Fitzgerald v Central Coast Council - [2020] NSWLEC 1445 - NSWLEC 2019 case summary — Zoe

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Fitzgerald v Central Coast Council

[2020] NSWLEC 1445

Land and Environment Court (NSW)|2019-08-20

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-08-20

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

Judgment

COMMISSIONER: The second respondent, Recycled Concrete Products Pty Ltd (the Operator) conducts a resource recovery (concrete recycling) facility at 18A Tathra Street, West Gosford under a consent issued by the former Gosford City Council on 10 October 2013 (2013 consent). The processing capacity under the 2013 consent was limited to 30,000 (t) tonnes per annum and 150 t per day.
On 13 August 2018 the first respondent, the Central Coast Council (the Council) granted consent to Development Application No 51380/2017 (the DA) which expanded the operation to increase the processing capacity to 95,000 t per annum and 1,000 t per day.
Mr Dennis Fitzgerald, the applicant, owns the adjoining property at 16 Tathra Street where his tenant mechanic runs a car repair business. Dissatisfied with the determination of the Council, the applicant has exercised his right of appeal to the Court pursuant to s 8.8 of the Environmental Planning and Assessment Act 1979 (EPA Act). Mr Fitzgerald contends that the current size of the operation and the lack of practical preventative and mitigation measures in place warrant the refusal of any expansion of the processing capacity at the site.
The Council, having filed a submitting appearance, did not take an active part in the proceedings, save to provide the Court access to relevant Council files, the draft conditions of consent, and to facilitate the notification of the Operator's final site arrangement plan (Dwg ref 190600-ESK-001) dated 28 August 2019 (Final Plan).

[2]

The application

The Final Plan is reproduced below and shows the existing and proposed layout for the development.
The Final Plan was prepared during an adjournment of the proceedings and notified before being admitted into evidence with the following documents (Exhibit 9):

a one-page revised acoustic assessment from the Operator's air quality expert Mr Kellaghan dated 5 March 2020;
an updated Plan of Management which includes new provisions about training and consultation, a complaint handling register, with arrangements for continuous improvement through ongoing evaluation of dust management, and review of the effectiveness of the Air Quality Management Plan against set objectives and targets;
an amended Air Quality Management Plan prepared by EMM Consulting - developed in accordance with regulatory requirements and approved methods for the modelling and assessment of air pollutants in New South Wales - incorporating planning for adverse weather conditions and meteorological monitoring on the site; and
the Operator's proposed conditions of consent, which are responsive to the applicant's version (Exhibit 9, Tab 4).

The Final Plan has a slightly modified general site arrangement to what was modelled by Ramboll Environ Australia Pty Ltd for the initial Air Quality Impact Assessment (AQIA) report dated 23 December 2016 (Exhibit 9, Tab 5, footnote 1). Of most relevance, from an air quality perspective, are the material storage bins on the eastern boundary of the site which have moved closer to the boundary of Lot 18. The consequence of this change is that dust emissions associated with material handling at these storage bins are now closer to neighbouring boundaries (specifically Lots 18 and 17).
Mr Kellaghan has modelled the results for the revised site plan and predicts one additional exceedance of the impact assessment criterion for the 24-hour average PM10 at these two adjacent receptors (Lot 17 and Lot 18) (Exhibit 9, Tab 5, pars 7-13). An additional exceedance which he describes as being a "rare event" and of "low risk". For the remainder of the modelled year, Mr Kellaghan has assessed that the cumulative concentrations are well below the impact assessment criterion (Exhibit 9, Tab 5 at pars 10-13).
The Final Plan also consolidates the requirements under the original 2013 consent which have not yet been carried out at the site. For example, it incorporates the 4 m high noise attenuation barrier to the east of the material storage areas/stockpiles between the adjoining properties fronting Tathra Street required by condition 2.9a of the 2013 consent. This wall serves as a noise barrier from activities on the site and assists to mitigate dust from the concrete crushing plant operation.
Similarly, condition 6.16 of the 2013 consent required implementation of suitable controls on the premises to prevent mud tracking from the premises. To address this the application now includes a sealed access road, the requirement for a water cart to control dust, a wheel washing bay for trucks leaving and entering the site, and a street sweeper to remove high silt loading observed on track out on Tathra Street. The respondents' draft conditions also propose active water sprays to dampen the surface of the site when adverse weather events are triggered or forecast, a stop work arrangement in high winds, and a comprehensive monitoring of dust impacts when the site is operative from three locations along the eastern boundary of the site with Lots 15, 16, 17 and 18 in accordance with NSW EPA, Approved Methods for the Modelling and Assessment of Air Pollutants in NSW (2005) (Exhibit 9, Tab 4, EMM AQMP pp 5-9).
The site layout plan also shows a 2 m acoustic wall along the eastern boundary of the site in front of the raw storage area and an additional 2 m wall in front of the proposed storage bins to be constructed on levelled and retained fill. With these measures in place the Operator's acoustic expert, Mr Toss Hodge, has assessed that noise emissions will comply with the adopted noise criterion (Exhibit 9, Tab A).
Additionally, the application now incorporates a drainage detention basin and conditions for water management on the site (respondents' further amended condition 2.7). There are also conditions requiring a vegetation management plan which can be utilised to preserve the existing vegetative buffer on the property.
Additionally, and importantly, the height of the stockpiles is now restricted to 10 m under the respondents' proposed conditions of consent (Exhibit 9, Tab 6).

[5]

Background

The site is zoned IN1 General Industrial under the Gosford Local Environmental Plan 2014 (LEP) and located on the south western side of Tathra Street between the intersections of Yandina and Carnarvon Roads within West Gosford Industrial Area.
Immediately adjacent to the site, on the eastern boundary, are a number of commercial/industrial premises and a place of worship. To the west of the site is natural vegetation and the terrain rises steeply, from a site elevation of 40 m AHD to 200 m AHD at that top of the escarpment. The applicant's property adjoins the eastern boundary of the site.
The land is a hatchet-shaped allotment with a 20 m wide access handle (which is about 52 m in length) running in a westerly direction from Tathra Street. The main part of the site extends about 400 m in a north-south direction and 170 m east-west direction. The total land area is 5.2 ha.
The existing operation receives construction waste by truck which is stockpiled. The waste material is then loaded into a crusher by excavator/frontend loader for crushing and screening to produce various grades of product. The products are then stockpiled in bays and loaded onto trucks for dispatch to customers as required.
Because the development is an integrated development, an Environmental Protection Licence is required from the Environment Protection Authority (EPA) under the Protection of the Environment Operations Act 1997.
The Operator holds Environment Licence No. 20617 and the capacity of the operation is currently tied to the 2013 consent. The EPA has issued its General Terms of Approval to the DA by letter to the Council dated 25 August 2017 (GTA) and received the Final Plan so the conditions of the DA require that the EPA licence be updated to reflect the increased capacity of the operation.
The Council's SOFCR records the development history of the site in the following terms:

On 22 July 2005, the Council issued development consent (DA 26567/2005 - Part 1) for a concrete batching plant at the site. On 30 November 2006, it then approved a s 96 modification application to amended DA 26567/2005 (Part 2) to allow for the development to be undertaken in two stages.
On 18 July 2008, the Council approved a further s 96 modification to DA 26567/2005 (Part 3) to relocate the concrete batching plant to the east.
On 10 October 2013, the Council granted consent to the DA for the "recycling facility concrete crushing plant" which allowed for 30,000 t per annum and 150 t per day of concrete crushing/processing.
On 12 January 2017, the subject application was lodged seeking consent to extend the processing capacity to 95,000 t per annum and 1,000 t per day. The expansion is proposed over that portion of the site that had previously been approved as a concrete batching plant in 2005.
The Council granted a conditional consent for the development at issue on 13 August 2018 and these proceedings were commenced on 14 September 2018.

[9]

The choice of weather station

The evidence is that there are two nearby weather stations; Narara and Gosford, that could have been potentially suitable data, and that both needed to be considered when deciding which data to apply to the modelling.
Mr Todoroski used the Narara weather station (which ceased operation in 2013) as the source of weather data because it is closer to the site, and has similar features - in terms of position relative to significant terrain, forest and urban areas - factors which significantly affect air dispersal of pollutants such as dust.
Mr Todoroski gave evidence that the Gosford weather station is not the closest weather station to the site, had only four years of data to consider at the time of the first AQIA, and is located in a distinctly dissimilar location relative to the key site features that affect air dispersion. He described the Gosford weather station as being situated in flat terrain, with a sports field nearby, and a large waterbody relatively near to the south; and, an east west aligned ridge toward the north. Mr Todoroski said that these features mean that the prevailing winds at the Gosford weather station location would be skewed significantly differently to those at the site, as would katabatic drift and heat rise induced winds flows etc.
Accepting that the Gosford weather station has calm winds 26% of the time and that the Narara weather station has calm winds 50% of the time with an average wind speed of below 1.5m/s (Exhibit E at par 10.5) Mr Todoroski gave evidence that calm and low wind conditions tend to lead to higher dust impacts near a pollution source. With that in mind, Mr Todoroski said that there is significant potential for greater impacts to be predicted at receptors if the more representative Narara weather station data was used. Mr Todoroski is also critical of the choice of year modelled by the Operator. He gives evidence that it was not representative, and that the analysis of only four years of data is inconsistent with the NSW EPA Approved methods for the modelling and assessment of air pollutants in NSW (2016), which recommends that five years are analysed, particularly when there is a record of high rainfall in 2015.
Mr Todoroski gives evidence that if the Narara data had been used in the model this leads to double the impacts - much higher impacts than the Gosford data (Exhibit E, par 10.6) (Tcpt, 20 August 2019, p 49(26)).

[11]

Background dust underestimated - the weather conditions

Mr Kellaghan agreed with Mr Todoroski that the Wyong monitoring station he used is located north of a horse track and south and southeast of low-lying wetlands/well vegetated land and a golf course. Due to this he accepted that it is reasonable to expect the station will record some of the lowest dust levels (Exhibit 5 at par 27.2(b)). Accepting that industrial areas have their own sources of dust, Mr Todoroski said that the impact of using unrepresentative low background dust levels from Wyong is that the level of dust exceedance above the NEPM threshold will increase (Exhibit F at par 11).
Relying on Mr Todoroski's expert evidence, the applicant submits that the air quality assessment carried out by Mr Kellaghan to estimate the quality of air on and above the land adjoining the premises is flawed because it was based on unsatisfactory empirical modelling from data obtained from a weather station more than 5 km from the site. The conclusion of Mr Todoroski's air quality assessment is that "the scale of the Project emissions needs to be approximately halved in order to prevent impacts above the EPA criteria" (Exhibit E at par 24).
Given the uncertainty of the outcome of the modelling undertaken by the Operator's expert, the applicant contends that the evidence enlivens the precautionary principle: Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 (Telstra) at [125]-[183].
In considering whether there is a "threat of serious or irreversible environmental damage", the applicant invites me to accept Mr Todoroski's calculations as sufficient evidence to establish that the use proposed will have significant air quality exceedances and impacts on the adjoining land uses (including a Church) which presents a threat of serious environmental damage: Telstra at [129].
Furthermore, the applicant submits that based on the evidence of Mr Todoroski, there is sufficient certainty that air quality exceedances will occur - the extent of which is uncertain given the respective air quality models used by each expert and this satisfies the second of the conditions precedent of the principle. On that basis, the applicant submits the burden shift discussed in Telstra at [150] is triggered, and Mr Kellaghan has not demonstrated with a level of scientific certainty that the site will have an acceptable impact. He did not use the CALPUFF model to demonstrate there was no impact or refer to the Narara meteorological data to establish the same. Nor has the Operator relied upon data required to be collected by condition M2 of its EPA licence to demonstrate no impact (Tcpt, 20 August 2019, p 49(24)).
In these circumstances, the applicant invites the Court to take a precautionary approach in relation to the issue of air quality and refuse the development application.

[12]

The Operator's position

The Operator relies on the AQIA lodged as part of the development application for the purpose of assessing the potential emissions based on the expanded production throughput of 95,000 t per annum and 1,000 t per day. It was prepared using the AERMOD software and the Approved Methods for the Modelling and Assessment of Air Pollutants in New South Wales, a document produced by the NSW EPA in 2005. This dispersion modelling presented in the AQIA did not predict any exceedances of applicable impact assessment criteria.
The dispersion modelling was updated following the s34 conciliation conference and in preparation for joint conferencing. The update included an increase in the modelled dust emissions from the site. Despite this, the updated modelling did not predict any exceedance of applicable impact assessment criteria. Mr Kellaghan also prepared a short supplementary report assessing the Final Plan which identified that the modified arrangement predicted one additional exceedance of the impact assessment criterion for 24-hour average PM10 at two adjacent receptors - see Table 1 (Lot 18 and Lot 17) (Exhibit 9, Tab 5 at par 8).
The Operator submits that the key inputs that relate specifically to the development - as set out in the emissions inventory in Tables 5-1, p15 and Appendix 2 of the AQIA report, are consistent with the approved methods, selected from the emission factor developed by the US EPA, were applied to estimate the amount of dust produced by each activity at the development site.
The modelled results in the AQIA in Table 6-1 (p 17) demonstrate that the proposal does not result in emissions that cause any unacceptable exceedance of the limits set out in the NEPM which is a federal instrument to assist the National Environmental Protection Council to set guidelines for air quality to be measured; limits and maximum rates for emission of particulate matter (PM - in this case PM10) and total suspended particulate matters (TSP).
The Operator identifies the following key differences between the air quality experts' evidence: 1. The use of different modelling software. 2. The reliance on data from different weather station at Gosford or Narara. 3. A different opinion about the daily peak activity (1,000 t or 1,500 t). 4. The estimate for the area assumed for wind erosion as it is specified in the emissions inventory (2.5 ha or 1 ha). 5. The silt loading to be factored for the haulage on the sealed access road (and whether a 70% control factor can be specified for water flushing by water cart). 6. The travel distances for the unsealed areas of the site.
The Operator contends the first and second points, make no significant difference to the modelling results, and if the Court can accept that Mr Kellaghan's approach is correct, then it follows that the air quality impacts are acceptable for the proposal, particularly given the conditions proposed by the EPA, the Council and the further conditions formulated in the proceedings.
The key points of difference are discussed in these experts' joint report at par 8 of Exhibit F. It records that Mr Todoroski believes the likely site dust emissions will be approximately double that presented in the AQIA prepared for the DA by Mr Kellaghan.
Even accepting Mr Todoroski's criticisms the Operator submits that the maximum cumulative 24-hour average PM10 concentration is 71.9 ug/m3 and the second highest is 54.6 ug/m3 - with the relevant limit being 50 ug/m3. The differences are mostly in the modelled emission estimates and as there is no comparative numerical exercise undertaken by Mr Todoroski to contradict or disprove this - the emissions inventory factors are the keys.
Returning to the four contested inputs listed above - the Operator submits that the daily peak issue can be disposed of easily. Mr Todoroski has relied on a maximum peak of 1,500 t and the proposal is for 1,000 t.
The next three contested inputs are of more numeric significance.

[16]

Consideration and Finding - Air quality

After a consideration of the evidence and submissions as summarised above, I prefer the evidence of Mr Kellaghan on this issue of air quality.
Although highly technical, Mr Kellaghan's evidence has clearly identified the relevant inputs modelled, the figures used, the basis of his numeric selections and the reasons he has adopted them. He is of the opinion, based on his modelled results, that the development will not generate unacceptable adverse air quality impacts for the applicant's property or the area more generally. I accept his expert assessment.
The applicant's submission that the choice of weather data alone doubles the impacts is not borne out by the evidence. Instead, the evidence is that it is the inputs which leads to the "doubling or not" of the dust emissions - and not the model or choice of weather station. Accepting that the inputs are the key drivers in the differences between expert's conclusions (Exhibit F at par 8), I accept that Mr Kellaghan's approach on each of those key inputs is correct. He has adopted the actual daily maximum of 1,000 t not 15,000 t. He has not guessed but measured the wind erosion area at 0.88 m and adopted a conservative 1 ha and factored in the condition which applies a 70% control factor for water flushing by the water cart, which is what is proposed under the draft conditions and the Air Quality Plan of Management.
Whereas Mr Todoroski's wind erosion figure is clearly inaccurate - he originally proposed 5 ha for the whole site, although after feedback that this is "ridiculous" (Tcpt, 20 August 2019, p 95(25-42)) then adopted 2.5 ha and this input has distorted the modelled result and accounts for the doubling in the result achieved by his calculations. He adopted a daily peak of 15,000 t instead 10,000 t and a silt loading factor of 12 g/m3 which has not been taken from US EPA material which has otherwise been accepted for other inputs but based on his experience (Exhibit 5 Joint report at par 8(iv)). With respect to the unsealed haulage roads, Mr Todoroski increased this haulage distance by 800 m (return trip in and out) when the measured distance was 115 m or 460 m (return trips in and out).
It is because of the likely overestimates of the emission inventory prepared by Mr Todoroski that I consider Mr Kellaghan's analysis and conclusions more reliable.
In oral evidence, Mr Todoroski accepted that notwithstanding the disagreement on modelling outcomes, based on the nature of the local area and land use surrounding the site - a few additional days above the impact assessment criteria for 24-hour average PM10 is considered a relatively low risk in terms of health impacts at industrial receptors, provided best practice is implemented to mitigate the risk. The use of a water cart is considered best practice and even accepting Mr Todoroski's figure of 12 g/m2 for the silt loading, the applicant submits that there must be a level of control factored in for use of a water cart on the roads and if that is taken into account, it would make Mr Todoroski's calculations just 6% higher. In any event, the evidence is that Mr Kellaghan has since actually taken samples to confirm that the approach he adopted was conservative and I accept his evidence that the modelling is on peak day use coupled with peak day background and those circumstances make it highly unlikely for it to occur.

[21]

Findings - Scale of the operation - Zone objectives

The planners deal with this issue in the joint report (Exhibit D, p10).
They disagreed as to the meaning of the objective. Mr McDonald is of the opinion that the adjoining vehicle body repair workshop repair business is a separate land use as defined under the LEP and as such the impact of the development on that land use and other land uses is a matter to be considered.
Mr Crampton says that the vehicle body repair workshop is a permitted use in the IN1 zone and is another industrial activity. The reference in the LEP within objective 3 "To minimise any adverse effect of industry on other land uses" - to other land uses refers to non-industrial land.
Mr McDonald is of the view that the assessment of air quality will be material to determining this issue. In particular whether adverse impacts have been minimised.
Having formed the view that air quality impacts have been minimised by the layout in the Final Plan, the respondents' proposed conditions of consent and the requirement to operate the facility in accordance with the various Plans of Management (Exhibit 9) and the imposition of a height control stockpile mounds, I am satisfied that the development is consistent with the zone objectives even accepting the complaints about past conduct which the objectors have identified.
To a large extent the site has operated with little limitation and the imposition of the controls in this DA on the activities of the site will, in my assessment, ensure that the development does minimise adverse effect of industry on other land. In forming this view, I note that the owners of 18 and 21 Tathra Street support the consent.
After careful consideration of the evidence I am of the view that the Final Plan which consolidates the outstanding requirements under the 2013 consent; together with the imposition of the 10 m height limit on the stockpiles and the maintenance of the vegetation along the eastern boundary, will improve the visual impact when viewed from No. 15. Additionally, the monitoring required under the air quality plan and the complaints register in the Plan of Management will assist to ensure that the applicant and other local objectors will have an avenue to raise any issue of concern should it arise. Coupled with the EPA licence requirements, the facility will be strictly monitored for compliance and these measures will improve the existing operation of the site going forward.