Land and Environment Court of New South Wales CITATION : Curach v Sydney City Council [2004] NSWLEC 328 APPLICANT Mark Curach PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 10384 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- Two townhouses and subdivision - s 96 application to amend existing consent condition regarding possible site contamination - and to include amended drawings Environmental Protection Act LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Contaminated Land Management Act 1997 South Sydney Local Environmental Plan 1998 CASES CITED: DATES OF HEARING: 21/06/2004 EX TEMPORE 06/21/2004 JUDGMENT DATE : APPLICANT Mr J L Burrell, solicitor SOLICITORS Burrell Solicitors LEGAL REPRESENTATIVES: RESPONDENT Ms J Jago, barrister JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 21 June 2004 10384 of 2004 Mark Curach v Sydney City Council JUDGMENT 1 This was a class 1 appeal No. 10384 of 2004 between March Curach and Sydney City Council in regard to a s 96 application to amend a consent for two attached two storey townhouses at 212 Mitchell Road, Alexandria. 2 The site was now part of the Sydney City Council area but the South Sydney statutes still apply. The application includes conditions for subdivision and amendments to the plans as in page 70 of Ms Ryan's Report in Exhibit 1. They were not contested and the applicant adopted them as part of the s 96 application. 3 The on site hearing was attended by, for the applicant: * Ms J Jago, barrister * Ms Warry, solicitor * Ms C Ryan, town planner from the council. 4 For the applicant: * Mr J L Burrell, solicitor * Mr M Curach, applicant and * Dr A Dobrovolsky, geochemist of Envirotech Australia Pty Ltd 5 The appeal revolved around a stage 2 condition No. A1(1)(a). It required a site auditor accredited under the Environmental Protection Act pursuant to the Contaminated Lands Act 1997 to supply a site audit statement upon demolition of the buildings on the site before construction would commence. 6 The applicant sought either to delete the condition entirely or to have an alternate condition in Exhibit F to allow appropriate qualified environmental scientist to provide a further letter following demolition that verified the existing boreholes and test cores report that said the site was not contaminated, or if there was a "hot spot" of contamination anywhere, to apply a condition to the construction works. 7 There was a deferred commencement consent applicable to the original and the alternate conditions. It included other conditions than the disputed one. The other deferred commencement conditions had been complied with at the time of the hearing. 8 There were a few key points in both parties' cases. For the applicant they were: 1. The site test of 5 boreholes showed that there was no contamination. 2. The Council Development Control Plan and the relevant legislation only required a site audit statement by an EPA registered expert when contamination was found and when de-contamination was required. 3. The council did not contest the results of site investigation. 4. The alternative condition would ensure that any hotspots were cleaned up prior to construction. 9 For the respondent the keys points were: 1. The applicable statute did allow the council discretion to ask for a site investigation when a use of a site was going from a potentially contaminated use to a more sensitive use. In this case the site was the former engine works under the appropriate classification and was going to a residential use that was classified as a sensitive use. 2. The Environmental Planning and Assessment Act 1979 s 145 A, B and C applied and enabled the preparation of guidelines for contamination land. 3. Contamination Lands Act 1997 enabled under cl 47(1) the site audit to be required under (b) (ii) (a) to show land is suitable for a specified use, and (iii) what investigation should be done. And, that a site audit Statement be prepared by the EPA accredited investigator. 4. State Environmental Planning Policy No. 55 – Re mediation of Land enables councils to require a site audit statement to verify prior information to be provided by the proponent. In this case the site report by Envirotech Australia Pty Ltd. If the council does not have the resources to check it (i.e. in house staff or funds to enable an appropriately qualified person to check it) then the applicant has to do it. 5. South Sydney Local Environmental Plan 1998 cl 39 allows for a report, and for verification of the report. 6. The council's Development Control Plan for Contaminated Land more or less reflects all this legislation including the need for reports, such as that by Envirotech, to determine the nature and extent of any contamination and subsequent verification of that report or/and any remediation, by an independent auditor. 7. Verification was justified by the public interest being the future purchasers or residents of the townhouses and that the council has discharged its duties. 10 The evidence given to the Court was, in this case, only minor contamination was found in one of the five test bores. The reading was the value of 1.33 of Benzo pyrene, when the value of 1.00 was the accepted value. 11 All other elements were at or below accepted levels which means the average level of ground contamination for the site was well within acceptable levels. 12 Dr Dobrovolsky's evidence was that the same test bore sample could result in a soil content level of between 0.7 to 1.3, so he was not concerned and gave the site a residential classification of "No Contamination". 13 He agreed in evidence that his five test bores were 95% certain in showing the site as "No Contamination", but that on such site there could be hotspots of localised contamination in places other than the test bores. And this can be discovered after the site was cleared and the soil exposed. He would inspect the site at that time and would have any localised spots remediated if they existed. 14 The council said this was all well and good, and there was no objection to Dr Dobrovolsky 's report so long as it was accepted that the report was on five test bores only. But the council's responsibility under the applicable statute was to discharge its responsibilities, and that applied to the Court also. 15 The means of having an independent peer check of the Envirotech report were set down in the statutes. It had to be by an Environmental Protection Authority accredited auditor. Envirotech was not an approved auditor, even though no doubt its qualifications might be equal to the requirements. 16 The site audit statement had statutory power and was reported on s 149 Certificates in regard to the land. The council had demonstrated its confidence in Dr Dobrovolsky's site investigation and the applicant's interest by granting development consent. 17 The council had a final responsibility to demonstrate good faith under the Act to the public interest and the future owners and residents of the townhouses. 18 The Court has concluded that the statutory powers of the Act and contaminated land controls under it, gives the council power to require a site investigation report and the verification of it by an independent accredited auditor. The requirement in the existing consent for a site audit statement should remain, but the other modifications sought as on page 70 of Ms Ryan's report should be granted. 19 Therefore the orders of the Court are:- 1. The appeal is upheld in part. 2. Development consent No.DA534/2003 granted on 1 July 2003 for two attached 2-storey townhouses at 212 Mitchell Road, Alexandria, is hereby amended as follows: (a) Modify Condition Stage 2 (B) (1) That the development shall be generally in accordance with plans numbered 93.05, 06, 07 dated November, 2003 as amended by 93.09 and 93.08 dated 10 May, 2004, subject to compliance with the following conditions: (b) Insert Condition Stage 2 (B) (48) (48) A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator, for details see Customer Service, Urban Development at www.sydneywater.com.au or telephone 132092. Following application a "Notice of Requirements" will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to release of the linen plan. 3. The exhibits are returned to the parties except Exhibits A, B, C and 1. _____________________ K G Hoffman Commissioner of the Court rjs 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.