CONTRACTS — Department of Defence owns very large site for a century,
used as supply and distribution centre — sold and
leased-back —
lease required Defence to “remediate the Land to a standard suitable for
Source
Original judgment source is linked above.
Catchwords
CONTRACTS — Department of Defence owns very large site for a century,used as supply and distribution centre — sold andleased-back —lease required Defence to “remediate the Land to a standard suitable foron-going commercial / industrialuse” and to return Premises clean and ingood repair and condition at end of lease — land on-sold to developer—deed of surrender of lease — Defence vacates site –developer demolishes Defence buildings, roads and underground infrastructure– whether Defence obliged to pay $20M for the costs of dealing withcontamination encountered in demolition andexcavation. INTERPRETATION — commercial contracts —whether lease incorporated definitions in Contaminated Land Management Act 1997(NSW) or standards in National Environment Protection Measures (NEPMs)guidelines – context and business commonsense –principles at[62]-[71] — resolving inconsistencies at [210] — whether deed variedlease – obligations under lease
remained but deed provided a release in
certain circumstances – Defence released. DAMAGES —
causation – remoteness – difficulties in proof – principles at
[429]-[431] – ‘geotechnically
unsuitable’ soil had to be
removed in any event.
Judgment (21 paragraphs)
[1]
This matter was not addressed in any detail in the developer's written or oral closing submissions.
Defence submitted that, on the proper construction of cl 19,1, Defence was required to preserve the condition of the site for ongoing commercial/industrial use, not improve the condition of the Land. It was not possible to "vacate" Premises that have been demolished, or "give them back to the Landlord clean and in good repair and condition" if the Land has been levelled to locate and remove asbestos. Defence's obligation to maintain the grounds and gardens was not consistent with the suggestion that Defence was obliged to remove the top 10 cm of soil, plants and trees in order to perform its obligation to remediate the site. The definition of Premises and the description of their contents in the Condition Report illustrate that the Premises had to be returned, intact. As Dr Wright explained, the ACE Consulting reports did not contain the necessary information to form any conclusion that the materials left in the tanks were hazardous. Those reports were prepared for the purposes of demolition, which was a different standard to ongoing commercial/industrial use.
[2]
Dr Swane considered that Defence did not satisfy the 'make good' requirements of cl 19.1 of the lease, given the contents of the ADE Consulting and EP Risk reports. Those reports indicated that hazardous materials remained in the buildings in the form of dusts, blast sand, chemical spills, surfaces covered with lead-based paint, solvents remaining in tanks, tanks containing caustic soda, chemical sludges, chemical containers, pits and drains containing hydrocarbons, metallic waste and sludge, and that the buildings were not clean.
Dr Wright noted that no reports were available to document the condition of Buildings 16, 67, 69 and 81 to 83 as at the Surrender Date. Dr Wright reviewed URS and GHDs' 2002 reports in respect of plant and equipment in these buildings. Dr Wright then reviewed the reports prepared by ADE Consulting in 2017 in preparation for demolition, Avcon's proposals for cleaning, decanting and waste removal works and EP Risk's final report documenting the work undertaken to decontaminate these buildings. Where each of these reports were obtained for a purpose other than assessing the level of contamination in the buildings for ongoing or general industrial use, Dr Wright observed that the reports did not contain the data necessary to assess whether chemicals were present, whether such chemicals were hazardous and whether Premises were "clean" or in "good condition" from the perspective of human health.
Dr Wright observed that there were different risk profiles for ongoing industrial use as opposed to general industrial use. For ongoing industrial use, workers would be aware of the products present at the Premises and the management measures in place for the storage and use of these products included in Safe Data Sheets and work procedures. Hence, worker exposure was often managed or minimised. For general industrial use, workers may undertake very different activities and may not be aware of the former use of products and fixtures and fittings. These workers may also not be required to incorporate management measures in the workplace to minimise exposure. The ways the workers may be exposed to chemicals is likely to be different. Likewise, workers engaged in decommissioning and demolition activities had a different risk profile again, as these workers will be involved in removal of fixtures and fittings and the demolition of structures. These activities may result in exposure to areas of the Premises and chemicals that were not normally accessible.
In Dr Wright's experience, if the reports prepared by ADE Consulting, and others, were designed to assess the condition of the Premises for ongoing or general industrial use, a different testing criteria and methodology would have been adopted, specifically designed to identify and assess whether the Premises had the potential to pose a risk to human health and/or the environment. The ADE Consulting reports did not include this information but assumed the presence of hazardous chemicals and made recommendations based on that assumption, to protect the health and safety of workers decommissioning and demolishing the site. Dr Wright observed, "there is no way to assess whether those recommendations were necessary, especially in circumstances where the Premises were to be cleaned for future ongoing or general industrial use."
As a result, Dr Wright did not consider ADE Consulting's reports to be adequate for the purpose of testing whether there were hazardous chemicals present on the Premises. In addition, there was a significant time lag between the Surrender Date and when these reports were prepared, being some two years. During this time, the condition of the Premises would have changed. Products in tanks and drains would not be in use and the properties would have changed as a result of degradation and/or evaporation. Tanks that may have been in a condition suitable for ongoing or general industrial use may have become unsuitable in the intervening period. Soil from the development site may have blown into the Premises such that it was not possible to determine if soil and dust samples in 2017 were present on the Surrender Date.
Dr Wright analysed ADE Consulting's reports in detail and considered that the sampling methodology was significantly flawed such that the analytical data was not considered to be reliable. The information provided was inadequate to understand the location of the samples collected. Hence, it was not possible to undertake an assessment of the risks to the health of workers and/or the environment. Recommendations for the amount of work required to the Premises was not supported in most areas. Nor was it possible to conclude whether the contamination reported would have been hazardous. While the recommendations to use personal protective equipment (PPE) made sense in the context of removal and demolition works, PPE would only be required for specific activities to ensure that the Premises were "clean" for ongoing and general industrial use.
Similarly, Dr Wright considered that the work detailed in the EP Risk final reports related to the removal of tanks, pipework, flooring, walls, ducting, ventilation and other fixtures and fittings for demolition. The remediation work undertaken related to removing these items and making them suitable for scrap or resale. Many of these areas were not exposed or accessible where the Premises were unchanged and could not be accessed or considered in terms of the risks to workers or the environment.
[3]
I have already concluded that Defence was released from its 'make good' obligations under cl 19.1 on the Surrender Date, as:
[4]
(a) the developer did not identify any specific instances where Defence had not performed those obligations satisfactorily as at the Surrender Date in accordance with the chassette to cl 7.3; and
(b) Defence proceeded to comply with its obligations under the deed.
[5]
If I am wrong about that, then the question is whether Defence complied with its obligations under cl 19.1 of the lease. As earlier mentioned, the Condition Reports informed the content of Defence's obligation in cl 19.1. That obligation that did not involve, for example, removing underground storage tanks by crane for on-sale or recycling as scrap metal. Understandably, the bulk of the work undertaken by the developer's contractors was not concerned with 'make good' tasks but demolition, removal and disposal.
If Dr Wright is not satisfied from the material produced by the developer's contractors and consultants that hazardous chemical remained on the Premises as at the Surrender Date (apart from some minor exceptions), nor am I. Dr Wright was a very impressive, considered and dispassionate witness; I accept her evidence. I am not satisfied that the 'make good' obligation was breached save for the minor exceptions she identified.
[6]
If I am wrong about everything that has gone before, then it is necessary to consider the developer's claim for damages. The developer submitted that, as a consequence of Defence's breach of its obligations under the lease, the developer incurred the substantial cost of removing asbestos and other contaminated material from the Land, in the course of preparing for construction of the intermodal terminal project. The developer claimed $20,724,898.76, being the costs of removal and remediation of the ACM and hazardous chemicals. The developer said it had mitigated its loss by removing or remediating these contaminants.
Defence contended that these costs were not loss and damage, but costs incurred as a result of redevelopment of the site.
[7]
The developer submitted that it was entitled to damages to place it in the same situation as if the contract had been performed: Robinson v Harman (1848) Ex 850 at 855; Tabcorp Holdings Pty Ltd v Bowen Investments Pty Limited(2009) 236 CLR 272; [2009] HCA 8 at [13]. Costs were incurred to bring the Land up to the required standard of "commercial/industrial use," which required no visible asbestos in surface soil. Defence breached the lease when it vacated the site in 2016, by failing to remove the asbestos in the top 10 cms of topsoil, that it had previously identified in 2011-2012. But for Defence's breach, the asbestos that was subsequently identified by the developer would not have been present. Everything that occurred afterwards was simply a consequence of that breach. The developer also suffered loss when hazardous chemicals were identified in Buildings 16, 67, 69, 81 and 83 and were required to be remediated.
The developer submitted that any added difficulty in establishing the remediation of land itself was not something that should be laid at the feet of the developer, where proof had been made more difficult by Defence's wrong: Armory v Delamirie (1722) 1 Str 505; Cessnock City Council v 123 259 932 Pty Ltd[2024] HCA 17; 98 ALJR 719 at [129]. Defence's failure to remediate in accordance with the lease meant it was not possible for the developer to do so once the development started and the earthworks were in full operation. The developer was entitled to rely on Defence's compliance with its obligations under the lease. Defence's failures meant that the developer had to deal with the asbestos as best it could. Proof of what was done could not be exact.
[8]
The general measure of contractual damages is the amount, so far as money can provide, necessary to put the plaintiff in the position they would have been if the contract had been performed: Koufos v C Czarnikow Ltd (The Heron II) [1969] 1 AC 350; Wenham v Ella[1972] HCA 43; (1972) 127 CLR 454 at 460 (per Barwick CJ); Burns v MAN Automotive (Aust) Pty Ltd(1986) 161 CLR 653; [1986] HCA 81. This has been described as the only measure of consequential losses for breach of contract: Cessnock City Council v 123 259 932 Pty Ltd at [117]. Assessing such damages requires the Court to compare the actual position of the party who sustains a loss by reason of the breach to what that party's position would have likely been in a counterfactual scenario in which the contract was performed: Brighton Automotive Holdings Pty Ltd v Honda Australia Pty Ltd (No 2)[2024] VSC 262 at [74] (per Matthews J).
The Court must also consider whether the loss sought is too remote, having regard to the two limbs in Hadley v Baxendale(1854) 9 Ex 341 at 254. The first limb is often referred to as 'general' damages: can it be said that the damage arose "according to the usual course of things". The second limb is often referred to as 'special' damages: can the damage be reasonably supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach. The precise damage and the precise manner of occurrence of 'special' damage need not have been contemplated, but damage of the kind that occurred must have been a "serious possibility": ; at - (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ). The issue of remoteness is assessed by looking forward from the date of the contract, not looking back from the date of breach: at [63].
[9]
It is convenient to set out Defence's evidence in respect of quantification of loss first, as it is short. So far as the remediation claim was concerned, Ms Organo prepared a scope of works to remove asbestos from the three locations where asbestos contamination was likely to have been present at the Surrender Date. The parties agreed that if this scope of works was applicable, then damages should be awarded in the amount of $330,152.82.
So far as the 'make good' claim is concerned, Dr Wright also prepared a scope of works. Mr Cowman prepared a bill of quantities to 'make good' the chemical tanks and associated infrastructure in Buildings 16, 67, 69, 81 to 83 based on a scope of works provided by Dr Wright. Ultimately, the parties agreed that if the scope of works set out in Mr Cowman's report was the applicable scope, then the award of damages ought to be $30,658.07.
Turning to the developer's case on quantification of loss, Mr Raval was the costs lead and contracts administrator for the project. In 2019, he was asked to assess the costs incurred in performing the remediation works associated with contamination. In his first report, Mr Madden considered that the total costs collated by Mr Raval were reasonably and properly incurred, reducing the total slightly to $20,980,244.
Mr Madden then sought to apportion these costs between the types of soil that had been processed, focussing particularly on the costs incurred in respect of contaminated topsoil. Where Mr Madden's calculations were adjusted over time to accommodate changes in Dr Swane's calculations of the amount of topsoil involved, it is sufficient to go to Dr Swane's final apportionment.
Dr Swane proceeded on the basis that, if GHD had done their investigation properly, they would have realised that a surface scrape was required across all of the landscaped areas of the site and that process would have been very much the same as what was subsequently done by the developer. Dr Swane's calculated that 49.72% of remediated soil was topsoil, 33.58% was soil from buried services and deeper soils, 7.97% was screened soils, 7.11% was possible topsoil; and 1.61% was soil from below buildings and pavements.
Before reviewing the apportionment of costs, it is necessary to consider the cost items which have been apportioned. To assist the reader, Mr Raval's list of costs, Mr Madden's assessment and my conclusions are attached as Addendum 2.
[10]
(a) In December 2017, two asbestos conduits were exposed in Zone 2 and 4 during excavation works; the pipes had been broken and were later identified as friable, leading to the excavation and disposal of 29.5 t of asbestos contaminated soil.
(b) On 15 January 2018, asbestos contaminated soil was identified beneath the stormwater pipework by the earthworks contractor in Zone 3, leading to the excavation and disposal of 93.64 t of asbestos contaminated soils.
(c) On 16 January 2018, asbestos fragments were identified in the topsoil surrounding Building 7, which was stockpiled and 613.54 t of asbestos contaminated soil was later disposed of.
[11]
Where it is not suggested that Defence, acting in conformity with its obligations under the lease, should have removed the stormwater pipes and surrounding fill, the first and second items are disallowed. If I take the portion of the tonnage in respect of the third item, being 83% of the soil disposed of, then $167,473.22 of the variation may be apportioned to the third item. This expense may have been incurred as a consequence of Defence failing to remediate the site to a standard suitable for ongoing commercial / industrial use, albeit it is unclear whether AC fragments were found on the surface of the soils, or after the topsoil had been scraped in accordance with the demolition contractor's practice at the time, or after the topsoil was removed completely as geotechnically unsuitable.
In February and March 2018, Liberty Industrial claimed, and the plaintiffs paid, $130,846.12 in respect of the disposal of contaminated soil in and adjacent to the "Central Access": see [327]. As I read JBS&G's report in respect of the former access road, the asbestos contamination was found when the access road was removed. Area 4 and Area 5 appear to have been alongside that road and comprised, together, some 25% of the estimated volumes of asbestos contaminated soil. Where the evidence in respect of the variation did not delineate between the three items of work, doing the best I can, 25% of this item may relate to soil on the road side, being $32,711.53. It can hardly be thought that Defence was required to remove the access road in order to conform with its obligations under the lease. This portion of the variation may have been incurred as a consequence of Defence failing to remediate the site to a standard suitable for ongoing commercial / industrial use, albeit it is unknown whether the AC fragments were on the surface of the roadside or only uncovered on scrapping or deeper excavation.
In April 2018, Liberty Industrial claimed $4,429,381.24 against contract item 5.5.4 ("Load, haul and dispose off-site as General Solid Waste - Special Waste (Asbestos)"). Whether this waste was topsoil is not known.
In May 2018, Liberty Industrial claimed $751,043.53, which was paid, in relation to contract item 5.5.3, being "Load, haul and dispose off-site as General Solid Waste". According to Mr Raval, this related to the disposal of general solid waste from stockpiled materials referred to in contract item 5.3.3.1 ("Construction, operation and disestablishment of CATA") and contract item 5.3.4.1 ("Load and haul from assessed stockpile, remediate by segregating, sorting and screening and stockpile (including emu pick as required)") not be repurposed or disposed of on-site. Whether this waste came from topsoil is not known.
[12]
(a) Contract Item 5.5.3 ("load, haul and dispose off-site as general solid waste"), allowed for 3,038 tons of general solid waste. In April and June 2018, Liberty Industrial made a claim in respect of additional 10,758.16 tons and 1,008.12 tons respectively, totalling $2,157,580.88.
(b) Contract Item 5.5.4 ("load, haul and dispose off-site as general solid waste - special waste (asbestos)") allowed for 19,748 tons. An additional 28,719.21 tons was claimed by Liberty Industrial from June to November 2018, totalling $2,316,285.61.
(c) Contract Item 5.3.1 ("excavate, load and haul to stockpile contaminated material for assessment by environmental consultant") originally allowed 2,025 m2 of contaminated material but, from September to November 2018, Liberty Industrial claimed an additional 4,192.96 tons, totalling $1,014,726.90.
(d) Contract Item 5.5.4 ("load, haul and dispose off-site as Contract Item 5.3.4.1 ("load and haul from assessed stockpile, remediate by segregating, sorting and screening and stockpile (including emu-pick as required)") originally allowed for 1,825 m2 of material. from September to November 2018, Liberty Industrial made a claim in respect of an additional 31,716.85 m2, totalling $2,124,814.55.
(e) Contract Item 5.3.2.1 ("implementation of asbestos management plan and controls") originally allowed six weeks at $6,850. Liberty Industrial claimed an additional 5.5 weeks, totalling $37,675.
[13]
What portion of these provisional sum adjustments related to topsoil, removed because there was AC fragments on the surface, is not known. In sum, as matters presently stand, I accept that $151,285.72 flows from Defence's breach of its remediation obligations (if I am wrong about everything else) while a further $14,213,834 may or may not have involved topsoil removed by reason of visible asbestos on the surface. That is, Mr Madden's starting point of $20,980,224 must be revised as follows:
[14]
(a) I have disallowed Item No 1 to 6, 8, 11, 12, 23 to 25 in Mr Madden's table, totalling $2,783,141;
(b) Items No 7 and 22 in Mr Madden's table are the 'make good' claim in respect of hazardous chemicals, totalling $1,298,853 and are considered elsewhere.
(c) Items No 9 and 10 in Mr Madden's table were partially (potentially) allowed in a total sum of $198,509.01, as opposed to $330,602 claimed.
(d) Items No 13 to 21 and 26 to 28 were potentially recoverable, albeit Item No 28 (preliminaries) is now a maximum of $910,645.91, taking into account the items which had been disallowed.
(e) Item No 29 (EP Risk) was not pressed, being $270,237.
[15]
By my calculations, Mr Madden's total is now $151,285.72 and potentially a further $16,938,833.
Turning then to the apportionment exercise undertaken by Mr Madden, he first calculated the costs which he considered were entirely attributable to the remediation of topsoil, totalling $3,643,482. Mr Madden included $32,500 for construction of the CATA and $57,400 in respect of "subsurface" scrapes, both of which I have disallowed: see [442], [462]. He also included the proportionate preliminaries figure of $949,624, which needs to be recalculated having regard to the items which I have disallowed: $18,111.67 is referable to the emu-pick around the tenanted warehouses and $910,645.91 is potentially recoverable in the event that it related to the removal of topsoil which had asbestos on the surface, which is not clear. Of Mr Madden's $3,643,482, the figure of $3,514,604 should be used, noting that it remains unclear whether all but $18,111.67 of that figure was clearly attributable to asbestos on the surface of soils.
Mr Madden then used an allocation percentage of 49.72% to attribute other costs which were associated with all material types, including $41,100 for "Implementation of Asbestos Management plan and controls" (which I have disallowed) and the costs of EP Risk's reports (which was not pressed). These cost items totalled $2,083,381.95. Taking into account the items which I have disallowed or were not pressed, the total is now $1,772,045.40. With these alterations, as I calculate it, Mr Madden would have apportioned $881,061 for known topsoil, $585,053 for costs associated with buried surfaces and deeper soil, $141,232 for screened soil, $125,992 for possible topsoil and $28,530 for soil below building footprints and pavements.
As I understand it, Mr Madden then used the final tonnages calculated by Dr Swane to attribute haulage costs referred to at [452], [454] and [467(b)]. In the result, Mr Madden calculated haulage costs of $5,130,537 for known topsoil, $3,464,837 for costs associated with buried surfaces and deeper soil, $822,522 for screened soil, $734,114 for possible topsoil and $166,487 for soil below building footprints and pavements.
[16]
I put to one side the apportionment of costs to buried surfaces, deeper soil and soil below building footprints and pavements. I will include the apportionment for known topsoil and possible topsoil but exclude the apportionment for screen soil. Where the apportionment for possible topsoil and screen soil is roughly the same, proceeding in this manner reflects the chance that the possible topsoil was not, in fact, topsoil and that a portion of the screen soil was not topsoil either. That means that 56.83% of costs that may have related to topsoil will be included, for the purposes of further consideration. The resulting figure is $9,701,942. It is then necessary to consider whether this amount should be awarded as damages having regard to the legal principles earlier outlined.
[17]
In assembling its damages claim, the developer has, with Mr Raval's assistance, basically tallied up all costs incurred by the developer in dealing with contamination on the site, whether those costs were required in order to discharge the developer's obligations under the development approval, or related to contaminated material found on or near the surface or at depth, or related to topsoil which had been removed as geotechnically unsuitable and, on being placed in a stockpile, proved to contain AC fragments.
The developer has then, with the assistance of Dr Swane and Mr Madden, tried to isolate costs which may be seen as related to the treatment of topsoil only, in the event that the Court is not minded to award the entirety of Mr Raval's costs as damages. In the preceding exercise, I have tried to do this too.
The problem I have with Dr Swane's efforts to apportion remediation costs to topsoil is that he has proceeded on the basis that it was necessary for Defence to remove the top 10 cm of topsoil, regardless of whether there was visible asbestos on the surface, or after raking, or at all. I have already concluded that Defence was not obliged to do this in order to discharge its remediation obligation. That is because Defence only had to remediate the site for "on-going" commercial / industrial use, being continued use of the site as a supply and distribution centre. To perform that obligation, Defence was obliged to ensure that there was no asbestos on the ground or, if one follows the guidance in NEPM (2013), in surface soils.
Another problem is that Dr Swane's analysis was based, in part, on the amount of material referred to in JBS&G's waste classification reports. But it cannot be assumed that the estimated volume of material in JBS&G's waste classification reports was ultimately disposed of as asbestos waste: see [307]. Nor can one now know what portion of the topsoil had visible asbestos on the surface and what portion was removed as geotechnically unsuitable, as a consequence of which AC fragments became visible.
I accept that the Court should facilitate the discharge of the onus of establishing damages where the defendant's wrongdoing has given rise to uncertainty regarding the quantum of loss. But damages must still be assessed in accordance with legal principle, including having regard to causation and remoteness. Further, there needs to be basis for choosing a particular figure; I need to be able to do more than take a 'stab' at it.
[18]
For these reasons, I make the following orders:
[19]
(1) Dismiss the Summons with costs.
(2) Grant liberty to apply to vary the costs order.
[20]
ADDENDUM 1 - waste classification and clearance reports
[21]
On 19 September 2017, JBS&G provided a waste classification report in respect of an unexpected find of an ACM pipe south of Building 4. Some 10 m3 of material was classified as general solid waste with special (asbestos) waste. On 28 September 2017, JBS&G confirmed an unexpected find south of Building 4, being an ACM services pipe. ACM pipe fragments were identified on ground level and were removed but the pipeline appeared to extend in an easterly direction and remained in situ. On 8 January 2018, JBS&G provided a letter confirming that the unexpected find of an asbestos pipe and pipe fragments west of Building 4 had been appropriately removed. The pipe was in poor condition "due to damage during earthworks prior to the identification of potential ACM". The pipe and impacted fill was excavated only to the boundaries required for earthworks, being 10m in length, 2 m in width and 30 cm deep. JBS&G provided its report on this unexpected find in Zone 3 East on 23 January 2018.
On 20 September 2017, JBS&G provided a waste classification report in respect of an unexpected find of ACM fragments near Building 19. Some 75 m3 was classified as general solid waste with special (asbestos) waste. On 27 September 2017, JBS&G also reported on an unexpected find of ACM fragments and service pipes west of Building 19. The initial fragment was identified protruding out of the ground and another suspected ACM pipe found 2 m south of that find, "Upon excavation, further ACM fragments were identified in the vicinity of the pipes beneath a tree stump". The suspected ACM fragments, pipes and associated contaminated soils were removed and an additional suspected service pipe identified underneath, running horizontal. The pipe uncovered by the excavation was removed but the suspected ACM pipe remained in situ. On 8 January 2018, JBS&G reported on the remediation of an unexpected find of AC pipe and pipe fragments south of Building 19. The material was identified during earthworks. An area of approximately 15 m in length, 5m wide and 0.5 m in depth was excavated around the area to delineate the potential impact and no further AC pipe fragments or in situ pipe were observed.
On 20 September 2017, JBS&G reported on an unexpected find near Building 1. The find had been identified on 4 September 2017, during demolition works west of the building footprint. Asbestos fragments were identified west of the building, in an area approximately 17 m long and 6 m wide. The contaminated soil surrounding the ACM material consisted of the upper 1.2 m of the contaminated area. Impacted soils were removed and stockpiled in Stockpile 08. After removal and laboratory testing, JBS&G advised that the area of the unexpected find was considered suitable for continued commercial/ industrial land use. JBS&G also provided a waste classification report in respect of some 54 m3 held in Stockpile SP08, noting that the asbestos was bonded and classifying the material as general solid waste with special (asbestos) waste.
Parties
Applicant/Plaintiff:
The Trust Company Ltd
Respondent/Defendant:
Commonwealth of Australia [2025] NSWSC 502
Legislation Cited (8)
Land Management Act 1997
Planning and Assessment Act 1979
Environment Protection Council Act 1994
Environment Protection Council (New South Wales) Act 1995
Land Management Act 1997
Planning and Assessment Act 1979
Environment Protection Council Act 1994
Environment Protection Council (New South Wales) Act 1995
The developer submitted that Mr Raval's evidence was not challenged. Mr Madden had verified and assessed the developer's claim and adjusted the figure to $20,980,244. The developer accepted that the amount recovered ought to exclude ACM discovered beneath the buildings and pavements, which was calculated by Dr Swane, and assessed by Mr Madden, in the sum of $200,030. This brought the claim to $20,780,214 plus interest. Where Defence suggested that the work was undertaken by way of redevelopment of the land, that should not tell against the developer where there was no suggestion that the work was not properly or reasonably incurred or that it was performed outside of the definition of "commercial/industrial use". These damages were said to flow naturally from Defence's failures to comply with its remediation obligations in the lease and the deed.
The developer noted that it was not entirely clear from JBS&G's waste classification reports whether some waste was topsoil, taken from the first 10cm of soil. The developer was said to be entitled to an inference that it was topsoil, due to the fact that Defence's breach had made it difficult to make that assessment accurately. Further, Dr Swane undertook an analysis of the tipping records, which Ms Organo did not, and "found that more asbestos waste was documented in tip records than were documented in waste classification or stockpile reports". Mr Madden had since done a breakdown of the developer's claim in respect of known topsoil ($9,273,333), possible topsoil ($882,243), building services and deeper soil ($4,164,437) and screened soil ($822,522).
Defence submitted that the costs incurred by the developer were not caused by any breach of the lease or the deed but by the need to strip geotechnically unsuitable topsoil in any event. The decision to strip the topsoil was an intervening act which hugely magnified the expense of managing the Land to ensure ongoing suitability for commercial industrial use. The geotechnical unsuitability of the topsoil for the developer's purpose was essentially a latent defect in the Land which only came to light when the developer advanced the intermodal facility project. That was not consequential loss. Defence had no knowledge of the geotechnical requirements of the development. This was not within the reasonable contemplation of the parties and the loss was too remote.
Defence submitted that, if there was a breach, recoverable loss was limited to the cost of bringing the Land into conformity with the standard required by the deed. The developer's evidence did not address what works would have been necessary to achieve conditional site suitability, nor the cost of such works. The developer did not have evidence of the location and condition of any visible surface asbestos on the Surrender Date. Without this, the developer could not establish a right to recover the cost of carrying out any localised surface scrapes, let alone wholesale topsoil removal.
Defence submitted that the truth was that the developer elected to carry out the development in a particular way, aware of the possibility of asbestos contamination. JBS&G was engaged to classify large tracts of land for potential disposal. Since a decision to remove the soil had already been made, JBS&G took the broadest of broad brushstrokes in characterising these large areas as impacted or not impacted by asbestos. Dr Swane's calculation of the amount of topsoil affected by asbestos contamination was said to be replete with errors, double counting the volume of topsoils excavated and mis-allocating soils in the categories in his tables.
So far as the 'make good' claim was concerned, Defence was obliged to clean accessible visible surfaces to the extent that they were able to be cleaned. Even if Defence did not fulfill that obligation, the developer still had to incur the same costs when dismantling the tanks and other fixtures in the buildings as part of the development. The costs of preparing the Buildings and fixtures for demolition were not costs of making good the Premises for ongoing commercial/industrial use and would have been incurred in any event.
As observed in Cessnock City Council v 123 259 932 Pty Ltd, the onus to prove loss arising from a breach of contract falls on the plaintiff, albeit in some circumstances the common law facilitates the discharge of that onus where the defendant's wrongdoing has resulted in uncertainty regarding the quantum of loss: at [127]-[133]. The Court must do the best it can in assessing damages notwithstanding the difficulties in doing so, where estimation, if not guesswork, may be necessary in assessing the damages to be allowed: Fink v Fink[1946] HCA 54; (1946) 74 CLR 127 at 143 (per Dixon and McTiernan JJ); McRae v Commonwealth Disposals Commission[1951] HCA 79; (1951) 84 CLR 377 at 411-412 (per Dixon and Fullagar JJ); The Commonwealth v Amann Aviation Pty Ltd[1991] HCA 54; (1991) 174 CLR 64 at 83 (per Mason CJ and Dawson J).
First, JBS&G was paid $1,700,964.55. Mr Raval said that he had reviewed JBS&G's invoices and noted that there were small amounts which did not relate to the contamination claim, but did not say what those amounts were.
As for the demolition contractor, Mr Raval said that the superintendent issued directions to Liberty Industrial to undertake additional tasks in respect of contamination encountered on site, which resulted in a series of variations to the contract. Mr Raval reviewed Liberty Industrial's progress claims, progress certificates issued by the superintendent in respect of those claims, the quantity surveyor's assessment at the time, together with tracking and weighbridge tipping dockets for contaminated materials, invoices from waste disposal service providers, receipts and invoices from Liberty Industrial's subcontractors and plant and equipment hire providers.
The first item identified by Mr Raval was $31,500 paid to Liberty Industrial under contract item 1.7.7, said to be located in Annexure Part T of the contract in respect of "Implementation of Asbestos Management Requirements". (This portion of the contract with Liberty Industrial was not in evidence. I have proceeded on the basis that it was in the same form in Part T of the amended construction contract). A lump sum based on six weeks at $5,250 was provided for this item, totalling $31,500.
Given the description of this item, and the fact that this payment was made progressively from May to August 2017 - largely before asbestos was encountered on-site - I infer that this expense was incurred as part of the subcontractor's obligation to set up a system to deal with contamination, if encountered, as required under the various approvals given by statutory authorities for work to be done on the site. Incurring this fee had nothing to do with whether Defence had complied with its obligations under the lease or not. This claim is disallowed.
The same can be said for $32,500 incurred by the developer in relation to contract item 5.3.11, located at Annexure Part T of the contract, being the costs associated with constructing, operating and disestablishing a temporary facility on-site where asbestos could be assessed and treated, if required. This facility was referred to as the Contamination Assessment Treatment Area (CATA). As earlier noted at [283], the plans for CATA were drawn up by the developer in May 2016, long before any asbestos was found on-site and apparently as part of the application to obtain approval for the development of the site. The construction of the CATA was unrelated to Defence's performance of its obligations under the lease. This item is disallowed.
The same can be said for $41,100 claimed in respect of contract item 5.3.2.1, "Implementation of Asbestos Management plan and controls". Mr Raval said this was being the overhead costs of ensuring compliance with the Asbestos Management Plan requirements, at $6,850 per week. The obligation to comply with the Asbestos Management Plan pre-dated any discovery of asbestos on the site and arose from the conditions of consent for the development, unrelated to Defence's compliance or non-compliance with its obligations under the lease. This item is disallowed.
On 25 August 2017, Liberty Industrial issued a variation notice in respect of the removal of ACM from beneath the concrete slab under Building 20. The plaintiffs paid $355,817.65 for this variation. Ultimately, the plaintiffs did not seek the recovery of this amount. Nor can it be suggested that Defence's obligations under the lease extended to demolishing buildings in order to ensure that there was no asbestos located beneath.
On 26 October 2017, Liberty Industrial issued a variation notice for the literature review and pre-demolition hazardous material survey report it was directed to prepare in respect of the hazardous materials in DNSDC buildings: see [304]. The plaintiffs paid $155,524.60 for this variation. As I understand it, this report focussed on the hazardous items in the buildings, rather than any asbestos in the topsoil around the buildings. This item is disallowed.
On 22 November 2017, Liberty Industrial issued a variation notice in respect of addressing contamination around Buildings 1 and 19, being asbestos pipework adjacent to the buildings and fragments within excavated areas at the northern entrance. The plaintiffs paid $95,477.43 for this variation. Liberty Industrial issued a further variation, when the excavation and removal of stormwater pipes between Building 16 and 17 revealed asbestos fragments and sheeting within the soil surrounding the pipework. The plaintiffs paid $73,601.92 for this variation. Where it cannot be suggested that Defence's obligations under the lease included excavating and removing underground stormwater pipes, these expenses are disallowed.
On 23 November 2017, Liberty Industrial issued a variation notice in respect of the excavation and removal of stormwater pipes around Building 20 and 11 and the asbestos fragments and sheeting identified in the soil surrounding the pipework. The plaintiffs paid $746,935.50 for this variation. Where it cannot be suggested that Defence's obligations under the lease included excavating and removing underground stormwater pipes and surrounding fill, this item is disallowed.
On 23 November 2017, Liberty Industrial issued a variation in respect of dealing with asbestos impacted soils encountered during the excavation and removal of stormwater pipes surrounding Buildings 6 and 9. The ACM fragments and sheeting were identified within the soil surrounding the pipework. The plaintiffs paid $646,430.50 for this variation. Where it is not suggested that Defence, acting in conformity with its obligations under the lease, should have removed the stormwater pipes and surrounding fill, this item is disallowed.
On 29 January 2018, Liberty Industrial issued a variation, which was ultimately paid by the plaintiffs in the sum of $201,085.80, in respect of three items:
In June 2018, Liberty Industrial claimed $669,633.18 against contract item 5.5.4 ("Load, haul and dispose off-site as General Solid Waste - Special Waste (Asbestos)"). Whether this waste was topsoil is not known.
In September 2018, Liberty Industrial made a claim under contract item 5.3.1, "Construction, operation and disestablishment of CATA". The claim related to the cost associated with excavation, loading samples of excavated material in relation to an unexpected find into a truck and hauling it to the CATA area into a stockpile for assessment by JBS&G. The plaintiffs paid $33,405.90 for this item. Whether this waste was topsoil is not known.
In October 2018, Liberty Industrial claimed $122,248.20, which was paid, for contract item 5.3.4.1, being "load and haul from Assessed Stockpile, remediation by segregating, sorting and screening and stockpile (including Emu pick as required)". This related to the sorting and screening of an unexpected find, after assessment by JBS&G into stockpiles appropriate for on-site treatment, off-site disposal or suitable for re-use. Whether this waste was topsoil is not known.
In October 2018, Liberty Industrial claimed $56,868.65 for a variation in respect of the removal of an asbestos containing membrane to the roof of Building 47. The claim was paid in full. It is hard to see how Defence was obliged to re-roof buildings in order to comply with the lease. This item is disallowed.
In January 2019, Liberty Industrial claimed $3,341.11 for a variation in respect of the costs of disposing of a ACM impacted stormwater pipe uncovered during the removal of Building 13. The claim was paid in full. Again, this expense appears to have been incurred in relation to the removal of a stormwater pipe, which I have concluded Defence was not obliged to do when performing its remediation obligations under the lease. This claim is disallowed.
In February and March 2019, Liberty Industrial claimed a variation of $133,174.05, which was paid, in respect of the costs of locating and removing ACM from the ground surface adjacent to the tenanted warehouses. This was approved by the quantity surveyor, who noted that they were unable to verify the quantum of hours by reference to day dockets or the like but "will take on good faith, considering photographic evidence, JBS&G report noting days decontamination works occurred, clearance of said areas and the area involved in the required decontamination" being 26,880 m2. The quantity surveyor was also unable to verify the quantity of materials used but took it on good faith, considering the hours allocated to the tasks and the photographic evidence provided.
Mr Madden said the fact that, on occasion, day dockets were unavailable to verify the quantum of hours, which were taken on good faith by the quantity surveyor, did not prevent Mr Madden assessing whether the amount claimed for emu-picking was reasonable, where assessing reasonableness without dockets was "not an uncommon task". I accept that the amount claimed for the emu-pick around the tenanted warehouses was reasonable.
The more important question is whether that expense was incurred as a consequence of Defence failing to comply with its remediation obligation under the lease. It is not clear to me whether the area around the tenanted warehouses was emu-picked by GHD in 2012. Although the tenanted warehouses formed part of an emu-pick zone (being zone 12 and zone 14), I could not locate a letter from GHD confirming the removal of asbestos from those emu-pick areas. I will proceed on the basis that it was not done in 2012. The cost of doing so in 2019 is recoverable from Defence, where failing to take steps to ensure there was no asbestos on the surface at the time had the consequence that the developer incurred this cost instead.
On 1 March 2019, Liberty Industrial claimed a variation of $57,440.11 for a subsurface scrape carried out near Buildings 32, 33, 34, the eastern side of Building 35 and 39 (within the telecommunications pit), Building 44 and 45, around Buildings 46 and 48 and the scraping of the stormwater pit found at the north-eastern side of Building 44. The claim was paid in full. The reference to "subsurface" scraps, telecommunications pits and a stormwater pit suggest that the soil was not surface soil. This item is disallowed.
From March to May 2019, Liberty Industrial claimed, and was paid, variations totalling $356,855.28 for layering and compacting asbestos contaminated IMEX topsoil under the supervision of Golder Associates and JBS&G: see [337]. Again, it is unclear whether this topsoil came to be removed because AC fragments were on the surface, or deeper down, or simply because it was geotechnically unsuitable.
In total, Mr Raval calculated that $10,423,063.68 had been specifically claimed by Liberty Industrial under the construction contract in respect of the contamination dealt with on-site. To this, Mr Raval calculated a proportion of the contractor's preliminaries costs which should be allocated as well. Mr Raval explained that preliminaries costs are project costs of the contractor which are general running costs to perform the works and are not specifically included in the contract sum, such as site management and security. He did not calculate preliminaries against specific line items but on completion of the contract. The amount claimed for proportionate preliminaries was $949,624.01, which was only applicable under the amended construction contract.
The amended construction contract was executed in about January 2018. I will proceed on the basis that variations from January 2018 on were issued under that contract. By my count, $6,945,322.80 was paid under that contract. Working back from the preliminaries apportioned to contamination variations, Mr Raval has added 13.7% to the variations.
Of the expenses tallied by Mr Raval to this point, I have accepted $133,174.05. To this should be added 13.6% to allow for preliminaries, making a total of $151,285.72. Yet to be resolved are the expenses which may or may not have involved topsoil removed by reason of visible asbestos on the surface. These expenses total $6,562,751.80 which, with preliminaries, makes $7,455,286.
In addition, Mr Raval calculated $7,651,082.94 as provisional sum adjustments under the amended construction contract, where additional quantities of work relating to remediation works had been required, and adjustments had been made. Five provisional sum adjustments were involved:
In doing so, I note that Mr Madden used the demolition contractor's schedule of rates. I note that Liberty Industrial charged the following rates per tonne to load, haul and dispose off-site of the following materials:
some
As to causation, there is clear evidence from the geotechnical reports that the topsoil and fill on the Moorebank site was regarded as geotechnically unsuitable and, thus, would have to be removed from the site in any event. Mr Mettam agreed that a large portion of the topsoils were assessed by Golder Associates to be geotechnically unsuitable and, for that reason, irrespective of whether there was ACM in the soils, it was necessary to remove those soils from the site in any event. There was a possibility that some of the material could be re-used if mixed with other suitable material. Some attempt appears to have been made to do so, although it appears to have been minor in the scheme of things: see [463]. That is, the developer was going to have to disposal of the topsoil in any event.
As mentioned, the general measure of damages is the amount, so far as money can provide, necessary to put the plaintiff in the position they would have been if the contract had been performed. Assessing such damages requires the Court to compare the actual position of the party who sustains a loss by reason of the breach to what that party's position would have likely been in a counterfactual scenario in which the contract was performed. Where the developer was going to have to remove the topsoil in any event, a more accurate measure of the developer's loss is the additional cost incurred to dispose of this material off-site where the waste included asbestos, as opposed to if it had not.
The developer acknowledged as much in closing submissions, but submitted that the onus was on Defence to demonstrate the difference between the cost of disposal incurred, and the cost of disposal which would have been incurred in any event. Where the developer had claimed the whole cost of waste disposal, it was said to be for Defence to prove that it was something less than the full amount.
But the different waste disposal rates are known: see [472]. From my reading of JBS&G's waste classification reports, I understand that soil which contained asbestos fragments beyond a certain concentration or, in the case of friable asbestos, any concentration, was classified as special waste (asbestos), while the other soil was, by and large, classified as general solid waste. There were some classifications of restricted waste, but this was not in respect of soil with asbestos. On that basis, the increase in cost to dispose of soil with asbestos was another 4% or 9% on what would otherwise have been the case.
Not all of the cost items which are included in my earlier total of $9,701,942 are haulage and disposal. Some of these cost items may not have been incurred at all if the topsoil did not have asbestos. I have gone through the cost items which are included in the $9,701,942 and have allowed 10% for the haulage and disposal cost items only. This is because the damages are the additional cost of disposal, not the whole cost, where the soil was going to be disposed of in any event. The resulting figure is $3,238,830.
A way to test whether this figure is reasonable is to consider what it would have cost to perform the remediation obligation properly, albeit I accept that the cost of performance will not necessarily be the same as the cost involved in remedying non-performance. As I have earlier concluded, there was some asbestos on the surface of the soil at the Surrender Date, being near the southern burial pits and in three locations identified by Ms Organo. Beyond this, any incidence of asbestos on the surface was likely minor.
Defence would certainly have complied with its remediation obligation under the lease if it had done another emu-pick of the Moorebank site before the Surrender Date, removing all AC fragments on the surface of the soil. The cost of undertaking that task is known for the tenanted warehouses, which were initialled marked out in GHD's recommended remediation strategy of 2011 as Zones 12 and 14. GHD had then marked out the DNSDC site into 20 zones, of roughly equal size. If we apply the cost of emu-picking the tenanted warehouses to the whole of the site, then the cost would have been roughly 10 times $133,174.05, that is $1,331,740.50. To that should be added proportionate preliminaries of 13.6%, which brings us to $1,512,857.20. As far as can be told, the amount claimed by the demolition contractor for the emu-pick included the cost of disposing of the AC materials.
The bill of quantities prepared in respect of Ms Organo and Dr Wright's scope of works should be added, making $1,873,368. There may be some duplication between the scope of works prepared by Ms Organo and the cost of an emu-pick for the same area, but I consider any duplication to be minimal. Something should be allowed for the costs of consultants to confirm that this work had been done properly. The cost of performing the remediation and 'make good' obligations was some $2.2 million.
This is $1 million less than the damages I have calculated. This gives me some comfort that the damages are not too wide of the mark.
On 21 September 2017, JBS&G provided a waste classification report in respect of an unexpected find of ACM fragments south-west of Building 1, uncovered during excavation of soil in the area. Some 60 m3 was classified as general solid waste with special (asbestos) waste. On 26 September 2017, JBS&G reported two unexpected finds in the footprint of Building 1, being potential ACM fragments and cladding north of the footprint and a stormwater pipe south of the footprint. The former was identified at ground level during demolition works, while the pipe was identified at 0.3 m depth. Both were thought to be bonded ACM. JBS&G classified materials as associated with an unexpected find of ACM fragments southwest of Building 1 at 30 cm depth. The ACM was removed. On 28 September 2017, JBS&G provided a waste classification report in respect of the asphalt waterproofing underneath the concrete slab for Building 1. Some 250 m3 of material was classified as general solid waste. On 29 September 2017, a further waste classification report was provided in respect of an ACM pit found south of Building 1 uncovered during service removal in the area. Approximately 5 m3 of material was classified as general solid waste with special (asbestos) waste.
According to JBS&G's reports, on 21 September 2017 asbestos fragments were found in fill material surrounding five stormwater pipelines following the northern and southern lengths of the Buildings 10 and 11 footprints. These fragments were identified during service removal works and continued to an approximate depth of 1.5 m below ground level. ACM impacted fill was excavated and transported to a licenced waste facility, while remaining ACM fragments visible on exposed soils within the trench were picked up and the soils visually inspected to confirm that no visual asbestos was observed. JBS&G later provided a waste classification report: some 1,000 m3 of material was classified as General Solid Waste with Special (Asbestos) Waste.
On 25 September 2017, JBS&G provided a waste classification in respect of some 8 m3 of ACM contaminated soils south of the Building 27 footprint. The material was classified as general solid waste with special (asbestos) waste.
On 26 September 2017, JBS&G reported on another unexpected find surrounding the footprint of Building 11, being a suspected ACM stormwater pit identified at 0.1 m depth during demolition excavation works. Laboratory analysis of the sample did not identify any ACM.
On 29 September 2017, JBS&G provided a waste classification report in respect of materials associated with an unexpected find, being bonded ACM fragments bordering the footprint of Building 6 and Building 9. The material comprised some 984 m3. The waste was classified as general solid waste with special (asbestos) waste. On 16 October 2017, JBS&G provided a waste classification report in respect of ACM fragments within the backfill of service pipes alongside Buildings 6 and 9. The stormwater pipes were being removed. ACM impacted fill was excavated where required for service removal. Remaining ACM visible on exposed soils within the trench were picked up and the soils visually inspected to confirm that no visible asbestos was observed. The identified ACM within the excavated area had been appropriately removed.
On 11 October 2017, JBS&G provided a waste classification report in respect of stockpiled ACM impacted soil sourced from an area adjacent to Building 5 during archaeological works and then held in 'SP04' in the stockpiling area. Some 75 m3 was classified as general solid waste with special (asbestos) waste. Stockpiled ACM impacted soil sourced during archaeological works adjacent to Building 5 were held as "SP04" in the stockpiling area. On 25 October 2017, JBS&G confirmed that they had inspected the footprint after the impacted material was being removed and advised that the material had been appropriately removed.
On 13 October 2017, JBS&G reported on an unexpected find of potential ACM during the demolition of Building 16. The item was a fire door with suspected ACM. On 20 December 2017, JBS&G provided a waste classification report in respect of an unexpected find in Zone 3 East, being bonded ACM fragments surrounding a stormwater pipe uncovered during bulk earthworks within the former Building 16 footprint. The material comprised 150 m3 was classified as general solid waste with special (asbestos) waste.
On 16 October 2017, JBS&G provided a waste classification report in respect of an unexpected find of bituminous waterproofing material between concrete slabs at the former Building 1 site. The material was "appropriately removed". A similar letter was provided in respect of an unexpected find, being asbestos containing communications pit located at the southern end of Building 1, "and associated fragments broken during surface removal". The communications pit and associated fragments were observed within fill material to a depth of 1m below ground level. The consultant confirmed that the ACM had been "appropriately removed". Stockpiled ACM impacted soil sourced from an unexpected find at Building 1 and unexpected finds at the northern entrance were held as "SP08" in the stockpiling area. On 26 October 2017, JBS&G advised that the ACM fragments within the fill material had been appropriately removed.
On 17 October 2017, JBS&G provided a waste classification report in respect of an unexpected find of bonded ACM fragments bordering Building 17. JBS&G noted that the find was uncovered during stormwater service removal in the area. There existed the potential for further such finds to be unearthed during service removal along the length of the building and extending along the footprint of Building 18. The volume of material presently located was 250 m3, with potential additional material of some 750 m3. The waste was classified as general solid waste with special (asbestos) waste.
On 19 October 2017, JBS&G classified a stockpile of asphalt from pavement removed during demolition activities on-site. The asphalt and road base gravels were considered suitable for site re-use.
On 26 October 2017, JBS&G provided a waste classification report in respect of asbestos fragments in fill encountered during the removal of a stormwater pipeline alongside Building 17. On 26 October 2017, JBS&G reported on an unexpected find in Building 17. ACM fragments were found within the backfill of service pipes along the length of the building. Remaining ACM fragments visible on exposed soils within the trench were picked up and the soils visually inspected to confirm that no visible asbestos remained.
On 1 November 2017, JBS&G provided a waste classification report in respect of an unexpected find of ACM fragments at Building 7. The find was uncovered during topsoil removal works in the area. The visible ACM was bonded asbestos. Works were stopped, where there was a potential for ACM contamination to extend east along the length of the building during topsoil removal in that area. Some 30 m3 had been unearthed, with potential additional material affected of some 200 m3. The waste was classified as general solid waste with special (asbestos) waste. On 6 April 2018, JBS&G provided a waste classification report in respect of backfill materials excavated during the removal of redundant stormwater pipes from the former Building 7 site. Some 350 m3 was classified as general solid waste mixed with special waste (asbestos).
On 28 November 2017, JBS&G provided a waste classification report in respect of an unexpected find, being an asbestos containing pipe and pipe fragments uncovered during earthworks in the western portion of Zone 2. Some 25 m3 was classified as general solid waste with special (asbestos) waste, containing bonded ACM.
On 4 December 2017, JBS&G provided a waste classification report in respect of an unexpected find, being asbestos containing pipe and pipe fragments uncovered during earthworks in Zone 4 West. The material comprised some 20 m3 with both bonded and friable asbestos; the AC pipe had been crushed during excavation. The waste was classified as general solid waste with special (asbestos) waste.
In January 2018, ACM fragments were found in fill surrounding a concrete stormwater pipe west of Building 16. A stormwater pipe was being removed to facilitate development of earthworks. On 15 and 16 January 2018, the stormwater pipe trench was excavated for approximately 75 m in length, 2 m in width and 1 m depth. No ACM materials or ACM impacted soils were encountered in the last 10 metre section of the stormwater pipe and this material was stockpiled for re-use on the site. Following the excavation works, the excavation area was some 130 m long and 5 m wide. The stockpiled material was inspected to confirm that there was no visual asbestos, while ACM impacted soil was transported to a licenced waste facility.
On 9 February 2018, JBS&G provided a waste classification report in respect of an unexpected find in Area 5 Southeast. An ACM telecommunications pit had been uncovered during earthworks in the area. The material comprised 20 m3 and was classified as general solid waste with special (asbestos) waste. A further waste classification report was also provided for an unexpected find in Area 4 Northwest, being ACM impacted soil in a services trench uncovered during earthworks in the area. Some 65 m3 was classified as general solid waste with special (asbestos) waste.
On 13 February 2018, JBS&G provided a waste classification report in respect of an unexpected find, being ACM impacted soil at an access road. The material comprised some 250 m3 and was classified as general solid waste with special (asbestos) waste.
On 26 February 2018, JBS&G provided a report on an unexpected find of asbestos cement fragments in fill surrounding an access road, old entrance gate and garden area. The material was identified during general site excavation works, with removal required to facilitate swale excavation earthworks. ACM fragments were observed on the surface and confirmed by test pitting at a depth of 0.5 m. It was assumed that ACM contaminated fill was present in soils in the swale excavation area. Excavation was approximately 33 m long, 10 m wide and 0.5 m deep. Following the excavation, a visual inspection of the surface of the soil was conducted to confirm no visible asbestos remained. JBS&G also confirmed that remediation of the unexpected find at Area 4 Northwest had been completed. So too had the remediation works at the unexpected find at Area 5 Southwest.
On 12 March 2018, JBS&G gave an asbestos clearance in respect of two topsoil stockpiles and a western scrape area, following their relocation to the southern portion of the site.
On 16 March 2018, JBS&G provide a waste classification report in respect of an unexpected find, being ACM impacted soil in the footprint of Building 80. The find was uncovered during earthworks in the area. The estimated volume was some 250 m3. The asbestos fragments were bonded. Ten samples were collected and tested. The waste was classified as general solid waste (non-putrescible) with special (asbestos) waste. On 6 April 2018, JBS&G provided a waste classification report in respect of an unexpected find in the form of ash and slag material containing asbestos within the south-eastern portion of the Building 80 footprint. This comprised approximately 10 m3 and was classified as general solid waste (non-putrescible) with special (asbestos) waste. A further waste classification report was provided in respect of backfill materials excavated during the removal of redundant stormwater pipes from the former Building 80 site. Some 90 m3 of material was classified as general solid waste (non-putrescible) mixed with special waste (asbestos), where the material included concrete, building rubble and minor quantities of non-friable ACM.
On 21 March 2018, JBS&G provided a waste classification report in respect of asbestos impacted topsoils in the northern area of the site. JBS&G noted that asbestos was identified at multiple locations across the site during waste classification of the topsoil; asbestos was considered likely to be present in other areas outside the test location. Samples were taken in 33 locations. Asbestos was detected by the laboratory in five samples. Topsoils extended to approximately 10cm depth of a volume of some 7,720 m3. Approximately 60% of the soils were assessed as general solid waste (non-putrescible) with special (asbestos) waste, being up to 4,600 m3. The balance of the topsoil was classified as general solid waste (non-putrescible).
On 21 March 2018, JBS&G also provided a waste classification report in respect of an unexpected find at Central Access South, being approximately 75 m3 of ACM impacted soil. The find was uncovered "during the removal of "geotechnically unsuitable" material in the area." The material was classified as general solid waste with special (asbestos) waste.
On 9 April 2018, JBS&G confirmed that the remedial work in respect of the unexpected find at Central Access South had been completed, being the unexpected find of ACM within "geotechnically unsuitable" material disturbed during site excavation works. The excavation area was approximately 6 m x 20 m, extending to a depth of 1 m. ACM impacted soils and bituminous pipes within the excavation area were loaded out from the site and the remaining surface inspected.
On 19 April 2018, JBS&G provided a waste classification report in respect of an ash layer identified beneath the topsoil between Building 93 and a stormwater canal. The material comprised some 60 m3 and, after laboratory testing, was classified as general solid waste (non-putrescible). On 2 May 2018, JBS&G provided a clearance in respect of "Sediment Basin 1", being an area between Building 93 and a stormwater channel in the north-west portion of the Stage 2 site. Following the removal of loose topsoils, the exposed ground surfaces and excavations were inspected for asbestos but none was observed. JBS&G concluded that the area was safe for civil works.
On 20 April 2018, JBS&G provided a waste classification report in respect of some 70 m3 of leaf litter debris accumulated in the stormwater channel. After laboratory testing, the waste was classified as general solid waste.
On 30 April 2018, JBS&G provided a waste classification report in respect of material excavated around underwater stormwater pipework adjacent to Buildings 72, 73 and 75. The material comprised some 2,000 m3. Test pits were set up in 16 locations, at which visible ACM was identified at seven locations. Asbestos in the soil was detected by laboratory tests at three of these test pits. The attached photographs show stormwater pipes installed about a metre underground and backfilled. The excavated backfill material included ACM fragments. After 31 soil samples were taken and tested in the laboratory, the waste was classified as General Solid Waste (non-putrescible) with (Special Asbestos) Waste.
From 27 April to 3 May 2018, Liberty Industrial removed asbestos from Building 72 and its surrounds. An exclusion zone was established with asbestos warning signage. Grass covered topsoils were scrapped. Asbestos impacted backfill materials were excavated from underground stormwater infrastructure. On 4 May 2018, JBS&G provided a clearance for the area, as well as areas of topsoil removed south of the building. JBS&G considered that the area was safe for civil works to recommence, subject to ongoing implementation of the Asbestos Management Plan and Unexpected Finds Protocol.
From 30 April until 11 May 2018, Liberty Industrial removed asbestos from Building 75, both in the building footprint and removing topsoil surrounding the building. Grass covered topsoils were scrapped. Asbestos impacted backfill materials were excavated from redundant underwater stormwater infrastructure. On 16 May 2018, JBS&G provided a clearance for the building; the area was considered safe for civil works to recommence.
From 2 to 14 May 2018, Liberty Industrial undertook the removal of asbestos works for Building 82, including scrapping grass covered topsoils. On 22 May 2018, JBS&G provided a clearance for the area, comprising the building footprint, areas of topsoil removal surrounding the building and grassed topsoil areas to the east of the building awning structure. JBS&G concluded that the areas of known asbestos impact had been adequately removed. However, underground storage tanks remained and, after removal, validation of the tank pit would be required.
On 16 May 2018, JBS&G inspected Building 83, being the building's footprint and surrounding topsoil areas. No asbestos was identified at the location. All topsoil was removed from the building area for geotechnical purposes were classified and disposed of as General Solid Waste. Following the removal of loose topsoils, the exposed ground surfaces and excavations within the building footprint were inspected but no ACM or loose asbestos debris was observed. The area was considered safe for civil works. (JBS&G provided its report on 22 May 2018.)
On 21 May 2018, JBS&G provided a waste classification report for petroleum hydrocarbons located to the south-east of the former Building 80 site. The material was around a concrete pit and sediment deposited on the inside of concrete pipes removed from a stormwater trench. Some 30 m3 material was involved and classified as restricted solid waste. On 29 June 2018, JBS&G provided a clearance for Building 80 after the removal of the three underground storage tanks and associated pipework infrastructure, confirming that any potential contamination associated with the tanks had been appropriately removed. The excavations of the underground structures were observed and had no indications of residual contamination, including asbestos.
On 19 June 2018, JBS&G provided a waste classification for off-site disposal of topsoil in Stage 2 east precinct northern area. The material was described as "geotechnically unsuitable" topsoil adjacent to Buildings 41, 45, 46 and 48 to a depth of approximately 0.2 m below the ground surface. Some 650 m3 was classified as General Solid Waste (non-putrescible) with (Special Asbestos) Waste, where the soil contained visible asbestos fragments. An aerial photograph of the area noted that ACM was present in 41 locations. Topsoil samples were taken in 25 locations. Friable asbestos was detected by the laboratory in four locations.
On 10 July 2018, JBS&G provided a waste classification for approximately 2,000 m3 of topsoil from Stage 2 east precinct southern area. The area was described as "geotechnically unsuitable" topsoil material adjacent to Buildings 32 to 40, to a depth of approximately 0.02 m below the ground surface. ACM fragments were observed in the soil. A total of 11 samples were collected. The waste classification was special (asbestos) waste with general solid waste (non-putrescible).
On 12 July 2018, JBS&G provided a waste classification report for some 100 m3 of topsoil and some 50 m3 of bedding sand located in an excavation area in Stage 1. ACM fragments were observed and confirmed by laboratory tests. The waste was classified special (asbestos) waste with general solid waste.
On 25 July 2018, JBS&G assessed 92.5 m3 of topsoil scrapped within the south-eastern corner of Building 48 as unsuitable for site reuse, given the presence of fibrous asbestos.
On 26 July 2018, JBS&G assessed 42 m3 of bonded asbestos impacted soils, sourced from topsoil scraping near OSD 9 as unsuitable for site re-use. These soils required treatment for bonded asbestos prior to re-use and it was recommended that geotechnical suitability testing be conducted before further consideration of asbestos treatment to determine potential for site re-use.
On 27 July 2018, JBS&G provided a waste classification report in respect of ACM (being bonded asbestos sheeting) attached to a concrete pit, being an unexpected find. Some 2 m3 of material was classified as special (asbestos) waste with general solid waste. A further waste classification report was provided in respect of some 91 m3 in stockpile OSD9 SP1, being soil from topsoil scraping of the northern end of the western side of OSD9. The material was classified as suitable for site reuse. A further 90 m3 of soil sourced from topsoil scraping near Building 46, to a depth of 0.05m below the ground surface, was also classified as suitable for site reuse.
On 27 July 2018, JBS&G also classified a further 55 m3 of asbestos impacted soils sourced from topsoil scraping near Building 48 to a depth of approximately 0.05 m below the ground surface as unsuitable for re-use, together with 55.5 m3 of asbestos impacted soils sourced from topsoil scraping near Building 48, 90.5 m3 of asbestos impacted soil sourced from topsoil scraping near Building 48, 18m3 from topsoil scraping near Building 44, 28.5 m3 from topsoil scraping at Building 45 and further 76 m3 from topsoil scraping near Building 45.
On 31 July 2018, JBS&G classified some 198 m3 of topsoil scraping within the southwest portion of Building 35 as unsuitable for site re-use. The soil required treatment for non-friable asbestos by hand picking prior to re-use but it was recommended that geotechnical suitability testing be conducted before considering further asbestos treatment. Some 110 m3 from topsoil scraping near Building 35 was considered unsuitable for site re-use and required off-site disposal due to fine ACM fragments. Some 90.5 m3 of topsoil scraping near Building 35 was considered unsuitable for site re-use, given the weathered, small ACM fragments.
On 1 August 2018, JBS&G classified 55 m3 of soil from topsoil scraping within the northern corner of Building 34 as suitable for site reuse. On 2 August 2018, JBS&G classified 63.5 m3 of topsoil scraping to the northwest of Building 34 as suitable for site re-use. A further 27 m3 from the same area was also classified as suitable for site reuse. A further 86.5 m3 of topsoil scraping near Building 33 was considered unsuitable for site re-use given the small size of ACM fragments.
On 3 August 2018, JBS&G assessed some 445 m3 of topsoil scraping near Building 33 as unsuitable for site re-use given the weathered, small ACM fragments. A further 171.5 m3 of topsoil scraping between Building 33 and Building 34 was considered unsuitable for site re-use given the weathered, small ACM fragments. A further 80 m3 from near Building 34 were considered unsuitable for site re-use for the same reasons. So too was an additional 15 m3 from topsoil scraping south of Building 34.
On 8 August 2018, JBS&G provided a waste classification for up to 1,100 m3 topsoil material south of Buildings 33, 34 and 35 to a depth of approximately 0.05 m below the ground surface. Visible asbestos fragments were in the soil. The topsoil was classified as Special (asbestos) Waste with general solid waste (non-putrescible). Four ACM fragments were recorded on an aerial photograph. Six further ACM fragments were recorded, which were unsuitable for treatment by emu picking.
On 9 August 2018, JBS&G provided a waste classification in respect of some 97 m3 of asbestos impacted soils sourced from secondary scraping between Buildings 33 and 34 to a depth of 0.05 m to 0.1 m below the ground surface. As the asbestos fibre cement fragments were in a weathered/degraded condition, the material was unsuitable for on-site treatment via emu-picking and was classified as special (asbestos) waste.
On 10 August 2018, JBS&G classified 26 m3 of asbestos impacted soils sourced from topsoil scraping near Building 44, to a depth of 0.05 m below the ground surface, as unsuitable for site reuse. A further 86 m3 of soil sourced from topsoil scraping within the northeast of Building 34, to a depth of 0.05 m below the ground surface, was considered suitable for site re-use. A further 60 m3 of topsoil scraping near Building 39 was considered unsuitable for site re-use given the small, weathered ACM fragments.
On 13 August 2018, JBS&G classified 63 m3 of soil sourced from topsoil scraping near Building 46, to a depth of 0.05 m below the ground surface, as suitable for site re-use. A further 353 m3 of topsoil scraping within the western portion of Building 33 was also classified as suitable for site re-use, as was a further 38 m3 from topsoils scraping within the southern portion of the same building and another 17.5 m3 from the same location. A further 22 m3 from topsoil scraping near Building 39, to a depth of 0.05 below the ground surface, were classified as unsuitable for site re-use. Some 28.5 m3 of soils sourced from an ACM telecommunication pit excavation were also considered unsuitable for site re-use, but could be re-used following satisfactory treatment by emu-picking.
On 14 August 2018, JBS&G classified some 62 m3 of material from the "geotechnically unsuitable" stockpile, which had been processed by emu-picking, as suitable for site re-use. Further letters were issued in respect of other parts of the "geotechnically unsuitable" stockpile, classifying 43 m3, 51 m3, 46 m3, and another 33 m3.
On 15 August 2018, JBS&G classified a further 41 m3 of soil from the "geotechnically unsuitable" stockpile as suitable for reuse processing by emu-picking. A further 25 m3 was also so classified. A further 592 m3 of soils from secondary scraping on the western side of Building 33 and between Building 33 and 34 from a depth of 0.05 m to 0.1 m below the ground surface was also classified as special (asbestos) waste. Given the weathered/degraded condition of ACM fragments, it was unsuitable for onside treatment via emu-picking.
On 15 August 2018, JBS&G also classified some 227 m3 from a stockpile sourced from topsoil scraping within the northern portion of OSD 9, which appears to have been related to Building 34, as suitable for site re-use. A further 79 m3 from topsoil scraping near Building 39 was considered unsuitable for site re-use and required treatment by hand picking. It was recommended that geotechnical suitability testing be conducted before further consideration of asbestos treatment. The same recommendation was made in respect of a further 126 m3 from topsoil scrapings near Building 39, that is, the material was presently unsuitable for site re-use but could be suitable with treatment subject to geotechnical suitability testing.
On 20 August 2018, ADE Consulting gave an asbestos materials clearance inspection report in respect of Building 47, following removal of asbestos containing bituminous membrane within the roof felt materials. ADE recommending the removal of all hazardous materials prior to demolition works within the area. No ACM or appreciable dust was identified following visual examination of the concrete slab roof surface. No asbestos was detected in any samples collected.
Also on 20 August 2018, JBS&G gave a waste classification report in respect of approximately 27 m3 in stockpile SP078, being a "geotechnically unsuitable" stockpile. The material was classified as special (asbestos) waste, as the asbestos fibre fragments were in a weathered or degraded condition and unsuitable for on-site treatment via emu-picking. A further 37 m3 was classified as suitable for site re-use. A further 179.5 m3 was also so classified. This material was sourced from topsoil scraping within the western and eastern portion of Building 45, to a depth of approximately 0.05 m below the ground surface. An additional 147 m3 was also classified as suitable for re-use, the material having come from topsoil scraping alongside Building 40 to a depth of 0.05 m below ground level.
On 21 August 2018, JBS&G classified 34 m3 from the "geotechnically unsuitable" stockpile as suitable for site reuse. A further 22 m3 was also so classified. A further 48 m3 sourced from topsoil scraping alongside Building 44 to a depth of 0.05 m below the ground surface was also classified as suitable for site reuse. A further 185.5 m3 of topsoil scrapings from alongside Building 45 were considered unsuitable for site re-use. A further 17.5 m3 of topsoil scraping within the western portion of Building 37 was considered suitable for site reuse.
On 21 August 2018, JBS&G provided a waste classification report for asbestos impacted soils sourced from a secondary scraping within 7 m of Building 48, from a depth of approximately 0.05m to some 0.1 m below the ground surface. Some 216 m3 temporarily placed in stockpiles SP053 to SP058 was classified as special (asbestos) waste with general solid waste, as a significant number of asbestos fibre cement fragments was in a weathered or degraded condition and less than 7 mm and unsuitable for on-site treatment via emu-picking, and was classified as special (asbestos) waste. JBS&G also provided a waste classification report in respect of asbestos impacted soils sourced from a secondary scraping near Building 46, from a depth of 0.05 m to 0.1 m below the ground surface. Some 92 m3 had been placed in stockpiles SP045 and SP046 and was classified as special (asbestos) waste given the significant number of asbestos fibre cement fragments in a weathered or degraded condition, unsuitable for on-site treatment via emu-picking.
On 22 August 2018, JBS&G classified 83.5 m3 from topsoil scraping near Building 35 as unsuitable for re-use, requiring treatment by hand picking subject to geotechnical suitability testing.
On 23 August 2018, JBS&G classified 81 m3 of topsoil scrapings near Building 39 as unsuitable for site reuse. A further 92 m3 of soil from secondary scraping from the southern face of Building 46 was also considered unsuitable for site reuse. This material was classified as special (asbestos) waste. JBS&G also classified approximately 44 m3 of topsoil scrapings from Building 35 as suitable for site re-use. Some 352 m3 from top scraping near Building 32, over-excavated to 0.1 m below the ground surface, was considered unsuitable for site re-use. Due to over-excavation of the soils, the stockpile contained a greater volume of soils, including underlying clean soils. To address the co-placement of asbestos impacted and clean soils, it was proposed to treat the soils via emu-picking. A further 16.5 m3 of topsoil scraping from near Building 35 was considered unsuitable for site re-use given the presence of fine asbestos exceeding the site assessment criteria.
On 29 August 2018, JBS&G classified some 205 m3 of topsoil scraping alongside Building 32 as suitable for site re-use.
On 30 August 2018, JBS&G identified stockpiles as suitable for site re-use. The soils were sourced from topsoil scraping within the eastern precinct, to a depth of approximately 0.05 m below the ground surface. The stockpiles comprised some 1,267 m3. While ACM had been identified within topsoils across the site, a visual inspection and asbestos quantification sampling did not identify ACM within these stockpiles. Laboratory analysis was below the site assessment criteria of 0.001% w/w. These stockpiles were considered suitable for re-use. A further 42.5 m3 of soil from topsoil scrapings within the northern portion of Building 44 were considered unsuitable for site reuse.
On 3 September 2018, JBS&G classified some 133 m3 of topsoil scraping near Building 35 as unsuitable for site re-use given the significant amount of weathered ACM fragments of small size.
On 5 September 2018, JBS&G provided a waste classification report in respect of asbestos impacted soil sourced from ACM formwork in a concrete stormwater pit, found during the excavation of the stormwater line at Building 46. Some 10 m3 was classified as special (asbestos) waste, as the fragments were in a weathered/degraded condition, unsuitable for on-site treatment via emu-picking. A further 75 m3 of asbestos impacted soils from topsoil scraping to the south of Building 45 were considered unsuitable for site reuse.
On 6 September 2018, JBS&G provided a waste classification report in respect of asbestos impacted soils identified underneath the concrete slabs of two building annexes, during the demolition of Building 46. The material totalled some 52m3 and was classified as special (asbestos) waste given the weathered and degraded condition of the fragments, unsuitable for on-site treatment via emu-picking. JBS&G also classified some 3.6 m3 of asbestos impacted soils sourced from ACM formwork in a concrete stormwater pit found during stormwater line excavation adjacent to Building 44. The material was classified as special (asbestos) waste given the weathered/degraded condition of the fragments, which were unsuitable for on-site treatment via emu-picking.
On 13 September 2018, JBS&G classified some 260 m3 of asbestos impacted soil in a stockpile, generated from the screening process. The material was classified as special (asbestos) waste.
On 14 September 2018, JBS&G classified some 30 m3 of asbestos impacted soil from a stockpile, generated from the screening process. The material was classified as special (asbestos) waste, as fibrous asbestos was detected in the soil, which was thus unsuitable for on-site treatment by emu-picking. A further 180 m3 of soil from another stockpile was also classified in the same manner.
On 13 September 2018, JBS&G classified some 120 m3 of asbestos impacted soil from a stockpile, generated from the screening process. The material contained fibrous asbestos, unsuitable for on-site treatment via emu-picking, and was classified as special (asbestos) waste. A further 8 m3 from another stockpile was similarly classified.
On 17 September 2018, JBS&G provided a waste classification report in respect of a stockpile of some 8 m3, being asbestos impacted soil sourced from crushed clay granules. The material came from Demolition Zone 7 in respect of Building 13. The material was classified as special (asbestos) waste as fibrous asbestos was detected in the soils and was thus unsuitable for on-site treatment via emu-picking. A further 6 m3 of asbestos impacted soils sourced from unexpected finds, being south of Building 33 to a depth of 0.7 m and south of Building 34 to a depth of 1 m, were classified as special (asbestos) waste given the weathered/degraded condition of ACM fragments. A further 330 m3 were similarly classified from another stockpile generated from the screening process. A further 292 m3 was also so classified.
On 18 September 2018, JBS&G classified 148 m3 of topsoil scrapings alongside Building 40 to a depth of 0.05m below the ground surface as suitable for site re-use. A further 77 m3 of topsoil scraping south of the Resource Co carpark were also classified as suitable for site re-use.
On 24 September 2018, JBS&G classified 180 m3 of material in the "geotechnically unsuitable" stockpile as unsuitable for site reuse, where bituminous ACM fragments were noted throughout. The waste was classified as special (asbestos) waste.
On 28 September 2018, JBS&G classified some 70 m3 of stockpile generated from the on-site screening process as special (asbestos) waste given the detection of fibrous asbestos in the soils. This material appears to have been taken from a stockpile of some 700 m3, which was divided into ten volumes of 70 m3 for assessment purposes.
On 2 October 2018, JBS&G classified some 480 m3 from the "geotechnically unsuitable" stockpile as suitable for site re-use, after emu-picking ACM fragments and laboratory testing of samples.
On 3 October 2018, JBS&G classified 7.5 m3 of asbestos impacted soil generated from scraping asbestos impacted topsoil southeast of Building 39. The material was in a weathered condition and unsuitable for on-site treatment via emu-picking. A further 345 m3 from the "geotechnically unsuitable" stockpile were classified as suitable for re-use after laboratory analysis of samples. Mr Molinari said that, if, having scraped this soil, no further asbestos was observed then the area would have been considered to have been remediated.
On 8 October 2018, JBS&G classified some 70 m3 of stockpile, generated from the on-site screening process, as special (asbestos) waste given the detection of fibrous asbestos in the soils. A further 279 m3 from screened material in the "unsuitable" stockpile was classified as suitable for site re-use following visual inspection and testing. A further 342 m3 appears to have been classified as unsuitable for site re-use (although it is not entirely clear).
On 9 October 2018, JBS&G provided a waste classification in respect of 22.5 m3 of asbestos impacted soil generated from stormwater backfill south of Building 35 and a surface scrape of 0.1 m deep southwest of Building 33. The material was classified as special (asbestos) waste given the degraded condition of the ACM fragments, making it unsuitable for on-site treatment by emu-picking.
On 11 October 2018, JBS&G classified 165 m3 of asphalt road and carpark pavements, being the tenanted carpark area, to be excavated and removed as suitable for site re-use.
On 15 October 2018, JBS&G classified some 200 m3 (based on JBS&G field notes, albeit reported in Liberty's materials tracking sheet as some 372.9 m3) as suitable for site re-use. The material came from the screened "unsuitable" stockpile. A further 415 m3 (based on JBS&G field notes, compared to Liberty's materials tracking sheet of 677.7 m3) was also classified as suitable for site re-use. So too was 250 m3 (based on JBS&G field notes).
On 22 October 2018, JBS&G classified 12 m3 of soil sources from near Building 48 as suitable for site re-use. A further 80 m3 of topsoil scraping near Building 33 was also considered suitable for site re-use. A further 525 m3 from the "geotechnically unsuitable" stockpile was also considered suitable for site re-use after emu-picking ACM fragments and laboratory testing of samples. A further 679 m3 from the same stockpile was also so classified.
On 23 October 2018, JBS&G classified 18 m3 of soil sourced from a stormwater pit excavation north of Building 44 as suitable for site re-use. A further 200 m3 from the "geotechnically unsuitable" stockpile was classified as suitable for site re-use, as was an additional 90 m3, 270 m3 and 43 m3.
On 25 October 2018, JBS&G classified some 236 m3 of black asphalt roadways removed from the area south of Buildings 33, 34 and 35 as suitable for site re-use.
On 29 October 2018, some 108 m3 of topsoil scraping, apparently near Building 34, was considered unsuitable for site re-use. Re-treatment to remove visible ACM fragments by hand-picking was required, due to significant quantities of visible ACM present on the surface of the stockpile. Some 81 m3 of soil re-treated by hand-picking was classified as suitable for site re-use; the soil was in a stockpile in Demolition Zone 10.
On 30 October 2018, JBS&G classified some 130 m3 (based on JBS&G field notes, as compared to Liberty's materials tracking sheet which recorded 163.10 m3) as suitable for site re-use. The material came from a screened "unsuitable" stockpile. Given the large size of the fragments, the material could not be emu-picked. The stockpile was divided into portions. A representative volume was selected and "de-clumped" to create individual pads, which were visually inspected and tested. A further 272 m3, (based on JBS&G field notes, as opposed to Liberty's tracking sheet of 369.7 m3) was also so classified.
On 2 November 2018, JBS&G provided an asbestos clearance for part of Demolition Zone 7 in Stage 2, which comprised Buildings 7, 46, 47 and 48 footprints and areas of topsoil removed around these buildings, together with areas of topsoil removed east of Buildings 52, 53 and 54. Asbestos had been removed from this area from March to September 2018 by scraping grass covered topsoils and removing redundant underground stormwater infrastructure. During the removal of stormwater infrastructure backfill, materials were assessed for the presence of visible ACM and emu picked where required. Concrete stormwater pits with attached ACM formwork sheeting were removed during the excavation of stormwater infrastructure, being Unexpected Finds 07, 08 and 09. ACM hotspots were identified during the removal of concrete ground slabs for Building 46, including Unexpected Finds 05 and 06. Due to the presence of weathered or degraded ACM and ACM fragments, these soils were disposed of off-site with the ACM impacted concrete formwork. JBS&G concluded that the area was considered safe for civil works. JBS&G also provided an asbestos clearance for part of Demolition Zone 9, comprising the footprints for Buildings 39 and 40, topsoil removal around these buildings and associated stormwater and unexpected finds removal.
On 5 November 2018, JBS&G provided a waste classification report for a stockpile of some 52.5 m3 containing vegetation and sediments excavated from a concrete swale near Building 33. Asbestos in the form of bonded sheet fragments was observed on the surface of the stockpile, which was classified as special (asbestos) waste.
On 7 November 2018, JBS&G classified some 55 m3 of soil from stockpiles generated from the on-site screening process as special (asbestos) waste given the fibrous asbestos detected in the soil. This appears to have been taken from a stockpile of 160 m3 stockpiled in Demolition Zone 10 and divided into three volumes of 55 m3 for assessment purposes. A further 110 m3 from the "geotechnically unsuitable" stockpile was classified as suitable for site re-use.
On 8 November 2018, JBS&G classified some 288 m3 (based on JBS&G field notes) from a screened "unsuitable" stockpile as suitable for site re-use.
On 12 November 2018, JBS&G classified some 140 m3 of the "geotechnically unsuitable" stockpile as special (asbestos) waste given the presence of fibrous asbestos.
On 14 November 2018, JBS&G provided a waste classification report for a stockpile of some 264 m3 of asbestos impacted backfill excavated from the Building 13 northern garden beds, uncovered during the removal of the brick footings on the northern end of the building footprint. Non-friable ACM and asbestos fines were observed on the surface of the stockpile, which was classified as special (asbestos) waste. A further 307 m3 was also so classified, being consolidated soil sourced from topsoil scraping within Demolition Zones 7, 8, 9 and 10 to a depth of 0.05 m below the ground surface. Asbestos in the form of bonded sheet fragments was observed on the surface of the stockpile. The results of samples indicated the presence of a contaminant over permitted levels.
On 16 November 2018, JBS&G provided an asbestos clearance for part of Demolition Zone 7, being Building 13, topsoil removal north of the building and the "geotechnically unsuitable" stockpile footprint which had been to the west of the building.
On 19 November 2018, JBS&G classified 97 m3 from topsoil scraping alongside Building 40 to a depth of 0.05 m as suitable for site reuse.
On 20 November 2018, JBS&G provided a waste classification report in respect of some 24 m3 of soil from topsoil scraping near Building 37, to a depth of 0.05 m below the ground surface. The material was classified as special (asbestos) waste as asbestos fines were detected, unsuitable for on-site treatment via emu-picking. A further 288 m3 from a stockpile generated from the screening process, designated as "geotechnically unsuitable", was also designated as special (asbestos) waste. ACM had been widely identified in the stockpile. Due to the large clay clumps present in this stockpile, not all soils could be visually assessed and, as a conservative measure, asbestos in the form of non-friable ACM was assumed to be within the stockpile. A further 346 m3 was also classified in the same manner for the same reasons. A further 428 m3 from the "geotechnically unsuitable" stockpile and geotechnically unsuitable topsoil materials were classified as suitable for site re-use. Some 13 m3 of topsoil scraping near Building 37 was unsuitable for site re-use and required re-treatment to remove ACM by hand-picking.
On 21 November 2018, JBS&G classified some 64 m3 of asbestos impacted soil generated from a surface scrape to 0.1 m deep adjacent to Building 39 as special (asbestos) waste. Fibrous and weathered asbestos was observed.
On 22 November 2018, JBS&G provided a waste classification report in respect of some 70m3 of soil generated from the screening process and designated as "geotechnically unsuitable". The soil came from near Building 34. Due to large clay clumps present in the stockpile, not all soils could be visually assessed and, as a conservative measure, asbestos in the form of non-friable ACM was assumed to be within a stockpile, which was classified as special (asbestos) waste. A further 3,860 m3 from the "geotechnically unsuitable" stockpile was considered suitable for site re-use. Some 26 ACM fragments were observed over a surface area of approximately 3,000 m2. All visible ACM was picked. Asbestos samples did not detect asbestos fines above site criteria.
On 23 November 2018, some 324 m3 from the "geotechnically unsuitable" stockpile was classified by JBS&G as suitable for site re-use, as was a further 528 m3 and 181 m3.
On 29 November 2018, JBS&G classified 24 m3 of material sourced when excavating an unexpected find of concrete stormwater pits with ACM formwork near Building 39, to a depth of approximately 1m below the ground surface, as suitable for site re-use. A further 300 m3 from a topsoil scrape around the rail spur, and designated as geotechnically unsuitable, was also classified as special (asbestos) waste. Bonded asbestos sheet fragments were observed on the stockpile, which was poorly sorted and included sticks, grass, roots, blue metal and concrete with minor ACM. A further 1,142 m3 from the "geotechnically unsuitable" stockpile was classified as suitable for site re-use after emu-picking of ACM fragments and laboratory testing. So too was a further 704 m3, 536 m3, 681 m3 and 229 m3.
On 11 December 2018, JBS&G classified 32 m3 from a surface scrape of ACM fragments east of Building 33 to a depth of 0.1 m, and surface scrapes at validation sample locations to 0.1 m deep. The material was classified as special (asbestos) waste.
On 13 December 2018, JBS&G gave an asbestos clearance for part of Demolition Zone 9 comprising the footprint of Building 37, the topsoil removed from that building and Building 39, as well as stormwater and unexpected finds removal. Some 24 m3 of soil sourced from excavation of the unexpected find to a depth of approximately 1 m below the ground surface, being concrete stormwater pits with ACM formwork encountered during the removal of stormwater pipes, was considered for site re-use.
On 19 December 2018, JBS&G provided an asbestos clearance of the eastern half of the Building 16 footprint, concluding that the area was safe for civil works to recommence, following the work undertaken by Liberty Industrial in October and November 2018. A "geotechnically unsuitable" stockpile had been created, inspected and assessed. Various ACM impacted stockpiles were loaded-out. Bituminous insulated pipes on the western side of the building had been cleaned up, removed and disposed of. These metal pipes were found stockpiled with building waste on the western portion of the building slab. An underground tank storage room, which had contained underground storage tanks that had been removed at an earlier time, was also removed from the north-eastern portion of the building footprint.
On 20 December 2018, JBS&G gave an asbestos clearance for part of Demolition Zone 10, which comprised Buildings 31 to 35. The consultant noted that Liberty Industrial had undertaken the removal works from July to December 2018, scraping grass-covered topsoils, excavating asbestos impacted backfill materials from redundant underground services including stormwater infrastructure, removing ACM hotspots, removing ACM underground services including telecommunications pits, stormwater concrete pit ACM formwork and bituminous ACM insulated metal pipes, treating "geotechnically unsuitable" and ACM impacted soil by mechanical screening and emu-picking. Various unexpected finds were identified during these excavation works. During the removal of stormwater infrastructure backfill, materials were assessed for the presence of visible ACM and emu-picked when required. Following treatment by screening and emu-picking of "geotechnically unsuitable" stockpiles of ACM impacted soil stockpiles, processed materials were assessed by JBS&G for the presence of visible ACM. Laboratory sampling was also conducted to determine the presence of asbestos fines in processed material. When required, additional re-processing of bonded ACM impacted materials was carried out by emu-picking and then reassessed by JBS&G. Off-site disposal for "geotechnically unsuitable" material or material impacted with asbestos fines above the site criteria was undertaken when required. JBS&G concluded that the area was safe for civil works.
On 31 December 2018, JBS&G classified 644 m3 of soils from the "geotechnically unsuitable" stockpile as suitable for site re-use after emu-picking of ACM fragments and laboratory testing of samples. A further 705 m3 was also so classified.
On 24 January 2019, JBS&G provided an asbestos clearance for Demolition Zone 8, comprising the footprints of Buildings 42 to 45, areas of topsoil removal surrounding these buildings and a concrete roadway south of Buildings 44 and 45. The consultant noted that three unexpected finds of stormwater line, comprising ACM formwork sheeting on the outside of a concrete stormwater pit, had been appropriately removed.
On 25 January 2019, JBS&G classified 548 m3, 495 m3 and 840 m3 of soil from the "geotechnically unsuitable" stockpile as suitable for site re-use.
On 30 January 2019, JBS&G classified some 205 m3 from the "geotechnically unsuitable" stockpile as suitable for site re-use. Original assessment of the stockpile found asbestos fines above the site criteria in the southern portion of the stockpile, which was disposed off-site. The remaining surfaces of the stockpile identified no visible ACM and samples were tested in the laboratory. A further 640 m3, 660 m3, 158 m3, 243 m3, 357 m3 and 856 m3 from the same stockpile was also classified as suitable for site re-use.
On 31 January 2019, some 273 m3, 470 m3, 423 m3, 552 m3, 475 m3, 554 m3 and 682 m3 from the "geotechnically unsuitable" stockpile was classified by JBS&G as suitable for site re-use.
On 1 February 2019, JBS&G classified some 5 m3 of soil sourced from a stormwater pit excavation near Building 35 as suitable for site re-use. A further 10 m3 sourced from a stormwater pit excavation near Building 35 was also considered suitable for site re-use. The ACM was treated by emu-picking. Associated ACM containing pits were separated for off-site disposal. Following ACM treatment, visual inspection and asbestos quantification sampling did not identify ACM within the excavated soil. Some 400 m3 from topsoil scraping within the southern burial area, to a depth of 0.05 m below the ground surface, was also classified as suitable for re-use.
Also on 1 February 2019, JBS&G classified some 672 m3, 572 m3, 672 m3, 677 m3 and 429 m3 from the "geotechnically unsuitable" stockpile as suitable for site re-use after removal of ACM fragments by emu-picking and laboratory testing of samples.
On 18 February 2019, JBS&G classified some 565 m3, 483 m3, 1,012 m3, 696 m3 and 978 m3 of soil from the "geotechnically unsuitable" stockpile as suitable for site re-use.
On 19 February 2019, JBS&G assessed 580 m3 from a topsoil stockpile, sourced from Stage 1, as suitable for site reuse, albeit minor ACM was observed on the surface of the stockpile and thus it was possible that fragments would be encountered when the material was reused. A further 1,585 m3 of topsoil sourced from Stage 1 was also so classified. A further 300 m3 from the "geotechnically unsuitable" stockpile was considered unsuitable for site re-use. Re-treatment to remove ACM fragments by hand-picking was required, given the significant quantities of visible ACM present on the surface of the stockpile. A further 252 m3 from the "geotechnically unsuitable" processed stockpile, with soils re-treated by hand picking, was classified as suitable for site re-use.
On 22 February 2019, JBS&G gave an asbestos clearance for part of the access road to Warehouse 5, following the removal of a concrete roadway.
On 1 March 2019, JBS&G classified some 30 m3 of a stockpile of material generated from Stage 2 lead excavation as special (asbestos) waste given the detection of asbestos fines during laboratory assessment.
On 4 March 2019, JBS&G provided an asbestos clearance for the area referred to as the Resource Co carpark following the removal of the concrete pavement by Liberty Industrial. No visible ACM was observed during the removal of the concrete pavement or on the surface of the soil following removal. The area was safe for civil works to recommence.
On 12 March 2019, JBS&G classified 204 m3 of topsoil sourced from a secondary scrape east of Building 45 as suitable for site re-use, albeit noting that it was possible that ACM fragments would be encountered when the material was reused.
On 13 March 2019, JBS&G gave an asbestos clearance for a further portion of the access road to Warehouse 5 following the removal of the concrete roadway.
On 18 April 2019, JBS&G provided a waste classification in topsoil and vegetation scraping in the former ecological endangered communities area within Demolition Zone 10, south of Resource Co carpark. Some 200 m3 was classified as general solid waste. No ACM was observed.
On 23 April 2019, JBS&G classified some 84 m3 of excavated material in a stockpile, from a lead contamination hotspot east of the rail spur at the south of the site. The material was classified as special (asbestos) waste, where ACM fibres and fragments were observed during excavation of the hotspot.
On 24 April 2019, JBS&G classified a further 80 m3 of topsoil and vegetation scraping within the former ecological endangered communities area within Demolition Zone 10, as well as to the east of the adjacent rail spur, south of Resource Co carpark. The material was classified as special (asbestos) waste, where two ACM fibre cement fragments were observed on a stockpile.
On 29 April 2019, JBS&G provided an asbestos clearance for the former Endangered Ecological Communities and surrounding area, following the removal of trees and stripping of vegetation and topsoils. No visible ACM was observed on the surface of the soil. The area was considered safe for civil works to recommence. A further asbestos clearance was given to Buildings 17 and 18; no visible ACM was observed on the surface of the soil. The area was considered safe for civil works to recommence.
On 3 May 2019, JBS&G gave asbestos clearance for the rail spur in the southern portion of the Stage 2 site, following the removal of the rail spur infrastructure, vegetation and topsoils and the lead contamination hotspot excavation works as identified by GHD. During excavation of the lead contamination hotspot, ACM fragments were identified in the fill materials. The excavated soils were stockpiled and remove elsewhere. The area was considered safe for civil works to recommence.
On 20 June 2019, some 54 m3 of material generated from the lead excavation during benching of the excavation during backfill works, and topsoils and vegetation scraping south of the Fulton Hogan compound and west of the rail spur, was classified as general solid waste.
On 26 June 2019, JBS&G classified 205 m3 from topsoils and vegetation scraping within the southern rail spur area. Visual assessment and laboratory analysis indicated asbestos fibre cement fragments. The material was classified as special (asbestos) waste.
On 15 July 2019, JBS&G provided an asbestos clearance for the rail spur in the southern portion of the Stage 2 site, following the removal of the rail spur infrastructure including rails and ballast material. A vegetation scrap was also undertaken. No visible ACM was observed on the surface of the soil.
On 22 July 2019, JBS&G gave an asbestos clearance in respect of the compaction pad removal area north of Sediment Basin 10 and south of topsoil stockpiles 1 and 2, located in the southeast portion of the Stage 2 site. The inspections followed the removal of soil from the compaction pad area. Vegetation was removed. The area was considered safe for civil works to recommence.
On 5 August 2019, JBS&G assessed a stockpile of material generated from topsoils and vegetation scraping within the rail spur area. Some 205 m3 was assessed as suitable for site re-use.
On 6 August 2019, JBS&G gave an asbestos clearance following the topsoil stripping and removal of an asbestos impacted stockpile 3Z in the Environmental Protection Zone in the southeast portion of Stage 2. The topsoil was not observed to be impacted with asbestos impacted material. The area was safe for civil works to recommence.
On 23 August 2019, JBS&G confirmed that the final validation results following the excavation of lead impacted soils in historical test pit 'TP062', located adjacent to the rail spur in the southern portion of the site, complied with the Contamination Management Plan. This area had been identified by GHD in 2015 as a potential lead hotspot and management of the lead impacts had been addressed within the Contamination Management Plan and had been dealt with accordingly. All temporarily stockpiled material had been suitably classified for off-site disposal. The lead excavation area was considered suitable for continued commercial/industrial land use.
On 19 October 2019, a further unexpected find of fragments of ACM was encountered during excavation of a stormwater pipe trench. The unexpected find was managed in accordance with the Contamination Management Plan. The ACM fragments were removed. During that clearance inspection, a further two fragments were identified and removed.