Remath Investments (No. 6) Pty Ltd v Botany Bay City Council

It is sufficient for present purposes to note that the amendments introduced on 1 July 1998 substantially altered the regime under which development applications, including applications for designated development, are to be considered and determined.

It is common ground that if the Court finds the applicant is entitled to rely upon the unamended EP&A Act, then the procedural and substantive requirements under the Act and regulations have now been complied with.

However, if that is not so then the development application is one in respect of integrated development and new regulations apply in regard to the requirements of the Director and approval bodies concerning preparation of environmental impact statements. These latter provisions have not been satisfied.

The foremost and critical question to be determined is whether, having regard to the provisions of s 77(3)(d) of the EP&A Act, a development application had been made within the meaning of cl 11 in the light of the finding by the Court of Appeal that the requirements of reg 52 were not substantially complied with.

Section 77(3)(d) of the EP&A Act provides:- (3) A development application shall:

(a) … (b) … (c) … (d) where the application is in respect of designated development, be accompanied by an environmental impact statement in the prescribed form prepared by or on behalf of the applicant,

Clause 50 of the EP&A regulation dictates that the prescribed form for an EIS under s 77 of the Act is form 2. Clause 51 states that the contents of an EIS must include, inter alia, the matters referred to in Sch 2.

Regulation 52(1) is as follows:- (1) The applicant responsible for preparing an environmental impact statement must consult with the Director and, in completing the statement, must have regard to the Director's requirements:

It was the failure of the EIS to adequately respond to the Director's requirement to provide an outline of a remediation plan including the reduction of environmental impacts from vibration that formed the basis of the decision by the Court of Appeal.

Mr Hale SC, appearing for the council, submits that because the author of the EIS failed to satisfy the Director's requirements pursuant to cl 51(1)(a), there was no EIS and that accordingly, at the relevant date no development application had been made in accordance with s 77. Thus, the applicant cannot rely on cl 11 of the transitional regulation.

Was there an application made at the relevant date?

A requirement such as the owner's consent to a development application required by s 77(1)(b) has long been regarded as being a requirement which can be complied with at some time other than the time of lodgment of the application or in other than the prescribed form; see Amacon Pty Ltd v Concord Municipal Council (Hemmings J, NSWLEC, 2 December 1987, unreported).

There can be no doubt that the applicant was making a development application and that it was seeking a consent to use the land for designated development. There is an important distinction which s 77(3)(d) draws between the application made to the consent authority in the prescribed form and manner and the EIS to accompany it. The reference to the form and manner of the development application emphasises the contrast between the development application and the accompanying document.

The Court's view is that the development application was made when the duly completed form was lodged.

Furthermore, I agree with the submission put by Mr McEwen, on behalf of the applicant, that a development application which is not accompanied by an EIS is not void. It may be imperfect, but it nevertheless remains capable of being perfected. The Court is effectively placed in the shoes of the council pursuant to s 39 of the Land and Environment Court Act 1979 ("the Court Act") and accordingly is entitled to receive further evidence beyond that which the council had before it at the date of the appeal. The effect of failing to lodge an EIS simultaneously with the development application for consent to carry out designated development has the consequence that the consent authority, being the council or the Court, does not have the power to grant a consent. Nevertheless, the application remains on foot.

In Helman v Byron Shire Council and Anor (1995) 87 LGERA 349 Handley JA found at 360 that the appeal did not cure the invalidities in that case and did not achieve substantial compliance with s 77(3)(d1) and s 86. He did not say in terms that the development application itself was not valid. It was not a matter which the Court of Appeal had to decide. At 353 his Honour held that in the circumstances of that case there could not be strict or substantial compliance with the requirement of s 77(3)(d1) that the development application be accompanied by a fauna impact statement until the fauna impact statement was lodged.

He identified the legislative scheme as being contained in ss 77 to 87 in conjunction with s 90, s 92 and s 95 in order to draw the Court's conclusion as to the consequences which parliament intended should result from non-compliance with s 77(3)(d1) and s 86.

My understanding of his reference to s 77 imposing on applicant's in mandatory terms, obligations in the nature of conditions precedent, is that it is to be taken in the context of the determination of the development application.

This is not a case where the applicant failed to lodge any document purporting to be an EIS. The document which accompanied the development application was described as an EIS and was in such a form that could justify its acceptance by the consent authority as a document answering that description. The fact that it did not comply with a requirement notified by the Director is a defect which the Court of Appeal concluded did not substantially comply with what regs 51 and 52 required. The documentation was not suitable to direct a reasonably intelligent and informed mind to the possible vibration consequences of the proposed remediation work or to provide objectors and potential objectors with a real opportunity to make submissions on those impacts (Fitzgerald AJA at 11). There is no finding or suggestion that the EIS did not otherwise satisfy the prescribed form or substance. It was in fact an EIS that was deficient only in one respect. It is that deficiency which precluded the Court from granting a development consent at the first instance.

Although it is fair to say that the Court of Appeal was not requested to make any findings or orders in relation to the validity of the development application, it is nevertheless notable that the proceedings have been remitted to this Court for redetermination. If the defect in the EIS is incapable of being rectified then there is nothing for this Court to finally determine.

As Mr McEwen put it, if the applicant is not able to reopen to remedy the defect in the EIS or to perfect the development application, then the limit of the Court's jurisdiction is to refuse the application. What the applicant now wishes to do is to place the EIS in a condition that will enable the Court to make a final determination of the development application.

It is inconceivable that a council is not able to receive further evidence in support of a development application subsequent to the lodgment of the development application itself. Section 39(3) of the Court Act expressly allows either party to give fresh evidence or evidence in addition to or in substitution for the evidence given on the making of the decision by the consent authority.

The Court is satisfied that the unamended EP&A Act continues to apply to and in respect of the development application made in 1997 pursuant to cl 11 of the transitional regulation. The council has never made a formal determination of the application. The appeal was against the deemed refusal of council. Although this Court originally decided to grant a consent, the setting aside of that decision by the Court of Appeal means that the development application is not determined in any respect. A literal reading of cl 11 makes the determination of this Court at first instance irrelevant. It refers to the critical factor "not determined by the consent authority before the appointed day" .

Whether the applicant should be granted leave to reopen

The primary submission by the council is that because the supplementary EIS is in respect of development which was not the subject of the EIS lodged in support of the original development application, the Court will not give leave to reopen in those circumstances.

Secondly, because the statutory regime for the consideration of designated development and integrated development has been radically changed since 1 July 1998, it is in the public interest that the development application should be treated, considered and determined in accordance with the law as it is now applied.

The council has provided a schedule which it says identifies such differences between the proposal as outlined in the EIS lodged in support of the development application and the supplementary EIS, that the two documents are incompatible. According to Mr Hale, this is also a further reason why the applicant is not entitled to rely on cl 11 of the transitional regulations because it is no longer an application to carry out the same development.

Whereas previously the proposal was to carry out dynamic compaction or impact rolling, the supplementary EIS indicates an election in favour of impact rolling. There are other differences highlighted in respect of the order of the works, finished levels, depth of covering, landscaping and the like.

Regulation 48, which is continued for this development application, allows that a development application may be varied or amended at any time but only with the agreement of the consent authority. The Court standing in the shoes of the council on appeal is satisfied that amendments made by the supplementary EIS do not amount to a change which demands a fresh application and should be allowed.

Regulation 52(5) originally provided that if the development application to which the EIS relates is not made within two years after notice is given of the Director's requirements, the applicant must consult further with the Director in relation to the preparation of the statement. In the present case the applicant has referred back to the Director following the Court of Appeal decision and has prepared the supplementary EIS in accordance with the response by the Director. In any event, cl 52(5) relates only to the making of the development application. This occurred within the two years.

When the new regime was introduced to the EP&A Act on 1 July 1998 the legislature also expressly saw fit to make savings and transitional provisions which recognised that any application already made at that time would be considered and determined under the existing regime.

The Court has been informed that if leave is granted to reopen then the Court will be asked to determine the development application by granting of consent subject to conditions which have been agreed between the parties. In other words, if the Court is satisfied that the applicant is entitled to proceed under the provisions of the unamended EP&A Act then there is no reason why the Court may not exercise its discretion to grant development consent so far as the council is concerned. The Court nevertheless has an ultimate discretion whether or not to grant consent and must be satisfied that it is appropriate to do so.

The Court is satisfied that the subject matter of the development application remains the same following the presentation of the supplementary EIS. The proposed development is and always has been the remediation of the site by compaction and capping. There may have been a change to the order of the works and the method of achieving the result. Nevertheless, the outcome will be a site which has been rehabilitated sufficiently for it to be redeveloped for an appropriate purpose.

Mr Hale submits that because the applicant elected in the conduct of its case not to present the supplementary EIS initially, leave to reopen should be refused. The applicant should be left with the consequence of its own forensic decision which resulted in an outcome which is not to its liking. However, cases such as Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1 are not to the point. The issue of whether development consent should be granted has always been central to the conduct of the proceedings. No new issue was raised by the applicant, or indeed the council, in the Court of Appeal. The Court is making an administrative decision. Section 39(3) of the Court Act continues to apply until such time as a final determination is made. The applicant is now responding to the finding that its EIS is not complete in one respect. The due process of exhibition, re-exhibition, consideration and reconsideration of the proposed development has taken place. It is always open for an applicant for development consent to request a council to defer its decision or final determination until it has been given a further opportunity to meet the council's requirements or to satisfy its legal obligations. The council has a discretion to allow further time for that purpose. The Court is in no different position.

The council states that it has no objection to the use of the evidence in these proceedings in any subsequent appeal yet maintains its opposition to the application by the company to reopen its case.

It is the Court's view that in the circumstances of this case the applicant should be given leave to reopen for the purpose of tendering the further exhibit, being the supplementary EIS and the responses thereto. Leave is granted accordingly.

The Court now has before it the whole of the evidence presented at the first hearing together with the supplementary EIS and the various responses to its referral to other statutory authorities and public exhibition. Conditions have been drafted in a form which is satisfactory to both parties.

The council has informed the Court that the development can be approved provided the development application is capable of being considered and determined under cl 11 of the transitional regulation in accordance with the unamended EP&A Act. Objections raised in response to the exhibition of the EIS and the supplementary EIS have been satisfactorily dealt with.

The Court proposes to grant development consent.

The formal orders of the Court are as follows:- 1. The appeal is upheld.

Development Application No 97/0719 for demolition of buildings and remediation of contaminated land is determined by the granting of consent subject to the conditions attached and marked "A".

The exhibits, except exhibits 6 and Z, may be returned.

"A" Conditions of Development Consent in Matter No. 10465 of 1997 Remath Investments (No. 6) Pty Ltd v Botany Bay City Council

2. The applicant shall engage an appropriately qualified person or organisation to undertake a dilapidation survey of all buildings and structures within 5 metres of the perimeter of all areas where impact rolling is proposed to be undertaken.

3. If at any time the vibration and noise from ground improvements exceed acceptable standards, as determined by an independent noise and vibration consultant, the applicant shall cease work.

The applicant shall be responsible for making good any damage occasioned to the culvert containing the Floodvale drain in or near the site. The applicant shall prior to the commencement of works lodge a bank guarantee for $100,000 with council as security for any structural damage caused to the culvert containing the Floodvale drain in, or near, the site. This figure is not intended to be indicative of the likely cost of repairing any possible damage. Such guarantee to be released after completion of the remediation and after council receives a certificate from an appropriately qualified engineer that the structure of the culvert has not been damaged by the remediation works.

Submission, for council's approval, of detailed plans and a schedule of works for the construction of the extension of Floodvale drain culvert towards the southern boundary of the land.

Submission to council - prior to any work being undertaken near the Floodvale drain - of a structural engineer's report on the state of the existing culvert containing the Floodvale drain, such report to be directed at determining whether or not it will withstand impact rolling close to it and the loadings likely to be placed on the structure both during remediation and in the subsequent use of the land as a container terminal. In the event that the existing structure may not be adequate, submission of detailed proposals for measures to be taken to protect and/or strengthen it. No work to proceed until council has approved that report and adopted its recommendations. No work shall proceed in the vicinity of the Floodvale drain until any measures required by council for its protection and strengthening are in place.

Submission to council, for its approval, of detailed plans for the construction of the weir proposed near the southern boundary of the land including details of the proposed scour protection both below the weir and at the culvert where low flows discharge and of any measure proposed along the drain into which they discharge.

All ground improvement work to be supervised by a geotechnical engineer reasonably acceptable to the council.

All earthworks and civil engineering works to be supervised by a consulting civil engineer or surveyor reasonably acceptable to the council who shall provide council with a certificate that the works have been undertaken and completed in accordance with these conditions and that the finished levels are those shown on the approved plans prior to any use being made of the site for any other purpose.

Compliance with all matters specified in Section 6 "Mitigation Strategies" of the EIS prepared by CH2M Hill and Section 7 "Mitigative Measures" of the SEIS prepared by CH2M Hill and the CH2M Hill Site Management Plan.

Submission to council, for its approval, of a detailed landscaping plan for those parts of the site remaining uncapped at the end of the remediation process. The landscaping abutting Stage 1 will be implemented prior to the commencement of use of Stage 1. The balance of uncapped areas to be grassed to council's satisfaction and to be landscaped prior to the use of Stage 2.

The submission of an environmental management plan - as set out in Section 7 of the EIS by CH2M Hill - for council's approval and for the approval of any other relevant authority. No work to commence on the land until these approvals have been obtained.

Any material removed from the site to be disposed of to the satisfaction of the EPA.

The routes taken by trucks carrying any heavy material including fill being imported to, or exported from, the site shall be via Swinbourne Street, Stephen Road, Botany Road and Foreshore Drive. No truck associated with the remediation work shall travel along Swinbourne Street, west of Stephen Road.

With any application seeking approval of engineering plans for the pavement, the applicant shall submit to council a report prepared by a geotechnical engineer certifying that on completion of the ground improvement works the ground will be capable of supporting a rigid pavement as proposed for a period of not less than 20 years or of supporting any flexible pavement proposed for a period of not less than 10 years.

The owner of the subject site shall supply to the council, a report every two years on the condition of the pavement seal and if necessary shall include in that report recommendation for any maintenance work required to limit infiltration. If further maintenance work is required, the biannual report will be followed by a supplementary report, submitted within a further three months, detailing the works performed and the effectiveness of such works.

A detailed drainage system incorporating piping, overland flow path and a detention pond design to regulate a stormwater run off from a 1 in 100 year ARI event on the site, shall be submitted, to council for its approval, prior to the undertaking of any works - other than those of an investigative nature - on the site. The drainage system shall be prepared by a qualified civil engineer in accordance with the current edition of the Institution of Engineers "Australian Rainfall and Run-off". The submission shall incorporate:-

i. A catchment area plan and drainage calculations (including an hydraulic grade line analysis). Hydrology for calculations are to be as per SKM's drainage design brief;

ii. A site drainage plan identifying locations of drainage pits, proposed pipe sizes, types, classes, grades, invert levels;

iii. Longitudinal sections of the proposed pipeline system, including natural surface levels, design invert levels. The longitudinal section of the pipeline shall show the levels of all services where those services cross any proposed drainage line;

iv. Details of the system for coping with the run off from a 1 in 100 year storm event on the site;

v. Erosion control measures which shall be undertaken during the course of construction to prevent sediment discharge from the site, in accordance with council's requirements.

Council shall have the right to enter the site at any reasonable time for the purpose of maintaining, inspecting or undertaking works on any drain, in respect of which council has an easement. This right shall be registered on the title to the land at the applicant's cost.

No work shall be carried out on the site other than between the hours of 7.30am and 6.00pm Monday to Friday inclusive and between 7.30am and 1.00pm Saturday.

Approval under the Local Government Act 1993 shall be obtained for any demolition or building works proposed to be undertaken on the site.

The L10 noise level emitted from any works associated with the remediation of the site shall not exceed more than 5dB(A), the L90 noise level measured at the boundary of any existing residentially developed property.

Any and all requirements of WorkCover NSW shall be observed throughout the remediation of the land.

The land being enclosed with a manproof fence prior to the commencement of any works and that fence be maintained in good condition until the completion of development.

No work shall be undertaken which will interfere with or impede drainage from the proposed Lot 1 in the approved subdivision of Lot 2 in DP 792081.

That a detailed submission outlining environmental control measures during remediation works be submitted to the EPA's Regional Manager - Inner Sydney for approval prior to commencement of excavation. Such submission should include measures to address; suppression of dust from stockpiles of excavated soil: containment, testing and, if necessary, treatment of contaminated run off from soil stockpiles, and management of any waters which collect in excavations.

That, following remediation, two copies of a report describing all remediation works and the results of validations testing be submitted to council.

That council be informed when remediation works are to commence.

Submission to the council, prior to the laying of the asphalt seal, for its approval, a plan showing final design levels of the final capped surface of the land. Such levels for stage 1 are to be within +0.15 metres or -0.3 metres of the levels shown on plan AS1242-S1 in the Austin Remediation Workplan. The finished earthwork levels for the whole site are to be within +0.15 metres or -0.3 metres of the levels shown on plan AS1242-S2 in the Austin Remediation Workplan.

A plan and works programme shall be submitted to council showing the order which the works are proposed to be undertaken both in terms of activities and parts of the site and showing the anticipated minimum levels (expressed in terms of AHD) which will be achieved at any time during the remediation works and the levels of the finished sub-base across the whole of the site, prior to the commencement of any works.

No impact rolling shall be undertaken within 5 metres of the Floodvale drain unless in conjunction with such works, vibration monitoring is undertaken.

No work the subject of any plan, document or detail required to be submitted to council pursuant to these conditions shall be undertaken until the council has approved the work. The applicant shall implement and comply with the reasonable requirements of council pursuant to any approval. In the event that the council does not respond by refusing or granting an approval within 21 days of submission, the council shall be deemed to have approved the work in accordance with the plan, document or detail submitted.

No more than 3 trucks per 15 minute period (with the exception of the water cart) shall be used on the site during the construction works comprising SRP3, SRP4 and SRP5.

There shall be no more than 12 truck movements per hour, attributable to the development, along Stephen Road on any Saturday.

Vibration during the remediation works shall be monitored at the nearest affected premises and shall not exceed the lower value of vibration dose values identified as low probability of adverse comment in Table 8.3.2 of the Heggie Report.

Impact rolling is to be undertaken in accordance with the requirements of Clause 9.3.4 of the Coffey Geosciences Pty Ltd report of 27/10/98 being Appendix G to the SEIS.

Importation of Fill All imported fill shall be validated in accordance with Council's Contaminated Land Policy to ensure that it is suitable for the proposed land use from a contamination perspective. 37. Site Contamination - Validation Report After completion of the remedial works, a copy of the Validation Report shall be submitted to Council. The construction certificate shall not be issued until Council approves this Validation Report. The validation report shall be prepared with reference to the EPA guidelines, Consultants Reporting on Contaminated Sites , and shall:

_ include results of validation testing and monitoring;

_ include validation results of any fill imported on to the site;

_ show how all agreed clean-up criteria and relevant regulations have been complied with; and

_ include clear justification as to the suitability of the site for the proposed use and the potential for off-site migration of any residual contaminants. 38. Additional Information during Remediation/Demolition/Construction Any new information which comes to light during remediation, demolition or construction works which has the potential to alter previous conclusions about site contamination, shall be dealt with in accordance with Section 14 of the Site Management Plan and Council will be notified.

39. Contact Phone Number The applicant shall provide Council with a 24 hour contact number for the manager of the remediation works.

40. Monitoring Results Results of the monitoring of any field parameters such as soil, groundwater, surface water, dust or noise measurements shall be made available to Council Officers on request throughout the remediation works.

41. Offsite Disposal of Soil Any soil disposed of offsite shall be classified in accordance with the procedures in the NSW EPA Environmental Guidelines: Assessment, Classification & Management of Liquid & Non-Liquid Wastes (1999).

42. Site contamination - Site Audit Statement The Validation Report prepared by the contaminated land consultant shall be reviewed by an auditor accredited under the Contaminated Land Management Act 1997. The accredited auditor shall provide Council with a copy of the Site Audit Report and Site Audit Statement prior to the issuing of the construction certificate.

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.

Results of the monitoring of any field parameters such as soil, groundwater, surface water, dust or noise measurements shall be made available to Council Officers on request throughout the remediation works.

Any soil disposed of offsite shall be classified in accordance with the procedures in the NSW EPA Environmental Guidelines: Assessment, Classification & Management of Liquid & Non-Liquid Wastes (1999).

The Validation Report prepared by the contaminated land consultant shall be reviewed by an auditor accredited under the Contaminated Land Management Act 1997. The accredited auditor shall provide Council with a copy of the Site Audit Report and Site Audit Statement prior to the issuing of the construction certificate.