Cherry King Pty Limited v Griffith City Council [2004] NSWLEC 624

Land and Environment Court of New South Wales

CITATION : Cherry King Pty Limited v Griffith City Council [2004] NSWLEC 624 APPLICANT Cherry King Pty Limited PARTIES : RESPONDENT Griffith City Council . FILE NUMBER(S) : 10729 of 2004 CORAM: Moore C Development Application :- KEY ISSUES: Hazardous substance Risk of exposure to neighbours and workers . Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy 33 - Hazardous and Offensive Development . CASES CITED: Weal v Bathurst City Council 111 LGERA 181; . DATES OF HEARING: 3 and 4 November 2004 EX TEMPORE 11/04/2004 JUDGMENT DATE :

APPLICANT Mr J Burrell, solicitor Burrell Solicitors

RESPONDENT Mr S Griffiths, solicitor (3 November) LEGAL REPRESENTATIVES: Ms S Duggan, barrister (4 November) INSTRUCTED BY Pike Pike & Fenwick

INTERVENOR (3 November) Mr S Ward, solicitor Cater & Blumer

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE C

4 November 2004

04/10729 Cherry King Pty Limited v Griffith City Council

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This matter is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal on 4 June 2004 by Griffith City Council (the council) of Development Application 21 of 2004. 2 The application is for the installation and operation of a fumigation unit at 470 Kidman Way, Hanwood, such unit being proposed to be used in conjunction with the applicant's existing cherry packing business and cherry packing processing plant.

3 During the course of the proceedings, it became clear to me (and I put to the parties) that there were three potential matters that were determinative in the proceedings. 4 The first of these related to the safety or acceptability of risk to safety of the use on the site of the proposed methyl bromide fumigation technology. 5 The second of these related to the planning acceptability of the proposal. 6 Finally, should the first two be answered in favour of the applicant, the third of these related to any additional matters which might arise pursuant to cl 13(d) of State Environmental Planning Policy 33 - Hazardous and Offensive Development. 7 This decision is concerned solely with the first of those issues. 8 There has been considerable effort placed into dealing with the first issue by both the applicant and by the respondent. Both they and I have been assisted by Ms Richardson, the Court appointed air quality expert, on this matter.

9 During the course of evidence in Griffith on 3 November, evidence was called on behalf of the applicant from Mr Patrick Keenan, the Australian Quarantine Inspection Service regional officer for the area. He gave evidence, amongst other things, concerning the issuing of a certificate and the contents thereof, which certificate relates to a fumigation chamber gas retention test carried out on the proposed fumigation chamber on or about 6 November 2003. This certificate has been available to the applicant since at least February this year and was lodged with the council as part of the development application.

10 During the course of his evidence, I asked Mr Keenan a number of questions concerning the rate of loss of gas through leakage between the initial reading on 4 November and the final reading on 6 November. He indicated that readings were taken at regular intervals during that period. 11 In response to a further question, he indicated that those detailed readings were not available to show precise rates of loss of retention of the gas charge in the chamber.

12 I asked him, further, whether he was able to inform me and the parties in specific but less detailed terms what the rate of decline of pressurisation or of methyl bromide was. He indicated, in the course of that answer (and my note specifically is) that it was a loss of 10%+ during the first two hours of the test and that that 10% loss was not 10% of the 20% to 26.25% loss shown in the readings on the certificate but was 10%+ of the total of the material – the two kilograms of methyl bromide that had been injected into the chamber for the purposes of that test. 13 That answer, obviously, raised a matter which had not been addressed accurately, if at all, by any of the air quality expert witnesses in the proceedings prior to that time. 14 Indeed, the assumptions that were made, overnight between the two hearing days, by Mr Davies, an air quality expert for the applicant, in his preparation of his supplementary statement of evidence, continued to assume an even loss of material from the chamber. That is a position taken consistently as an underlying assumption by Ms Richardson and by Mr Edgar, the council's air quality expert. 15 Although it is not an agreed position between the parties as to what the precise potential consequences of human exposure to inappropriate levels of methyl bromide might be, it appears nonetheless to be an agreed position that such exposure has significant adverse health potential for those subject to it.

16 The issue of what might be the impacts of the quantities of methyl bromide that might travel beyond the boundaries of the property to the adjacent resident and the adjacent workshop facility is of considerable importance in these proceedings. 17 Now that it has been shown, as a consequence of me raising these questions with Mr Keenan, that there is a significant loss of methyl bromide during the early part of the fumigation process (and not at its conclusion when the doors are opened and the stack vent operates), additional issues of occupational safety and health to workers on the premises also arise. 18 Mr Burrell, solicitor for the applicant, has asked for an adjournment to enable tests to be taken of the leakage, as to where and how it occurs from the proposed fumigation chamber. 19 He envisages that that testing (together with additional work undertaken by Mr Davies to set what would, in Mr Davies opinion, be an acceptable exposure criterion for the boundary of the property) could be undertaken in a period of four weeks or so. 20 He has sought and obtained instructions from his client to give, if such an adjournment were to be granted, an appropriate undertaking as to costs. 21 I have carefully considered whether I ought grant such an adjournment. 22 I am not prepared to do so. I have reached that conclusion for the following reasons. 23 The first is that the three expert witnesses agreed during the course of their giving of concurrent evidence that there were four separate elements that needed to be assessed in determining what might be the loss of methyl bromide to the atmosphere. 24 They were: - first, the cause of the leak; - second, the nature of the material that was proposed to be fumigated and the amount of that material that was in the container; - third, the degree to which the container was to be pressurised; and, - fourth, the quantity of methyl bromide that was required for such fumigation to be undertaken. 25 The additional testing proposed by the applicant is confined to the first of these matters only. 26 It is clear from the evidence that was given by the expert air quality witnesses; from paragraph 7 of the statement of evidence of Mr Patrick Keenan and from paragraph 43 of the statement of evidence of Ms Richardson of October 2004 that differing conditions for and differing rates of absorption for products being fumigated also arise. These differences lead to the second to fourth of the variable matters which would need to be investigated. 27 Because the escape to air by leakage of the methyl bromide is not able to be predicted, at least on the information presently before me, in the same fashion that the timing of the release of methyl bromide to the air is able to be predicted, controlled and regulated by the applicant at the time of the opening of the doors and the operating of the extractor system at the conclusion of a fumigation cycle, I am not satisfied that the issue of potential risk (not merely to neighbours but to those who are on the applicant's site) has or could be adequately addressed during the period of the adjournment sought by Mr Burrell or by the limited work he proposes should be undertaken during the period of adjournment he seeks. 28 Even if setting a boundary limit were appropriate (and an appropriate monitoring regime offered which I was satisfied provided adequate warnings to neighbours in the event of an escape of the methyl bromide – and no such proposed system is before me), nothing in what is proposed as the outcomes to be achieved during an adjournment would address the issue of on site safety. 29 The matters arising on this first major issue go to the safety and health of the neighbours and the workers on the site. It is not a mere planning issue of bulk or streetscape fit. The potential for major adverse health impacts on or, in extreme circumstances, death of those exposed to methyl bromide, I consider, requires me to be absolutely certain that all relevant matters would be addressed for any approval I might consider giving. The limited scope of the additional work proposed could not do this. 30 As a consequence of that, I have concluded that I ought not grant the adjournment because I am not satisfied that that which has been sought to be achieved by the end of the adjournment would address all those relevant underlying issues appropriately. 31 However, even if it did so, in an evidentiary sense, this would not leave me in a position where I could give a decision that was in conformity with the principles of non-delegation of critical decision making matters as set out by the Court of Appeal in Weal v Bathurst City Council 111 LGERA 181. I have reached this subsidiary conclusion as I would be left in a position where I could not determine a matter of significance (on site safety) and, if otherwise approving of the proposal, would be left to delegate this aspect to satisfaction of the relevant council officer at some later date with this imposed by deferred commencement condition. 32 Having reached the position that I am not prepared to grant such an adjournment because I think to do so would be futile, as the proceedings have been conducted to date, it therefore follows that the applicant fails at the first of the hurdles as I outlined them to the parties. 33 The orders of the Court must therefore necessarily be that: 1. The appeal is dismissed; 2. Development Application 21 of 2004 for the installation and operation of a fumigation unit at 470 Kidman Way, Hanwood is determined by the refusal of development consent; 3. The exhibits are returned; and 4. Costs are reserved.

Tim Moore Commissioner of the Court

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