COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 55744/2018 for a warehouse and distribution centre (the proposal) at 40 Gindurra Road Somersby (the site) by Central Coast Council (the Council).
The appeal was subject to conciliation on 3 July 2019, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated pursuant to s 34(4) of the LEC Act.
[2]
Issues
The Council's contentions that the application should be refused are summarised as:
The application is a sham: the application should be refused because the real use of the site to which consent is being sought, is the filling and stockpiling of material, not a "warehouse and distribution centre".
Owners consent: The proposal requires vehicular access via the right of carriageway between the site and Lot 1001 DP 1138136 (No. 44 Gindurra Road, Somersby). The proposed development will necessitate the removal of fill and structures in Lot 1001 DP 1138136 (No. 44 Gindurra Road, Somersby). Land owner's consent must be obtained from No. 44 Gindurra Road, Somersby so as to enable the development to proceed.
Designated development: a waste or resource transfer station, with a yearly volume of 90,000 tonnes is Designated Development having regard for the provisions of Schedule 3, Clause 32 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). The application is not accompanied by an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by Schedule 2 of the EPA Reg as required by s 4.12(8) of the EPA Act.
Integrated development: there are two watercourses, tributaries of Piles Creek, adjacent to the western and southern boundaries of the site less than 40 metres of the development. In accordance with s 4.46 of the EPA Act, the proposed activity is considered to invoke s 91E (1) of the Water Management Act 2000, wherein the proposal is deemed to be integrated development and General Terms of Approval must be obtained from Department of Industry - Crown Lands & Water Division. Schedule 1 of the Protection of the Environment Operations Act 1997 lists scheduled activities for which an environment protection licence is required. Clause 34 of Schedule 1 defines resource recovery activities. The proposed waste or resource transfer station, with a yearly volume of 90,000 tonnes, falls within these parameters, requiring an environment protection licence.
Assumed concurrence: Council cannot assume the concurrence of the Minister of the Department for Planning and Public Spaces (Department of Planning and Environment) and it is unlikely concurrence will be granted given that the Draft Plan of Management Somersby Industrial Park, prepared by NSW Premier's Department and the former Gosford City Council, dated June 2005, has identified the minimum management areas necessary to maintain viable populations of threatened species.
Description of proposed development: further information is required clarifying the proposed development to be carried out on the site.
Traffic: Part 2.4.6 of the Statement of Environmental Effects, dated 16 June 2018, identifies that development consent is sought for a waste or resource transfer station, with a yearly volume of 90,000 tonnes. Inconsistent and inadequate information has been provided regarding the type of waste and/or materials that will be handled on site and the traffic movements on the surrounding road network associated with the waste or resource transfer station and the warehouse and distribution centre.
Contaminated land: the application must be refused because the Court cannot be satisfied that the site is suitable for the proposal in accordance with cl 7 of State Environmental Planning Policy No 55 - Remediation of Land.
Fire prone land: in accordance with Section 4.14 of the EPA Act, the proposed development has not addressed the requirements of the Rural Fires Act 1997 and the document Planning for Bushfire Protection, published 2006, by the New South Wales Rural Fire Service.
Inadequate information: the application should be refused because the submitted documentation and plans do not provide adequate information to enable a proper assessment of the proposal.
1. Retaining walls are proposed adjacent to landscape areas in the vicinity of the western boundaries of Lot's 4-7, the southern boundary of Lot 7, and the southern end of the eastern boundary of Lot 7, and within the northern boundary of Lot 4. With due consideration to the proposed heights of final filling, it is noted that these retaining walls could be in the order of 3m to 9m in height. Details are to be provided of the type, size and heights and reduced levels of the actual walls proposed, extent of footings, etc.
2. No information has been provided in relation to the additional fill proposed to be placed on the site as part of this proposal (90,000 tonnes yearly). The extent and impact of the fill on the site cannot therefore be adequately assessed.
3. There are existing earth berms and other stormwater management and sediment control works on the site, which have not been addressed as part of this proposal, for example, if those works are required to remain, be varied or removed, for the purpose of the proposal.
4. An Environmental Management Plan is required to assess environmental pollution risk (air, water and land emissions) for the proposed activities in accordance with the Protection of Environment Operations Act 1997. The level of detail of the Environmental Management Plan must be appropriate having regard to the operational scale of the proposed development. The plan must also be signed and dated by a suitably qualified currently practicing environmental consultant.
5. An air quality impact assessment prepared in accordance with the New South Wales Environment Protection Authority's Approved Methods for Modelling and Assessment of Air Pollutants in New South Wales 2016 is required.
Access: the proposal requires vehicular access via the right of carriageway between the site and Lot 1001 DP 1138136 (No. 44 Gindurra Road, Somersby). Insufficient information has been provided demonstrating suitable access is achievable from the existing right of way on to the lots and into the development.
Flooding: the filling that has occurred on the site has encroached within flood affected area within the site, which in turn has the potential to raise flood levels in the area.
The proposal is not in the public interest.
[3]
The site and its context
The site is located on the southern side of Gindurra Road, Somersby and has an area of 32,720sqm. The site is irregular in shape. An eight-lot subdivision of the site was approved in 2005.
There is an existing concrete driveway located on the eastern side of the site (northern section) and on 44 Gindurra Road (southern section). There are reciprocal rights of carriageway over the driveway.
The site is currently devoid of vegetation with the exception of some areas in the northern portion of the site. The remainder of the site is covered by fill and several industrial structures.
[4]
Background and the proposal
By way of background, the site is the subject of Class 4 proceedings (Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) [2019] NSWLEC 171) and orders have not yet been made (at [240]).
The proposal is for a warehouse and distribution centre and includes the following:
Two storey warehouse;
Office area adjacent to the warehouse;
Customer support office;
96 at grade car parking spaces;
Sediment and erosion control measures;
Earthworks including regrading of existing stockpiles, Lots 1-3 finished fill height of RL193 ADH and Lots 4-7 finished fill height of RL 189 ADH;
Stormwater construction;
Retaining walls 3-9m high; and
Over 1000sqm of vegetation.
[5]
Leave refused to amend the application
At the commencement of the second day of the hearing, the applicant sought the Court's leave to amend the application to rely on an amended proposal which lowered some of the finished levels on the site when compared to the original application, by removing fill within the southern portion of the site. The Council opposed leave being granted because the amended proposal did not resolve any of the contentions raised in the Statement of Facts and Contentions (Ex 1) and raised new issues. The Council further submitted that the applicant has had 9 months since the filing of the Statement of Facts and Contentions to reflect on the contentions raised and to bring forward amendments to the proposal and has not done so. Furthermore, the applicant has not filed expert evidence as directed to do so at the pre-trial direction hearings and as a consequence there has been no joint-conferencing of experts to contemplate amendments to the proposal that may have addressed the Council's contentions.
I refused to grant leave to the applicant to amend the application for the following reasons:
The amended proposal does not resolve any of the contentions raised in the Statement of Facts and Contentions;
The amended proposal raises new contentions and the lateness of the amended proposal presents a prejudice to the Council in adequately responding to those new issues;
The applicant has had an opportunity to reflect on the contentions raised by the Council and amend the proposal in response to those contentions since the Statement of Facts and Contentions was filed on 14 May 2019 and did not do so prior to the hearing;
The amendments made to the proposal are not made in response to expert evidence;
The amended proposal does not address the contention raised by the Council regarding the position and heights of retaining walls; and
The amended proposal lowers the central portion on the rear of the site and this amendment raises a serious question as to how the stormwater management of the site is to be achieved.
[6]
Planning framework
State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) requires the consent authority to be satisfied that contaminated land will be remediated if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, at cl 7(1)(c).
The site is zoned IN1 General Industrial pursuant to Gosford Local Environmental Plan 2014 (LEP 2014). Warehouse or distribution centres is a permissible use with consent. The objectives of the IN1 zone, to which regard must be had, are:
• To provide a wide range of industrial and warehouse land uses.
• To encourage employment opportunities.
• To minimise any adverse effect of industry on other land uses.
• To support and protect industrial land for industrial uses.
• To promote ecologically, socially and economically sustainable development.
• To ensure that retail, commercial or service land uses in industrial areas are of an ancillary nature.
• To ensure that development is compatible with the desired future character of the zone.
Clause 7.4 of LEP 2014 applies to development in Somersby Business Park and has the following relevant objectives:
…
(b) to protect ecologically significant land and land with Aboriginal heritage characteristics in Somersby Business Park,
(c) to ensure that the function and appearance of future subdivision of, or other development in, Somersby Business Park protects ecologically significant land and land with Aboriginal heritage characteristics within Somersby Business Park,
(d) to provide that subdivision occurs in a flexible manner to take account of ecologically significant land and land with Aboriginal heritage characteristics within Somersby Business Park.
Development consent must not be granted to development on land to which cl 7.4 applies unless the consent authority considers that the development is consistent with any applicable plan of management adopted by the consent authority and the objectives of cl 7.4, at cl 7.4(3) of LEP 2014.
The Draft Plan of Management for Somersby Industrial Park (SIP) was adopted by the Council on 5 July 2005 (Ex 2, f 378D). The key values of the SIP include ecological and environmental values relating to the remnant native vegetation which provides significant habitat and linkages for a range of threatened flora and fauna species as well as other species. Key management issues in the SIP summarised in the Executive Summary include the clearing of native vegetation, maintenance of significant habitat linkages and wildlife corridors and changes to natural hydrological (water) flor regimes and water quality impacts.
The site is within the SIP Management Zone 1 and sub-zone (e) Riparian zones and Habitat Protection, identified by the Draft Plan of Management (PoM). Areas of significance in terms of native vegetation in the SIP include the Piles Creek riparian zone and other habitat corridors and linkages, at 3.2.7. The Piles Creek riparian zone is one of three important habitat linkages that are of significance in the SIP. Areas identified in sub-zone 1(e) cannot be used to satisfy the requirements for an asset protect zone (APZ) on the any site to be developed, at 4.7.1. The Piles Creek and buffer area is identified on Figure 2.6 of the PoM as being on the western portion of the site. The site forms part of the management zone for the sub-zone 1(e), as shown on Figure 4.1 of the PoM. The management zones on private land include a 10m buffer area on the western and southern portions of the site, as shown on Figure 4.1a of the PoM.
Clause 32 of Schedule 3 of the EPA Reg is in the following terms:
32 Waste management facilities or works
(1) Waste management facilities or works that store, treat, purify or dispose of waste or sort, process, recycle, recover, use or reuse material from waste and -
(a) that dispose (by landfilling, incinerating, storing, placing or other means) of solid or liquid waste -
(ii) that comprises more than 100,000 tonnes of "clean fill" (such as soil, sand, gravel, bricks or other excavated or hard material) in a manner that, in the opinion of the consent authority, is likely to cause significant impacts on drainage or flooding, or
(b) that sort, consolidate or temporarily store waste at transfer stations or materials recycling facilities for transfer to another site for final disposal, permanent storage, reprocessing, recycling, use or reuse and -
(iii) that have an intended handling capacity of more than 30,000 tonnes per year of waste such as glass, plastic, paper, wood, metal, rubber or building demolition material, or
(d) that are located -
(i) in or within 100 metres of a natural waterbody, wetland, coastal dune field or environmentally sensitive area
The New South Wales Rural Fire Service (RFS) recommended a condition that the site be managed in perpetuity as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of 'Planning for Bush Fire Protection 2006' and NSW Rural Fire Service's document 'Standards for asset protection zones'. (Ex 2, f 408).
[7]
Expert evidence
The Council relied on the expert evidence of Leah Hitchenson (Environmental Health) (Ex 3), Anthony Favetta (civil engineering) (Ex 4), Dr Christopher McLean (ecology) (Ex 5), Steven Green (traffic) (Ex 6) and Antonia Stuart (planning) (Ex 7).
Despite pre-trial directions for the parties to file expert evidence, the applicant did not file expert evidence and as a consequence, the Council filed the experts' reports and there was no joint-conferencing of experts. The Council's experts' reports were admitted into evidence without objection. The applicant opted not to cross-examine the Council's experts.
I have read the uncontested evidence of the Council's experts and I am satisfied that I am entitled to accept the experts' evidence as accurate and truthful.
[8]
Submissions
The applicant submitted that Part 2 Scenic Quality and Character, Chapter 2.1 Character of Gosford Development Control Plan 2013 (DCP) does not apply to the proposal because section 2.1.1 excludes "Somersby Industry Estate" from the application of Chapter 2.1. The Council submitted that Chapter 2.1 of Gosford DCP 2013 does apply to the proposal because the site is included in the area "2. Employment Estate and Land" identified by the map on folio 175 of Ex 2.
The applicant submitted that the proposal will allow a significant area to be developed and it ensures ecological protection. According to the applicant, the "core issue" is the yearly volume of 90,000 tonnes of waste or resource transfer mentioned in the Statement of Environmental Effects (SEE) (Ex A, f 40). The Council submitted that the proposal, although described in the application form as "Warehouse and Distribution Centre" (Ex A, ff 8 and 13), is in fact for other works and uses variously described in the documents supporting the application, including the SEE as "yearly volume applied for is 90,000 tonnes of waste or resource transfer for the DA" (emphasis added) and "Earthworks regrading of existing resource recovery stockpiles for the Road Infrastructure Facility" (emphasis added) (Ex A, f 40) and the Traffic and Parking Assessment as "Material Recycling Facility Pty Ltd" (Ex A, f 78) and "the proposed depot expansion involves… Container Deposit Scheme plastic bulk handling and storage…" (emphasis added) and "Trucks will transport the surplus spoil and plastics for container deposit scheme to and from site as per required. The depot will be run twenty four hours." (emphasis added) (Ex A, f 79).
The applicant submitted that the application does not require the consent of the adjoining land owner as there are no works proposed to the shared driveway.
The applicant listed three recent development consents granted by the Council for development proposals within the Somersby Industrial Park on land identified by Figure 2.6 of the Draft Plan of Management for Somersby Industrial Park as 'combined significant habitats'. The Council submitted that it is unsurprising that approvals have been granted within the Somersby Industrial Park and pointing to the fact of an approval does not demonstrate how those consents were granted, such as on what bases the specific proposal included measures and protections in relation to identified environmental values.
The Council submitted that the application must be refused for at least the following jurisdictional reasons:
Absence of owners consent. This is because extensive earthworks are required to be carried out on land outside the subject site, over an easement benefiting the site, to provide vehicular access to the southern portion of the site.
The application is designated development, for which an Environmental Impact Statement has not been submitted. The application is a 'waste management facility or work' within the meaning of cl 32 of the EPA Reg, either by volume of waste or by being located within 100m of a natural waterbody, namely the tributaries of Piles Creek located in the adjacent Council reserves.
On the material contained in the application, the Court could not be satisfied of the matters required by cl 7 of SEPP 55, precluding the grant of consent. This is because the fill on the land has been identified as contaminated by asbestos, the extent of which is unknown, and the application is not accompanied by any assessment of the suitability of the use of the land in its contaminated state, or any proposals for remediation.
The Council submitted that the application should be refused for at least the following merit reasons:
The application is a sham, and the real purpose is to obtain consent for further filling of the land. The Court can comfortably reach this conclusion because of the history of the extensive unlawful filling of the land; the proposal to further fill the land without apparent reason for the stated land uses; the vagueness of the application; the absence of operational and other details of the proposed activities and uses (which also precludes proper environmental assessment).
The application is so deficient in the information provided that it precludes a proper environmental assessment of the proposal.
The proposed warehouse building will be incompatible with the desired character, by reason of the land level being raised some 10m higher than previously approved.
The Council submitted that In accordance with s 4.46 of the EPA Act, the proposed activity is considered to invoke s 91E(1) of the Water Management Act 2000, wherein the proposal is deemed to be integrated development and General Terms of Approval must be obtained from Department of Industry - Crown Lands & Water Division. The Council also submitted that an applicant for development consent may elect not to make an application for an integrated development approval (Maule v Liporoni (2002) 122 LGERA 140; [2002] NSWLEC 25 at [87]) and instead opt to make separate applications for any other relevant approvals.
[9]
Jurisdictional pre-requisites not met by the application
[10]
Owners consent
It was an agreed fact that the proposal requires vehicular access via the right of carriageway between the site and 44 Gindurra Road, Somersby.
I accept Ms Stuart's evidence that there "appears to be a height difference of some metres" between the southern part of the driveway on 44 Gindurra Road and the proposed warehouse on the site, and that in order to achieve vehicular access to the site from this part of the driveway, some form of ramping or other work will need to be carried out on 44 Gindurra Road (Ex 7, 5.2.2). I accept and agree with the Council's submission that there is a height difference of more than 5m between the existing level of the driveway on the adjoining property of RL184 (Ex 10, f 9) in the position indicated on the application as the access point onto the site on the eastern boundary (Ex A, f 16) and the warehouse floor level 189.15 ADH (Ex A, f 16) and the north-eastern corner of the warehouse has a nil setback to the eastern boundary (Ex A, f 16). No documentation has been provided to demonstrate how access to the warehouse from the driveway can be achieved.
Furthermore, the diagrammatic entry onto the site shown on Sheet 1/18 (Ex A, f 16) cannot be reconciled with the levels shown on the most recent survey (Ex 10, f 9) for suitable access for B-Double trucks (Ex A, f 30 and Ex 6, p 5). I accept and agree with Mr Green's evidence that the Traffic Study submitted with the application does not address how B-double trucks are able to enter and leave the site and the drafted documentation (Ex A, ff 18, 30) is diagrammatic and unworkable. It is impossible to access the site and the warehouse at the point indicated without requiring works to the existing driveway on the adjoining property to raise the level of the driveway at the point of access indicated on the documentation.
I accept the Council's submission that land owner's consent must be obtained from the owner of 44 Gindurra Road, Somersby for works to the driveway so as to enable the development to proceed, pursuant to cl 49(1) and cl 1(1)(i) of Sch 1 of the EPA Reg. Having considered all of the evidence before me, I am satisfied that contention 2 regarding the need for owner's consent for works on the adjoining property is made out.
[11]
Designated development
The proposal is a waste management facility that is located within 100m of a natural watercourse.
On the basis of the limited information provided in the application, the proposal appears to be a waste management facility due to the yearly volume of 90,000 tonnes of waste resource applied for as part of the application (Ex A, f 40) and the description of the proposed depot (Ex A, f 79) as a "container deposit scheme plastic bulk handling and storage" (emphasis added) and the description of the activity including that "trucks will transport the surplus spoil and plastics for container deposit scheme to and from the site" (emphasis added). I accept Ms Stuart's evidence that the proposal is a waste management facility or works within the meaning of cl 32(1) and (1)(b)(iii) and also (d)(i), Sch 3 of the EPA Reg.
Clause 47 of Schedule 3 of the EPA Reg defines the distance from a waterbody as measured from the top of the high bank to the boundary of the development site. Figure 1 in the Council's internal referral from J Mack dated 3 January 2019 indicates the 40m water course buffer for the Piles Creek Riparian zone and shows the buffer extending onto the site (Ex 2, f 412). I accept the Council's submission and Ms Stuart's evidence in relation to contention 3 (Ex 7, pp 12-13) that the proposal also meets the meaning of a waste management facility or works under cl 32(1)(d)(i), Sch 3 of the EPA Reg.
Having considered all of the evidence before me, I am satisfied that contention 3, that the proposal is designated development within the meaning of s 4.10(1) of the EPA Act, is made out. An application for designated development is to be accompanied by an environmental impact statement (EIS) prepared by or on behalf of the applicant in the form prescribed by the regulations, pursuant to s 4.12(8) of the EPA Act. The application does not include an EIS.
[12]
Contamination
SEPP 55 requires the consent authority to be satisfied that contaminated land will be remediated if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, at cl 7(1)(c).
I accept the evidence of Ms Hitchenson that the site is potentially contaminated as a result of a significant amount of material having been imported onto the site, including building and demolition waste containing asbestos, on the bases of documentary evidence attached to Ms Hitchenson's expert report (Ex 3) including a clean-up notice issued by the NSW EPA and dated 14 October 2013 (Annexure B to Ex 3), a report titled "Contamination Testing Report" prepared by Network Geotechnics dated 8 December 2015 for the site (Annexure C to Ex 3) and a report titled "Asbestos Construction Management Plan" prepared by Progressive Risk Management dated June 2016 (Annexure E to Ex 3).
The application must be refused because I cannot be satisfied that the site is suitable for the proposal in accordance with cl 7 of SEPP 55. I accept Ms Hitchenson's evidence that there is no information submitted with the application that identifies the extent of contamination on the site, whether remediation is required and whether the site is suitable for the proposed use. Having considered all of the evidence before me, I am satisfied that contention 9 regarding contaminated land is made out.
[13]
Conclusion
The application fails at three jurisdictional thresholds and cannot be granted consent.
[14]
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. Development Application No. 55744/2018 for a warehouse and distribution centre at 40 Gindurra Road Somersby is refused.
3. The exhibits, other than exhibits 1 and A, are returned.
[15]
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Decision last updated: 26 March 2020