BHP Ltd v Blacktown City Council [1989] NSWLEC 175

NSW Caselaw

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Land and Environment Court of New South Wales

CITATION : BHP Ltd v Blacktown City Council [1989] NSWLEC 175 APPLICANT BHP Limited PARTIES : RESPONDENT Blacktown City Council & Anors FILE NUMBER(S) : 10452 of 1988 CORAM: Cripps J KEY ISSUES: :- Land And Environment Environmental Planning and Assessment Act Clean Air Act 1970 LEGISLATION CITED: Building and Construction Industry Long Service Payments Act 1986 Local Government Act 1919 Clean Water Act 1961 Noise Control Act 1975 Noxious Trades Act CASES CITED: Parks Development Pty Ltd v. Cambridger Credit Corporation and Anor; ACR Tarding Pty Ltd v. Fat-Sel Pty Ltd NSWRLR 67 DATES OF HEARING: DATE OF JUDGMENT: 04/01/1989

LEGAL REPRESENTATIVES:

JUDGMENT: <TT>His Honour: This is an appeal by Broken Hill Proprietary Company Limited (BHP) against the refusal of the Blacktown City Council on 7 September 1988 to consent to its application for designated development. Pursuant to the provisions of s.64 of the Land and Environment Court Act, the Minister for Planning and Environment became a party to the appeal. Persons who had objected to the application before the Council were notified of the appeal. E J Hobson, D E Reed, Rooty Hill Progress Association, H R Scruton, N Heffernan, N J Keele were admitted to be heard at the hearing of the appeal as if they were parties (see s.97 of the Environmental Planning and Assessment Act). Although there was some doubt whether the Rooty Hill Resident Action Group Incorporated (RHRAG) was entitled to be heard as if it were a party, no objection was taken to its representation by Mr Brezniak, Solicitor, and Mr Robertson of Counsel until the 9 March <A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1989/25.html?query=%7E%201989#disp2" name=disp3><IMG alt="<<" border=0 src="BHP Ltd v Blacktown City Council [1989] NSWLEC 25 (1 April 1989)_files/contextup.gif"></A>1989<A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1989/25.html?query=%7E%201989#disp4"><IMG alt=">>" border=0 src="BHP Ltd v Blacktown City Council [1989] NSWLEC 25 (1 April 1989)_files/contextdown.gif"></A> and thereafter by Ms. Paine from the Environmental Defenders Office. Accordingly, I have, with the consent of all parties, treated RHRAG as if it were a party.</TT> <TT></TT> <TT>The appeal was heard in the Class 1 jurisdiction of the Court and, in accordance with s.37 of the Land and Environment Court Act, I was assisted by Senior Assessor Jensen and Assessor O'Neile. </TT> <TT></TT> <TT>The Council tendered all objections received by it and I have considered additional written submissions from persons who wrote to the Court but who did not give oral evidence, for example, Father N P Grady. Mr Reed was the only local resident who gave evidence in the proceedings. </TT> <TT></TT> <TT>History of Development Application</TT> <TT></TT> <TT>BHP first made a development application for a Mini Mill at Lot 7 DP701186 Kellogg Road, Rooty Hill, to the Council on 13th October 1987. The development was relevantly "designated development" and the application was accompanied by an environmental impact statement. BHP has asked the Court to grant development consent to an amended application. I shall return to the details of the application as submitted to Council by BHP and to its proposed amendments in due course.</TT> <TT></TT> <TT>Prior to the lodgment of the application, the then Minister for Planning and Environment, the Hon R J Carr MP, directed the Council, pursuant to s.101 of the Environmental Planning and Assessment Act, to refer the application to the Secretary of the Department for determination by the Minister. The Minister took this course because he was of the opinion, I infer, that the application was of significance for State or regional environmental planning. </TT> <TT></TT> <TT>In accordance with the provisions of the Environmental Planning and Assessment Act and upon Council's request, a Commission of Inquiry was established and a public hearing was held before Commissioner Woodward between 16 February 1988 and 17 March 1988. Commissioner Woodward reported to the Hon D Hay, Minister for Local Government and Planning in May 1988. The Commissioner recommended that the Minister grant consent subject to conditions referred to in his Report. The Commissioner's Report was lengthy and comprehensive and identified all relevant environmental issues including those of regional and State significance. The Commissioner found that the proposed Mill was consistent with the regional planning and development objectives for western Sydney because of the location of suppliers of processed scrap material and the availability of customers for the rod and bar product. He also identified the employment opportunities likely to be generated by the Mini Mill and the advantage to the western part of Sydney of the establishment of a major industrial complex. </TT> <TT></TT> <TT>On 18 May 1988, the Minister revoked the previous direction. Thereupon, the Council became obliged to consider the application. The application was re-advertised and people who had previously made submissions were advised that, although the Council would consider all earlier objections, if any person wished to exercise his or her right of appeal to the Court under the Environmental Planning and Assessment Act, it would be necessary for that person to make a further submission. Thereafter, the Council received approximately 1375 submissions by way of objections of which 1226 were pro forma letters. Three submissions were in favour of the Mill and a petition headed "No Mill for Rooty Hill" but including no other information was forwarded to the Council. Previously, the Council had received more than 1300 individual submissions and petitions with approximately 5200 signatures.</TT> <TT></TT> <TT>The Council's Chief Town Planner prepared a comprehensive report for the Council in which he recommended that development consent be granted subject to a number of conditions. The Chief Town Planner's report was tendered but he was not called as a witness. It is here relevant to</TT> <TT>note that all planners who gave evidence have paid homage to the high quality of the Council's Town Planner's report. </TT> <TT></TT> <TT>On 14 September the Council resolved to refuse the application on the following grounds:</TT> <TT></TT> <TT>industry proposed to be operated by the is a prohibited development within meaning of Interim Development Order No. - Municipality of Blacktown - as an and hazardous industry. other buildings by reason of the processes the method of manufacture and the of the materials used and produced on of the noise, odour, smoke and dust this to the decision of the New South Wales Court Fat-Pty. Limited (1987 11 NSWLR 67) and of the Environmental Planning and (b) The development if approved would transform locality of Rooty Hill from a to heavy industrial, amenity the neighbourhood. The change in the be effected by a development of this bulk, external appearance and height and industrial would be contrary to the public In particular the Council rejects proposition that it is acceptable to the amenity of the village of Rooty and the natural environment adjacent to will inevitable in the development of the purposes land. In the Council's this development will not merely erode that amenity but change it so that the dominant feature of industry rather than a residential and area accommodating a small or hazardous industries" were prohibited. The definition of "offensive or hazardous industry" was as follows:</TT> <TT></TT> <TT></TT> <TT>industry which, by reason of the processes of the materials used or produced, requires from other buildings and includes those Trades Act 1902 as amended".</TT> <TT></TT> <TT></TT> <TT>This was similar to the Model Provisions which, however, made no reference to the Noxious Trades Act. As a result of the decision of the Court of Appeal in ACR Trading, the local planning scheme was amended to incorporate two new definitions distinguishing between offensive and hazardous as follows:</TT> <TT></TT> <TT></TT> <TT>or not forming part of a larger undertaking) which, reduce or minimise its impact have been employed, council considers should still be required to in a location isolated from other development (a) because such isolation is necessary as an (b) because it represents a significant hazard to health or life or property or the 'Offensive industry' means an undertaking (whether when in operation and when all measures proposed to or minimise its impact have been employed, council considers should still be required to in a location isolated from other development discharge the time of the Commission of Inquiry, the old definition of "offensive or hazardous industry" had not been amended and the Commissioner left open the question whether the subject application came within the definition as interpreted in Fat-Sel. </TT> <TT></TT> <TT>The Commissioner also identified and dealt with what were then considered to be the principal environmental matters arising for consideration. On appeal to the Court, the Court has all the powers and functions of the Council with respect to the application and undertakes what is described as a de novo hearing. But, of course, the Court has no budget to pursue its own independent inquiries and relies upon the parties to identify the issues for determination. The Commissioner had previously undertaken a full environmental assessment and, as I have said, dealt in detail with what the parties then identified as the major issues. The work of the Commission of Inquiry and the quality of the Blacktown Chief Town Planner's Report has enabled me to accept with confidence that the only real issues for determination are those nominated by the parties. All parties have accepted the findings of the Commission of Inquiry concerning the environmental and planning benefits of the proposed development i.e. that if approved will provide employment opportunities for a large number of people in the western part of Sydney and, because it was a major industrial complex, will be of advantage to the region generally. The issues before the Court related to the nature and extent of the adverse local environmental impacts and whether those impacts should outweigh the admitted regional benefits so as to require that consent be refused. </TT> <TT></TT> <TT>On behalf of the Council and the objectors, it was submitted that, notwithstanding the evident regional advantages consent should be refused because of the adverse local impacts. On behalf of the Company, it was submitted that the local adverse impacts will not be as severe as the objectors claim and those that will result can be attended to by the imposition of appropriate conditions. In the resolution of the ultimate issue i.e. whether or not to grant consent and, if so, subject to what conditions, it became necessary for the Court also to consider, as well, the availability of alternative sites for the Mini Mill by reason of the development being "designated development" and also because of the Director's requirements made pursuant to the Regulation.</TT> <TT></TT> <TT>Before turning to the planning merits, there are two legal issues for determination. The first is whether the development is relevantly "hazardous" or "offensive" or both. The second is whether it is open to the Court to entertain BHP's amended proposal (or any part of it). If the Court has the power to entertain the amended application, a further question arises whether, in the exercise of its discretion, it ought to grant consent for the application as amended. With respect to the second matter, it should be noted that it is BHP's case that if its amended proposal cannot be entertained, it seeks development consent for the application which was before the Council. </TT> <TT></TT> <TT>The Amendments</TT> <TT></TT> <TT>In order to understand whether it is open to the Court to entertain the amendments proposed by BHP, it is necessary to describe in some detail the development as proposed and the suggested amendments.</TT> <TT></TT> <TT>The subject site is approximately 27.09 hectares. It is located at Kellogg Road, Rooty Hill, and has a frontage to the full length of the southern side of the dead end leg of that road. A creek flows through the land near the south eastern corner. The surface towards the southern part of the site is relatively flat with a slight upward grading towards Kellogg Road. The land is topographically</TT> <TT>and dimensionally suitable for a large industrial development. </TT> <TT></TT> <TT>There are major industrial developments to the north and north west, namely, Humes Concrete Plant Factory and Frozen Food Specialists Pty. Limited. Frozen Food Specialists Pty. Limited undertake activities in a large building known as the Kellogg building. To the east, the site adjoins a substantial vacant allotment which is zoned for industrial purposes and which separates the subject land from the "Nuragingy" Recreation Reserve. The southern boundary of the site is the railway line through Rooty Hill. The major part of the western boundary of the site (being that section of the site not bounded by the Kellogg's building) is intended for an expressway to be known as the Phillip Parkway. Station Street runs north and south to the west of the site and is fully developed with good quality residential cottages along its western side. To the north of Station Street is the Kellogg building and to the south is a large Works Depot occupied by the Blacktown Council. The Works Depot is covered with buildings and paved parking areas. It is proposed that the expressway will adjoin and run parallel to Station Street on its eastern side and will thus pass between the residential development on the western side of Station Street and any existing factory buildings to its east. As the proposed expressway moves south, it will curve away from Station Street generally following the western boundary of the subject site and pass between the subject site and the Council Works Depot referred to above. Approximately two thirds of the dwellings in Station Street will be separated from the site by Station Street, the proposed expressway (Phillip Parkway) and industrial properties. The remaining cottages in Station Street will be a considerable distance from the western boundary of the site.</TT> <TT></TT> <TT>In its application to the Council, BHP proposed the erection of a number of industrial buildings most of which will adjoin and interconnect to produce a very large building approximately 400 metres in length. It is proposed to melt scrap in an electric arc furnace, cast billets, reheat billets by the use of a natural gas fired reheat furnace and, finally, to roll finished steel into bars and rods for use in the building construction industry. The building complex will be oriented in a north south direction and will have substantial protuberances to the east giving an "E" shaped configuration to the complex. The main manufacturing processes will take place within the "E" shaped complex.</TT> <TT></TT> <TT>Two access ways were originally proposed - one from near the bend in Kellogg Road and the other from the eastern dead end of the street. A weighbridge and security cage were to be located on the second access road. The first mentioned access way was to be located about 12m from the boundary of the Kellogg building and was to run north south.</TT> <TT></TT> <TT>Immediately to the south of the Kellogg property and on the western side of the first mentioned access way, in line one after the other, was proposed a large electrical switch yard, a separate office and amenities building, and a workshop/store. Immediately behind these three facilities was proposed an elongated parking area for 150 cars. The substantial area of land between the buildings and the western boundary of the property (being the proposed expressway) was proposed to be landscaped to include a continuous tree planted elevated mound strip, the length of the expressway boundary, to provide screening from the expressway and from the urban development further to the west, particularly the residential development in Station Street.</TT> <TT></TT> <TT>Immediately to the south of the main building complex was proposed an open slag treatment area, dust control plant, referred to as the bag house, and a settlement pit. On the eastern side of the main building complex, and within the "E", was to be located a large open supplementary scrap storage area. The two separate access ways were to be linked by a connecting road immediately south of the main complex and passing between that building and the slag treatment area. It is proposed that there will be two high, slender chimney stacks and a fume extraction conduit of considerable size rising high above the arc furnace building (also referred to as the melt house). </TT> <TT></TT> <TT>The buildings are to be constructed primarily of steel frames with metal colour bond cladding. Internal absorption treatment of the cladding is proposed as needed.</TT> <TT></TT> <TT>At the hearing, BHP tendered amended plans which varied the plans placed before Council in the following manner:</TT> <TT></TT> <TT>1. The large fume extraction conduit above the arc furnace will be about 1 metre higher than originally southern exposed position to behind the main building and the "E" configuration. The revised dust one in the original proposal,</TT> <TT></TT> <TT>4. The external scrap storage is to be reduced in size to workshop/store building is to be moved from its position south of the office and amenities factory all is to be from a proposed eastern roadway at the end of Kellogg Road and an emergency access only entire main building complex is to be shifted will make the proposed development more economically efficient. In particular, the proposed relocation of the baghouse will be cheaper to install and will be less costly to maintain, with the result that people close to the Mill, particularly those in Station Street, will be better protected against noise. </TT> <TT></TT> <TT>The present application is for "designated development". In order to determine whether it is open to the Council, and hence the Court, to entertain the amendments, regard must be had to s.85 of the Environmental Planning and Assessment Act which provides:</TT> <TT></TT> <TT></TT> <TT>"(1) Notwithstanding section 84, where -</TT> <TT></TT> <TT>(a) a development application referred to in s.84 which has not been determined by the consent authority is amended, or substituted by an subsequent development application, or the development application so referred to is withdrawn and a subsequent development application is made with respect to substantially the same development; and</TT> <TT></TT> <TT>(b) the consent authority has with respect to that development application referred to in section 84 complied in all respects with that section,</TT> <TT></TT> <TT>the consent authority may, if it is of the opinion that there is no necessity, by reason that the amended or subsequent development application differs only in minor respects from the former development application, to comply with s.84 with respect to the amended or subsequent development application, decide to dispense with further compliance with that section in relation to that application, and compliance with that section in relation to the former development application shall be deemed to be compliance in relation to the amended or subsequent development application".</TT> <TT></TT> <TT></TT> <TT>It must always be a question of fact and degree whether what is proposed by way of amendment should be the subject of a fresh application or not. (See Parkes Development Pty. Limited v. Cambridge Credit Corporation & Anor. 33 LGRA 196.) Section 91 of the Environmental Planning and Assessment Act authorises a consent authority to grant consent subject to conditions and conditions may be imposed if, inter alia, they relate to "any matter referred to in section 90(1) of relevance to the development the subject of the consent". As Hope JA observed in Parkes Development, a construction of the powers of council that would require every material variation of the plans to be re-advertised could give rise to immense administrative problems and long delays. He also noted that a construction which would allow councils to approve significant variation of plans without notice would frustrate the apparent purpose of the legislation. </TT> <TT></TT> <TT>In the present case, it is submitted on behalf of the Council and the objectors that if BHP wishes any or all of the amendments, it must undertake the whole process anew including the preparation of a fresh environmental impact statement and advertisements. BHP has submitted that all or some of its amendments ought be allowed, but if not, it asks the Court to assess its application without the amendments. </TT> <TT></TT> <TT>In my opinion, the amendments can be entertained by the Court and, if development consent is to be granted, there is no reason why it should not be granted in accordance with the amended plans. The amended plans do not alter in any way the substance of the development - it remains a Mini Steel Mill and it will function exactly the same way as that contemplated by the original application. Its output will be the same, the number of trucks coming to the site will remain the same, visually it will be slightly reduced in height and its environmental safeguards will remain the same (except that they will become slightly more efficient). In short, the development as amended will be no different from that which BHP originally proposed. The proposal to move the complex 10 metres to the north and to relocate the baghouse are, in all the circumstances of this case, relatively minor in the overall context of the development. </TT> <TT></TT> <TT>Although the Council and the RHRAG have suggested that there may be some hidden environmental consequences if the amendments are allowed, no credible evidence has been forthcoming to give any substance to these theoretical objections. I have already referred to the skill and expertise of the Council's planning department. I am entitled to infer, I think, that if there were any matters of substance in opposition to the suggested amendments beyond mere speculation, I would have heard about it. In my opinion, the Court has a discretion to consider the amendments and it is appropriate that I do so. I have had regard to the circumstance that the development has been the subject of intense scrutiny by the Department of Planning when it was called in by the Minister, it was the subject of a public inquiry and it has been exhaustively assessed during the six weeks Court hearing. In these circumstances, and bearing in mind the relatively minor nature of the amendments, it would be absurd that the entire environmental assessment process should start again. There is no credible evidence that the amendments will be other than beneficial to both BHP and the residents in the immediate locality. Having determined that I have the power to entertain the amendment, I also think it relevant when considering whether I should accede to BHP's request, if consent were granted to the original proposal and if an application were made for modification to a consent granted as originally asked for, the views of the people presently represented before me would be the people entitled to be heard. Those people are not, in my opinion, disadvantaged or prejudiced by the amendments and, accordingly, I propose to consider them and, if development consent is to be granted, to grant it subject to the plans as amended.</TT> <TT></TT> <TT>"Offensive" and "Hazardous"</TT> <TT></TT> <TT>As I have said, prior to the amendment and in common with the Model Provisions, the local planning scheme defined "offensive or hazardous industries" in a composite way. In ACR Trading Pty. Limited v. Fat-Sel Pty. Limited 11 NSWLR 67, the Court of Appeal held that an industry would not cease to be a "hazardous or offensive industry" by reason only that the special features of the particular way in which the industry is conducted would not require "isolation from other buildings". It was pointed out that the prohibition extended to a "broad classification which is concerned with the "'industry' and not the particular use". Kirby P instanced an example of what could occur if a narrower view were accepted. His Honour gave the example of an industry using nuclear materials. In these circumstances, His Honour observed, it would be entirely appropriate to require the materials to be the subject of strict regulation and isolation and the mere fact that the appellants had used every precaution to avoid the danger would not make the industries any the less "offensive or hazardous". As I have said above, the Model Provisions have been amended and two new definitions have been included in the local planning instrument.</TT> <TT></TT> <TT>The parties have identified the "hazardous" or "offensive" aspects of the development as those relating to noise. In this regard, reference should be made to the separate heading "Noise" in this judgment. To the extent that a suggestion lingers that it could relate to other matters (and I did not understand that to be the Council's case) there is no evidence that anything else about the development would be "relevantly hazardous or offensive". As will be seen, after noise attenuation measures have been undertaken, the level of noise at houses in the locality will be marginally above the optimum conditions set out in the SPCC's Noise Manual Guidelines but still within the extreme limits. In these circumstances, in my respectful opinion, it could hardly be said that the Mill needs isolation from other development as an additional "safety precaution" or that after attempts have been made to attenuate noise, the development represents a "significant hazard to human health or life or property or the biophysical environment".</TT> <TT></TT> <TT>Contrary to BHP's submission, I am prepared to assume that noise emanating from an industrial activity is capable of being encompassed by the phrase "emission of any polluting discharge" as that phrase must be relevantly understood. However, in the present case, when all measures are taken to reduce or minimise the impact of the noise generated by the Mill, I do not think, for reasons set out above, that the undertaking, or any part of it, is required to be in a location isolated from any other development whether that development be development external to the site or part of development on the site. As will be seen, the noise levels in Station Street, being the existing background noise together with that caused by BHP's</TT> <TT>activities, will be no greater than noise levels in many other parts of the metropolitan area.</TT> <TT></TT> <TT>There have been a number of submissions concerning the meaning and difficulty of application of the new definitions of "hazardous" and "offensive". Whatever difficulties there may be in the many hypothetical illustrations explored in submissions, I am of the firm opinion that what BHP proposes is neither "hazardous" nor "offensive" as those terms must be relevantly understood and, accordingly, the development is not prohibited.</TT> <TT></TT> <TT>Merit Environmental and Planning Issues</TT> <TT></TT> <TT>There were four identified environmental and planning issues, namely, general planning amenity (including the visual impact of bulk, height, etc.), noise, traffic and alternative sites. Although it is necessary to deal individually with these matters, I keep in mind that I must consider the cumulative effect of all the adverse consequences and weigh them against all the benefits for the purpose of determining whether consent should be granted and that consent is not to be granted merely because no one single identifiable issue is sufficient to justify refusal. </TT> <TT></TT> <TT>General Planning Amenity</TT> <TT></TT> <TT>As I have said above, I have considered a number of written objections submitted to the Council and to the Court. Only one local resident gave evidence in the proceedings. Although Station Street was identified as the closest residential area to the development, no one from Station Street was called. When the development was first proposed by BHP there was a belief among a large number of residents of Rooty Hill that BHP proposed building an integrated steel works at Rooty Hill similar to the integrated steel works at Port Kembla and Newcastle. So much is made clear from the many letters of objection. It is also clear that objector perception in this regard was incorrect. Not only was BHP not proposing to build an integrated steel works but the environmental consequences of the Mini Mill bear little similarity to the steel works at Port Kembla and Newcastle. The purpose of the Mini Mill is to recycle scrap for bars and rods. Many of the fears entertained by the objectors (albeit reasonably entertained upon an assumption that what was proposed was an integrated steel mill) concerning air and water pollution now no longer have any rational foundation. Furthermore, as I shall endeavour to explain when I deal with the separate issue of noise pollution, although it may have been reasonable for people to have believed the development might create an unacceptable level of noise, it is now clear that the noise from the electric arc furnace and the rolling mill can be satisfactorily attenuated. </TT> <TT></TT> <TT>It appeared to be submitted by the objectors that I should take cognizance of the fact that the subject site should not have been zoned 4(a) (heavy industry). It was suggested that because the site is immediately adjacent to a residential street, it should have been zoned 4(b) (light industry) to act as a sort of buffer. Indeed, in final submission it was submitted that any heavy industry, not merely a Mini Mill, is unacceptable for the site notwithstanding that it is zoned for that purpose. It is said by some planning experts that people must have had "expectations" that there would be no heavy industry on the subject land. (Although planning experts opined about these "expectations", I have not received any direct oral evidence about this matter other than from Mr. Reed who, in any event, does not live in Station Street.) </TT> <TT></TT> <TT>I am obliged by law to have regard to the environmental planning instrument (see s.90(a)(i)) and to the circumstance that the land is zoned 4(a). That, of course, does not mean that because the land is zoned to permit heavy industry, BHP has an entitlement as of right to establish a Mini Mill on the site. However, I cannot refuse BHP's application upon the sole ground, as has been urged by some of the expert planners called in these proceedings, that the land was zoned incorrectly. But to the extent that I can have regard to the appropriateness of zoning, it is important, I think, to note that the subject site has been zoned 4(a) since 1970. The zoning followed the Sydney Regional Outline Plan (SROP) which identified areas of Sydney for industrial development taking into account proximity to roads and railway lines. I would necessarily have to have regard to the circumstance that SROP identified the proposed Phillip Parkway as an expressway travelling along the western boundary of the industrial land separating it from Rooty Hill. I appreciate that what I have said above could be described, to some extent, as speculation but, in my opinion, it is reasonable speculation in answer to the somewhat extravagant claim that the land was incorrectly zoned. </TT> <TT></TT> <TT>I do not pay a great deal of attention to BHP's claim that the majority of people now living in Station Street came to live there in the last 10 years. First, because I do not think people in Station Street should be subjected to unacceptable environmental impacts, if they exist, merely because they knew the land was zoned for heavy industry. Secondly, the impact of the development will extend well beyond the people who live in Station Street. However, I do place importance upon the circumstance that the land has been zoned for heavy industrial use for almost 20 years. Furthermore, I would assume, contrary to the view urged by some in these proceedings, that people generally make intelligent inquiries and receive intelligent answers. A hypothetically reasonable person would have known since 1970 that since it would be open to the Council to grant development consent for some form of heavy industry on the subject site, it was at least possible that heavy industry would be established on the site. </TT> <TT></TT> <TT>But as I have said above, although a large number of people objected in writing to the development and although it is asserted on their behalf that their "expectations" would be that there would be no heavy industry, only one resident gave evidence. I do not want it thought that I am making any criticism of the way the case was presented on behalf of the objectors. Their views, particularly with respect to noise and traffic, were comprehensively presented. It would be undesirable for the Court to be flooded with residents giving evidence when it is unnecessary. But because only one person gave evidence, it is not easy to determine the present status of the objections beyond accepting, as I do, that opposition to the Mill remains strong. Although I have had regard to all the written objections, it is difficult to appreciate the extent and reasonableness of all the objections. For example, a number of people objected on the ground that the water in the area was likely to be polluted by reason of BHP's activities. The evidence demonstrates that will not occur. A number of people were concerned that the air would be polluted. Although there is undoubtedly a potential for the emission of fumes if the baghouse fails, the earlier objections were based upon an assumption that BHP could not prevent air pollution. The evidence makes it plain that BHP can prevent any air pollution and although it was asserted that if the safeguards failed some air pollution would occur, no credible evidence was called denying BHP's claim. </TT> <TT></TT> <TT>At one stage in the proceedings it appeared to be suggested by an expert called by the Council that I should have regard to perceptions notwithstanding that those perceptions were irrationally based. (I should also point out in fairness that this submission was rejected, in terms, by the very people on whose behalf it was said to be made viz. the members of the Rooty Hill Residents Action Group. Indeed RHRAG asserted that their perceptions concerning, for example, noise and traffic, were not irrationally based and that the Council's purpose in describing them as irrational was to demean and debase the quality of objections reasonably held). Although it may be appropriate in circumstances far removed from the present case to have regard to what might be loosely called irrationally based perceptions, it would be quite inappropriate, in my opinion, for me to have regard to irrational perceptions concerning, for example, water pollution. The question I have to determine is whether there is any substance to the objections that have been made by the residents and if there is, whether those objections can be attended to by conditions or so operate to require that the consent should be refused. </TT> <TT></TT> <TT>There can be no doubt that the proposed complex, if built, will be of considerable height and bulk and will be larger than any other building complex in the Rooty Hill area. Being located on relatively low lying land, its visibility will be less than it would be if it were located on higher areas. It will be visible from the industrial land near Kellogg Road, from a substantial part of Station Street and from elevated land around Rooty Hill, most of which has been residentially developed. However, many of the viewing points referred to above would be a considerable distance from the mill. Its most significant impact will be on people living in and about Station Street. However, the buildings while large, are of modern design, of neat appearance and will be of a colour chosen to blend into the background. Furthermore, it cannot be overlooked that the building will be located in a 27 hectare site and approximately 350 metres from the nearest house in Station Street. The residents of Station Street presently are exposed to the Kellogg building and the Council depot. It is self-evident that a large building located at a distance is not as obtrusive or overbearing as one located on an adjoining allotment a few metres away. The land is separated from the houses by Station Street itself and, as will be seen, it is proposed that a freeway will separate the houses from the subject land. Accepting, as I do, that, although no person from Station Street has given evidence, </TT> <TT>the visual amenity objection is still maintained, I do not think the impact will be as severe as is submitted. </TT> <TT></TT> <TT>Furthermore, I do not think the complex will pose real problems for the users of the Nurragingy Reserve. First, because the subject land is separated from Nurragingy Reserve by another industrial site which, I assume, will be developed in the future. Secondly, because the size and nature of Nurragingy Reserve, which I had the opportunity of inspecting, is such that, in my opinion, the users of that Reserve will not be unduly troubled by the presence of the proposed complex.</TT> <TT></TT> <TT>Noise</TT> <TT></TT> <TT>Unless acoustically treated, the operation of the Mini Mill and, in particular, the operation of the electric arc furnace, will cause noise to an unacceptably high level for people living in the vicinity of the development. BHP has said that it can attenuate noise emission and no evidence has been called to the effect that it cannot achieve the goals set for it by the State Pollution Control Commission. Mr Challis, whose evidence in this regard I accept, has expressed the expert opinion that it can and in this regard he was not cross examined. </TT> <TT></TT> <TT>The Council and the objectors assert BHP's design goal of 40dB(A) at night time on the basis of L90 ambient will have the result that the SPCC's Guidelines with respect to properties on a busy road or near an industrial site will be exceeded. Those Guidelines, it is said, establish a level of 40dB(A) which will be exceeded by approximately 3dB(A) when BHP's noise is measured with other background noise. There is no dispute between the parties concerning the level of day time noise. The noise issue centres around whether the SPCC's standard of 40dB(A) at night was relevantly "acceptable". The Council and the objectors attach overwhelming significance to that part of the Guidelines in which it is recommended that outdoor background noise for residential properties on busy roads in industrial areas at night should be 40dB(A). In fact, the Guidelines referred to in the SPCC's Noise Manual set an acceptable level of 40dB(A) and an extreme limit of 45dB(A). </TT> <TT>It must be steadily borne in mind that the parties were arguing over a difference of no more than 5dB(A) as an appropriate environmental goal for the locality at night. Furthermore, it must be remembered that the Guidelines are what their name implies, namely, guidelines only. There are indeed some internal inconsistencies in the Guidelines themselves which are only capable of resolution upon an understanding that they are guidelines only. Furthermore, it must be remembered that I am not here concerned with noise emanation that can sensibly be regarded as being injurious to health. The issue is whether the noise generated by the mill when in production will lead to "unacceptable levels to local residents at night". I accept the evidence of Mr Train that the standards imposed by the SPCC with respect to the environmental goal for the area and the design goal for BHP are acceptable and appropriate. Mr Train has pointed to the facts that the area is close to a railway line, is an industrial area, is to be separated from the residential area by a freeway and is in the vicinity of a large council truck depot. Accordingly, I am satisfied, having accepted the evidence of Mr Train, that the environmental goal established for the area by the SPCC and the design goal it seeks to impose on BHP are appropriate and reasonable. Furthermore, I reject the submission that the SPCC has discriminated against the Rooty Hill community. Upon the evidence, I do not think that the approach taken by the SPCC at Rooty Hill is inconsistent with the approach it has adopted at Kurnell and Ingleburn. </TT> <TT></TT> <TT>On the evidence before me, the levels of noise will not be "unacceptable" accepting, as I do, that BHP can successfully attenuate the noise to meet the design goal set for it. The result will be that provided noise can be attenuated in the manner proposed, i.e. kept to a level of 40dB(A) at night on an L90 basis, the resulting noise level on adjoining residential area will, as a result, rise by approximately 2dB(A) below what is considered desirable as an environmental goal by the SPCC (that is, 45dB(A) L90 at night). Before departing from this matter, I think it is important to observe that the L90 of 45dB(A) is not unusual in the metropolitan areas of Sydney and is commonplace where residences are in the vicinity of an arterial road. </TT> <TT></TT> <TT>Nurragingy will be closed at night time. In my opinion, it is therefore not unreasonable to set a design goal of L90 50dB(A) at the boundary. </TT> <TT></TT> <TT>Traffic</TT> <TT></TT> <TT>Upon the construction of stage 1 of the Phillip Parkway (being that part of the expressway from Woodstock Avenue across the railway line to Eastern Road) almost all local traffic problems likely to be generated by the development will be eliminated. BHP has offered to pay for half the cost of the Parkway being $2.2 million indexed as at December 1987. When Stage 1 of the Parkway is built, it will mean that many vehicles presently passing through Rooty Hill will use stage 1 of the Parkway. It is fairly clear that BHP's offer of contribution to the construction of stage 1 of the Parkway exceeds what could be exacted under s.94 (assuming it was a council road). But Council wishes a condition of consent that BHP also contribute to the upgrading of the local roads, a matter to which I will shortly return. </TT> <TT></TT> <TT>Although BHP has offered to construct half of stage 1 of the Parkway from Woodstock Avenue to Eastern Road, it has always been its case that the arterial and sub-arterial roads in the area could adequately accommodate the traffic coming to and leaving its developed site. BHP's development will generate approximately 250 truck movements per day. It would seem to me that although there may be some need to upgrade certain roads as, for example, Woodstock Avenue between Station Street and Rooty Hill Road North and the overbridge in Power Street, the likelihood is that trucks would not travel through the residential part of Rooty Hill. It may be that unless the Parkway is built some drivers, notwithstanding persuasion to the contrary, will stray into the residential locality. Doubtless this is one reason why BHP has offered to contribute to the Parkway. If the Parkway is not built, it would be reasonable, in my opinion, to impose as a condition of consent that BHP contribute, pursuant to the provisions of s.94 to the cost of upgrading local roads. Although the upgrading of local roads together with a traffic management plan to discourage vehicles entering the residential area of Rooty Hill would not be as satisfactory an environmental result as the construction of Stage 1 of the Parkway, I do not think the development application should be refused by reason of traffic considerations. That is, I take account of the possibility that the Government will not build Stage 1 of the Parkway before the Mill commences full production (which would be about the end of 1990) and also of the unlikely possibility that Stage 1 will not be constructed for many years hence, if at all. Nonetheless, I do not think traffic considerations require that the application be refused. I shall return to this matter later in the judgment. </TT> <TT></TT> <TT>Alternative Sites</TT> <TT></TT> <TT>I do not propose to spend a great deal of time on the question of alternative sites. A number of earlier sites were investigated and rejected. The Commission of Inquiry also examined the question of alternative sites. The Court is under an obligation to consider the question of alternative sites not only because the development is a "designated development" but also because it is an aspect of the assessment which the Director required the Council to undertake. Since the development process began in 1987, a number of alternative sites have been suggested. All but one, for one reason or other, have been eliminated. Reference was made by Commissioner Woodward to Huntingwood but that site is now no longer suitable. The Department accepts that BHP's site selection process is appropriate and the Council appears to consider that BHP has adequately addressed the question of alternative sites. However, RHRAG is not satisfied. It called evidence that other sites have not been sufficiently explored. It is difficult to attempt to identify alternative sites at this stage of the assessment process. It having been established that almost every "alternative" is no longer available or is inappropriate, further alternatives are then suggested. The only remaining site suggested is one at Smeaton Grange. It would seem to me, with respect, that even if Smeaton Grange were in fact demonstrated to be a reasonable likely alternative, it has probably come too late in the assessment process. If Rooty Hill were to be refused and Smeaton Grange selected, doubtless someone would urge that there should be an alternative site to Smeaton Grange, particularly those people who live in the vicinity.</TT> <TT></TT> <TT>Although the objectors originally nominated Huntingwood and Horsley Park as "alternative sites", they were later rejected as being either unavailable or inappropriate. Just prior to the hearing, it was submitted that Horsley Park was an appropriate alternative site. At the hearing, however, it became apparent that it was no longer available. The report that identified Horsley Park as being a reasonably appropriate site dealt with Smeaton Grange and it was said that "Smeaton Grange would only be feasible if a major new electricity sub-station were constructed in the Minto area which would necessitate a re-ordering of Elcom's future plans". It was suggested in that report that unless Elcom's future plans were "re-ordered", the development costs of Smeaton Grange would be "excessive". After it had become apparent that Horsley Park was no longer available, it was then suggested that the electricity constraints previously identified and referable to Smeaton Grange were not as serious as had previously been thought. However, the flimsy material upon which it is now suggested that Smeaton Grange is an alternative site persuades me that Mr Mitchell's earlier view concerning it was correct viz. that it is not a feasible alternative. I am of the opinion that Rooty Hill is a suitable industrial site for the proposed mill. I accept that BHP's site selection criteria was adequate and appropriate. This does not mean, of course, that because the industrial site is appropriate, the Court would grant consent for that reason alone. It does mean, however, that if the Court is otherwise satisfied that the development should proceed, it would not refuse development consent because of an alleged "alternative" site. </TT> <TT></TT> <TT>I have come to the conclusion that, subject to the appropriate conditions being imposed, development consent ought be granted to the amended application. The parties have submitted draft conditions. I do not propose to give reasons with respect to all 61 conditions. A reading of the conditions will make it plain why I selected one or other suggestion. However, I do propose to give reasons for conditions with respect to noise, traffic, s.94 contributions and production rates.</TT> <TT></TT> <TT>Conditions</TT> <TT></TT> <TT>The noise conditions are intended to reflect the design and environmental goals set by the SPCC. The RHRAG's suggested goals are rejected because to impose them would be, in effect, to deny the development. The Department's condition does not differ markedly from the Council's except that the Council wishes a noise goal of 40dB(A) L90 day or night at Nurragingy Reserve whereas the Department requires a goal of 40dB(A) L10 during the day and considers that because the Reserve is not used at night, it is not necessary to impose any separate night time requirements. It will be noted, however, that I have imposed noise conditions in the form of performance standards. </TT> <TT></TT> <TT>The RHRAG and the Council seek a condition that no construction work be undertaken on the site until stage 1 of the Parkway is constructed which, it is believed, will occur towards the end of 1990. The Department seeks a condition that the production on the site not commence until the Parkway is completed. Mr Ayling, who has appeared on behalf of the Minister, informed me that the Government had a commitment to construct Stage 1 of the Parkway with BHP's contribution (if BHP is granted development consent) and that it would be completed towards the end of 1990. </TT> <TT></TT> <TT>The construction of Stage 1 of Phillip Parkway will not only have the effect of taking most trucks going to and leaving BHP's site out of the local arterial and sub-arterial roads but will also be of considerable benefit to the general locality because it will take other truck movements which would otherwise pass over those arterial and sub-arterial roads. However, as I have said above, I am not persuaded that the construction of Phillip Parkway is essential in the sense that if it is not constructed development consent should not be granted. Although BHP has committed itself to the half the cost of constructing the Parkway, I do not think it is reasonable that work on the site or production should be dependent upon the Parkway being completed i.e. I do not think that any stage of the development should be conditional upon the Parkway being completed although doubtless such an impact as the development will have on the residents of Rooty Hill will be minimised as soon as the Parkway is completed. I think it is appropriate to record in this judgment the public statement made by Mr Ayling on behalf of the Minister that the Government would construct the Parkway by the end of 1990. However, as I have said, this is not a matter over which BHP has legally enforceable control. If Stage 1 of the Parkway is not built, it is reasonable, in my opinion, for me to impose as a condition of consent that BHP make a monetary contribution pursuant to s.94 to upgrade local roads. If, however, Stage 1 of the Parkway is built or commenced by the time BHP commences production, it is not reasonable, in my opinion, for BHP to make such a contribution because it will have already contributed to the resolution of the problems associated with its development to an extent far exceeding that which s.94 would require. In my opinion, upon the facts as found by me, the appropriate solution is that unless final tenders for Stage 1 of the Parkway are accepted prior to the end of January 1991, BHP should contribute money pursuant to s.94 to upgrade the local roads. I take account of the statements made in Court that it will be "highly and inherently unlikely" that Stage 1 will, in fact, not be constructed before the commencement of the production of the mill i.e. towards the end of 1990. On economic grounds, there is a good reason why that should be so because BHP has offered to pay half the cost. However, the Government is required to undertake an environmental assessment of the proposed Parkway and it is possible (although, as Mr Ayling submits, not probable) that either Stage 1 of the Parkway will not be built or that it will not be commenced by the beginning of 1991. In my opinion, the appropriate condition is to impose a condition, pursuant to s.94, that BHP make a monetary contribution to upgrade local roads, the amount to be indexed as at the date of the consent but the imposition of the requirement conditional upon the tenders for the Parkway not having been accepted by the 31 January 1991. I appreciate that a consequence of this decision may be that BHP will be required to make a contribution under s.94 and, sometime in the future, may be required to contribute to the construction of stage 1 of the Parkway if it is legally required so to do. I am not privy to the contractual arrangements between BHP and the Government, although I would be surprised if, in the event the Parkway cannot be built on environmental grounds, BHP is still required to contribute $2.2 million. I am informed by Mr Ayling, on behalf of the Minister, that if consent is granted and it is lawful so to do, it would be "highly unlikely" that the Parkway will not be built by the end of 1990. If that is so, it will mean that BHP will contribute $2.2 million as indexed to the construction of the Parkway which will be of general benefit to the local area. If, for one reason or another, Stage 1 of the Parkway is not built, then BHP will be obliged to make a substantial, but lesser, contribution by way of s.94 to the upgrading of the local roads. </TT> <TT></TT> <TT>Before passing from s.94 contributions, I should mention that BHP is prepared to make a contribution to the local area traffic management study and to the construction of a footpath in Station Street. The Council has sought a contribution of $254,510.00 for the upgrading of the local roads and $41,069.00 for the construction of an overbridge and car road. It also seeks a contribution of $340,000.00 for the construction of a roundabout at the intersection of Knox Street and Power Street. Although BHP did not query the methodology employed by the Council with respect to the s.94 contributions for the upgrading of local roads, it did not agree that its claim for $340,000.00 for the roundabout was reasonable. No attempt was made by the Council to justify the figure which seems to be extraordinarily high. But doing the best I can and drawing upon the general experience of the Court with respect to these matters, I think it is appropriate to make an allowance for $80,000.00 for the roundabout. The condition requiring contribution for the upgrading of the local roads, the building of the overbridge and the construction of the roundabout are, as I have said, conditional upon tenders for the Parkway not being accepted prior to 31 January 1981.</TT> <TT></TT> <TT>The objectors seek a condition that BHP contribute a sum for the maintenance of the roads calculated by reference to tonnage. BHP submits that such an exaction is not lawful. The matter need not be further explored because I have come to the conclusion that, upon the assumption, that such a condition would be within power, that it is not appropriate that it be imposed in the present case. It is not sought by the Council (who has the obligation to maintain the roads) and, in any event, BHP is prepared to contribute half the cost of Stage 1 of the Parkway and if the Parkway is not constructed, it is required to contribute a substantial amount to upgrade local roads etc..</TT> <TT></TT> <TT></TT> <TT>Finally, there was some dispute between the parties as to whether BHP should be permitted to exceed its 250,000 tonne production by 2% (as contended for by the Council) or whether there should be a limit of 250,000 tonnes permitted to be increased by 10% during the construction stage and thereafter production to be unlimited. I do not accept the submission on behalf of BHP that it should have an unlimited production capacity. BHP has not made out a case for unlimited production either in its environmental impact statement or in its presentation to the Court. I do not think the matter is resolved in BHP's favour by pointing to the circumstance that there will be a limited number of trucks coming to the site and that the noise constraints are to remain the same. However, I consider that an appropriate condition would be to permit the 250,000 tonne rate to be increased by 5%.</TT> <TT></TT> <TT>The formal order of the Court, therefore, is that development consent be granted to development application DA87-216-7 by BHP Steel International Group Road and Bar Products Division as described in the application to the Council and as amended plans numbered L11933/1 dated 14 November 1988 and L11934/1 dated 9 November 1988 subject to the following conditions. </TT> <TT></TT> <TT>CONDITIONS</TT> <TT></TT> <TT></TT> <TT>1. Limitation of Approval</TT> <TT></TT> <TT>The proposed development shall be carried out generally in accordance with plans numbered L11933/1 dated 14/11/88 and L11934/1 dated 9/11/88 and Environmental Impact Statement dated 26/9/87 prepared by BHP Engineering certified in accordance with s.77(3) of the Environmental Planning and Assessment Act except where there is an inconsistency between the proposed development as presented in the Environmental Impact Statement.</TT> <TT></TT> <TT>2. Limitation of Approval - Production Capacity</TT> <TT></TT> <TT>This consent is granted in respect of production levels not exceeding by more than 5% 250,000 tonnes p.a. of finished product. The number of truck movements shall not exceed more than 250 p/day.</TT> <TT></TT> <TT>3. Fire Safety Study</TT> <TT></TT> <TT>Within six months of the date of the consent or such further period as the Director of Planning may agree, the applicant should prepare and submit for the approval of the Director a fire safety study which shall include the following matters:</TT> <TT></TT> <TT>(a) An outline of all fire prevention, protection and fire fighting measures and appliances.</TT> <TT></TT> <TT>(b) Details of the type, capacity and proposed location upon the site of all appliances and reason for their suitability as proposed.</TT> <TT></TT> <TT>(c) Details of availability of fire fighting water, location of connections, rate of application supported by full hydraulic calculations.</TT> <TT></TT> <TT>(d) Provisions of any other fire prevention, protection and fighting methods.</TT> <TT></TT> <TT></TT> <TT>A copy of the approved Fire Safety Study shall be furnished to Council not later than 10 days after its approval by the Director.</TT> <TT></TT> <TT>4. Fire Study Implementation</TT> <TT></TT> <TT>The applicant should comply with the requirements of the Director in respect of the implementation of any measures arising from the said fire study within such time as may be required by the Director but prior to the commencement of operations of the proposed development. </TT> <TT>5. Noise Control Measures The applicant shall install and operate noise control equipment in accordance with the requirements of the State Pollution Control Commission. Details of these requirements and measures to be undertaken are to be submitted to the Blacktown City Council. </TT> <TT></TT> <TT>6. Noise Objectives</TT> <TT></TT> <TT>A. The applicant shall ensure that the steel mill project is designed to meet Design Objectives (goals) not to be exceeded A) at any residential boundary of:</TT> <TT>(i) for broad band continuous noise 45 dB(A) L10 night time and 49dB(A) L10 day time;</TT> <TT></TT> <TT>(ii) for repetitive impulse noise 40dB(A) and 44dB(A) L10 night time and day time respectively;</TT> <TT></TT> <TT>(iii) for short term intermittent noise 55dB(A) LA1 and 59dB(A) LA1 night time and day time respectively;</TT> <TT></TT> <TT>B) at the western boundary of Nurragingy Reserve of 50dB(A) L10 day time as specified by the SPCC.</TT> <TT></TT> <TT></TT> <TT>B. Prior to commencement of substantial construction and/or installation of each stage of the development, the applicant shall submit to the SPCC for approval details of the acoustical design of each stage of the mini steel plant and buildings and in particular the noise reduction measures proposed for the electric arc furnace, ladle furnace, continuous casting machine, reheat furnace, rolling mill, cooling bed, electrical switch yard and any other external noise attenuation measures necessary to meet the above design objectives. The designs are to be verified by an accredited acoustical engineer, to be approved by the SPCC. All work identified by the SPCC in regard to meeting the above design objectives for each production stage of the development is to be carried out on site prior to the commencement of production of that stage. The applicant shall also forward to Council details of SPCC requirements and approvals relating to noise attenuation measures.</TT> <TT></TT> <TT>7. Construction Noise</TT> <TT></TT> <TT>A. During construction of the approved development, all necessary work and/or measures as identified and required by the SPCC, are to be undertaken or incorporated on site to ensure compliance with the following design objectives:</TT> <TT></TT> <TT>(a) for up to (4) four weeks an L10 level of not more than 20dB(A) above the then current background noise level;</TT> <TT></TT> <TT>(b) for up to (26) twenty six weeks and L10 level of not more than 10dB(A) above the then current background noise level; and</TT> <TT></TT> <TT>(c) for more than (26) twenty six weeks and L10 level of not more than 5dB(A) above the then current background noise level</TT> <TT></TT> <TT>provided that these noise objectives may be varied by the SPCC in its consideration of noise attenuation features to be incorporated on site.</TT> <TT></TT> <TT>B. Construction work shall comply with condition 7A. during the following hours:</TT> <TT></TT> <TT>Monday - Friday 7.00 a.m. to 6.00 p.m.</TT> <TT>Saturday - 7.00 a.m. to 1.00 p.m..</TT> <TT></TT> <TT>At other times, construction noise, including noise regenerated by trucks on site shall be limited to the noise goals approved for the completed plant unless otherwise approved by the Council after consultation with the SPCC.</TT> <TT></TT> <TT>8. Siren Noise</TT> <TT></TT> <TT>The applicant shall ensure that sirens or PA systems are not audible at nearby residential premises or at the Nurragingy Recreation Area in accordance with the SPCC requirements.</TT> <TT></TT> <TT>9. Environmental Noise</TT> <TT></TT> <TT>A. The applicant shall measure environmental noise emissions on a statistical basis over a series of measurement periods during a typical operation shift and at such locations as determined by the SPCC. These measurements shall be performed over a sample period of not less than 20 minutes. The parameters to be determined shall include the A-weighted percentile levels designed at LA1, LA10, LA90 and LA99. Instruments shall conform to the requirements of Australian Standards AS 1259 for instruments classified as Type 1.</TT> <TT></TT> <TT>B. The applicant shall make measurements prior to and on the commissioning of the plant and at quarterly intervals during the first three years of operation. Should the results show continuing satisfactory performance, a reduction in the frequency of measurements may be reduced with the consent of Council.</TT> <TT></TT> <TT>C. The applicant shall submit an annual report, under the hand of a qualified acoustic engineer, to the SPCC and Council detailing the acoustical performance of the steel mill with specific reference to the plant's performance in regard to established design objectives and established environmental objectives.</TT> <TT></TT> <TT>D. The applicant shall comply with any reasonable requirements of the SPCC in respect of measures to be taken arising from such monitoring.</TT> <TT></TT> <TT>E. The applicant shall ensure that monitoring equipment and stations installed for the purpose of providing information on noise generated by the development are available at any time for inspection by Council.</TT> <TT></TT> <TT>10. Vibration</TT> <TT></TT> <TT>The applicant shall ensure that any vibration at residential boundaries due to the construction and/or operation of the plant in accordance with the SPCC requirements.</TT> <TT></TT> <TT>11. Noise Control Devices for Trucks</TT> <TT></TT> <TT>The applicant shall ensure that all heavy vehicles that regularly service the site shall at all times be fitted with noise control devices to comply with the ADR 28A Noise Emission Standards.</TT> <TT></TT> <TT>12. Proposed Vehicular Access</TT> <TT></TT> <TT>The proposed vehicular access doors in the southern elevation of the scrap handling building are to be closed during the night time hours 10.00 p.m. to 6.00 a.m..</TT> <TT></TT> <TT>13. External Scrap Area</TT> <TT></TT> <TT>A. The scrap steel stock piles in the external scrap storage area shall not be greater than 10m in height and shall be limited to shredded scrap only.</TT> <TT></TT> <TT>B. Devices approved by the Council's Chief Town Planner to measure scrap height up to 10m shall be installed for the guidance of plant operators. The approval of the devices by the Council's Chief Town Planner shall not be unreasonably withheld.</TT> <TT></TT> <TT>14. Hours of Operation</TT> <TT></TT> <TT>The applicant shall ensure that the following hours of operation are strictly adhered to for the following activities:</TT> <TT></TT> <TT>(a) The delivery of scrap to the external scrap storage area shall be confined to the hours of 7.00 a.m. to 5.00 p.m. Monday to Friday. No such deliveries shall be permitted on weekends or public holidays.</TT> <TT></TT> <TT>(b) The removal of scrap from the external scrap storage areas shall be confined to the hours of 7.00 a.m. to 5.00 p.m. daily.</TT> <TT>(c) The processing of slag and slag treatment area and dispatch of slag and other waste products from the site shall be limited to the hours between 7.00 a.m. and 7.00 p.m. daily.</TT> <TT></TT> <TT>(d) Until the first stage of the Phillip Parkway is constructed, access to the site for scrap delivery vehicles shall be restricted to the hours 6.00 a.m. to 10.00 p.m. week days and 7.00 a.m. to 1.00 p.m. Saturdays and product dispatch shall be restricted to 6.00 a.m. to 10.00 p.m. week days and 7.00 a.m. to 1.00 p.m. Saturdays.</TT> <TT></TT> <TT>15. Air Pollution Control</TT> <TT></TT> <TT>The development shall be provided with appropriate air pollution control devices to the satisfaction of the SPCC. The applicant shall also forward to the Council details of SPCC's requirements and approvals related to such devices.</TT> <TT></TT> <TT>16. Hazard and Operability Study</TT> <TT></TT> <TT>(a) Prior to the commencement of substantial construction of the proposed development, or such further period as the Director of Planning may agree, the applicant shall submit for the approval of the Director a Hazard and Operability ("HAZOP") study of the plant with specific reference to the detailed final design of the proposed air pollution control and associated systems.</TT> <TT></TT> <TT>(b) The HAZOP study shall be prepared by an independent qualified person to be approved by the Director.</TT> <TT></TT> <TT>(c) The HAZOP study shall account for all atypical operating conditions within the air filtration and associated systems, including all aspects of plant malfunction.</TT> <TT></TT> <TT>(d) The HAZOP study shall include a comprehensive emergency plans and details of emergency procedures in respect of the development.</TT> <TT></TT> <TT>(e) The applicant shall ensure that persons who are adequately trained to cope with any emergency at the mill will be present at all times whilst the mill is operating. Details relating to the expenses and training of such persons, together with staffing arrangements for them at the mill, shall be included in the HAZOP study.</TT> <TT></TT> <TT>(f) The applicant shall comply with all requirements of the Director resulting from the HAZOP study within such time as specified by the Director but prior to the commencement of the operation. The results of the study and the requirements of the Director relating thereto shall be made available to the Chief Town Planner.</TT> <TT></TT> <TT>17. Shut-off Systems</TT> <TT></TT> <TT>The applicant shall install adequate monitoring and plant shut-off systems for the air filtration systems, to the satisfaction of the Director of Planning, prior to the</TT> <TT>commencement of the operations and generally in accordance with the HAZOP study.</TT> <TT></TT> <TT>18. Ambient Air Quality Monitoring</TT> <TT></TT> <TT>A. Prior to the commencement of any production on the site and during the operation of the plant, the applicant shall formulate and implement comprehensive ambient air and stack monitoring programmes and procedures to the full satisfaction of the SPCC. Such programmes and procedures (details of which are to be furnished to Council upon request) are to include:</TT> <TT></TT> <TT></TT> <TT></TT> <TT>(a) An adequate number, not less than four, of dust deposition gauges near the boundary of the plant to record fallout of dust to be measured and recorded at frequencies and in a manner as required by the SPCC;</TT> <TT></TT> <TT>(b) measurements and reporting of suspended particles at frequencies to be determined by SPCC;</TT> <TT></TT> <TT>(c) meteorological instrumentation installed to the satisfaction of SPCC and designed to continuously measure essential parameters of dispersion meteorology;</TT> <TT></TT> <TT>(d) an opacity metre to enable continuous stack monitoring of baghouse discharge to the atmosphere. This opacity metre shall be installed within the discharge and comply with SPCC's requirements;</TT> <TT></TT> <TT>(e) provision of adequate alarm facilities to activate emergency procedures should emissions from the baghouse be exceeded;</TT> <TT></TT> <TT>(f) I do not think this should be imposed in view of the fact that this is not a real problem and in any event it would be an unjustifiable expense for the Company;</TT> <TT></TT> <TT>B. The applicant shall, to the satisfaction of SPCC, establish a continuous monitoring station on a site selected and agreed to by the SPCC, such monitoring station to include a meteorological instrumentation to measure wind speed and direction, a fallout dust gauge and a high volume volume sampler or other suitable mechanisms for measuring and detecting the presence of fine particles. The monitoring referred to in this condition shall be located so as to provide ambient air quality data relevant to those residential areas nearest the plant and shall be in operation within three months of the granting of this consent, or within such time as determined by the SPCC to enable pre-operation levels to be recorded.</TT> <TT></TT> <TT>C. The applicant shall ensure that any monitoring stations or equipment installed by the applicant to provide information on air quality are available at any time for inspection by SPCC and Council and copies of all data output shall be sent to SPCC and Council at three monthly intervals or upon request.</TT> <TT></TT> <TT>D. The applicant shall comply with any reasonable requirement of the SPCC following consultation with the Chief Town Planner resulting from the above required monitoring and within such time as determined by the SPCC.</TT> <TT></TT> <TT>19. Air Pollution Control Measures</TT> <TT></TT> <TT>A. All roads and the truck parking areas on the subject land shall be cleaned weekly or as necessary so as to minimise airborne dust generation.</TT> <TT></TT> <TT>B. Prior to the commencement of production from the site, full details of the method of treatment and handling of dust particles trapped by the baghouse are to be submitted to the SPCC for approval.</TT> <TT></TT> <TT>C. The applicant shall design the Dust Control Plant (baghouse) so that the average concentration of the particulate material in the emissions of the plant shall be not greater than 50mg per normal cubic metre, as defined in the Clean Air Act Regulations 1961, at any one time.</TT> <TT></TT> <TT>D. The applicant shall design the electric arc furnace building to the principle of total enclosure so as to prevent the emission of fugitive fume from this building other than to the dust control plant.</TT> <TT></TT> <TT>20. Height of Stacks</TT> <TT></TT> <TT>The height of all stacks to be installed as part of the development are to be designed in accordance with the requirements of the SPCC and Civil Aviation.</TT> <TT></TT> <TT>21. Storm Water Management Plan</TT> <TT></TT> <TT>Prior to the commencement of construction work, the applicant shall obtain approval from the SPCC in regard to the proposed storm water management system covering both the construction and operation stages of the development. The</TT> <TT>applicant shall not commence any work on site until all the relevant requirements of the SPCC have been met.</TT> <TT></TT> <TT>22. Water Treatment Plant</TT> <TT></TT> <TT>Prior to the commencement of substantial construction of the proposed development or within such time as determined by the Chief Town Planner but prior to the commencement of any operations on the site, the applicant shall comply with all the requirements of the SPCC and the Water Board, concerning the design, construction and operation of the water treatment plant. The applicant shall submit to the Blacktown City Council details relating to the requirements and approvals of the Water Board and the SPCC. </TT> <TT></TT> <TT>23. Water Settlement Pit</TT> <TT></TT> <TT>All hard standing areas specified by the SPCC are to be drained to a water settlement pit provided with an oil/grease separation mechanism in accordance with the requirements of SPCC.</TT> <TT></TT> <TT>24. Potential Site FLooding</TT> <TT></TT> <TT>The water settlement pit and slag treatment areas are to be constructed so as to be free of any potential site flooding. These areas are to be suitably bunded or otherwise protected to ensure that flood and drainage waters will not enter these areas at any time.</TT> <TT></TT> <TT>25. Water Sampling</TT> <TT></TT> <TT>Water discharge from the settlement pit is to be regularly sampled to ensure that such is free of contaminants. Sampling results and an appropriate report are to be forwarded to the SPCC in accordance with the requirements of the SPCC. The applicant shall be required to comply with any reasonable requirements of the Council resulting from its assessment of the sampling reports.</TT> <TT></TT> <TT>26. Rehabilitation</TT> <TT></TT> <TT>The applicant shall ensure adequate provision is made in the development for erosion and sediment control and the rehabilitation of disturbed areas following excavation/construction works on site. Such measures are to be designed in accordance with the requirements of the Soil Conservation Service of New South Wales and the SPCC. Particular attention is to be given to the retardation of storm water flow so as to prevent the loss of topsoil and possible siltration of the nearby Eastern Creek. Details of measures to be incorporated are to be submitted to the SPCC and Council for approval prior to the commencement of earthworks on site.</TT> <TT></TT> <TT>27. Landscaping</TT> <TT></TT> <TT>A. Prior to the commencement of on-site construction works for the proposed development, the applicant shall prepare and submit for the approval of the Chief Town Planner, detailed landscaping design and management plans, to scale, including details showing:</TT> <TT></TT> <TT>(a) The provision of a contour plan, having a contour interval of not less than 500m, indicating existing site levels and final design contours, including details of a mounding and substantial batters;</TT> <TT></TT> <TT>(b) the planting of shrubs and trees chosen from species indigenous or suitable to the area, and of appropriate size and height at maturity to effectively enhance the proposed development;</TT> <TT></TT> <TT>(c) landscape setbacks along the road frontages of the site and along the boundaries of the site in order to provide an effective vegetative visual screen of the development;</TT> <TT></TT> <TT>(d) the position and size of proposed shrubs and trees nominating both their common and botanical names;</TT> <TT></TT> <TT>(e) the location of all buildings, fences, roads, parking and storage areas on site and the landscape treatment of all areas not paved or built upon;</TT> <TT></TT> <TT>(f) the retention of all existing trees situated in proximity to the drainage easement to the south eastern corner of the site;</TT> <TT></TT> <TT>(g) the crest of required earth mound(s) adjacent to the western boundary of the site being a minimum of 4m above the existing ground level and surmounted by landscaping, and located to the satisfaction of the Chief Town Planner; and</TT> <TT></TT> <TT>(h) the landscape treatment of on-site car parking areas to provide shade and protection for vehicles parking on the site.</TT> <TT></TT> <TT>B. The landscaping plans referred to above are to specifically provide for dense planting, to provide a substantial visual screen, adjacent to the southern, western and eastern boundaries of the site, adjacent to the drainage easement which traverses the south eastern corner of the subject land and to the south and east of the external scrap storage areas. Earth mounds and batters are to be incorporated to achieve the desired effect.</TT> <TT></TT> <TT>C. The required landscaping plans are to include a separate plan indicating provision for earth mounding and preliminary landscape works including grass seeding of earth mounds and provision of quick growing native trees to be undertaken prior to the commencement of construction works on site. These provisions are to make suitable provision for the screening of construction activities from the nearby residential areas and for the suitable protection of all trees required to be retained on site in a manner to be approved by the Chief Town Planner.</TT> <TT></TT> <TT>D. The applicant shall make payment of a cash contribution to the Council of $2610.00 to enable trees to be planted in Station Street, Kellogg Road and any other nearby street in which the Council considers tree planting to be desirable.</TT> <TT></TT> <TT>E. The proponent shall ensure that all landscaping work required for each stage of the development is carried out to the satisfaction of Council and effectively maintained at all times to the satisfaction of the Chief Town Planner in accordance with approved landscaping plans.</TT> <TT></TT> <TT>28. Fencing</TT> <TT></TT> <TT>A manproof fence is to be provided along the frontage of the site to Phillip Parkway and along the southern and eastern boundaries of the site.</TT> <TT></TT> <TT>29. Site Maintenance</TT> <TT></TT> <TT>Provision to be made for the premises to be maintained in a clean and tidy state at all times.</TT> <TT></TT> <TT>30. Car Parking</TT> <TT></TT> <TT>The applicant shall provide a minimum of 135 car parking spaces together with driveways that shall be constructed, paved and line marked to Council's satisfaction. Engineering details of the construction of these areas shall be lodged for approval with the building application. The provision of on-site visitor car parking is to be sign posted at the car access on Kellogg Road.</TT> <TT></TT> <TT>31. Internal Roads</TT> <TT></TT> <TT>The applicant shall ensure that all car parking areas, driveways, internal roads and maneuvering areas are constructed from hard standing all weather material and that appropriate sign posting and line marking are included in accordance with the requirements of Council. All work is to be maintained to the satisfaction of the Town Engineer.</TT> <TT></TT> <TT>32. Vehicle Loading</TT> <TT></TT> <TT>All vehicle loading and unloading operations are to take place entirely within the site grounds of the approved development. </TT> <TT></TT> <TT></TT> <TT>33. Vehicle Ingress</TT> <TT></TT> <TT>The applicant shall erect appropriate signs at the vehicle entrance to the development from Kellogg Road and on site to ensure that vehicles are directed to their appropriate destinations.</TT> <TT></TT> <TT>34. Advertising Structures</TT> <TT></TT> <TT>No approval is given for any advertising structures and Council's separate approval is to be obtained for any proposed advertising signs.</TT> <TT></TT> <TT>35. City Engineer Requirements</TT> <TT></TT> <TT>The applicant to comply with the reasonable requirements of the Council Engineer with respect to the following:</TT> <TT></TT> <TT>(a) The construction of appropriately designed industrial vehicular crossings of the footway at Kellogg Road alignment. Where the internal roadways fall towards Kellogg Road, grated drains and pipe discharges shall be provided at the street alignment;</TT> <TT></TT> <TT>(b) the finished level of all internal works at the road boundary of the property being conducted to Council Engineer's requirements;</TT> <TT></TT> <TT>(c) the existing watercourse across the south eastern corner of the subject land is to be suitably upgraded to the requirements of the Council's Engineer;</TT> <TT></TT> <TT>(d) the developed areas of the site are to be suitably filled if and where required so as to be above the one in one hundred year flood level of Eastern Creek and its tributaries to the satisfaction of the Council Engineer;</TT> <TT></TT> <TT>(e) drainage from the site shall be connected to the Council's drainage system to the satisfaction of the Council Engineer. Details to be submitted to Council for approval;</TT> <TT></TT> <TT>(f) the piering and beaming of all construction adjacent to the easement over the subject land to</TT> <TT>the depth of the invert of the proposed/existing pipeline;</TT> <TT></TT> <TT>(g) all development to be kept clear of the drainage easements within the property and no amendment to the existing surface levels within the easement is to be made without the prior approval of Council; </TT> <TT>(h) the works listed above must not be commenced until full details of the design thereof have been submitted to and approved by Council;</TT> <TT></TT> <TT>(i) the road design checking and inspection fee of $850, the cost of which includes a copy of Council's specifications, must be paid to Council when submitting engineering plans for approval prior to construction;</TT> <TT></TT> <TT>(j) vehicular crossing inspection fees of $100 must be paid prior to construction. Prior to approval of the afore required engineering plans, documentary proof of the payment of the levy required by the Building and Construction Industry Long Service Payments Act, 1986, together with a detailed estimate of the cost of the work must be submitted to Council;</TT> <TT></TT> <TT>36. Building Application</TT> <TT></TT> <TT>The applicant shall submit a building application for each stage of the development to Council and obtain all necessary building approvals from Council and comply with any conditions relating thereto to Council's requirements prior to the commencement of the building of each stage of the development. The Council shall deal with building applications on a stage basis.</TT> <TT></TT> <TT>37. Other Approvals</TT> <TT></TT> <TT>This consent does not relieve the applicant of the obligation to obtain any other approval required under the Local Government Act 1919 as amended or the Ordinances made thereunder (including approval of building plans) or any other Act.</TT> <TT></TT> <TT>38. Provision for Disabled Persons</TT> <TT></TT> <TT>Access for disabled persons is to be provided throughout the plant where appropriate and where disabled persons may be employed. Details are to be included with the relevant building application.</TT> <TT></TT> <TT>39. Statutory Responsibilities</TT> <TT></TT> <TT>The applicant shall meet the requirements of all public authorities having statutory responsibility in respect of the development including the SPCC, Board of Fire Commissioners, Soil Conservation Service, Roads and Traffic Authority (RTA), Metropolitan Waste Disposal Authority (MWDA), Water Board, Prospect County Council and Telecom Australia and shall furnish Council with copies of all approvals required by such public authorities.</TT> <TT>40. SPCC Approvals and Licences</TT> <TT></TT> <TT>The applicant shall obtain from the SPCC all statutory approvals and licences required as a result of obligations imposed under the Clean Air Act 1970, Clean Waters Act 1961 and the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/nca1975168/">Noise Control Act</A> 1975.</TT> <TT></TT> <TT>41. Department of Industrial Relations</TT> <TT></TT> <TT>The applicant shall comply with the statutory requirements of the Department of Industrial Relations and Employment.</TT> <TT></TT> <TT>42. Discharge of Sewer</TT> <TT></TT> <TT>The applicant shall comply at all times with the requirements of the Water Board concerning the discharge of effluent and trade waste of the Board's sewerage system.</TT> <TT></TT> <TT>43. Waste Disposal</TT> <TT></TT> <TT>Prior to the commencement of construction work on the site or within such period as may be determined by the Chief Town Planner the applicant shall consult and obtain all necessary approvals from the MWDA concerning the disposal of any liquid or solid wastes generated from the operations of the proposed development.</TT> <TT></TT> <TT>44. Aviation Requirements</TT> <TT></TT> <TT>The applicant shall formally notify and obtain all necessary approvals from the Civil Aviation concerning the height, lighting and marking of buildings and stacks on site prior to the commencement of construction works. Details to be forwarded to Council.</TT> <TT></TT> <TT>45. Archaeological Material</TT> <TT></TT> <TT>The applicant shall ensure that if in the course of site preparation construction any archaeological material is found all activity in the area shall cease immediately; the applicant shall forthwith give written notice to the National Parks and Wildlife Service (the Service) and shall not resume activity until it has complied with reasonable requirements of the Service.</TT> <TT></TT> <TT>46. Water and Electricity Supply</TT> <TT></TT> <TT>The Developer shall submit an application to the Water Board and the Prospect County Council giving details of the proposed development for determination of water/sewerage and electricity supply or requirements respectively. Prior to the commencement of production, the applicant shall submit to Council letters from Prospect County Council and the Water Board to the effect their respective requirements have been satisfied. </TT> <TT>47. Services</TT> <TT></TT> <TT>The applicant shall make satisfactory arrangements with the Australian Telecommunications Commission and the Australian Gas Light Company with respect to the provision of reticulation of telephone plant and supply of natural gases and shall submit to Council documentary evidence that all requirements of these authorities have been met prior to the commencement of operations.</TT> <TT></TT> <TT>48. Lighting</TT> <TT></TT> <TT>A report prepared by a qualified lighting engineer shall be prepared and submitted to the Chief Town Planner for approval prior to the installation of any permanent external lighting on site. The report shall identify the means employed to minimise light nuisance at adjoining properties and give full details and specifications of the proposed lighting. All lighting incorporated during the construction phase of the development shall be directed away from residential areas and be wholly to the satisfaction of the Chief Town Planner at all times.</TT> <TT></TT> <TT>49. Footpath</TT> <TT></TT> <TT>The applicant shall pay to the Council the sum of $9800 towards the construction of a footpath to Rooty Hill Railway Station along the reservation of North Parade. The said sum shall be paid on completion of the footpath. </TT> <TT></TT> <TT>50. Architectural Features</TT> <TT></TT> <TT>The applicant shall supply full details of the architectural features of all structures detailing the type and colour of all external cladding or rendering to be used prior to submission of a building application for approval by the Chief Town Planner.</TT> <TT></TT> <TT>51. Contributions</TT> <TT></TT> <TT>The following contributions pursuant to s.94 of the Environmental Planning and Assessment Act shall be paid to the Council no later than 31 January 1991 for the following services and amenities:</TT> <TT></TT> <TT>Roads $254,510.00</TT> <TT>Overbridge at Power Street 41,069.00</TT> <TT>The upgrading of the roundabout</TT> <TT>at the intersection at Knox Road</TT> <TT>and Power Street 80,000.00</TT> <TT></TT> <TT>provided always that the said sum shall not be payable if on or before 31 January 1991 the Roads and Traffic Authority has accepted a tender for the construction of the first stage of the Phillip Parkway from Eastern Road to Woodstock Avenue. Such contributions are to be indexed in accordance with the Consumer Price Index published each February commencing April <A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1989/25.html?query=%7E%201989#disp3" name=disp4><IMG alt="<<" border=0 src="BHP Ltd v Blacktown City Council [1989] NSWLEC 25 (1 April 1989)_files/contextup.gif"></A>1989<A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1989/25.html?query=%7E%201989#disp5"><IMG alt=">>" border=0 src="BHP Ltd v Blacktown City Council [1989] NSWLEC 25 (1 April 1989)_files/contextdown.gif"></A>.</TT> <TT></TT> <TT>52. Weighbridge</TT> <TT></TT> <TT>The applicant shall install weighbridge facilities for materials and products received by road. All vehicles carrying goods or materials for receipt or dispatch other than finished steel products shall be subject to weighbridge checks. Weighbridge records shall be kept for two years and shall be produced to Council upon request. </TT> <TT></TT> <TT>53. Traffic Routes</TT> <TT></TT> <TT>The traffic routes used by heavy vehicles regularly servicing the site shall be approved by the Chief Town Planner. The applicant shall seek adherence to vehicles under the applicant's control to use such routes. The applicant shall enter into contractual agreements with operators of heavy vehicles which are to regularly service the site. The contract shall require the adherence by contractors, heavy vehicles or suppliers as appropriate to the use of such routes.</TT> <TT></TT> <TT>54. Local Area Traffic Management</TT> <TT></TT> <TT>The applicant to contribute the sum of $6600.00 towards the cost of a local area traffic management study for the area bounded by Railway Street, Duke Street, Woodstock Avenue, Station Street and North Parade. The said sum to be paid within one month of the Chief Town Planner certifying that the study is ready to commence.</TT> Development Commissioning</TT> <TT></TT> <TT>The applicant shall submit to Council written documentation identifying the date of commissioning of the development.</TT> <TT></TT> <TT>56. Annual Report</TT> <TT></TT> <TT>Until the abandonment of the development or until otherwise directed by Council the applicant shall prepare and submit to Council an Annual Report in respect of implementation and effectiveness of conditions contained in this consent and supported where appropriate with results from monitoring programmes and shall bring to the notice of Council those matters which the applicant considers may require further investigation. Further, the applicant shall comply with any reasonable requirements of Council relating to the implementation of its conditions of consent. The first report shall be submitted one year from the date of commencement of operations of the proposed development.</TT>

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Land and Environment Court of New South Wales

LEGAL REPRESENTATIVES:

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