Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd and ors

Land and Environment Court (NSW)|2017-12-14|Before: Mr J

Judgment

COMMISSIONER: This is a third party appeal by Moorebank Recyclers Pty Ltd (Moorebank) under s 79(5) of the Environmental Planning and Assessment Act 1979 (the EPA Act). The appeal is against the approval of Development Application DA 781/2015 by the Sydney West Joint Regional Planning Panel (later renamed as Sydney South West Planning Panel) on 29 September 2016 for Benedict Industries Pty Ltd (Benedict) to allow for the construction and operation of a marina on part Lot 7 DP 1065574, 146 Newbridge Road, Moorebank (the Marina site).
The proposed marina is classified as designated development under cl. 23 of Schedule 3 of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulations). The site is owned by Tanlane Pty Ltd (Tanlane), a company associated with Benedict.
Sydney South West Planning Panel (First Respondent) and Liverpool City Council (Second Respondent) filed submitting appearances in the proceedings.

Background

In 1993 the Land and Environment Court granted development consent to extract sand by dredging on part of Lot 7, in the general area of the Marina site (the 1993 consent). The conditions of consent authorised the backfilling of excavations from sand dredging for rehabilitation purposes. This was subject to conditions, including that only clean demolition and excavation materials, including fill, soil and rock, shall be used to backfill the excavation for rehabilitation purposes (condition 28) and that all fill must be inspected and records kept of the source, nature and quantity of all incoming loads of fill (condition 31). Other conditions required monitoring so that the operation does not have an adverse impact on water quality in the Georges River (conditions 26, 27 and 33).

The proposal

The Environmental Impact Statement (pp E.2 and E.3) describes the proposed development as having the following components: 1. The maritime building located near the western boundary of the marina site. This structure will house: * a dry berth facility providing 250 berths for small craft, * a function centre; tourist, entertainment and recreational and club facilities, and * a petrol tank (about 60,000 L) and a diesel tank (about 60,000 L). 1. A wet berth facility for 186 small craft (including casual berths) which will consist of: * a marina basin, * rock protection of the basin and foreshore including embellishment and revegetation of the river foreshore, * construction of public recreational facilities on the foreshore including bike paths, barbeque facilities and shelters, * floating berths and walkways, * fuel pumping facilities, * sewage pump-out facilities, and * emergency berth access. 1. Three external carparking areas and basement carparking providing a total of 637 car spaces (Carparks A, B and C), 2. A private marina clubhouse on the northern portion of the private recreation zoned land, and 3. Support infrastructure - power, water and sewerage.
The proposal is shown below superimposed over an aerial photograph.

The site and surrounding area

Lot 7 in DP 1065574 is irregular in shape and has a partial eastern and partial southern boundary to the Mean High Water Mark (MHWM) of the Georges River, an eastern boundary of around 830m and a northern boundary to Newbridge Road of around 160m. The northern part of Lot 7 (the northern Tanlane land) has been used for the purposes of landfilling, waste processing and recycling. The northern Tanlane land has an area of approximately 9 ha and is proposed to be redeveloped for residential purposes consistent with a R3 zone although there is no development consent for this use at the time of the hearing. Earth moving and what appeared to be leveling of the land was being undertaken at the time of the site inspection.
The Marina site is approximately 13 ha in area and until about 2015 was used for landfilling of waste, waste stockpiling and storage and sand extraction by dredge (the 1993 consent). This part of the land contains a large dredge pond of approximately 6 ha, together with stockpiles of materials adjoining the dredge pond.
To the south of Lot 7 is the land is owned by Moorebank (the Moorebank land) being Lot 6 DP in 1065574. The Moorebank land includes an access handle of about 900 m in length from Newbridge Road (the pan handle) to the main body of the land. Lot 6 has an area of 20.5ha. On 11 September 2015, the Planning Assessment Commission (PAC) approved a project application under s.75J of the EPA Act for a materials recycling facility (MRF) on the Moorebank land for processing up to 500,000 tonnes of masonary construction and demolition waste per year. It is zoned E2 Environmental Conservation and the permissibility of the MRF comes from being an additional permitted use identified in Sch 1 of Liverpool Local Environmental Plan 2008 (LEP 2008).
On 8 October 2015, the council and Benedict commenced objector appeals under s.75L of the EPA Act against the PAC decision to grant the MRF approval. The Court, in hearing the appeal, decided to grant approval (Appeal No. 2016/159652). This decision was appealed and has been heard by the Court of Appeal but no decision had been made at the time of the hearing.
The Marina site is outlined in red and the area marked "Planned Georges Cove Residential Area" is the northern Tanlane land. The area marked "Proposed Material Recycling Facility" is owned by Moorebank. Newbridge Road is located to the north and the Georges River to the east. The area marked "Flower Power Plant Nursery" does not form part of Lot 7.

The contentions

The concerns of Moorebank, as set out in their Amended Statement of Facts and Contentions, can be summarised as;

inadequate contamination assessment, including management of landfill gas, asbestos, mercury and leachate,
no owners consent for work below MHWM within the Georges River,
impact on aquatic ecology and the water quality of the Georges River,
unacceptable access arrangements to and from the site for construction vehicles, and
inadequate information in relation to future use and planning of the public areas along the Georges River.

The evidence also included town planning evidence although it was generally accepted that the concerns raised by the respective town planning experts, Mr Kennan, for Moorebank and Mr Mitchell for Benedict, largely followed the evidence of their other respective experts in their different fields. Mr Kennan and Mr Mitchell were called to give evidence but limited to the issue relating to owners consent for land below the MHWM.

Relevant planning controls

The Marina site is partly zoned RE1 Public Recreation (RE1 Zone) and partly RE2 Private Recreation (RE2 Zone). The W1 Natural Waterways zone (W1 Zone) adjoins the RE1 zone and generally follows the Georges River. The boundary of the W1 zone and the RE1 Zone was a matter of disagreement between the parties. The zoning of the Marina site and the Georges River are pursuant to LEP 2008. Development for the purpose of a marina on land zoned RE1, RE2 and W1 is permissible with development consent. Clause 2.3(2) requires that regard be given to the zone objectives in considering a development application.
The objectives of the RE1 Zone are:

To enable land to be used for public open space or recreational purposes.
To provide a range of recreational settings and activities and compatible land uses.
To protect and enhance the natural environment for recreational purposes.
To provide sufficient and equitable distribution of public open space to meet the needs of residents.
To ensure the suitable preservation and maintenance of environmentally significant or environmentally sensitive land.

The objectives of the RE2 Zone are:

To enable land to be used for private open space or recreational purposes.
To provide a range of recreational settings and activities and compatible land uses.
To protect and enhance the natural environment for recreational purposes.
To enable land uses that are compatible with, and complimentary to, recreational uses.

The objectives of the W1 Zone are:

To protect the ecological and scenic values of natural waterways.
To prevent development that would have an adverse effect on the natural values of waterways in this zone.
To provide for sustainable fishing industries and recreational fishing.
To enable the recreational enjoyment or scientific study of the natural environment.
To allow development for water recreation purposes that does not have a significant adverse effect on the natural values of waterways in this zone.

The Dictionary to LEP 2008 defines "environmentally significant land" as being "the land identified as environmentally significant on the Environmentally Significant Land Map" (Sheet ESL-014). The land identified on the Environmentally Significant Land Map generally follows the boundary of the RE1 zoned land. Clause 7.6 requires that before determining an application to carry out development on environmentally significant land, the consent authority must consider the matters in cl 7.6(2).
The Dictionary to LEP 2008 defines "foreshore building line" as being "the foreshore building line shown on the Foreshore Building Line Map" (Sheet FBL-014). A foreshore building line (FBL) is located within the RE1 land and generally follows the Georges River. Clause 7.9(1) provides an objective for the clause, cl 7.9(2) provides matters that may be carried out with development consent and cl 7.9(3) requires that development consent must not be granted to development unless the consent authority is satisfied that the development satisfies those matters in the sub-clause.
Liverpool Development Control Plan 2008 (DCP 2008) applies to the site. Section 4 of Part 1 of DCP 2008 applies to land including land in the W1 Zone. Section 7 of Part 1 of DCP 2008 applies to development near a watercourse, which includes the Georges River. Part 2.10 of DCP 2008 specifically address Development in Moorebank East and applies to the site. Figure 2 addresses the site and reiterates the zonings under LEP 2008. The controls relate principally to the R3 zoned northern Tanlane land.
The Greater Metropolitan Regional Environmental Plan No 2-Georges River Catchment (the REP) applies to the Georges River Catchment which is part of the region declared under the EPA Act as the Greater Metropolitan Region. The catchment includes parts of Liverpool City, including the site. Clause 5 provides aims and objectives. A general aim and objective of the REP is to maintain and improve the water quality and river flows of the Georges River and its tributaries and ensure that development is managed in a manner that is in keeping with the national, State, regional and local significance of the catchment (cl 5(1)(a)).
The planning principles in Part 2 of the REP apply when a consent authority determines a development application, including a marina (cl 7(b)). Clause 8 of the REP provides that when determining an application, a number of matters identified in the clause must be taken into account: These include the aims and objectives of the REP (cl 8(a)) and the likely effect on adjacent or downstream areas (cl 8(b)). Clause 9 identifies specific planning principles that must be taken into account. These include Bank disturbance (cl 9(2). Part 3 provides Planning requirements for specific development. Item 15 of the Planning Control Table provides specific requirements for marinas and slipways.
State Environmental Planning Policy No 55-Remediation of Land (SEPP 55) applies. Clause 7 provides requirements for land that may be contaminated when considering a development application. SEPP 55 makes reference to the contaminated planning guidelines. The contaminated land planning guidelines are Managing Land Contamination Planning Guidelines SEPP 55-Remediation of Land 1998 (contaminated land planning guidelines). Table 1 to the Contaminated Land Guidelines lists different activities that may cause contamination of land, including "mining and extractive industries" and "landfill sites".

Contamination

The contentions raised by Moorebank state that the contamination assessment has not been carried out in accordance with SEPP 55 given that the assessment did not properly take into account the potential for the movement of landfill gases and leachate from the northern Tanlane land towards the Marina site. Also, the likely presence of asbestos was not properly assessed. Further concerns were raised by Moorebank over the potential contamination from previous activities on the Marina site and also the wider impacts on the Georges River when the marina access is opened to the Georges River.
Expert evidence on contamination was provided by Dr Lange Jorstad, for Benedict and Dr Sophie Wood for Moorebank. Dr Jorstad produced an individual report (Exhibit 5 - dated 6 April 2017), a supplementary individual report (Exhibit 9 - dated 11 September 2017) and a joint report with Dr Wood (Exhibit 13 - dated 7 November 2017). Dr Wood produced individual report (Exhibit B - dated 23 June 2017) and the joint report (Exhibit 13 - dated 7 November 2017). Both experts have extensive experience in contaminated land.
The documents provided by Benedict and relied upon by the experts for the purposes of SEPP 55 consisted of the following:

EMM (2015) Prelirninary Investigation of Contamination, Proposed Georges Cove Marina. 28 July 2015 (the Marina PI)
EMM (2016) Supplementary Preliminary Investigation, Proposed Georges Cove Marina. 11 March 2016 (the Marina SPI), and
EMM (2016) Remediation Action Plan, Proposed Georges Cove Marina. 11 March 2016 (the Marina RAP)

At times, there was some overlap with the contamination and water quality sets of experts and this has been included when needed. I have not included comments from the town planning experts where they have made comments beyond their field of expertise.

The evidence

Dr Jorstad notes in his individual expert report that the primary objective of a preliminary investigation is to assess the likelihood for current or historical land uses to have resulted in contamination of the land. The Marina PI contained a review of historical land uses at the Marina site. Based on the information provided in the Marina PI report, and independent review of aerial photographs; the only visible evidence of potential landfilling on the Marina site was what appeared to be a patch of cleared land in the northern portion in the 1978 aerial photograph, with an access track connecting it to what appeared to be an operational area on the northern portion of Lot 7. While a detailed inventory of waste disposal activities on the Marina site was not available in the historical record, this is not unusual for landfills that operated prior to the advent of the current licencing and regulatory framework. The information sources referenced in the review of historical land uses in the Marina PI report are considered to be consistent with standard industry practice, and the lack of specificity regarding historical waste disposal operations on the Marina site is considered to be a consequence of historical operating practices rather than a deficiency in the historical review.
The potential for landfill leachate generated on the northern Tanlane land to migrate in groundwater to the Marina site was identified, and considered throughout the Marina PI report. The potential for landfill gas from the northern Tanlane land to pose a risk to the Marina site was acknowledged in the Marina PI report, however was not discussed further in the report.
At the time that the Marina PI and Marina SPI reports were being prepared, it was understood that separate investigations were being conducted for the northern Tanlane land, however, the details of those investigations were not available for review at the time. Accordingly, the details of the land use history and the contamination status of northern Tanlane land were limited in the Marina PI and Marina SPI reports. However, a review of contamination information from the northern Tanlane land that was not available at the time the Marina PI and Marina SPI reports were prepared, suggests the potential for the northern Tanlane land to act as a source of cross-boundary groundwater quality and landfill gas issues for the Marina site.
In relation to the dredge pond sediment, Dr Jorstad stated that the Marina PI and Marina SPI sediment quality results are considered to be reasonably representative of the sediment profile as a whole, which was supported by the low variability in the reported sediment analytical results. In addition, the impact to pond water quality evident from the Marina PI and Marina SPI results is considered to be characteristic of the disturbance and suspension of sediment resulting from active suction dredge operations. These results are likely to be conservative with regard to post-extraction scenarios.
Asbestos containing materials (ACM's) were addressed by Dr Jorstad where he states that an historical precedent for ACM in fill material exists for the northern Tanlane land, and despite no recorded observations of ACM during soil investigations on the Marina site, the omission of laboratory asbestos analysis of soil samples precluded a supporting line of evidence for the field observations. However, the reports conservatively concluded that the potential for ACM to be present in fill should be the default assumption, and proposed a common approach to identifying and managing ACM if it was encountered during construction. Accordingly, the question of whether ACM could be present in fill material on the Marina site should not preclude the proposed land use as a marina, as long as potential ACM encounters during construction are managed through the implementation of a robust unexpected finds protocol.
With respect to landfill leachate, the groundwater quality results from the northern Tanlane land indicated elevated ammonia concentrations in groundwater, particularly beneath the centre of the operational area, and measured water levels in monitoring wells indicated the potential presence of a groundwater mound with radial groundwater flow in all directions, including south towards the Marina site. While the Douglas Partners Detailed Site Investigation, Proposed Residential Development 146 Newbridge Road, Moorebank, March 2016 report (Douglas Partners (2006)) was not available for review during the preparation of the Marina PI and Marina SPI reports, the potential for leachate migration in groundwater from the historical landfilling operations on the northern Tanlane land had been assumed in the conceptual site model. With regard to the potential for the Marina site to contain landfill gas, it is understood from the Douglas Partners (2016) report that the likely source of gas generation on the northern Tanlane land was disposal of wood waste, which is also specified on the Environment Protection License (EPL) (along with paper waste, another known source of landfill gas resulting from biological decomposition). The Douglas Partners (2016) report described a remediation trial on the northern Tanlane land to attempt to reduce the magnitude of methane generation, consisting of excavation and removal of woody waste from the fill profile in the vicinity of reported high methane concentrations, and reinstatement with inert fill.
Dr Woods raises a number of concerns over compliance with SEPP 55. She states that the site history is considered very briefly in both the Marina PI and Marina SPI. Together, these reports do not provide a sufficient understanding of history of the site itself, or the adjacent northern Tanlane land. Since Benedict holds the EPL's for both areas, Dr Woods considers that it would be reasonable that a more comprehensive assessment should be provided. This is particularly important for understanding the history of landfilling on both areas (the northern Tanlane land and the Marina site) and the potential for contamination to adversely affect the proposed marina development.
Dr Woods maintains that the Marina PI and Marina SPI are not compliant with current Environment Protection Agency (EPA) or other relevant guidelines on reporting on contaminated site assessment, with respect to not having included all the data upon which the conclusions rely, not including data quality objectives. Having provided inadequate records of the field investigations, Dr Woods accepts that the density of test pitting is adequate, however the fill depth in different areas of the site is unclear. Because of the poor field records there is limited actual evidence that a careful visual assessment of fill materials for ACM's was conducted during test pitting. Dr Woods does not consider that it has been sufficiently demonstrated that the site is suitable for use with respect to asbestos. Also, the sampling of the dredge pond area leaves significant uncertainty as to the nature of the material beneath the current base.
The Marina RAP also has an unexpected protocol, which Dr Woods describes as brief and generic, to manage risks where potentially hazardous or unsuitable materials are encountered during the works, including asbestos. This method is based on an assumption that the site is expected to be suitable for use with respect to asbestos, and that no remediation is necessary unless asbestos is discovered during excavation. The Marina RAP also does not provide details of what validation is proposed (which is a requirement of the NSW Office of Environment and Heritage (2011) Guidelines for Consultants Reporting on Contaminated Sites)( OEH Guidelines (2011)). It is unclear whether validation for asbestos would be carried out or not on areas proposed for soft cover uses (such as recreational, wetland areas and landscaped areas). The Marina RAP also does not include any discussion of the need for a long term management plan which is a requirement of the OEH Guidelines (2011), if a long term management plan is needed, which according to Dr Wood, it is.
Further, none of the reports submitted in support of the development application provide an assessment of landfill gas which is a serious omission for a site known to have been landfilled. Dr Woods considers it reasonably likely that there may be gas sources within the on-site fill, and also possible that gas migration from the northern Tanlane land could affect proposed buildings on the Marina land.
On the basis of her previously identified concerns, Dr Wood considers that the Marina RAP provides insufficient information to demonstrate that asbestos and land fill gases will be managed appropriately, either during the works or post development.
The supplementary individual report of Dr Jorstad (Exhibit 9) was dated 11 September 2017. The terms of reference in cl 1.3 were described as; The following instructions were provided by Minter Ellison to Geosyntec regarding the questions to be addressed in this supplementary expert report: 1. Review of the four individual expert reports filed by Moorebank in the proceedings, particularly in respect of the contamination related contentions raised in the individual expert reports of Dr Ian Campbell and Dr Sophie Wood; 2. Review of the amended SOFAC annexed to Moorebank's Notice of Motion of 11 July 2017; and 3. Prepare an individual expert report responding to: a. the contamination related issues raised in the expert reports filed by Moorebank, in particular the allegations that insufficient information in relation to contamination impacts have been provided; and b. any relevant facts or contentions in Moorebank's amended SOFAC.
Based on his instructions, Dr Jorsted provides the following comments:

the information contained in the additional historical land use documents referenced by Dr Wood does not materially change the outcomes of the site history review in the Marina PI, and would therefore not have changed the design of the investigation programs for the Marina PI or Marina SPI. The review of historical land uses is considered to be suitable for the purposes of a preliminary investigation, and therefore suitable to fulfill the relevant requirements of SEPP 55.
there is no direct evidence that contaminated fill material, or fill material containing putrescible waste, was used as backfill in the dredge voids, in contravention of the consent conditions for sand extraction.
the contamination status of the Marina site is considered to be characterised to a level consistent with a robust preliminary assessment. Certain data gaps are acknowledged, including the limited field documentation from the test pitting program, however, verbal descriptions of test pit observations were obtained from the field engineer who conducted the work, which were particularly detailed in respect of the presence and type of anthropogenic debris encountered in the test pits. Notably, the presence of ACM fragments was not reported by the field engineer.
the identified data gaps in the Marina PI and Marina SPI reports are considered to be minor in nature, and the reports are considered to provide an acceptable preliminary characterisation of the contamination status of the site, with actions in the Marina RAP designed to manage potential uncertainties prior to or during construction.
the potential for landfill gas present on the northern Tanlane land to migrate southward and present a potential hazard to the marina development has been recognised. It is recommended that any landfill gas mitigation strategy implemented at the site boundary be accompanied by a monitoring program to ensure the efficacy of the system and to provide for early identification of fugitive landfill gas emissions well before they approach the enclosed structures on the Marina site.
the Marina RAP is considered to be sufficiently robust to address the contamination issues identified during the Marina PI and Marina SPI. Conservative assumptions have been adopted for certain contamination issues (such as asbestos, despite it not having been identified on the Marina site), and the remediation approaches are considered to be appropriate to the issues identified.
the groundwater impacts arising from the landfilling on the northern Tanlane land have been recognised and were considered in the development of the Marina RAP. The remediation and development of the northern Tanlane land is likely to reduce the production of landfill leachate and landfill gas on the northern Tanlane land and the associated flux of leachate contaminants onto the Marina site are also expected to diminish.
the marina development is considered unlikely to exacerbate any existing contaminant flux from the northern Tanlane land to the Marina site and beyond to the Georges River. Accordingly, the groundwater quality beneath the dredge pond is not considered to be incompatible with the operation of the site as a commercial marina.

In conclusion, Dr Jorstad does not consider that any of the concerns raised in Dr Wood's report have materially diminished the compliance of the contamination assessment required by SEPP 55. Nothing raised by Dr Woods constitutes a significant concern with regard to the ability to render the site suitable for use as a commercial marina, following the usual process of remediation, validation and issue of a Site Audit Statement. Any concerns are addressed through conditions requiring the preparation of a Landfill Gas Assessment and Asbestos Management Plan.
What followed was the joint report by Dr Woods and Dr Jorstad dated 7 November 2017. While this report contained little areas of disagreement, there were important areas where agreement was reached. These were:

site historical records from operation of the landfill and from sand extraction are limited,
the Marina PI and Marina SPI did not consider all the site history information that was available such as investigation of the fill at depth in the dredge pond area, limited assessment of soil quality in the land areas and sediment quality at the dredge pond bed. The records of sampling provided very limited description of the materials encountered and no records of observations were included in the Marina PI. Neither report provided adequate observations on the potential presence of asbestos in the fill. Neither report included assessment of landfill gas.
there is significant uncertainty regarding the extent of landfilling, the location of landfilling, and the nature of the wastes that may be present on the Marina site. Some of the health and environmental risks that may affect the construction and occupation of the proposed marina have not been sufficiently considered.
it is possible that solid waste material could be present at depth beneath the dredge pond, and if present could be contributing to groundwater quality impacts beneath the site. Whilst the information available does leave significant uncertainty regarding the presence of wastes below the pond bed, the potential risks can be adequately managed.
the detailed site investigation report from the northern property (Douglas Partners, (2016)) indicated the historical presence of ACM fragments in several stockpiles, on the ground surface, and in one borehole location. Consequently, there is a reasonable potential for asbestos in the form of ACM fragments to be present in fill on the Marina site. In light of the limitations of the asbestos assessment during the preliminary investigations, more robust management is required to ensure that the site can be made suitable for use.
the information contained in the Marina PI and Marina SPI that fill material on the Marina site may have the potential for gas generation.
the potential exists for landfill gas generated on the northern Tanlane land to migrate laterally and impact the Marina site which could have the unintended effect of exacerbating the lateral migration landfill gas.
a landfill gas investigation in accordance with NSW EPA requirements should be carried out including gas monitoring boreholes on the marina property at locations where structures are proposed, and on the north-western boundary between the Marina site and the northern Tanlane land. Monitoring of landfill gas on the north-western boundary should continue following the development of the northern Tanlane land until it is demonstrated that there is no significant landfill gas migration resulting from the development of the northern Tanlane land. If landfill gas were to migrate southward from the northern property onto the Marina site, it could potentially pose a risk to the structures proposed as part of the marina development.
landfill leachate is likely to be generated beneath the northern Tanlane land, based on the history of landfilling and the groundwater analytical results from this property, which indicate the presence of elevated concentrations of ammonia (a common landfill leachate indicator) in groundwater. Groundwater level measurements indicate that leachate-impacted groundwater was migrating southward from the northern Tanlane land towards the Marina site.

Clause 7 of SEPP 55 states: 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is: (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital - land: (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

The question of how an assessment of contamination is addressed appropriately through SEPP 55 is set out in the decision of Preston CJ in Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40 at [43] to [70]. The "contaminated land planning guidelines" are defined in cl 4(1) of SEPP 55 to mean guidelines under s 145C of the EPA Act. The current planning guidelines under s 145C of the EPA Act are the contaminated land planning guidelines

Is there a failure to comply with SEPP 55

In accordance with cl 7(1)(a), the parties accept that the Marina site is contaminated. The parties disagree that the land will be suitable for a marina. Benedict maintains that the work undertaken in the Marina PI ,the Marina SPI and the Marina RAP, together with the proposed conditions of consent will allow the Marina site to be used for a marina, subject to remediation, before it is used for that purpose (cl 7(1)(c)). Moorebank come to the opposite conclusion on the basis that there has been insufficient data collection and analysis carried out by Benedict to reach a conclusion that the Marina site can accommodate a marina.
The development application involves a change of the use of the land from an extractive industry to the proposed marina development. It is a change of use identified by cl 7(4) and the contaminated land planning guidelines, therefore cl 7(2) of SEPP 55 is engaged. In addition, the northern Tanlane land had been used for the purpose of landfill, an activity that may cause contamination and is listed in Table 1 to the contaminated land planning guidelines. While the land is not part of the marina development it is land that is a potential source of contaminants that might adversely affect the marina development.
Clause 7(2) of SEPP 55 establishes a precondition to the exercise of the power to determine a development application for consent. The precondition is consideration of "a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines". Benedict maintains that the preliminary investigation is in accordance with the contaminated land planning guidelines whereas Moorebank claim it is not. A failure to satisfy the pre-condition requires that the Court must refuse development consent.
The Stage 1 - preliminary investigation is described in the contaminated land planning guidelines as follows: 3.5.2 Stage 1 - Preliminary Investigation The preliminary investigation contains a detailed appraisal of the site's history and a report based on a visual site inspection and assessment. It is important that all relevant information about the site is assessed to determine the potential for site contamination. Where contaminating activities are suspected to have had an impact on the land, sampling and analysis will be required to confirm and support any conclusion reached from the site history appraisal. Through the assessment of sampling results, an assessment of contamination can be established. A preliminary investigation is an important step in deciding whether a more detailed investigation is needed. Where the results of a preliminary sampling program demonstrate the potential for, or the existence of contamination, a detailed investigation should be undertaken; not necessarily immediately after the preliminary investigation but before the new use commences. Where the preliminary investigation shows a history of non-contaminating activities at a site and, in the absence of other contrary evidence, there will be no need for further investigation. Issues to consider • Is the information about the site's history adequate: - are the descriptions of activities on the site detailed enough to identify a use listed in Table 1? - are there any big gaps in the history that might hide a use listed in Table 1? - are the sources reliable? - is the information verifiable? • Does the information conform with the relevant EPA guidelines? • If contamination or a contaminating activity, whether previous or existing, is confirmed should the proponent conduct a detailed investigation to further define the extent and degree of contamination? • If the site history suggests that the site is unlikely to be contaminated but there are gaps in the history and Table 1 uses were permissible under the zoning during those periods, is limited site sampling needed to confirm the site is not contaminated? Consult a site auditor if necessary. • Does this site pose a significant threat to human health or the environment? If so, refer to the CLM Act in relation to duty to notify the EPA. • Is a site audit of the preliminary investigation necessary? See section 3.6.1. If there is sufficient information to satisfy the planning authority that the site is suitable for the proposed use, the planning process should proceed in the normal way.
After considering the expert evidence and the submissions from Mr Robertson and Mr Hale, I am satisfied that the Marina PI, the Marina SPI , the Marina RAP and the proposed conditions relied upon by Benedict to address the preliminary investigation requirements in the contaminated land planning guidelines do not satisfactorily address those guidelines for a number of reasons.
The preliminary investigation requirements require firstly, a detailed appraisal of the site's history and secondly, a report based on a visual site inspection and assessment. On the first matter, I agree with Dr Wood that the documents do not provide a sufficient understanding of history of the site itself, or the northern Tanlane land to to determine the potential for site contamination and consequently what remediation is required.
In my view, the sequence of the expert reports from Dr Jorstad and Dr Wood confirms the inadequacy of the history of the Marina site and also that of the northern Tanlane land. . Dr Jorstad's individual report dated 6 April 2017 maintained that there was compliance with SEPP 55. Dr Woods's response through her individual report on 23 June 2017 highlighted many areas where she maintained that there were non-compliances with SEPP 55. What followed was the supplementary individual report of Dr Jorstad dated 11 September 2017 that was prepared as a response to Dr Wood. In this report, Dr Jorstad does not consider that any of the concerns raised in Dr Wood's individual report have materially diminished his initial position of compliance with SEPP 55.
In my view, the joint report dated 7 November 2017 clearly supports a conclusion that SEPP 55 has not been satisfactorily addressed. While it was suggested by Mr Hale that Dr Jorstad and Dr Woods reached almost total agreement (and which was correct); the agreement was not about compliance with the requirements of SEPP 55 but rather agreement on the potential for contamination and what matters need to be undertaken to address potential contamination of the Marina site.
As part of the joint report, Dr Jorstad and Dr Woods agree that the site history is "limited". The word "limited" does not satisfy the certainty sought in the contaminated land planning guidelines where "a detailed appraisal of the site's history" is sought. Dr Jorstad's statement that the identified data gaps in the PI and SPI reports are considered to be "minor in nature" is an understatement, at best, considering the large number of shortcomings in the data collection and the significant additional work required to address those shortcomings.
The absence of any assessment of landfill gases is a significant omission. Dr Woods and Dr Jorstad acknowledge the liklehood for landfill gases to move from the northern Tanlane land to the Marina site. Data from the development of the northern Tanlane land was not available at the time of the experts conferring, although Dr Jorstad had requested this data from his client. It was agreed that the Marina PI, Marina SPI and the Marina RAP do not address the agreed concern of leachate gases either from the previous activities on the Marina land or the previous activities on the northern Tanlane land.
The lack of available data leads Dr Woods and Dr Jorstad to agree that further monitoring should be carried out including gas monitoring boreholes on the Marina site at locations where structures are proposed, and on the north-western boundary between the marina and the northern Tanlane land. They further agree that monitoring of landfill gas on the north-western boundary should continue following the development of the northern Tanlane land until it is demonstrated that there is no significant landfill gas migration resulting from the development of the northern property. Rhetorically, it could be asked if there no indication when significant landfill gas will stop migrating to the Marina site, then there is little benefit in allowing the development of the Marina site given the potential to impact on the proposed buildings associated with the marina.
If landfill gas were to migrate southward from the northern property onto the Marina site, it could potentially pose a risk to the structures proposed as part of the marina development. While Dr Woods and Dr Jorstad agreed that certain measures can be undertaken to address the impact on landfill gas on building; the appropriate response would likely be subject to the results of the monitoring.
I agree with Dr Woods that the dredge pond sampling is also inadequate. Dr Jorstad's evidence that there is no direct evidence that contaminated fill material, or fill material containing putrescible waste, was used as backfill in the dredge voids, in contravention of the consent conditions for sand extraction may be correct however conversely there is also no evidence that the conditions of consent were complied with despite conditions in the 1993 consent requiring all fill must be inspected and records kept of the source, nature and quantity of all incoming loads of fill (condition 31) and monitoring so that the operation does not have an adverse impact on water quality (conditions 26, 27 and 33).. The potential for unsuitable material below the marina floor is an unknown given the absence of sampling beyond the limited sampling already undertaken. This is particularly relevant given that an additional 300mm is to be removed from the dredge pond floor to allow for movement of boats in the marina.
Dr Jorstad's position that an independent review of the aerial photographs found the only visible evidence of potential landfilling on the marina site was what appeared to be a patch of cleared land in the northern portion of the marina site in the 1978 aerial photograph must be rejected given the historical aerial photographs found in Mr Kennan's evidence (Exhibit D, Appendix 7) that come to a different conclusion and show significant excavation in the area of the Marina site.
In accepting the historical presence of ACM fragments in several stockpiles, on the ground surface, and in one borehole location on the northern Tanlane land there is a reasonable potential for asbestos in the form of ACM fragments to be present in fill on the Marina site. As stated by Dr Woods that in light of the limitations of the asbestos assessment during the preliminary investigations, more robust management is required. Dr Jorstad's late evidence that verbal descriptions of test pit observations were obtained from the field engineer who conducted the test pitting program was untested and should be disregarded. I also agree that the "default" position advocated by Benedict is not appropriate and should not be used to overcome inadequate data collection and assessment.
In coming to this conclusion, it is necessary to address the approach adopted by Benedict of addressing the agreed deficiencies in data collection through the imposition of operational conditions of consent. These conditions are to be satisfied prior to the issue of a construction certificate and in summary, require first, a Landfill Gas Assessment to be prepared in accordance with the relevant EPA guidelines. The Marina RAP is to be amended to accommodate the recommendations and requirements from the Landfill Gas Assessment (condition 4A). Second, an Asbestos Management Plan is to be prepared. The Marina RAP is to be amended to accommodate the recommendations and requirements from the Asbestos Management Plan (condition 4B). Third, and prior to the issue of a construction certificate, the amended Marina REP is to be reviewed and approved by a NSW EPA Site Auditor (condition 4C).
In my view, this approach fails for two reasons. First, the contaminated land planning guidelines require "a report specifying the findings of the preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines": To satisfy this requirement, the results of the Landfill Gas Assessment and Asbestos Management Plan should form part of the preliminary investigation not be subject to further data collection and future assessment. A proper conclusion cannot be reached from the provided site history as to whether potentially contaminating activities carried out on the Marina land (and the northern Tanlane land) in the past will have had an impact on the Marina land.
Second, the use of the proposed conditions is contrary to the principle that a development consent must be a final determination of the relevant application intended to exhaust the issues raised by that application: (Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 at 16). Conditions, like those proposed by Benedict, are consistently rejected for lack of finality or which defer essential topics for further consideration or approval: (King v Great Lakes Shire Council (1986) 58 LGRA 366). I can comfortably conclude that the proposed conditions fall squarely into the category of essential topics that have been deferred for later consideration and lack of finality.
For the reasons in the preceding paragraphs I do not accept that the results of a preliminary sampling program carried out by Benedict satisfy cl 7(2) of SEPP 55 in that the report was not carried out in accordance with the contaminated land planning guidelines. The failure to satisfy the pre-condition mandates that the Court must refuse development consent.

Is there a failure to comply with LEP 2008

Clause 7.9(3) requires that development consent must not be granted to development unless the consent authority is satisfied that the development satisfies those matters in the sub clause. The relevant matters in cl 7.9(3) are: 3) Development consent must not be granted to development referred to in subclause (2) unless the consent authority is satisfied that the development: (a) will contribute to achieving the objectives for development in the zone in which it is to be carried out, and (b) will be compatible in its appearance with the surrounding area, as viewed from both the waterway concerned and the adjacent foreshore areas, and (c) will not cause environmental harm, such as: (i) pollution or siltation of the waterway, or (ii) an adverse effect on surrounding uses, marine habitat, wetland areas, flora or fauna habitats, or (iii) an adverse effect on drainage patterns, and (d) will not cause congestion of, or generate conflicts between, people using open space areas or the waterway, and (e) will not compromise opportunities for the provision of continuous public access along the foreshore and to the waterway, and (f) will maintain any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land.
Based on the comments in the preceding paragraphs, I am not satisfied cl 7.9(3)(c)(i) has been satisfied, in that the proposed development "will not cause environmental harm, such as pollution …. of the waterway ". Consequently, the application could be refused for this reason alone.

Water quality

Expert evidence on aquatic ecology and water quality was provided by Mr Paul Anink for Benedict and Dr Ian Campbell, for Moorebank. Mr Anink produced an individual report (Exhibit 6), a joint report with Dr Campbell (Exhibit 14) and a supplementary individual report (Exhibit 10). Dr Campbell produced an individual report (Exhibit C) and the joint report (Exhibit 10).
Dr Campbell states that the project as proposed does not conform, or propose to conform to the Australian and New Zealand Guidelines for Fresh and Marina Water Quality, October 2000 (ANZECC Guidelines). Concentrations of nutrients (phosphorus and nitrogen) and some toxicants (aluminium, ammonia zinc, copper and mercury) substantially exceed the ANZECC Guidelines, and it is unlikely that they will meet these guidelines in future.
Dr Campbell further states that the proposed strategy for opening the marina to the Georges River is flawed in practice, and does not conform to the ANZECC Guidelines or NSW government guidelines, and the opening will contribute to pollutant loads in the Georges River. The proposal will not protect, restore or maintain ecological processes, natural systems and biodiversity in the Georges River as required by the REP. Neither will the project minimise pollution of a watercourse. Dr Campbell notes that the background water quality sampling which has been undertaken has not been adequate to characterise the background water quality of the river or the dredge pond.
Dr Campbell states notes that water quality issues for the dredge pond/marina have been discussed in a series of reports, particularly Worley Parson (2010), Marine Pollution Research Report (2010), the Marina PSI and the Marina RAP. In his opinion, the data presented in these reports share many common weaknesses and omissions, such as details of the methods used for sampling, sample treatment, storage and analysis are often not provided or the sampling methods described appear inappropriate for the results given. In one case, data is mentioned as fulfilling some project needs, but no results, methods or even sampling locations are provided for sampling from the Georges River. Dr Campbell maintains that as no data is included from the sampling the results cannot be verified.
Dr Campbell does not consider that the sampling program proposed to characterise the water in the marina prior to water release is fit for purpose. Similarly, he does not consider that the sampling program proposed to characterise the Georges River upstream of the site prior to release is fit for purpose. Based on the data in Worley Parson (2010), the proposed sampling program (five samples each in the river and the marina) would not detect that the NOx concentrations in the marina were higher than those in the river for example, unless they were between two and three times the concentrations in the river. On the basis of the data provided for water quality in the dredge pond is well outside the ANZECC Guideline trigger values for nutrients (N and P) and some toxicants (Al, Hg and NH3).
While the water quality in the ponds is likely to improve over time, Dr Campbell does not consider that it is likely to achieve the ANZECC Guideline trigger values, without substantial remediation. Flocculation is not appropriate and remediation would need to incorporate a process to remove contaminants (including both P and M as well as Al and Hg) from the pond and allow them to be appropriately disposed of via another method. If contamination of the marina was continuing then remediation processes would not be an adequate solution. If the procedure proposed were to be followed routinely, water quality in the Georges River, and the load of nutrients and toxicants to Botany Bay, would never improve because of what he calls the tyranny of small decisions.
Mr Anink addresses a wide range of matters in his individual report. In relation to the matter of potentially contaminated sediment in the marina, he states that the basin will be excavated by a further 0.3m making the minimum tide basin depth at opening of 2.2m. The basin depth is designed to accept a motor vessel less than 20m length with a design draught of 1.5m. The depth, coupled with the requirement for low speeds in the marina (4 knot general limit) and lower speeds for maneuvering in and out of pens ensures that there would be no disturbance of the basin seabed by vessel movements. Even if there is some disturbance of bottom sediments, the sediment contaminants that are disturbed are more likely to stay firmly bonded to the fine particulate and organic materials making up the sediments and rapidly re-settle.
Mr Anink notes that the constructed marina basin that will be connected to the river will not occur not before the water quality in the basin matches or is better than the water quality of the adjacent river, consistent with the conditions of consent (Conditions 2 and 142). The EPA requires the proponent to comply with all of their General Terms of Approval (GTA) "prior to, during and at the completion of construction and, if required, during the operation of the marina". The listed GTA's that specify that written permission of the EPA will be required before the constructed marina basin can be connected to the river and that this written permission will be contingent on their appraisal of the results of the comprehensive water quality assessment program of both the basin and the river waters, completed prior to the proponent seeking this permission. Mr Anink notes that there is no specific reference to any specific standards in the GTA's. Accordingly, if the water quality of the constructed marina basin match or is better than adjacent river waters at opening, there will be no impacts on the river, its tributaries or adjacent and downstream local government areas upon the opening with the Georges River.
The supplementary individual report was provided by Mr Anink for the following reason; Since preparing my Expert Report I have been supplied with four spring back folders with the original laboratory reports dating from 1998 through to April 2015.
The supplementary individual report of Mr Anink addresses only water quality issues. He notes that he and Dr Campbell raise concerns regarding the dredge pond and Georges River water quality sampling undertaken for the purposes of meeting the Sand Mining license conditions, both in terms of sampling methodology (locations, sampling methods, sample transport and sampling plus laboratory quality control) and the lack of extended data sets.
The joint report Dr Campbell and Mr Anink specifically addresses whether water quality in the dredge pond will cause an unacceptable deterioration in the water quality of the Georges River, when it is opened to the river. Mr Anink states that his supplementary report provides a sufficient basis to support the position that water quality in the constructed marina can be made to match appropriate conditions in the river for the initial opening, and that these opening conditions can be determined following the procedure outlined in the EPA GTA's (Special Condition 2.1) and the DPI Fisheries GTA's (Condition 4) as required under the Council final determination Conditions of Consent, Part A, Conditions 2(b) and 2(c). Mr Anink is satisfied that the check procedures put in place in the above conditions that refer back to the agency GTA's provide the mechanism for determining whether, how and when the completed marina basis can be opened to the Georges River so that there will not be an unacceptable deterioration of the water quality.
Dr Campbell states that the additional data provided by Mr Anink in his supplementary report, while incomplete in terms of parameters, and collected on a very limited number of occasions, demonstrate that the water quality in the constructed marina will not meet the water quality objectives for the Georges River. Concentrations of nitrogen compounds all exceed the ANZECC Guidelines, and there is no data for phosphorus, the other key nutrient and a parameter required to be monitored under the EPA GTA's. Dr Campbell states that it is not clear whether dissolved or total metals concentrations are reported and the EPA required both dissolved and total mercury concentrations to be reported. With only samples collected at 3 monthly intervals, he notes it is difficult to draw conclusions from data on any parameters. The failure to implement the monitoring identified in the GTAs, and the failure to follow the analytical methods identified in the EPA's document Approved Methods for Sampling and Analysis of Water Pollutants in New South Wales (March 2004) indicate that the proponent will not meet the GTA requirements, and once the marina has been constructed, there will be inordinate pressure placed on regulatory agencies to accept a project which only partially meets the requirements.
Mr Anink and Dr Campbell agree that the recommended additional water quality sampling program to be developed and endorsed by the EPA should include field filtering of samples in the field for dissolved metal analysis (condition 2A).

Findings

Clause 8 of the REP states: 8 General principles When this Part applies the following must be taken into account: (a) the aims, objectives and planning principles of this plan, (b) the likely effect of the proposed plan, development or activity on adjacent or downstream local government areas, (c) the cumulative impact of the proposed development or activity on the Georges River or its tributaries, (d) any relevant plans of management including any River and Water Management Plans approved by the Minister for Environment and the Minister for Land and Water Conservation and best practice guidelines approved by the Department of Urban Affairs and Planning (all of which are available from the respective offices of those Departments), (e) the Georges River Catchment Regional Planning Strategy (prepared by, and available from the offices of, the Department of Urban Affairs and Planning), (f) all relevant State Government policies, manuals and guidelines of which the council, consent authority, public authority or person has notice, (g) whether there are any feasible alternatives to the development or other proposal concerned.
The significant difference between the experts is the appropriate standard for the quality of the water in the marina and the Georges River prior to the opening to allow access between the Georges River and the marina. Dr Campbell relies on the ANZECC Guidelines and the objectives in the REP where Mr Anink relies on the GTA's from the EPA. The relevant GTA is condtion S2 which states: S2. Sampling of the Marina Lake Water Prior to the Break Through to the Georges River S2.1 The proponent must obtain approval from the NSW EPA prior to releasing waters from the marina lake to the Georges River. Validation sampling must be collected and made available to the NSW EPA for assessment. The validation sampling report must be addressed to the Manager of Sydney Industry at PO Box 668 Parramatta NSW 2124 or metro.regulation@epa.nsw.gov.au. The proponent must ensure that the sampling plan is representative of the total water body noting that samples collected from the Georges River must be taken upstream of landfill impacted groundwater discharge, which includes the area of landfill to the north of the site. The samples must be analysed by a NATA accredited laboratory for the list of substances listed below: * pH, temperature, electrical conductivity, dissolved oxygen and turbidity * total suspended solids * dissolved Al, Cd, Cu, Ni, Pb and Zn * total and dissolved Hg * polycyclic aromatic hydrocarbons (PAHs) * ammonia, total P and total N * biological oxygen demand (BOD) and chemical oxygen demand (COD). The samples must be collected at an appropriate frequency and adequate time frame when making comparisons to the relevant assessment criteria to ensure all results are compliant. Development of any site specific criteria based on reference data must follow recommendations provided in Australian and New Zealand Guidelines for Fresh and Marine Water Quality (ANZECC 2000 Guidelines) requiring at least 24 data points collected over two years for determining 80tn percentile values. S2.3 The proponent must obtain the approval from the NSW EPA prior to using any flocculants in the treatment of the marina lake waters. The NSW EPA will request details of the flocculent including the name, toxicity data and dosing concentration prior to approving the application. S2.4 All water sampling and analysis must be undertaken in accordance with the approved methods outline in the EPA's document titled "Approved Methods for Sampling and Analysis of Water Pollutants in New South Wales" dated March 2004"
Mr Anink states that the connection to the Georges River will not occur before the water quality in the marina matches or is better than the water quality of the adjacent Georges River however this observation is not consistent with condition S2 of the EPA GTA's. Conditions 2 and 142 of the JRPP's approval, referred to by Mr Anink, also make no reference to matching water quality in the marina and the Georges River but simply require compliance with the GTA's of the EPA and other government authorities. Even though it was Dr Campbell's position that Benedict will not meet the GTA requirements of the EPA, and once the marina has been constructed, there will be inordinate pressure placed on regulatory agencies to accept a project which only partially meets the requirements; I must reject this assertion.
The EPA is charged with the responsibility of ensuring that the water quality of the Georges River will not be adversely affected when the marina opening is made and I am satisfied that this can be achieved through the compliance with the GTA's, particularly in this matter, condition S2. The EPA is also bound by the requirements in the REP.

Land below High Water Mark

Mr Robertson for Moorebank, contends that as the proposed marina includes the carrying out of works within, and the use of the Georges River and as no owners consent has been obtained for tis work, the application must be refused. The specific areas that are included in the development application and are said by Moorebank to be works within and the use of the Georges River include:

the rock-armoured lip at the entrance to the marina,
part of the existing river bank,
rock protection in the riparian zone of the Georges River,
part of the rock revetment wall, and
siltation protection works.

The principal position put by Mr Hale is that the application form, the EIS and various reports identifies that the application to be on land within the boundaries of Lot 7 DP1065574, so the lack of owners consent does not arise.
In dealing with this contention the Court was provided with numerous authorities by both parties to support their respective positions.
In considering the submissions from Mr Robertson and Mr Hale, I acknowledge that owners consent is necessary for consent to be granted over land however, in this case, the absence of owners authority for land below the High Water Mark (HWM) is a symptom of a larger problem; that being the clear definition of the boundaries of Lot 7 (HWM is the term used on DP 1065574 and MHWM is the term used in LEP 2008).
The copy of DP 1065574 (Exhibit 3) identifies Lot 7 as having a partial eastern and a partial southern boundary as the HWM of the Georges River. This boundary is shown as a free form line that generally follows the Georges River. The parties agree that this line is diagrammatic only. The remaining boundaries of Lot 7 are identified with bearings and distances. Without the exact location of the partial eastern boundary and the partial southern boundary that relates to the HWM of the Georges River it is not possible to determine whether owners consent is required or not. I would however accept however that the the rock-armoured lip at the entrance to the marina would be below HWM given the nature of the works required to provide this access so Mr Robertson's submission that no owners consent, for at least this part of the marina, is correct.
A second relevant matter is the plans that Benedict sought approval for (Tab 24, Exhibit 1). While I have addressed the boundaries of the application that were the subject of the HWM determination, I note that the other boundaries of the proposed marina are also not dimensioned or is there any indication of the separation of the Marina site and the northern Tanlane land; both of which are part of Lot 7.
Relevantly, cl 50(1) of the Regulations provides (with my emphasis in bold): (1) A development application: (a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and
Clause 2 of Schedule 1 of the Regulations relevantly provides: 2 Documents to accompany development application (1) A development application must be accompanied by the following documents: (a) a site plan of the land, (b) . . (2) The site plan referred to in subclause (1) (a) must indicate the following matters: (a) the location, boundary dimensions site area and north point of the land, (b) .
The determination of the precise location of the partial eastern and partial southern boundary affected by the HWM is not an easy process based on the documentation provided by Mr Robertson (Exhibit J) however it is not a matter that can be left, given that the application seeks to construct a seawall along this boundary with the Georges River and construct a carpark without specific knowledge of the location of the boundary adjoining these works. Similarly, the foreshore building line and the embellishment of this foreshore area for public use may also require the accurate location of the boundary to determine the location of this area and the provision of facilities.
Until the determination of the HWM and the proper dimensioning of the marina site, the proposed development does not satisfy cl 50(1) of the Regulations.

Construction traffic - SEPP Infrastructure

The relevant clauses are cll 101 and 104. Clause 101 states: 101 Development with frontage to classified road (1) The objectives of this clause are: (a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and (b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads. (2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that: (a) where practicable, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
Clause 104 states: 104 Traffic-generating development (1) This clause applies to development specified in Column 1 of the Table to Schedule 3 that involves: (a) new premises of the relevant size or capacity, or (b) an enlargement or extension of existing premises, being an alteration or addition of the relevant size or capacity. (2) In this clause, relevant size or capacity means: (a) in relation to development on a site that has direct vehicular or pedestrian access to any road - the size or capacity specified opposite that development in Column 2 of the Table to Schedule 3, or (b) in relation to development on a site that has direct vehicular or pedestrian access to a classified road or to a road that connects to a classified road where the access (measured along the alignment of the connecting road) is within 90m of the connection - the size or capacity specified opposite that development in Column 3 of the Table to Schedule 3. (3) Before determining a development application for development to which this clause applies, the consent authority must: (a) give written notice of the application to RMS within 7 days after the application is made, and (b) take into consideration: (i) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, RMS advises that it will not be making a submission), and (ii) the accessibility of the site concerned, including: (A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and (B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and (iii) any potential traffic safety, road congestion or parking implications of the development. (4) The consent authority must give RMS a copy of the determination of the application within 7 days after the determination is made.
The principal contention relating to traffic is the ability of construction-related traffic to gain access to the Marina site directly from Newbridge Road. The long term access arrangements for the marina (and also the residentially zoned land to the north) is via the traffic controlled intersection of Brickmakers Drive and Newbridge Road and then from Brickmakers Drive to the marina and the residentially zoned land via a yet to be constructed link road and bridge. The proposal seeks approval for construction traffic to access the site directly from Newbridge Rd at the point that has been used for access for the previous landfilling operations on the northern Tanlane land.
Mr Robertson submits that the requirements of the Infrastructure SEPP are not limited to "longer term operational access requirements of new developments". As was pointed out by Preston CJ in Modern Motels Pty Ltd v Fairfield City Council [2013] NSWLEC 138 at [25], the expression 'vehicular access to the land' in cl 101 (2)(a) is to be understood as encompassing all of the vehicular access to the land. Hence, all of the vehicular access to the land must achieve the desired outcome of being provided by a road other than the classified road which would plainly include vehicular access for the purposes of construction traffic. The test to be applied with respect to the requirements imposed by cl 101 was that the "consent authority is precluded from granting consent to a development on land that has frontage to a classified road unless it is satisfied that the desired outcome will be achieved, where that desired outcome is practicable.... the practicability is as to the outcome of providing vehicular access to the land by a road other than the classified road".
In these circumstances, the Court as consent authority, cannot properly discharge its obligation to take into consideration the matters referred to in cl 104(3)(b)(ii) and (iii) and also cl 101(2) of the Infrastructure SEPP so the Court must not grant consent to the proposed development.
Mr Hale submits the Court should find that clause 101 does not apply for a number of reasons. First, cl 101 of SEPP Infrastructure does not apply to a temporary access to a development for the purpose of construction traffic.
Second, in the alternative, and even if cl 101 applies to temporary access to a development for construction traffic, at the present time there is no vehicle access to the site other than from Newbridge Road, in which case cl 101 is not engaged because there is no other "practicable" means of access to the site. Moorebank does not explain how access from Brickmakers Drive via the approved bridge and link road could be considered "practicable" when presently neither has been constructed. Clearly it is not practicable, not the least because imposing a requirement that the approved bridge and link road be constructed prior to commencement of the construction of the marina would delay the commencement of construction and likely also increase costs.
Third, and in a further alternative if cl 101 is engaged, the Court should approve temporary access from Newbridge Road for construction traffic, pursuant to clause 101(2), because the safety, efficiency and ongoing operation of Newbridge Road will not be adversely affected as a result of construction traffic accessing the site from Newbridge Road based on the evidence of Dr Brooker, Benedict's expert traffic engineer..

Findings

Clause 101 applies because the proposal is "development on land that has a frontage to a classified road" (cl 101(2)). Clause 104 applies because the proposed development falls within cl 104(1) being a development for "Any other purpose" with a size or capacity of "200 or more motor vehicles" in Column 1 and 2 of the Table to Schedule 3; the development proposing 637 car parking spaces.
Mr Robertson is correct in that neither cl 101 nor cl 104 make an exemption for construction traffic, consequently all of the vehicular access to the land must achieve the desired outcome of being provided by a road other than the classified road. The report by the council staff on the application addressed SEPP Infrastructure but comments were limited to cl 104 and not cl 101 and the specific question of construction traffic was not addressed in relation to SEPP Infrastructure. The emphasis of this assessment was on the new intersection with the link road and Brickmakers Drive. It also appears that the earlier consultation with the RMS also focussed on this matter and not the specific matter of construction traffic. The only reference to construction traffic was the condition requiring "An endorsed construction management plan is to be implemented" (condition 82).
The matter of practicability and the construction of the link road and bridge is relied upon by Mr Robertson and Mr Hale for their opposing views. The history provides that there have been a series of court proceedings involving, Benedict/Tanlane, Moorebank and the council to ensure that both the Tanlane land and the Moorebank land have suitable means of vehicular access from Brickmakers Drive. As a result of these various proceedings, Benedict/Tanlane has secured access to the Tanlane land from Brickmakers Road by the following means.

the Tanlane land has the benefit of a registered easement to "construct, maintain and repair a road bridge and any structures and services ancillary to a road bridge" the airspace above the Moorebank panhandle, for access to the Tanlane land from Brickmakers Drive.
Tanlane has been granted development consent to construct the road bridge between Brickmakers Drive and the Tanlane Land (DA-1552/2006).
Tanlane has been granted development consent for use of the road bridge for vehicular access to and from the marina on the Tanlane land (DA-61/2014).

On this basis, I am satisfied that with the necessary approvals for the link road and bridge in place; a practicable outcome of providing vehicular access to the land by a road other than the classified road is available. I do not accept that the submission by Mr Hale that the provision of the link road and bridge for construction traffic may delay the commencement of construction and likely also increase costs is a sound basis to come to the opposite conclusion, without any supporting evidence.
Mr Craig McLaren provided expert traffic evidence for Moorebank. Mr McLaren's position is that there is insufficient information for the Court to be satisfied of the requirement that "the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development" (cl.101(2)(b)). Mr McLaren rejects Dr Brookers assessment of the traffic impacts of providing access via Newbridge Road to the proposed development based on the estimated peak construction traffic of 250-300 vehicles per day which Dr Brooker considers is likely to be generally consistent with the pre-existing operations of Benedict on the site although this was not confirmed by the operators.
Mr McLaren also acknowledges that the RMS consent for construction vehicle access has not been provided to date, and that it is likely that the RMS may seek that the majority (if not all) construction vehicle access be via the alternative road access from the new bridge and the link road from Brickmakers Drive. Any use of direct vehicular access via Newbridge Road would be subject to limits imposed by the RMS, which are unknown at this stage.
On this basis, the Court cannot properly discharge its obligation to take into consideration the matters referred to in clause 104(3)(b)(ii) and (iii) of the Infrastructure SEPP, and moreover, pursuant to cl 101(2) of the Infrastructure SEPP, the Court must not grant consent to the proposed development.

Orders

The orders of the Court are:
The appeal is upheld.
Development application DA 781/2015 for the construction and operation of a marina on part Lot 7 DP 1065574, 146 Newbridge Road, Moorebank is refused.
The exhibits are returned with the exception of exhibit F.

G Brown Commissioner of the Court

Amendments 28 February 2018 - Correction made to representation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 February 2018

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (18 paragraphs)

Parties

Cases Cited (2)

Cited By (1)