Greenwood v Warringah Council

THE COMMISSIONERS' JUDGMENT 4In order to grant development consent, it was necessary for the Commissioners to be satisfied that the development was consistent with the desired future character (DFC) described in the relevant Locality Statement in the LEP: cl 12(3)(b) of the LEP. Council's main objection was that the development was not consistent with the DFC: at [20]. The Commissioners concluded that they were not satisfied that the development was consistent with the DFC because, they found, there was not sufficient detail or evidence (including lack of a comprehensive operational plan) about essential matters: at [52], [53], [55]. Therefore they dismissed the appeal and refused development consent. There was a second reason why they did so, namely that the lack of detail precluded a proper assessment of the likely impacts of the development under s 79C(1)(b) and ultimately the suitability of the site for the development under s 79C(1)(c) of the Environmental Planning and Assessment Act 1979 (EPA Act): at [55]. Hence, the reasons for the Commissioners' decision focussed on insufficient detail. 5The development on the subject land is in "Category Two" under the LEP. Clause 12(3)(b) of the LEP provides in relation to Category two: (3) ... before granting consent for development classified as: ... (b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement, but nothing in a description of desired future character creates a prohibition on the carrying out of development. 6The DFC referred to in the relevant Locality Statement, Locality C10 Mona Vale Road West, states: DESIRED FUTURE CHARACTER The present character of the Mona Vale Road West locality will remain unchanged except in circumstances specifically addressed as follows. The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be grouped in areas that will result in the minimum amount of disturbance of vegetation and landforms and buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged. Development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. A dense bushland buffer will be retained or established along Mona Vale Road West. Development in the locality will not create saltation or pollution of Middle Harbour. 7Thus, the DFC (relevantly) required that: (a)the natural landscape including landforms and vegetation will be protected and, where possible, enhanced; and (b)development will be limited to low intensity, low impact uses. 8Section 79C(1)(b) and (c) of the EPA Act provide: (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: ... (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, ... 9Part of the background to the Commissioners' decision was [9] of Council's Further Amended Statement of Facts and Contentions (Council's Contentions) filed prior to the hearing, which contended that insufficient information had been submitted for proper and accurate assessment to be made of the development application. The particulars stated that the following information had not been provided (some paragraphs thereunder had been struck through and I do not quote them): b) Erosion & Sediment Control Plan c) Stormwater Management Plan d) Vegetation Management Plan k) Details of the extent and quantities of the proposed importation, recycling and stockpiling activities on ML 46. l) Plans accurately identifying the areas in which the proposed operations are to occur. The plans should comply with Schedule A of the Class 1 Development Appeal Practice Note. m) Staging Plan n) Rehabilitation Plan o) Plan of Management dealing with all operations upon ML 46, 47 and 52. The plan should address the interaction between the approved uses on ML 47 and the proposed uses on the other areas of the site. p) The report prepared by HEC dated 23 November 2012 does not adequately address the possibility of contaminated materials leaving the site via the removal of recycled materials. The report fails to investigate the depth of clay lining within ML 46 or the means of remediation this area underwent following landfilling. q) The Operational Plan of Management dated November 2012 is not adequate to prevent the proposed development from adversely affecting the surrounding natural environment. The Plan fails to consider the environmental risks associated with sediment and erosion control; fire; and weeds. 10During the hearing before the Commissioners, the applicant obtained and tendered plans that may answer the descriptions at (d), (m) and (n) above. 11The applicant made an amended application in an attempt to address Council's contentions. It incorporated an amended concept plan and an amended operational plan. It also incorporated recommendations of an acoustic expert (Mr Atkins) including the erection of an acoustic bund around the perimeter of the site, for which the applicant proposed a deferred commencement condition to address the detail. The Commissioners said of this: 6 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. 12In addition, the Commissioners noted that the amended application also proposed deferred commencement conditions detailing other matters: 7 In 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). 13Council contended that the amended application still contained insufficient detail to allow a proper evaluation of the development's impacts and that the applicant's reliance on deferred commencement conditions to address essential matters underlined the deficiencies. 14The Commissioners observed that the 250 metre long acoustic bund proposed by the applicant lacked detail and that, to overcome the problem, the applicant accepted a deferred commencement condition providing the detail: 38 However, despite the inclusion of the acoustic bund on plan, the applicant made clear through Mr Boston, its planner, that the detail of the acoustic mound on the southern, western and part eastern sides of the green waste working area was yet to be determined. This was because during their concurrent evidence Mr Atkins and Mr Boston agreed that to ensure the stability of the acoustic bund (of the proportions detailed in Mr Atkins report) a base with a width of about 27 m is necessary. Assuming a batter gradient of 1:3 to 1 was constructed, this mound at 4.5 m high and 250 m long would, according to Mr Boston, take away about 50% of the green waste working area on the site, the subject of this application. After Mr Boston's evidence it was unclear what gradient the acoustic mound would be. The Council suggested that the mound's stability required the 1:3 to 1 gradient suggested in the weed management plan for the site prepared by Bush-it Pty Limited in exhibit J. Mr Boston, however, had noted that the concept plan referred to a 1:7 to 1 gradient, and, based on an enquiry to the author of the concept plan (Mr Colston an Ecologist) that figure had been something suggested by him. 39 At the end of the evidence it was certainly unclear to the Court the basis for either the 1:7 to 1 or 1:3 to 1. To overcome this problem, the applicant accepted a deferred commencement condition for the preparation of a vegetation and rehabilitation and management plan, generally in accordance with the concept plan drawing, and, a detailed plan of the noise attenuation measures, as required by the Atkin's report dated March 2013. 15The Commissioners considered that the applicant's latest attempt (the third) to finalise an operational plan was not adequately detailed and that the plan should cover the matters listed in draft deferred commencement condition 8. They noted that Ms McCabe (Council's expert) considered it inappropriate to defer providing the detail: 40 The applicant has made three attempts to finalise an operational plan for this development. The latest incarnation of that plan is exhibit P 41 An operational plan is necessary to detail the proposed use and the integration of functions with the adjoining operations on the former mining licence number 47 (ML 909). The applicant however did not, during the course of the hearing, adequately finalise the operational plan and ultimately proposed a deferred commencement condition, requiring the preparation of such a plan within six months of a consent. 42 The list of matters, which the plan must cover, is outlined in draft deferred commencement condition 8 as set out below: Operational Environmental Plan of Management A Plan of Management detailing the proposed use and integration of functions with the adjoining operations on former Mining/Mineral Licence No 47 (also known as ML 909) is to be prepared and submitted to Council for Approval. To ensure the environmental management, mitigation measures and monitoring of the site meets environmental best practice over time, prior to commencement of the use, an Operational Environmental Management Plan (OEMP) that incorporates the requirements of the conditions of this development consent and the requirements of the Environment Protection Licence issued by the Environmental Protection Authority ("EPA") shall be developed by a suitably qualified and experienced environmental consultant, or environmental consultancy and submitted to the EPA and Council for review. The OEMP shall include, but not be limited to the following parameters: Hours of Operations Access and Egress Pick-up and Drop-off Points Circulation of Vehicle Movements Car Parking Areas Queuing Aisles Directional Signage Complaints Management Air Quality and Dust Management (to include defining the windy weather conditions (eg trigger wind speeds, wind direction) when no crushing or processing activities will take place) Noise Traffic Water Quality/Water Quantity Management Waste Management (to include what must be done if asbestos containing materials are encountered on site) Site Security Employee/Contractor/Subcontractor Induction OHS Plan Site Compliance, Monitoring and Annual Reporting OEMP Review and Updating 43 Many of those matters are not dealt with at all in exhibit P The long list demonstrates the extent of the deficiencies in the plan before the Court. 44 Miss McCabe's evidence is that it is inappropriate to defer the preparation of the detail of the operational plan, to a time after the issue of consent. She submits the Court needs to understand the operation of this site, before it approves the development. 16Council's submission that there was insufficient detail for the Commissioners to be satisfied that development was consistent with the DFC was further addressed: 47 The Council's position is that there is not sufficient detail before the Court to enable the Court to be satisfied that the development is consistent with the Desired Future Character described in the Locality Statement. There is no detail about essential matters such as: site contamination and remediation works (if necessary), soil and water management investigations and plans, a stormwater management plan, a revegetation and rehabilitation management plan with detailed landscaping species and distances from stockpiles so as to minimise bushfire risk, weed removal and revegetation of embankments adjoining the natural bushland or a traffic management plan or a comprehensive operational plan. The Council submits that dealing with these matters by way of deferred commencement conditions makes it impossible to be satisfied before the issue of a consent that the development is consistent the matters raised by cl 12 (3)(b). In short the Court is precluded from approving this use on this site without the detail necessary to inform the satisfaction required by the clause. 48 It contends that the Court cannot be satisfied on the available information, as required by cl 12 (3)(b), that the natural landscape including landforms and vegetation will be protected and, where possible, enhanced by this development. Relying on Ms McCabe's evidence, the Council submits that the use has the potential to highly disturb the surrounding vegetation and the natural landscape; particularly, by the offsite transport of contaminants and pollution into to nearby watercourses and Middle Harbour. Furthermore, without specific detail about the size, material or finish of the acoustic bund to be erected along the prominent perimeter of the site there can be no assessment of its impact on the natural landform. 17The Commissioners addressed the evidence of the applicant's expert Mr Boston regarding adverse impact of the acoustic bund: 49 Mr Boston's evidence is that the site is already disturbed; therefore, it is outside the natural landscape referred to in the Locality Statement. His initial evidence was that the proposal, which is positioned on a well-defined portion of the site, could be accommodated without adverse impact on the established planted mounds around its perimeter. He told the Court that the development's location on a previously disturbed area of the site would ensure that the surrounding vegetation would not be physically disturbed. He assessed the use as low impact and low intensity and concluded that the natural landscape would not be further impacted upon by an approval of this consent. Mr Boston went as far as to suggest that the development had the potential to enhance the natural landscape, if necessary, through revegetation of the northern portion of the site generally in the location of the shale stockpile. 50 However, Mr Boston's evidence changed during the course of the hearing when he understood that the concept plan proposed an acoustic bund on an area beyond the ML46. In that circumstance he accepted that the acoustic bund could adversely impact the natural landscape. While initially he was of the opinion that any acoustic mound should be vegetated and a permanent feature of the landscape in the final rehabilitated site his evidence changed during the hearing. At the conclusion of his evidence he told the Court that any acoustic wall should be comprised of a shale mound without landscaping and be removed at the end of the use. He was forced to agree with Mr Hemming the Council's advocate that it is difficult to argue that a shale mound/ structure with a length of 250 m and a height of 4.5 m and possibly a width of 27 m (depending on specific engineering detail which was not available at the time of the hearing) would not have an adverse impact in the natural landscape and be consistent with the existing natural landform. 18The Commissioners noted the submission of the applicant's counsel: 51 Despite Mr Boston's evidence the applicant's advocate, Mr Pickles, submitted that the development was not inconsistent with the Locality Statement for the site. It was submitted that the character of the locality would remain unchanged if this development were approved because the objective to protect and possibly enhance the natural landscape does not speak to this site because it is already disturbed. It is not a natural landscape therefore; the Locality Statement does not require this site to return to a natural landscape, because it never can. Relying on the Council's assessment report in respect of the original application (at p 203 of exhibit A) the applicant submitted that the development was a low intensity activity consistent with the reasoning in Vigor Master Pty Ltd v Warringah Council [2008] NSWLEC 1128. As such the applicant submitted it is development which "has a low level of activities associated with it" and that fact makes it a development which "...has a minimal or minor impact and is unlikely to significantly change the amenity of the locality". 19The Commissioners then set out their findings: 52 The applicant's reliance upon the assessing officer's report about a different proposal is obviously problematic. His determination that it is low-intensity or low impact is irrelevant particularly, in light of Mr Atkins evidence in this case about the need for an acoustic bund to achieve acceptable acoustic levels. Without further evidence, including a comprehensive operational plan, the Court accepts the Council's submission that it is impossible to assess whether the current proposal is low-intensity and low-impact and, thereby, consistent with the Locality Statement. 53 The development before the Court relies on an amended concept plan, which proposes works that Mr Boston concedes are likely to impact on the surrounding natural landscape including its vegetation and landform. However, those impacts cannot be assessed because there is insufficient detail before the Court. There is not sufficient detail about essential matters such as: exiting [sic] site contamination and remediation works (if necessary), soil and water management investigations and plans, a stormwater management plan, a revegetation and rehabilitation management plan with detailed landscaping species and distances from stockpiles so as to minimise bushfire risk, weed removal and revegetation of embankments adjoining the natural bushland or a traffic management plan or a comprehensive operational plan. 54 The site is as Miss McCabe states in the joint report at p 8 is "highly disturbed" but it sits within a broader vegetated natural landscape adjoining the Garigal National Park. We do not accept Mr Boston's evidence that the site is disturbed; therefore, the natural landscape is outside the site. In our assessment the Locality Statement applies and, therefore, the Court must be satisfied, as required by cl 12(3)(b), that the development is consistent with the Desired Future Character in the relevant Locality Statement. The adjoining natural landscape in the national park is not pristine as was evident at the Court' view of the site and its locality however, that cannot mean that the national park it is not part of the natural landscape. So too is this site. 55 Accepting that the Locality Statement applies to this site we agree with the Council's submissions (based on Ms McCabe's evidence) that there is not sufficient evidence to satisfy the Court that the proposed use is consistent with the relevant Locality Statement under cl 12(3)(b) of WLEP2000 which is relevant under s 79C(1)(a) of the Act. The lack of detail in this application also precludes a proper assessment of the likely impacts of the development, including environmental impacts on the natural and built environments under s 79C(1)(b) and, ultimately the suitability of the site for the development under s 79C(1)(c) of the Act. 20It can be seen that the Commissioners' material factual findings leading to the their ultimate factual finding that there was not sufficient detail to satisfy them that the proposed use was consistent with the DFC, included the following: (a)The amended application included the erection of an acoustic bund around the perimeter of the site: at [6]. Although the length, material and external treatment was undecided, the Commissioners noted that the applicant's acoustic expert recommended a permanent, 250 metre long, 4.5 metre high and 2.4 metre wide, landscaped acoustic bund around part of the perimeter. The Commissioners noted that the applicant, however, proposed a deferred commencement conditions to address the "detail" but suggested a shale wall, which is not permanent: at [6]. (b)The application proposed a number of other deferred commencement conditions, as recorded in Council's marked up version of the draft conditions. (c)An operational plan was necessary to "detail" the proposed use and integration of functions with the adjoining operations, but the applicant did not adequately finalise the operational plan and ultimately proposed a deferred commencement condition requiring the preparation of such a plan within six months of consent: at [41]. (d)The list of matters which the operational plan had to cover was outlined in draft deferred commencement condition 8, but many of those matters were not dealt with at all in the operational plan ultimately tendered by the applicant: at [42] - [43]. (e)The evidence of Ms McCabe, Council's expert, was that it was inappropriate to defer preparation of the "detail" of the operational plan to a time after the issue of the consent: at [44]. (f)Without further evidence including a comprehensive operational plan, it was, as submitted by Council, impossible to assess whether the proposal was low intensity and low-impact and, therefore, consistent with the Locality Statement: at [52]. (g)The impacts of the works proposed by the concept plan (which the applicant's expert, Mr Boston, conceded were likely to impact on natural landscape, including its vegetation and landform) could not be assessed because there was insufficient detail before the Court: at [53]. (h)The Commissioners accepted Council's submission (based on Ms McCabe's evidence) that there was not sufficient evidence to satisfy the Court that the proposed use was consistent with the relevant Locality Statement: at [55].