Peare v Hawkesbury City Council [2001] NSWLEC 180

Land and Environment Court of New South Wales

CITATION : Peare v Hawkesbury City Council [2001] NSWLEC 180 APPLICANT Peare PARTIES : RESPONDENT Hawkesbury City Council FILE NUMBER(S) : 11118 of 2000 CORAM: Cowdroy J KEY ISSUES: Development Application :- development application for the use of land as proposed tyre landfill LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97(1) Land and Environment Court Act 1979 s 17(d) CASES CITED: Schaffer Corporation v Hawkesbury City Council [1992] 77 LGRA 21 DATES OF HEARING: 12/6/01, 13/6/01, 14/6/01, 15/6/01, 18/6/01 DATE OF JUDGMENT: 09/04/2001

APPLICANT Mr C McEwen (Barrister)

SOLICITORS Robilliard & Robilliard LEGAL REPRESENTATIVES: RESPONDENT Mr J Cole (Solicitor)

SOLICITORS Abbott Tout

JUDGMENT: Appeal No:11118 of 2000

22

In the Land and Heard by: Cowdroy J with Commissioner Bly Environment Court Decision date: 4 September 2001 of New South Wales

N E Peare Pty Limited Applicant v Hawkesbury City Council

Respondent

Judgment

1 This appeal has been heard with Commissioner Bly who has assisted in the preparation of the judgment. The appeal relates to a development application made to the Hawkesbury City Council ("the council") for a waste management facility involving a landfill for the burial of tyres and the subsequent reclamation of agricultural land ("the proposal"). The proposal relates to land being Part Portion 45 of lot 1 DP 123962 in Level Crossing Road, Vineyard ("the site"). Access to the site is across lot 2 DP 123962. The site and surrounding lands are flood prone and are mainly used for farming purposes. In accordance with a development consent issued in 1995 part of the land has already been used for tyre landfill and the proposal will enable a similar activity. 2 The proposal involves the burial of tyres which have had the side walls removed and the recyclable rubber buffed off. The burial will occur in cells which are to be progressively excavated over 4.31 ha. Up to 16 tonnes of tyres will be stored awaiting burial with an average of 8 tonnes being buried each day. Tyres would be delivered to the site by truck and an estimated average of one delivery per day is anticipated. 3 The method of disposal requires the use of excavated cells which are to be trenches 5 m deep, 6 m wide at the top and 3 m wide at the bottom with a 2 m gap between each trench. After filling the trenches with tyres they are covered with 2 m of excavated fill and topsoil resulting in a finished level approximately 1 m above the existing levels. The land may thereafter be used for agricultural purposes. 4 Suggested benefits include reduced salinity resulting from better subsurface drainage and reduced flood liability by enabling surface waters to dissipate more rapidly. 4 The activity is likely to extend over a period of some 15 years, disposing of up to 19,000 tonnes of tyres. Statutory provisions 5 The proposal is designated development pursuant to Part 1 of Schedule 3 of the Environmental Planning & Assessment Regulation 2000 ("the 2000 Regulation"), being classified as 'waste management facilities or works'. The application was accompanied by an environmental impact statement ("the EIS") as required for designated development by s 78A(8) of the Environmental Planning & Assessment Act 1979 ("the EP&A Act"). 6 The site is zoned Rural 1(b) under the Hawkesbury Local Environmental Plan 1989 ("the LEP"). In this zone, landfill is permissible with consent in accordance with the land use matrix in cl 9 of the LEP. 7 Clause 9 of the LEP provides that:- Before granting consent to development within a zone the Council must be of the opinion that carrying out the development is consistent with the relevant objectives of the zone in which the development is proposed to be carried out. 8 The objectives of the 1(b) zone are set out in cl 9A of the LEP as follows:- (a) to primarily provide for agricultural uses and animal establishments; (b) to ensure that development does not create unreasonable demands, in the present or in the future, for provision or extension of public amenities infrastructure; (c) to prevent the establishment of traffic generating development along main and arterial roads; and (d) to ensure that development maintains the rural character of the locality and to minimise disturbance to the landscape through clearing, earthworks and access roads. It was not suggested that objectives (b) or (c) are relevant. 10 Relevantly, cl 40B of the LEP provides that:- 40B (1) A person must not use land to which this plan applies for burying used motor vehicle tyres. (2) This clause does not prohibit a person from burying the remains of a motor vehicle tyre which has been shredded or otherwise treated in a manner satisfactory to the Council. 11 Also applicable is Sydney Regional Environmental Plan No. 20 – Hawkesbury Nepean River ("SREP 20") which appears to include part of the landfill site in the South Creek Catchment Area. The map attached to SREP 20 is of such a small scale that the definition of the catchment boundaries cannot be determined with certainty. However for the purpose of this application the Court accepts that at least part of the site would be included within the South Creek Catchment Area. 12 Clause 3 of SREP 20 aims to protect the environment of the Hawkesbury-Nepean River System by ensuring that the impacts of future land uses are considered in a regional context. 13 Clause 5 of SREP 20 contains the following general planning considerations:- (a) the aim of this plan, and (b) the strategies listed in the Action Plan of the Hawkesbury-Nepean Environmental Planning and Strategy, and (c) whether there are any feasible alternatives to the development or other proposal concerned, and (d) the relationship between the different impacts of the development or other proposal and the environment, and how those impacts will be addressed and monitored. 14 Clause 6 of SREP 20 contains a number of specific planning policies and recommended strategies which deal inter alia with environmentally sensitive areas; water quality; agriculture/aquaculture and fishing; recreation; and tourism. 15 The dictionary in SREP 20 defines environmentally sensitive areas as:- environmentally sensitive areas are areas where environmental characteristics mean that the potential impacts of landuse are greater than elsewhere in the catchment. Environmentally sensitive areas identified by the Hawkesbury-Nepean Environmental Strategy in the Hawkesbury-Nepean catchment are: the river; riparian land; escarpments and other scenic areas; conservation area sub-catchments; national parks and nature reserves; wetlands, other significant floral and faunal habitats and corridors; acid sulphate soils and potential acid sulphate soils. 16 The recommended strategies for environmentally sensitive areas as identified by cl 6(2) of the SREP 20 are:- Strategies: (a) Rehabilitate parts of the riverine corridor from which sand, gravel or soil are extracted so that attached aquatic plant beds are replaced and water quality and fauna habitats improved. (b) Minimise adverse impacts on water quality, aquatic habitats, riverine vegetation and bank stability. (c) Minimise direct and indirect adverse impacts on land reserved or dedicated under the National Parks and Wildlife Act 1974 or the Forestry Act 1916 and conservation area sub-catchments in order to protect water quality and biodiversity. (d) Protect wetlands (including upland wetlands) from future development and from the impacts of land use within their catchments. (e) Consider the need to include buffer zones (such as adequate fire radiation zones) for proposals on land adjacent to land reserved or dedicated under the National Parks and Wildlife Act 1974 or the Forestry Act 1916. (f) Consider the views of the Director-General of National Parks and Wildlife about proposals for land adjacent to land reserved or dedicated under the National Parks and Wildlife Act 1974. (g) Consideration should be given to the impact of the development concerned on the water table and the formation of acid sulphate soils. (h) New development in conservation area sub-catchments should be located in areas that are already cleared. 17 Clause 11(18) of SREP 20 provides that waste management facilities or works require development consent and that consultation with the Hawkesbury-Nepean Catchment Management Trust ("the Trust") is required in accordance with cl 9 of SREP 20. Such consultation has been carried out by the council. Clause 11(18) of SREP 20 identifies the following additional matters for consideration by a council authority:- (a) Any potential for groundwater contamination. (b) The adequacy of the proposed leachate management system and surface water controls. (c) The long-term stability of the final landform and the adequacy of the site management plan. (d) If extraction of material is involved in the creation or other development of the waste management site, whether the extractive operation will have an adverse impact on the river system. 18 Also applicable to the site is Hawkesbury Development Control Plan No. 4 – Landfill ("DCP 4"). 19 Clause 1.8 and appendix 1 of DCP 4 defines tyre landfill as:- the placement or layering of shredded rubber, nylon and similar motor vehicle tyres in excavated trenches with the excavated material being placed above trenches. The trenches are in turn backfilled with finished clean fill. 20 In cl 3.1.9 of DCP 4, the term 'shredded' means:- a motor vehicle tyre dissected into a minimum of three (3) parts. 20 DCP 4 also sets out the required information which should accompany an application to the consent authority for landfill. 21 A number of Performance Criteria are contained in cl 3.1.9 of DCP 4 which apply to shredded tyre landfill:- 1. The final land reclamation or finished contour surface levels (after backfilling of trenches) of shredded tyre landfill operations or works must be a satisfactory minimum height above the enclosed tyre particles to help assist in retention and compaction. 2. The top 300 mm of fill must be topsoil in order to ensure site revegetation. 3. The placement of shredded tyres in excavated trenches must not generally exceed the existing natural contour/ground level. 4. The minimum finished surface grade for tyre landfill developments must be 2% in order to allow satisfactory surface runoff and overcome potential ponding or waterlogging above finished trenches/cells. 5. The individual shredded tyre landfill trenches or cells should include a lateral drain to allow sub-surface drainage. 6. The provision of sedimentation traps and/or sedimentation detention basins will be required for shredded tyre landfill works in order to trap sediments associated with runoff from disturbed areas. 7. The development of a detention basin and/or associated diversion channels will be required to direct upstream runoff from disturbed areas. 8. The placement of a bund wall around the site may be required to help direct runoff from the disturbed excavation/landfill areas. 9. Containment and treatment of leachate must be monitored after completion of works by the owner for a period of 5 years after the completion of the works, with copies of all tests lodged with Council every 6 months. 10. The finished surface level will be subject to appropriate site regeneration/revegetation. The site regeneration works must include the spreading of topsoil and a combination of tubestock and seeding to help establish vegetation cover. The interim site revegetation program should include quick growing ground cover, particularly Japanese millet (in Spring/Summer) and Ryecorn (in Autumn/winter). 11. Shredded tyre landfilling operations will not generally be approved in medium or high bushfire zones due to the stockpiling of shredded tyres being an unacceptable high fire hazard in these zones. 22 Clause 1.3.8 of DCP 4 refers to cl 40B of the LEP and states inter alia:- The filling of land by the placement of shredded tyres shall generally be restricted to lands above the 1 in 100 year flood frequency level. However, in cases where flood liable lands are only subject to very low velocity back-up water flooding and where satisfactory provision has been made for shredded tyre retention measures, such filling will be considered by Council.