Greenwood v Warringah Council

Mr I Hemmings Mr A Gough (Respondent) Solicitors Michael Flaherty Solicitors (Applicant)

Storey and Gough Lawyers (Respondent) File Number(s): 10405 of 2011

Judgment 1The applicant, Scott Robert Greenwood, conducts a landfill and waste recovery facility on Crown land at 9994 Mona Vale Road, Belrose. The business is known locally as "Greenwood's Quarry "and involves the receipt of waste materials for the screening of recyclable material such as timber, steel and brickwork. The materials recovered are stockpiled temporarily before removal off site for resale. Any inert waste remaining is used as landfill or for restoration in the shale quarries on the land. 2The business operates on the site under a Permissive Occupancy and a series of Mining/Mineral Leases (ML 46, ML47 and ML52) from the Crown. There is also an Environmental Protection Licence (EPL 4669) in place authorising the disposal and storage of particular waste on ML46 and ML47. These proceedings concern a development application (DA2010/1822) for the use of a part of ML46 for the shredding and stockpiling of green and wood waste. 3The original development application was lodged with Warringah Council on 3 November 2010 and refused by the Council on 25 March 2011. This is an appeal from that decision, under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act), but it relates to an amended application. Before I describe the amendments it is appropriate to explain how a jurisdictional issue, concerning the absence of landowner's consent, outstanding at the conclusion of the hearing, has now been resolved. Owner's Consent - jurisdictional issue 4On 18 April 2013 and while the matter was part heard, the Court was advised by an eCourt communication from the applicant's solicitor that the owner of the land, the NSW Department of Trade and Investment Regional Infrastructure and Services, (NSW Trade & Investment), had on 8 April 2013 consented to the lodgement of the applicant's development application. That consent, however, was subject to a notification requirement that expired on 3 May 2013. The proceedings were therefore adjourned to accommodate that date. As this period has now expired the parties' have asked the Court to deliver its judgement without any further hearing. The amended proposal 5The applicant claims that the amended application addresses the contentions identified by the Council in its statement of facts and contentions dated 4 December 2012 (exhibit 2). 6The most significant change is the restriction of the proposed activity to a defined area within ML46 (although access to the development remains through ML47). It is detailed in the amended concept plan prepared by Footprint Green Pty Ltd dated 14 March 2013 (exhibit M) and the amended operational plan (exhibit P). The amendments also incorporate the recommendations of the applicant's acoustic consultant, Mr Atkins, contained in his report dated March 2013 (exhibit N). They include the erection of an acoustic bund around the perimeter of the site (exhibit C). Although, the length, material and external treatment of the acoustic bund is undecided, Mr Atkins recommends a permanent 250m long, 4.5m high and 2.4m wide landscaped acoustic bund/ wall around part of the perimeter of the site (exhibit C). The applicant however, proposes a deferred commencement condition to address the detail but suggests a shale wall, which is not permanent. The current application also incorporates the applicant's version of the recommendations of the NSW Rural Fire Service (in respect of stock piles heights and distances) as detailed in its correspondence to the applicant dated 15 March 2013. 7In addition to the above, the amended application proposes a number of deferred commencement conditions. The Council's marked up version of the draft conditions (exhibit R) details the parties' preferred deferred commencement conditions. They include: A Revegetation and Rehabilitation Management Plan - detailing landscaping, suitable endemic species and weed removal plans for the embankments and mounds around the perimeter of the work site; the revegetation of the shale stockpile area - generally in accord with the amended concept plan; a complete rehabilitation and revegetation plan for ML46 to be completed within 24 months from cessation of activities and an ongoing monitoring plan (Condition 5 of exhibit R). A Soil and Water Management Plan, prepared by a qualified environmental consultant, including: an erosion and sediment control plan demonstrating appropriate measures to prevent pollution of adjoining bushland; details of an active leachate extraction system to minimise environmental impact; designs for pollution control systems including waste water collection (condition 3 of exhibit R); Certification of Stormwater Management by a suitably qualified engineer - certifying the structural integrity and functionality of the existing stormwater management system - and, in the event that the system has failed; or, is not appropriate for the approved use, a plan for appropriate remedial works and a timeframe for implementation (Condition 4 of exhibit R). Council's contentions 8Despite the provision of additional information, and the amendment of the proposal, the Council contends the application does not contain sufficient detail to allow a proper evaluation of the development's impacts. It contends that the applicant's reliance on deferred commencement conditions to address essential matters underlines the deficiencies of the application. In those circumstances it submits the Court cannot be satisfied (as required by cl 12(3) (b) of the Warringah Local Environmental Plan 2000 (WLEP 2000) that the proposal is consistent with the Desired Future Character of the relevant Locality Statement. It believes the Court will have no choice but to find on the evidence that that the development is likely to have an adverse environmental impact upon the natural and /or built environment when assessed under s 79C(1)(b); the site is unsuitable for the development under s 79C(1)(c); and, the development is not in the public interest under s 79C(1)(e). The planning framework 9The application was lodged before the commencement of the current plan the Warringah Local Environmental Plan (WLEP 2011) and, it is agreed by dint of the savings provision in cl1.8A, that the application must be assessed against the repealed instrument; the Warringah Local Environmental Plan 2000 (WLEP 2000). 10The parties, however, do not agree about the weight, if any, to be attributed to the current WLEP 2011 in the Court's evaluation of this application. Clause 1.8A states: 1.8A Savings provision relation to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 11Section 79C of the Act sets out the matters for consideration in determining a development application and states: 79C Evaluation (1) Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iii) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 12The Council submits the Court should give significant weight to WLEP 2011 because it is a proposed instrument within s 79C(1)(a)(ii) of the Act and its gazettal is both certain and imminent. In making this submission the Council relies on the Court's interpretation of the saving clause in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289; Blackmore Design Group Pty Limited v North Sydney Council [2001] NSWLEC 279 per Lloyd J at paras [29-30]. 13The problem with the Council's submissions is that they rely upon case law that deals with a different saving provision and an earlier version of s 79C(1)(a)(ii) of the Act. The clause considered by the Court in Terrace Tower Holdings directs the consent authority to treat the new plan as a draft instrument in its consideration under s 79C(1)(a)(ii). However, the clause under review in this case does not direct the Council to treat the new plan as a draft instrument; or, as a proposed instrument (as is the current wording in s 79C(1)(a)(ii) of the Act). 14The Council submits the removal of the word draft from the savings provision in cl1.8A was intended to reflect the change in the wording of s 79C(1)(a)(ii). Adopting a purposeful and common sense reading of the savings provision the Council submits that the intent of the provision is to include WLEP 2011 as a proposed instrument as it has been placed on public exhibition as referred to in s 79C(1)(a)(ii). This interpretation is pressed by the Council despite the omission of the word proposed in the savings provision. However, if it was the intent of the Parliament to require a consideration of a proposed instrument under s 79C(1)(a)(ii) then why was the word proposed left out of cl1.8A of WLEP but included in s 79C(1)(a)(ii) of the Act? 15I am not persuaded the Council's explanation as to how WLEP 2011 should be considered under s 79C(1)(a)(ii) is correct. The provision does not refer to a proposed instrument which has been the subject of public consultation under this Act and that has been notified to the consent authority in cl1.8A. In my opinion such wording is necessary to trigger a consideration of the savings provision under s 79C(1)(a)(ii) of the Act. 16In my assessment the Council's submissions do not overcome the clear and unambiguous direction within cl 1.8A of WLEP 2011 to treat the new plan as having not commenced. 17The applicant asks the Court to follow the decision in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302, a decision endorsed by the Senior Commisioner of the Court in Wang and Anor v Canterbury City Council [2013] NSWLEC 1098 at paras [9 -14]. In Alamdo the Court interpreted a saving clause in the same terms as cl 1.8A of WLEP 2011 and held that the new local enviromental plan should be regarded as having not commenced and not existing, in effect. It decided it should be given no weight in the evalutuon process under s 79C of the Act. It decided that the the new plan is not a proposed instrument under s 79C(1)(a)(ii) or relevant as part of the public interest under s 79C(1)(e) because the clause directs the Court to treat it as not having commenced. If it has not commenced it can have no legal effect. 18Accordingly, I will deal with this application as if WLEP 2011 has not commenced and does not exist, in effect. The relevant statutory control 19In light of my decision about WLEP 2011 the following statutory controls are relevant to the assessment of this application: Statutory Controls Environmental Planning and Assessment Act 1979 Protection of the Environment Operations Act 1997 Contaminated Lands Management Act 1997 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy No 55 - Remediation of Land State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 State Environmental Planning Policy (Infrastructure) 2007 Warringah Local Environment Plan 2000 The site and its context 20As stated the Council's main objection to this development is its inconsistency with the Desired Future Character of the C10 Mona Vale Road West Locality Statement under WLEP 2000. To better understand the Council's case it is necessary to appreciate the features of the site and its context in the locality. This requires repetition of some of the detail in the Council's statement of facts and contentions. 21The site, which has an area of 7.5 ha, adjoins the Garigal National Park along its southern, eastern and western boundary. Bear Creek extends across the southern side of the site with a tributary extending towards the north along the eastern boundary. Another tributary of Middle Harbour Creek extends along the full length of the western boundary of the site. Various walking trails are located around the site. 22The site falls in a north to south direction and the current use is located on an excavated part of land situated approximately 20 m below the street level of Mona Vale Road. The site then falls steeply into the Garigal National Park by approximately 22 m to the southern boundary. The Garigal National Park then continues to slope steeply downwards from the site by approximately 88 m towards the south to form valley systems associated with Bear Creek and Middle Harbour Creek. 23Other development in the vicinity of the site includes the former St Ives Tree lopping Tip and the Honda Australia Roadcraft Training Centre to the west; a private residence to the north (across Mona Vale Road) and the Garigal National Park to the south, east and west. A small commercial estate is located further to the northeast on the corner of Mona Vale Road and Forest Way. The Belrose Waste Management and Recycling Centre is located further to the east on Forest Way. 24The site is delineated by the boundaries of a licence issued by the Environment Protection Authority and consists roughly of three former mining leases being ML46, ML47 (also known as ML909) and ML52. The western boundary of the site forms a local government boundary with KuRingGai Council. 25The existing facility for the importation, recycling and stockpiling of material is accessed via a partially sealed driveway from Mona Vale Road. The site area accommodating the facility has largely been cleared and includes: