Wallarah Minerals Pty Ltd v Mulwaree Shire Council

There has been no further decision of this Court subsequent to the finding in Pancho which changes the position from that which I considered when judgment was delivered in that matter.

Consistently with the judgment in Pancho I reiterate the view that cl 19(3)(a) contains a development standard and that, accordingly, the applicant is entitled to rely upon a SEPP 1 objection in support of this development application.

Whether the land has been used for mining and extractive industry

The respondent produced a copy of a document containing land contamination planning guidelines which states that the guidelines have been updated in line with the Contaminated Land Management Act 1997 and SEPP 55. Argument proceeded on the basis that these guidelines were the relevant guidelines for the purposes of cl 7(4)(b) of SEPP 55.

Table 1 to the guidelines lists some activities that may cause contamination, including mining and extractive industries.

The respondent's consultant town planner states that although little is known of the operations on the land prior to the applicant taking over the plant in about 1987, information on the council file indicates that the applicant operated a drying, crushing and screening plant. Processing of raw materials was mainly carried out for refractory plants in New South Wales and Victoria. Raw materials were usually supplied by the refractory companies. These materials were crushed and screened to the specifications of the companies. According to the understanding of the town planner, the raw materials used by the applicant were mainly calcined flint clays (Mulcoa), (Chamottes) and calcined bauxite, although other material may have been processed at the plant. Used refractory bricks were also crushed at the site.

For the purpose of the preliminary site assessment, Environmental Monitoring Services considered the use of the land as a rock crushing plant site as the activity with the highest potential for impacting on the underlying soils on the site. The assessment proceeded on the basis that prior to 1991 the site appeared to have been used for pastoral purposes.

A letter to the council from the applicant on 13 February 1990 confirmed that processing of raw materials was mainly carried out for refractory plants in Sydney, Wollongong and Melbourne, with the raw materials usually supplied by the refractory companies when they were crushed and sized to the specification of the customer. The material was returned to the customer either in bulk bags or paper bags. The daily production was stated to be around 20 tonnes.

In his report to council on 25 March 1999, the Director of Environmental Services stated that the lot provided for the industrial activity of screening mined material. Recognising that rehabilitation of the site had not heretofore taken place the Director said "the operation goes back a fair time when controls were not considered as they are today. It was not a quarry and it would not have been anticipated that the problem would have arisen".

In a letter to the company on 13 December 1994, the EPA refers to the crushing and screening of refractory material for BHP.

The following approvals have been issued by the council in respect of the site:- March 1990 Rotary raw material driver

June 1992 Enclosure for the present crushing and screening structure

The application for subdivision of Lot 1 DP 113652, when the subject Lot 2 was created, refers to the use of the excised lot for a specific industrial purpose and nominated it as the site of Wallarah Minerals crushing plant.

The applicant's consultant town planner stated in his report that the land has not, to the knowledge of the applicant, been used for the purpose of mining or an extractive industry. Further, he says, no metal or mineral has ever been obtained by any means from the subject land. In his opinion, the use of the land for crushing and drying of refractory raw material bears no relationship to the use of land as a mine, and this activity does not constitute mining.

The company wrote to the EPA on 22 January 1997 referring to proposed contracts for drying sand and filling plastic containers with dried sand, crushing and sizing to 25 mm about 500 tonnes of refractory bricks from thermal ceramics entailing the use of a jaw crusher, and the crushing and sizing to 50 mm plus 20 mm and minus 20 mm of approximately 500 tonnes of refractory from BHP refractories which may involve hand spalling of some large shapes.

A letter from BHP to the company in May 1996 refers to the placing of orders for approximately 800 tonnes of Mulcoa and 30 tonnes of bauxite for crushing and delivery.

Records produced by the Department of Mineral Resources show that Mining Purposes Lease 180 ("MPL 180") was granted in respect of the land for a term commencing on 1 October 1980 for the purpose of the treatment of tailings. MPL 180 was transferred to the applicant company on 10 May 1991. It appears that Australian Industrial Refractories Pty Ltd, a company associated with BHP, was the holder of MPL 180 and at one time is believed to have used the site to treat material from local mining operations. The applicant company continued crushing operations by treating local and imported materials for the refractory industry. In 1996 the department noted that imported Mulcoa (Calcine Flint Clay) was being crushed for use in the Port Kembla Steelworks.

The subject application is supported by an objection made pursuant to SEPP 1 that refers to the previous use as a crushing and drying plant for refractory raw materials, mainly calcined flint clays (Chamottes) and calcined bauxite. Furthermore, it is stated that the crushing of fired refractory bricks has also been undertaken.

In the course of submissions the Court was referred to definitions of an extractive industry applied by the Model Provisions and Sch 3 to the Environmental Planning and Assessment Act 1979 ("the EP&A Act") dealing with designated development on the basis that they may provide some guidance although not directly applicable to the present case.

The applicant here draws a distinction between the process of crushing, grinding and separating minerals extracted from land upon which the plant operates and where, as in the present case, the raw material is brought onto the site for processing. There is no direct evidence of any mining taking place on the subject land although at one time the material processed is said to have been recovered from local mining operations. The Court is not able to find on the evidence presented to it that the operation at any time was that of a mine.

If the applicant had been able to establish that the sole source of material brought to the site for processing was used refractory bricks then it may have been arguable that the industry was not an extractive industry on the basis that the raw materials had not been recovered immediately from a mining or quarrying operation in the sense of being extracted from the land. However, the source of the raw materials crushed on the site is not confined to used refractory bricks. There is also reference to bauxite being crushed on the site and the treatment of tailings.

The reference to industries in Table 1 to the guidelines must be read in conjunction with the descriptive words of "mining and extractive". Thus, any part of the process of handling, preparing, crushing, adapting or storing raw materials won by a mining or extractive process should be regarded as part of the overall industry which has the purpose of winning materials from the earth and treating them in preparation for sale.

The Court is satisfied therefore that the evidence supports the respondent's claim that the activities previously carried on upon the land were mining and extractive industries thereby bringing about the need for a report specifying the findings of a preliminary investigation of the land concerned in accordance with cl 7(2) of SEPP 55.

Whether the preliminary site assessment satisfies cl 7(2) of SEPP 55

The contamination planning guidelines state in s 3.5.2 as follows:- The preliminary investigation contains a detailed appraisal of the site's history and a report based on a visual site inspection and assessment. It is important that all relevant information about the site is assessed to determine the potential for site contamination.

It is no reflection upon Mr Ashdown, who prepared the preliminary site assessment, that he did not carry out a detailed appraisal of the site's history. He did the best that he could in the time that was made available to him following receipt of instructions from the applicant. As he was currently waiting for the production of historical information requested from the respondent he was forced to rely on land titles searches which of course gave no indication of land use or the nature of improvements. He stated that there is no indication of what previous owners may have used the site for, although during an inspection of the site it was noted the majority of the area was still uncleared of trees, thereby possibly indicating some sort of pastoral activity.

Three sub-surface soil samples were taken in areas around the site that appeared to have been used during the rock crushing processes. One water sample was taken from where Stoney Creek entered the property along the southern boundary. A second water sample was taken downstream to indicate any possible contamination from previous on-site activities. Stoney Creek was not flowing at the time of sampling. Water samples were taken from remnant ponds.

No elevated concentrations of metals (arsenic, cadmium, chromium, cobalt, copper, lead, mercury, nickel and zinc), TPH, BTEX (benzene, toluene, ethyl benzene and xylene), PAH's (polyaromatic hydrocarbons) and OC Pesticides were detected within the three soil samples collected. Elevated concentrations of copper and zinc were detected in both water samples. As there were no elevated concentrations of copper and zinc in the soil samples, Mr Ashdown concluded that the copper and zinc in the water has come from an off-site source.

Based on the above results Mr Ashdown concluded that it appears residual material from the rock crushing plant is still present on the site proposed for residential development. However, from the limited sampling it appears that the site has not been significantly affected by previous land uses. It is therefore his opinion that no further remedial action is required and the site is suitable for its proposed use.

Mr Ashdown conceded that he did not examine the guidelines prior to the preparation of his report. He did not think it was necessary to sample groundwater. Because he found rock underlying the soil he took only one depth sample. He did not consider the nature of the chemical composition of material crushed on the site as he did not have those details.

In re-examination Mr Ashdown said had he been told the earlier activities had taken place over 20 years instead of a 10 year period he would not have carried out further tests for minerals such as magnesium or magnesia. However, if he had known of a historical use of phenol on the site he would have tested for it.

Both copper and zinc concentration in the water sample taken were above the ANZECC 1992 Australian Water Quality Guidelines for Fresh and Marine Waters.

The contamination planning guidelines require that where contaminating activities are suspected to have had an impact on the land sampling and analysis will be required to confirm and support any conclusion reached from the site history appraisal.

The guidelines identify a number of issues for consideration including whether there are any big gaps in the history that might hide a use listed in table 1.

The planning guidelines conclude the section relating to preliminary investigation with the recommendation that if there is sufficient information to satisfy the planning authority that the site is suitable for the proposed use the planning process should proceed in the normal way. Otherwise a detailed investigation is required.

The findings of the preliminary site assessment are that a further investigation is not warranted. Nevertheless, the Court cannot be satisfied that a further detailed investigation is not required. The failure of the site assessment to have regard to a detailed history of the site beyond 1990 is a serious defect which drives the Court to the conclusion that it is not appropriate to allow the proposed development to proceed on the basis of that assessment.

Whether the land can be used for the purpose of a dwelling house

In his report to council the Director of Environmental Services saw the proposal as one which can be effective and efficient for the rehabilitation of the site. He thinks the circumstances are sufficient to warrant council's support.

On the other hand, the council's consultant town planner expresses an opinion that strict compliance with the development standard is both reasonable and necessary and is consistent with the objects of the EP&A Act. In the Court's opinion he correctly identifies the objectives of the standard contained in cl 19(3)(a) as being the control of the number of dwellings on rural land for a variety of reasons which he expressed as follows:- _ to prevent a sporadic and dispersed settlement pattern in rural areas in favour of consolidated urban and rural residential development, thus enhancing the economic provision of public utilities and community services; and

_ to protect the rural potential of non-urban land.

The opinion expressed by the Director of Environmental Services appears to have its genesis in the submission made by the applicant in support of the objection made pursuant to SEPP 1 that if the dwelling house was permitted the rehabilitated areas and the subsequent regrowth of seeded areas could be monitored by the residents of the proposed dwelling. That appears to be the basis for the objection lodged by the applicant.

In the Court's view because the land is already subdivided and is no longer required for an industrial purpose, the reuse of the land for residential purposes is unlikely to contribute to the sporadic settlement of rural areas for residential purposes. It is not suggested by any witness that the land can be used for any viable rural purpose. Furthermore, there is no evidence that there will be any unreasonable demand placed upon any public utility or community service as a consequence of the construction and occupation of the dwelling.

The Court accepts therefore that there are reasonable grounds for upholding a SEPP 1 objection in support of the development application to use the subject land for the purpose of a dwelling house notwithstanding that it does not comply with the minimum area standard.

The respondent also relies on the provisions of condition 1 of the approval for subdivision granted by council on 25 June 1990.

Clause 22(8)(a) of Mulwaree Planning Scheme (Amendment No. 1) Ordinance permitted the consent authority to grant consent in respect of an application to subdivide land so as to create an allotment of less than 40 hectares if the authority was satisfied that the allotment was intended to be used for a purpose other than agriculture or a dwelling house, that the ratio of depth to frontage was satisfactory and that the allotment had a frontage of at least 200 metres to a main road or an arterial road.

Condition 1 of the 1990 consent is no more than a restatement of the constraint imposed by the ordinance itself. The ordinance no longer applies to the land. The planning circumstances have changed. There is no evidence that the condition was imposed for any planning purpose independent of the provision in the planning scheme. The present application should be considered having regard to the proposed use and LEP 1995. The earlier condition is to be considered in its context which is now no longer relevant. Thus, there is no bar arising from the condition imposed by council in 1990.

Although the majority of the issues have been resolved in favour of the applicant, nevertheless, it is not open to the Court to grant a development consent whilever the requirements of SEPP 55 are extant and the potential for contamination investigated in a way which is appropriate for a preliminary investigation of the land carried out in accordance with the Contaminated Land Planning Guidelines. It is not necessary to take the issue of whether the development is designated development or integrated development further until the remedial measures, if any, are finally determined. The submission by the respondent is dependant on establishing that the development constitutes contaminated soil treatment works.

The application for development consent must therefore be determined by refusal of consent.

The formal orders of the Court are:- 1. Appeal dismissed. 2. Development Application for the erection of a dwelling house on Lot 2 DP 806625 Jerrara Road Marulan is determined by refusal of consent. 3. The exhibits may be returned.

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