Ironlaw Pty Limited v Wollondilly Shire Council [2014] NSWLEC 1057 | Case summary

Ironlaw Pty Limited v Wollondilly Shire Council [2014] NSWLEC 1057 | Case summary | Zoe

[4]

The Proposal 2The background to the development application no 10.2012.336.1 lodged with the Council on 2 July 2012, including early modifications to the proposal are detailed in the judgment of Craig J in Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 146. The current development proposal is described in the Revised Environmental Impact Statement prepared by Precise Planning dated January 2013 (E I S - Exhibit D) and the plans in Exhibits B, C, Q, P and U. 3The facility will have a capacity to receive a maximum of 49,000 tonnes of waste per annum from the following categories: putrescible, construction/demolition, residential, commercial, green waste and household. 4The activities on the site include the mulching and chipping of green waste and the crushing/grinding of bricks, concrete and other ancillary uses including a truck depot, workshop on the site. 5There will be no retail from the site with regard to mulch and chipped green waste and the crushed and ground bricks and concrete. These products will be stored onsite after the processing and sold to wholesale persons engaged by retail trade elsewhere or otherwise directly to construction sites. It is proposed that putrescible waste will not be stored onsite for more than 48 hours. 6The facility will employ ten people on a shift basis but no more than seven at a time. The proposed operating hours are outlined in the following table. Some of the activities will not operate on public holidays. Land Use/Activity Proposed hours of operation Waste or resource transfer station and resource recovery facility Monday to Sunday 7.15am to 4.15pm - public Monday to Saturday 7.15am to 4.15pm - commercial Chipping/mulching of greenwaste Monday to Friday 8am to 4pm Crushing/grinding of concrete/bricks etc Monday to Friday 8am to 4pm (limited to 10 days per year) Truck depot Monday to Saturday 5am to 10pm, Sunday 9am to 10pm Operators vehicle Monday to Friday 5am to 6pm

[5]

7In order to facilitate the development the applicant requires approval to carry out the following off-site road works:

construction of site access off Anthony Road at the south-east corner of the site;
widening of the existing constructed section of Anthony Road;
construction of an extension of Anthony Road along the unmade Crown road, from the current western end of the made Anthony Road to a new intersection with Great Southern Road. This work includes the construction of a bridge structure over a watercourse;
widening of Great Southern Road from the intersection with the proposed new section of Anthony Road to Wellers Road;
works at the intersection of Great Southern Road and Wellers Road
work on the approaches to, and the bridge structure, of the Wellers Road railway overpass;
reconstruction of the Wellers Road - Remembrance Drive intersection. 8The applicant has amended and supplemented its application during the hearing. The following plans are now relied upon:
Road Design Plan Set P1103296JD09V06, being drawings SK 001 - SK 022 Revision B, prepared by Martens & Associates and dated 3 February 2014 (Exhibit C). These plans provide details of road and intersection design and were prepared in response to matters raised by Road and Maritime Services.
Plan of the green waste handling area (exhibit Q). This plan was prepared in response to questions from the Court and clarifies the generalised concept plan in the EIS.
A cut and fill plan (Exhibit P) prepared by Martens and Associates in response to a question posed by the court. This plan replaces the figure in the EIS. The effect of the new plan is to remove the need to import fill onto the site to create the raised mound from which unloading putrescible waste onto the moving floor would occur. The mound will be lower by just over a metre from that which was originally proposed.
A plan (Exhibit U) showing the area of Lot 252 to be subject to a covenant for the conservation of SSTF. This reflects the agreement of the parties' ecological experts. 9The Council's Amended Agreed Statement of Facts and Contentions dated 24 January 2014 (Exhibit 2) sets out the agreed facts, the statutory controls and the contentions between the parties including those raised by the local objectors. 10The parties are in agreement about the following matters:

[10]

The Objectors' Evidence 26The eight residents who spoke were a small subset of the more than 160 who had made written submissions on the development application and EIS. The objectors raised a number of issues, most particularly related to town planning matters, traffic and road safety and general amenity. Road safety was a matter of considerable concern, and several of the residents who spoke had experience in driving heavy vehicles in the area. 27However, the objectors' evidence must be considered in light of the extensive expert evidence available to the Court. After a consideration of that expert evidence we are satisfied that the objectors' concerns about traffic and planning matters are comprehensively dealt with by the parties' experts in their oral and written evidence to the Court. 28Similarly, the objectors' concern about the need for the proposed facility in Bargo (given the existing Spring Farm transfer station) and council's contract for waste to go to that facility until 2024 is not on the evidence a reason for refusal of this application under s 79C of the EPA Act. Nor is the economic viability of the proposal or the use of the facility by people outside the Wollondilly Shire a reason for a refusal of this application in this case. 29Consideration of alternative sites for the proposal is discussed in the EIS and was the subject of oral evidence by applicant's planner Mr Bulfin. The Court had the opportunity to inspect one alternate site during the view. Based on that evidence, the Court is satisfied that the applicant has considered alternate sites in compliance with the Director's requirements (we deal with this issue in more detail later in the judgment). 30Two issues that were raised by residents which were not covered in experts' reports was the applicant's failure to assess the development's impacts on the heritage listed property and associated bed and breakfast operation at the junction of Great Southern Road and Wellers Road, and whether or not part of the operation of the proposed facility could be characterised as being an organic waste processing facility. 31A heritage report was included in the EIS (Appendix P in Exhibit D), but did not include discussion of the bed and breakfast property at 60 Great Southern Road, despite its listing on the local heritage schedule of the Wollondilly Local Environmental Plan 2011. However, consideration of local heritage issues is discretionary rather than mandatory, and the Council has not raised any contention concerning this matter. 32The owner of the bed and breakfast property, Mr Barnes, gave oral evidence at the Bargo Community Hall in his capacity as a local resident and the President of the Bargo Progress Association. After hearing his concerns about the impact of the development on the amenity of his property the Court decided to take an inspection of that land. 33The inspection enabled the Court to better appreciate the location of the bed and breakfast cottage close to the road and the existing railway line and bridge overpass. The main homestead was located some distance from the B&B. Based on that inspection and the conclusion of the acoustic experts that Mr Barnes' property will not suffer any additional unacceptable noise impacts from the development over the existing noise from the railway and bridge overpass (which are to be upgraded substantially as part of this development) we are satisfied that Mr Barnes's objections in respect of his property do not justify a refusal of this application. 34The issue about the classification of the development as an organic waste processing facility was raised by one of the objectors Ms Law (Secretary of the Bargo Progress Association). The matter was subsequently the subject of submissions by both parties and is discussed later in this judgment.

[13]

Contention 2 The DA should be refused because it will have an unreasonable impact on the local road network, particularly as a result of increased traffic generation 39As noted above, Mr Mc Laren is the traffic expert for Council and Dr Martens is the traffic expert for the applicant. Their joint report is exhibit 8. It assesses the road design plans (Exhibit C) (Martens and Associates Road Design Plan P1103269JD09V06 dated 3 February 2014; drawings SK001 - SK022 inclusive, Revision B). 40The joint opinion of the traffic experts is there will be no unreasonable impact on the local road network from this development. Their opinion is subject to the carrying out of the road works proposed in this application, including upgrade of the Remembrance Drive/Wellers Road intersection and the construction of the currently unformed section of Anthony Road between Great Southern Road and Government Road works) and the documents identified at pp 3 - 4 of their joint report (Exhibit 8). 41They are also of the opinion that the predominate vehicular route for vehicles will be that which is shown in Figure SK006 to the Traffic Study prepared by Martens & Associates dated June 2012, Ref: P1103296JR02Vo2 (Appendix S to the EIS (V2) Exhibit D at pp2 - 3 Exhibit C). In short they are of the opinion that the vehicles will:

approach the locality from the north along Remembrance Drive;
turn left from Remembrance Drive into Wellers Road (at the intersection which is being upgraded in accordance with (Exhibit C) over the Wellers Road bridge, north of the main section of Bargo village;
turn right from Wellers Road into Great Southern Road;
turn left from great Southern Road onto Anthony Road, along the currently unformed section of Anthony Road - thereby avoiding the route currently used by vehicles travelling to the council's waste landfill facility - continuing along Great Southern Road, then using Ironbark and Government Road and turning back into Anthony Road; and
enter the facility by turning left from Anthony Road into the driveway of the facility located close to the boundary of the council's waste facility. 42Their joint evidence is that the route out (again for the vast majority of vehicles, including all trucks 9 m in length or more) will be the same in reverse. 43The traffic experts do not accept the view expressed by many of the objectors that trucks will travel through the centre of town or via the main residential areas of Bargo to the development. In their assessment they expect that the proposed road works (including the construction of the unformed section of Anthony Road) will result in the majority of vehicles (including larger trucks) taking the access route described above in [40]. They also expressed the opinion that much of the existing traffic to the council's landfill facility (which currently travels along Great Southern Road, Ironbark Road and Government Road) will also take the same route as detailed in [40]. In their assessment the proposed works will reduce the traffic movements along the residential street of Ironbark Road by about 27% and this will be a benefit for the occupants in those houses.

[19]

Odour Impacts - Contention 7: " The development application should be refused because it will result in adverse odour impacts on the likely future residents of Bargo". 59Mr Rollings is the odour expert for the applicant. Mr Roddis is the odour expert for the Council. Their joint report is (Exhibit 9). 60The experts accept the air quality modelling provided in the AECON Air Quality Impact Assessment dated 15 November 2013 (Appendix V to the EIS) and, agree that the air quality impacts of the development can be contained within the site boundary provided that adequate air quality management is implemented (pp 6 and 7 of Exhibit 9). 61To that end the experts have proposed certain conditions and the applicant agrees to the imposition of those conditions on the development consent. 62The only issue raised by the odour experts is whether there should be a 250m buffer from the site boundary to the nearest residence. It arises because Mr Roddis referred the Court to a statement in the NSW Department of Environment and Conservation Handbook for the Design and Operation of Rural and Regional Transfer Stations which states that it is desirable to have a 250 m buffer between regional waste transfer stations and residential properties. 63There is currently no residence within 500 m of the site or the Council's landfill facility. The separation distance required for a landfill facility from a residence is 500 m under the Council's DCP 2011 (see Tab 80 Exhibit 4 Volume 5 - Industrial & Infrastructure Uses, Section 3.8 "Waste or Resource Management Facilities" at p 22 under the heading "Controls" and "Location" at para 1). 64In this case the development complies with the 250 m separation distance set out in the handbook. Needless to say it is open to the Council in its consideration of any future residential development to have regard to any appropriate separation distance requirement from the development site. 65With respect to the classification of the development as an "organic waste facility" we accept the applicant's submission on the oral evidence of Mr Bulfin that the definition does not apply to this development application given the small proportion of green waste which is to be accepted at the site (some 6,000 m3) and the fact that the activities do not include composting.

[20]

Growth Management Strategy: contention 10 "the proposed development is inconsistent with the existing and future character of the area and is likely to impact on the future Growth of Bargo as depicted in the Council's adopted Growth Management Strategy" 66In order to establish a framework for planning to accommodate a larger population, the Wollondilly Shire Council has prepared a Growth Management Strategy (GMS). In broad terms, the strategy identifies areas for new residential development as well as employment areas, while at the same time preserving the 'rural living 'character of the Shire. The interpretation of the GMS and the weight that should be given to it in assessing the current proposal was the subject of competing evidence and submissions by the parties. 67Two Planning Proposals have been submitted to Council, seeking to create two new subdivisions in the general vicinity of the proposed facility. Council has deferred consideration of these Planning Proposals, pending the outcome of this appeal. 68Development within the areas of the Planning Proposals, or in any other areas where the GMS anticipates growth, might experience adverse impacts from the existence and operation of the proposed facility. The opinion of Mr Bulfin, and other relevant experts (from both parties, including Mr Brown, the Respondent's planning expert) was that any impacts would however, be slight and manageable. 69The GMS is an aspirational document, which will be subject to review and modification over time. The delineation of areas where development might occur is uncertain, and the correct interpretation of the map (Exhibit K) depicting potential development is open to several interpretations. 70The Court accepts the evidence of the experts about the impacts of the development on existing and possible future properties and recognises that the GMS, at this stage in its life, necessarily embodies considerable uncertainty. This is not a criticism of the GMS, but it does mean that in determining the outcome of this appeal the GMS can be given little weight. 71As noted the relevant local planning instrument is the Wollondilly Local Environmental Plan 2011 (WLEP) but in this case the State Environmental Planning Policy (Infrastructure) 2007 prevails to the extent of any inconsistency. The parties have competing views about the weight to be given to the zone objectives under the WLEP 2011 in this case. 72The Council has referred the Court to the decision of Hastings Point Progress Inc v Tweed Shire Council (2009) NSWCA 285 which is a case involving SEPP (Seniors Living) 2004, and inconsistency between the SEPP and the LEP. McColl JA drew the following propositions from the judgment of Basten JA (who was in the minority): 6 Relevantly one can distil from Basten JA's reasons, the following propositions with which I agree: (a) when any environmental planning instrument is relevant to a particular proposed development, it is required to be taken into account pursuant to s 79C of the EP Act; (b) in considering whether to grant approval for a development which falls under the SEPP - SL, the consent authority must also take into consideration the matters set out in s 79C(b) - (e); (c) it thus follows that the fact that a development proposal to which SEPP-SL applies accords with its provisions does not mandate that it be granted consent; (d) accordingly, the fact that a consent authority has power to grant consent for a development which accords with the requirements of SEPP-SL does not prevent it, in the exercise of its discretion, from refusing to grant that consent; (e) the distinction drawn by Preston CJ in Australian Lifestyle Corporation Pty Ltd v Wingecarribee Shire Council [2008] NSWLEC 284 referred to by Basten JA at [52] between the existence of the power to consent and the manner of its exercise as reflected in the present case, is reflected in proposition (d) above. 73Applying these propositions to the present case, it is clear that the consent authority has discretion as to whether or not to grant consent to a development application to which SEPP (Infrastructure) applies. In exercising this discretion a consent authority must take into consideration relevant matters in s 79C of the EPA Act. 74Clause 2.3(2) of WLEP states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 75It does not mandate that the consent authority must refuse consent to a development application, which does not meet the zone objectives. As such, cl 2.3(2) does not create any inconsistency between the WLEP and SEPP (Infrastructure), and the parties were in agreement that the Court should have regard to the zone objectives. 76In most cases a category of development which is permissible (with or without consent) in a zone would generally be compatible with the zone objectives. Where a development, which is normally not permissible, is rendered permissible by virtue of a SEPP, then it would not be surprising if the development would not be compatible with some, if not all, of the zone objectives (and with some or all of the aims of the plan in cl 1.2). 77The zone objectives of zone RU1 are given in the Land Use Table below: Zone RU1 Primary Production 1 Objectives of zone · To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. · To encourage diversity in primary industry enterprises and systems appropriate for the area. · To minimise the fragmentation and alienation of resource lands. · To minimise conflict between land uses within the zone and land uses within adjoining zones. · To provide for a range of land uses (including tourism-related uses) that support the agriculture industry. · To provide areas within which the density of development is limited in order to maintain a separation between urban area 78In oral evidence, Mr Seton elicited from the Applicant's planner, Mr Bulfin, an agreement that the proposal is inconsistent or not compatible with the first four of the zone objectives. However, Mr Bulfin said that the proposed land use does support the agricultural industry (zone objective 5) by providing that industry with a waste transfer/ facility. Furthermore, it is not inconsistent with (zone objective 6) because the design of the development ensures that the density of the development is limited to one area of the site in order to maintain a separation between the nearest residence or urban area. Furthermore, Mr Bulfin said that the proposal would maintain separation between urban areas because the site is accessed by a no through road. As such, Anthony Road does not connect multiple urban areas and therefore separation of urban areas will not diminish as a result of this proposal (pp 209 - 214 of the EIS Exhibit D). 79The planners agree that the GMS is not proposing any particular future residential zones but merely identifies in s 7.2.1 "potential residential growth areas". (Exhibit 12 p 2 at [A]). It is a broad policy document, which is to be re exhibited shortly and more than likely amended. 80Therefore, the planners' evidence is that it is not possible to determine with any degree of clarity that the development will adversely affect potential residential growth areas shown on the GMS because it merely indicates possible directions for 'potential residential growth areas'. Only a draft EPI, properly formulated, investigated, exhibited and supported can propose future residential zones. 81Although regard has to be had to the zone objectives, it would be contrary to the intent of SEPP (Infrastructure) and defeat its policy purpose if inconsistencies between the SEPP and the zone objectives were used as a ground to refuse consent to this development. Where the RU1 zone objectives are inconsistent with the objectives of the SEPP then cl 8(1) provides that the SEPP prevails to the extent of the inconsistency. We are therefore persuaded by Mr Howard's submissions on this issue over those of Mr Seton. Having had regard to the RU1 zone objectives we find that the proposal's inconsistency with some of those zone objectives is not a basis for the refusal of this application.

[21]

Development Control Plan 82The parties disagree about the relevance of DCP 2011 in our determination of this application. 83The applicant relying on s 74C(5)(b) of the EPA Act submits that the DCP 2011 has limited application in this case. The section provides: (5) A provision of a development control plan (whenever made) has no effect to the extent that: (a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or (b) it is inconsistent or incompatible with a provision of any such instrument. 84Section 4 of the EPA Act defines an "environmental planning instrument" to include the SEPP (Infrastructure) but not DCP 2011. Therefore, the applicant submits that by operation of s74C (5)(b) any provision of DCP 2011 that is inconsistent or incompatible with a provision of the SEPP (Infrastructure.) to the extent of the inconsistency has no effect. 85Despite s 74C(5)(b) the Council contends that any inconsistency with the objectives and provisions in DCP 2011 are a basis for the refusal of this development application. In the agreed statement (Exhibit 2 at p18 contention 11(c)) the Council contends that the development is inconsistent with the following provisions: the General Objectives - in the DCP 2011 Vol 2 - Objectives (a), (b), (c), (e) and (f); General Objectives for Industrial and Infrastructure Uses in the DCP 2011 Vol 5 - Objectives (d), (e), and (l); Objective (b) of clause 2.3.3 of DCP - Vol 5, Objective (a) and (b) of clause 2.3.12 in DCP 2011 - Vol 5; clause 3.8 Waste or Resource management facilities objective (g) and the Locational ,storage and noise/odour control in clause 3.8 of the DCP 2011. 86The Council relies on the evidence of its planner Mr Brown in support its position. In the joint report he states: "...The DCP remains relevant by operation of s 79C(a)(iii) and remains consistent with s 74BA of the Act. The consideration of the DCP is not "more onerous" than the SEPP as the SEPP contains no standards for the assessment of the proposal [s 79C (3A] " (p 27 Exhibit 12). 87Mr Bulfin however, is of the opinion that s 74BA(1) of the EPA Act is intended to "provide guidance" as distinct from mandatory controls and give effect to the aims of any environmental plan that applies to the development; facilitating development that is permissible under any such instrument and achieving the objectives of land zone under such an instrument: s 74BA(1)(a), (b) and (c). 88His evidence is that the SEPP (Infrastructure) aims to provide regulatory certainty and efficiency through a consistent planning regime for infrastructure and the provision of services, and to provide greater flexibility in the location of infrastructure and service facilitates. Any objectives or controls in the DCP 2011 which would purport to restrict these aims is inconsistent with the SEPP and therefore of no effect.

[22]

Finding on the interpretation of s74C (5) (b) 89The Court accepts that by operation of s 74C(5)(b) of the EPA Act a provision of the DCP 2011 which is inconsistent with a provision of the SEPP (Infrastructure) is of no effect. Consequently, the court's focus must be on those provisions within the DCP 2011 which are both relevant and not inconsistent or incompatible with the provisions of the SEPP (Infrastructure): 79C(iii) of the EPA Act. 90To that end we accept the evidence of Mr Brown and Mr Bulfin that the provisions in Vol 2 of the DCP are not applicable to this development because it is not development for 'Primary Agriculture' or 'Rural' use. We also accept the planners expert assessment that objective (d) of the General objectives for Infrastructure Use in the DCP - Vol 5 is not relevant because the provision refers to a task, as opposed to being an obligation for development proposals (Exhibit 12 at p 12 para 2.6.3). 91With respect to the remaining provisions at issue in these proceedings (as detailed at paras [85] and [90]) the evidence is as follows. 92Mr Bulfin is of the opinion that the development, as located and subject to the mitigation measures proposed, is consistent with the existing amenity of the area (cl 2.2 objective (e)). He is also of the opinion that the development will be undertaken in a manner that minimises land use conflict (including the existing tip next door and the Crown Land surrounding the site) (cl 2.2 objective (l)). Following a consideration of the plans of the buildings proposed Mr Bulfin lists at p 31 of Exhibit 12 the design features of the development which he believes supports his assessment that the development is of good design and will ensure that the development does not have adverse impacts on the amenity of the area: objective (b) of cl 2.3.3 Building Design of DCP 2011 Vol 5). He specifically refers to the existing vegetation on the western boundary of the site significantly obscuring the location of the proposed facility from most vantage points and the additional screening from the regeneration of native vegetation within a 20 m wide buffer along the Anthony Road frontage. 93The application also proposes a 4.5 m wide landscaped acoustic mound along the southwestern part of the facility that will provide further screening. The buildings are generally open sided structures with Butterfly roofs (except the truck workshop) and this design according to Mr Bulfin will minimise bulk. There is no longer sitting on a raised platform so the development will be lower on the site and given its isolated location in excess of 500 m form the nearest dwelling Mr Bulfin believes that the proposal will not have any adverse impacts on the amenity of the area. 94Mr Brown does not agree because he is of the opinion that the development would be more appropriate in an industrial zone. In his assessment the buildings and the functions of the proposal are such that are not ordinarily found in a rural area. He states that the proposed acoustic mound and landscaping buffer cannot be considered consistent with the amenity of the area (Exhibit 12 at [31]). 95With respect to cl 2.3.12 of the DCP 2011 the applicant submits on the evidence of Mr Bulfin and Dr Martens that the development will not adversely impact on surrounding rural or residential development subject to the imposition of the agreed conditions and appropriate traffic management measures. 96As Mr Brown correctly states that the permissibility of this proposal is brought about by the provisions within the SEPP (Infrastructure) that aim to provide "...greater flexibility in the location of infrastructure service facilities": cl 2(ii). It is not a land use envisaged by the permitted use within the Wollondilly LEP 2011 and is clearly an industrial type operation located within a rural area on the edge of Bargo (p 23 Exhibit 12). With that in mind any provision in the DCP 2012 which is inconsistent with a provision of the SEPP must have no effect: s 74C(5)(b). 97Having observed the existing amenity of the site and surrounding land at the Court view taken at the commencement of the hearing we accept Mr Bulfin's expert evidence that the design and location of the built form on the land together with mitigation measures proposes will ensure the development is consistent with the existing amenity of the area and will be undertaken in a manner that minimises land use conflict. 98Furthermore, the Court is satisfied on the evidence of the acoustic experts, Mr Bulfin and Dr Martens and Mr McClaren that the development will achieve the relevant noise control objectives in (a) and (b) of cl 2.3.12 in the DCP 2011 Vol 5 by appropriate acoustic mitigation measures in accord with Controls 1 and 2. 99With respect to cl 3.8 Waste or Resource management facilities in the DCP 2011 the applicant submits on the evidence of Mr Bulfin and its other experts that a conditional approval of this amended application will achieve the objective of "...orderly and economic development of waste management facilities in an appropriate location". 100In saying this the applicant contends that for the reasons stated at p 33 of Exhibit 12 the proposal is not landfill and that the organic waste processing component of the proposal constitutes a minor part of the overall maximum annual waste volume (less than 10%). The proposal does not compose green waste therefore; the proposal is not an organic waste facility. . 101However, if the Court determines otherwise the applicant concedes that the development cannot meet the locational criteria for setbacks of 500 m from all the boundaries of the site. In order to comply with this control, Mr Bulfin said, based on a facility occupying an area of 300 m x150 m, that compliance with the 500 m Control could only be achieved on a lot comprising 150 ha. Mr Bulfin considers that compliance with this Control is unreasonable and unnecessary given the minor scale of the organic waste processing proposed in this application particularly, when the impacts of the development are either contained onsite or mitigated.

[24]

Finding - Does the development achieve the objective (g) in cl 3.8 of DCP 2011 "...orderly and economic development of waste management facilities in an appropriate location" 103Mr Brown's evidence is that the setback control is to set parameters to be addressed when selecting sites for such uses. In these circumstances he says the applicant needs to demonstrate that whilst the locational criteria are not met the objectives have been met. 104The amended development is to be located on land that is categorised as being class 3 agricultural land (T Hulme, T Grosskopf and J Hindle (200) Agricultural Land Classification. Agfact AC.25, NSW Agriculture). This places it in the middle classification - it is not the most productive but it is not the poorest. However, it has not been used for agricultural purposes except for a casual basis since the 1970s. The biodiversity values of the land, however, are recognised by both parties. The proposal is to protect those values through a covenant and enhance the natural resource base. In doing that however, the site is still capable of providing an accessible waste transfer facility development to complement the adjoining existing Council operated landfill site. The evidence is that the development will be incorporate appropriate acoustic mitigation measures and screening. The closest residence is some 500 m from the development and development is not being constructed near existing urban areas. The off-site road works will ensure appropriate and safe access to the site and to some extent the community will also benefit from the upgrade of the roads. Some residents will experience a decrease in traffic by up to 27% because of the altered traffic routes facilitated by an approval of this development. 105The evidence demonstrates that the development's impacts in respect of odour and noise will be contained within the site and, that there has been compliance with the Director's requirements (Appendix A Exhibit D). 106The EIS assessment concludes that the proposal is not inconsistent with, nor does it offend, any of the general objectives. In particular, notes that the proposal achieves objectives (a), (b), (c), (d), (f), (g), (h), (i), (j), (m) and (n) as they relate to infrastructure (Part H of the EIS (Exhibit D at paragraph 47.2.2 p 215). After a careful consideration of all the relevant provision of the DCP 2011 and the extensive written and oral evidence received by the Court from the experts we find the development to be located appropriately and compliant with any relevant distance provision in cl 3.8 of the DCP 2011 Vol 5.

[25]

Ecological issues - contention 12 107Shale Sandstone Transition Forest (SSTF) is an Endangered Ecological Community (EEC) under both the TSCA and EPBC Act. Lot 252 is largely vegetated with SSTF, in good condition in the northern part of the site, in less good condition in the southern part. (Appendix L in the EIS - Exhibit D). Lot 252 is currently ungrazed. The southern part of the site is dominated by the native grass Themedaaustralis, flowering and fruiting heads of which stand in sharp contrast to the very low grazed grasses on properties to the south and west. 108SSTF also occurs on the northern verge of Anthony Road immediately south of Lot 252 (appendix M, EIS - Exhibit D). This verge also provides habitat for a stand of the vulnerable shrub, Pomaderrisbrunnea. 109The proposal involves the loss of 3.706 ha of SSTF grassland in the southeast of Lot 252. The applicant proposes as an offset for this loss the dedication, by registration of an appropriate covenant on title as a conservation area, an area of the EEC totalling 8.878 ha, as depicted in Exhibit U. 110The ecological consultants, Ms Hayes for the Applicant and Mr Humphries for the Respondent, in their joint report considered that an offset area of 9.15 ha would be appropriate, indicating a deficit between the Applicant's proposal and the ecologists' target. 111The experts suggested that the deficit could be addressed in one of two ways, by purchase of an additional (unspecified) area elsewhere, or through purchase (and retirement) of biodiversity credits. 112Considerable time was spent debating the basis for the calculations of the credit which would be required. 113Mr Howard submitted that there was no basis for requiring the Applicant to provide additional offset, either on a separate parcel of land or as biodiversity credits. 114During closing submissions, the parties agreed that there was no requirement for additional offsets, so it is unnecessary for the Court to resolve either the question of authority or the calculation of credits. 115The shortfall identified by the experts was based on anticipated loss of habitat through road widening and drainage during upgrading of Anthony Road. On the view, it was agreed, verbally, by the traffic experts (Dr Martens for the Applicant and Mr McLaren for the Respondent) that the necessary upgrading of the road could be conducted without impact on the vegetated verge. When this agreement is factored into consideration, the perceived shortfall in offsets disappears. 116However, no plans have been tendered as yet, nor any condition offered, which provides an enforceable foundation to the agreement between the traffic experts.

[26]

The alternative site issues 117A matter of considerable concern to residents, reflected in both the written submissions and oral evidence was the justification for the choice of the particular site. The respondent, in its contentions and submissions argued that the applicant had failed to properly address the Director General's requirements for the EIS in the discussion of alternative sites. 118There is nothing to suggest that users of the proposed facility should be restricted to residents of Wollondilly. Waste consigned to the facility could be from anywhere. Given the Council has an existing contract for residential putrescible waste to be disposed of at the Jack's Gully (Spring Farm) facility in Camden LGA, the residents suggested that waste for Bargo could continue to be transported to Jack's Gully, a facility and a landfill resource recovery centre and a materials recycling facility. 119Residents also argued that if additional capacity were required it could be provided at a number of localities not necessarily restricted to Bargo. 120If waste for the new facility would be coming from outside Bargo, where would it be coming from? The EIS was based on the premise that the majority of waste would arrive from the north via Remembrance Drive, with traffic turning east onto Wellers Road and then south on Great Southern Road to the intersection with Anthony Road where traffic would turn east to the facility. The likely proportion of traffic travelling from the freeway and arriving at Bargo from the south was estimated in the EIS to be low. Any traffic from the south would be directed onto Remembrance Drive to the Wellers Road bridge. 121The residents' submissions reflect a belief that the EIS and traffic studies underestimated the amount of traffic which would travel south along the freeway and then enter Bargo from the south. 122However, the traffic experts agree with the scenario of traffic arrival from the north detailed in the EIS. In the absence of evidence of quantifiable data to overturn the agreed joint report the Court has no basis to reject that evidence. 123While submissions were made that a site near Maldon would be preferable, there was no detailed analysis backed by data or demand for a Maldon site. The absence of nominated alternative sites again limits the Court's options, in that reasons to support specific alternate sites cannot be advanced. 124The applicant submitted that the obligation to assess alternate sites had been satisfied by inclusion in the EIS of two alternate sites in Bargo and that there was no requirement, implied or otherwise, for the applicant to volunteer alternative sites at further distances. 125In the applicant's written submissions (at paras [61]-[64]) Mr Howard submits that the EIS has been properly notified to the relevant agencies and potentially affected persons and that the public participation has not been prejudiced. 126On the evidence of Mr Bulfin, he says that the EIS complies with the requirement to assess alternative sites. With respect to having regard to overseas experience and technologies Mr Bulfin told the Court that the DG's requirements referred to the relevant attachment as a guideline only and that the guideline applied generally to both landfill sites and waste transfer stations. 127Mr Bulfin told the Court that the reference in the guideline to assessing overseas experiences and technologies 'was apt to landfill facilities' not waste transfer stations. His evidence was not contradicted by the Council's expert, so we accept his evidence. 128With respect to the adequacy of the EIS in regard to fire and incident management we accept Mr Bulfin's uncontradicted evidence that it is compliant with the Director's requirements (AWS at [63]). 129In his evidence Mr Bulfin pointed out that the EIS (s 9.4) assessed landfill as an alternative to waste transfer facility. 130Based on the evidence we are satisfied that the applicant has satisfied the Directors' requirements and considered alternate sites in accordance with the requirement.

[28]

Conditions 134The Court has decided to impose a condition requiring all of the works which fall within s 80A(2) of the EPA Act to be carried out to the satisfaction, determined in accordance with the regulations, of a person specified by the consent authority (Council). 135In all other respects the conditions are to read private certifier. 136With respect to the operator vehicles the evidence supports the imposition of the condition allowing truck movements between 5am and 7am on weekdays for two trucks (condition 98) but subject to the further testing as proposed by Dr Greer. 137A condition requiring the Council to maintain the vegetation in the road reserve (near the threatened species) needs to be formulated. 138A condition needs to be drafted to address the works on any land outside the site necessary to facilitate vehicle access and egress to the site. 139The Court requires a condition to give effect to the matters raised in [115] -[116] of the judgment. 140The Court imposes condition 45 for a period of 12 months. 141The Court imposes condition 52 as proposed by the Council. 142The Court does not impose the following draft conditions: condition 133, and condition 24 in its assessment can be dealt with at the construction certificate stage, with respect to condition 71 the Court considers it to be both unreasonable and unenforceable. 143The Court asks the parties to prepare a condition requiring a qualified fauna expert to be present to protect fauna during the removal of trees and other vegetation to improve sight lines in the letter from Transport for NSW dated 3 March 2014 (Exhibit R). 144The conditions are to include any comment from the RMS as detailed in their letter to the Council dated 12 February 2013 (exhibit 6). 145Accordingly, the Court orders: (1)The parties are directed to file conditions of consent that reflect the Court's reasons for judgment within 14 days. (2)In the event that the parties are unable to reach agreement in respect of the conditions of consent (in accordance with order 1) they have leave to approach the Registry for the purpose of having the matter relisted before the Court. Susan Dixon Commissioner of the Court Paul Adam Acting Commissioner 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: 02 April 2014

Ironlaw Pty Limited v Wollondilly Shire Council

At a glance

Court

Decision date

Before

Source

Judgment (28 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (3)

Cited By (1)