Sell & Parker Pty Ltd v Minister for Planning

Land and Environment Court (NSW)|2023-11-08

Judgment

COMMISSIONER: On 13 September 2023, my judgment was handed down in relation to the appeal by Sell and Parker Pty Ltd (the applicant) against the deemed refusal by the Minister for Planning (first respondent) of State significant development application SSD-10396: Sell & Parker Pty Ltd v Minister for Planning [2023] NSWLEC 1523 (Sell and Parker (No 1)). SSD-10396 seeks consent to increase throughput from the applicant's metal recovery and recycling facility at 23-43 and 45 Tattersall Road, Kings Park (the site).
In Sell and Parker (No 1), I determined that development consent should be granted to SSD-10396, subject to conditions. I directed the parties to confer and, if possible, agree on conditions of consent, reflecting the findings in my judgment. I also directed that if the parties were not able to agree on the interpretation of my findings and particulars of conditions of consent, then each party was to file in Court its preferred version of conditions with brief notes in support. The applicant and the first respondent have now filed their competing versions of conditions and notes in support. I refer to these submissions as follows:

Applicant's draft conditions, including brief notes - filed 3.05pm 19 October 2023
First respondent's draft conditions of consent - filed 7.27pm 19 October 2023
First respondent's written submissions - filed 7.29pm 19 October 2023
Applicant's reply submissions - filed 4.53pm 23 October 2023.

The Court's task in this judgment is to resolve the final points of disagreement and determine the appropriate wording of the conditions. I will deal, relevantly, with the points of dispute now in turn. That is to say, there are some essentially agreed changes to previously drafted conditions of consent which I do not need to go into here.

Operational hours

Condition B10 included Table 1 which nominated "hours of work" for different activities. Condition B12 provides for some qualification to what might occur in relation to any movement of materials, outside of buildings on the site, between 6am and 7am; and also between 8pm and 9pm. The first respondent would have it that any such movement of materials outside of buildings should be limited to that performed by front-end loaders. The applicant would add the movement of material by delivery trucks. I favour the applicant's position on this point. The acoustic report prepared for the applicant (Tonin Report (Ex B Tab 9)) seems to me to have accounted for provision for truck deliveries during these periods (which were outside the hours of operation of oxy cutting, metal shearing and shredding): Sell and Parker (No 1) at [88].

Noise walls

There are three main points of disagreement here which involve Conditions C1 and C1A. The first is in regard to whether the finalisation of the design of the noise walls should be required: (1) "prior to commencement of Stage 1 operations", as proposed by the applicant, or (2) "prior to commencement of the noise walls" as proposed by the first respondent. While there is little in it, I prefer the wording of the first respondent here which follows the logic that the design finalisation of the noise walls occurs earlier and to the satisfaction of the Planning Secretary, then the construction of the noise walls has to be completed prior to commencement of Stage 1 operations.
The second disagreement is on the need for Planning Secretary's endorsement of the designer of the noise walls. I believe this requirement is reasonable: Sell and Parker (No 1) at [116]-[117].
The third disagreement on this topic involves, I believe principally, the extent of specification in relation to performance requirements for noise walls, which is appropriate to include in conditions. The general agreed intent is to allow for flow of flood water (rather than blockage) during flood events between the 1% annual exceedance probability event and the probable maximum flood. This would help "reduce the increases in flood level to the adjacent properties": Sell and Parker (No 1) at [129]. The parties both reference certain flood modelling tendered into evidence in proceedings (Arcadis Report (Ex B Tab 11)). The applicant would make particular reference to selected figures in the Arcadis Report (Figures B1.5 and C2.3) which I would understand the applicant to argue provide "flood modelling results that support Section 4 of the Arcadis Report" (applicant's reply submissions par 10). Section 4 of the Arcadis Report draws conclusions on the flood modelling which was undertaken. Partly because of the fact that during the hearing there was no real examination of the evidence behind the conclusions drawn at Section 4 of the Arcadis Report, I am more comfortable with the first respondent's position which points attention to Section 4 of the Arcadis Report, itself. Finally, on this point of disagreement, I agree with the applicant's argument that there should be an opening up to the possibility of "another suitable engineering solution in relation to flood management agreed by the Planning Secretary".

Operational noise limits

There are three points at issue relating to Condition C4. The first point relates to whether and how measurement at the most-affected point should be qualified. The key query here is whether two-storey residential development should involve measurement at the upper storey. I accept the applicant's position that reference to a height of 1.5m above ground level be directly referenced. The applicant's position is supported because of the explanation of "assessment locations" in NSW Environment Protection Authority, Noise Policy for Industry, October 2017 (NPfI) at section 2.6 (pars 1 and 2).
The second point relates to whether particular sections of the NPfI should be cited and where. The note at the bottom of Table 2 to Condition C4, referencing "relevant monitoring performance procedures and exemptions" in the NPfI is sufficient, in accordance with submissions from the applicant.
The third point is the reference to "when in use" in Table 2 when referring to commercial/public worship receivers. I support the inclusion of this qualifier given the similar reference Table 2.2 of the NPfI, in accordance with submissions from the applicant.
Conditions C6 and C7 are disputed generally in the same respect as the matter dealt with at [8] and I make the same findings in relation to each of them.

Noise performance monitoring

Condition C11(a) provides for live noise monitoring feedback for crane operators in the western compound. While there is something to be said for the fixing of the device or system to be used for this purpose, I did not have a sense from the hearing evidence that the selected location ("on the overhead conveyor gangway …") was necessarily the optimal configuration. It is appropriate to include reference to "or an alternative approach to live noise monitoring feedback for operators of cranes in the western compound" in accordance with Sell and Parker (No 1) at [135]. The alternative would be subject to Planning Secretary's satisfaction.
Condition C12 relates to the demonstration of noise performance though a Noise Performance Monitoring Report (NPMR) within six months of the commencement of Stage 1 operations. There are two points of difference. Condition C12(b) is concerned with the monitoring framework. The applicant refers to, and includes in its Appendix 4 to the conditions, a particular specification. On the other hand, the first respondent requires the demonstration of monitoring to be in accordance with Section 7 of the NPfI (which is entitled "Monitoring Performance"). I agree with the first respondent that Appendix 4, as proposed by the applicant, presents as new information. With respect, I am simply uncertain of its credentials. Reference to Section 7 of the NPfI is appropriate here, but given potential idiosyncrasies, and noting the agreement of the first respondent, I would add to Condition C12(b) reference to "or another suitable noise performance monitoring procedure agreed by the Planning Secretary". The remaining dispute in relation to Condition C12(c) is concerned with what happens when access is denied or is unavailable for measurements to be undertaken. I am satisfied with the applicant's approach (measuring from immediately outside the relevant property boundary) as a practical response. Here, I note the clear expectation of the independence of the work to be undertaken.
Condition C13 concerns the required NPMR within six months of the commencement of Stage 2 operations. The points of difference are as per that considered at [13], and my findings are the same.

Operational noise management

Condition C15 is concerned with the preparation of an Operational Noise Management Plan (ONMP). The dispute is in regard to certain particulars of the inclusions in the ONMP, and the structure of the relevant conditional provisions, which are specified, respectively, in the applicant's Condition C15(c) and the first respondent's Condition C15(c) and C15(d). While there was considerable discussion on the topic in the parties' respective submissions, generally, I see little in the way of differences between the parties here. The parties each refer to the requirement for a trigger action response plan (TARP) with respect to noise. A notable point of distinction is that the respondent's approach would require the TARP to include reference to "cessation of non-compliant noise generating activities". I agree that this should be an inclusion in the TARP. Otherwise, generally, I prefer the structure adopted by the applicant (with the TARP as, essentially, a single distinctive element within the ONMP). I have for the most part adopted the applicant's approach and added text to the effect that the TARP should include reference to how cessation of non-compliant activities should be effected.

Flood management

I agree with the applicant that the first respondent's condition Condition C49(b) is overly onerous. The applicant's proposed condition responds to the requirements of perimeter fencing or walls reasonably and is preferred. Condition C49(c) relates to Condition C1, concerned with enabling appropriate flow of flood water during nominated extreme events. For similar reasons to my findings in Condition C1, I prefer the respondent's position.

Water management plan

The first respondent includes, at Condition C52(d), provision for a Surface Water Management Plan. It justifies this inclusion by indicating in the first respondent's written submissions (par 19) that "it is important that surface water at the Site is appropriately (managed), particularly so as to avoid impacts to neighbouring sites and Breakfast Creek located to the south of the Site." The applicant points to the finding in Sell and Parker (No 1) at [161] in support of the applicant's position in regard to then proposed Conditions C45 (applicant) and C52 (first respondent). My consideration of this condition in Sell and Parker (No 1) was centred on whether the local council should have a consultative function in regard to the preparation of the Water Management Plan, which I found in favour of. Otherwise, I note that in the applicant's written submissions filed on 19 June 2023 at par 225 (in the original aftermath of the hearing), the applicant's drafting-in of an amendment to its then Condition C45 to include provision of a Surface Water Management Plan with some relatively minor amendments to the provisions suggested by Council. I do accept the requirement for such a plan in the circumstances and suitable provisions have been included.

Revision of strategies, plans and programs

I generally agree with the applicant's suggestions in regard to Conditions D5 and D6. The review requirements of Condition D5 should most practically apply to the OEMP only. There are sufficient provisions for the Planning Secretary to require a wider review in Conditions B2, B3 and D6.

Grant of consent

Orders can now be made granting consent to SSD-10396 to increase throughput to the subject metal recovery and recycling facility, subject to conditions.
The Court orders: 1. The appeal is upheld. 2. State significant development application SSD-10396, for increased throughput to the metal recovery and recycling facility at 23-43 and 45 Tattersall Road, Kings Park, is determined by the grant of consent subject to the conditions in Annexure A. 3. Exhibits A, B and C are retained. The rest of the exhibits are returned to the party which tendered them.

Commissioner of the Court Annexure A (25558737, pdf)

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: 08 November 2023

At a glance

Court

Decision date

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Judgment (12 paragraphs)

Parties

Cases Cited (1)