Reported Decision : (1999) 105 LGERA 190 Land and Environment Court of New South Wales CITATION: Bonfoal Pty Ltd v Botany Bay City Council [1999] NSWLEC 206 PARTIES APPLICANT Bonfoal Pty Ltd RESPONDENT Botany Bay City Council NUMBER: 10178 of 1999 CORAM: Pearlman J KEY ISSUES: Development :- designated development - concrete batching plant - validity and adequacy of environmental impact statement - noise - air quality - inconsistency with planning strategy - site contamination Environmental Planning and Assessment Act 1979 s 78A, s 91A LEGISLATION CITED: Environmental Planning and Assessment Regulation 1994 cl 55, sch 3 Botany Local Environmental Plan 1995 cl 29, sch 1 DATES OF HEARING: 06/28/1999; 06/29/1999; 06/30/1999; 07/01/1999; 07/02/1999 DATE OF JUDGMENT DELIVERY: 09/10/1999 APPLICANT Mr D Wilson (Barrister) SOLICITORS Smith Monti & Costa LEGAL REPRESENTATIVES: RESPONDENT Mr P Clay (Barrister) SOLICITORS Houston Dearn O'Connor JUDGMENT: Contents Section Paragraph Number Introduction 1 to 4 The site and the proposed development 5 to 11 The issues 12 to 13 Validity of the 2 nd EIS - compliance with the Regulation 14 to 46 Noise 47 to 52 Air Quality 53 to 58 Inadequacy of the 2 nd EIS - failure to address EIS Guidelines 59 to 63 Inconsistency with strategic planning issues 64 to 66 Draft amendment to Botany LEP (Amendment 21) 67 to 70 The City South Strategy ("the Strategy") 71 Botany LEP (Draft Amendment No 11 - Mascot Station Precinct ("Amendment 11") 72 to 73 Mascot Station Precinct Development Control Plan 1999 ("the DCP") 74 to 80 Site contamination 81 to 91 Orders 92 IN THE LAND AND 10178 of 1999 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 10 September 1999 BONFOAL PTY LTD Applicant v BOTANY BAY CITY COUNCIL Respondent JUDGMENT Introduction 1. This appeal concerns a concrete batching plant proposed to be developed at Mascot. 2. A development application made by the applicant, Bonfoal Pty Ltd, was refused by Botany Bay City Council ("the council") on 11 May 1999. 3. The development application was accompanied by an environmental impact statement ("the 2 nd EIS") prepared by ERM Mitchell McCotter Pty Ltd and dated January 1999. 4. However, there had been a previous development application for the same development, which had been refused by the council on 5 August 1998. It had also been accompanied by an environmental impact statement ("the 1 st EIS") prepared by A Minnaard & E Thompson ("the original consultants") and dated August 1997. An appeal from the council's refusal to grant consent in relation to that previous development application is pending in the Court. The site and the proposed development 5. The land the subject of the development application ("the site") is known as 296 Coward Street, Botany. It comprises the whole of lot 1 in DP 230307, and has an area of approximately 7225 square metres. 6. The site presently contains a two storey building, a concrete slab and an underground fuel tank and bowser. All these structures are to be removed before construction of the concrete batching plant. 7. The 2 nd EIS relevantly described the proposed development as follows: The proposed concrete batching plant … incorporates an aggregate handling section, batching tower, truck washout facilities, overhead storage bins, an above ground fuel tank, administration building and 30 car parking spaces and 26 truck parking spaces. Entry and exit points are located along the Coward Street frontage. Raw material trucks will enter the site from a separate access point to transit mixer trucks and employee vehicles. On-site traffic movement will follow a one way semi-circular route before leaving via a single exit driveway. … Aggregate material will be delivered to one of six inground storage bins connected to conveyors which transport aggregate to overhead secondary storage bins. Cement and fly ash will be stored in silos and additives are stored in additive tanks located beneath the silo structure. Aggregates, sand, cement additives and water are blended before being discharged to the truck mixing bowl. Entering trucks drive to the batching tower, load and are then checked for spillage at the slump stand. Material spilt from truck chutes is washed down before leaving the site. Trucks are washed down at the end of each shift. 8. The proposed production of the plant is to be 100,000 cubic metres per annum. That production capacity is sufficient to bring the proposed development within the description of "concrete works" in sch 3 of the Environmental Planning and Assessment Regulation 1994 ("the Regulation"), and accordingly, the proposed development is designated development for the purpose of that Regulation and the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). 9. The site is zoned Industrial General 4(a) under the Botany Local Environmental Plan 1995 ("the Botany LEP"). In that zone, use of the site for the purpose of a concrete batching plant is permissible with consent. 10. Furthermore, the proposed development is integrated development pursuant to s 91 of the EP&A Act because, in order for it to be carried out, it requires development consent and an approval from the Environment Protection Authority ("the EPA") under s 43(b), s 48 and s 55 of the Protection of the Environment Operations Act 1997, in that an environmental protection licence will be required to carry out the proposed concrete works on the site. 11. I record that I had the benefit of a site inspection. The issues 12. The issues are as follows: Validity of the 2 nd EIS - compliance with the Regulation Inadequacy of the 2 nd EIS - failure to address EIS Guidelines Noise: impact and adequacy of the 2 nd EIS Air quality: impact and adequacy of the 2 nd EIS Inconsistency with strategic planning issues Site contamination 13. I deal with each of these issues in turn. Validity of the 2 nd EIS - compliance with the Regulation 14. Section 78A(8) of the EP&A Act provides that a development application in respect of designated development must be accompanied by an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations. 15. Division 5 of pt 6 of the Regulation deals with matters relating to environmental impact statements. The requirements of the Director of Planning are set out in cl 55 as follows: 55 (1) The applicant responsible for preparing an environmental impact statement must consult with the Director and, in completing the statement, must have regard to the Director's requirements: (a) as to the form and content of the statement, and (b) as to making the statement available for public comment. (2) For the purposes of the consultation, the applicant must give the Director written particulars of: (a) the location, nature and scale of the development, and (b) in the case of a development application for integrated development, the approvals that are required. (3) In the case of proposed development that is integrated development the Director must request, in writing, each relevant approval body to provide the Director with that approval body's requirements in relation to the environmental impact statement for the purpose of its decision concerning the general terms of the approval (including whether or not it will grant an approval) in relation to the development. (4) If an approval body does not provide the Director, in writing, with its requirements within 14 days after receipt of the Director's request under subclause (3): (a) the Director must inform the applicant, and (b) the applicant: (i) must consult with the approval body and obtain its requirements in relation to the environmental impact statement for the purpose of its decision concerning the general terms of the approval (including whether or not it will grant an approval) in relation to the development, and (ii) in completing the statement, must have regard to the approval body's requirements. (5) Written notice of the Director's requirements must be given to the applicant within 28 days after the applicant's consultation with the Director is completed or within such further time as is agreed between the Director and the applicant. (6) Written notice of the Director's requirements must also be given: (a) to the relevant consent authority (unless the Minister or the Director is the consent authority), and (b) to the relevant approval body in the case of proposed development that is integrated development and for which the approval body has provided the Director with its requirements following the Director's request under subclause (3), at the same time as it is given to the applicant. (7) If the development application to which the environmental impact statement relates is not made within 2 years after the notice is given, the applicant must consult further with the Director in relation to the preparation of the statement. (8) The Director may waive the requirement for consultation under this clause in relation to any particular development or any particular class or description of development, other than integrated development. 16. In a letter dated 16 July 1997, the original consultants sought consultation with the Director (then called "the Director-General") under cl 52 of the Regulation (which was the predecessor to cl 55, which came into force on 1 July 1998). Clause 52(2) required the applicant to provide written particulars of the location, nature and scale of the development (as is now required by cl 55(2)(a)), but cl 52(2) contained no reference to giving particulars of the approval bodies in relation to integrated development, because "integrated development" was a new concept adopted in the legislative scheme after the amendments of 1 July 1998. The original consultants in their letter complied with the requirements of cl 52(2) by giving written particulars of the location, nature and scale of the development. 17. The Director-General responded in a letter dated 8 August 1997 which contained the following statement: Pursuant to clause 52 of the Regulation, the Director-General requires that the applicant consult with the FAC with regard to the proposed location in relation to Kingsford Smith Airport. In preparing your EIS you should also approach Botany Bay City Council and take into account any comments Council may apply to its determination of the proposal. 18. Apparently, the original consultants complied with the Director-General's requirements because Sydney Airport wrote to those consultants on 18 September 1997 setting out its concerns. 19. In late 1998, the 2 nd EIS was being prepared by ERM Mitchell McCotter Pty Ltd on behalf of the applicant. A director of that company, Mr R F McCotter, gave unchallenged evidence of conversations which he had with Mr S Haddad and with Ms J Seddon, both officers of the Department of Urban Affairs and Planning ("DUAP"), and he furnished diary notes of those conversations. 20. In the first conversation, which took place on 2 December 1998, Mr McCotter told Mr Haddad that "we" (presumably meaning his company) were involved in a "court case on a concrete batching plant" . Mr McCotter referred to the Director-General's requirements of 8 August 1997, calling them "specification". He alerted Mr Haddad to two matters which had changed. One was the coming into force of the integrated development provisions. The other was a change in the area of the development. Mr McCotter indicated that a lesser area was now involved (although, strictly speaking, the 2 nd EIS deals with a larger, not a smaller, area). Mr McCotter asked whether the "specification" still applied. Mr Haddad expressed the opinion that the Director-General's requirements furnished on 8 August 1997 still applied, because those requirements had been given less than two years previously, and because the site of the 2 nd EIS was merely a "subset" of the land the subject of the 1 st EIS. He said that there was "no need to have reconsulted with the Director General" . 21. That opinion was confirmed by Ms Seddon in the second conversation, which took place on 6 January 1999. 22. On 10 February 1999, Ms Seddon sent a fax to Mr McCotter in the following terms: I refer to your fax of today regarding the validity of Director-General requirements issued for a proposed concrete batching plant in Coward Street, Mascot. The requirements, dated 8 August 1997, remain valid for a period of two years, consistent with Clause 55(7) of the Environmental Planning and Assessment Regulation. In addition, Director-Generals Requirements issued under the old system are taken as if they were issued under the new integrated system (ref Clause 35B of the Environmental Planning and Assessment (Savings and Transitional) Amendment Regulation 1998). Obviously, the applicant must consult directly with relevant approval bodies in this case. I trust this clarifies the matter. 23. That letter did not clarify the matter. There is considerable doubt as to what that letter, and the conversations which preceded it, meant. Taken at their highest, they appear to imply that, as the Director-General's requirements remained valid for two years, then those requirements were on foot and could be taken to be the requirements of the Director in relation to the 2 nd EIS. 24. The 2 nd EIS noted, on p 2.5, the Director-General's requirements of 8 August 1997 as being the relevant requirements, and appended a copy of that letter. It also appended correspondence with various public authorities by way of "public authority consultation" in relation to the proposed development. That correspondence included a letter, also dated 8 August 1997, from the EPA to the original consultants. 25. Having regard to the facts I have set out, the first issue which arises is whether the applicant was obliged to comply with cl 55 in preparing the 2 nd EIS. 26. The applicant's case is that it was not required to consult further with the Director as a consequence of the operation of cl 55(7), that it had already met the Director's requirements in its earlier correspondence with Sydney Airport, and that the consultation it had earlier had with various public authorities satisfied its obligation to consult with approval bodies. 27. Mr Wilson, counsel for the applicant, submitted that cl 55(7) obviated any need for the applicant to consult with the Director again, and it operated to preserve for the 2 nd EIS the requirements given by the Director-General on 8 August 1997. He contended that the reference in cl 55(7) to "the environmental impact statement" is a reference to any environmental impact statement which is prepared having regard to the Director's requirements furnished as a result of being provided with particulars under cl 55(2). The reference to "the development application" in cl 55(7) is a reference to a development application which relates to an environmental impact statement which has been prepared having regard to the Director's requirements. If such a development application is made within two years after notice of the Director's requirements is given in accordance with cl 55(5), then no further consultation is required and the Director's requirements are preserved and remain valid and on foot. Such a construction is supported, Mr Wilson submitted, by cl 35B of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, which speaks of Director's requirements remaining "in force" for the transition period. 28. Mr Clay, counsel for the council, submitted that, in the preparation of the 2 nd EIS, the applicant was required by cl 55 to consult afresh with the Director and to have regard to the Director's requirements given as a result of that consultation. In his submission, cl 55(7) does not obviate the necessity for a new consultation and new requirements. Mr Clay submitted that cl 55, construed as a whole, refers to requirements which relate to a particular environmental impact statement and not to requirements at large. In his submission, that construction follows from the reference to the preparation of "an" environmental impact statement (subcl(1)), the form, content and public availability of "the" statement (subcl (1)), the requirements of approval bodies in relation to "the" environmental impact statement (subcls (3) and (4)), and the requirement for further consultation in relation to "the" environmental impact statement (subcl (7)). The same conclusion follows, he said, from the reference to "the" development in subcl (2), subcl (3) and subcl (4). Hence, he submitted, cl 55 sets up a scheme, which involves consultation, requirements, an environmental impact statement, and a development application, all of which are related to each other. It follows, he contended, that the applicant was required to comply with the scheme a second time, since there was to be a second environmental impact statement and a second development application. 29. I consider that the construction of cl 55 which Mr Clay put forward is the correct one. Clause 55 does not, in my opinion, refer to any environmental impact statement, but to a particular environmental impact statement which accompanies a particular development application. I adopt that construction having regard to the purpose of cl 55 in its context. If a person wishes to carry out development which may be carried out only with the consent of a consent authority, then that person may apply for consent in accordance with s 78A of the EP&A Act. If the proposed development is designated development, then the development application must be accompanied by an environmental impact statement (s 78A(8)). In the preparation of that environmental impact statement (that is, the environmental impact statement which is to accompany a development application for designated development), the applicant must comply with cl 55. Clause 55, in that context, does not apply to environmental impact statements generally or at large - it applies to a particular environmental impact statement which accompanies a particular development application. 30. Accordingly, the applicant was required to comply with cl 55. The applicant's relevant obligations under cl 55 were to: (a) consult with the Director; (b) complete the environmental impact statement having regard to the Director's requirements; and (c) for the purposes of consultation, give the Director written particulars of the location, nature and scale of the development, and of the approvals required. 31. I consider that the applicant has failed to comply with cl 55 in three respects. First, there was no consultation with the Director as required by cl 55(1). Secondly, the applicant failed to give the Director written particulars of the approvals required for integrated development, as required by cl 55(2)(b). Thirdly, even if the applicant could have assumed that the Director's requirements were as set out in the letter of 8 August 1997, the applicant failed to have regard to those requirements in the preparation of the 2 nd EIS as required by cl 55(1) because it did not consult with the FAC. I turn to each of these matters in more detail. 32. The conversation between Mr McCotter and Mr Haddad on 2 December 1998 was not a conversation about the form and content of the 2 nd EIS. It is uncertain whether the 2 nd EIS was even mentioned. Rather, the conversation was simply about whether the Director-General's requirements of 8 August 1997 were still on foot. Furthermore, that conversation could not have amounted to a consultation for the purpose of cl 55(1), in the absence of written particulars of the approvals required for integrated development, since furnishing those particulars was, as cl 55(2)(b) makes plain, a pre-condition to consultation for the purpose of cl 55(1). 33. So far as regards compliance with cl 55(2), the applicant had already, through the letter which the original consultants had written on 16 July 1997, provided to the Director the written particulars which were required by cl 55(2)(a), namely, the location, nature and scale of the development. The nature and scale of the development which was to be the subject of the 2 nd EIS did not change - it remained a concrete batching plant with an annual output of approximately 100,000 cubic metres. The location, in the sense of the place at which the development was to take place, remained at Coward Street, Mascot. What had changed were two things. One was the actual area to be occupied by the proposed development, since it was now proposed to occupy more of the area than had been the subject of the 1 st EIS. (The area to be occupied by the development, although described by reference to lot numbers in the letter of 16 July 1997, was not one of the particulars prescribed by cl 55(2)). The other, critically, was that the EP&A Act had been amended subsequent to that letter and provided, for the first time, for integrated development. That letter therefore contained no reference whatsoever to the particulars of the approvals required for integrated development so as to comply with cl 55(2)(b), and there is no evidence that written particulars about this matter were furnished at a later time. 34. As I have earlier outlined, the Director-General's requirements of 8 August 1997 required consultation with the FAC. No consultation in regard to the 2 nd EIS took place with the FAC; the letter from Sydney Airport dated 18 September 1997 which demonstrated compliance with the Director-General's requirements so far as they related to the 1 st EIS was simply appended to the 2 nd EIS under the heading "Public Authority Consultation". 35. The consequence of the applicant's failure to give written particulars of the approval bodies as required under cl 55(2)(b) meant that the Director failed to carry out her obligation to consult with such approval bodies under cl 55(3). The further consequence was that the applicant did not consult with any approval body under cl 55(4) because, in the absence of the Director's consultation, no approval body failed to respond within 14 days as cl 55(4) requires. Instead, a letter from the EPA to the original consultants and dated 8 August 1997 was appended to the 2 nd EIS under the heading "Public Authority Consultation". 36. The next issue is whether the failure to comply with cl 55 in the three ways I have outlined renders the 2 nd EIS invalid. The proper approach to that task is to examine the language of cl 55 and the scope and object of the whole of the EP&A Act in order to determine if the legislature intended that substantial compliance with cl 55 is a condition of validity of an environmental impact statement. 37. That approach was adopted by the Court of Appeal in Helman v Byron Shire Council and Anor (1995) 87 LGERA 349. One of the major issues in that case was the legal consequences of the failure of an applicant for development consent to comply with s 77(3)(d1) of the EP&A Act (as it then stood) which, in the circumstances which were found to exist, required that the development application be accompanied by a fauna impact statement. At p 355, Handley JA quoted with approval a passage from the judgment in Tasker v Fullwood [1978] 1 NSWLR 20 at 23 - 24 as follows: The problem arises whenever a judicial or executive act, or the act of a litigant, is subjected by statute to the prior performance of conditions. The numerous decisions in this field have been recently reviewed by this Court … From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute … (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved … (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute … (4) The intention being sought is the effect on the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement … (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory … 38. Handley JA then examined the scheme of the EP&A Act, and concluded that substantial compliance with the provisions he outlined was a condition of validity. I turn, then, to undertake the same task. 39. Where, as in this case, the proposed development is development that is permissible with consent, the applicant may apply for consent under s 78A. Where, as in this case, the proposed development is designated development, the development application must be accompanied by an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the Regulation (s 78A(8)). Where, as in this case, the proposed development is integrated development, the council must obtain from the relevant approval body the general terms of any approval proposed to be granted by that approval body and any consent which the council may grant must be consistent with those general terms (s 91A). 40. Schedule 3 of the Regulation lists development which is designated development. There is no overall description of the list, but the list obviously includes types of development which are likely to have a significant impact upon the environment. If a proposed development is designated development, then not only must the development application be accompanied by an environmental impact statement, but it must be placed on public exhibition with its accompanying documents (s 79(1)), any person may make submissions in relation to it (s 79(5)), the council must take those submissions into consideration (s 79C(1)(d)), and any objector who is dissatisfied with the determination to grant consent may appeal to the Court (s 98). 41. Clause 54A of the Regulation provides that the contents of an environmental impact statement must include the matters referred to in any specific guidelines in force in relation to that development. The Director may, under cl 54A(2), establish guidelines in relation to any specific development, and she has done so in relation to concrete works. 42. These provisions of the EP&A Act and the Regulation demonstrate that an environmental impact statement is concerned with the environmental consequences of a proposed development. Its purpose is to alert the decision-maker (in this case, both the council and the EPA) as to the inherent problems of the proposed development, and to alert the public to those problems so as to encourage public participation in the assessment process ( Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 at 417; Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 31). Clause 55 of the Regulation is one of the provisions of the legislative scheme designed to ensure that the purpose of an environmental impact statement is achieved because it permits the Director and the relevant approval bodies to stipulate requirements with which the preparer of the environmental impact statement is obliged to comply ( Botany Bay City Council v Remath Investments (No 6) Pty Ltd , Court of Appeal, 23 December 1998, unreported, at p 7). I conclude, therefore, that substantial compliance with cl 55 is a condition of the validity of an environmental impact statement. 43. In this case, there was no consultation with the Director or with the EPA, and their respective requirements were unknown. Even if the Director-General's requirements of 8 August 1997 are taken to be the relevant Director's requirements for the 2 nd EIS, they were not complied with because the applicant did not consult with the FAC (or Sydney Airport). Accordingly the attitude of the FAC (or Sydney Airport) to the proposed development as set out in the 2 nd EIS was unknown. 44. I do not consider that the steps which the applicant took leading up to the 1 st EIS can amount to substantial compliance with cl 55. It could be said, no doubt, that, since the nature, location and scale of the proposed development had not changed, the requirements of the Director were not likely to be different to those furnished on 8 August 1997, or that the response of the Sydney Airport was likely to be the same as it gave in its letter of 18 September 1997, or that the response of the EPA was not likely to be different from that contained in its letter of 8 August 1997 furnished in relation to the 1 st EIS. But those matters are complete speculation. The point is (to adopt the words of Handley JA in Helman v Byron Shire Council at 360) that the Court has no means of knowing what material would have been contained in the contents of the 2 nd EIS had there been proper compliance with cl 55. 45. There has been no substantial compliance with cl 55, and accordingly the 2 nd EIS is invalid, and as a consequence, the appeal must fail. 46. Since, however, all other aspects of the appeal were fully argued, it is appropriate that I consider them, and I now turn to do so. Noise 47. There are two aspects to this issue. The first is whether the 2 nd EIS was inadequate in its treatment of the noise issue, and the second is whether the noise impact from the proposed development is likely to be unacceptable. 48. The section of the 2 nd EIS which dealt with the noise issue was prepared by Dr R Bullen. The conclusion set out in the 2 nd EIS was that the EPA's recommended criteria for operation would be satisfied for all aspects of the proposed development. Plant construction and operation would not exceed the relevant criteria, and no adverse noise impacts were expected as a result of the proposed development. 49. Evidence on behalf of the council on this issue was given by Mr S E Cooper. He was critical of a number of matters in the 2 nd EIS. In particular, he criticised the reliance in the 2 nd EIS upon the criteria set out in the EPA's Draft Stationary Noise Source Policy, which is subject to revision since it is only in draft form, and also the failure to consider criteria adopted for an industrial site boundary by the council. He was also concerned with reliance upon what he considered to be incorrect and inadequate data and measurements of noise levels, in particular, reliance on noise measurements taken at two existing concrete batching plants. 50. Dr Bullen responded to Mr Cooper's evidence, and both experts gave oral testimony. In the end, so far as concerns the adequacy of the 2 nd EIS, it became clear that its conclusion, namely, that no adverse noise impacts could be expected, was subject to an important but unstated qualification. Both experts agreed that attenuation measures would be necessary to ensure that there would be no adverse noise impacts, and further monitoring and calculation would be required to determine which attenuation measures were necessary. 51. As I pointed out in Schaffer Corporation v Hawkesbury City Council (at p 30 and p 31), in order to comply with the EP&A Act and the Regulation, an environmental impact statement must be comprehensive, but it is not required to be perfect and it need not cover every topic or explore every avenue. In my opinion, the 2 nd EIS was sufficiently comprehensive in its examination of the noise issue, despite most of the shortcomings which Mr Cooper found in it. The omission of any reference to attenuation measures is a serious deficiency, but I do not consider that the omission results in non-compliance with the EP&A Act and the Regulation. In my opinion, the section of the 2 nd EIS was adequate to alert the public and the council as to potential noise consequences of the proposed development. 52. So far as concerns noise impact generally, I am satisfied that, with appropriate attenuation measures in place, the relevant noise criteria can be met. If development consent was to be granted, appropriate conditions should be imposed to ensure compliance with the relevant criteria. In the draft conditions of consent which the council tendered in accordance with the Land and Environment Court Rules, the council suggested draft conditions relating to this issue, most of which were acceptable to the applicant. The real issue in dispute in regard to these conditions was whether the noise control goal in relation to the operation of the plant should be set at L 10 65 dB(A), or 70 dB(A). The council's noise criteria for industrial premises is set at an L 10 noise level of 65 dB(A) for both day time and night time. The EPA's Environmental Noise Control Manual recommends for concrete batching plants an L 10 noise level of 70 dB(A) during the day, and 60 dB(A) during the night. I agree with the applicant's contention that, taking into account the context of the site (a busy industrial area with considerable traffic and other noisy industries) and the fact that the plant is intended to operate at night only six times in any year, an L 10 level of 70 dB(A) would be appropriate. Air Quality 53. Once again, there are two aspects to this issue. One is whether emissions from the operation of the proposed development will have an unacceptable impact, and the other is whether the 2 nd EIS was inadequate in its treatment of the air quality issue. 54. An air quality assessment prepared by Dr N E Holmes was annexed to the 2 nd EIS. It concluded that air quality impact would be expected to be acceptable for all receptors. This report, however, was criticised in a number of respects by Mr P W Stephenson who had been engaged to review it by Caterair Airport Services Pty Ltd (a company which occupies an adjoining property). In response, Dr Holmes prepared another report, which was based on more up-to-date data, and which demonstrated that the air quality emissions were likely to have even less impact than he had predicted in his earlier report. 55. Evidence about the concerns of Caterair was given by Mr R J Evans, who is vice president of the company's operations in Australia, and by Mr H W Wedlock who is the company's maintenance manager. They both pointed out how important air quality is to Caterair, since its business is the preparation of food for airline customers. 56. On the aspect of air quality, Mr A J Clarke gave evidence of his concerns. He is the manager quality assurance, of a. hardtrodt australia Pty Ltd, a company which occupies premises at 7 Coggins Place, Mascot, in the vicinity of the site. He also expressed concerns about the traffic which would be generated by the proposed development, especially, as he said in his oral evidence, the volume of heavy vehicles using the roadways. But, although I have considered the concerns which he expressed, traffic impact was not an issue raised in the proceedings, and I do not therefore treat traffic impact as a reason for refusing consent. As to air quality, Mr Clarke's concern was that the proposed development would "cause a possible dust nuisance". 57. However, the expert evidence satisfies me that the proposed development will not have an unacceptable impact on air quality. Dr Holmes' second report establishes that is the case, and Mr Stephenson generally agreed with that. Moreover, Mr Evans was somewhat mollified when Dr Holmes' later predictions were brought to his attention for the first time during cross-examination. I also take into account that, although Caterair's business might be more susceptible to air emissions than most other businesses, it has in place extensive air quality control systems which, I infer, operate to reduce its risk of exposure. 58. Dr Holmes' first report (which was attached to the 2 nd EIS) did not contain any assessment of air quality during the construction phase of the proposed development. The question is whether that omission has the result that the 2 nd EIS fails to comply with the statutory requirements. I am of the view that this was not a fatal omission. An environmental impact statement does not have to meet a standard of absolute perfection, and it may omit a topic and yet substantially comply with the statutory requirements ( Prineas v Forestry Commission of New South Wales at 417). Dr Holmes' first report does meet the test of alerting the public and the council to the potential environmental consequences of the proposed development. Inadequacy of the 2 nd EIS - failure to address EIS Guidelines 59. Clause 54A of the Regulation provides that the contents of an environmental impact statement must include the matters referred to in specific guidelines which are in force in relation to the proposed development. The Director has established guidelines for concrete works ("the EIS Guidelines"). 60. The council contends that the 2 nd EIS fails to address 12 separate matters specifically required by the EIS Guideline to be addressed, and that, taking that failure into account collectively with its failure to address the attenuation measures required for to meet noise level goals and its failure to address air quality impacts during the construction phase, the 2 nd EIS must be held to be inadequate and thus fail to comply with the EP&A Act and the Regulation. 61. The council's contention is that the 2 nd EIS failed to address the matters specified in the following clauses of the EIS Guidelines: clause 2.4; clause 2.5; clause 2.7; clause 3.3; clause 6B(1)(c); clause 6B(2)(a) and (e)(sic - should be (d)); clause 6B(3)(e); clause 6B(4)(a) and (b); clause 6E(2)(b),(c) and (d); clause 6E(6)(b),(c),(d) and (f); clause 6E (14)(a) and (c); and clause 6G "Environmental Management Plan". 62. It is unnecessary to set out the detail of each of those matters, or the way in which the applicant contends in response that they have each been addressed in the 2 nd EIS. Suffice it to say that I am satisfied that the contents of the 2 nd EIS substantially refer to the matters in the EIS Guidelines. I repeat, as I have earlier said, that absolute perfection is not required. There are some gaps, but they do not detract from a conclusion that the 2 nd EIS is adequate. I am fortified in that conclusion by the fact that the EIS Guidelines do not counsel absolute perfection either. They state in the opening words to section 5: All issues nominated (in this section) will not have the same degree of relevance for all proposals. Depending on the characteristics of the proposal, some of the requirements may be more relevant than others, while others will not be applicable at all. The EIS should be tailored to the specific proposal and should focus on the key issues. 63. Overall, the 2 nd EIS is far from a perfect document. As it states in its introduction, it was prepared in order to take account of possible or perceived inadequacies revealed in the proceedings regarding the first development application and the 1 st EIS. Its omissions seem to me to have largely arisen because the proposed development was not considered afresh the second time around. But the 2 nd EIS is not superficial, it focuses on the key issues, and it deals in a substantially comprehensive way with all the relevant environmental consequences of the proposed development. It does not fail to comply with the statutory requirements by reason collectively of its omission of details of noise attenuation measures, air quality during the construction phase, or each particular point of the EIS Guidelines. Inconsistency with strategic planning issues 64. The council's case is that the proposed development is inconsistent with current trends in land use in the area, and inconsistent with strategic planning for the area which is designed to encourage that current trend. 65. Mr M E Neustein, town planner, gave evidence for the council on this aspect of the case. He said that the area surrounding the site is undergoing considerable change, manifested by a decline in traditional heavy industries and replacement with light industrial, office, warehouse, transport and service development related to Sydney Airport. He instanced the downsizing of Simsmetal, a scrap metal operation at the western end of Coward Street, as well as the occupation of its former site by Walker Corporation, and the existence of vacant land on the southern side of Coward Street owned by Qantas. 66. There are four draft planning instruments which, the council contends, encourage the changing land use in the area. They are as follows: Draft amendment to Botany LEP (Amendment 21) 67. This proposed amendment to the Botany LEP has been on public exhibition, and the council resolved on 30 June 1999 to forward it to the DUAP under s 68(4) of the EP&A Act, requesting that it be made. 68. The effect of amendment 21, when and if it is made, will be to change the zoning of the site from 4(a) - Industrial to 4(c2) - Industrial Special - Airport Related - Restricted. Under the latter zone, development for the purpose of "airport-related land uses" is permissible with consent. The expression "airport-related land uses" is defined in sch 1 of the Botany LEP as follows: 'Airport-related land use' means a building or place used as an office or for other business or commercial purposes or industry related to Sydney (Kingsford-Smith) Airport, and includes a building or place for the provision of services related to:- (a) the assembly, storage or land transport of air freight; or (b) the accommodation or transportation of passengers by air or land; or (c) the operation, maintenance or repair of aircraft; or (d) the administrative functions associated with the airport, such as airport management and security; or (e) the functions of government departments and authorities related to air passengers and air freight; or (f) services provided for hotel or motel guests, including banking, dry cleaning, hairdressing, and the like, which are located within the confines of the hotel or motel building; 69. The objectives of the zone include a primary objective which "is to permit development of a wide range of uses which have a relationship to Sydney (Kingsford-Smith) Airport, while encouraging commercial premises on certain land". Including amongst the secondary objectives are the following: (a) to encourage airport-related land uses; (b) to provide for industrial land uses which are related to airport-related development. 70. Mr Neustein's opinion was that the proposed development is prohibited in zone 4(2c) and does not comply with the aims and objectives of that zone. The City South Strategy ("the Strategy") 71. This is a draft document prepared by DUAP. The copy which was tendered was accompanied by a letter from DUAP expressly stating that the Strategy is currently "an internal working document". Nevertheless, it is put forward by the council as supporting, in the area surrounding Alexandra Canal (including the site), more development for uses such as "office/warehouse, business park; and high technology production facilities" . Botany LEP (Draft Amendment No 11) - Mascot Station Precinct ("Amendment 11") 72. Included amongst the main aims of amendment 11 is an aim to revitalise land in close proximity to Mascot Station "by permitting an increased mix of land uses and by establishing related development controls". Mr Neustein pointed out in his written evidence that: Land within a 500m radius around Mascot Station is expected to become a focus for predominantly higher density commercial/airport related and resident development and complement the scale and character of existing development in the south of Mascot. 73 . Mr Neustein acknowledged that the site is 550 m west of the Coward Street boundary of the Mascot Station Precinct, but nevertheless he considered that the proposed development is "at odds with the developing role of the area as a 'gateway' to Sydney airport". Mascot Station Precinct Development Control Plan 1999 ("the DCP") 74. The DCP is also a draft instrument, and the site is outside the area which it covers. 75. Mr Neustein saw the DCP as providing for a development pattern which has a direct relationship to Sydney Airport. Thus, one of the principles concerning " Urban Form" in the DCP provides: [D]evelop a range of compatible commercial, airport-related and residential uses in the precinct which capitalise on the proximity of the airport and the railway station. 76. Mr Neustein's opinion was that the proposed development is inconsistent with that development pattern. 77. The applicant takes issue with the council's case. Mr P A Mitchell, of ERM Mitchell McCotter, gave evidence on behalf of the applicant. He made the following statements: (a) The character of the area is not as changed as Mr Neustein postulates. There are freight forwarding facilities, container storage, jet testing facilities, and a metal sales and fabrication facility. Furthermore, the freight facilities are, in Mr Mitchell's opinion, as "more related to Port Botany than to the airport" . Mr Mitchell made the point that the area in which the site is situated "is part of Sydney's primary industrial area, … which serves the airport, Port Botany, Port Jackson and the CBD". (b) Amendment 21 is not certain to be made. Mr Mitchell pointed to a Department of Planning policy in 1992 with which amendment 21 is, in his opinion, inconsistent. That policy required the maintenance of land zoned for industrial purposes. In any event, Mr Mitchell considered that the proposed development is consistent with amendment 21 because the concrete batching plant will be a "provider of construction material with the potential to supply Sydney Airport and other construction associated with the airport such as Mascot Station precinct". (c) Amendment 11 and the DCP do not apply to the site. In Mr Mitchell's opinion, "the influence of Mascot station will not affect the site nor change the character of the subject area". (d) The Strategy does not preclude development of the type which is proposed by this development application. That can be seen, as Mr Mitchell pointed out, by the comments about land use strategy in relation to the Alexandra Canal Corridor in section 5.1, where it states that, "the area to the west of Botany Road (in the north) and O'Riordan Street (in the south) (being the area which includes the site) should remain predominantly industrial and commercial". 78. I have carefully considered all these matters. Weighing them in the balance, I do not think that they warrant refusal of the development application. Mr Neustein's characterisation of the site and its surrounds as changing from heavy industry to light industrial/warehouse/office development does not necessarily exclude the proposed development and, in any event, taking into account Mr Mitchell's characterisation of the area, it seems to me to be overstating the position to say that a concrete batching plant would be completely out of character with the area. 79. Amendment 21 is the only planning instrument which causes me some concern (since I accept Mr Mitchell's opinion that the other planning instruments to which I have referred are drafts which do not apply to the site in any event). It seems to me that under amendment 21 development for the purposes of a concrete batching plant upon the site would be prohibited. I do not think that such a development could be characterised as an "airport-related land use" within the relevant definition, despite Mr Mitchell's assertion that it complies with the objectives of the 4(2c) zone by being an industry which relates to airport-related development because it could potentially supply concrete for airport-related construction. 80. However, amendment 21 remains a draft at this stage. I do not know when or if it is to be made, and I do not think therefore that amendment 21 is determinative of the issue or that it must necessarily lead to a refusal of consent in this case. Site contamination 81. The site is contaminated. In his statement of evidence, Mr Mitchell referred to two reports, one in 1997 and one in 1998, which found evidence of contamination upon the site. 82. Clause 29 of the Botany LEP applies to land that the council has reasonable grounds to believe is contaminated. Clause 29(3) provides as follows: (3) The Council must not consent to any development to which this clause applies unless the Council: (a) has considered an assessment of the site of the proposed development (Including, if required by the Council, a work plan) prepared in accordance with the Australian and New Zealand Guidelines for the Management of Contaminated Sites, being guidelines of the Australian and New Zealand Environment and Conservation Council and the National Health and Medical Research Council and dated January 1992; and (b) is satisfied that remedial measures are either not necessary or have been (or will be) undertaken to make the site suitable for the proposed development. A similar obligation is cast upon consent authorities by cl 7 of State Environmental Planning Policy No 55 ("SEPP 55"). 83. The 2 nd EIS contained a number of references to site contamination. The executive summary contained the following statement: No noxious industry is known to have taken place on the site. Investigations have found that heavy metals are present across the site and that petroleum residues were found near a disused underground fuel tank. All areas not to be landscaped will be sealed by a concrete slab. A remedial work plan has been prepared for the site. 84. Section 5.2.6 of the 2 nd EIS stated that further assessment of potential site contamination would be undertaken prior to development commencing, and the nature of that assessment was briefly identified. Since the original investigations covered the southern portion of the site (the land the subject of the development specified in the 1 st EIS), it was stated that investigations would extend to the rest of the site, and that "The main safeguard is that the entire site not being landscaped will be sealed with concrete paving". 85. Annexed to the 2 nd EIS were the 1997 report (of Douglas Partners) and the 1998 report (of Environmental Audits of Australia). There was also annexed a remedial work plan. It outlined the further investigation which was proposed, which included investigation of the northern portion of the site and further investigation of the southern portion of the site. 86. During the course of the hearing, a further report prepared by ERM Mitchell McCotter was tendered, entitled "Supplementary Information for Work Plan" ("the supplementary report"). It contained the results of additional site investigation. Section 3.7 of the supplementary report outlined a number of remediation options. The supplementary report concluded, on p 27, as follows: Provided the land is remediated using one or a combination of the methods outlined in this report, it is concluded that a concrete batching plant can be developed on the site; and It is further concluded that a concrete batching plant is an appropriate land use because: * most of the site will be sealed by concrete paving; and * this type of industry will not significantly contribute to existing contamination because no hazardous materials are used in the manufacturing process. 87. Evidence on this aspect was given on behalf of the council by Ms S M Savolainen, who is an environmental scientist employed by the council. Her evidence was given before the supplementary report was prepared and tendered, and I accept that her identification of the lack of further investigation has now been satisfied. But her main criticism is that there is no remedial action plan which would detail the remediation methodology that will be undertaken to make the site suitable for the proposed development. She pointed out that the remedial work plan attached to the 2 nd EIS is not a remedial action plan, and does not contain information on the proposed remedial measures to be undertaken on the site. Ms Savolainen's opinion was that, as a consequence of the failure to prepare a satisfactory remedial work plan, the council (and the Court on appeal) could not be satisfied that remedial measures will be undertaken to make the site suitable for the proposed development, as required by cl 29(3) (and cl 7 of SEPP 55). 88. In cross-examination, Ms Savolainen conceded that capping the site with concrete might amount to satisfactory remediation, but she stressed that, in order to be satisfied that remedial measures will be undertaken, the Court needs to know what those measures are and how they are to be carried out. 89. The draft conditions of consent contained conditions requiring the preparation of a remedial action plan, and the furnishing of a validation report after remedial work had been done but prior to the issue of a construction certificate. 90. The question is whether conditions of consent would be sufficient to permit the Court to be satisfied, in accordance with cl 29(3) (and cl 7 of SEPP 55), that remedial measures will be undertaken to make the site suitable for the proposed development. I have a serious concern as to whether the Court could be so satisfied without knowing what remedial measures were proposed, at least in some detail. That information has not been furnished by the applicant. The supplementary report does not explicitly specify concrete sealing as a remediation measure. Instead, it sets out other potential remediation measures. In the circumstances, I place some weight on Ms Savolainen's evidence that a remedial action plan is necessary in order for the Court to be satisfied in accordance with cl 29(3) (and cl 7 of SEPP 55). 91. I would accordingly hesitate to grant development consent without a remedial action plan having been furnished. Counsel for the parties did not make any submissions on the question of whether the Court could be satisfied in terms of cl 29(3) simply by imposing a condition requiring a satisfactory remedial action plan to be furnished. But, since I propose to refuse consent (for the reasons earlier set out), I refrain from expressing a concluded view on the question. Orders 92. In accordance with the foregoing reasons, my formal orders are as follows: (1) The appeal is dismissed. (2) The development application for a concrete batching plant on lot 1 DP 230307 at 296 Coward Street, Mascot is determined by the refusal of consent. (3) The exhibits may be returned. I make no order as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.