David Kettle Consulting v Gosford City Council & Ors

Land and Environment Court (NSW)|2005-09-29|Before: Mr P, Bignold J

CITATION : David Kettle Consulting v Gosford City Council & Ors [2005] NSWLEC 519

APPLICANT David Kettle Consulting

FIRST RESPONDENT Gosford City Council

FOURTH RESPONDENT Michael Azzopardi

FIFTH RESPONDENT Kim Azzopardi

Development Application :- Impact on groundwater levels KEY ISSUES: Status of right of way Impact on amenity of neighbours .

Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 LEGISLATION CITED: Rivers and Foreshores Improvement Act 1948 Water Sharing Plan for the Kulnura/Mangrove Mountain Groundwater Sources .

Pace v Gosford City Council [1999] NSWLEC 302; BGP Properties Pty Limited v Lake Macquarie City Council (2004) NSWLEC 399; CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336; Azzopardi & Ors v Gosford City Council & Anor (No.2) 119 LGERA 132; .

DATES OF HEARING: 18 and 19 August; 26, 27, 28 and 29 September 2005 EX TEMPORE JUDGMENT DATE : 09/29/2005

APPLICANT Mr P Tomasetti, barrister

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr M Fraser, barrister INSTRUCTED BY P J Donnellan & Co

SECOND TO FIFTH RESPONDENTS Ms C Kardell, solicitor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

05/10429 David Kettle T/A David Kettle Consulting v Gosford City Council and Ors

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal will be the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but will be available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ JUDGMENT 1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Gosford City Council (the council) on 20 April 2005 of Development Application 22097 of 2003 seeking a number of changes to the operation of a mineral water bottling facility (the site) located at the southern end of a right of way which extends, relevantly for these proceedings, from east to west at the end of Euloo Road, Peats Ridge. The address of the site is 229 Euloo Road, Peats Ridge. 2 The applicant in these proceedings is a consultant to Peats Ridge Springs Pty Limited (the company) which operates the mineral water bottling facility. The company is a subsidiary of Coca Cola Amatil Pty Limited. For convenience, it is appropriate in this decision to refer to the company rather than to the applicant. 3 These proceedings came to a hearing on the basis of proposed consent orders agreed between the company and the council. 4 On 11 August 2005, orders were issued giving effect to a determination by Bignold J, pursuant to s 39A of the Land and Environment Court Act 1979, that the second to the fifth respondents, being the members of the Azzopardi family, could be joined as respondents to the proceedings. For convenience, it is appropriate in this decision to refer to them as the Azzopardi family rather than as the second to the fifth respondents unless a member of the family needs to be identified specifically - if individual identification is required, I shall do so by name of that person. The Azzopardi family were joined with respect to an Amended Statement of Issues filed on their behalf.

5 With respect to a number of matters contained in that Amended Statement of Issues which canvassed points of law relating to the earlier consent, those matters have been reserved for judicial determination should I reach the conclusion that the appeal should be upheld and an approval given subject to conditions. I should indicate that I have reached the conclusion that such an approval should be given but subject to more stringent conditions and to a two-year trial period. 6 The site is located at the end of the right of way off Euloo Road at Peats Ridge. It has an area of ~ 23 hectares. The site is zoned Rural 1A under the relevant planning instrument and it currently operates as a mineral water bottling plant. It is conceded by the council in the proceedings that it has existing use rights which would encompass the purposes proposed in this application. The application, in the company's and the council's view, is permissible with consent. I therefore approach this appeal on this basis as any contrary proposition has been reserved for judicial consideration. 7 The present operations of the facility were approved by a decision of Hoffman C (see Pace v Gosford City Council [1999] NSWLEC 302). A number of changes are sought to these operations. In summary, they can be described as follows: o An alteration to the hours of operation (which are presently from 6 am to 11.30 pm Monday to Saturday with no work on Sundays or public holidays) to a three shift twenty-four hour per day operation with the same days of the week limitations; o A consequential increase in the number of employees; and o An alteration to the number of vehicles permitted per day from ten articulated vehicles and eight rigid vehicles to eighteen articulated vehicles.

8 There is, in the present consent, a provision which permits a truck movement after the hours of 6 pm up until 9 pm with the truck remaining overnight. The company, in its proposed traffic management plan (which is to be incorporated in the new conditions of consent), has abandoned this night time truck movement - thus resolving, in my assessment, at least one of the aspects of irritation to the Azzopardi family.

9 The most contentious matter is a proposal to increase, from the current maximum extraction of twenty-five megalitres per year to a maximum of sixty-six megalitres per year, the amount of water, bottled on the premises, that may be extracted from the underlying aquifer via a number of bores.

10 The site is in an agricultural and comparatively quiet setting. The Azzopardi family property to the east is used by them for the raising of commercial poultry and for vegetable and other horticultural production. The Azzopardi residence is located ~ 11 m from the centre of the sealed portion of the right of way from Euloo Road. The properties are both located in an area where there is a necessity for the extraction of water for agricultural and horticultural purposes and for domestic use and/or watering of stock.

11 The company has a number of bores on the site from which it is permitted to extract water for water bottling purposes and a number of other bores that are required for the purposes of monitoring. It is also reasonable to infer that there is at least one further bore, formerly known as Bore Number 2, which has been abandoned and may have been capped.

12 The Azzopardi family have, on their property, a number of bores which they use for either domestic and stock watering purposes (which are effectively unrestricted because of the modest demands made through them) and a commercial bore via which they extract water for, amongst other things, their chicken sheds. They also irrigate their horticultural plantings with water drawn from two dams across the streamway which crosses the site before flowing across the Azzopardi property.

13 There are a number of things it is important to note that these proceedings are not about rather than they are in fact about: o They are not about the matters which Bignold J has reserved for further consideration if the Azzopardi family pursue them in light of the decision that I have reached in this appeal; o They are not about the actions and processes of the Department of Infrastructure Planning and Natural Resources (the department) in determining whether or not to issue a licence to the company either in the terms of the existing licence and any basis of volumetric calculation based on the land area of the property or with respect to the proposed increased volume licence and any basis of volumetric calculation based on the land area of the property; and o The company's present application is not to be assessed on the basis of previous compliance or alleged non-compliance with existing terms of an existing consent or any activities that it might be alleged have been undertaken in breach of that consent or without consent. 14 I am obliged, in Class 1 proceedings in this Court, to presume that an applicant, if granted a consent, will abide by its conditions. If a consent holder does not, there are other avenues for interested parties, including in this instance (but not confined to) the Azzopardi family, to take action in either Class 4 or other proceedings in the Court's jurisdiction to deal with such alleged breaches.

15 There is a range of issues that are put in contention in these proceedings. It is my view that they fall into two quite separate and distinct bundles of topics. 16 The first is the community related water issues bundle. These issues traverse the question of whether or not there will be an adverse impact overall on the aquifer from which the company seeks consent to draw its increased allocation of water. The community view put to me is that it would be environmentally and socially appropriate for me to refuse the application on the broad public interest grounds pursuant to s 79C of the Act.

17 As I have indicated, I have not so concluded but, in for the most part on those broad grounds, I have concluded that there should be a trial period of two years rather than an open-ended consent.

18 The second bundle of issues that arise comprehend a number of specific matters of complaint by the Azzopardi family with respect to the operations of the company at the site. 19 These do not merely relate to the impact which the Azzopardi family consider that the increased extraction will have on or pose a threat to their water using activities (both from their bores and from the surface water that is trapped by their dam at the south-eastern end of their property from the streamway which passes through the company's property) but also relate to noise, light, hours of operation, traffic movements and the like.

20 I turn first to deal with the issues of generality concerning the impact on the aquifer. 21 Although it is put on behalf of the company that the application is made under a previous licensing regime, it is also acknowledged by Mr Tomasetti, counsel for the company, that I should have appropriate regard to a document known as the Water Sharing Plan for the Kulnura/Mangrove Mountain Groundwater Sources (the water sharing plan). This is a communally derived plan, made as an enforceable instrument by the Minister for Infrastructure Planning and Natural Resources, for the allocation of groundwater within the Kulnura/Mangrove Mountain aquifer.

22 The water sharing plan divides the area which is superjacent to the aquifer into eight zones. The site and the Azzopardi property are both located within Zone 8. 23 The water sharing plan sets out a number of calculations concerning the availability of groundwater within the aquifer as relevant to that zone. This is dealt with by reference to an average annual rate of recharge of the aquifer and permitted drawings based on the assumption of the correctness of this average annual rate of recharge. The relevant provisions, for Zone 8, are: o Clause 16 identifies the average annual rate of recharge as 9007 megalitres per annum; o Clause 18 makes an allocation of water for the environmental health of the aquifer of 6447 megalitres; o Clause 22 provides for an allocation of water for domestic and stock purposes of 445 megalitres per annum; and o Clause 25 provides for water to be available for general access licences of 694 megalitres per annum.

24 On my calculation, that leaves, within what is considered by the water sharing plan to be the safety margin, 1421 megalitres per annum as being available and unallocated.

25 I have also had the benefit in these proceedings of evidence given by Mr Hitchcock who was a member of the community committee involved in the preparation and formulation of the water sharing plan. 26 It was Mr Hitchcock's evidence that, in his opinion (he having taken part in an extensive process community consultation process to formulate the water sharing plan), it would be prudent to consider that that calculation of 1421 megalitres per annum as being available was overstated. The 1421 megalitres per annum should be discounted by 30 per cent, in his view. 27 If I were to conclude that the discounting that he proposes was appropriate - and, for the purposes of this decision, I am prepared uncritically so to adopt this assumption without testing its validity - there is still a volume of nearly 1000 megalitres per annum or thereabouts available. This volume, basing my calculation on his evidence, on these most pessimistic figures for take up out of the average annual recharge, could be extracted without significant impact on the aquifer. The application that is presently before me would represent marginally in excess of 4 per cent of that volume.

28 Importantly, in my consideration of the water sharing plan, there are a number of matters set out in the plan itself which are relevant. The first is the vision for the plan which is contained in cl 10(1) which says: "The vision for this plan is the sustainable, equitable and efficient use through integrated management of groundwater in the Kulnura/Mangrove Mountain groundwater sources to preserve, enhance and rehabilitate the environmental, social, cultural and economic uses of groundwater for the present and the future."

29 The water sharing plan then sets out in cl 13 a number of performance indicators. Relevantly, they require testing having regard to changes in the groundwater extraction relative to extraction limits; changes in groundwater quality; and the extent to which local water utility requirements have been met. There are other matters set out in the clause that are relevant but of a lesser nature.

30 In assessing whether or not there would be any adverse impact of permitting even a 4 per cent additional extraction from the available annual recharge, I have had the advantage of evidence given in the proceedings by Dr Beck, a hydro-geologist giving evidence on behalf of the company. 31 It was Dr Beck's evidence put in some detail, inter alia, in a statement of evidence of August 2005 where he deals with at pp 20 and 21 several modelling bases for assessing his conclusions and arrives at a variety of conclusions (set out at 4.3 of his report) based on that modelling that: o there would not be any impact on the closest hanging swamp which is located at 4.8 kilometres from the site; o there would be some impact on the draw down of water available on the Azzopardi property but not such as to render it of significance; and o the cone of depression that is created by the additional extraction would not have any impact on Mooney Mooney Creek (which he describes as being the nearest perennial stream) some 1.l5 kilometres from the site.

32 During an early stage of proceedings, Dr Beck drew a number of helpful diagrams on a white board which Mr Fraser, counsel for the first respondent, arranged to have photographed and which have been tendered as an exhibit in the proceedings.

33 These showed a visual depiction by Dr Beck of the fact that, in his professional opinion, a number of conclusions are appropriate to be drawn with respect to the drawdown of water both on the site and the Azzopardi property. It was his evidence that there would be no practical impact on the bores on the Azzopardi property and no impact on the streamway through the site crossing to the Azzopardi property.

34 The diagrams speak for themselves and show the present cones of depression caused by current extraction from the aquifer and what Dr Beck considered would be the cones of depression caused by the proposed increased extraction from the aquifer. His conclusion conceded that there will be some impact on the Azzopardi bores but not such an impact as to render them ineffective, ineffectual or useless - indeed, it was his opinion that there would be no practical impact on the ability of the Azzopardi family to draw water from their bores. 35 Mr Michael Azzopardi gave evidence of a decline in the volumes able to be pumped from the bores on the family's property. He gave this evidence by describing the form of testing of available volumes from each of the bores established by the driller at the time of the bores' sinking.

36 He also described the testing undertaken by his father to establish the current available rates of extraction of water from them.

37 Testing undertaken by the driller was based on using compressed air to blow water back out from the hole and testing undertaken by his father used a mechanical pump of unspecified pumping capacity.

38 I am satisfied that there is little (if any) scientific basis upon which I could make a volumetric comparison between the then and now, with any degree of certainty. In addition, I am faced with the further difficulty that his evidence on this issue is unsupported by any contemporaneous notes and merely relies on his recollected observations and on hearsay. I am therefore obliged to conclude that, if there has been any impact on the Azzopardi family bores, I cannot be certain to what extent this had taken place.

39 Mr Downs, a surface water expert, gave evidence that there would be no impact whatsoever on the volume of water which would flow down the streamway across the site and into the Azzopardi family dams. It was his evidence that this lack of impact was unrelated to the nature of the source of water flowing down the streamway.

40 On the other hand, Ms Pontifex, a long time local resident who has harvested ferns from the property to the north of the site, gave evidence that the water came from what she described as a spring bubbling up through the ground on the property to the north of the site across the right of way.

41 Mr Pace gave contrary evidence that it was his recollection that the water came from surface runoff from rain and, possibly, from further irrigation upstream of the dam to the north.

42 Both of these witnesses had, in the past, walked across the property to the north but neither had not done so in recent years.

43 It was Dr Beck's evidence that the water was likely to come from surface water from irrigation flowing into the dam or water which came into the dam could also be derived from the discharge of rainwater held in the immediate subsurface soil areas are upstream of the dam. However, it was his categorically evidence that it would not be derived from the aquifer by any spring sourced from the aquifer some distance below the surface.

44 It was also Dr Beck's evidence that there was not likely to be any impact on the streamway passing through the company's property and reaching the Azzopardi property as a consequence of the distance between the bed of the dam and streamway on the site on one hand and the aquifer underneath on the other. It was his evidence (notwithstanding some later evidence he gave concerning the influence of the dam on the site on water migrating to Bore 7 from that dam) that there would be negligible or no impact on that streamway by the proposed additional extraction. 45 However, the uncontradicted expert evidence of Dr Beck and Mr Downs is that, however the water was sourced that flowed down the streamway, this flow would not be impacted by the extraction of water, as part of this consent, using any of the permitted bores on the property into the aquifer.

46 In light of this uncontradicted expert evidence, which I accept in the absence of any evidence to the contrary, I do not need to reach any conclusion as to how the water so flowing is sourced.

47 Given this evidence and conclusion, I do not need to reach any conclusion as to the probability or otherwise of the correctness of any of the opinions expressed concerning the derivation of the streamway flowing water being the preferable position. I satisfied that each of the witnesses, lay or expert, gave evidence, in this regard, honestly and to the best of their knowledge or recollection. Had I been forced to express a preference, it would have been difficult to do so given the obvious sincerity with which the conflicting lay evidence was expressed on this point. 48 As part of these proceedings, I am obliged to consider what might be the impact, if any, of application of the precautionary principle and the consideration of environmentally sustainable development principles on the proposal.

49 Both Mr Tomasetti and Mr Fraser put to me that I should have sufficient certainty with respect to the acceptability of the proposed increased extraction volume, both on general bases and on the particularity of the lack of impact on the Azzopardi property, that I should in effect grant an unconstrained right to the company to the additional water that it seeks.

50 Ms Kardell, solicitor for the Azzopardi family, puts a number of contrary propositions, in the alternative: o Firstly, that I should reject the application (which I have indicated I do not propose to do); but o Second, that if I were minded to approve the application, I should reduce the volume to some number less than 66 megalitres per annum; or o Third, that, if I were not minded to reduce the volume, I should impose conditions and a trial period. 51 I am not prepared to reduce the volume below 66 megalitres per annum because there is absolutely no evidence before me that would justify me doing so. Trial period 52 However, McClellan CJ, in BGP Properties Pty Limited v Lake Macquarie City Council (2004) NSWLEC 399 at para 113, concisely sets out the application of the precautionary principle and the principles of ecologically sustainable development in Class 1 appeals. The paragraph reads: "In my opinion by requiring a consent authority including the Court to have regard to the public interest s 79C(e) of the Environmental Planning and Assessment Act obliges the decision-maker to have regard to the principles of ecologically sustainable development in cases where issues relevant to those principles arise. This will have the consequence that, amongst other matters, consideration must be given to matters of intergenerational equity, conservation of biological diversity and ecological integrity. Furthermore, where there is a lack of scientific certainty the precautionary principle must be utilised."

53 In these proceedings, I have evidence of a number of academic studies which are under way (with completion dates extending to an unknown time in 2007) which are dealing with the issues that relate to the long term health of the Kulnura/Mangrove Mountain aquifer. 54 I am satisfied, on the evidence that is before me from Dr Beck, that there is sufficient scientific certainty for me to permit the company to be permitted to extract an additional 41 megalitres of water per annum on a trial basis. 55 I am, however, not satisfied that I can, to the appropriate degree of comfortable satisfaction required on a Briginshaw v Briginshaw [(1938) 60 CLR 336] consideration, be certain that that should be permitted to happen on an absolutely unconstrained and open-ended basis - given the nature and importance of the Kulnura/Mangrove Mountain aquifer.

56 It is for that reason that I consider that a trial period should be imposed extending to 31 December 2007. 57 For reasons discussed with Mr Tomasetti during the hearing, I also consider that there should be a restriction on the amount of water extracted in a nominated shorter period - say twenty-eight days - to ensure that there is a degree of regularity in the extraction but with sufficient flexibility that a degree of variation in demand for product can be accommodated. The condition will, therefore, be to the following effect:

For the purposes of ensuring that there is no permanent adverse impact on the aquifer, the annual volume of water extracted from the aquifer is limited to 66 megalitres per annum with no more than 11 megalitres to be extracted in any twenty-eight day period.

The abovementioned annual extraction volume is subject of a twenty-four (24) month trial period. The twenty-four month trial shall commence from 1 October 2005 until 30 September 2007. An application under Section 96 of the Environmental Planning and Assessment Act 1979 must be made to modify this condition if permanency of the expanded annual extraction volume and/or alteration to the restriction on extraction in any twenty-eight day period is sought. Such application must not be made before 31 March 2007. 58 Imposition of such a condition will give some degree of probability that the studies will be completed in sufficient time for them to be taken into account in any s 96 application seeking to modify that condition. 59 I am fortified in my view that a slightly longer than two year trial period is appropriate by the conclusions of Mr John Ross, principal hydro-geologist at Parsons Brinkerhoff Australia Pty Limited, whose conclusions appear at p 223 of the attachments to Mr Michael Azzopardi's affidavit. 60 Mr Ross makes it quite clear that he is satisfied that, subject to the then proposed management model (which has been superseded and tightened by the General Terms of Approval), the increased extraction was appropriate to be approved. However, he does say that "a better numerical model based on a defensible conceptual model for the aquifer systems is required in time, say, after two years, to assess the likely draw down effects but additional site data is required to achieve this objective." The decision that I have given today will have the effect of doing so.

61 I am satisfied, from the evidence of Mr Roach, the company's plant manager at Peats Ridge, that there is no need for the company to make significant capital expenditure in order to produce at the higher rate. This means I am not requiring the company, should it choose to take up in this fashion, to risk significant economic disadvantage by doing so. 62 I well appreciate, given the evidence of Mr Wagstaff, the company's Manager - Corporate Relations, that it may involve the company re-considering some discretionary capital expenditure but it is that re-consideration will not relate to expenditure which it is necessary for the company to undertake in order to extract and bottle the additional 41 megalitres per annum.

Specific matters of concerning the Azzopardi family

63 A number of matters have arisen of detailed concern to the Azzopardi family and it seems to me that there are a number of issues relating to the conditions of approval and the General Terms of Approval provided by the department that warrant being re-visited. These are matters that I took the parties to during the course of the proceedings and I am able to address them with comparative brevity.

64 The first relates to a requirement in condition 2.3a of the department's General Terms of Approval that there is to be a cessation of all production under circumstances set out in that condition and the department notified of the circumstances. 65 Mr Tomasetti has indicated that an amendment to that condition requiring an automatic alarm system reporting if that requirement is triggered is acceptable. I determine that it is appropriate that such modification be made to that condition.

66 The second element of the General Terms of Approval that is, in my opinion, appropriate to be modified is that contained in 2.3d which requires that the monitoring data that is recorded by the company shall be supplied to the department annually if the department asks for it. 67 I am satisfied that that process is not sufficiently protecting both of the Azzopardi family's interest and of the interests of the community generally. That condition should be re-worded to require that that data will be provided on a quarterly basis to the council as the appropriate representatives of the local community. I am also satisfied that there is a sufficient interest in the Azzopardi family knowing the terms of that data that that data should be supplied to the Azzopardi family on the same quarterly basis.

68 Condition 2.4 of the General Terms of Approval requires that there shall be an interpretative hydro-geological report supplied to the department after a period of two years of groundwater monitoring. 69 One of the reasons why I consider the appropriate trial period to extend for a period beyond two years is so that there would be a realistic expectation that that interpretative hydro-geological report would be available prior to any determination of an extension of the licence. However, for the same reasons as for the monitoring data, I also require that condition 2.4 be amended so that a copy of that report will be provided to the council and to the Azzopardi's. Legal status of the streamway

70 A number of other matters have been raised which have potentially taken me into areas that ought not be traversed. 71 I note that, during the course of the hearing, I ruled that I was bound by a determination made by Sheahan J in earlier proceedings involving the Azzopardi family where his Honour dealt with in proceedings in Class 4 of the Court's jurisdiction as to what might be the appropriate status of the streamway across the company's property. He held, in Azzopardi & Ors v Gosford City Council & Anor (No.2) 119 LGERA 132 at p 151, that the watercourse was more of a swampy creek and does not have the necessary physical attributes to be a river. 72 I have therefore not embarked upon nor permitted Ms Kardell to embark upon any exploration of any issues that might arise under the Rivers and Foreshores Improvement Act 1948, those being matters that should go elsewhere in the Court's jurisdiction if they are to be canvassed further. Production wastage 73 There was arising, at one stage, the potentiality of a digression concerning the wastage of production discharge but I am satisfied on the evidence of Mr Pace and his marks on an aerial photograph that that discharge is into an absorption trench located on a parcel of land owned by the company but to the west of the site. From my examination of the aerial photograph and the topographical map, it is likely that any run off subsurface from that will be to the west rather than to the east and therefore any future elimination of wastage will have no impact on the streamway supplying water to the Azzopardi property.

Status and use of the right of way 74 I now turn to another of the specific matters that are raised by the Azzopardi family relating to the use of the right of way by articulated vehicles. 75 It was the evidence of the two noise experts who gave joint evidence in these proceedings, Mr Day on behalf of the Azzopardi family and Mr Ishac on behalf of the company, that they were in agreement as to what restriction regimes would apply depending on which set of circumstances I adopted as appropriate to apply for the site.

76 The choices are, essentially: o if I conclude that the right of way should not be treated as a public road where it passes in front of the Azzopardi farm, the EPA's Industrial Noise Policy may apply; but o if I choose to treat it as a public road there is no issue of applying that policy. 77 The starting point, therefore, is the terms of the Industrial Noise Policy which sets out, in 1.3, the scope of the policy. 78 It is clear from the terms of that clause that the policy specifically applies to premises which are scheduled under the Protection of the Environment (Operations) Act 1997. It is not argued in these proceedings that these premises are required to be scheduled under that Act.

79 However, the scope of the policy is further described as being available to local government and that they may find the policy helpful in the carrying out of its land use planning responsibilities, for example, the setting of targets in local and regional environmental plans. 80 I am therefore satisfied that, if I were to conclude that the right of way should not be treated as if it were a public road then it would be appropriate for me to consider whether or not the Industrial Noise Policy should apply to it. 81 For this purpose I need to describe the right of way in a little more detail.

82 The right of way extends from the conclusion of Euloo Road (which is at a point at or near the north-eastern corner of the Azzopardi property), from that point proceeding in a straight line west to an intersection of the right of way with Peats Ridge Road. The right of way is currently formed and sealed from the end of Euloo Road to the entrance to the driveway to the Peats Ridge Springs property. It is unformed from that point through to Peats Ridge Road. It is, as I have earlier noted, within ~ 11 m of the façade of the Azzopardi home.

83 Also of importance in this issue is whether there is an alternative access available to the company. There is, clearly from the topographic map, a number of buildings (at least one or two of which can reasonably be assumed, from the topographic map's markings, to be dwellings) that are at an equal or greater proximity to the unformed element of the right of way than the Azzopardi property dwellings are to the formed part of the right of way. These buildings are near to the intersection of the right of way with Peats Ridge Road.

84 Therefore, if I were to conclude that the Industrial Noise Policy should be applied in its entirety to any use of the right of way, I would be obliged to conclude (it being the agreement of Mr Ishac and Mr Day that no truck can comply with the industrial noise policy for passage across roads on private property with passage at these proximities to dwellings), that it would not be possible for trucks to access the site at all. Such a conclusion, it seems to me, is clearly an absurdity because, even if I were to refuse this appeal, the existing consent, subject to anything that might be done with respect to it in other proceedings before another member of the Court, would render such a decision ineffectual from the point of the Azzopardi fasmily.

85 I toyed with (but I rejected) simply saying to the Azzopardi family that the doctrines of equity might apply and that somebody coming to seek to apply the Industrial Noise Policy to a private road should come with clean hands, it being the uncontested evidence that the Azzopardi's move large trucks along a private road on their own property at hours up till 3 o'clock in the morning immediately adjacent to the residence of the owner of the property immediately to the east of their own property. Strict application of the Industrial Noise Policy to their activities would preclude them being able to carry out their own activities. It would have been easy but perhaps facile approach to do so and I do not choose to do so.

86 I choose, on the other hand, to conclude that the road should, in fact, be treated as if it were a public road. That may well raise difficult issues for Mr Fraser's client to consider as to whether or not it wishes to take the appropriate steps to formalise that notional status with respect to the expenditure of funds and the application for funds from funding sources for the maintenance of roads but that is a matter for another day in another forum and not for these proceedings.

87 I am satisfied that the road should be treated as a public road because: o First, it has been so treated, at least during the totality of the lifetime of Mr Pace who gave evidence to that effect. That evidence is not inconsistent with the evidence given by Mr Michael Azzopardi. o Second, I have no evidence there have been any steps taken at any time by any party who might have a right to do so to prevent the use of the right of way in any fashion that is allegedly contrary to the terms of the instrument creating the rights of way. 88 I do not propose to deal with this issue further at length. It seems to me that, as a matter of public policy, it would be inappropriate for me to exercise a discretion to impose a restriction on use of the right of way which might lead to the effect of closing the existing permitted commercial activities on the site in their entirety. Such a result applied to an existing permtted use (not a greenfields site) would not be in the public interest having regard to the objectives of s 5(a)(ii) of the Act.

89 There are a number of other matters which arise for consideration. I am satisfied that they do not need to be dealt with at length. 90 I note that the company has volunteered a condition that deals with the question of light spillage on to the Azzopardi property. 91 There is a restriction on the use of forklifts after hours. I am satisfied, from the view, that the noise that I heard of the use of the forklifts during daylight hours, that this is not unreasonable. I note that the company has agreed to a condition that requires the acquisition of quieter forms of forklift equipment. It would be reasonable to require that there be a time period for that to take place. However, as I have no evidence as to the availability or time period for that, that I should require that the existing forklifts be replaced with the proposed ones prior to the end of the trial period for the extraction of the increased volumes of groundwater - that is, by 31 December 2007. 92 There is a condition proposed by the council (which I do not understand to be vigorously pressed by Mr Fraser), relating to notification to the council of the installation of further plant and equipment on the site. I decline to impose it as it seems to me that it either restates the existing law and is therefore redundant or, if it seeks to go further than that, imposes an unreasonable burden on the company by virtue of the fact that phrase the installation of additional plant is not a defined concept and is capable of a vast array of interpretations. It therefore fails the question of certainty.

93 There is an issue in contention between the company and the council with respect to minor traffic management matters but I am satisfied that those matters could well be settled by these parties by discussion and that I do not need to make a determination with respect to those matters unless agreement cannot be reached.

94 There remain, on my count, four further matters that are raised on behalf of the Azzopardi family. 95 The first concerns the use of steel caged bottles. They are not presently used on site. There is, as I understand Mr Roach's evidence, no immediate intention to re-introduce them. It is put by Ms Kardell on behalf of the Azzopardi family that they are significantly noisy and that they should be prohibited. Although I am not satisfied that they should be prohibited, I do consider it would be reasonable that, if the company proposes to reintroduce them, the company should give the Azzopardi family three months notice of so doing. There should be a condition to that effect.

96 The second concerns the use of steel pallets. I have had no evidence concerning any actual use of steel pallets and I do not propose to impose any condition with respect to the use of steel pallets. 97 The third concerns the use of the fans on the bottling plant roof. It is my view that, on the information conveyed to me by Mr Tomasetti that the roof fans are properly consented to and there is no present intention of the company to undertake any activities on site that would require their activation, there should not be a requirement that they be disabled or removed. However, I do consider it would be appropriate that, if for some reason the company developed an intention to reactivate the fans, the Azzopardi family should be given three months notice of the company's intention to do that. There should be a condition to that effect.

98 The final matter is the question of whether or not the interpretation of articulated vehicles means semitrailers or B-doubles. I am not satisfied that any case has been made out for limiting the words articulated vehicles to ones with a single articulation rather than a double articulation. I decline to impose any additional condition in that regard.

99 As a consequence, the orders of the Court are: 1. The appeal is upheld; and 2. Development Application 22097 of 2003 for the intensification of groundwater extraction bottling operations on Lot 1 Deposited Plan 430586 at Euloo Road Peats Ridge is granted development consent subject to conditions. 100 Those conditions will need to be refined in light of the terms of the decision I have given this afternoon.

101 I therefore direct that: 1. the first respondent and the company settle the terms of those conditions and provide a copy of those settled conditions to the representative of the second to the fifth respondents; 2. those conditions are to be filed and served within fourteen days - that is they are to be filed by the close of business on 13 October; 3. if they are so filed, in a form agreed to by all parties, orders will be made giving effect to them terms of this decision; and 4. I grant liberty to the parties to re-list before me at 9am on two days notice if there are any matters arising out of my determination - but only to the extent of any dispute as to the drafting of the conditions.

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At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Parties

Cases Cited (2)

Cited By (2)