This is an appeal against the refusal of an application under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) to modify an existing development consent that provides for the use of Lots 1-116, DP 1784, Burfitt Road, John Street and Mary Street, Schofields (the site) for a waste disposal depot, subject to conditions.
The application seeks to delete condition 2.2(ii) which states:
2.2(ii) The waste received shall be restricted to the waste carried by the Applicant in his own vehicles and those vehicles must be licensed to transport waste with this Authority and the depot shall not be open to passing trade or the receipt of any waste from any other source.
The application seeks to replace condition 2.2(ii) with the following condition:
2.2(ii)(a) the operating hours of the waste disposal depot shall be limited to Monday to Friday 6am to 5pm; Saturdays 7am to 3pm; no operation on Sundays or public holidays.
(b) the waste disposal depot shall not receive any greater than 500m3 of waste per day into the depot; y
(c) there shall be no more than 60 truck movements into the depot and 60 truck movements out of the depot on any one day;
(d) in the event that waste is to be received from any source other than the applicant his servants or agents, then the applicant shall prior to receipt of that waste ensure that:
● the waste can be lawfully received at the depot;
● the person proposing to deposit the waste is licensed to transport the waste;
● the waste is appropriately certified from its source, if necessary
[2]
The site
The site has an area of 3.2ha and has frontages to Burfitt Road, John Street and Mary Street, Schofields. It falls towards the east and surrounding land also falls generally to the east. The site is occupied by various sheds and stockpiles of materials and is devoid of any landscaping other than grasses and some perimeter planting.
The surrounding land is rural residential with a mix of dwelling types on hobby farms. A former landfill site is located across Burfitt Road to the north and a green waste processing facility is located to the east of the site.
[3]
The contentions
The council maintains that the refusal of the application is justified as the modification is:
not substantially the same as the development originally approved,
not of "minimal environmental impact",
not able to be properly considered, particularly whether it would be classified as "designated development", and
flood liable, unsuitable on its merits and inconsistent with the anticipated character of the area.
[4]
Relevant planning controls
On 14 March 1978, consent was granted to use the site for a "Waste Disposal Depot" (the 1978 consent). The applicant was Mr D Hlebar. The 1978 consent was granted under the provisions Interim Development Order No.133 (IDO 133). It was not clarified whether the site was zoned Non-Urban "A" or Non-Urban "B" under IDO 133 but nothing turns on the zoning given that the parties accept that the proposed use was a use that may be carried out with the consent of the council in both zones. Relevantly, cl 17 of IDO 133 provides a range of matters to be considered in determining an interim development application.
Blacktown Local Environmental Plan 1988 (LEP 1988) was gazetted on 28 October 1988. The site was zoned 1(a) General Rural under LEP 1988. LEP 1988 was the local environment plan that applied at the time of the lodgement of the subject application on 1 June 2014. LEP 1988 was superseded by Blacktown Local Environmental Plan 2015 (LEP 2015) which was gazetted on 7 July 2015. The site is zoned RU4 - Primary Production Small Lots under LEP 2015.
The site is currently within the area controlled by State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP 2006). SEPP 2006 was gazetted on 28 July 2006, and applies to all land within the North West and South West Growth Centres. Clause 2(a) provides the following aim:
(a) to co-ordinate the release of land for residential, employment and other urban development in the North West Growth Centre, the South West Growth Centre and the Wilton Priority Growth Area,
The Precinct Planning Map includes the site as being within the North West Growth Centre. The site falls within the Schofields West Precinct but has not been identified as being released or rezoned. Unsurprisingly, no evidence could be produced on the future use of the site or surrounding area under SEPP 2006.
[5]
The legal framework
Section 96(1A) of the Environmental Planning and Assessment Act 1979 states:
(1A) Modifications involving minimal environmental impact
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the proposed modification is of minimal environmental impact, and
(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(c) it has notified the application in accordance with:
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1), (2) and (5) do not apply to such a modification.
Section 96(1A) provides two pre-conditions to the modification of the 1978 consent. First, the Court must be satisfied that "the proposed modification is of minimal environmental impact" (s 96(1A)(a)) and second, the Court must be satisfied that "the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)" (s 96(1A)(b)).
A failure to satisfy the Court on either of the two pre-conditions must see the application refused and the appeal dismissed.
[6]
Is the modification "substantially the same"?
The submissions
Ms Reid, for the applicant submits that it is necessary to understand precisely what was approved in the 1978 consent. The relevant authorities are:
a consent operates in rem; (Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 at [324]),
the consent must speak according to its written terms, construed in context but having regard to its enduring function (House of Peace v Bankstown City Council (20000) 48 NSWLR 498 at [37]; Auburn Municipal Council v Szabo (1971) 67 LGRA 427),
the scope of an extant development consent, which is a species of existing use rights, may be determined by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date (House of Peace at [38] and Shire of Perth v O'Keefe (1964) 110 CLR 529),
the general approach to be taken is one of construing the 'use' broadly (North Sydney Municipal Council v Boyts Radio and Electrical Pty Limited (1989) 16 NSWLR 50 at [59]),
the enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later (House of Peace at [41]), and
any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject (Royal Ryde Homes at [324]).
Ms Reid submits that there is nothing in IDO 133 that assists in the construction of the 1978 consent. Clause 17 of IDO 133 provides the matters for consideration on a development application. The town planning conditions imposed by council reflect an assessment of those matters.
Having regard to the established principles of construction of a development consent and the specific terms of the 1978 consent, it is plain that there was no limit on:
the hours of operation;
the number (or size) of vehicle movements per day; or
the volume of waste that could be transported to the site per day.
In 1977-78, the Metropolitan Waste Disposal Authority (the Authority) was a body constituted under the Waste Disposal Act 1970 (the Waste Act). The responsibilities, powers, duties and functions of the Authority were prescribed in Part IV of the Waste Act. Relevantly, the functions of the Authority were to ensure the safe and efficient disposal of waste in the waste disposal region. Those functions included registration and licensing of depots and vehicles and authority to charge fees for waste received at a depot. The functions and responsibilities of the Authority were not dissimilar to those now undertaken by the EPA. Condition 2(2)(ii) was imposed after the Authority advised council of its requirements for the development application.
Relevantly, the Authority's functions related to broader environmental considerations of an application, rather than town planning functions, which were the responsibility of the council.
Considered in context, and broadly, condition 2.2(ii) of the 1978 consent merely:
restricted the waste to be received on the site to waste carried by theowner of the site in his own vehicles (those being vehicles licensed by the Authority to transport waste),
required that the tip not be open to passing trade, and
required that the tip not be open to accept waste from any other source than that controlled by the owner of the site.
Ms Reid submits that the requirements of condition 2.2(ii) were directed to the source of the waste, and presumably ensuring the control of the quality of the waste by limiting its source to the waste collected by the recipient of the development consent. The reference to not being able to accept waste from 'passing trade' is also probably a reflection of the same concern, being there is a greater risk to the environment by receiving waste from unknown sources such as those simply from 'passing trade'.
Ms Reid does not accept that there is a current restriction on the waste facility, which limits waste receipts to only those carried by the operator which presents a significant operational constraint on the type and form of waste disposal facility that is allowed to operate. When the 1978 consent is properly construed the operational restriction on the owner of the vehicles may practically operate as a constraint on the current operator however if the site were sold to an owner with a fleet of vehicles, such as 'Dial-a-Dump' or the like, the use would continue without constraint in accordance with the terms of the 1978 consent, albeit at a greater intensity than the current operator.
Any further concern that by allowing public or commercial access to the depot could cause the facility to significantly change its nature, scale and operational characteristics must be considered with respect to the terms of the 1978 consent. The only limit in the 1978 consent on the volume (intensity) of waste to be received on the site is the physical capacity of the site. The council anticipated, by the terms of the 1978 consent, that the operator could choose how quickly, or how slowly the site was filled. The amendment will not increase that impact, but will rather control receipt of waste by conditions not previously imposed.
Further, when read in context, the limit on access to the site by 'passing trade' in condition 2.2(ii) was a limitation to ensure the environmental quality of the waste rather than a limit on the amount of trucks frequenting the site. The proposed conditions provide a more modern method of control to ensure that the waste is lawfully disposed of, and certified if necessary.
Notwithstanding that condition 2.2(i) will remain, any concern that the proposed amendment could also result in a significant change in the nature and type of waste streams being received is unfounded. As long as condition 2.2(i) is complied with, and there is no assertion that it will not, the Court would be satisfied that the waste to be delivered to the site would remain restricted to solid wastes only.
The concern of the council that the Court must have information to consider how these operational or physical development changes would be implemented or managed is unnecessary. The applicant does not propose any physical changes. The waste would continue to be transported to the site in accordance with the 1978 consent. The matters referred to in proposed condition 2.2(ii)(d) clearly anticipate that prior notice of delivery of waste is required before it is accepted and the owner has the same responsibility as the current condition 2.2(ii) to ensure the quality and stream of the waste.
the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8);
the term "substantially" means "essentially or materially having the same essence " (Vacik endorsed in North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163; (1998) 43 NSWLR 468 at [440] and Moto Projects (No 2) Pty Ltd v North Sydney Counci/ [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]);
in approaching the comparison exercise care needs to be taken that because the development was for a certain use and that as amended, the proposed use will be for precisely the same use, it is substantially the same development. (Vacik; at [14])
the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]).
If the submissions of Ms Reid and Ms Heger are considered in the context of the applicable law, I am satisfied that the conclusions of Ms Heger should be preferred for a number of reasons. First, I do not accept that a fair reading of condition 2.2(ii) could result in the meaning suggested by Ms Reid that the only limit on the intensity authorised by the 1978 consent is the natural limits of the capacity of the site to receive waste. These, or similar words are absent from condition 2.2(ii) and cannot be inferred given the specific words that limit waste to "waste received shall be restricted to the waste carried by the Applicant in his own vehicles …" in the condition. I agree with Ms Heger that that condition imposes a limitation on the volume of waste to be received and associated number of truck movements by limiting the volume of waste to that which the applicant can carry by "his own vehicles" and prohibiting the applicant from receiving waste from "any other source". Ms Reid's submission that there are no time limits on the operation of the facility is correct however there is nothing in her submissions and authorities on the interpretation of consents that could be seen to allow unlimited truck movements or waste receival based on the specific terms of original condition 2.2(ii).
Second, and while no evidence was provided on the amount of waste and truck movements around the time of the 1978 consent (or why condition 2.2(ii) was imposed the way it was) I agree with Ms Heger that it is reasonable, given that the consent is some 38 years old, that the amount of waste and truck movements would likely be much less than that which is proposed under new condition 2.2(ii). In 1978, the site would have been a considerable distance from most sources of waste. It is also likely that in 1978, for efficiency and economics purposes, waste would have been deposited at closer locations to the source of the waste rather than longer trips to the site. In any event, and if the more recent evidence of the applicant's actual operations from 2005 to 2016 is used: an average, of 1600 cu m of waste per six-month period is brought to the site. This needs to be compared to the potential maximum of 500 cu m per day, which is some 56 times the actual average volume of waste from 2005 to 2016. In the absence of any quantities of waste and truck movements around the time of the 1978 consent, I am satisfied it is reasonable to rely on the average volume from 2005 to 2016 given that the 2005 to 2016 figures are likely to be higher than the 1978 figures. As stated in Vacik, the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development. The applicant provided no evidence to refute the submissions of Ms Heger on the likely waste and truck movements around the time of the 1978 consent based on more recent data.
Third, and even though condition 2.2(ii) appears to have been the result of consultation with the Authority whose functions were to ensure the safe and efficient disposal of waste in the waste disposal region rather than the council whose functions addressed those matters in cl 17 of IDO 133 that related to general town planning and engineering functions associated with amenity and road safety impacts: the 1978 consent needs to be read as a whole and not separated into parts on the basis of the source of any conditions on the approval.
[7]
Is the modification "of "minimal environmental impact"?
Having reached the conclusion that the proposed modification to condition 2.2(ii) would allow a significantly larger volume of waste to be received and number of truck movements to the site based on the likely volume of waste received and number of truck movements at the time of the 1978 consent; it follows that the modification is not of minimal environmental impact.
Consequently, the application must be refused and the appeal dismissed as the application does not satisfy the pre-condition in s 96(1A)(a) of the EPA Act.
Based on the conclusions reached in the preceding paragraphs, it is not necessary to address the other contentions relating to insufficient information.
[8]
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. The application to modify an existing development consent that provides for the use of Lots 1-116, DP 1784, Burfitt Road, John Street and Mary Street, Schofields for a waste disposal depot is refused.
3. The exhibits are returned with the exception of exhibit 1.
G Brown
Commissioner of the Court
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 September 2016
Having regard to the proper construction of the 1978 consent, the Court would be satisfied that the proposed modification will have a minimal environmental impact, and indeed will have a lesser impact than the 1978 consent.
Ms Heger, for the council comes to a different conclusion. She submits that the applicant bears the onus of demonstrating to the Court that the development as modified is "substantially the same development". Any reliance on a submission that the applicant is currently permitted to operate a waste disposal depot with no limitation on the volume of waste that can be received at the site or on the number of permitted truck movements is incorrect. Similarly, the modification application that proposes to continue that permitted use, but with a limitation on the volume of waste that can be received and the number of truck movements is acceptable because the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted is also incorrect.
Ms Heger submits that such an approach fails to appreciate the purpose and effect of current condition 2.2(ii). That condition imposes, albeit indirectly, a limitation on the volume of waste to be received and associated number of truck movements. It does that by limiting the volume of waste to that which the applicant can carry by "his own vehicles" and prohibiting the applicant from receiving waste from "any other source". The council has accepted that this allows vehicles owned or leased by the applicant, as well as the vehicles carrying waste under a contractual arrangement the applicant may have with another party for the demolition or removal of waste from a particular site.
However, condition 2.2(ii) does not currently extend to the applicant receiving waste from the public generally. As pointed out by Mr Hardy, the council's expert town planner, that is a "significant operational constraint on the type and form of waste disposal facility that is allowed to operate". It is likely because of this "significant operational constraint" that the applicant is seeking the modification.
It is also clear that at least one purpose in including condition 2.2(ii) was to limit the volume of waste received. It cannot have been intended solely to limit, for example, the nature or type of the waste received. That is covered by condition 2.2(i) which states:
2.2(i) The waste received on the site shall be restricted solid wastes only including natural excavated material, demolition material, broken concrete and builders rubbish but excluding any other wastes of any nature".
The need to limit the volume of waste received is also covered by the Authority's conditions of approval (incorporated by condition 2.1), and in particular condition 4 read within Appendix A. It is in this context that it fails to be considered whether the modified development is "substantially the same development" for which consent was granted.
Ms Heger submits that "substantially the same" has been interpreted as meaning "essentially or materially having the same essence" (North Sydney Council v Michael Standley & Associates Pty Ltd 97 LGERA 433 at 439-440; Moto Projects (No 2) Pty Ltd V North Sydney Council 106 LGERA 298 (Moto Projects) at [30]). When comparing the original consent to the consent as proposed to be modified, care is needed not "fall into the trap" of stating that because the development was for a certain use, and that as amended it will be for precisely the same use; it is substantially the same development: (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8).
The Court should take into account the circumstances in which the consent was granted. In Moto Projects, Bignold J observed:
54. The relevant satisfaction required by s 96(2) (a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development.
55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially"" the same as the (currently) approved development.
56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).
In this case, the relevant context includes the nature of the applicant's operations or proposed operations at the time the development consent was sought. While there is no direct evidence of the nature of the applicant's business as at 1978, it should be inferred that the volume of waste received around that time, and the associated number of truck movements, was significantly less than that which is proposed under new condition 2.2(ii). That inference should be drawn having regard to the evidence of the applicant's operations from 2005 to 2016 that relates to the volume of waste received at the depot for each six month period during this time. On average, the applicant received an average, of 1600 cu m of waste per six-month period. It is highly unlikely that, as at 1978, it would have received substantially more than 1600 cu m of waste per six-month period. However, under the proposed condition 2.2(ii), the applicant proposes to receive 500 cu m per day (equating to about 90,000 cu m per six-month period or 56 times the current volume). That amount is a dramatic increase in the volume of waste received, which would accordingly have a dramatic increase on the number of truck movements. It involves an intensity of use that was neither approved nor anticipated at the time the 1978 consent was granted. As Mr Hardy stated, the proposed modification would "change the scope and nature of on-site operations from a small scaled low-key private facility to a large commercial scaled waste management operation".
For those reasons, the Court cannot be satisfied that the development as modified would be "substantially the same development".
Findings
The law (as provided by Ms Heger) on establishing whether a development is substantially the same as the development originally approved is relatively settled, in that:
Fourth, I do not accept the submission that if the site were sold to an owner with a fleet of vehicles, the use would continue without constraint in accordance with the terms of the 1978 consent, albeit at a greater intensity than the current operator. Condition 2.2(ii) states, in part, that "The waste received shall be restricted to the waste carried by the Applicant in his own vehicles". The reference to "the Applicant" in the condition must be a reference to the Applicant in the development application that resulted in the 14 March 1978 consent. If the condition referred to the "Owner" then a different conclusion could be reached.
For the reasons in the preceding paragraphs, I am satisfied that the development to which the consent as modified relates is not substantially the same development as the development for which the consent was originally granted. While the wording of the original condition 2.2(ii) would undoubtedly be expressed in different terms today, "a fair but liberal reading of the rights" pertaining to the condition, in my view, imposes a limitation on the volume of waste to be received and associated number of truck movements based on the evidence provided to the Court. New condition 2.2(ii) allows a significantly larger volume of waste to be received and number of truck movements.
Consequently, the application must be refused and the appeal dismissed as the application does not satisfy the pre-condition in s 96(1A)(b) of the EPA Act.