Scrap Realty Pty Limited v Botany Bay City Council

The applicant wishes to expand the area to be used for storage of scrap ferrous and non-ferrous metals onto Lot 1. To that end the applicant made application under s 96(2) to modify the 1976 consent to add Lot 1 as land to which the 1976 consent applies and on which the approved storage use could be carried out. At the time of making the application, no other modifications to the 1976 consent were proposed.

During the course of hearing the appeal, however, the applicant amended its modification application to propose the carrying out of works on Lot 1 and Lot 5, the amendment of one of the conditions of the 1976 consent, and the imposition of additional conditions of consent. These amendments were proposed to address issues raised by the council.

Accordingly, the modification application in its final form proposed the modification of the 1976 consent as follows: 1. Amend the description of the premises to add after "Lot 1 Stephens Road, Botany" the words, "(now known as Lot 5 in DP 627044 and Lot 21 in DP 790427) and Lot 1 in DP 822273".

All materials shall be stacked in islands of reasonable dimensions and provided with aisles not less than five metres wide to enable easy access for fire fighting and other emergency services. If an aisle has no exit, a suitable turning circle must be provided to allow vehicles to turn around to exit the aisle in a forward direction. 3. Add the following conditions at the end of the consent: 14. Prior to the commencement of operations on Lot 1 in DP 822273 a 2.1 metre high pre-finish steel fence shall be erected along the southern and eastern boundary of Lot 1 in DP 82273. Details of the fence and its location are to be provided with the application for a Construction Certificate. The fence shall be constructed in such a manner to ensure the retention of the two existing trees on the eastern portion of the allotment. 15. (i) Prior to the commencement of operations, stormwater from Lot 1 in DP 822273 shall be managed and treated in accordance with the concept plan prepared by Cardno (NSW) Pty Limited number LJ2773-001 Revision 7. The stormwater management system shall be maintained throughout the life of the development in accordance with the recommendations in Section 4.4 of the Cardno Report, dated 19 December 2008. (ii) Prior to finalising the design of the proposed stormwater management system, data shall be obtained from Lot 1 in DP A22273 for four (4) wet weather events to determine soluble and particulate concentrations and size.

(iii) The design of the stormwater management system shall cater for the outcomes of the monitoring of the four (4) wet weather events.

(iv) The final plan for the stormwater management system is to be provided to the Principal Certifying Authority prior to the issue of a construction certificate. The Principal Certifying Authority shall not issue a construction certificate unless satisfied that the final plan meets the requirements of condition 15(1), (2)(3).

(v) The post construction, the stormwater management system shall be monitored to determine that it is capable of meetings its design size criteria, and if necessary, shall be modified to ensure those criteria are achieved.

(vi) The pit basket that collects pollutants shall be regularly inspected and replaced to ensure that they are no more than half full at all times.

16. The unsealed part of Lot 1 in DP 822273 that is 10 metres wide shall be sealed with a capping layer comprised of concrete as shown on the plan prepared by Cardno (NSW) Pty Ltd number LJ2773-001 revision 7.

17. The part of Lot 1 in DP 822273 that is 5 metres or less in width shall not be used for the storage of ferrous and non-ferrous metal and shall only be used for drainage purposes and for accessing and maintaining the stormwater management system.

18. All the surface water from Lot 1 shall be contained within its boundaries and not be permitted to flow onto adjacent land. The gradient of the land as shown on Section 1 and 2 of Plan LJ2773-001 Rev.7 shall be amended to ensure this objective will be achieved."

As a result of the amendment of the modification application, the issues raised by the council have been reduced in number and scope from that originally raised in the statement of facts and contentions.

a) the amendment proposed of adding Lot 1 as land to which the 1976 consent applies is not a modification within s 96(2) of the Environmental Planning and Assessment Act and would not result in substantially the same development as required by s 96(2);

b) the Court would not, as a matter of discretion, modify the 1976 consent in circumstances where the carrying out of the development in Lot 5 is environmentally unacceptable, in particular, in relation to the lack of appropriate capping of Lot 5 to prevent contamination and movement of contaminants by water, wind or vehicles; and

c) the Court would not approve the modification application where no landscaping is proposed in accordance with Development Control Plan No 33 - Industrial Development.

The Council had raised other issues in relation to fencing, safety and stormwater. However, these have been addressed by the applicant's amendments to the modification application. The applicant proposed:

a) in relation to fencing, a 2.1 metre high pre-finished steel fence, to be required by a new condition 14;

b) in relation to safety, amendment of existing condition 10 of the 1976 consent in the manner previously stated;

c) in relation to stormwater, a new stormwater drainage and treatment system on both Lot 1 and Lot 5, as described in new conditions 15, 17 and 18 and the documents therein referred to.

The applicant, for its part, had raised an issue as to the power of a consent authority in determining a modification application under s 96, and the power of the Court on an appeal under s 96(6) of the Environmental Planning and Assessment Act , to impose conditions of approval not sought by the applicant in its modification application or agreed to by the applicant. Because of the amendments made by the applicant to its modification application, it will be unnecessary to deal with this issue of the applicant.

I will start with the council's issue concerning whether a consent can be modified to add land not the subject of the consent originally granted.

The power under s 96, whether in (1), (1A) or (2), is simply one to "modify the consent". Originally, the power to modify consents was restricted to modifying "details" of a consent. That restriction was removed in 1985 and the power was enlarged to be, simply, to modify the consent: see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475. The concept of modification involves "alteration without radical transformation": see Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 421; North Sydney Council v Michael Standley Pty Ltd (1998) 43 NSWLR 468 at 474. The object of the modification is the consent.

Hence, the power of a consent authority to "modify" a consent is a power to alter without radical transformation the consent.

Exercise of the power to modify a consent is made conditional, in the case of modifications under s 96(2), on the consent authority forming an opinion of satisfaction that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all).

This condition precedent to the exercise of the power to modify consents focuses on "the development", making a comparison between the development as modified and the development as originally granted.

In terms, neither the concept of "modify" applied to a consent or the concept of "development" in the condition precedent exclude amendment of a consent to permit the carrying out of development on land that was not the subject of the original development consent.

It is true that a consent authorises the carrying out of development on only the land the subject of the development consent. Development cannot be approved in abstract, isolated from the land to which it relates. The development and the land on which the development is carried out are indivisible. However, this does not preclude the consent being modified to extend the development approved by the consent to other land. This still entails a modification of the consent - it alters the description of the land to which the consent applies so as to permit the carrying out of development on that land as well.

As far as the condition precedent is concerned, the alteration is of "the development" - it expands the area on which development is carried out. There obviously will be questions of fact and degree in ascertaining whether the development before and after modification can be said to be substantially the same. Nevertheless, an expansion of the area on which development is carried out by adding land not the subject of the original consent is not inherently outside the concept of modification of the development under s 96.

The parties were not able to find any judicial authority which has held that the power to modify development consents does not include the power to alter the land to which a consent applies so as to permit the carrying out of development approved by the consent on land additional to the land to which the consent as originally granted applied. The power to modify consents has been in force since 1979 when the Environmental Planning and Assessment Act was enacted. As I have earlier noted, the power was enlarged in 1985. The fact that no judicial authority exists establishing that modification of a consent cannot include the addition of land to the land to which the consent as originally granted applied is, perhaps, corroborative that such a narrow construction of the power in s 96 is not to be preferred.

Accordingly, I find that there is power under s 96(2) to modify the 1976 consent to add Lot 1 to the land to which the consent applies and on which the approved storage use can be carried out.

Turning to the condition precedent in s 96(2), I am satisfied on the facts of this case that the development, as modified in the respects now proposed by the applicant in its modification application, will result in the development to which the consent as modified relates being substantially the same development as the development for which consent was originally granted and before that consent originally granted was modified (if at all).

In quantitative terms, adding Lot 1 is not a material addition. The total area of Lot 1 is approximately 1,605 square metres. Of this total area about 1,250 square metres is proposed to be used for the actual use of storage. The remainder of Lot 1 will be used for stormwater and drainage purposes and will have no storage use. The total area of Lot 21 and Lot 5 is approximately 12,465 square metres. Accordingly, the additional land proposed to be used for the storage use, being 1,250 square metres of Lot 1, represents about 10% of the current area of Lot 21 and Lot 5 that is the subject of the 1976 consent. In fact, the total area proposed to be used for storage on Lot 1 will be less than that area of 1,250 square metres because part of that area will have constructed upon it a bund which has as its purpose the separation of stormwater between Lot 5 and Lot 1. If the area of the bund were to be excluded, the area available for storage on Lot 1 would decrease to be 875 square metres. Such an area would represent only 7% of the area on Lot 21 and Lot 5. In quantitative terms, therefore, it can be said that adding Lot 1, and allowing part of Lot 1 to be used for the approved storage use, will result in the development as modified being substantially the same development as the development for which consent was originally granted.

In qualitative terms, the manner in which the improved storage use will be carried out on Lot 1 and the mitigation of its impacts proposed in the modification application, together with the existing conditions of the 1976 consent, will mean that the modified development is substantially the same development as the development for which consent was originally granted.

Before I deal with the council's argument that the Court should refuse consent because of the unacceptable environmental impacts on the current use of Lot 5, I will deal with the merit issues raised by the council as to the use of Lot 1.

I have earlier noted that issues of aesthetics and amenity have been addressed in one respect by the applicant's proposed fence of 2.1 metres. This fence will run along the entire length of the southern and eastern boundaries of Lot 1. It will screen views into the site. In addition, there are substantial trees on the eastern boundary near Port Feeder Road which screen Lot 1 and Lot 5 from public view. These trees will remain. Condition 14 requires the fence to be constructed in a manner to ensure the retention of the trees. There is also an existing fence along the private road to the north of Lot 5. It screens the view from that road. Accordingly, the existing and proposed fencing and trees screen all public views of Lot 1.

Nevertheless, the council submits that landscaping should also be provided.

The need for landscaping along the northern boundary was addressed on site by Mr Anthony Rowan, for the applicant, and Mr Richard Smyth, for the council. Mr Rowan saw no benefit in providing landscaping as the landscaping will not be visible from any surrounding public vantage point whereas Mr Smyth advocates provision of a 2.5 metre wide strip along the southern boundary consistent with the requirements of Development Control Plan No 33 - Industrial Development.

With the benefit of the site view, I agree with the conclusions of Mr Rowan. The site is located towards the end of a private road amongst other industrial uses. It is relevantly isolated. The site has a frontage (but no access) to Port Feeder Road. This frontage contains two large mature trees and provides significant landscaped elements in the streetscape. These trees are to remain.

There was agreement that a 2.1 metre high coloured metal fence should be provided along the southern boundary. When this fence combines with the maximum stacking height of materials of 4.57 metres required by an existing condition of the 1976 consent, and the fact that there is a lack of any outlook from the building on the adjoining property to the south, I accept that there is no public benefit in providing landscaping along the southern boundary to screen the use proposed for Lot 1. In these circumstances, it is unnecessary to provide landscaping in addition to the fencing and retention of the two trees on the eastern boundary.

In relation to contamination, the council's original concern was that there would be a transfer of contaminants from Lot 5 to Lot 1. Three vectors were identified: wind, vehicles and water.

In relation to wind, the council was concerned that, whilst Lot 1 and the eastern part of Lot 5 remained unsealed, wind could blow dust. This would pose an occupational health and safety risk for workers.

The transfer of pollutants by wind is an issue that currently exists and requires attention in carrying out the current operations on Lot 5. As I understand the evidence, it is addressed through existing management practices. The extension of the storage area on to Lot 1 cannot be seen as a material expansion of the storage operations, particularly considering the reduced area of Lot 1 for storage proffered by the applicant during the proceedings. I am satisfied that the current management practices dealing with this issue can be relied upon to address the minor additional exposure associated with workers being on that part of Lot 1 which might be used for storage.

The applicant also has proposed sealing Lot 1 in that part that will be used for storage (see condition 16) and furthermore sealing a strip of 3 metres for the bund and grassing the remaining 2 metres of the balance of the southern portion of Lot 1 which will not be used for storage (see condition 17). As a result, no dust will be generated from Lot 1. Accordingly, the use of Lot 1 will not pose any additional risk to workers from dust.

In relation to vehicles, the council's original concern was that vehicles may track contaminants from Lot 5 on to Lot 1 and thereby contaminate the soil of Lot 1. However, with the sealing of Lot 1 in that area on which vehicles will track (by condition 16) and restricting use and movement on the balance of Lot 1 to drainage and maintenance (see condition 17), I consider the risk of movement by vehicles of contaminants from Lot 5 to Lot 1 to be low and to be acceptable.

In relation to movement by water, the new stormwater design for Lot 5 and Lot 1 will ensure the effective separation of stormwater between Lot 5 and Lot 1, and thereby mitigate cross-contamination.

The stormwater drainage system is described in condition 15, the Drainage Concept Plan, and Section 4.4 of the Cardno report dated 19 December 2008. The parties' respective stormwater experts, in a joint report dated 19 December 2008, have agreed as follows: "That the stormwater concept plans, as described in Cardno (NSW) Pty Limited drawing number LJ2773-001 Revision 7, and the Cardno report dated 19 December 2008 (reference LJ2773/R2526) entitled Scrap Realty Pty Limited ats Botany City Council, Land and Environment Court Proceedings no 10487 of 2008, Stormwater Matters Supplementary Report, are reasonable subject to the undertaking of water quality monitoring prior to finalisation of the design to confirm the effectiveness of the proposed enviropod system as per the monitoring elements of the Joint Statement dated 12 December 2008."

The requirement to undertake water quality monitoring and to use the results of that water quality monitoring in the finalisation of the design is enforced by the proposed condition 15 (ii), (iii) and (iv).

The risk of cross-contamination between Lot 5 and Lot 1 by the vector of stormwater is, therefore, low and is acceptable.

The issue of stormwater generally has been resolved through the new stormwater design and proposed conditions.

In conclusion, the merit considerations under section 79C of the Environmental Planning and Assessment Act have been satisfactorily addressed by the amendments to the modification application.

I return to the council's issue of whether the modification application should be refused as a matter of discretion because the current use of Lot 5 is environmentally unacceptable.

I am not minded to decline to approve a modification application which I have determined is appropriate in the circumstances, because some aspects of the current operation on Lot 5 are said to be environmentally unacceptable. There is no evidence establishing that approval of the modification application, by allowing the approved storage use to be carried out on Lot 1 in the manner, to the extent and on the conditions proposed in the modification application, will, in any way, exacerbate the environmental impacts or otherwise adversely affect the use of Lot 5.

I acknowledge the assistance of Commissioner Brown in the hearing and determination of the appeal.

1. The appeal is upheld. 2) Development consent number 76-T-11 dated 13 February 1976 is modified as follows: 1. Amend the description of the premises to add after "Lot 1 Stephens Road, Botany" the words, "(now known as Lot 5 in DP 627044 and Lot 21 in DP 790427) and Lot 1 in DP 822273".

All materials shall be stacked in islands of reasonable dimensions and provided with aisles not less than five metres wide to enable easy access for fire fighting and other emergency services. If an aisle has no exit, a suitable turning circle must be provided to allow vehicles to turn around to exit the aisle in a forward direction. 3. Add the following conditions at the end of the consent: 14. Prior to the commencement of operations on Lot 1 in DP 822273 a 2.1 metre high pre-finish steel fence shall be erected along the southern and eastern boundary of Lot 1 in DP 82273. Details of the fence and its location are to be provided with the application for a Construction Certificate. The fence shall be constructed in such a manner to ensure the retention of the two existing trees on the eastern portion of the allotment. 15. (i) Prior to the commencement of operations, stormwater from Lot 1 in DP 822273 shall be managed and treated in accordance with the concept plan prepared by Cardno (NSW) Pty Limited number LJ2773-001 Revision 7. The stormwater management system shall be maintained throughout the life of the development in accordance with the recommendations in Section 4.4 of the Cardno Report, dated 19 December 2008. (ii) Prior to finalising the design of the proposed stormwater management system, data shall be obtained from Lot 1 in DP A22273 for four (4) wet weather events to determine soluble and particulate concentrations and size.

(iii) The design of the stormwater management system shall cater for the outcomes of the monitoring of the four (4) wet weather events.

(iv) The final plan for the stormwater management system is to be provided to the Principal Certifying Authority prior to the issue of a construction certificate. The Principal Certifying Authority shall not issue a construction certificate unless satisfied that the final plan meets the requirements of condition 15(1), (2)(3).

(v) The post construction, the stormwater management system shall be monitored to determine that it is capable of meetings its design size criteria, and if necessary, shall be modified to ensure those criteria are achieved.

(vi) The pit basket that collects pollutants shall be regularly inspected and replaced to ensure that they are no more than half full at all times.

16. The unsealed part of Lot 1 in DP 822273 that is 10 metres wide shall be sealed with a capping layer comprised of concrete as shown on the plan prepared by Cardno (NSW) Pty Ltd number LJ2773-001 revision 7.

17. The part of Lot 1 in DP 822273 that is 5 metres or less in width shall not be used for the storage of ferrous and non-ferrous metal and shall only be used for drainage purposes and for accessing and maintaining the stormwater management system.

18. All the surface water from Lot 1 shall be contained within its boundaries and not be permitted to flow onto adjacent land. The gradient of the land as shown on Section 1 and 2 of Plan LJ2773-001 Rev.7 shall be amended to ensure this objective will be achieved." 3) The exhibits may be returned other than exhibit 8.

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