Drake & Ors; Auburn Council v Minister For Planning And Anor; Collex Pty Ltd

Drake & Ors; Auburn Council v Minister For Planning And Anor; Collex Pty Ltd - [2003] NSWLEC 270 - NSWLEC 1995 case summary — Zoe

[10]

The EIS (Exhibit XII) described the proposed development in the following terms: Collex intends to lease part of the existing Intermodal Facility from FreightCorp for the purpose of erecting a building for waste packing, weighbridge, administrative facilities and parking. The main activity to be conducted by Collex at the Transfer Terminal is compacting of putrescible waste for containerisation. Up to 500, 000 tonnes of waste per annum would be accepted at the Transfer Terminal and disposed of at the Woodlawn Bioreactor. It is anticipated that in that in the first year of operation a minimum of 150 000 tonnes of waste would be received by the Transfer Terminal and disposed of to Woodlawn. In the future additional volumes of waste may be accepted at the Transfer Terminal and disposal at other locations within NSW. It is proposed that waste would be delivered to the Terminal 24 hours a day. Trucks would enter the Transfer Terminal from Parramatta Road. The trucks would access the Transfer Terminal via a ramp on the eastern side of the building and then into the building. The waste would be pushed from the trucks onto the internal concrete tipping floor of the transfer building. The tipping floor would be cleaned and swept as required depending on the nature of the waste delivered. Dust sprays would by used to control dust in the building. Leachate would be directed into a separate holding tank and treated onsite separately in accordance with Sydney Water Corporation's requirements or sent off site to Collex's Liquid Waste Treatment at Camellia. Two SSI Model 4500 single compactors would be used to compact the waste prior to placement into purpose built 40 foot containers. The units are stationary machines which compact solid waste within the compression chamber into a slug of waste to a predetermined weight and size. A 40 foot container on a container trolley is then connected to the compression chamber and the compactor's access door is opened. The compacted waste 'Slug' is pushed into the 40 foot container using the compactors hydraulic ram. Waste would be collected from the tipping floor, fed to the slug compactor, compacted \and loaded into 40 foot containers. A CAT 966 or Volvo L50 front end loader or similar would be used on the tipping floor to load the slug compactor via a chute. After loading, the compactor's access door is closed and the container is either transported to the adjacent FreightCorp Intermodal siding or stored temporarily at the loading manoeuvring area. FreightCorp would be responsible for the movement and loading of the containers. If stacked, the empty containers could be up to three high and filled containers up to two high. The container rows would be served by two 15 metre wide aisles required for the safe operation of the forklift. Full containers would only be stored at the FreightCorp Intermodal until the next train, or for periods of up to 18 hours. All loading and unloading operations would be done I by an Omega Forklift or similar. Initially, one train each day would arrive at the Transfer Terminal between 10.30pm and leave the site around 3.00am. The train would carry up to 50 waste containers from the Terminal to the Crisps Creek Intermodal Facility. Once the train arrives at the Crisps Creek Intermodal, the laden containers would be unloaded from the train and transferred to semi-trailers for road transportation to the Woodlawn Bioreactor. Other destinations for disposal of the waste may be sought at a later date. A similar procedure would be followed at any other of these locations. The incoming containers would also be fully enclosed with sealing on doors to control inbound odour and dust potential. In accordance with the Condition of Consent Number 29 issued for the Woodlawn Bioreactor all containers would be air and water tight. Pressure venting valves are provided with carbon filters to contain odour during venting. In the future waste may also be transferred off site to other disposal locations by 1 truck. Materials may also include recyclable products including concrete, rubber, timber and organics that would be transferred to a materials recovery facility. 5.3.2 Description of the Site Facilities A site layout plan of the proposed development is shown in Figure 5.3.1. The components of the design shown on Figure 5.3.1 include: · transfer building with a large tipping floor and basement compactors; · Office and amenities building; · Entrance and exit road sharing a gatehouse and weighbridge; · Entry and exit by-pass lane for other site facilities; · Weighbridge and gatehouse; · Car parking area; · Landscaping; and · Rail sidings (not subject to this DA). Each of these components is described in detail below. Transfer Building A photomontage, plan and elevation for the transfer building are shown in Figure 5.3.2a, 5.3.2b, 5.3.2c, 5.3.2d and 5.3.2e. The transfer building would consist of a tipping floor 64 metres long by 35 metres wide with an annexe of 32 metres by 12 metres housing the compacting equipment at basement level. The size of the tipping floor has been determined by the average week day loadings which could be held on the tipping floor during a breakdown or an emergency. At the initial planned throughput of 150 000 to possibly in excess of 500 000 tonnes per annum, the typical quantity of waste on-site at any time would be up to 1400 tonnes in the transfer building and 1400 tonnes held in containers awaiting shipment. The transfer building would be constructed using a steel frame to support the zinc coated or colorbond steel roof sheeting and wall cladding. The use of two different colours (off white and river gum green) would be used to help improve the appearance of the building. Three metre high precast concrete external walls at tipping floor level would be provided to help protect the structure. The building would be ventilated through openings on all sides. A longitudinal ridge ventilator would be used to vent the roof. There would also be ventilation gaps between the roof and walls. The areas of openings would be minimised consistent with requirements for safe operation of the Transfer Terminal. Combined with a fully opened entrance and exit doors, the proposed arrangement would provide a well ventilated interior. The compactor locations would be diagonally offset, 4.5 metres below the tipping surface, along the southern wall of the transfer building. Metal dust hoods would be located at the top of the waste chute to minimise the potential for movement of dust throughout the building. Office and Amenities A two storey annexe located along the northern wall of the transfer building would house administration offices and staff amenities and allow supervision of activities within the transfer building. Entrance/Exit Road The entrance to the site would continue to be directly off Parramatta Road via a new signalised intersection which would be constructed as part of the works. The entry and exit road to the Transfer Terminal would be upgraded in include an entry and exit either side of the new gatehouse and weighbridges and an entry and exit bypass lane. Traffic would continue to use the existing roads once within the site. New entry and exit roads would be provided to and from the transfer building. Traffic would enter the transfer building on the eastern side via a ramp and exit from the northern side. Figure 5.3.3 shows the proposed traffic flow within the site. All roads within the Terminal would be sealed. Weighbridge and Gatehouse A new gatehouse and dual weighbridge would be located at the entrance to the FreightCorp Intermodal which is approximately 160m from the site entrance off Parramatta Road. All vehicles entering and leaving the Transfer Terminal would be weighed unless already weighed at another facility. An entry by-pass lane would be located to the east of the weighbridge. Vehicles wishing to use other facilities on the site would use this lane.

[15]

For example in the "Executive Summary" to the EIS the following statement is made under the heading "Rail Operations". Rail Operations FreightCorp, a NSW Government owned rail organisation, owns and operates a rail freight intermodal terminal on Lot 201 of DP10076683. The Clyde Intermodal Facility has been owned and operated by FreightCorp since 1 July 1996 and was previously owned and utilised by the State Rail Authority as a goods yard and other rail related purposes. For at least the past 15 years the Intermodal Facility has been used for the transfer of containerised freight between road and rail. Vehicle movements are estimated to have been as high as 350 container trucks per day. FreightCorp has advised Collex that, in anticipation of the container transport contract, the Clyde Intermodal Facility has not been operated to its potential capacity. After factoring in the Collex proposal container movements would not exceed previous operational movements. FreightCorp intends to carry out works at the Clyde Intermodal Facility to improve overall container management for Collex and other customers requiring the removal of tracks and the construction of a hardstand area. Accordingly, these changes would require the transfer of some train handling activities from the Clyde Intermodal Facility to the Enfield Marshalling Yards. After allowing for train movements for the Collex proposal it is expected that there would be an overall reduction in train movement in the Clyde Rail Yard. Collex intends to lease part of the existing Intermodal Facility from FreightCorp for the purpose of erecting a building for waste packing, weighbridge, administrative facilities and parking. FreightCorp would have responsibility for movement, storage, loading and overall logistical management of containers used for waste transport and currently hold a licence issued by the Environment Protection Authority for the storage, transfer, separating or processing of waste on land comprising the Clyde Intermodal Facility. Collex has been advised that FreightCorp intends to amend the geographical boundaries of its existing licence within Lot 201 DP 1007683 to accommodate revised site arrangements required for the Collex proposal. C. IS THE PROPOSED DEVELOPMENT PERMISSIBLE DEVELOPMENT?

[32]

The LEP contains definitions of other terms used in the LEP which are potentially relevant to the classification of the proposed development. These are the following: Junkyard means land used for the collection, storage, abandonment or sale of scrap metals, waste paper, rags, bottles or other scrap materials or goods or for the collecting, dismantling, storage, salvaging or abandonment of automobiles or other vehicles or machinery or for the sale of any parts of such automobiles, vehicles or machinery. Materials recycling depot means land used for the collection, storage, abandonment or sale of scrap metals, waste paper, rags, bottles or other scrap materials, or for the collection, dismantling, storage, salvaging, or abandonment of vehicles or machinery or the sale of their parts. Offensive industry means an industry which, when in operation and when all measures proposed to reduce or minimise its impact on the locality have been employed (including, for example, measures to isolate it from existing or likely future development on other land in the locality), would emit a polluting discharge (for example, noise) in a manner which would have a significant adverse impact on the locality or on existing or likely future development on other land in the locality, but does not include any form of development defined elsewhere in this Schedule. Offensive storage establishment means any establishment where goods, material or products are stores which, when in operation and when all measures proposed to reduce or minimise its impact on the locality have been employed (including, for example, measures to isolate the establishment from existing or likely future development on other land in the locality) would emit a polluting discharge (including, for example, noise) in a manner which would have a significant adverse impact on the locality or on the existing or likely future development of other land in the locality, but does not include any form of storage establishment or warehouse or distribution centre defined elsewhere in this Schedule.

[38]

Collex advanced the following written argument in support of its contention: 1. The land proposed to be developed is zoned Industrial Enterprise Zone. In that zone the only development allowed without consent is exempt development: see sub-clause 20(2) to the Auburn LEP. Development that requires consent is a list of nominated developments which includes, relevantly, freight transport terminals : see subclause 20(3). 2. Freight transport terminal is defined in Schedule 1 to mean a building or place used for the principal purpose of the bulk handling of goods for transport by road or rail, including facilities for the loading and unloading of vehicles used to transport those goods and for the parking, servicing and repair of those vehicles, trains or carriages. 3. Development which is prohibited in Zone No 4(c) is development not included in subclause (2) or (3): see subclause 20(4) to the zoning table for Zone No 4(c). 4. Development will only fall within subclause (4), and hence be prohibited, if the development does not fall within a development described in subclauses (2) or (3). If development does fall within either subclauses (2) or (3), there never would be a need to go to the question of whether a development could also be characterised as a development that is prohibited. The structure of the table to Zone No 4(c) is therefore similar to the zoning tables in Friends of Prior Park Inc v Ryde Council [1995] NSWLEC 160 (25 September 1995) Bignold J and Pilley v Maitland City Council, unreported, LEC Nos 20058 of 1996 and 20088 of 1996, 21 October, 1996, Pearlman J, and is to be contrasted with the zoning table in Egan v Hawkesbury CC (1993) 79 LGERA 321. 5. The development is not exempt development, hence does not fall within subclause (2). 6. Accordingly, the question is simply whether the development falls within one or more of the nominate developments in subclauses 2 or 3 of the zoning table for Zone No 4(c). 7. The proposed use involves the following factual elements: (a) the delivery of goods to the site, in bulk. The garbage is in bulk form from the time the householder consigns a particular item to the bin. The bulk containers simply get larger. Garbage is delivered to the site in a manner of bulk handling, being an aggregation of (already bulk) consignments in a compactor garbage truck; (b) the unloading of that consignment in a bulk way, namely, the tipping of the consignment (hydraulically) without manual handling; (c) the trucks bringing the bulk waste terminate there in the sense that the delivery goes no further. The bulk goods they have collected and delivered are handled there as follows; (d) the aggregation of those goods with other goods of a similar nature (but not the sorting of those goods); (e) the movement of those goods in a bulk way, namely, by front-end loader; (f) that movement being for the placement into a process (the compacting) which serves the sole purpose of preparing the goods for rail transport (in a bulk manner which is enlarged from the manner of handling when originally delivered to site, i.e. the compacted slug comprising a collection of the goods far in excess of the collection when arriving on site) (g) the actual compacting of those goods, (for rail transport to Woodlawn, whereat the containers are emptied). 8. In the factual circumstances set out in paragraph 7 above, it is clear that the development falls within the definition of freight transport terminal (a) Bulk: The development, involves waste arriving in bulk. Bulk is defined in the Macquarie Dictionary to be 3. goods or cargo not in packages, boxes, bags, etc . (b) Handling: When the waste arrives at the terminal, it will be handled. Handling is defined in the Macquarie Dictionary to involve 3. the process of packing, moving, carrying or transporting something. The development application proposes the moving, carrying and packing of the waste into containers, which containers are to be loaded onto rail carriages for transportation to Woodlawn. This process falls within the concept of handling. (c) Goods: The waste can be described as goods. The plural of "good" is defined in the Macquarie Dictionary to be 43. possessions, esp. moveable effects or personal chattels. 44. articles of trade; wares; merchandise; esp. that which is transported by land. Goods and chattels is defined to be all movable properties.

[103]

Auburn Council's written submission included the following comments on cl 64: 5.2 Clause 64 Staged Development Provisions Clause 64 Staged development is a provision contained within the Auburn Local Environmental Plan 2000 which aims to provide a coordinated planning outcome to the three large redevelopment sites within the Auburn Local Government Area. These sites are identified in Schedule 7 Part 1 as; a) Lidcombe Hospital Site b) Clyde Marshalling Yards and c) Royal Australian Air Force Site (R.AAF) Each of these sites have been earmarked for redevelopment by the relevant state and federal governments and are each in excess of 35 hectares in area. The Clyde Marshalling Yard was included in the provision as during the LEP preparation process Rail Estate advised Council that it sought to rezone surplus land within the Clyde Marshalling Yards Site. At the time (mid 1998) the rail authorities did not have a redevelopment plan for the site. In the draft Local Environmental Plan that was adopted by Council and forwarded to parliamentary counsel, these three sites were included in a masterplan provision ie the dLEP required a masterplan to be adopted on each of these sites prior to them being redeveloped. Parliamentary Counsel substituted the masterplan clause with a staged development provision. Clause 64 has the effect of requiring a staged development application for the Clyde Marshalling Yards which is shown distinctly on the LEP map as encompassing the entire Clyde Marshalling Yards Site. The comprehensiveness of the Schedule 7 ensures that all matters relating to development of the Marshalling Yards are considered in the first staged development application. Each subsequent application then must consider the first stage to ensure that it is consistent with the first stage. 5.3 Collex's Interpretation of Clause 64 Collex are arguing that each of the provisions contained in Schedule 7 should only relate to the site to which their operation is located. The EIS states it is emphasised that Section 64 does not require the first development consent to apply to all of the Clyde Marshalling Yard. In this regard it provides that development consent may be granted for the whole or any part of the Clyde Marshalling Yard. The Dec EIS refers to the Aug EIS on this matter, 5.4 Council's Response The basis of Collex's argument is on the strength of the words the whole or any part. If the words any part were not included in the clause the entire staged development process would not work as it would not be permissible to lodge a stage 2 development application that related to a part of the site by virtue that consent could only be granted for the whole site. It is Council's position that the consent authority can not grant consent to this development as it does not form part of a staged development application and that it has not adequately addressed schedule 7. Collex have chosen to deal with Clause 7 as if it applies to the subject site only and if the application was approved the opportunity for the subsequent stage development applications to be consistent with the first would be lost leading to uncoordinated development pattern. The isolationist approach to dealing with the site as taken by Collex was exactly what Clause 64 was designed to prevent.

[105]

The Assessment Report continues: For the staged development provisions of the ALEP 2000 to be invoked at the Clyde Marshalling Yards, the Department considers there is a need for a master plan that includes Council's general considerations for the Yards as a whole. Indeed, Auburn Council, in its input to Director-General's Requirements for the EIS, stated that by virtue of Clause 64(1) of the ALEP 2000 it is necessary for development applications to form part of an overall redevelopment plan for the Yards. In the absence of such a plan, there is limited scope for this development to address, in the context of the Yards as a whole, the matters listed in Part 2 of Schedule 7. The Department considers the need for the development to be staged becomes redundant in the absence of a master plan. The EIS lists the regard that has been taken to all of the matters listed in Part 2 of Schedule 7. Auburn Council comments on the EIS indicated that Collex should check other reports that have been prepared for the site and check future plans for the site with the land owner. On these matters the SETS indicated that the future plans involved areas of the site that are remote from the proposed development, and the development would not be out of character with the industrial environment. The Department is of the opinion that the Applicant has addressed the matters listed in Part 2 of Schedule 7 to the greatest extent practicable. Matters under this part that could be further explored by the Applicant should approval be granted can be identified in appropriate conditions of consent, for example as community enhancement programs. These include the Applicant's participation in the preparation of a master plan for the Clyde Marshalling Yards, and in the provision of a cycleway and riparian zone protection adjacent to the Duck River. The Department considers any notion that the Applicant develop a master plan for the Clyde Marshalling Yards site,, or participate in development of a master plan before the proposed development is determined, to be unreasonable given the small part of the site to be covered by the proposed development, ie. approximately 3% of the total Marshalling Yards site. The Department also considers it unreasonable to force an Applicant into a master plan development process after submitting a DA, which may potentially disadvantage or preclude its development proposal.

[155]

The Department's Assessment Report deals with this issue in the following passages at pp 46-47: The Department considered some of the reasons cited in the SETS for rejecting sites lacked substance and were comparable to difficulties also associated with the preferred option. In order to fully develop its position, the Department carried out a desktop assessment of possible options for providing a linkage between waste generation in the northern Sydney region and rail transport to Woodlawn. The Department's assessment identified eight options and within some of the options a range of alternatives sites for waste compaction and/or waste transfer onto trains. The text of the Department's assessment is provided at Attachment A. The conclusions that may be drawn from the Department's assessment are as follows: · There is a range of configurations for waste compaction, containerisation and transfer to rail transport that could provide a linkage between the generation of waste in the Sydney region and the rail transport of waste from Sydney to Woodlawn. The, Clyde proposal is therefore not essential to provide such a linkage; it is only an option that happens to be preferred by the Applicant. · There are possible arrangements that may offer important environmental benefits over the proposed Clyde alternative. These arrangements. principally involve the containerisation of waste at existing waste transfer infrastructure within or in proximity to its locality of origin with subsequent road transport of the packed containers to a railhead for loading onto a train. The 1999 contract between the Applicant and the former Northern Sydney Waste Board appears to address such an option. · There are other possible locations for a new combined containerisation and transfer facility such as Camellia, however these were dismissed by the SEIS in some cases with inadequate justification Waste Service owns waste transfer stations at Belrose, Artarmon and Ryde in the northern Sydney region, and at Seven Hills, Auburn, Chullora and Rockdale. At the time of drafting the EIS and SEIS, the Applicant had been unable to come to an agreement with Waste Service NSW on the use of its waste transfer stations. Subsequent to the issue of the SEIS, Waste Service revised its policy on competitor access to its transfer stations, making them available subject to certain conditions. The Department considered a number of proposals involving the use of existing Waste Service transfer stations for containerising the waste prior to its acceptance at the Clyde site. One such proposal involved the following arrangements: · The waste is contracted to the Applicant · The Applicant pays for the installation of specialist compaction equipment in the Waste Service transfer station(s) · The Applicant pays Waste Service for the use of its transfer station(s) · The Applicant receives the pre-containerised waste at the Clyde facility for transfer onto trains for Woodlawn. Another proposal involves: · The waste is contracted to Waste Service · Waste service pays for the installation of specialist compaction equipment in the Waste Service transfer station(s) · Waste Service pay the Applicant to dispose of the waste by receiving the pre-containerised waste at the Clyde facility for transfer onto trains for Woodlawn. In both the above scenarios, the cost of disposing the waste (at Woodlawn) would be greater than the current cost of disposing the waste directly to a Waste Service landfill in Sydney (ie. Belrose, Eastern Creek, Lucas Heights or Jacks Gully), principally because of the margin associated with the additional transfer step at Clyde. The cost differential can be substantial to either the Applicant or Waste Service. The Applicant advised the Department it has no current arrangement or viable basis for participating in the changed policy of Waste Service, and in any case it has fundamental difficulties with the anti-competitive nature of the conditions. The Department also has concerns about these conditions under the competition provisions of the Trade Practices Act 1974, and over broader issues of competition policy outside that Act. The overall effect of such a proposal could be to remove Collex as a potential competitor with Waste Service for the management of MSW from the Sydney region, with Waste Service reverting to its previous position of a virtual monopoly. In any case, the Department is not in a lawful position to force an Applicant to enter into a commercial agreement with another entity, even if such an agreement is believed to achieve enhanced environmental outcomes over the proposed development. The responsibility is with the Applicant and the other party to make such business decisions. Since the Applicant has chosen not to pursue an alternative strategy, the Department must assess the development application as submitted, and make recommendations to the Minister for his determination having regard to the matters listed for consideration in the legislation. Further, the Department is mindful of the competition provisions of various legislative regimes and policy requirements. These are outside the scope of this development application.

At a glance

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Judgment (174 paragraphs)

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Cited By (4)