Botany Bay City Council v Remath Investments (No 6) Pty Ltd SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MEAGHER JA, STEIN JA and FITZGERALD AJA 16, 23 December 1998 [1998] NSWCA 43 Environmental Impact Statement — remediation development application and consent — construction application and consent — vibration — Regulations 51(4), 52 and 63 of the Environmental Planning and Assessment Regulation 1994 — s91AB of the Environmental Plamnning and Assessment Act 1979. Meagher JA. I agree with Fitzgerald AJA. Stein JA. I agree with Fitzgerald AJA. Fitzgerald AJA. Botany Bay City Council has appealed against orders made by the Land and Environment Court in two proceedings, numbered 10465 and 10466 of 1997, instituted in that Court by Remath Investments (No 6) Pty Ltd In the first proceeding, the Court granted a consent (the 'remediation consent') on Development Application No.97/0719 (the 'remediation development application') for the demolition of a building and remediation of contaminated land, subject tospecified conditions. In the second proceeding, the Court granted a consent (the 'construction consent') on Development Application No.97/0718 (the 'construction application') for the construction of a container terminal, warehouse and distribution centre, subject to specified conditions. The Council seeks to have the Land and Environment Court's orders set aside, and the proceedings remitted to that Court for redetermination in accordance with this Court's decision. The grounds of the Council's appeal, which is limited to questions of law,! are: Remediation consent ... 1. In respect of the Director General's requirements dated 3 April 1997 pursuant to clause 52 of the Environmental Planning and Assessment Regulations requiring the Respondent in completing the environmental impact statement (EIS) to specifically address in that EIS: Outline of remediation plan ... including reduction of commutative environmental impacts such as from noise, vibration and odours (including discussion of hours of operation and impact on adjacent school). His Honour erred: (a) in his construction of the combined effect of clause 52 of the regulations and the Director Generals" requirements; (b) in holding that the inference arising from the omission of the EIS to refer to or address this issue does not establish that the EIS was completed in breach of clause 52; (c) in not holding that the EIS was completed in breach of clause 52. 2. His Honour erred in finding that the EIS failed to comply with clause 52 of the regulations. 1. Land and Environment Court Act 1979, s57. 2 UNREPORTED JUDGMENTS 3. His Honour erred in imposing conditions 1-12 which render the consent and conditions invalid by reason of lack of finality and certainty. Consent for the construction of a container terminal, warehouse and distribution centre ... 4. His Honour erred: (a) in his construction of s 91AB, s 99(5) of the Environment Planning and Assessment Act in their application to the subject development application and consent; (b) in granting development consent to permit development in stages in circumstances in which by reason of the absence of conditions under s 91AB or which would control the timing of implementation of the consent, his Honour was not in a position to assess under s 90 the impact that subsequent stages of the development might have at the time of the implementation of those stages. The Remediation Consent Although the site to which the remediation consent relates is in an industrial area, it is close to a residential area and adjacent to a school. Because of the subterranean water table, the transmission of vibration in the area is unpredictable. The Council's substantive complaints are that the remediation application was not accompanied by a proper environmental impact statement ('EIS'), and that the material conditions to which the remediation consent was subjected by the Land and Environment Court impermissibly leave for future determination the question whether compaction of the site can be carried out without excessive vibration outside the site. The two matters are related. Although, as will be seen, the Land and Environment Court considered that ' ... the issue of vibration ... impacts ... can be satisfactorily resolved by conditions', the material conditions of the remediation consent indicate that the question whether compaction is possible without excessive vibration was not finally resolved. The conditions material to this issue are as follows: 1. Submission of a remediation Work Plan which shall set out — among other things — the staging of all works proposed both in time and in place. 2. No work of any kind to be undertaken on the site until the council receives evidence — certified by an appropriately qualified engineer — that dynamic compaction can be satisfactorily employed on the site to achieve the goal of the ground improvement works. In order to obtain that evidence, the applicant shall undertake a trial of dynamic compaction over an area not larger than 400 square metres at a location approved by council. Any earthworks required as a precursor for that trial may also be undertaken provided council's approval is obtained before commencement of any such earthworks. 3. Before any trial of dynamic compaction is undertaken, the applicant shall engage an appropriately qualified person or organisation to undertake a dilapidation survey of all buildings and structures within 100 metres of the perimeter of the area approved by council for that trial. 4. During any trial of dynamic compaction, the application shall meet all costs in employing an appropriately qualified consultant expert in noise and vibration to install the equipment necessary to monitor noise and vibration effects of all the works undertaken during the trial including dynamic compaction. The independent consultant when monitoring the noise and vibration effects is not limited to monitoring those effects within 100 metres of the perimeter of the area but shall monitor all structures and all other plant and equipment which the consultant believes may be sensitive to noise of vibration effects from the dynamic compaction. URJ Botany Bay City Council v Remath Investments (No 6) Pty Ltd (Fitzgerald AJA) 3 10. ll. 12. The person or organisation undertaking the trial of dynamic compaction shall place notices in a newspaper circulating in the City informing the public at large of the trial and giving a contact telephone number which anyone experiencing damage or discomfort as a consequence of the trial may bring. Upon receipt of any such message, the complaint shall be immediately investigated and if found to be justified then all work, which could reasonably be regarded as the course of the complaint, shall cease until the circumstances of thecomplaint have been satisfactorily resolved. A log of all complaints shall be kept. Such log will be available to council during working hours. At the termination of the dynamic compaction trial, the applicant shall engage the person or organisation which undertook the dilapidation survey to revisit and inspect all building and structures originally inspected and to prepare a report comparing pre and post trial conditions of those structures The application shall lodge a copy of that report with council and Johnson and Johnson. In the event that the trial proves dynamic compaction is satisfactory and acceptable to council and Johnson and Johnson, in the opinion of the consultant referred to in condition 4, the applicant shall engage an appropriately qualified person or organisation to undertake a dilapidation survey of all buildings and structures within 100 metres (or such other lesser or greater distance as council may specify in the light of the results of the trial) of the perimeter of all areas where dynamic compaction is proposed to be undertaken. No dynamic compaction of any other works associated with the remediation of the land, beyond the trial referred to above, shall be undertaken without council's prior consent which shall not be unreasonably withheld if it is satisfied that the evidence accumulated during, and from, the trial indicates that dynamic compaction is an acceptable means of effecting ground improvement of this site. In the event that the trial of dynamic compaction shows that method of ground improvement is not satisfactory or acceptable, subject to council's prior approval, a similar trial of ground improvment using impact rolling may be undertaken. It shall be conducted in a similar fashion to the trial of dynamic compaction and be subjected to compliance with conditions 2, 3, 4, 5 and 6 as if the words 'dynamic compaction' were replaced by the words 'impact rolling'. If the trial of impact rolling proves satisfactory and acceptable, the applicant may proceed with the proposed ground improvement works, observing conditions 7 and 8. In the event that neither method of ground improvement proves satisfactory or acceptable, the applicant shall not proceed with any further work on the site until the council has received and approved a further experts report followed by trial of recommended method observing conditions 7 and 8 for the remediation of the land. If at any time the vibration and noise from ground improvements exceed acceptable standards, as determined by an independent noise and vibration consultant, the application shall cease work. It is common ground that the remediation application was required to be accompanied by an EIS in the prescribed form.? By Regulation 51(4) and Schedule 2 of the Environmental Planning and Assessment Regulation 1994, the EIS was required to include a full description of the likely impact of the development on the environment which it was likely to affect and the measures proposed to mitigate any adverse affects. It was not disputed that that requirement included external vibration impacts. By 2. Environmental Planning and Assessment Act 1979, sub-s77(3)(d). UNREPORTED JUDGMENTS Regulation 52, the EIS was also required to * ... have regard to the Director's requirements as to the form and content ... * of the EIS. The Director required the EIS to contain an outline of a remediation plan which included ' ... reduction of commutative environmental impacts such as from ... vibration ... (including discussion of hours of operation and impact on adjacent school)'. In this Court, there was some discussion of what the Director meant by 'commutative', which seemed to be accepted as meaning 'transmitted off site'. Both in the Land and Environment Court and this Court, the different terminology of Regulations 51 and 52 provided a distraction. The obligations imposed by the two regulations are cumulative, not alternative, the same matter was relied on as constituting non-compliance with each regulation, and it was accepted that the consequence of non-compliance with each regulation is the same. In the circumstances, it is immaterial whether or not the EIS failed to comply with Regulation 52 as well as Regulation 51. In any event, in my opinion the EIS did not comply with Regulation 52 if it did not comply with Regulation 51. The nature of an obligation to 'have regard' to some other matter must be determined by reference to the subject matter and context. The present context involved an obligation to 'have regard' to the Director's 'requirements ... as to the ... contents' of the EIS. The relevant requirement by the Director was that the contents of the EIS include a plan dealing with the reduction of vibration impacts on the environment. The obligation to have regard to that requirement is tantamount to an obligation to include a plan for the reduction of vibration impacts in the EIS. Whether or not my view of the operation of Regulation 52 in the present circumstances is correct, the parties" competing submissions require this Court to decide whether Remath's EIS substantially complied? with what was required. Both the Council and Remath accepted substantial compliance provides the material test, which Remath submitted was satisfied when the EIS was considered in conjunction with a site management plan ('SMP') which was referred to in the remediation development application and the EIS. Remath pointed out that the SMP was lodged and exhibited with the remediation application and the EIS, provided to relevant statutory authorities, and available for public inspection. It was argued that, in these circumstances, the SMP is 'taken to form part of' the EIS by virtue of subregulation 63(1), a proposition which was not advanced in the Land and Environment Court, or raised in a notice of contention in this Court. Another point made by Remath was that, during the hearing in the Land and Environment Court, a change was made to the remediation application, in that 'the method of compacting the site was amended to include the option of a conventional roller rather than dynamic compaction or the use of an impact roller' (emphasis added). Reference was made by the Land and Environment Court to evidence given by the Council's expert witness to the effect 'that the use of a conventional roller would be acceptable in terms of ... vibration impact'. That evidence was referred to in the context of a discussion by the Court concerning the conditions which it intended to impose. In its reasons for judgment, the Court said: The proposed conditions of consent, apart from any deferred commencement conditions, will ensure that a proper account is taken of the ... vibration effects,not only in respect of those structures within 100 metres of the perimeter of the area being compacted, but all structures and all other plant and equipment which the independent consultant believes may be sensitive to ... vibration effects from dynamic compaction if that option is preferred. If the Court, with the benefit of a report and advice from the consultant, cannot be satisfied that the impacts of dynamic compaction can either be controlled or will have no adverse effect, then the applicant may only proceed with the development using an impact roller, unless of course, the same result inures from the investigation of the alternative method of ground improvement. If neither method is acceptable then the council, then it requires a fresh 3. Cf Helman v Byron Shire Council (1995) 87 LGERA 349 at 359. URJ Botany Bay City Council v Remath Investments (No 6) Pty Ltd (Fitzgerald AJA) 5 development application, involving, no doubt, a development which will differ in a material respect from the present proposal to cap the site after consolidating the contaminated material. The applicant does not accept that a fresh development application should be required if it proceeds to compact the renovated soil using a conventional roller. The Court agrees with the applicant that the various contingencies associated with the alternative methods can be accommodated by a set of carefully drafted conditions without necessarily requiring a fresh development application. The Court's conclusion is that the issue of vibration ... impacts from the consolidation of material to achieve final levels proposed can be satisfactorily resolved by the conditions. ... An alternative condition drafted by the applicant contemplates compliance with acceptable standards irrespective of what method is used. Those statements must, of course, be read in conjunction with the material conditions. Finally, Remath argued that compaction is merely preliminary or ancillary to the remediation of the site.4 Although this point was primarily advanced in connection with the Council's complaint with respect to the conditions to the remediation consent, it was also put forward as material to the question whether the EIS substantially complied with what Regulations 51 and 52 required. It is difficult to know what regulation 63 is intended to achieve, or indeed if it is within the power to make regulations under the Environmental Planning and Assessment Act. Taken literally, subcl63(1) is ridiculously wide, as is illustrated by the present case, in which the course followed cannot have been contemplated by the legislature. The remediation development application contained no details except references to the EIS and the SMP. The EIS was over 100 pages in length, and contained a list of 31 'References', including the SMP, various public documents, a '(1996) Remediation Workplan — Proposed Container Storage Site', a '(1995) Staged Environmental Property Assessment Vacant land adjacent to Botany Goods Railwayline', and other reports apparently related to the subject site. Further, the body of the EIS not only made passing reference (no more) to the SMP, but also referred to other documents or proposed documents, including a 'Site Quality Plan'. The SMP, which was over 50 pages in length, dealt with vibration by no more than an acknowledgment that ' ... vibration may be a problem for nearby buildings and will need to be investigated' and an assurance that * ... any remediation works will be undertaken in such a way as to minimise unnecessary ... vibration'. With particular diffidence because of the Land and Environment Court's special expertise, I disagree with its conclusions that the EIS substantially complied with what is required. The documentation was not suitable to direct a reasonably intelligent and informed mind to the possible vibration consequences of the proposed remediation works or to provide objectors and potential objectors with a real opportunity to make submissions on those impacts.° Further, if it matters, 1 am of opinion that compaction is not merely preliminary or ancillary but an essential step which is integral to the remediation of the site. The 'development' is the work needed for remediation,? which includes 4. See subs91(3A) of the Environmental Planning and Assessment Act and Scott v Wollongong City Council (1992) 75 LGRA 112, at 119. 5. Prineas v Foresrty Commission of NSW (1983) 49 LGRA 402 at p417. See also with respect to the necessary contents of an EIS, Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 30-31. 6. Helman, at pp358-359; Scurr v Brisbane City Council (1973) 133 CLR 242, at 255-258; Pioneer Concrete (Old) Pty Ltd v Brisbane City Council (1980) 145 CLR 458, at 518. 7. Environmental Planning and Assessment Act, s4 definition of "development", para (b). 6 UNREPORTED JUDGMENTS compaction, as is confirmed by the 'Project Description' in the EIS, which is referred to in the remediation development application under the heading "Description of Development'. The Council raised other points, including that the author of the SMP was not the author, or the person who certified the EIS. It is unnecessary to discuss such matters. In my opinion, the Council's objections to the EIS are well founded, and, in the circumstances, the Land and Environment Court erred in law in granting the remediation consent. That conclusion is sufficient to require that the Council's appeal be upheld, and I will accordingly refer only briefly to ground 3 of its notice of appeal. Conditions 1 to 12 of the remediation consent indicate that none of the possible methods of compacting, including the use of a conventional roller, will necessarily avoid the transmission of excess vibration from the site. Further, condition 12, which prohibits the remediation work if vibration exceeds 'acceptable standards ... determined by an independent ... vibration consultant', is incompatible with the permission to carry out the work which is provided for by the remediation consent. This internal contradiction suggests, as the Council submitted, that the remediationapplication has not been finally 'determined'.8 I am reinforced in this opinion by s 91AA, which permits a 'deferred commencement' consent subject to conditions to generally similar effect to conditions | to 12 of the remediation consent. Plainly, however, the requirements of s 91AA have not have been satisfied in this instance. CONSTRUCTION CONSENT The proposed work was described by reference to five stages, with the following statement added: It is anticipated that there would be a maximum of two years between the completion of Stage 1 and the commencement of Stage 2 with Stage 2 to be completed within a further 2 years. The Council submitted that the Land and Environment Court could not properly grant the construction consent because of the uncertainty concerning when the various stages would be constructed and the circumstances which might then exist. Remath sought to answer this objection by pointing out that, if the entire work is not completed within five years, it will be open to the Council to issue a notice requiring completion within such time (not being less than 12 months after service of the notice) as the Council considers reasonable, having regard to all relevant circumstances, including the nature of the development.? While the statement with respect to what Remath anticipated, which is set out above, would ordinarily be a relevant circumstance, it would by no means be conclusive, and it would be open to the Council to take into account any existing or expected change in circumstances at the time when it determined to serve such a notice. While this argument is superficially attractive, in my opinion it cannot withstand close scrutiny. It was the Land and Environment Court's resposibility to be reasonably satisfied that any consent which it granted would not permit future development which was contrary to environmental and planning 8. Environmental Planning and Assessment Act, subs91(1); Mison v Randwick Municipal Council (1991) 23 NSWLR 734 9. Environmental Planning and Assessment Act, subs99(5). URJ Botany Bay City Council v Remath Investments (No 6) Pty Ltd (Fitzgerald AJA) 7 considerations.!0 That was not possible because of the uncertainty associated with the proposed development which is the subject of the construction application. That being so, in my opinion the proper course was to require Remath to proceed under s 91AB of the Environmental Planning and Assessment 5 Act, which is specifically directed to such a proposal. I have accordingly concluded that neither consent was properly granted. The Council's appeal should be allowed with costs, the orders made by the Land and Environment Court should be set aside, and the proceedings should be remitted to the Land and Environment Court for redetermination in accordance 10 with the judgment of this Court. Orders accordingly. Counsel for the appellant: 7S Hale 15 Solicitors for the appellant: Houston Dearn O'Connor Counsel for the respondent: W R Davison SC: CWMcEwen Solicitors for the respondent: Aitken McLachlan and Thorpe 10. Cf Civil Land and Real Estate Ltd v Great Lakes Shire Council (1981) 46 LGRA 283, 290-291.