Bowtell v Port Stephens Council & Anor

[2017] NSWLEC 1130

Land and Environment Court (NSW)|2017-01-18|Before: Mr J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2017-01-18

Before

Mr J

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

Judgment

COMMISSIONER: This is an appeal against the refusal of Development Application No. 16-2012-630-1 for a Rural Industry (Including Organic Composting) at 13 Barleigh Ranch Way, Eagleton (the site). The application was refused pursuant to s 91A(4) of the Environmental Planning and Assessment Act 1979 (EP&A Act), as the Environmental Protection Authority (EPA) refused to grant an approval under the Protection of the Environment Operations Act 1997 (POEO Act). The EPA was made a party to the proceedings on 15 December 2015.
An existing development consent granted in 2000 (the 2000 Consent) authorises the use of the site as a "Bulk store for Landscaping Supplies, and Wholesale Nursery" but conditions of that consent prevent the undertaking of composting on the site without further development consent (condition 3), and the use of manure on the site (condition 5).
The proposed use is to produce up to 10,000 tonne of compost per year and up to 50 cu m of chicken manure will be stored on the site to be used as part of the composting process. The process is described as (Exhibit 3, p131): It is proposed that composting, pasteurising and chicken manure storage facilities will be constructed in accordance with the control measures set out in the Environmental Guidelines: Composting and Related Organics Processing Environmental Facilities' (the 'Guidelines') (DECC2004)). Composting and pasteurising activities will be undertaken within a 54 m by 35 m shed proposed to be located in the northern edge of the existing 4.9 ha hardstand and operation area utilised by Port Stephens Gardenland (see Figure 2). An 8 m wide delivery hardstand area will be constructed adjacent to the northern edge of the shed. The shed and delivery hardstand area will occupy approximately 2200 m2 of the existing 4.9 ha operation area (see Figure 3). The shed will be covered and bunded to provide a closed water management system for the composting and chicken storage facility. The covered and bunded 54 m by 35 m shed will be oriented with the long axis oriented in approximately a north-south direction as shown on Figure 2. The shed will be approximately 7 m high along its western edge and 6 m high along its eastern edge. The floor of the shed will follow the existing slope of the land at the shed site with the land sloping at approximately 4% from north to south and 1.5% from west to east as shown on Figure 3. Rainfall runoff from the roof of the shed will be conveyed to Dry Dam. The guttering and piping system to convey runoff will be designed to handle peak runoff during a 1 in 100 year rainfall event. The shed will be made of steel columns and trusses and will have a green Colorbond roof (see Figure 3). An example of the proposed shed structure is shown on Plate 1. It is envisaged that the columns will be made using back to back C Sections or similar with the steel roof trusses being approximately 1500 mm deep. Detailed engineering design and sizing of the shed components will be undertaken prior to seeking a construction certificate for the shed

[4]

Relevant planning controls

The site is zoned RU2 Rural Landscape under Port Stephens Local Environmental Plan 2013 (LEP 2013). Rural Industry is a permissible use with consent in this zone. Relevantly, cl 7.8 of LEP 2013 states 7.8 Drinking water catchments (1) The objective of this clause is to protect drinking water catchments by minimising the adverse impacts of development on the quality and quantity of water entering drinking water storages. (2) This clause applies to land identified as "Drinking Water Catchment" on the Drinking Water Catchment Map. (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider the following: (a) whether or not the development is likely to have any adverse impact on the quality and quantity of water entering the drinking water storage, having regard to the following: (i) the distance between the development and any waterway that feeds into the drinking water storage, (ii) the on-site use, storage and disposal of any chemicals on the land, (iii) the treatment, storage and disposal of waste water and solid waste generated or used by the development, (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse impact on water quality and flows, or (b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
The application was lodged under Port Stephens Local Environmental Plan 2000 (LEP 2000). However, Port Stephens LEP 2013 was in draft form at the time of lodgment and subsequently commenced on 22 February 2014 whilst the application was under consideration by the council. Clause 1.8A of LEP 2013 provides a savings provision relating to development applications made before the commencement of the Plan where the application had not been finally determined, and established the application must be determined as if the Plan had not commenced.
The development is 'designated development; under cl.13 sch.3 of the Environmental Planning and Assessment Regulation 2000 (the EPA Reg) as a result of the proposal for composting activities on site; (a) processing over 5000 tonnes of organic materials, (b)(i) is located within 100 m of a natural waterbody, and (b)(iii) is within a drinking water catchment.
Composting activities require the issue of an Environmental Protection Licence (EPL) under the POEO Act. The application was referred to the EPA as integrated development under s 91 EPA Act.
Port Stephens Development Control Plan 2013 (DCP 2013) applies to the site. Part B2 Environmental and Construction Management and Part B3 Parking and Traffic apply to the development.
Environmental Guidelines - Composting and Related Organics Processing Facilities, Department of Environment and Conservation, 2004 (the Composting Guidelines) were addressed by the parties. The Composting Guidelines identify objectives, design requirements, performance requirements and performance measurements for dealing with the environmental issues arising out of composting operations. Relevantly, Part 5 addresses the Minimum Design requirements for the Protection of Waters. . The introductory paragraph states: Section 4 Issue 5 of these guidelines contains design requirements for the protection of waters. The design requirements described in this section are the minimum requirements that must be met when occupiers are developing and selecting cost-effective techniques suitable and appropriate to satisfy the environmental objective for the protection of waters. They are not 'one size fits all' requirements. Because of the nature of the facility or its location...the local planning authority may determine that more stringent requirements need to be imposed.

[7]

Should the shed, dams and working areas be sealed and what is the appropriate permeability?

Mr Jamieson states that prior to commencement of construction and operation of the proposed composting shed, a design of the composting shed floor and bund walls is to be undertaken by a suitably qualified and practising geotechnical engineer to the satisfaction of council, in consultation with EPA. The design must take into account the permeability of the underlying material and provide a floor and bunding for the composting facility that is suitable for managing windrows and will achieve a permeability of 10x -7 m/s or less in accordance with Composting Guidelines.
Mr Dixon states that the floor of the shed should have a barrier installed and the leakage performance of the barrier should be equivalent and no greater than a compacted clay liner with a permeability of less than 10-9 m/s and with a thickness of at least 600mm. A justification should be provided on the design taking into account the proposed barrier's leakage performance, including the durability of the surface and the ability to keep the floor of the shed clean. In this regard Mr Dixon suggests that a concrete floor would be acceptable.
Mr Dixon also considers that the permeability advice in the Composting Guidelines is too high, hence the recommendation to lower the permeability to 10-9 m/s. For example, and for illustrative purposes, assuming only a 1 mm head of leachate over the floor of the proposed building (64 m x 35 m) with a liner of 600 mm with a maximum permeability of 10-9 m/s (per the Compost Guidelines), Mr Dixon calculates that this would result in a leakage of leachate to groundwater at a rate of approximately 19 kL per day or approximately 7 million litres a year of leachate entering the groundwater. In composting operations, it Is not possible to match the exact water needs for composting and on occasion, excess water would be added to the compost and should the floor of the shed not have a suitable barrier the leachate would leak and enter the groundwater.
Mr Jamieson is of the opinion that the leakage rate of 7 ML/year estimated by Mr Dixon is unrealistic as the application of 5 kL of water per day to the compost for 300 days of the year is in total 1.5 ML, most of which will be evaporated through the composting process. Mr Jamieson is of the opinion that the floor of the shed needs to be constructed in accordance with the findings of a suitable qualified geotechnical engineer in regard to comply with permeability requirements of Composting Guidelines.
Mr Jamieson states that prior to commencement of the proposed composting facility, a detailed risk review is to be undertaken of the potential for runoff from the landscaping supplies area and water contained within the 30.5 ML main dam to adversely Impact on groundwater quality in the surrounding area. The risk review should be prepared to the satisfaction of council in consultation with EPA. The risk review is to consider: 1. hydrogeological characteristics of the dam and surrounding area; 2. potential range of the quality of water that may be stored in main dam; 3. the potential for water within main dam to adversely impact on groundwater quality; and 4. identification of suitable contingency measures that can be implemented if an adverse potential risk to groundwater.
Mr Jamieson is of the opinion that the existing barrier provided by the clay and geology underlying the landscape supplies area, main dam and central dam will provide sufficient control to prevent adverse risk to groundwater in the area.
Mr Dixon states that the Court should consider requiring an engineered barrier system to be installed to suitably reduce the risk of continued pollutants entering groundwater from the floor of the shed, existing dam, the main dam and from the outside storage areas. The outside storage areas include all areas where any organic materials will be stored (including the compost product and landscape materials) and where water from the existing and main dams will be irrigated. Mr Dixon comes to this conclusion because of: * an inadequate geological assessment, * the adverse conclusions of the review of the applicant's water management system, * the unacceptable water quality data collected from two dams on the site, and * the lack of certainty in relying on conditions of consent for critical matters prior to the gathering of necessary additional data.
Mr Dixon states that if the Court accepts his concerns and suggested specification (a compacted clay liner with a permeability of less than 10-9 m/s and with a thickness of at least 600mm). This would require that the design to the standard of 'for construction' for the engineered barriers and main dam be considered as conditions of consent rather than a condition requiring a design of an undefined standard. Any condition would need to include the necessary details to ensure that the works can be built and that the main dam is stable and should include the provision of a construction quality assurance plan. The construction quality assurance plan would document the information to be provided for the constructed works to demonstrate that they can be constructed in accordance with the proposed design. After construction, a construction quality assurance report should be required to be provided to demonstrate that the lining systems and dam were installed in accordance with the approved design.

[8]

The weight to LEP 2013

The weight to be attributed to a draft environmental planning instrument (or in this case LEP 2013) will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower, Spigelman CJ states at pars 6 and 7 that: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.
If the draft LEP is imminent and certain, Terrace Tower (par 7) raises the question of whether the proposed development will preserve the character anticipated by the new zoning and whether the proposed development will undermine the objectives of the zone.
In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).
In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.
The questions to be answered are whether the draft LEP is imminent and certain and if so, what weight should the draft LEP be given in the consideration of the application.
On the question of whether the draft LEP (LEP 2013) is imminent and certain; there can be no doubt that it is because it has been in force for a number of years. There can also be no doubt that the draft LEP (or specifically cl 7.8(a)) should be given significant weight although I accept that the concerns raised by the EPA could be also addressed through the more general powers in s 79C(1) of the EPA Act, even if cl 7.8(a) did not exist. The protection of the water supply to Lower Hunter Region's major water supply is a matter extreme importance and consideration.

[10]

The lining of the shed, the dams and the working areas

In balancing the different approaches of the applicant and the EPA, I have little trouble in accepting the evidence of Mr Dixon over that of Mr Jamieson for a number of reasons. In coming to this general conclusion, I have not been satisfied that Mr Jamieson fully recognised the implications of any leachate escaping the site through insufficient sealing of the shed, dams and working areas, into a water supply area . It is in this context that the following findings are made. Mr Jamieson's less rigorous approach may be acceptable in other locations but not in a drinking water catchment.
First, and while the Composting Guidelines were at the centre of the discussions between Mr Jamieson and Mr Dixon, this document provides that sites within an identified drinking water catchments are environmentally inappropriate areas for composting facilities due to the risk of polluting drinking water. Any discussion on the use of standards in the Composting Guidelines must be considered with this in mind. This consideration clearly reflects the evidence of Mr Dixon rather than Mr Jamieson.
Second, Mr Jamieson disagrees over the lining of the storage areas and states that it is not required. Mr Dixon states that this is contrary to the Composting Guidelines which provide that storage areas for compost products area to be lined to the same minimum standard as material processing areas. Mr Dixon's view is supported in the submission of Mr Norton. He submits that the Composting Guidelines relate to the whole site and not just the specific area in the shed used for the composting. Mr Norton submits that the title of the document is "Composting and Related Organics Processing Facilities" (p1)(emphasis added). The Composting Guidelines also notes under the heading "Scope of the Guidelines" that they apply to "Related" facilities. The term "facility" is defined to mean "a premises at which a scheduled activity under schedule 1 of the POEO Act takes place" (Exhibit 3, p357). The proposal comprises a scheduled activity and therefore the site meets the definition of a facility. The boundaries of the "facility" are the boundaries of the premises (that is, the site), not the boundaries of the composting shed as suggested by Mr Jamieson. Accordingly, the proposed storage areas and dams are part of the facility for the purposes of the Composting Guidelines.
Third, Mr Dixon relies on existing studies by other sources to conclude that the existing water quality in Seven Mile Creek is already under considerable water quality stress and the likely source of the contamination is, at least partly from the existing operations on the site. He notes that:

water quality data for the central dam and main dam on the site obtained in August 2016 demonstrated that these dams contained elevated concentrations of ammonia, total nitrogen, total phosphorous, E-Coli and faecal coliforms, with the ammonia and E-coli levels exceeding those in the Australian Drinking Water Standards.
in the Coffey Report (2012), ammonia and nitrate were detected in the groundwater, at levels elevated above background concentrations; and in surface water at levels above the adopted criteria;
Mr Dixon cites Dr Martens' review in 2016 indicating that it was most probable that leachate in the main dam was influencing groundwater nutrient concentration, infiltrating into the groundwater downslope of the terminal pond
the Coffey Report (2012) states that the interpreted groundwater flow direction is south-east towards Seven Mile Creek and Grahamstown Dam. That report does not provide a complete groundwater model and recommended that further monitoring be undertaken to assess the risks to Grahamstown Dam. In my view, Mr Dixon correctly concludes that the existing data cannot confirm the extent of risk associated with not lining the dams.
the drilling of an additional bore shortly before the hearing does not improve scientific certainty in relation to the potential for the operation to impact on groundwater. I agree with Mr Dixon that there are numerous difficulties with the methodology for digging the bore and the sampling of the bore.

Mr Dixon's conclusions that the above matters indicate that there is concern that operations on the site have in the past impacted upon water quality in the drinking water catchment, both of surface water and groundwater; and that there is potential for impact in the future unless properly controlled.
Mr Dixon's approach for the site, in adopting a higher standard than the minimum in the Composting Guidelines, is appropriate given the sensitive location in a water supply catchment. His oral evidence was "that all dams leak" is pertinent. For example, the potential for substantial leakage into the groundwater if a head of leachate is allowed to build over the floor with a permeability of 10x-7 m/s lining (Jamieson) to a permeability of 10x-9 m/s (Dixon) is effectively making the floor 100 times less permeable than the lesser standard.
Fourth, I do not accept that it is appropriate to approach the issue of lining of the dams to be the subject of a "risk review" during or after the completion but not operation of the composting facility. Similarly, I do not accept that the permeability standard suggested by Mr Jamieson is appropriate, in the circumstances of a water catchment area.. Mr Dixon specifies a permeability of less than 10x-9 m/s and with a thickness of at least 600mm. Mr Jamieson suggests a permeability of less than 10x-7 m/s and with the detailed design being provided later, having taken into regard the characteristics of the underlying material. Mr Dixon, in my view, correctly suggests that, in the circumstances of this case a higher standard than the minimum in the Composting Guidelines should be adopted.

[12]

Clause 7.8

Clause 7.8(4) creates a barrier to the approval of the application if those matters in subsection (a) or (b) or (c) are not satisfied. For the reasons set out in detail earlier in the judgment, I am not satisfied that matters in subsection (a) or (b) or (c) have been satisfied.
The evidence provided by the applicant does not allow the necessary satisfaction on the basis that many of the important matters, such as the lining of the dams, have not been provided. Rather the applicant seeks to conduct a "risk assessment" after the construction of the facility to validate the existing lining or require amendment, based on the risk assessment. The EPA correctly reject such an approach.
Consequently, the application could be rejected for this reason alone (notwithstanding the other matters mentioned earlier). I am not satisfied that "the development is designed, sited and will be managed to avoid any significant adverse impact on water quality and flows" (cl 7.8(4)(a)) or that any impacts have been minimised (cl 7.8(4)(b)) and (c)).
If the Court was to grant consent in the absence of at least a general set of principles relating to the management measures to avoid, minimise or mitigate impacts on the water supply (on the basis that these measures were to be developed subsequently), such a determination would not conform with cl 7.8(4).
As submitted by Mr Norton, for the EPA, the approach in cl 7.8 feeds in to the precautionary principle by indicating the standard to which, if the development is to be approved subject to conditions intended to prevent environmental degradations, the conditions should be directed. The primary aim of conditions relating to water quality should be to ensure that impact on water quality and flows can be avoided completely.
The submissions of Mr Norton on the precautionary principle are well supported by the evidence. Based on the comments in the preceding paragraphs, the conditions precedent to the application of the precautionary principle are met, that is: there is a threat of serious or irreversible damage - that is, impact on the drinking water supply of the Hunter Region through leachate contamination of surface water and/or groundwater; and there is scientific uncertainty as to the scope of the environmental damage.