Windang Kruger Resorts Pty Ltd ATF Windang Kruger Resorts Unit Trust v... [2023] NSWLEC 1046 | Case summary

Windang Kruger Resorts Pty Ltd ATF Windang Kruger Resorts Unit Trust v... [2023] NSWLEC 1046 | Case summary | Zoe

[5]

Proposals

The particulars in regard to the two separate DAs can, generally, be more easily considered together. Indeed, much of the documentation tendered in regard to the separate development applications is identical. At this point, it is useful for me to outline the applications, as I understand them, in a practical sense. Below I introduce five aspects.
First, is in regard to the proposed filling which. as explained, would raise both sites above flooding constraints to a level suitable for future development. The height above existing finished levels would be generally 750mm. The landfill project is reasonably intricate, as it embodies a remediation strategy.
The second aspect of the proposal is this site remediation. Remedial Action Plans (RAPs) prepared in regard to the two sites indicate a proposed remediation strategy. The strategies would introduce a capping system to act as a physical barrier above the existing copper slag. A particular capping design for the sites is included in the RAPs (eg Ex D Tab 4 p 32). It is explained in detail below (see [92] et seq).
The third aspect of the proposal is in regard to stormwater management. Put simply here, this would comprise a 1m swale along external boundaries, generally falling to the low lying area in the south-west corner of Lot 501, within which existing vegetation would be retained.
The fourth aspect of the proposal is in regard to landscaping. This would involve a 5m landscaped buffer around the site perimeter (on the "site-side" of the 1m swale described above) occupied by a designated matrix of plantings along differing sectors (canopy trees of approximate height 8m, tall shrubs of approximate height 3m, grasses and groundcovers) (refer Landscape Plans Ex G Tab 8). The "planting matrix" would also run north-south along a 5m "buffer" along the common boundary of Lots 501 and 429, and also apply to two identified areas within Lot 429 (areas of 10m x 20m and 10m x 30m). These two latter areas were identified as potential future open space areas within a future development pattern. I mention here that there was agreement among the planning and landscape experts that the proposed landscape edge treatment would satisfy visual privacy concerns, raised by neighbours.
The fifth aspect of the proposal relates to biodiversity conservation. A BDAR was prepared in regard to the proposed clearing of native vegetation. It was assessed that a total of 25 ecosystem credits would be required to offset impacts. A condition of consent has been framed to this effect, although there is a disagreement between the parties on timing which I attend to towards the end of this judgment. The BDAR also made certain other uncontroversial recommendations, such as that of connecting remnant vegetation through a Vegetation Management Plan (Ex G Tab 3 p ix).

[9]

Issues

While the list of contentions raised by Council was more numerous (as documented in Exs 3 and 4), given certain amendments to the proposal, it seemed to me that the real issues in dispute between the parties could be reasonably separated into two broad areas: (1) proposed filling in the floodplain, and (2) adequacies of proposed site remediation.
Council tendered objecting lay submissions (Ex 1 Tab 19) which also raised concern about the proposed fill and remediation particulars. But additional concerns were also raised in lay submissions, including in oral submissions heard during the site inspection on 19 September 2022. These concerns included impacts on visual privacy (ie overlooking into backyard areas from the filled land), traffic management (in particular, construction traffic) and stormwater risks to neighbouring property as a consequence of the fill.
With the amending landscape plans and the receipt of further evidence from the town planners, I was generally satisfied that the proposal addressed the visual privacy concerns adequately. There was also agreement from the experts, generally, in regard to traffic and stormwater management concerns. Temporary access to Windang Road meant that construction traffic would not need to run through the existing residential estate. Amending civil engineering plans satisfied stormwater issues.
Before turning to the central issues in these proceedings, I introduce the experts giving oral evidence in the table below. There were a number of additional expert reports filed in the proceedings, which do not require attention here. Expert Expertise Engaged by L Douglas Contamination remediation Applicant K Batshon Contamination remediation Respondent A Barthelmess Flooding and stormwater Applicant L Collier Flooding and stormwater Respondent J Mead Town planning Applicant N Lamb Town planning Respondent M Taylor Landscape Architecture Applicant

[11]

Appreciation of flooding context

In evidence, reference was made to certain flood-related investigations of relevance. These included:

Cardno (2012a), Lake Illawarra Floodplain Risk Management Study (Ex 1 Tab 11) (henceforth Lake Illawarra FRMS)
Cardno (2012b), Lake Illawarra Floodplain Risk Management Plan (Lake Illawarra FRMP).
JN Responsive Engineering (July 2022a), Flood Assessment Report (Ex F Tab 7) (JN Flood Review).

I note that rainfall and flood event probability terminology has changed over the time of the preparation of these reports. For ease of understanding, here I consistently refer to the measure AEP (ie Annual Exceedance Probability). When the measure ARI (Average Recurrence Interval) is used in reports I use the "simple approach" to convert to AEP (eg 1% AEP equating to 1 in 100 year ARI).
It seemed to be clear enough that the technical particulars of the quantum of fill proposed within the floodplain, and the resultant flood affectation, were not substantive points of dispute between the experts (Tcpt, 21 September 2022, p 11(22)). These particulars, generally as outlined in the JN Flood Review (pp 1-6), might be summarised as follows:

Lot 501 has ground levels of around RL 1.9-2.0m AHD along the Windang Road frontage, raising to up to 3.2m AHD along the boundary with Lot 429. Lot 501 is approximately 50% flooded in the 1% AEP event with depths up to 300mm along the western site frontage. It is designated a medium flood risk site in the JN Flood Review.
Lot 429 has levels of 3.0-3.5m AHD and is entirely above the 1% AEP event, and "predominantly" above the PMF event. It is designated a low flood risk site in the JN Flood Review.
Together the proposed fill across the two sites (noting the proposed general emplacement of 0.75m of fill) would result in a loss of 364m3 of flood storage in relation to the 1% AEP event and the loss of 7569m3 of flood storage in relation to the PMF event.
The JN Flood Review indicates Council had advised the local 1% AEP level as 2.24m AHD and the PMF level as 3.24m AHD (JN Flood Review p 2 and noting Lake Illawarra FRMS Table 12.2). It is also noted that Ms Collier's evidence was that with climate change-related sea-level rise, PMF levels were expected to exceed 4m AHD on the sites, in time.
The JN Flood Review (p 5) used a pro-rata method to find that water levels in Lake Macquarie would, at the PMF event, raise by some 0.108mm (to confirm: a little over a tenth of a mm) as a consequence of filling of both of the sites as proposed.

I am also aware that the Lake Illawarra FRMS included an analysis of the sensitivity of peak flood events. The "maximum fill" scenario (filling of all low areas of the foreshore including public reserves and roads would involve some 11.5 million m3 of fill and impact water levels by some 90mm at the 1% AEP event. Raising the "advised fill" areas (areas that may be potentially filled as part of residential, commercial or industrial development) would involve some 3.52 million m3 of fill and water level increases of 30mm at the 1% AEP event (Lake Illawarra FRMS p 55) and 50mm at the PMF event (JN Flood Review p 5).

[13]

Provisions of WDCP Chapter E13: Floodplain Management, and experts' advice

Clause 3.1 of Chapter E13 of WDCP provides the following as the key objectives to this chapter: "a) Maintain the existing flood regime and flow conveyance capacity; b) Maintain the function of floodway and flood storage areas; c) Reduce the impact of flooding and flood liability on individual owners and occupiers of flood prone land; d) Reduce private and public losses from flooding; e) Improve public safety with respect to flooding; f) Minimise the potential impact of development and other activity upon the aesthetic, recreational and environmental value of the waterway corridors; g) Increase public awareness of the hazard and extent of land affected by the full range of potential floods; h) Ensure new development must, as far as practical, reduce the existing flood risk, and in no circumstances should the flood risk be worsened; i) Ensure new development (with the exception of waterway crossings) does not encroach within areas susceptible to channel erosion, migration, bank failure and slumping; and j) Deal equitably and consistently with all matters requiring Council approval on flood affected land, in accordance with the principles within the latest version of the NSW Floodplain Development Manual or its update."
Council contends that the application is at odds with Objectives b), c), d), e), and h), above.
Clause 6 of Chapter E13 is titled "what are the key criteria for determining development applications". A set of related objectives are provided at clause 6.4.1 and performance criteria are listed at clause 6.4.2. Among other things, Council is concerned that the proposal is at odds with Objective 6.4.1 (f) and Performance Criterion 6.4.2(a) which, respectively relate to minimising the risk to life during flooding and development not resulting in any increased risk to life. Council also says the proposal does not satisfy performance criteria 6.4.2(b) which includes concerns relating to cumulative impact: "Development should not detrimentally increase the potential flood affectation on other development or properties either individually or in combination with the cumulative impact of development that is likely to occur in the same floodplain."
Still under clause 6 of Chapter E13, and still relating to the topic of "key criteria for determining development applications", clause 6.4.3 then provides "prescriptive controls", which I specify below.

[14]

"Flood affectation" requirements in Schedule 9a of Chapter E13 of WDCP

The first of the prescriptive controls (under clause 6.4.3(a) of Chapter E13 of WDCP) links to a set of distinct controls for different floodplains within the Wollongong local government area. These controls are identified in a set of schedules to Chapter E13. Schedule 9a is concerned with "Lake Illawarra - Windang Peninsula" and applies to the proposal. The most pertinent provision comes under the heading "Flood affectation": "1 Engineers report required to certify that the development will not increase flood affectation elsewhere. 2 The impact of the development on flooding elsewhere to be considered. 3 No wholesale filling of sites around the foreshore of the lake is permitted, unless supported by a sensitivity analysis indicting that there is no significant impact on flood levels. Also, filling that impacts on active flow areas in the stream networks feeding Lake Illawarra will not be supported. However, filling within existing building areas is permitted. Filling of depressions outside of the existing building areas may be permitted subject to it being demonstrated that there is no loss of flood storage across the site in all events up to the PMF."
The dispute between the experts centred on the third control which indicates no filling around Lake Illawarra foreshore "unless supported by a sensitivity analysis indicating that there is no significant impact on flood levels".
The experts agreed (Ex 9 p 8) that this provision was a direct take from location-specific recommendations at Table 16.1 of the Lake Illawarra FRMS.
Ms Collier indicated she concurred with recommendations in the Lake Illawarra FRMS that wholesale filling in the floodplain was not appropriate, and that this proposal constituted wholesale filling. The Lake Illawarra FRMS included a benefits/costs analysis of the impact of foreshore filling (including potential property damage associated with increased flood affectation), and consequentially recommended against any such wholesale filling within the floodplain because of the increase in the amount of average annual damage to properties (Lake Illawarra FRMS p 55-56 was of relevance here). Ms Collier was also dissatisfied with the proposal in regard to the required supportive "sensitivity analysis" referenced in the flood affectation provisions of Schedule 9a. It was Ms Collier's view that an analysis of similar scale to the Lake Illawarra FRMS was required under this provision to properly understand cumulative effects.

[16]

"Filling of the floodplain" (clause 7 Chapter E13 of WDCP)

Clause 7 of Chapter E13 is titled "filling of the floodplain". It provides as follows: "1. Filling in flood prone areas is not permitted unless: • a FRMP (Flood Risk Management Plan) for the catchment has been adopted which allows filling to occur; or • a report from a suitably qualified engineer is submitted to Council that satisfies the requirements of items 2 and 3 below and certifies that the development, in combination with similar filling of developable sites in the area, will not increase flood affectation elsewhere. 2. Filling of individual sites in isolation without consideration of the cumulative effects is not permitted. A case by case decision making approach cannot take into account the cumulative impact on flooding behaviour and associated risks caused by individual developments. Any proposal to fill a site must be accompanied by an analysis of the effect on flood levels of similar filling of developable sites in the area. 3. This analysis would form part of a flood study prepared in accordance with Chapters E13 and E14 of this DCP. 4. Generally, there is to be no net increase in fill in the floodplain. Compensatory excavation may be used to offset fill, however the compensatory excavation must be taken from an adjacent area of similar flood function that is lower in the floodplain (i.e. at a lower AEP inundation extent) than the proposed fill areas. Cut and fill drawings and volume calculations must be supplied to Council. 5. Filling above the 1% event may be permitted if can be demonstrated there are no adverse impacts in rare events (e.g. 0.2%, 0.5%, PMF)."
Council also raised Chapter E 19 concerned with "earthworks". Among other things the objective of the chapter is to prevent land filling from creating or contributing to problems either on or off site. Council claims the proposed "does not ensure that no adverse impact occurs to local drainage systems (including groundwater systems), overland flow characteristics and flood storage" (Ex 4 par B1.1 U).
At Attachment B to Ex 9 an assessment of the proposal against WDCP provisions was provided by Mr Barthelmess. He argued that the proposal met each of the requirements of the requirements of Chapter E13 of WDCP. In regard to the "flood affectation" requirements in Schedule 9a of Chapter E13, Mr Barthelmess believed that even if the proposal was seen as wholesale filling, the prerequisites for that setting were met. The requirement for "sensitivity analysis" was addressed through the Lake Illawarra FRMS, itself. This work has already shown that the Lake is "insensitive to filling". The Lake Illawarra FRMS indicates that even with floodplain filling of 11.5 million m3 (maximum land fill scenario in response to localised flooding) a 90mm flood level increase would result. The filling proposed with this application would result in less than 1mm of increase to flood levels.

[17]

Assessment framework

The interpretation of WDCP is at the centre of this topic. The EPA Act, at s 4.15(3A), is quite direct in its framing of actions for consent authorities when considering development control plan provisions. It makes clear that if a development control plan sets standards with respect to an aspect of the development and the development application complies with those standards, then, the consent authority is not to require more onerous standards with respect to that aspect of the development.
In this case there are some provisions of WDCP which were subject to different interpretation by the parties and the experts. The permissible flood impacts provisions (clause 6.4.3(b) of Chapter E13) suggest allowable impacts of between 10mm and 150mm dependent on, as I interpret it, the proposed "development/project type" and the areas impacted upon. Even adopting the 10mm figure, I accept the evidence of Mr Barthelmess that the proposed filling would easily meet that particular provision as its effect on other property would be "less than 0.1mm for any scenario up to and including the PMF" (Ex 9 p 9). I understood Mr Barthelmess and the applicant to argue that clause 6.4.3(b) and its Table 2 should be seen as overriding provision prescribing "permissible flood impacts" (AOS par 91). Ms Collier did not believe the provisions of clause 6.4.3(b) should apply to the proposal. For reasons I will now explain, I generally concur with Ms Collier's position.
When the issue of flooding impacts and implications are at hand, and while the distinctions may not always be easily identified, it seems to me that Chapter E13 of WDCP distinguishes between two different types of development application scenarios. The first is that of land use-related development proposals on, what might be thought of as, incidental flood prone land in the general confines of development areas. This is the common question of how to manage reasonable additional land use-related development on low lying properties, without causing undue risk to future occupants, or flow-on flooding effects elsewhere. Sometimes fill may be involved but incidental to the fact of land use-related development (usually a building element) itself in the floodplain and affecting flood storage or flows.
A second type of development is filling in the floodplain. While sometimes such filling may be incidental and of no consequence, it is most clearly distinguishable from the first type of development when "wholesale filling" is proposed. To use a distinction volunteered by the applicant in regard to the development proposals in toto, wholesale filling can be thought of as commonly involving the undertaking of "works" rather than what I am terming land use-related development. These particular kinds of work can have the effect of converting land from an essentially undevelopable, flood prone, status to one upon which future development at some scale can occur. Thus, an idiosyncratic commercial incentive is involved. This type of filling more directly raises the question of cumulative impact. That is, if this floodplain area is to be filled for future development purposes why not other areas.
In my opinion, Part 6 of Chapter E13 of WDCP is more concerned with the first type of development proposal. This is clear from clause 6.1, Point 1, which explains the area of interest as "determining applications for proposals potentially affected by flooding". For me this area of interest is different from the wholesale filling of land for the purposes of converting land to a state where, ultimately, land use-related development applications for proposals may come forward. Clause 6.1 Point 2a) then refers to the need to "identify the land use category of the development". However in this instance, and more relevant in a statutory sense when considering the remediation issue, the applicant has made clear that the development applications are for the carrying out of works rather than land use (see for example [2] and [98]). The objectives at clause 6.4.1 are also flavoured to relate to the allowance of development mindful of the risk to development and use of land. When I turn to clause 6.4.3(b) and Table 2, I also note (mindful of clause 6.1, Point 1 and clause 6.4.1) that the left hand column makes no reference to filling of land in the floodplain.
The provisions at Point 3 of the section on "flood affectation" within Schedule 9a (itself cross-referenced to Part 6) do make a direct reference to "wholesale filling". I am comfortable that this is not a significant departure from the position I adopt, and is moreso a practical response to the fact of the adoption of recommendations from Lake Illawarra FRMS (see [39]).
Clause 7 then provides particular provisions relating to "filling in the floodplain". Here Chapter E13 of WDCP is concerning itself with the second type of development which I introduced above (at [49]). In my construction, clause 7 applies to the proposed development which involves works. Here I note, with respect to clause 7 Point 1, that the relevant Lake Illawarra FRMP did not "allow filling to occur". Other provisions of clause 7 relate to requirements that development "not increase flood affectation elsewhere", and that cumulative impacts are a consideration. Important is the provision at clause 7 Point 5 that "filling above the 1% event may be permitted if can be demonstrated there are no adverse impacts in rare events (e.g. 0.2%, 0.5%, PMF)".

[18]

Applying the framework

I am not inclined to apply the permissible flood impacts provisions (Table 2 clause 6.4.3(b) Chapter E13 of WDCP) to the proposal in the circumstances. As indicated above these provisions are not applicable to land fill works of the scale proposed here.
Generally, I agree with Ms Collier that the provisions at Point 3 of the "flood affectation' section of Schedule 9a to Chapter E13, do indicate a need for additional "sensitivity analysis" beyond the Lake Illawarra FRMS itself. While it certainly could be made clearer, it seems entirely incongruous to understand provisions recommending additional sensitivity analysis, based directly on recommendations sourced from the Lake Illawarra FRMS itself (see [39]), could then be assumed to not require further sensitivity analysis at all and only rely on that contained in the source study.
If I turn to clause 7 Point 5 and consider the evidence before me (eg summarised at [30]), I note that it is a smaller proportion of the sites which involve filling below the 1% AEP level. While the impacts on other development, say at the PMF, are very small in scale indeed, they would exist, which raises the question of cumulative impact.
A key consideration in regard to the direct impacts of the proposal was how to consider this question of cumulative impacts, something Ms Collier argued the proposal gave insufficient attention to. It is clear enough that when one turns beyond the "very small scale" impacts of the proposal on local flooding, if all (or a large area) of the floodplain were to be filled then there would be a noticeable impact including in regard to increased over-floor flooding, and associated costs, points of attention in Lake Illawarra FRMS and FRMP.
My overall conclusion is therefore that the proposal is at odds with the provisions of Chapter E13 of WDCP, as described above. While, the direct impacts of the proposal are minor, the relevant WDCP provisions relate, legitimately, to precedent and cumulative impact. Were large areas of the Lake Illawarra floodplain to be filled, the evidence is that impacts would be considerable given the number of properties involved (suggested as around 1500 properties up to the PMF in Lake Illawarra FRMS, p 55).
While it is clear that development control plans need to be taken into consideration as a fundamental element in the decision-making process, non-compliance does not mean a proposal must fail. It is important that due consideration is given to s 4.15(3A)(b) of the EPA Act, and the need to be flexible in the application of development control plan standards. There are other benefits of the proposal which need to be balanced against these adverse findings. I return to this topic in my conclusion.

[22]

Relevant SEPP Resilience and Hazards provisions

It is Chapter 4 of SEPP Resilience and Hazards, rather than WLEP, that is at the centre of development application-related considerations for the remediation of contaminated land. In regard to definitions, s 4.3(1) provides as follows: … remediation means - (a) removing, dispersing, destroying, reducing, mitigating or containing the contamination of any land, or (b) eliminating or reducing any hazard arising from the contamination of any land (including by preventing the entry of persons or animals on the land). …
Section 4.7 of SEPP Resilience and Hazards provides, relevantly, that "a person may carry out a remediation work in accordance with Ch 4 (of SEPP Resilience and Hazards), despite any provision to the contrary in an environmental planning instrument…".
There are further notable provisions in Ch 4 of SEPP Resilience and Hazards. I note the particular aims of the chapter as follows (s 4.1(2)): …to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment - (a) by specifying when consent is required, and when it is not required, for a remediation work, and (b) by specifying certain considerations that are relevant in rezoning land and in determining development applications in general and development applications for consent to carry out a remediation work in particular, and (c) by requiring that a remediation work meet certain standards and notification requirements.
Section 4.6 of SEPP Resilience and Hazards requires a consent authority to consider certain matters and, relevantly, to be satisfied of certain matters, prior to granting consent. There is a need to give consideration to whether the sites are contaminated (which I have done and they no doubt are). There is then a need to be satisfied that contaminated land be remediated to the extent necessary to be suitable "for the purpose for which the development is proposed to be carried out". The particular proposals before me involve remediation but do not involve a proposed use of land for a purpose. More generally, I am satisfied that the intended remediation will make the sites suitable for at least some of the range of permissible uses in each of the SP3 Tourist and R2 Low Density Residential zones. Indeed that seems to be the reason behind the proposed remediation works. The requirements of s 4.6 are satisfied.
Under s 4.8 of SEPP Resilience and Hazards, "category 1" remediation work needs consent. Category 1 remediation work, relevantly, includes remediation work carried out in an area or zone to which classification to the effect of "coastal protection" applies under an environmental planning instrument (s 4.8(e)(i)). Council advises that a coastal protection "classification" applies to the sites (Tcpt, 19 September 2022, p 22(30) and Ex 3 par (24) Ex 4 par (23)).
Notably, s 4.10(1) then provides certain "must not refuse" provisions for category 1 remediation works, as follows: The consent authority must not refuse development consent for a category 1 remediation work unless the authority is satisfied that there would be a more significant risk of harm to human health or some other aspect of the environment from the carrying out of the work than there would be from the use of the land concerned (in the absence of the work) for any purpose for which it may lawfully be used.
Section 4.14 requires remediation work to be carried out in accordance with relevant guidelines: (1) All remediation work must, in addition to complying with any requirement under the Act or any other law, be carried out in accordance with - (a) the contaminated land planning guidelines, and (b) the guidelines (if any) in force under the Contaminated Land Management Act 1997, and (c) in the case of a category 1 remediation work - a plan of remediation, as approved by the consent authority, prepared in accordance with the contaminated land planning guidelines. …
Essentially, remediation work not meeting the category 1 definition would be defined as category 2. While category 2 remediation works needs to be undertaken in accordance with the relevant guidelines (s 4.14), consent is not needed (s 4.11).
The guidelines arising in evidence included:

Managing Land Contamination Planning Guidelines SEPP 55-Remediation of Land, NSW EPA, 1998 (Contamination Planning Guidelines)
Contaminated Sites - Guidelines for the Assessment and Management of Groundwater Contamination, Department of Environment and Conservation NSW, 2007 (Groundwater Contamination Guidelines)
Guidelines for the NSW Site Auditor Scheme 3rd Edition, NSW EPA, 2017 (Site Auditor Guidelines).

[25]

Site auditor input

The experts describe the site auditor setting as follows (eg Ex 7 p 4): "Mr Chris Jewell has been appointed as the Site Auditor accredited by the NSW EPA under the Contaminated Land Management Act 1997. Mr Chris Jewell has been appointed in that role with the land at Lots 429 DP809614 and Lot 501 DP809609, Kruger Avenue, Windang NSW (the Land) for some 20 years ..."
The statutory position in regard to site auditors warrants attention. It is Part 4 of the CLM Act which provides for the accreditation of site auditors by NSW Environment Protection Authority (EPA) and provides that site audits be undertaken in accordance with EPA guidelines. The Site Auditor Guidelines (see [73]) includes the following commentary (p 2): "The services of a site auditor can be used by anyone who needs an independent and authoritative review of information relating to possible or actual contamination of a site. The review may involve independent expert technical advice or 'sign-off' of contaminated site assessment, remediation or validation work conducted by a contaminated site consultant."
Mr Jewell (henceforth: the site auditor) issued a Site Audit Statement dated 16 July 2004 which formed the basis of Contention B.1.5A Particular D in the proceedings (Ex 3 and 4). The relevant particulars of the statement are reproduced as follows: "i) the Site is not suitable for any beneficial use due to risk of harm from contamination (page 2); ii) even with a "cap and contain solution that met all EPA management requirements" to support "a more constrained type of development, where it would be possible to control future land use through compulsory management policies" ... "A detailed analysis of the exposure pathways and consequent human health and environmental risks associated with any specific development would still be required" (page 2). iii) the substantial exceedances of currently endorsed (as at 2004) criteria for heavy metals in groundwater beneath the Site indicates that a notification to the EPA under s.60 of the Act would be appropriate (page 3)."
The applicant notes that this site audit statement also included the following (AOS par (37)): "I consider that it would be possible to make the site suitable for a more constrained type of development such as strata title townhouses or villas with paved courtyards, or managed residential and commercial developments such as aged care, conference or resort facilities, where it would be possible to control future land use through compulsory management policies. A cap-and-contain solution that met all EPA management requirements would need to be prepared. A detailed analysis of the exposure pathways and consequent human health and environmental risks associated with any specific development would still be required."
Subsequently, in a series of letters dated between 21 June 2019 and 6 September 2022, the site auditor provided "interim advice" to parties who I understand were concerned with remediation of the sites with a view to future use. The letters of interim advice were provided at Appendices C-J in Ex 5 and Ex 7. These interim advice letters considered certain nominated data collection (in relation to previous primary site investigations), new primary site investigations and proposed remedial actions as proposed on behalf of those parties. I think it is fair to say these iterative processes were elements in a path that led to the RAPs and EMPs as ultimately proposed with the application before the Court (I note here that the 2019 date on the first page of the two most recent letters of advice was in error; but was correctly indicated as 6 September 2022 in the footer pages). The site auditor's interim advice letters of 6 September 2022 (Appendices I and J) essentially indicated a finding that the proposed RAPs were "adequate and appropriate" and "consistent with the approach I have recommended previously" (p 3). The 6 September 2022 advice (p 3 et seq) also found the EMPs "adequately (complied) with most of the requirements of relevant guidelines", nominating a set of recommended amendments, which I understand have generally been accommodated in the EMP before the Court.

[26]

Detailed site investigations (DSIs)

Douglas Partners prepared DSIs for each site dated June 2018 (Ex C Tab 14, Ex F Tab 14) relying on historical studies along with selective new soil and groundwater sampling (25 test pits and three boreholes were located to establish groundwater flow direction) (p 2 and 19 of both DSIs). It established site wide filling up to 3.2m below then ground level. Laboratory results for the copper slag filling samples evidenced numerous exceedances of "Health Investigation Levels" and "Ecological Investigation Levels" for arsenic, chromium, copper, lead, nickel and zinc (p 17). Signs of suspected groundwater interaction was observed at depths between 2.4m and 3.4m below ground level. The groundwater levels indicated a westward flow (p 17) (ie towards Lake Illawarra). It was found that laboratory results for groundwater indicated exceedances of "Groundwater Investigation Levels" (GIL) for arsenic, copper, nickel and zinc, in some cases considerable exceedances (p 18).
In his oral evidence Mr Douglass indicated it was the RAPs that consolidated the detailed historical investigatory material of relevance. He opined the investigatory picture was clear (Tcpt, 20 September 2022, p 17(7): "…Now my opinion was, and what we have done is consolidated that information within the RAP itself, which provides enough information to fully understand the lateral and vertical extent of the contamination. We know that the copper slag wastage extends to the site boundary, it's present on the majority of the site surface, and it extends well beyond the site to the south, all the way to Boundary Road, and goes all the way to the north to the northern boundary of the golf driving range which abuts the radio tower site. So it's a large copper slag waste and placement area."
In regard to current contaminant concentrations, Mr Douglass summarises as follows (Ex 7 p 12): "…contaminants of concern within the Copper Slag Waste fill (primarily the arsenic, cadmium, chromium, copper, lead, nickel and zinc) significantly exceed the NSW EPA endorsed land use guidelines, which pose an unacceptable risk to both human health and the environment for the site's zoning. Therefore, in accordance with Section 3.5.3 of the Managing Land Contamination Planning Guideline 1998, the risk has been assessed by comparing the levels of onsite contamination with appropriate predetermined thresholds such as the soil investigation levels specified in the NSW EPA's guidelines."
The site investigations are also argued by Mr Douglass to (ibid): "…clearly establish that the contaminated Copper Slag Waste extends laterally to the site boundaries (and beyond), exists at the site surface at multiple areas across the site, and extends to typically 2.5 to 3.8m below ground level (but locally deeper where depressions/excavation voids in the original surface were filled)."
Mr Douglass also drew attention to a 1992 study by the Illawarra Public Health Unit: Windang Beach Garden Estate Survey and Investigation Into the Possible Health Effects Of Industrial Slag Used As Residential Landfill (Illawarra Public Health Unit, July 1992) (Ex H Tab 5), which included a survey of 50 occupied houses in the residential area to the immediate south of the sites. Mr Douglass quotes survey findings which might be suggestive of windblown slag from the sites bringing health concerns including in relation to lead ingestion by children (Ex F Tab 2 p 6). It is important to note that the 1992 Illawarra Public Health Unit study did not find mean blood lead levels in the 15 tested children (living on the estate) were above (then) recommended levels (Ex H Tab 5 p 5). However, I also note that the issue of windblown slag from the sites onto the residential properties to the south arose in objector submissions and was able to be observed, by the Court, to some extent during the site inspection itself.
Management of groundwater was recommended in the DSI, but not in the RAP, which I will come back to.
A final point to note in regard to site investigations is that the slag waste has previously been subject to capping under development consent conditions (see Reditus Remediation Advice 12 July 2022 Ex F Tab 2 p 4 et seq). Mr Douglass indicates that it is clear this earlier capping has been ineffective in preventing exposure of contaminants from the site upon receptors. Mr Batshon was of the view that there was insufficient information to understand the effectiveness of existing capping.

[27]

Remediation Action Plans (RAPs)

The RAPs document a Conceptual Site Model (CSM) which adopts an uncontroversial "source-pathway-receptor" approach.

The contaminant sources, in particular copper, zinc, lead and cadmium, are found in the existing copper slag on the sites.
Exposure pathways to contaminants in soil and groundwater are outlined in the RAPs (eg Ex D Tab 4 p 23) and include direct contact and ingestion through inhalation including as dust, surface water runoff, accumulation into home grown vegetables, fruit etc, leaching into groundwater and associated lateral migration into watercourses, direct contact and ingestion of terrestrial ecology.
Potential receptors are nominated as site workers, adjacent users, groundwater, surface water, terrestrial ecology.

For the applicant, the proposed "cap and contain" strategy is preferred over other remediation options (eg Council's proposed compensatory excavation and offsite remediation to offset filling in the floodplain), which are seen to be non-viable. The two principal remediation spatial containment scenarios outlined in the RAPs are nominated as: (1) the "seeded grassed area", occupying most of the land area of the sites, and (2) the "planting area", suggested to occupy less than 10% of the sites. I note that the plans finally before the Court indicate that these planting areas go considerably beyond the site periphery and include a central corridor area, generally separating Lots 501 and 429 and two potential future communal open space areas. For the record I also note that a key purpose of the planting areas along the interface between the sites and the residential areas to the south is to provide for visual privacy. Another key purpose of this strip of land is to provide for site drainage.
The capping configuration for these two scenarios are represented in Figure 2 and Figure 3. The profile for the "seeded grassed areas" (above the existing generally copper slag fill base) would be as follows: marker layer, 0.5m compacted clay, 0.1m of aggregate/hardstand and 0.15m of topsoil within which grass would be seeded. The profile above the copper slag of the planting areas, would be a marker layer then 0.7m of growing medium, within which plants would be placed. Figure 2 - Proposed cap design - seeded grass area Figure 3 - Proposed cap - planting areas
A notable difference between the two areas is that the Figure 3 planting areas do not have the 0.5m clay layer as a kind of infiltration barrier, and instead have a 0.7m depth of "growing medium" above the base level, which would need to be open to water infiltration to promote required plant growth under proposed landscaping.

[29]

Remediation/ future development juxtaposition

Both in legal submissions and through reliance on expert evidence, Council argued that it was inappropriate to approve site remediation in general, and the proposed capping treatment in particular, without a clear understanding of future development parameters for the sites. The legal submissions of Mr Astill included that the applications were "tantamount (to) seeking approval for half a proposal" (Tcpt, 21 September 2022, p 63(30)) with identifiable practical problems, including that the relevant guidelines were "predicated on different uses" and the guidelines directed remediation differently "having regard to the proposed use" (Tcpt 19 September 2022 p 22(40-42)). Mr Batshon had a practical concern that the integrity of the cap would be lost when anticipated future development required its own excavation works (into the cap) for various items of infrastructure.
The applicant argued that it has the legal right to make a development application for "the carrying out of works" (distinguished from, for example, the use of land or erection of a building mindful of s 1.5(d) of EPA Act), and the provisions of both SEPP Resilience and Hazards (eg s 4.7) and the Managing Land Contamination Planning Guidelines (Contamination Guidelines) (eg Section 4.4), make provisions for remediation, distinct from land use. It was also argued that earthworks, more generally, were permissible with consent under cl 7.6 of WLEP.
I generally agree with the applicant's submissions here and can deal with this matter briefly. In regard to the legal questions raised by Council on this point, as I have outlined earlier, it seems clear to me that the proposed works are development which is permissible on the sites both as earthworks (permissible under cl 7.6 of WLEP) and as remediation (permissible under s 4.7 of SEPP Resilience and Hazards). It is also clear that the EPA Act (s 4.12(1)) permits a person to apply for consent to carry out development, and without any requirement that any other type of development need be included in an application. For what it may be worth, it seems to me that the relevant guidelines do take into account settings where remediation is proposed without affirmation of a future land use, as argued by the applicant.
In regard to the merits, I believe it can be expected that any excavation works related to development of the site for a future use, should this occur, would need to prove up its technical efficacy in managing the pre-existing remediation approach. That is to say, conditions of consent for a future development, would be reasonably expected to require assurances on the continued integrity of the then current remediation approach or impose a revised strategy which was effective.

[30]

Characterisation of the proposed developments and whether s 4.10 of SEPP Resilience and Hazards applies

Section 4.10 of SEPP Resilience and Hazards provides a conditional, "must not refuse" provision for proposed category 1 remediation works (see [70] and explained more fully in my detailed consideration below). When I turned to this provision in judgment preparation after originally reserving my decision, it did not seem to me that I had been properly availed of the position of the parties with respect to it. In turn, I re-opened proceedings to hear further submissions from the parties with respect to the application of s 4.10 on 20 October 2022. My analysis below includes consideration of related submissions both during the course of the main hearing period and during this brief re-opening. I note that while Mr Astill appeared as counsel for the Council during what I might term the hearing proper (19-21 September 2022), it was Mr Reilly who appeared on 20 October 2022.
While it was quite clear that Mr Astill did describe the proposal as category 1 remediation work (Tcpt, 19 September 2022, p 22(30)), Mr Reilly brought a different view to the 20 October 2022 appearance. Mr Reilly drew attention to the development application forms themselves included in the Class 1 applications for each proposal filed on 20 December 2021. In response to the DA form query: "proposed type of development"; each nominate "Earthworks / change of levels". In response to the DA form query: "description of development"; each nominate, relevantly, "Earthworks involving emplacement of fill over the site …" (Ex A Tab 1 and Ex E Tab 1). Mr Reilly also noted that the proposals were described as earthworks, rather than remediation, in Council's Statements of Facts and Contentions (SOFAC) and that "the SOFAC was never debated on that point" (Tcpt, 20 October 2022, p 2(10)). Mr Reilly argued the "purpose" of the proposal was earthworks related to preparation of the sites for future development.
Having regard to s 4.10 of SEPP Resilience and Hazards, Mr Reilly also raised concern about what other elements can be reasonably seen to travel with suggested class 1 remediation works. That is to say, where should a line be drawn. In this case the suggestion from Mr Batshon is that remediation could be effected on the sites by a 300mm cap with grass above. I understood Mr Reilly's point to be that the proposal (750mm cap with grass above) goes considerably beyond what Mr Batshon sees as necessary for remediation. It therefore involves works beyond remediation and thus can reasonably be described as earthworks towards the preparation of the sites for future development. Mr Reilly also questioned the relevance of s 4.10(1) of SEPP Resilience and Hazards, noting the comparative reference to "the use of land concerned … for any purpose for which it may lawfully be used", when no land use was lawful on the sites at present, given their contaminated state.
First I would mention, it seems to me the different positions argued by Council, in regard to the question of whether the proposal constituted category 1 remediation, need to be considered at face value. That is to say, it is not of particular concern that different positions were argued in the course of the proceedings. It is for the Court to form its own view in regard to the question, having regard to different submissions as put.
Mr To argued it was clear the proposals for each site constituted remediation, as defined in s 4.3(a) and (b) of SEPP Resilience and Hazards, and that submissions from Mr Astill, that category 1 remediation was proposed, were made out appropriately. He argued that the submissions of Mr Reilly in regard to development "purpose" were misplaced. Mr To believed that the question of purpose, in statutory interpretation of this kind, was related to land use and questions of permissibility in land use tables, rather than the kind of remediation works or earthworks proposed here, which do not engage the land use tables. The reference in s 4.10(1) of SEPP Resilience and Hazards to "…the use of land concerned … for any purpose for which it may lawfully be used", was related to land use tables (my emphasis), and thus permissibility. Generally, Mr To referred to s 4.10 of SEPP Resilience and Hazards as being well aligned with policy statements in the contaminated land planning guidelines (see below), which affirmed "State recognition that remediation of itself is a desirable goal" (Tcpt, 20 October 2022, p 2(48)).
Set in context with the consideration of other provisions of SEPP Resilience and Hazards, my conclusions in regard to s 4.10 of SEPP Resilience and Hazards are at [162]. Briefly here. I note that I believe its facultative provisions are triggered.

[37]

RAP content

For my purposes here, I accept the RAP advice (p 13) that only very minor impacts of lead and cadmium were identified in on-site wells with no off-site impacts. This corresponds with the DSI (Section 10.2). The RAP directs attention, in regard to heavy metal groundwater concentrations, to zinc and copper alone. I was uncertain how this related to the findings in the DSI, in relation to arsenic and nickel, from the three new boreholes it investigated (BH 102, 104 and 106), as follows (DSI Section 10.2): "Numerous exceedances of the GIL were recorded for the remaining metals (arsenic, copper, nickel and zinc, and are summarised as follows: - arsenic in (BH) 102 and its replicated BD1 with concentrations of 290 µg/L and 300 µg/L compared to the GIL of 13 µg/L - copper in 102 and 106 with concentrations of 3 µg/L and 3 µg/L respectively compared to the GIL of 1.3 µg/L - nickel in 106 with a concentration of 57 µg/L compared to the GI L of 7 µg/L - zinc in each location with concentrations ranging between 62 µg/L and 890 µg/L compared to the GIL of 15 µg/L."
In any event, Mr Douglass, reasonably it seemed to me, used zinc levels as an indicator of heavy metal groundwater contamination risk in his evidence a number of times. Henceforth, I will rely on the analysis of zinc as the critical indicator for groundwater ecological risk.
In the RAP, it is indicated that: "… local background water is determined in Coffey Environments (1994) from wells BH1, BH8 (upgradient) and wells BH3-BH7 and BH 10 downgradient. data from eight boreholes (BH) were used to determine background groundwater concentrations."
The RAP's Figure 3 shows the "upgradient" boreholes east of the copper slag emplacement. Each of the downgradient boreholes were located on the western side of Windang Road, except for BH 3 which was central to the existing residential estate south of the site, itself built upon copper slag.
The RAP goes on to indicate: "The zinc and copper concentrations in the background wells are summarised below, including analysis of the standard deviation and 95% upper confidence level of the mean, which provides a statistically robust estimate of the maximum likely average (ie representative) concentration. This is particularly useful when assessing site impacts. Calculation of the 95% UCL was conducted using US EPA ProUCL 5.0. The output is attached in Appendix B."
I reproduce the documented zinc concentrations and documented calculation outputs (standard deviation and "95% UCL"), as shown in Table 6, below. Table 1-Statistical findings for zinc background groundwater concentration (Source Table 6 RAP) Location Zinc Concentration (mg/L) BH1 0.02 BH3 0.08 BH4 0.01 BH5 0.1 BH6 0.05 BH7 0.02 BH8 0.17 BH10 0.05 Minimum 0.01 Maximum 0.17 Standard deviation 0.05 95% UCL 0.1

[39]

Analysis and criticism of the use of statistical data in Table 6 of the RAP.

I will open by briefly noting that it remains unclear to me why borehole studies going so far back in time were relied upon. While I do not set aside the need for more current studies again, as Mr Batshon suggested to be necessary, it is odd to me that the borehole investigations included in the 2018 DSI were not used even for proof-testing purposes, mindful of Mr Batshon's suggestion on the need for "a sampling analysis and quality plan" is pertinent here (Tcpt, 20 September 2022, p 15(36)).
But my main criticisms are in regard to the way statistical methods, including the calculation of statistical confidence intervals from this historical data, are applied to find that zinc concentrations are consistent with background levels. This RAP position seems to be relied upon by Mr Douglass in his evidence, including his advice to the Court indicated at [116], that the site's groundwater is not impacting Lake Illawarra from an ecological perspective.
An overview of the RAP's approach to the use of means, standard deviation and statistical confidence intervals based on the data in its Table 6 (and Mr Douglass' reference to it in his evidence) drew out a number of concerns to me. It can be seen by the lay person that six of the eight borehole readings in Table 6 are below the adopted, what I will call, benchmark. The benchmark is variously indicated as 0.1 mg/L and 0.10 mg/L (when a significant figure was added in the RAP text after Table 6), readings up to which are argued in the RAP to be "regarded as consistent with background levels".
Not always with great pleasure, I have had to become familiar with basic statistical analysis (including statistical means, standard deviations and confidence intervals) in my previous work life including as a higher degree researcher (doctorate level). It would be remiss for me not to call on this knowledge given my function in the Court as a Commissioner in possession of it (here I note s 12 Land and Environment Court Act 1979).
The first concern is in regard to the RAP's finding that 0.1 mg/L (or 0.10 mg/L) and termed the "95% UCL" provides a useful benchmark for the purposes of assessing "consistency with (zinc) background levels". The RAP suggests an intention to use statistical confidence intervals to demonstrate a "representative concentration" and something "robust" and seen to be "particularly useful when assessing impacts" (see [125]). The logic seems to be that if sample zinc concentrations are at, or below, this benchmark they are within the true background level.
There is little mystery to some of these statistical calculations if a normal distribution is assumed. The concern here is the interpretation of what to do with the statistical findings. Applying MS Excel to the mg/L data in Table 6 to the RAP reveals a mean of 0.0625 mg/L and 95% confidence level of 0.0446 mg/L. The 95% confidence interval is the range between two numbers: the upper range is the 95% confidence level added to the mean, the lower range is the 95% confidence level subtracted from the mean. In this instance, when the 95% confidence level is added to the mean, the figure of 0.107 mg/L results. If 0.107 is rounded to one decimal point it equals 0.1, consistent with the figure indicated in the RAP as the 95% UCL (two decimal places would be 0.11 mg/L). When the confidence level is subtracted from the mean, a figure of 0.0179 mg/L results. If one were to adopt the data in Table 6 of the RAP and a normal distribution is assumed, statistics would tell us there is 95% confidence that the true background level lies between 0.107mg/L and 0.018 mg/L (to three decimal places). It is not reasonable, and certainly not "robust", to assume 0.1 (or 1.107) mg/L as the benchmark for background zinc concentration, if the goal is to demonstrate the site's groundwater is not impacting Lake Illawarra. This figure lies at the outer reaches of a range of 95% confidence, or probability, of the true background level. It would be equally valid, statistically, to adopt the 0.018 mg/L figure as a yardstick for true background levels.
My second concern with the approach adopted in the RAP, as relied upon by Mr Douglass in his evidence, is in regard to the use of the statistical standard deviation of the data at Table 6 in the RAP (correctly indicated as 0.05 mg/L (RAP p 14)). It is suggested that a zinc concentration of 0.19 mg/L at W5 (as a suggested downgradient borehole location) as shown in Table 7 in the RAP (although referenced as BH5 at p 15 of the RAP) is "consistent with background … although … at the statistical upper range". The reasoning seems to be based on previous commentary in regard to BH8 zinc concentrations (0.17 mg/L) which was argued to be (RAP p 14): " …consistent with a mean zinc concentration of 0.10 mg/L and the standard deviation of 0.05 mg/L giving an upper bound of 0.15 mg/L for reasonable isolated background impacts within one standard deviation of the mean".
This train of reasoning is flawed on many fronts. Even if it were the case that falling within one standard deviation of the mean were an appropriate test (it is not explained why it should be in the RAP - and were I to need to, I would explain why it is not in this instance), the mean of the data at Table 6 of the RAP is 0.0625 mg/L (ie completely different from what seems to be the argued figure of 0.10 mg/L (correctly understood as close to the 95% UCL)). While the sample size is small here (as indicated in Appendix B to the RAP - 20 or 30 sample size is preferred) the mean of the sample does have some value for analytical purposes (although BH8 and 0.17 mg/L may be an outlier). It is important to note that the mean from Table 6 (0.0625 mg/L) is lower than zinc concentration levels measured at both the downgradient sites WS4 and WS5).
In short, the position argued in Section 3.4 of the RAPs (which formed the basis for other decisions within the RAPs) and relied upon by Mr Douglass in oral and written evidence that zinc concentration in groundwater from the sites had not reached Lake Illawarra above background levels is not accepted. If anything, based on the Table 6 data relied upon by the RAPs and the Table 7 data with respect to boreholes WS4 and WS5 (ie the identified downgradient boreholes as indicated in the RAPs), it is clear that zinc concentration in groundwater from the sites considerably exceeds the mean of the sample background levels. There are limits in the Table 6 groundwater data sample which constrain its use for statistical purposes, but it is relied upon by the applicant.
The sample limitations also do not excuse the errors in the presented statistical analysis, the findings of which are heavily relied upon in the RAP (eg in the "Decision Rule" at Section 4.5.4, Rows 3 and 4). I was also unable to locate any direct explanation of why data from the DSI groundwater boreholes did not form part of the RAP. Were this associated with the point made in the RAP with respect to "low flow methods" (RAP p 13), that is, as a point of conflict with the Douglas and Partner's DSI work, it should have been made clear and backed up with relevant independent evidence. But, in any event, the DSI is indicated as employing a "low flow micropurge kit" (p 17). I do note that from the three boreholes investigated in the DSI, lab results (Table J2 in the DSI) for zinc from two boreholes, show figures which would push up, somewhat only, the mean results of groundwater concentrations from the sample at Table 6 of the RAP. But one result (BH 106) shows a concentration of 0.89 mg/L, an unexplained outlier when compared to the sample at Table 6 of the RAP.
I would also note that it seems to me inappropriate to consider the groundwater contamination background levels in the work of the RAP to represent natural background groundwater quality (my emphasis). This is because of the considerable copper slag emplacements in the vicinity of the borehole sites used in the RAP's work. It is a point of relevance to the next stage of the evidence evaluation.

[40]

Concerns with applicant's position on relevance of identified groundwater ecological criteria

Mr Douglass had indicated initially in oral evidence that groundwater from the site met identified heavy metal concentration ecological criteria [116]. His position changed on that in the course of the examination of the witness, but Mr Douglass retained a view that this was not of concern because the Contamination Planning Guidelines did not require a site to meet identified ecological criteria. The circumstances need to be drawn out a little.
The documentation before the Court during the hearing in regard to groundwater and ecological criteria had some limitations. When the topic was under consideration, I did not have hardcopy documents of the Groundwater Contamination Guidelines (refer at [73]) or the document behind the relevant ecological criteria otherwise put to me.
Mr Douglass indicated that the figures in the column headed "NEPC (2013) Marine Waters" in Table 6 to the DSI was appropriately adopted as the "ecological protection guidelines" for heavy metals (Ex F Tab 14 p 15). I would not criticise his precision here in describing the originating source for what I will henceforth term the nominated ecological criteria for groundwater, but Mr Douglass referenced both "NEPM" and "ANZECC" as the relevant source (eg Tcpt, 20 September 2022, p 54(25) and Tcpt, 20 September 2022, p 25(42)). To complicate things a little further, the criteria at Table 6 to the DSI was in micrograms per litre, whereas the RAP data was in milligrams per litre. For my purposes here, I accept Mr Douglass' oral advice wherein he indicated a number of times that 0.015 milligrams per litre (mg/L) is the relevant ecological criterion for zinc concentration in groundwater (eg Tcpt, 20 September 2022, p 25(43) and Tcpt, 20 September 2022, p 54(46-47)).
In Court, the task was undertaken to compare the nominated ecological criterion for zinc concentration in groundwater with the data contained at Table 6 of the RAP. The nominated ecological criterion of 0.015 mg/L provides for a significantly lower zinc concentration than either the erroneously calculated background level of 0.1 (or 0.10) mg/L under the RAP, or the mean of the groundwater sample documented in Table 6 of the RAP at 0.0625 mg/L (see discussion at [134] et seq). Most notably the borehole data at the nominated downgradient points for measurement under the RAP, WS 4 (0.1 mg/L) and WS 5 (0.19 mg/L) would each considerably exceed the nominated ecological criterion of 0.015 mg/L (by 7x and 13x).
When it became clear that there was a considerable exceedance of the nominated ecological criterion for zinc concentrations in groundwater, Mr Douglass then referenced the Groundwater Contamination Guidelines. Mr Douglass indicated (Tcpt, 20 September 2022, p 55(34)): "... when you consider the New South Wales 2006 (sic) groundwater management guidelines, when you're looking to remediate the site or clean up groundwater, the appropriate guideline is to revert to what are the background conditions; that's the main objective."
Continuing at Tcpt, 20 September 2022, p 56(13), Mr Douglass stated: "So I guess what I'm referring to there is the New South Wales groundwater management guidelines; within them, there's a concept of clean up to the extent practicable. So when we're talking about, you know, a groundwater problem that extends beyond our site in isolation, that any resources and works required to achieve some level of groundwater remediation does not create a significant environmental improvement because the works done in isolation on its site would not significantly change the overall level of impact to the lake. Now that's a concept called clean up to the extent practicable, I can refer to the section."
While it was subject to considerable attention, it does not appear that the Groundwater Contamination Guidelines referred to by Mr Douglass and Mr Batshon repeatedly, referenced at [73], was tendered into evidence. I note that this guideline was a matter of open scrutiny during the hearing. At the conclusion of proceedings on 20 September 2022 (Tcpt, 20 September 2022, p 73(40)), Mr To indicated that either he or Mr Astill would provide to the Court both the "groundwater guidelines of 2007" and Illawarra Pubic Health Unit document referenced at [89]. Only the latter of these documents appear to have been tendered (apologies to both Counsel if I have mistaken the Groundwater Contamination Guidelines tender). In the circumstances it does not seem to me unreasonable to use my downloaded version of the document in this judgment. I directly indicated my intention to use the document and Mr Douglass referred me to Section 4 of the document as on-point (Mr Douglass fully and correctly referenced the Groundwater Contamination Guidelines as a 2007 publication at Tcpt, 20 September 2022, p 56(40)).
When I turn to the Groundwater Contamination Guidelines, I am not convinced that Mr Douglass' application of the "clean up to the extent practicable" concept (see [144]) captures the policy position as documented. Section 4 of the Groundwater Contamination Guidelines opens with the following consideration of objectives, nominating the clean up to the extent practical as the third preference: "Clean-up objectives for contaminated groundwater should be established in the following preferential order: 1 Clean up so natural background water quality is restored. 2 Clean up to protect the relevant environmental values of groundwater, and human and ecological health. 3 Clean up to the extent practicable."
Elsewhere in Section 4 it is acknowledged that achieving the first objective can be "technically difficult and extremely costly" and that interim clean up goals can be based on protecting "environmental values". Of some relevance is the commentary at section 4.3.1, under the heading "Demonstrating restoring environmental values is impracticable". I quote this section only partially below: "If a proponent considers that clean-up to restore the protection of environmental values is impracticable in the future, this must be clearly demonstrated to DEC. The evaluation of practicability should be documented against each factor listed below: -technical capability to achieve the clean-up -clean-up costs -the value of the groundwater resource -threats the contamination poses to human or ecological health. Proposed clean-up measures should correlate with the value of the groundwater resource and the severity of the contamination. Further, any proposal for the clean-up that argues impracticability must include an acknowledgement that the long-term objective is to restore the protection of all relevant environmental values, and ultimately achieve natural background quality. In such cases, ongoing management and monitoring of the groundwater may be required to ensure the protection of human and ecological health."
I don't recall the applicant demonstrating, or giving consideration generally, to whether clean-up to restore the protection of environmental values is impracticable in the future. Section 6 of the RAP considers "remediation options" without getting into useful particulars in regard to any of the four points above. It is argued that "groundwater contamination beneath the Windang Peninsula is a regional issue rather than a site-based issue" (Section 4.5.4 of the RAP). In his written evidence Mr Douglass also made reference to a 2017 "Honours Thesis" prepared by M Trajcevski titled "Heavy metal concentration and transport from existing copper slag emplacements along the Windang Peninsula, through the unconfined sandy aquifer to Lake Illawarra" (Ex 7 Appendix L, henceforth Trajcevski study). Mr Douglass cited a reference in the Trajcevski study that: "any zinc-rich plumes which may be present within the Windang aquifer are likely to have negligible effect on a lake of 75000 megalitres capacity".
The applicant fails to present cogent evidence that the sites should not attend to identified problems with heavy metal concentrations in groundwater. If I might paraphrase from supported commentary in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 at [515], all incremental heavy metals inflows to Lake Illawarra are important because together they influence the ultimate water quality of the lake. The fact that the sites together constitute 3.18ha (of what Mr Douglass indicates to be a 20ha total area of copper slag in the local setting (Ex 7 p 14, Ex 5 p 13) does not demonstrate the sites individually or together to be of irrelevant scale. Here I am more persuaded by Mr Batshon's description of "a concentrated heavy metal presence in a specific location with a localised detrimental effect" (Ex 7 p 20).
Mr Batshon indicated that other sites in the Windang area have had to "put in a permeable reactive barrier to deal with the groundwater contamination" (Tcpt, 20 September 2022, p 23(14)). Mr Douglass argued that the cap itself would "minimise and prevent the leaching of heavy metals into the groundwater" (Ex 7 p 34). However, it seems to me that the proposed capping only partially improves downgradient groundwater effects. Factors here include: the existing composition of groundwater below the cap and the fact that the compacted cap is not complete (ie rainwater and leachate flows as a consequence of planting areas required for other reasons).
It has not been demonstrated by the applicant that action more in accord with guidelines is not required. Certainly, and mindful of Section 4.3.1 of the Groundwater Contamination Guidelines, it seems on the evidence before me that a permeable reactive barrier is a practicable rather than impracticable requirement, and something which would bring the proposed remediation more in line with at least the middle preference of the Groundwater Contamination Guidelines (clean up to protect relevant environmental values). On this point, and while not seeing it as necessary, Mr Douglass agreed that there are methods which can assist in addressing higher levels of groundwater contaminants, and indicated the proposed capping "would not preclude the implementation of groundwater remediation technologies (such as permeable reactive barriers, in situ chemical fixation or hydraulic containment)" (Ex 7 p 34). Mr Douglass also gave an indication of what permeable reactive barriers would comprise in the site setting (Tcpt, 20 September 2022, p 25(45) et seq): "… there are other copper slag emplacement areas along the Windang Peninsula; this one in particular is the largest by far of about 20 hectares in total there's another two copper emplacement areas, one to the north of the golf course, and one near the lagoon just immediately adjacent to it and Mr Batshon alluded to yes, there's a permeable reactive barrier on the copper slag emplacement area which directly abuts the lagoon; presume that that is there because there is no buffer zone between the copper slag emplacement area and the ecological receptor itself, to it would have needed what we call a permeable reactive barrier, which simply put is basically a trench that's dug down into the groundwater, it only needs to be a couple of metres wide, and that trench is backfilled with a media that absorbs heavy metals, and essentially its groundwater moves through that barrier, the heavy metals are removed and stabilised within the barrier, so that clean or cleaner groundwater passes to the receptor. Putting this cap on the site does not prevent the installation of any such remedial technology, such as a permeable reactive barrier along the downgraded boundary. It wouldn't take up much room at all, and would not cause any significant disturbance to the cap; 99% of the cap would remain in place. …"
One other matter requires attention here. In written evidence both experts refer to the Trajcevski study. This work involved a study of the weathering of the copper slag in the environs of the sites. This question of weathering relates to the capacity for the copper slag's constituent heavy metals (including zinc and copper for example) to leach into the groundwater. The thesis findings on this front are that this copper slag weathering process does not seem to be causing an increase in zinc from copper slag in groundwater over time, and that most heavy metals in the groundwater decreased on average over time (Trajcevski study p iv). The work also undertook what an investigation of borehole data. Three pre-existing boreholes were investigated, including (nominated as BH2, BH9, BH12; none of which were included at Table 6 to the RAP) and two new boreholes were dug.
Each expert takes different things from the Trajcevski study. I place little weight at all on the groundwater work in this thesis. There are two main points to this. First, is that it seems to me the probative value of an undergraduate thesis, albeit at honours level, would reasonably be considered as uncertain at face value. In this case, the author was not subject to cross examination nor does any specific supportive material come to mind in the hearing in regard to the qualities of thesis. The thesis indicates the work was undertaken in a setting where Wollongong City Council was "interested" in the topic (p 1), but that does not take me anywhere in regard to the thesis qualities of itself. Second, is the fact that there has already been "multiple detailed site assessments or investigations been undertaken across the site going all the way back to 1990, and most recently the 2018 Douglas Partners detailed site investigation" (Mr Douglass at Tcpt, 20 September 2022, p 17(2)).
The development application material (DSI and RAP) should reasonably form the basis of the Court's evaluation in this instance. I note the DSI borehole investigations are dated 27 March 2018, that is, after the completion of the Trajcevski study. It seems odd that, without explanation that has resonated in any sense for me, the work in this thesis should be pressed by Mr Douglass and the DSI work not be, prepared by recognised specialists in the field and, one can reasonably assume, practitioners already relevantly qualified (rather than in the course of undertaking an undergraduate degree).

[44]

There are significant proposed remediation benefits in regard to surface and airborne contaminant pathways

I acknowledge Council's arguments that the proposals are at odds with the Contamination Planning Guidelines in regard to site contamination investigation processes. Procedurally, the DSI/RAP relationship as presented in these matters do not seem to align at all with Stages 2 and 3 as documented in Section 3.5 of the Land Contamination Guidelines. There is also the matter of the use of dated borehole records, seemingly over the more recent DSI. Mr Batshon's description of the value in a "sampling plan", "sampling analysis and a quality plan", all rang true; whereas the evidence of Mr Douglass on the site investigation data selection process was not coherent or comprehensive.
Nontheless, and with a mind to the comments of Mr To of the need to focus on substance over form, it seems to me unequivocal that the proposed clay capping system will significantly improve the current risk settings in relation to exposure pathways for surface and airborne contaminants. I accept the applicant's arguments that there are health risks with the current setting. Of itself, this capping of existing areas of exposed copper slag reduces hazard arising from the contamination of the sites, which means the proposals qualify as "remediation" under SEPP Resilience and Hazards.
Given the location of the site's within an area with a coastal protection classification, the proposal is defined as category 1 remediation. Section 4.10(1) of SEPP Resilience and Hazards provides certain "must not refuse" provisions for category 1 remediation works (see [70]). My reading of the provision is that I would need to make a positive finding of satisfaction that there would be a more significant risk of harm to human health or some other aspect of the environment from the carrying out of the remediation work, than in its absence, to make a refusal decision. I cannot make such a finding.
Here I am also mindful of the comments from Mr Reilly querying the limits to s 4.10(1) of SEPP Resilience and Hazards. A concern here was on the capacity for other elements of a development application to travel with category 1 remediation's facultative provisions (see [103]). For what it may be worth, in this instance it would seem to me that the question of whether these development applications, having regard to them as land filling proposals in the floodplain, could be refused as such on merits, would at least warrant deeper scrutiny, if the Court were of that mind.

[46]

Further consent conditions needed to address groundwater contamination concerns

The applicant's expert's advice to the Court in regard to groundwater contamination was fundamentally flawed. There was an initial finding that the site's downgradient groundwater met both background and ecological criteria. It is clear to me that neither is true. If anything, the evidence would indicate that groundwater contamination levels, immediately downgradient of the site, remain considerably over the identified ecological criteria and background levels, for zinc at least. The obvious implication of this contaminated downgradient groundwater is adverse effect on Lake Illawarra aquatic ecology.
The experts have identified mechanisms to clean up this groundwater contamination beyond natural attenuation and the positive but limited benefits of the proposed capping. The applicant's contamination expert indicated that the construction of a permeable reactive barrier was readily able to occur. Indeed, it was suggested that this be retained as an option should the need for further groundwater attenuation be identified in the future. The evidence before me is that the requirement for the application of such a condition could not be seen to be tantamount to refusal.
On the evidence before me I find it to be reasonable that the construction of an appropriate groundwater contamination mitigation device, such as a permeable reactive barrier, be required by way of consent conditions. To be clear, my decision is based on the provision of a permeable reactive barrier along a suitable perimeter within the site, a technology referenced by both experts. The function of the barrier would be to absorb heavy metals or otherwise improve the downgradient groundwater contamination effects from the sites. But should the parties agree on a different but similarly beneficial remedial technology response that would also satisfy the Court.
I give directions below in relation to a process for the parties to return to the Court with an appropriate response to this finding. I note here I am not persuaded by the argument that the course I suggest is inappropriate because of the provisions of Section 4.3 of the Groundwater Contamination Guidelines. The "clean up to the extent practicable" provisions at Section 4.3 are the lowest in the preferential order of site clean-up under Section 4 of the Groundwater Contamination Guidelines. These works projects present as of relatively large scale, occurring on relatively large, contaminated sites, and the findings for groundwater contamination mitigation are in scale with evidence on continuing off-site heavy metal groundwater migration potential.

[47]

Comment in regard to interim advice from site auditor

At [79]-[83] above, I noted certain documented interim advice from the site auditor. The final interim advice from the site auditor of 6 September 2022 was directly supportive of the RAP, including Section 3 (Ex 7 App I p 1) within which significant errors in regard to statistical analysis of groundwater borehole readings occurred (see [129]-[138]). Mr Douglass, more than once, emphasised that weight was warranted to the site auditor's comments suggesting, as I understood it, that gravitas was well earned given the role of site auditors under the CLM Act and the Site Auditor Guidelines. I am aware of the obligations upon site auditors under Section 3.1 of the Site Auditor Guidelines. My comments in regard to the site auditor interim advices should be taken as an observation of relevance to the proceedings before me, rather than a criticism of the site auditor.
The site auditor's attention in these interim advices seemed to be essentially directed towards questions around the suitability of the land for future use. I agree, generally, with the position indicated by the site auditor in regard to a potential pathway to validation of the sites' as suitable for the possible future uses as nominated. Procedurally, I did not agree with Mr Batshon's concerns that such advice from a site auditor was prejudicial on the ultimate site audit function. The site auditor preliminary advice process seems to be concerned with developing a disciplined and stepped line-of-site towards this ultimate function over a period of time. However, that is not to say that I accept the position indicated in this advice from the site auditor, in toto.
At least in the last two interim advice letters (dated 20 July 2022 and 6 September 2022, Ex 7 App H and I), there does not seem to be engagement with off-site heavy metal groundwater migration potential at all, that is to say one way or the other. I would observe this as surprising given significant heavy metal groundwater contamination was identified in the DSI (Ex F Tab 14 Section 10.2), documentation which was reviewed by the site auditor (Ex 7 App G). Here I am mindful of Section 3.3 (n) of the Site Auditor Guidelines, which indicates that for site audit reports, among many other things, consideration is required to: "any evidence of, or potential for, migration of contaminants from the site including odour, air quality, stormwater, sedimentation, soil vapour, ground gases and groundwater issues - where the auditor considers that off-site migration is not a potential issue, the auditor must say this and give reasons for this conclusion"
I note the interim nature of the advice received. The advices are certainly not site audit reports or statements. But given the circumstances of this case (including Lake Illawarra proximity and aquatic ecology so obvious an issue), I am not persuaded (in a sense by exclusion) that the interim advices of the site auditor in regard to the RAP should affect my findings on groundwater questions.

[53]

Resolution of appeals

Mindful of both ss 4.10 and 4.14 of SEPP Resilience and Hazards, I have determined that development consent should be granted to each of the applications before me, subject to conditions. I have found that one of the conditional requirements of the grant of consent is the provision of a suitable permeable reactive barrier (and/or other suitable remedial technology were it to be agreed by the parties) to absorb heavy metals or otherwise improve the downgradient groundwater contamination effects from the sites. Other conditions of consent are resolved, including by way of my findings above.
The resolution of the particulars of conditions relating to groundwater remediation is best achieved, in the first instance, through dialogue between the parties, and then, relevant experts. Contamination experts would have a central role of course, but there may also be an important function for stormwater management experts, and very likely others. There would seem to be a need for amendments to the RAPs. It is not clear to me yet whether there is a need for a revision of plans. I also note the potential for deferred commencement conditions (noting the fact of the existing deferred commencement conditions in relation to stormwater drainage analysis). I will rely on the parties to advise me, through submissions or further expert evidence, on procedural matters they see as important.
I will direct that the parties confer and, if possible, agree on and provide to the Court conditions of consent that reflect my findings. If agreement is not possible, the parties should provide to the Court their competing versions of the conditions and I will decide on the conditions of consent that should be imposed. If there is a necessity for an appearance, the parties could make submissions in that regard. As soon as a position on the conditional requirement relating to groundwater remediation is clear to me, I will then uphold the appeal and grant development consent subject to the conditions.

Windang Kruger Resorts Pty Ltd ATF Windang Kruger Resorts Unit Trust v Wollongong City Council

At a glance

Court

Decision date

Before

Source

Judgment (55 paragraphs)

Parties

Cases Cited (2)

Cited By (1)