Land and Environment Court New South Wales Medium Neutral Citation: Paper Trade Processing (Aust) Pty Limited v Liverpool City Council [2018] NSWLEC 20 Hearing dates: 8 and 9 February 2018 Date of orders: 09 February 2018 Decision date: 09 February 2018 Jurisdiction: Class 1 Before: Moore J Decision: At [11] Catchwords: APPEAL - development application - issues resolved between the parties - consideration of matters raised by objector - objector's concerns resolved by final design of proposal - consent granted Category: Principal judgment Parties: Paper Trade Processing (Aust) Pty Limited (Applicant) Liverpool City Council (Respondent) Representation: Counsel: Dr S Berveling, barrister (Applicant) Mr R O'Gorman-Hughes, barrister (Respondent) Solicitors: G&B Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 47929 of 2017 Publication restriction: No EX TEMPORE Judgment 1. HIS HONOUR: The first matter that is before the Court this morning is an appeal by Paper Trade Processing (Aust) Pty Limited (the Applicant) seeking the approval of the Court for development consent for a waste processing and recycling facility at 49 Heathcote Road at Moorebank. 2. When the matter was originally the subject of contest between the parties, Liverpool City Council (the Council) raised a wide variety of contentions as a basis upon which the development application should not be approved. Those contentions are now entirely resolved and the parties have agreed on the terms of conditions of consent that should attach to the granting of development consent to the facility. 3. It is, however, necessary for me to deal with concerns that were raised by an objector to the proposed development who spoke during the course of the site inspection on Monday, 5 February 2018 on behalf of a business known as Multipack Pty Ltd, (Multipack), of which he is the Managing Director. Mr Rawson, the Managing Director of Multipack, spoke concerning the impacts that the present operations of the Applicant on the site had had on the premises occupied by Multipack, immediately to the west at 47 Heathcote Road. Those concerns were not to the question of whether or not such a facility should be permitted on 49 Heathcote Road but related to the way the Applicant has, in the past, been undertaking its operations on the site. 4. Mr Rawson's concerns were summarised in a document entitled "Notes taken of evidence by the objector on site on 5 February 2018" which was tendered and became Exhibit 11 in the proceedings. 5. The first of the concerns raised by Mr Rawson was the stacking of bales of plastic or paper materials against the wall that is the southern boundary of Multipack's property and that that piling of bales of plastic or paper materials had extended high above the roofline of that common wall. He was concerned that, in a recent storm event, material had blown from those stacked bales into a box-gutter along the boundary wall and had caused flooding within his premises. 6. I am satisfied that that matter will be addressed by the Revision 10 plans for which consent is to be granted. Those Revision 10 plans are in a form which does not permit the stacking of bales of material along the wall with 47 Heathcote Road but do permit the location of six shipping containers along that wall, shipping containers that are to be one container high and are to contain materials being stored by the Applicant in the proceedings. There will therefore be no material along that wall, stacked uncontained or above the wall with 47 Heathcote Road. 7. The second concern that he expressed was that there was the potential for litter to blow over the wall of his premises. I am satisfied that the containment measures that are contained in the revised site plan adequately address that. As a more general proposition, the shape of material to be attached to, and extended slightly higher than, the present material on the perimeter fencing will also act to reduce the possibility of any waste material blowing both onto the surrounding properties or onto the public domain at the front of the premises. 8. The final matter of concern that was raised by Mr Rawson was the fact that Multipack's insurance underwriter had raised concern about combustible materials being stacked against the wall because his firm, Multipack, was a business which, amongst other things, packed dangerous goods and aerosol products. I am satisfied that the use of the six shipping containers along that wall act as a significant preventative measure to the risk of any fire escaping to 47 Heathcote Road. 9. I also observe, as a matter of generality, that traffic issues, including the internal swept paths for the site; a gap for fire safety reasons between stored material and the rear boundary of the site and the like have been dealt with. 10. I am satisfied that the agreement by the Council that the development, as proposed, is permissible at the location is a correct agreement. 11. A consequence of all of that, there now being no dispute about conditions of consent and me being satisfied that the matters raised by the objector have been addressed adequately, the orders of the Court are: 1. Leave is granted to rely on Revision 10 site plans; 2. The appeal is upheld; 3. The Applicant's development application for use of 49 Heathcote Road, Moorebank as a waste and resource recovery facility to process and store 28,000 tonnes of material per annum is determined by the granting of consent, subject to the conditions in Annexure A; and 4. The exhibits, other than Exhibits A, B and 1 are returned. Final conditions of consent - 9 Feb 18 (4.17 MB, pdf) ********** Amendments 27 February 2018 - The orders at [11] were amended to accord with the wording of the orders in JusticeLink. The substance of the orders is not affected. 27 February 2018 - Annexure A attached to the decision. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 February 2018