Ordinary Council Meeting - 03 March 2011
LATE AGENDA Page
8 General Manager Report
8.11 Mayoral Minute - Bellingen-Bowraville Road - Further Request for Disaster Funding
General Manager's Report
AUTHOR/ENQUIRIES: Rhonda Hoban, Councillor
During the February and March 2009 flood events Bellingen/Bowraville Road sustained major damage resulting in complete closure of the road. The flood events were declared a Natural Disaster by the State Government and under the Natural Disaster Relief Funding guidelines, the Bowraville and Bellingen communities are entitled to restoration of the road to its pre-disaster condition. Two years on, the road remains closed.
That Council writes to the NSW Minister for Roads requesting an immediate decision on Council’s claim for Natural Disaster Relief Funding to restore Bellingen/Bowraville Road to its condition prior to the February and March 2009 flood events.
During the February and March 2009 flood events Bellingen/Bowraville Road sustained major damage resulting in complete closure of the road.
There are some forty two major slope failures along the road, many of which are within the Nambucca Shire (known as the Southern Zone). The balance of the damage is within the Bellingen Shire (the Northern Zone) and Nambucca Shire residents and ratepayers are caught between the two zones. The road which previously provided Nambucca Shire residents with access to Nambucca Shire services has been completely obliterated. Their only access is via the severely damaged northern section of road into the Bellingen Shire. Council has not been able to perform any substantial interim repair or maintenance to this section of road as it is deemed unsafe for heavy machinery.
The flood events were declared a Natural Disaster by the State Government and under the Natural Disaster Relief Funding guidelines, the Bowraville and Bellingen communities are entitled to restoration of the road to its pre-disaster condition. Two years on and the road still remains closed.
Despite the clarity of the guidelines, there has been an exhaustive investigative process which included extensive geotechnical investigations by GHD, various public consultation activities and finally a Value Management Workshop, to consider other options besides reinstating the road.
The Workshop considered the current and long term financial impacts to businesses in the towns of Bellingen and Bowraville, and in particular the residents trying to operate businesses between the two zones. There is also the need for organisations such as the Rural Fire Service, National Parks and Wildlife Service, and Forests NSW to access the area.
The Workshop identified “the ability to respond to life threatening situations” as the most essential criteria for consideration. To date residents in the Northern Zone have an unstable single vehicle width track that is unsafe for heavy vehicles as their only access. Residents feel particularly vulnerable and fearful should a life threatening emergency such as fire, accident or illness occur.
The unrepaired road is also extremely vulnerable to further weather events which may isolate the residents completely.
The conclusion drawn from the Value Management Workshop was that restoration of both the Northern and Southern Zones to their pre-existing conditions at a total estimated cost of $23.4 million was the best value for money option.
The following reports were forwarded to the RTA:
· GHD September 2010
· Preliminary Options Report for the Landslide Damage on the Bowraville to Bellingen Road
· RLB Rider Levett Bucknell Report December 2010
· Preparation of Estimate
· Australian Centre for Value Management December 2010
· Restoration of Bellingen Road Options Assessment Value Management Workshop
and on the 7 January, Council’s formal claim for Natural Disaster Relief Funding.
To date there has been no response from the RTA or the Minister. It is unacceptable for residents and businesses in both Bowraville and Bellingen to wait any longer for a decision that will undoubtedly determine their social and economic future.
There are no attachments for this report.
General Manager's Report
AUTHOR/ENQUIRIES: Michael Coulter, General Manager
Council would be aware that Australian Precast Solutions (APS) a subsidiary of Abigroup, submitted a Modification to the approved concrete precast yard at the Macksville Industrial Estate.
The modification has been held in abeyance whilst APS address noise mitigation issues associated with the current operations.
APS have now gained a major contract associated with the Kempsey to Eungai Pacific Highway upgrade which will require the output at the Macksville Plant to increase beyond the currently approved 25,000 tonne per annum of concrete products. The increase will exceed the 30,000 tonne per annum threshold which is deemed Designated Development pursuant to Schedule 3 of the Environmental Planning and Assessment Regulations (EP&A Regs).
APS has advised that unless they can secure at least a temporary approval to increase their output, pending determination of an application for designated development (EIS) by the Joint Regional Planning Panel, they will be forced to establish a new manufacturing facility outside the Nambucca Valley. This would possibly be adjoining the new highway alignment where different regulatory arrangements apply. The additional production equates to about 30 jobs.
That Australian Precast Solutions be advised:
1 Council will consider an additional application to modify their development consent to permit an increase in output of up to 60,000 tonnes per annum for a period of 9 months.
2 Their additional modification application will need to respond to the factors requiring consideration in Clause 36 of Schedule 3 of the Environmental Planning and Assessment Regulations as well as the other requirements of the Act.
3 Any approval for increased output would not take effect until occupation certificates have been issued for the stage 1 and stage 2 sheds.
Council can elect not to advise Australian Precast Solutions as recommended. It could also elect to advise Australian Precast Solutions differently.
On 25 February 2011 the General Manager and Manager Business Development met with representatives of the NSW Department of Planning, NSW Industry and Investment as well as Abigroup’s General Manager, Central Region and the Manager of Australian Precast Solutions (APS), a wholly owned subsidiary of Abigroup.
The purpose of the meeting was to discuss options whereby Australian Precast Solutions, who operate from the Macksville industrial estate, could meet their contractual commitment to supply approximately 950 concrete beams for the 3km plus of bridging required for the Pacific Highway Kempsey by-pass as well as other recently secured contracts.
At a previous meeting on 27 January Abigroup’s General Manager, Central Region made it plain that Abigroup would develop another manufacturing facility out of the Nambucca Valley if they could not secure approval to increase production from the existing yard. Different regulations allow for the establishment of such construction facilities adjacent to a new highway corridor.
Australian Precast Solutions are currently employing 60 staff at their Macksville factory and this would increase to 90 staff if they can produce the required beams at the Macksville factory. Their contractual commitments are such that production of the additional beams would need to commence in June 2011 from a new building which is yet to be constructed.
The statement of environmental effects for the existing factory indicated that production of concrete products would be 25,000 tonnes per annum. Production in excess of 30,000 tonnes per annum becomes designated development requiring an environmental impact statement. Advice received from APS on 25 February 2011 is that with the construction of a second shed, production would increase to approximately 60,000 tonnes of concrete products per annum.
At the meeting on 25 February 2011 there was discussion about the opportunity for a time limited approval whereby APS could increase output equivalent to approximately 60,000 tonnes per annum for a period of 9 months. This period would enable APS to complete the preparation of an Environmental Impact Statement and lodge a Designated Development application which would need to be determined by the Joint Regional Planning Panel. A 9 month period should enable that statutory process to be concluded.
A Modification under Section 96(1A) (Modifications involving Minimal Environmental Impact) of the Environmental Planning and Assessment Act (EP&A Act) was submitted on 22 November 2010 (currently held in abeyance) to amend and clarify the originally approved "Typical" plans for the Stage 1 and Stage 2 Sheds (Stage 1 already constructed).
The modifications sought to exclude the external walls and leave the Stage 1 Shed as is. A specific plan has been provided for the Stage 2 Shed which shows the building as a freestanding, steel portal framed shed with iron roof and with the eastern wall enclosed and the other three elevations open except for a 1-2 metre drop wall (eave curtain). In addition it is proposed to extend the length of the Stage 2 Shed to 126 m as opposed to the "Typical Shed" being 100m long.
The non enclosure of the Stage 1 Shed has been an ongoing compliance matter between Council and APS (Abigroup) since 3 November 2008, when the non-compliance was identified. Confusion then followed as an Occupation Certificate was issued for some aspects of the Construction Certificate (Workshop Facilities & Roof Structure), the roof structure being the structure over the work areas not the Stage 1 Shed (Super "T" work area).
The Modification application was the final outcome of these discussions and APS were advised that a detailed Noise Assessment Report would be required to accompany the application due to the ongoing issues with noise complaints from nearby residents in Wallace Street due to the shed being an open structure.
The modification application was accompanied by a Noise Investigation Report prepared by Renzo Tonin & Associates dated 17 September 2010 and the revised Stage 1 Shed plans and plans for the proposed Stage 2 Shed. The Noise report has referenced the NSW Industrial Noise Policy (INP) which is an industry guideline for assessing the impacts of industry on the environment and receivers near the industry. It was considered that the Renzo Tonin report, whilst identifying the steps to be followed in the NSW Industrial Noise Policy, did not meet all the requirements or considered a number of critical matters with the existing operations.
Following several meetings with representatives of APS and Abigroup the modification has been held in abeyance as APS undertake further noise attenuation modelling as they recognise that the current noise emissions are at times exceeding the requirements of the Industrial Noise Policy.
Assessment as to whether an increase in production for 9 months is designated development
Once an application is received the Council would need to make a determination in relation to whether or not the proposed modification will significantly increase the environmental impacts of the total development.
Clause 35 of the Regulations provides as follows:
“Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development.”
Clause 36 sets out the factors to be taken into consideration in applying this test. These factors are listed below in italics with commentary in standard text.
(a) the impact of the existing development having regard to factors including:
(i) previous environmental management performance, including compliance with the conditions of any consents, licences, leases or authorisations by a public authority and compliance with any relevant codes of practice, and
Council has dealt with regular complaints in regard to excessive noise and operations being undertaken outside of the approved 7am – 6pm Monday to Saturday operational times.
A Noise Abatement Order was issued on 7 December 2010 following a number of justifiable complaints being received and investigated.
In the noise assessment report submitted with the proposed modification, Renzo Tonin identified that at times, operations do not comply with the Industrial Noise Policy which is the industry standard for managing noise from industrial activities in NSW.
Works have been undertaken on the site without first gaining development consent resulting in an Infringement Notice being issued on 24 July 2008.
An Occupation Certificate has not been issued for the current Stage 1 Shed as the originally approved shed was an enclosed shed.
In summary their environmental management performance has been poor.
Assessment: potentially unfavourable
(ii) rehabilitation or restoration of any disturbed land, and
There are no rehabilitation conditions or requirements of APS.
The original subdivision of the land undertaken by Buildev Pty Ltd requires replanting of the drainage reserve which is outside of the APS site. The drainage reserve has not as yet been planted because of on-going slumping.
Representatives of APS and Abigroup have indicated that they would look at some form of vegetation screen/buffer along the eastern side of their land which is in addition to the requirements of Buildev Pty Ltd. This would be a positive enhancement to the site which needs good vegetation screening.
Assessment: potentially favourable
(iii) the number and nature of all past changes and their cumulative effects, and
There have been no other modifications.
(b) the likely impact of the proposed alterations or additions having regard to factors including:
(i) the scale, character or nature of the proposal in relation to the development, and
The proposed modification is not dissimilar in scale to the existing approval.
The time limited increased output will see a significant increase in the number of vehicle/traffic movements in and out of the site due to increased employee numbers, delivery of fabrication and reinforcement materials, concrete and loading of transport vehicles, albeit for a 9 month period.
Assessment: potentially unfavourable
(ii) the existing vegetation, air, noise and water quality, scenic character and special features of the land on which the development is or is to be carried out and the surrounding locality, and
The site is cleared of vegetation, noting that APS have indicated that they will investigate the planting of a vegetation buffer along its eastern boundary.
Council has in the past received complaints regarding dust generation from the site. This is attributable to the large size of the site and movement of plant and equipment for storage of concrete products. The vast majority of the immediate production areas are on concrete or on a compacted road base type material which does minimize dust creation.
Noise is the major concern. The investigations currently underway by APS to remedy the Stage 1 shed noise emissions may well address much of the problem as will better time management of the activities to ensure works are not carried on outside of the approved operational hours.
Water usage and quality is very well managed on site with low water consumption being demonstrated through positive water recycling and containment. Waste water leaving the site is managed through a stormwater management system of collection pipes and sediment/retention ponds.
Unfortunately, the APS Industrial operations are some 10-15m below the overlooking nearby residential properties along Wallace Street. The proposed vegetation buffer being investigated may, over time soften this visual impact.
The site is within the Macksville Industrial estate which is bounded by rural land to the north, more undeveloped industrial zoned land to the west, developed industrial land to the south. To the east of the site is residential land which is separated from the APS site by the North Coast Rail line and a drainage reserve.
Assessment: potentially unfavourable
(iii) the degree to which the potential environmental impacts can be predicted with adequate certainty, and
APS are currently in the process of further noise modelling to ensure that they meet the INP and original noise level targets with their current operations after which they will undertake noise attenuation and mitigation works.
Once they have done that, they will then need to design and model the new stage 2 shed to ensure that they also meet the INP and noise level targets.
Considerable noise modelling has been undertaken by both Heggies and Renzo Tonin and Associates. With this information there is a relatively high degree of certainty concerning noise impacts.
Assessment: potentially favourable
(iv) the capacity of the receiving environment to accommodate changes in environmental impacts, and
The adjacent residential area along Wallace Street will be exposed to noise and dust issues associated with increased operations and output. Provided the noise emissions are within the INP and the Project Specific Criterion for noise and vegetation buffers are planted the impact should be minimised.
Assessment: potentially neutral
(c) any proposals:
(i) to mitigate the environmental impacts and manage any residual risk, and
At this stage APS and Abigroup have indicated that they will address the noise issues and manage operational hours, investigate the planting of a vegetation buffer along its eastern boundary. Additional noise attenuation modelling is underway to ensure the design of the existing stage 1 shed and the proposed stage 2 shed meet the noise emission requirements.
Assessment: potentially favourable
(ii) to facilitate compliance with relevant standards, codes of practice or guidelines published by the Department or other public authorities.
With the implementation of noise attenuation to the construction of the existing shed and proposed shed, noise emissions should be reduced and will be closer to the INP.
The original application was dealt with as local development and as such no referrals were required.
Assessment: potentially favourable
In addition to satisfying the above test, Council also needs to be satisfied that an application to modify the consent, including a temporary 9 month increase in production, meets the requirements of a modification as indicated below. In particular Council needs to be satisfied that it is, “substantially the same development”.
Section 96(2) Other modifications.
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c) it has notified the application in accordance with:
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
Subsections (1) and (1A) do not apply to such a modification.
Noting the original approval was for "Erection of Industrial Sheds, Site Office and Workshop and Commencement of an Activity – Pre-Cast Concrete Products". Applying the principles of Section 96 and the case law that has further clarified "substantially the same", the proposed time limited increased output may fall under the definition of "substantially the same", as the development will still be used for the production of pre-cast concrete products.
Manager Business Development
Director Environment and Planning
NSW Industry and Investment
NSW Department of Planning
Australian Precast Solutions
Any subsequent modification application will require Council to apply a range of considerations, including environmental considerations, under Clause 36 of Schedule 3 of the EP&A Regs, to determine whether Council is of the opinion that the proposed time limited increased output does not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing approved development.
Any subsequent modification application will require Council to apply a range of considerations, including social considerations, under Clause 36 of Schedule 3 of the EP&A Regs, to determine whether Council is of the opinion that the proposed time limited increased output does not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing approved development.
There is no requirement for Council to consider the economic issues under Clause 36 of Schedule 3 of the EP&A Regs. However, the proposed time limited increased output will provide a considerable economic boost to the local economy through additional employment, purchase of materials and products.
An aggrieved third party may challenge Council on procedural grounds in relation to the classification of development as a “modification” and also in the assessment of an application under Clauses 35 and 36 of the Regulations.
Direct and indirect impact on current and future budgets
There are no direct or indirect budgetary impacts associated with this report
Source of fund and any variance to working funds