrete batching plant on Lot 100 DP 1203966 ("Lot 100") known as 60 Greendale Road, Bringelly, that will produce only pre-mixed concrete ("concrete works"). The Applicant has appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act") against the decision of the Respondent to refuse consent. The development application is numbered DA 2016/578/1.

First Issue: Permissibility of proposed concrete works

Whether the proposed development for the concrete works is permissible with designated development consent on Lot 100 under cl 7(4)(d) of State Environment Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 ("the Mining SEPP").
Clause 7 of the Mining SEPP is in a part of the Instrument headed "Development Permissible with Consent". Subclause 7(4) is headed "Co-Location of Industry". It relevantly provides: If extractive industry is being carried out with development consent on any land, development for any of the following purposes may also be carried out with development consent on that land: (a) the processing of extractive material, (b) … (c) facilities for the processing or transport of extractive material, (d) concrete works that produce only pre-mixed concrete or bitumen pre-mix or hot-mix. This provision is clearly facultative and beneficial.
Clause 5(3) of the Mining SEPP provides, relevantly, that if the Mining SEPP is inconsistent with any other environmental planning instrument, whether made before or after the Mining SEPP, the Mining SEPP prevails to the extent of the inconsistency. The proposed concrete works on Lot 100 is prohibited under Camden Local Environmental Plan 2010 ("CLEP"), but this is inconsistent with the Mining SEPP cl 7(4) and the Mining SEPP prevails.

Construction of cl 7(4) of the Mining SEPP

Mr McEwen SC, who, with Dr Smith appeared for the Applicant, submitted that cl 7(4) should be interpreted in accordance with the general principles of statutory interpretation, referring to Cranbrook School v Woollahra Council (2006) 66 NSWLR 379; 146 LGERA 313 at [36] and the decision of the High Court of Australia in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 per Gibbs CJ at 304 and 305 for the proposition that if, when the provision in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking "nothing remains but to give effect to the unqualified words". Also the provision must be given its ordinary and grammatical meaning. He also referred to the recent decision of Preston CJ in DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 173 at [19] for the propositions that the basic principles of statutory construction require that the language be read in context and having regard to the objective which it was designed to promote, however "the primary focus must remain upon the text".
It is clear that "any land" in cl 7(4) must refer to land on which the extractive industry as defined is being carried out with development consent.
"Extractive Industry" is defined in the Mining SEPP to mean: the winning or removal of "extractive materials", (otherwise than from a mine) by methods such as excavating, dredging, or quarrying, including the storing, stockpiling or processing of extractive materials by methods such as recycling, washing, crushing, sawing or separating, but does not include: (a) turf farming, or (b) tunnelling for the purpose of an approved infrastructure development, or (c) cut and fill operations, or the digging of foundations, ancillary to approved development, or (d) the creation of a farm dam if the material extracted in the creation of the dam used on site and not removed from the site. "Extractive material" means "sand, gravel, clay, soil, rock stone or similar substances but does not include turf".
Mr McEwen submitted that the language of cl 7(4) is clear and unambiguous and should therefore be given its ordinary meaning.
Extractive Industry in this case is currently being carried out pursuant to the development consent granted by Camden Council on 13 September 1991 and numbered DA 91/1194 (see Exhibit 14) ("the 1991 Consent"). It expressly applies to the land being (at that time) Lot 2 DP 733115, Parish of Cook, County of Cumberland. It is agreed that the land which is depicted in the plans referred to in the 1991 Consent is encompassed by the current Lot 100 although Lot 2 was larger in area. It is also agreed that both Lot 2 and Lot 100 include the quarry and both Lot 2 and Lot 100 include the land upon which it is proposed to carry out the concrete works.
The nearest residential dwelling (31 Greendale Road, Bringelly) is located approximately 120m north of the location proposed for the concrete works. Bringelly Reserve is located approximately 900m to the north-east, which is adjacent to the Bringelly Community Centre.

The Proposal

The Application seeks development consent for:

construction and operation of a mobile concrete batching plant with a production capacity of up to 125,000 tonnes of concrete per annum;
removal of 46 trees and their replacement with 46 new trees;
erection of business identification signage;
construction of a new access from Greendale Road including turning lanes;
construction of three storage silos;
construction of a control room, amenities building, workshop, lunchroom and toilet;
construction of a four metre high acoustic mound/wall;
construction of a 24 space car park and separate truck parking;
operation of four hoppers, one enclosed agitator load bay, two enclosed slump stands, four open aggregate stockpiles, one electricity generator, and one front-end loader.
material deliveries (up to 20 loads of aggregate per day and up to seven loads of cement powder per day).

The proposed development is designated development pursuant to Sch 3 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

Statutory Controls Environmental Planning and Assessment Act 1979. Environmental Planning and Assessment Regulation 2000. Camden Local Environmental Plan 2010. State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007. State Environmental Planning Policy No 64-Advertising and Signage. State Environmental Planning Policy (Infrastructure) 2007. State Environmental Planning Policy (Sydney Region Growth Centres) 2005. Camden Development Control Plan 2014.

The 1991 Consent

The development application for the 1991 Consent (referred to in the Notice of Determination of the 13th of September 1991 as Development Application No. 91/1194) was accompanied by an Environmental Impact Statement (EIS) which was certified for the purposes of the EPA Regulation on the 8th of March 1991 which states: "This statement accompanies the development application made in respect of the development described as upgrading of the Bringelly Brick and Paver Manufacturing and Quarrying Operations - Extensions to "Extractive Industry". The development application relates to the land described as follows: Greendale Road Bringelly Real property description: Lot 2, DP 733115, Parish of Cook, County of Cumberland."
Further, the Notice of Determination of the development application states: "LAND: LOT 2 DP 733115 (No.60) LOCATION: Greendale Road Bringelly ZONE: URBAN (40Ha) - Interim Development Order No. 7 PROPOSED DEVELOPMENT: Designated Development - Extensions and upgrading of existing brick and paver manufacturing plant, as shown on the plans endorsed with Council's stamp and attached to the development consent no. 3069."
I note, firstly, that the director, planning and environment of the respondent reported to the Council recommending development consent for the mobile concrete batching plant and associated site works on the subject land. In doing so the director recommended that the Council support the applicant's request to vary the height of buildings control in CLEP cl 4.6 and gave reasons for doing so. The recommendation was submitted to the Council meeting held on 25 July 2017. It is contained in Exhibit C3, tab 61. The reasons for supporting the clause 4.6 exception of the applicant were as follows: "a. The height of the silos is critical for operation of the mobile concrete batching plant. b. The silos are set back 46m from the Greendale Road and will be painted a natural colour to assist blending in with the existing and proposed vegetation screening. c. The existing Boral CSR Bringelly Brickworks has a maximum height of 17.5m.Therefore the proposed height is not inconsistent with the existing character of development across the site. d. The height breached does not result in any adverse amenity impacts on surrounding development. e. The objectives of the control and zone are considered to have been met despite the numerical non-compliance." The report went on to recommend approval.

Contentions of the Council

Mr Pickles SC for the Council contended that whilst located within the same lot as the extractive industry under DA 91/1194, the development area is not located on the same land or within the curtilage of the extractive industry.

Contentions of the Applicant

Clause 7(4)(d) of the Mining SEPP does not stipulate that permissible development for the purposes of a concrete works must be in a particular location on land. Rather it stipulates that there should be extractive industry being carried out with development consent on any land. The clause does not set any development standards for siting of the concrete works. The Council accepts that land on which the extractive industry is being presently carried out (at the date of the hearing) is Lot 100. It also accepts that the extractive industry is being carried out pursuant to the 1991 Consent on Lot 100.
The Council's contention implies that the concrete works would be permissible if it were located within the curtilage of the extractive industry.
There is no reference to "a development area" or "a curtilage" in the Mining SEPP and these terms would impose limitations not expressed in the Mining SEPP. The definition of "extractive industry" in cl 3 of the Mining SEPP makes clear that there are many aspects to "extractive industry". The conditions of the 1991 Consent deal more specifically with activities such as management of stormwater, pollution, contamination, storage dams, natural drainage lines (Condition 22), site landscaping, revegetation, dust control and rehabilitation, several of which apply to the location chosen as the site of the proposed concrete works. Thus, the activities on the site are much wider than the Council's submission suggests.
As the extracts from the 1991 Consent in paragraphs [15] and [16] (above) show, the whole of Lot 100 is impressed with the 1991 Consent. It follows that development for the purpose of a concrete works "may also be carried out with development consent on that land".
In my opinion, there is no basis for dissecting the various activities carried out on Lot 100 in pursuit of the approved extractive industry development under the 1991 Consent and treating them separately, as the Council seeks to do.
The Council's contentions went so far as to suggest that no activity referable to the carrying out of those which fall within the definition of extractive industry or under the 1991 Consent is presently taking place on the proposed site of the concrete works. I am unable to so find.
Mr McEwen submitted that extractive industry must include more than just the activities of extraction or digging a hole per se. It includes all of those activities which are supplementary and complementary to the activity of extraction so that they are seen, as a whole, as the land uses which make up the purpose of development of extractive industry.
I note that in the unanimous decision of the Court of Appeal in People for Plains Inc v Santos NSW (Eastern) Pty Ltd [2017] NSWCA 46, it was held in a different context under the Mining SEPP that the Court should consider the carrying out of development under the SEPP and the issues of categorisation and permissibility of petroleum prospecting by regarding it "as a whole" and that "land" in cl 18 of the Mining SEPP should be read as referring to the land on which the overall development is taking place. Clause 2 of the Mining SEPP sets out the aims of the Mining SEPP and they include: • to facilitate the orderly and economic use and development of land containing, inter alia, extractive resources; • to promote the development of significant mineral resources; and • to establish appropriate planning controls to encourage ecologically sustainable development …
The submissions of the Council relating to the meaning of the word "land" in cl 7(4) of the Mining SEPP referred to cases decided under the provisions of the EPA Act and Regulation with respect to enlargement, expansion or intensification of existing uses, whilst acknowledging the different context in the present case.
Reference was made to cl 42 of the EPA Regulations and earlier equivalents which provide that development must be carried out "only on the land on which the existing use was carried out immediately before the relevant date". Mr Pickles stated that I should consider as a question of fact, what was the land on which extractive industry was carried out. He referred to Lemworth Pty Limited v Liverpool City Council (2001) 53 NSWLR 371 (CA); and to the decision of the High Court of Australia in Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 278 ("Eaton"). Eaton's case was decided after the High Court had delivered its decision on the matter of the extractive industry and brickworks in Parramatta City Council v Brickworks Limited (1972) 128 CLR 1; [1972] HCA 21, a case concerning a similar extractive industry to that in the present case.
In Eaton, Barwick CJ applied the decision in the Brickworks case and held at 275: "the land to which regard should be had for the purposes of applying clause 30 of the Warringah Scheme, is the whole of the land occupied by lots 5, 8 and C1 acquired by the appellant for the purpose of establishing therein its business of timber reselling." "Lot C1 should be regarded as integrated into that whole for the current purposes of the business. At the very least, lot C1 should itself be regarded as a whole and not divided into doubtfully definable parts related to current physical use." Gibbs J stated that the problem in Eaton's case was to identify the land to which the existing use can be said to have attached. He referred to the Brickworks case and continued: "when a provision such as cl 30 speaks of an existing use of land it refers to land which from a practical point of view should be regarded as one piece of land … the fact that all the land under consideration forms one parcel - one unit in a subdivision - tends to support the view that all the land should be regarded as one piece or as the "land" to which the Ordinance applies at least if the area in question is not very large."
In Eaton's case (supra), Gibbs J referred to Kismet Engineering Pty Ltd v Brisbane City Council (1959) 102 CLR 574; [1959] HCA 49 at 580 in which Gibbs J held in a similar context: "If the allotment may rightly be regarded as one piece of land which was used for the Respondent's business then clause 30 permits the respondent to continue that use … and that means it is entitled to use every part of it." Gibbs J also held:- "I am of the opinion that where a relatively small area is held by one owner and none of it has been used in fact for any purpose different from that for which part of it has been used, it should generally be regarded as being all one parcel for the purpose of determining what land has been put to that use."
Mr Pickles accepted during final submissions that it is relevant to the question under cl 7 of the Mining SEPP that it refers to an extractive industry being carried out with development consent and that it is necessary to interpret that consent. This was said at a time when the parties were under the impression that the development consent in question was a State Significant development consent number SSD 5684 which the Council claimed applied to Lot 100. After reserving my decision, I discovered in the bundles of documents tendered, evidence that SSD 5684 had never been commenced or become effective and that the 1991 Consent was the only development consent in force for the purposes of cl 7 of the Mining SEPP. Not having been previously taken to these documents by the parties, I recalled the parties and it was agreed that the documents making up the 1991 Consent should be tendered and that the Council should have leave to amend its Statement of Facts and Contentions (SOFC) to reflect the true position.
The 1991 Consent has been described earlier. The parties agreed the land to which it applies is Lot 100. The documentary evidence tendered in the proceedings makes clear that since 1991 the use described in the 1991 Consent and in the EIS which is incorporated into it by reference has been continuously carried out on Lot 100 to date. I note that I attended a general view of the site in the presence of the parties and heard onsite submissions from the objectors, supplementary to their written objections. I also attended a number of the properties of the objectors. Also, no parts of Lot 100 are being used for any other purpose than the existing extractive industry. I am assisted by the analogous reasoning provided by the decisions of the High Court in the existing use cases referred to earlier.
I find that development for the purpose of "extractive industry" as defined in the Mining SEPP is being carried out on Lot 100 in accordance with the 1991 Consent as a single business. Although it is not necessary for me to minutely categorise separately the current use of the part of Lot 100 to be the proposed site of the proposed concrete works, I note however that it is on land within Lot 100 which forms part of the embankment which is alongside and supports the northern quarry cells used for the purpose of the extractive industry and that this is a physical use of the land for that purpose. Accordingly, I find that the current use of the land proposed for the concrete works in accordance with DA 2016/578/1 is permissible development under cl 7(4)(d) of the Mining SEPP.

Second Issue: Height of Buildings

The Council contends that the proposed height of the development is unsatisfactory and fails to comply with the maximum height of building contained in cl 4.3 of CLEP. The maximum height applicable to the land is shown on the Height of Building Map forming part of CLEP. Clause 4.3 establishes a height limit of 9.5m for the subject land and surrounding land. The proposal includes the construction of three materials storage silos originally with a height of 19.2m, each of which would stand 14.9m above the height of a proposed bund wall.
The town planner for the applicant, Mr Paul Grech, prepared an individual statement of evidence filed 13 August 2018 (Exhibit 3) which deals amongst other things with the issue of the height control. In my opinion, the three silos will be structures and therefore "buildings" within the meaning of the definition of "building" in s 1.4 of the EPA Act which includes any structure including any temporary structure or part of a temporary structure. Clause 4.6 of CLEP provides for exceptions to development standards. There is no doubt that the height control in cl 4.3 is a "development standard" within the definition in s 1.4 of the EPA Act because it is a requirement or standard in an environmental planning instrument in respect of the height of a building or work from a specified point.
Mr Grech engaged in a Joint Planners Report with Mr Glenn Apps, the Council's town planner, filed on 10 August 2018 (Exhibit F). The planning experts gave concurrent evidence and were cross-examined.
Clause 4.6 of CLEP provides that development consent may, subject to cl 4.6, be granted for development even though the development would contravene a development standard imposed by the environmental planning instrument in question.
Clause 4.6 provides relevantly as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. (6) ... (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3).
The Court must firstly form the positive opinion of satisfaction that the applicant's written request has adequately addressed both of the matters in cl 4.6(3)(a) and (b). I am entitled to form the opinion under these provisions indirectly, that is to say by reference to the clause 4.6 written request of the applicant prepared by Mr Grech. The applicant bears the onus to demonstrate that the matters in clause 4.6(3)(a) and (b) have been adequately addressed in the applicant's written request in order to enable the consent authority, or the court on appeal, to form the requisite opinion of satisfaction: Wehbe v Pittwater Council (2007) 156 LGERA 446; [2017] NSWLEC 827 at [38] ("Wehbe"). In doing so, I have considered the updated clause 4.6 request prepared by Mr Grech which is included in Exhibit 3. I am satisfied that the applicant's written request seeks to justify the contravention of the development standard by demonstrating that compliance with the height development standard is unreasonable and unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard.
The second opinion of satisfaction in cl 4.6(4)(a)(ii), is that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out. I have directly satisfied myself of the matters included in the second opinion and not indirectly. The matter in cl 4.6(4)(a)(ii) with which the consent authority or the court on appeal must be satisfied is not merely that the proposed development will be in the public interest but that it will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone.
Clause 4.6 sets out the requirements of which the Court is to be satisfied before it is open to grant consent to development that would contravene a development standard. When the development application was lodged initially a clause 4.6 submission was included in the EIS prepared by EMM dated May 2016 for the concrete batching plant and the height of the silos in particular was amended. Mr Grech prepared an "updated" clause 4.6 submission and included it in his individual report filed 3 August 2018 (Exhibit 3).
During the Council's processing of the development application, the clause 4.6 submission contained in the EIS had been supported by the Council's planning officers and approval was recommended: see [17] above. The updated clause 4.6 variation to the height development standard is included, as mentioned, in Exhibit 3. In the later joint report, Mr Grech stated that he relied on the assessment and conclusion reached in his individual statement of evidence and again adopted the reasons stated in the updated clause 4.6 submission. The clause 4.6 report notes that the building height of the silos in terms of the CLEP is between 18.189m to 18.342m. He notes that under the amended plans, the silos have reduced in height to the lowest practical height achievable.
He then analyses the requirements of cl 4.6, these having been recently discussed in three decisions of the Court. The most recent decision is Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ("Initial Action"). Other relevant decisions are Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7 and Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26].
Clause 4.6(3) provides that development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: 1. That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and 2. That there are sufficient environmental planning grounds for contravening the development standard.
I have received and read the written request of the applicant that seeks to justify the contravention of the development standard by demonstrating the matters in (a) and (b) above. The written request of the applicant via Mr Grech's clause 4.6 request to vary the development standard is found at pages 29 - 37 of Appendix D to his report filed 3 August 2018 in Exhibit 3.
For the purposes of cl 4.6(4)(a)(i), I am satisfied that: (i) The applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3) of cl 4.6, and (ii) The proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.
The objectives of the height of buildings standard in cl 4.3 of CLEP are as follows: (a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality, (b) to minimise the visual impact, disruption of views, loss of privacy and loss of solar access to existing development, (c) to minimise the adverse impact of development on heritage conservation areas and heritage items.
The objectives of the RU1 zone are as follows: • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To encourage diversity in primary industry enterprises and systems appropriate for the area. • To minimise the fragmentation and alienation of resource lands. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To permit non-agricultural uses which support the primary production purposes of the zone. • To maintain the rural landscape character of the land.
Mr Pickles accepted that objectives (b) and (c) of the height of building standard (above) are satisfied and that there is no contention otherwise. He also stated that there was no adjoining zone that is different to be concerned with and in terms of conflict between land uses within the RU1 zone, there is no particular conflict so far as the height of the silos is concerned because there is no particular view loss or visual impact from a residential property. It was submitted that the Council's position is that the application could not satisfy the Court in respect of the last objective of the zone and the first objective of the height control. The silos were said to be not compatible with the character, the scale and the desired rural character of the locality and can be perceived from the public road.
The last objective of the RU1 zone is to maintain the rural landscape character of the area. The first objective of the height standard in cl 4.3 is to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality. The question is, under cl 4.6(4)(ii), whether the proposed development is "consistent" with the objectives of the standard and with development within the zone.
Mr Pickles stated, relying on the evidence of Mr Apps, that the silos are "not compatible" with the character of the locality to the extent to which they exceed the height limit and can be perceived from the public road. Mr McEwen submitted and I accept, that there will be no significant impact on amenity by reason of the height or visibility of the silos. Mr McEwen submitted that it can be accepted that compliance would be unreasonable or unnecessary in the circumstances of the case under cl 4.6(3)(a) on the basis of Wehbe's case (supra). There must be sufficient environmental planning grounds to justify the contravention under cl 4.6(3)(b). These matters are the factors referred to in the written request. In Initial Action (supra) at [17] it was said that the first and most commonly invoked way of demonstrating that compliance was unreasonable or unnecessary was because the objectives of the standard are achieved notwithstanding non-compliance with it: Wehbe. Mr McEwen noted that in the instant case there is no view loss and that this is an important matter which is established. Mr McEwen submitted that there was no provision that requires compliance with the objectives of cl 4.6; as neither cl 4.6(3) and (4) expressly or impliedly requires that development that contravenes a development standard "achieve better outcomes for and from development". In Initial Action at [90], cl 4.6 was held not to impose a test of better outcomes for and from development. He then addressed paragraph [94(c)] in Initial Action which states: "At first instance the Commissioner held incorrectly at [136] that the lack of adverse amenity impacts on adjoining properties is not a sufficient ground justifying the development contravening the development standard, when one way of demonstrating consistency with the objectives of a development standard is to show a lack of adverse amenity impacts (see Randwick City Council v Micaul Holdings Pty Ltd at [34])."
Mr McEwen submitted: "we come then to the proposition that it is sufficient to demonstrate a lack of impact on amenity. If you identify that there is consistency with the objectives of the standard, that is a way of proving or demonstrating that compliance is unreasonable or unnecessary and that sufficient environmental planning grounds can result from a lack of impact on amenity. Consistency with the objectives of both the standard and the zone is a matter for the Court to be satisfied about directly and that for the reasons set out in the clause 4.6 objection of Mr Grech, the Court would be well satisfied and that there is an absence of adverse impact in this case. I agree with these submissions and reject the Council's submissions to the contrary.

Environmental Planning Grounds (cl 4.6(3)(b))

The silos occupy a very small portion of the overall site. They are visually insignificant. There is no view impact, no overshadowing impact, no loss of solar access and there is an extremely limited opportunity within which to view the non-compliant structures. In their context, there is, in close proximity, an extractive industry which has structures which rise to 17.5m. The three silos are about 1m above that. The silos are 46m from the boundary which is twice or more than twice the distance required for structures under the Camden Development Control Plan 2014 which is 20m. When the bunds are constructed and the landscape vegetation, as conditions require, is established (or even before that) the photo montages in evidence show that the silos would be by no means an offending element in the landscape. They are visible, but only "fleeting glimpses" will be able to be obtained of the silos from a passing vehicle on Greendale Road for a period measured in seconds, and this will be so until landscaping prevents it entirely. The backdrop is treed, the foreground will be protected by mounding and landscaping and the closest dwelling is about 120m away.
Mr McEwen submitted that the objectives are either irrelevant or they are not offended or impacted by the departure from the height standard. As some of the objectives are irrelevant, there can be no inconsistency with something which is irrelevant. Despite the height exceedance, consistency with the rural landscape character of the land is maintained. The rural landscape character has to include the land which surrounds the subject site, but if restricted to the subject site what is plain is that in the context is a brick quarry with other structures and the rural landscape character will include the ability in appropriate circumstances to establish the concrete plant. The objectives of the RU1 zone are not offended. He noted that "compatible" as used in objective (a) for height of buildings in cl 4.3 means, "able to co-exist in harmony". Mr McEwen submitted that the location, screening, type of construction and the slender nature of the silos, by comparison to what might ordinarily be described as a building is not inconsistent with the desired future character. He stated that the silos are plainly compatible with the established character which includes the existing extractive industry and their compatibility arises from lack of impact. "The object is to minimise": see Initial Action (supra). It was agreed between the parties that there were no heritage items or heritage conservation areas in the vicinity of the proposed development: see cl 4.3(c) objective in CLEP.
The concurrence of the secretary has been obtained or is not required because of cl 4.6(4)(b) because the necessary delegation has been given.

The Secretary

As to cl 4.6(4)(b) - the Concurrence of the Secretary of the Department of Planning and the Environment must be obtained. Under cl 64 of the EPA Regulation: the Secretary has given written notice dated 21 February 2018 attached to the Planning Circular PS 18,003 issued on 21 February 2018, to each consent authority, that it may assume the Secretary's concurrence for exceptions to development standards in respect of applications made under cl 4.6, subject to the conditions in the table in the notice.
The Court has power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters under cl 4.6(4)(a) without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the Land and Environment Court Act 1979.
I have considered the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes the development standard: cf Wehbe.
In my opinion, contravention of the development standard does not raise any matter of significance for State or regional environmental planning, nor do I consider that the public benefit of maintaining the development standard prevents the grant of concurrence or that there are other matters required to be taken into consideration by the Secretary before granting concurrence.
Having considered the requirements of cl 4.6 of CLEP, I am satisfied that the written objection and request should be granted and that it is open to me to grant development consent notwithstanding the non-compliance with the development standard as to height in cl 4.3 of CLEP, subject to the remaining issues, to which I will now turn.
I rely upon the facts set out in the expert report of Mr Grech.
Overall, in my opinion, there will be an absence of any significant impact on the amenity of the site and its surroundings and that the objectives of the height development standard will be achieved notwithstanding non-compliance with the standard. The proposed development will therefore be consistent with the objectives of the height standard and the objectives for development within the zone both generally and with respect to the silos in particular, and is not antithetical to the respective objectives.
Accordingly, notwithstanding the contravention of cl 4.3 of the CLEP, there is no basis on which to refuse development consent under cl 4.6(4). Having regard to these findings, I will proceed to consider the remaining contentions of the Council.

Third Issue: Character

The three silos are contended by the Council to be out of keeping with the rural-residential character of the area, are not compatible with the scale of development in the area and will have an adverse impact on the views and vistas in the locality. A request to vary the height of building development standard in cl 4.3 of the CLEP has been upheld for the reasons given earlier. I reject the Council's claims of incompatibility. I have found otherwise above.

Fourth Issue: Visual Impacts

The Council contends that the development will result in unacceptable visual impacts for the local area. It describes the area in which the proposed development is to be situated as being within a rural-residential setting on Greendale Road. Further it is contended that the development relies on the removal of trees within the road reserve in order to accommodate the proposed turning treatments at the vehicular access onto Greendale Road. It is claimed the removal of the trees will exacerbate the visual impact of the development from Greendale Road and further impact on the character of the locality. However, the landscaping plan for the site in evidence shows that there are more trees to be planted than those to be removed and that the visual impact of the development of the concrete works site is acceptable.

Fifth Issue: Hours of Operation

The fifth issue is the hours of operation of the proposed development. The Applicant seeks the hours from 7:00am to 10:00pm Monday to Saturday and on Sundays and public holidays 8:00am to 10:00pm. The Council claims that these hours of operation are excessive in the context of the rural-residential setting. I will deal with this issue below in the discussions of acoustics and conditions of consent.

Traffic Impacts

This issue is a claim that the proposed development will result in unacceptable traffic impacts. This primarily relates to acoustic impacts and is referred to in the next issue.

Seventh Issue: Acoustic Impacts

At the commencement of the hearing, Mr Pickles informed me that the traffic issue in the Council's original Statement of Facts and Contentions had been resolved. Nevertheless, expert evidence of the traffic engineers was called in relation to Contention 7 - Acoustic Impacts. This was because the acoustic experts' opinions depended to a large extent on the appropriate classification of Greendale Road. Mr C McLaren was the traffic engineer for the Applicant and Mr P Corbett was the traffic engineer for the Council. They prepared a joint traffic report in which they both came to the same view that the traffic volumes are consistent with both a collector road and a local road by reference to the NSW Road Noise Policy published by the Department of Environment, Climate Change and Water NSW ("the RNP"). The edition provided in Exhibit C3 (tab 58) is dated March 2011.
The RNP explains the assessment criteria for the road categories listed in section 2.2. There is a table listing the categories as:

Freeways or motorways/arterial roads
Sub-arterial roads (previously designated "collector" roads)

It was put to the traffic engineers by Mr Pickles that the traffic experts agreed in their joint report (Exhibit E) that: "the primary function of Greendale Road is to provide direct access to the rural residential lots and local roads located along its length, from the Northern Road at Bringelly to Park Road at Wallacia": (at [31]) and that this, in slightly different words is what appears in the table (in the RNP).
However, Mr McLaren did not agree. The question put was the first part of the lengthy agreed paragraph in the Joint Report of the Traffic Engineers which includes noting "that there are non-rural residential uses along its length and whilst it operates as somewhat of a collector road near Wallacia, it is expected that the majority of vehicles would travel to/from the east and would utilise Park Road instead of Greendale Road. Further, they agree that east of the existing PGH Brickworks/Quarry access the function of Greendale Road would be consistent with a collector road given the increased traffic volumes, above … 2,000 vehicles per day … Hence the collector functions … would generally be confined to the immediate Wallacia area and east of the existing PGH Brickworks/Quarry driveway."
These experts concluded with agreement that "Greendale Road, within the immediate vicinity of the proposed driveway, operates at the upper end of a local road and the lower end of a collector road. Accordingly, they agree that it cannot be strictly defined as either a collector road or a local road."
The RNP provides for assessment criteria where, as in this case, the functional categories are not sufficiently definitive to allow the relevant noise criteria in Table 3 ("Noise Assessment for Residential Land Uses") to be adopted.
The Joint Report of the Acoustic Experts, Dr Renzo Tonin (for the Council) and Mr Stephen Cooper (for the Applicant) dated 20 August 2018 and their Supplementary Joint Report of 21 August 2018 were tendered.
Dr Tonin stated that he was satisfied that all of the contentions in paragraph 6 of the Respondent's Contentions were then satisfied by the additional information provided in Annexures B-D of Mr Cooper's individual Statement of Evidence dated 26 July 2018 (Cooper Report) other than [6.2(d)] "Road noise assessment" on Greendale Road, [6.2(e)] "noise modelling" and [6.2(i)] "acoustic assessment of revised plans". These contentions are discussed in the report.
Mr Cooper and Dr Tonin agreed that the EPA's NSW RNP is the relevant guideline. They noted the conclusion of the traffic experts' assessment of the category of the relevant part of Greendale Road not being able to be strictly defined as either a collector road or a local road, and that this means that the selection of the acoustic criteria as one or other of these categories, produced different results for the range of traffic volumes. Greendale Road accommodates 2,040 total vehicles per day with a 7 day average of 1,980 vehicles per day and that this is "borderline" and makes the road from the proposed development a collector road on either count. Mr Cooper accepted this, and noted the RNP now classifies these as sub-arterial roads.
They referred to the photos of the different categories of roads in the RNP below Table 2. The middle photo is identified as a sub-arterial road. Mr Cooper considers it represents Greendale Road in proximity to the site whilst the photo of the "local road" bears no relationship to Greendale Road in proximity to the site.
However, Dr Tonin considered out of "caution" that the section of road in the immediate vicinity of the proposed driveway should be treated as if it were a local road, "principally because of the number of additional heavy vehicle movements during day time in front of residences R1 and R10". This approach seems to me to diverge from the RNP criteria.
Dr Tonin found that the RNP criteria are exceeded for both R1 and R10 and the increase in noise level is more than 2dB(A) for both. The impact being unacceptable, in his opinion, it follows that all "reasonable and feasible noise mitigation methods" should be applied. He concluded by considering noise mitigation treatments. He stated that noise mitigation treatments that are possible to implement in this case are: 1. A reduction in operating hours to daytime only (up to 6pm) so as to avoid the impacts in the more sensitive evening time; 2. Deletion of Sunday operating hours; 3. An offer of at-property treatment to the owners of dwellings R1 and R10.
Mr Cooper's position is that the existing and predicted daytime traffic noise levels from truck movements on Greendale Road at R1 (east of the Project Site) will, taking the existing noise levels plus noise from site trucks be a total of 57.7dB, and at R10, 56.3dB.
The permitted RNP criterion is 60dB and thus additional truck movements associated with the site comply with the RNP criterion of 60LAeq, 15hr when Greendale Road is classified as a collector (sub-arterial) road. Thus, Mr Cooper's result does not require the application of "all reasonable and feasible noise mitigation treatments".
As a result of a meeting between EMM, Dr Tonin and Mr Cooper at which the noise model illustrated in Appendix D to the Cooper report (Exhibit 5) was rejected, a modified noise model being Dr Tonin's Figure 3 was adopted. This involved correcting (lowering) the sound power levels of the agitator trucks, increasing the level of the cement delivery truck: see Exhibit D, Part 4, adding a truck in the washing bay, a cement delivery truck and aggregates truck arriving or departing, use of special vinyl curtains at the entry and exit of the slump stand enclosure and use of the front-end loader which operates for 5 minutes in 15 minutes in the evening (after 6:00pm) with no deliveries of raw materials to occur in the evening.
The final conditions of consent (Exhibit K) set day and evening noise limits expressed as LAeq (15 minutes) for all residences on Greendale Road identified as R1 through to and including R10. The noise limits apply to the most affected point on the property boundary where the dwelling is within 30m of the boundary closest to the premises or within 30m of a dwelling façade, but not closer than 3m, where any dwelling on the residential property is situated more than 30m from the property boundary closest to the premises. Condition 28 contains detailed maximum sound power levels for night and day for each relevant dwelling.
Other conditions require verification of noise limits (Condition 29), limits on concrete production (Condition 26), and an obligation on the operator of the concrete works, on request of the owners of 29 and/or 31 Greendale Road for the Applicant to prepare a suitable noise mitigation solution regarding traffic noise (e.g. upgraded glazing, or mechanical ventilation, as approved by the Council).
The revised noise model shows compliance with adopted criteria at all receiver locations and the experts agreed that the only outstanding issues were Contentions 6.2(d), 6.2(e) and 6.2(i). The others were resolved on the basis of the EMM Project specific levels. Table 5 of Exhibit D shows the revised noise levels for the revised model.
As mentioned, Mr Cooper is of the opinion that Greendale Road is classified as a collector road and therefore the noise criteria applicable to that category apply; the site is compliant with the day-time criteria and the noise level is acceptable and the acoustic contention is not sustained. Dr Tonin applies his "cautious" approach and the RNP criteria are, in his opinion, exceeded and his reasonable and feasible mitigations are recommended.
Site noise is acceptable on the basis of the EMM Project noise targets. Contentions 6.2(e) and 6.2(i) are satisfied except that Dr Tonin states that at R3 the daytime levels exceed the EPA targets at the residence and additional noise control is required. As a result, the Applicant engaged EMM to carry out additional noise modelling. An additional noise barrier (screen) was recommended which is to be 3m high and 5m in length, placed north of the batching area on the site: see the plan on page 3 of Exhibit G.
Mr Cooper maintains his position set out in paragraphs 50 and 51 of the Joint Report (Exhibit D) as stated above, which shows compliance based on the classification of Greendale Road as a collector (sub-arterial) road.
I am persuaded that the noise issues should be resolved for the reasons given by Mr Cooper, including his deliberate use of the photographs in the RNP as a guideline to classification.

Final Submissions

Mr McEwen submitted that Greendale Road fits entirely within the sub-arterial road description within the RNP which "provide[s] connection between arterial roads and local roads. Greendale Road provides a connection between arterial roads, because, as is agreed in Exhibit E, one of its primary functions is to provide access to local roads."
Mr McEwen submitted that every purpose, extractive industry or development, includes the use of land. He pointed to a number of dams on the land as part of the land and the use of them for extractive industry.
As to conditions, Mr McEwen ultimately agreed with the Exhibit K conditions but submitted that the maximum permitted noise levels in Condition 28 apply to any noise generated at the premises and must include the front end loader and he argued that there was no need for a specific condition limiting the use of the loader to "5 minutes within any 15 minute period after 6pm" - as appears in Condition 7 which was added late in the hearing. The origin of the condition was a recommendation of Dr Tonin without the opportunity of testing it and I have not had the benefit of hearing Dr Tonin on the question or Mr Cooper. I do not consider it to be a necessary condition to add, given the broad effect of Condition 28 and I have deleted it in the conditions. I note that the conditions contain the at-property treatment condition which was recommended by Dr Tonin. In my opinion, the residents are suitably accommodated by the acoustic conditions.
I consider that the concrete works development is worthy of development consent and is in the public interest. There are specific conditions addressing the oral and written concerns of the objectors. I consider that they will address the air and water pollution concerns, the acoustic, safety, and visual issues raised for the protection of local property owners and residents.

Orders

The orders of the Court are: 1. The Applicant's written request to vary the height of the building development standard under cl 4.3 of Camden Local Environmental Plan 2010 is granted pursuant to the jurisdiction of the Court under cl 4.6 of that instrument; 2. The appeal is upheld; 3. Development Consent is granted for the mobile concrete batching plant and associated buildings on Lot 100 DP 1203966, the subject of Development Application No. DA2016/578/1, subject to the conditions set out in Annexure "A". 4. The exhibits may be returned, except for Exhibits 1A, 1B and 11 (set of approved plans of the concrete works). …………………………………..

Amendments 05 December 2018 - Correction made to a typographical error in [6]: the word "latter" has been deleted and replaced by "Mining SEPP" 26 February 2019 - Pursuant to the slip rule and in accordance with the Notice of Motion judgment delivered on 26 February 2019, the "Annexure A" (previously attached to this judgment) has been removed and replaced by an amended copy of "Annexure A". See Boral Resources (NSW) Pty Ltd v Camden Council (No 2) [2019] NSWLEC 1070 (dated 26 February 2019) for reasons. 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: 26 February 2019

(2001) 117 LGERA 305

(2007) 156 LGERA 446

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Judgment (20 paragraphs)

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Cases Cited (18)