Land and Environment Court of New South Wales CITATION : 115 Constitution Road Pty Limited v Marrickville Council [2007] NSWLEC 418 APPLICANT 115 Constitution Road Pty Limited PARTIES : RESPONDENT Marrickville Council FILE NUMBER(S) : 10113 of 2007 CORAM: Tuor C Development Application :- Cap and contain on site contamination KEY ISSUES: Adequacy of Site Audit Report and Environmental Management Plan Conditions of approval Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environment Planning Policy 55 - Remediation of Land Marrickville Local Environmental Plan 2001 DATES OF HEARING: 15/06/2007 EX TEMPORE JUDGMENT DATE : 18 June 2007 APPLICANT Dr S Berveling, barrister instructed by Ms C Georgiou of Levitt Robinson, Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr G Christmas, solicitor Marrickville Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 18 June 2007 10113 of 2007 115 Constitution Road Pty Limited v Marrickville Council JUDGMENT 1 This is an appeal against the refusal by Marrickville Council (the council) of a Development Application (200500296) to cap and contain on site contamination at 115-117 Constitution Road, Dulwich Hill (the site). 2 The Statement of Issues contained the following issues: 1) As at the date of this Amended Statement of Issues, the appointed Site Auditor has not issued a final Site Audit Statement stating that the site is suitable for its intended use. 2) As at the date of this Amended Statement of Issues, an Environmental Management Plan satisfactory to both the appointed Site Auditor and the Council has not been finalised. (3) There has been inadequate testing of soil gases under the basement slab. Such testing should be carried out to determine the extent of the risk which will then enable appropriate mitigation strategies to manage that risk. 3 At the date of the hearing these issues had been resolved between the parties. The only outstanding issue remained a dispute about the wording of condition 20 in the draft conditions of approval. 4 The site, its context, the background to the application and the statutory controls are set out in the Statement of Basic Facts. 5 Briefly, the site has an area of approximately 6239 sq m, which was largely contaminated. The site was rezoned from Light Industrial "B" to Residential "C" under Amendment No.18 to Marrickville Local Environmental Plan 2001 (LEP 2001). 6 On 14 July 2003, council approved a Development Application (200200467) subject to conditions for a residential development with 95 dwellings, a convenience store and basement parking (the 2003 consent). The conditions included a requirement that a Remediation Action Plan be submitted to council before the commencement of the work. Other conditions required that the remediation work be carried out in accordance with Marrickville Development Control Plan 29 - Contaminated Land Policy and Development Controls (DCP 29). 7 Section 6.16 – Containment/Capping of Contaminated Soil of DCP 29 provides: No contaminated soil shall be encapsulated or capped on the site that contains concentrations of contaminants that are above the soil investigation levels for urban development sites in NSW for the range of land uses permissible on the subject site. For example, a site zoned commercial/industrial shall not encapsulate or cap soil containing concentrations or contaminants above the 'commercial or industrial NEHF F health based investigation levels'. The soil investigation levels for urban redevelopment in NSW are contained in the EPA's Guidelines for NSW Site Auditor Scheme. 8 The soil on the site has contaminant concentrations exceeding the NSW Department of Environment and Climate (DECC) endorsed criteria for residential land use with minimal access to soil. 9 The development has been constructed with approximately 10,000 cubic metres of contaminated soil being removed from the site and approximately 8000 cubic metres being encapsulated under the basement of the development, which council submits does not comply with the remediation conditions in the 2003 consent and necessitates the current application. 10 The parties agree that even though the development has been constructed there is no impediment to the grant of development consent as the application seeks approval for the ongoing remediation of the site. 11 The application was lodged on 25 June 2005. It was advertised and notified and one objection was received, which raised concerns about encapsulation of the contaminated soil as an effective remediation measure. The objector was advised of the court hearing but did not seek to provide further oral evidence. Her written submission has been considered. 12 The application was refused on 15 March 2006, on the basis that a site auditor's report, as requested by council under the provisions of State Environment Planning Policy 55 - Remediation of Land (SEPP 55) was not provided. A review under s 82A was refused by council on 6 March 2007, on the basis that the site auditor has certified that the nature and extent of contamination has not been appropriately determined and consequently has not issued a Site Audit Statement that the site is suitable for its intended use. 13 The parties agreed that the proposal is category 1 remediation works under cl 9(f) of SEPP 55. Under cl 8(2) category 1 remediation works may only be carried out with consent. Clause 12(1) of SEPP 55 provides: The consent authority must not refuse development consent for a category 1 remediation work unless the authority is satisfied that there would be more significant risk of harm to human health or some other aspect of the environment from the carrying out of the work than there would be from the use of the land concerned in the absence of the work for any purpose for which it may lawfully be used. 14 Dr Ian Swane, the DECC accredited Site Auditor for the site has now issued a Site Audit Statement dated 14 June 2007. This certifies that the site is suitable for uses including "residential with minimal opportunity for soil access, including units". The certification is subject to compliance with the Environmental Management Plan prepared by Argus Pty Limited, dated 14 June 2007. 15 The Site Audit Statement applies only to the residential development approved under the 2003 consent. It includes the following comments: 3. A large volume of contaminated soil remains on the site at concentrations above the NSW DEC-endorsed criteria for residential land use with minimal access to soil. Groundwater at the site is also contaminated at concentrations that exceed NSW DEC-endorsed criteria for the protection of aquatic ecosystems and drinking water. 4. The main contaminants of concern are polycyclic aromatic hydrocarbons (PAHs) and petroleum hydrocarbons. It is possible that other forms of contamination not identified by investigations may remain in the fill layer such as asbestos and heavy metals. 5. The developer and their environmental consultant chose to manage the risks posed by the residual contamination by capping practically the whole site under reinforced concrete slabs and retaining walls, and to maintain the integrity of the cap through the implementation of an EMP prepared by Argus. Most of the cap is formed by the basement carpark, with all residential buildings located over this area. The triangular central portion of the site has been capped by concrete pavements that form a swimming pool area. 6. The only portion of the site not capped is a small triangular corner at the southern end of the site, which is located outside the development's security fence. No cap was constructed in this area because it is outside the filled area of the site and consists of natural clay soils. This area of the site has been landscaped. 7. The EMP requires the site to be managed in a way that minimises the risk of buried contamination from causing a risk of harm to users of the site. The EMP describes, among other things, a long term inspection and environmental monitoring program. 8. The EMP also advises among other things that: a) Contaminated soils are present in the railway embankment to the west of the site. b) Any topsoil, landscaping material or other soil that may be imported to the site must meet the NSW DEC standards for clean Virgin Excavated Natural Material (VENM). c) Groundwater should not be extracted and used at the site. d) The EMP should be fully implemented in accordance with the requirements of Marrickville Council. e) Responsibility for the implementation of the EMP lies with the site owner/s. The EMP should not be modified unless prior written approval is obtained from Marrickville Council. 9. Marrickville Council should include a formal notification mechanism so that future owners or other persons having an interest in the site are aware the contamination remaining at the site, this site audit statement and the attached EMP.… 16 On the basis of the Site Audit Statement and the Environmental Management Plan, council now considers the proposal to be satisfactory subject to conditions which include requirements that: · the development be carried out in accordance with the Site Audit Statement and the Environmental Management Plan. · the Environmental Management Plan may only be amended with the approval of council. · a positive covenant on the title of the land and the bi-laws require the current and future owners to comply with the Environmental Management Plan · a restrictive covenant on the use of the land to prevent damage to the slab. 17 The applicant objected to the wording of the proposed condition 20 relating to the inclusion of the Environmental Management Plan in the Strata Management Statement. However, during the course of the hearing, the parties agreed to amend the wording of this and other conditions to ensure that the obligation on the current and future owners (whether or not the proposal is strata titled) to comply with the Environmental Management Plan is articulated in the covenant and the bi-laws. Conditions have been included to ensure consistency between the 2003 consent and this application. 18 Dr Swane has stated that "the risks to future residents would be much higher if the contaminated soils had not been encapsulated in the manner they have been". 19 While it would have been preferable for the contaminated soil to be removed from the site, consistent with the requirements of DCP 29 and the 2003 consent, this has not occurred. 20 Clause 12(1) of SEPP 55 provides that the application cannot be refused as on the evidence of Dr Swane there would be a more significant risk if the proposal were not to occur. The Site Audit Report, the Environmental Management Plan and the conditions of approval, if properly implemented, will reduce the risk to an acceptable level and a level that is less than if the work were not undertaken. Orders 21 The Orders of the Court are therefore: 1. The appeal is upheld. 2. The development application (200500296) to cap and contain onsite contamination at 115-117 Constitution Road, Dulwich Hill, is approved subject to the conditions in annexure A; and 3. The exhibits, except exhibits 2, 3, 4, B, C and D, are to be retained. ___________________ Annelise Tuor Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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