The Trust Company Ltd v Commonwealth of Australia

1. [1]

   HER HONOUR: This is a claim for contractual damages. The plaintiffs (the developer) seek $20 million from the Department of Defence for breach of a lease, under which Defence was obliged to remediate land and ‘make good’ the leased premises at the end of the lease.

2. [2]

   The developer has since redeveloped the land, together with adjoining land, into an intermodal terminal facility. The developer seeks the costs of dealing with asbestos contaminated soil and hazardous chemicals encountered during demolition and excavation works undertaken to build that facility.

Summary

1. [3]

   For nearly a century, Defence owned land in Moorebank, New South Wales, which it used as a supply and distribution centre. The site was 83 hectares – roughly the area of Darlinghurst – with 66 buildings including warehouses and administrative offices.

2. [4]

   In 2003, Defence sold the land to a major bank with a ‘lease back’. The lease required that, by the expiration of the lease, Defence would “remediate the Land to a standard suitable for on-going commercial / industrial use.” The bank on-sold the land to (ultimately) the developer. The developer and Defence later renewed the lease, but in the same terms.

3. [5]

   In 2015, Defence executed a “Deed of surrender of lease” and vacated the site. The deed obliged Defence to provide a site audit statement (being a document provided by an independent auditor accredited by the NSW Environmental Protection Authority (EPA)) certifying that the land was suitable for commercial/industrial use, either unconditionally or subject to compliance with an environmental management plan (EMP). This was done.

4. [6]

   In 2016, the developer obtained approval to construct an intermodal terminal facility on the Moorebank site and adjoining land. The facility is intended to move 1.5 million shipping containers annually by rail instead of road, serviced by automated technology which will see driverless shuttle carriers collect and transport containers around the precinct to be processed, unpacked and stored on-site or distributed in smaller consignments. The development includes an intermodal rail terminal, rail link connections to Southern Sydney Freight Line (which enables the transfer of containers from Port Botany), warehouse and distribution facilities, and a freight village including ancillary services.

5. [7]

   From 2017 to 2019, the developer took the site apart. No stone was left unturned. Buildings were demolished. Vegetation and topsoil were removed, being “geotechnically unsuitable” for the major building works which were to follow. Underground infrastructure was dug up and removed, including stormwater pipes and telecommunication pits. Hardstands, roads and pavements were removed. This can be seen in the following ‘before’ and ‘after’ aerial photographs taken in October 2015 and November 2018, where north is at the top of the photograph:

6. [8]

   In the ‘after’ photograph, a new warehouse can be seen under construction in the north-west corner and a new railway under construction in the south-west corner. The only Defence buildings which remain are the warehouses in the north-east corner, called the “tenanted warehouses”, which are leased to third parties. Some 600,000 m3 of new fill was imported, to raise the level of the site by some 2 m, before covering much of the area with concrete hardstand.

7. [9]

   In the course of undertaking these works, the demolition contractor encountered asbestos containing material (ACM) in topsoil, in backfill around underground infrastructure and under hardstands. ACM was also found in a pit on the southern portion of the site, in which Defence had buried various equipment, supplies and rubbish after World War II. Some hazardous chemicals were also found in some tanks in some buildings. The developer spent $20 million in dealing with these contaminated materials.

8. [10]

   The question is whether Defence breached the lease and / or the deed when vacating the site. The issues are straightforward:

9. [11]

   The parties agreed on only three things. First, the case could be resolved having regard to a handful of documents (which may not explain the 83-volume court book). Second, the parties’ cases passed like ‘ships in the night’. Third, Defence accepted that, if it was wrong about everything else, then it should pay damages of some $360,000.

10. [12]

    In the result, the developer’s claim fails. The remediation obligation under the lease was generally expressed and obliged Defence to remediate the site to a standard suitable for what the Moorebank site was already being used for, but not for any commercial / industrial use, nor for development activities to enable the site to be used for any such use: see [102], [144]. The deed did not amend the remediation obligation but released Defence from any claim in respect of non-performance of that obligation, on Defence procuring the site audit statement: see [221]. Defence was so released.

Witnesses and documents

1. [13]

   The parties adduced a staggering amount of lay, expert and documentary evidence. In what follows, I have endeavoured to refer only to that portion of the land referred to in reams of reports that actually formed part of the Moorebank site. This was not always obvious, where the intermodal terminal development included adjacent sites, the ‘zones’ referred to by various contractors were not the same and the nomenclature changed over time.

2. [14]

   As for lay witnesses, the developer relied on the evidence of construction project manager John Mettam, contract administrator Mehul (Max) Raval, environmental engineer Seth Molinari, environmental consultant Lauren Holmes (née Luedecke) and occupational hygienist and asbestos assessor Kerrin Alamango. Defence relied on the evidence of solicitor Claire Smith. All except Mr Raval and Ms Smith were cross-examined.

3. [15]

   No issues of credit arose; all gave evidence in a fair manner and were knowledgeable and impressive. Mr Molinari was in the slightly invidious position of having ‘signed off’ the contamination status of the site in 2013, before returning to ‘clean up’ the contamination which was then encountered. In these circumstances, he was highly critical of some of the earlier reports on which he relied, or which were not made available to him at the time. These criticisms were likely brewed in hindsight. But his criticisms were not pleaded issues. Mr Molinari was a ‘late’ witness, called to address objections made by Defence to the admissibility of his contemporaneous reports. In these circumstances, Defence had not served evidence to answer Mr Molinari’s criticisms, for example, by calling the authors of the earlier reports. I am in no position to make findings in respect of Mr Molinari’s observations.

4. [16]

   As for expert evidence, the parties served 19 expert reports and five joint expert reports. The developer relied on the expert opinion of environmental engineer Dr Ian Swane and quantity surveyor David Madden. Defence relied on the expert opinion of environmental scientists Dr Jackie Wright and Rebecca Organo, environmental consultant and site auditor Jason Clay and contaminated land remediator Nick Cowman. Mr Madden was cross-examined. His evidence was fair, reasonable and precise.

5. [17]

   Three expert conclaves were held involving Dr Swane on the one hand and variously Dr Wright, Mr Clay and Ms Organo on the other hand. I generally preferred the evidence of Dr Wright and Mr Clay to the views of Dr Swane and Ms Organo, where the latter both gave evidence with an air of advocacy. Defence’s experts clearly disagreed most strongly with Dr Swane’s key premise, which did appear extreme when compared with their collective views. Dr Swane considered that Defence was required to remove the top 10cm of topsoil, all trees and to demolish buildings in order to check whether there was any asbestos. Ultimately, I have not accepted his view.

Early land use

1. [18]

   The history of Defence’s use of the Moorebank site sheds light on how the contamination came to be. The Moorebank land has been used for defence-related purposes since the late 1800s. Since at least 1905, the site has been used for military manoeuvres, including the Australian Light Horse training. In 1912, Defence formally acquired the land.

2. [19]

   During World War I, the site was used for storage and initially known as the Mobilisation Stores. During World War II, the site accommodated the 2nd Base Ordnance Depot and 2nd Base Workshops. At the end of World War II, general stores from the 21 Supply Battalion were disposed of in trenches on site, using a method described as “burn, bash and bury”. These are the “burial pits” referred to in various reports, which were thought likely to contain contaminated material.

3. [20]

   By the end of World War II, there were 20 timber post and beam buildings on-site, as part of the widespread expansion of Army support facilities during the war. In the early 1990s, the site was upgraded to accommodate the Defence National Storage Distribution Centre (DNSDC), which became the central warehouse for all three of Australia’s armed services “including everything from electronic gadgets, army rations, food supplies, naval guns, aircraft wings and bodies. There [were] also maintenance sections dealing with automotive engineering, electronics, vehicle repairs, small arms and heavy precision engineering.”

4. [21]

   According to a heritage report later commissioned by Defence, “At this time the majority of the World War II timber post and beam buildings and composite steel and timber buildings were reclad, to remove the original fibro asbestos sheeting.” Five of the buildings were demolished and replaced with larger modern steel frame warehouse buildings. A large portion of material in the burial pits was also removed by contractors for proper disposal. It is thought that, at this time, ACM fragments were deposited on the ground surrounding the buildings, and perhaps further afield, as a result of poor disposal practices when removing the asbestos cement roofs.

5. [22]

   In 1999, AGC Woodward-Clyde Pty Ltd and Hibbs & Associates undertook a survey of hazardous building materials on the site. Asbestos was found to be present in 15% of all existing buildings. From this survey, an asbestos register was developed for the site.

Preparing for sale

1. [23]

   In 2000, Defence’s Major Property Disposal Unit began to consider the feasibility of disposing of the Moorebank site. To that end, a series of reports were commissioned, apparently to support the re-zoning of the land. Some of these reports appear to have formed part of a due diligence package made available for review by interested purchasers. These reports both indicate Defence’s knowledge of contamination on the site and, more importantly, provide the commercial context for the lease.

2. [24]

   Viewed in isolation, it is not always apparent why Defence would have obtained these reports. Viewed against the regulatory regime in respect of planning and development control, commissioning these reports makes more sense. It is convenient to briefly describe that regime.

3. [25]

   The planning and development control process was (and is) governed by the Environmental Planning and Assessment Act 1979 (NSW), which also played a role in the management of land contamination together with the Contaminated Land Management Act 1997 (NSW), “State Environmental Planning Policy No 55 — Remediation of Land” and other regulatory controls.

4. [26]

   Put shortly, SEPP 55 provided that a planning authority could not re-zone land without considering whether it was contaminated. If the land was contaminated, the planning authority had to be satisfied that the land was suitable in its contaminated state (or would be suitable, after remediation) for all purposes for which the re-zoned land would be permitted to be used. To that end, the planning authority was required to obtain a report specifying the findings of a preliminary investigation of the land, carried out in accordance with the contaminated land planning guidelines: cl 6(2).

5. [27]

   At the time, the contaminated land planning guidelines were “Managing Land Contamination, Planning Guidelines SEPP 55 – Remediation of Land” (1998). The guidelines described the site investigation process to be undertaken by the proponent seeking re-zoning (or development approval). Depending on the circumstances, one or more of the following stages may be appropriate:

6. [28]

   Each of these stages could be subject to a site audit, which was an independent review of the site investigation process conducted in accordance with the Contaminated Land Management Act 1997. A site audit would lead to the issue of a site audit statement, stating for what use the land was suitable. Only site auditors accredited by the EPA could issue site audit statements. The site auditor would also prepare a site audit summary report as required by the EPA, containing the key information and the basis of consideration which led to the issue of the site audit statement.

7. [29]

   Mr Clay explained that a site audit may also be commissioned on a non-statutory basis, often by the vendor or purchaser of land. In either case, the auditor was independent of either party. The purpose of the audit was to certify that the land was suitable for a certain use or that the level of residual contamination was adequately defined. Mr Clay added that a site audit statement applied to the current or approved uses of the site; if the site use changed, then a new site audit statement may be required.

8. [30]

   Guidelines were also issued by the National Environment Protection Council, called National Environment Protection Measures or NEPMs. These guidelines were made by under the National Environment Protection Council Act 1994 (Cth) and the equivalent provision of the National Environment Protection Council (New South Wales) Act 1995 (NSW). Relevantly, National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM (1999)) established a nationally consistent approach to the assessment of site contamination.

9. [31]

   NEPM (1999) included “Schedule B(1) – Guideline on the Investigation Levels for Soil and Groundwater”. Health Based Investigation Levels (HILs) were set for soil, depending on the degree of access to the soil and the time spent in that setting by young children: at [3.1]. Table 5-A set out soil investigation levels for HILs, based on human exposure settings from “A” to “F”, where “A was a standard residential setting with garden / accessible soil and “F” was:

10. [32]

    Where soil concentrations exceeded HILs for an exposure setting, the response would be determined on a site-specific basis and ranged from informing stakeholders, applying site management plans to large scale remediation: page 5, NEPM (1999). However, no HILs were specified for asbestos. The reason for this was explained in “Schedule B(7a) – Guideline on Health-Based Investigation Levels”, at page 24:

11. [33]

    Consistently with this, the general position adopted by the NSW EPA, as noted by Defence’s environmental science consultants at the time, was that “no asbestos in soil at the surface is permitted”: see [43].

12. [34]

    Some ten reports were obtained by Defence in the lead-up to the sale and ‘lease-back’ of the Moorebank site. These reports appear to fall into two broad categories: to support the re-zoning of the land for sale, and to catalogue existing facilities, fixtures and fittings for the ‘lease-back’.

13. [35]

    Turning to first group of reports, Defence began Stage 1 – Preliminary Investigation. Egis Consulting Australia was tasked with considering re-zoning the site for industrial, commercial or residential uses. In September 2000, Egis produced a “Stage 1 Preliminary Site Investigation” report, based on a detailed inspection of site facilities “and discussions with current and former site personnel to establish the operational areas and activities undertaken on site at various periods.” Egis completed a desk-based study of available public records and historical information, to establish “the potential sources and types of contamination present onsite and assess the risk of these contamination sources being present at the site”. Egis attached a report from “Milsearch” in respect of the possibility of unexploded ordnance.

14. [36]

    Egis concluded that historical and current activities on the site posed a risk for contamination, including asbestos. Whilst receipt, storage and distribution of the majority of items handled at the supply and distribution centre were relatively innocuous activities and would not be expected to result in any significant contamination, fuelling, workshop and disposal activities represented the greatest potential for widespread contamination. In addition, the site included various burial trenches, in which general rubbish had been disposed of over the years as well as, potentially, surplus medical supplies and munitions.

15. [37]

    As I read it, the principal focus of the Egis report was on hydrocarbon and lead contamination from workshop and re-fuelling facilities on the site. Whilst asbestos was identified as a potential contaminant, it did not feature prominently.

16. [38]

    Egis’ work was supplemented by environmental engineers, URS Australia Pty Ltd, who reviewed DNSDC buildings which were inaccessible when Egis prepared their report, not specifically referred to in the Egis report, or which URS considered worthy of further inspection. Emily Spencer and Mr Molinari completed the URS report. URS proposed to review the current and past uses of these buildings through inspection and personnel interviews. In February 2002, the engineers conducted a site inspection and personnel interviews. They reviewed Material Safety Data Sheets (MSDS) in relation to stored chemicals.

17. [39]

    In March 2002, URS produced its report, “Assessment of DNSDC Buildings – Supplement to Egis Stage 1 PSI of Areas A1 to A6.” The engineers described the activities undertaken in each of the buildings on site. They identified potential sources of contamination and associated chemicals of concern. Using the information obtained by Egis and their own research, URS identified where earlier buildings had been, prior to the demolition, construction and refurbishment of a number of the buildings in the 1990s. The engineers also identified areas of concern.

18. [40]

    The focus of the URS report was, again, on hazardous chemicals. Potential sources of contamination and associated chemicals of concern were listed, albeit asbestos did not feature. The only reference to asbestos was in respect of Building 40, which was described as an Asbestos and Minmag store, containing materials containing asbestos.

19. [41]

    Moving to the Stage 2 – Detailed Investigation, Defence engaged environmental scientists, HLA-Envirosciences Pty Ltd, to conduct a soil and ground water investigation at the site. The scope of the environmental investigation work was developed by URS as Principal Environmental Advisor to the Property Disposal Task Force of Defence. It included an intrusive soil and ground water investigation program comprising soil boring and test pitting, sediment and surface water sampling and a monitoring well installation and sampling program. The investigation was conducted to provide an additional data set to supplement information obtained in the Stage 1 Preliminary Investigation completed by Egis and the supplementary work undertaken by URS. Further, HLA-Envirosciences noted: (emphasis added)

20. [42]

    In September and October 2002, the investigation field activities were undertaken. A total of 203 soil samples, nine groundwater, two surface water and nine sediment samples were taken and submitted for laboratory testing. The data set collected for the soil and groundwater investigation was considered to be representative of soil and groundwater conditions at the DNSDC. Asbestos fragments were photographed on the surface of the ground near Building 43. Six surface soil samples and four fragments were collected from areas adjacent to areas where suspected AC sheeting was observed and submitted for testing. Asbestos was detected in four fragments and one soil sample.

21. [43]

    In November 2002, HLA-Envirosciences completed its report, “Soil & Groundwater Investigation”. As to the soil criteria which the authors had adopted, the report noted: (emphasis added)

22. [44]

    In November 2002, URS took HLA-Envirosciences’ results and completed an Investigation Review Report. The report was authored by Mr Molinari and Martin Howell, who noted: (emphasis added)

23. [45]

    To this end, the authors noted that investigations had been undertaken to assess whether DNSDC presented a significant risk of harm, as defined by the Contaminated Land Management Act, to DNSDC workers or to the general environment. In addition, investigations had been undertaken to assess potential environmental liabilities or issues triggered by sale of the property. Given the size of the DNSDC site “and the generally low risk of contamination resulting from the warehousing, distribution and maintenance activities conducted on-site, a judgemental sampling program was developed. The inputs into this decision included the previous work done by Egis and URS, and the current and likely future land use, understood to be current ongoing industrial use as the DNSDC”.

24. [46]

    URS reviewed the samples taken by HLA-Envirosciences and the laboratory tests obtained; URS validated the data. URS assessed the implications of the data to determine whether contamination on the site presented a significant risk of harm under the Contaminated Land Management Act. So far as asbestos was concerned, URS considered:

25. [47]

    URS prepared various site plans, including an investigation location reference plan which identified areas of concern to be incorporated in a site management plan. The plans noted “AC sheet fragments noted in limited locations across the site.” URS concluded that the site did not represent a significant risk of harm to occupiers of the site under its current land use or to the off-site environment, with the exception of the potential of unexploded grenades in the south-east of the site. Environmental issues and uncertainties that warranted consideration for ongoing use of the site as a storage and distribution facility included the occurrence of AC sheeting fragments in limited locations on the site.

26. [48]

    URS recommended that a site management plan be developed to mitigate impacts from the site including: a procedure for collecting, storing and disposing of fragments of material that potentially may contain asbestos, when identified; and, a procedure for managing asbestos-containing materials when remediating burial pits and undertaking intrusive earthworks on the site. URS concluded that the DNSDC was suitable for use as a storage and distribution facility and recommended that a site management plan be developed and implemented for its ongoing use.

27. [49]

    Having completed Stage 1 and Stage 2, Dr William Ryall did a site audit and prepared a site audit report. In his report, Dr Ryall set out his independent review of the reports obtained by Defence. Dr Ryall noted, “The envisaged land use is the continuance of existing activities, possible with sale of the property.” In this context, the scope of works was to obtain data that could be used to assess whether the DNSDC presented a significant risk of harm to DNSDC workers or to the general environment, and potential environmental liabilities or issues triggered by sale of the property. Dr Ryall was of the opinion that the work plan proposed by HLA-Envirosciences met the requirement of relevant guidelines adopted by NSW EPA, was in accordance with good industry practices, allowed reliable and representative field samples to be collected and allowed reliable analytical results to be reported on the samples by the laboratory.

28. [50]

    Whilst much of Dr Ryall’s report focussed on contamination risks posed by the refuelling facility and a range of hazardous chemicals, Dr Ryall concluded that the soil sampling undertaken by HLA-Envirosciences was adequate to allow the environmental condition of fill and soil on the site to be determined in consideration of the history of use of the site and the proposed use for the site. Dr Ryall also noted URS’ investigation in respect of ACM:

29. [51]

    Dr Ryall concluded that the investigations undertaken on the DNSDC site identified only limited evidence of contamination; no issues were identified that would prevent the on-going use of the site. He noted that URS considered that environment issues for the on-going use of the site as a storage and distribution facility included the occurrence of asbestos-cement sheeting fragments in limited locations on the site. URS had identified the areas of environmental concern on the site plan but did not consider that soil contamination presented a significant risk of harm, as defined by the Contaminated Land Management Act, to occupiers of the site under its current land use or to the off-site environment.

30. [52]

    Dr Ryall noted that no contamination was identified to be migrating from the site, but he considered that petroleum hydrocarbons in groundwater at various parts of the site had the potential to do so. Additional investigation was required in those areas. Potential existed for contaminated sediment and stormwater to migrate from the site in stormwater drains, and this matter was to be addressed as part of the site management plan.

31. [53]

    Dr Ryall concluded that the investigation undertaken by HLA-Enviroscences and URS was undertaken in substantial compliance with the requirements of the work plan and with guidelines published by the NSW EPA. The investigation addressed identified areas of environmental concern on the site. In Dr Ryall’s opinion, the investigation was of adequate scope and reliability to determine whether the site was suitable for use for commercial or industrial purposes “where occupiers have minimal access to the soil and groundwater is not used.” Based on the results of the site investigation documented by HLA-Envirosciences and URS, Dr Ryall was of the opinion that the site was suitable for continuing commercial / industrial purposes, including use as a storage and distribution centre. Dr Ryall agreed with URS’ proposal that the environmental and ordnance issues be addressed by a site management plan.

32. [54]

    On 9 December 2002, Dr Ryall certified that he had completed a site audit, as defined in the Contaminated Land Management Act 1997. Dr Ryall certified that the site was suitable for commercial / industrial use, subject to a site management plan being implemented during the ongoing use of the site, to address the issues listed on Attachment 1 to the site audit statement. Attachment 1 included:

33. [55]

    Dr Ryall noted that he certified the suitability of the DNSDC “for the proposed ongoing use as a storage and distribution centre.” He had not addressed the suitability of fill materials or soil for off-site disposal “or for any other purpose. Should the site be used for any other purpose in the future, its environmental condition should be assessed in accordance with appropriate guidelines adopted by NSW EPA.” Dr Ryall noted that he understood that his report was required for commercial purposes only “but may be used in support of a development application at a later time.”

34. [56]

    Finally, in October 2002, a heritage assessment was undertaken by Graham Brooks & Associates Pty Ltd for Defence “as part of the master planning exercise to secure the rezoning of the overall site, and the sale due diligence package.” The purpose of the report was to complement other environmental and planning assessments that had been prepared to “support the rezoning of the DNSDC site from solely military use to various employment generating uses”. The report noted the history of the buildings on site, including the re-cladding of the 1940s buildings in the 1990s: see [20].

35. [57]

    Turning to second group of reports, in March 2002, Egis produced a “Building Condition & Services Survey” on the DNSDC. The report was detailed and extensive, spanning some 1,500 pages, and accompanied by a spreadsheet of fixed plant and equipment. Each building and its existing services was inspected with a view to assessing the suitability of the buildings for leasing and its conformity with relevant codes and standards. “As-built” drawings, maintenance manuals and records were reviewed. Immediate or urgent capital expenditure items were identified. The authors noted that the buildings were then occupied and in reasonable condition.

36. [58]

    In December 2002, Egis’ work was supplemented “as part of the due diligence to support the disposal of the DNSDC”. Defence engaged GHD Pty Ltd to assess the condition of specific plant and equipment and site infrastructure at DNSDC, to supplement the work that had earlier been done by Egis in March and June 2002.

37. [59]

    Finally, in September 2002, another hazardous materials survey was conducted by Hibbs & Associates. The consultant undertook a qualitative analysis of the risk to occupants of the building in which asbestos was identified. The most common materials reported was asbestos cement (AC) sheeting. Other types of asbestos materials identified on the site included asbestos cement pipe, rope lagging, gaskets and electrical backing boards. The asbestos materials were observed to be in a good and stable condition. The consultant indicated that Defence should ensure that all asbestos materials were labelled to indicate the presence of asbestos, in accordance with the requirements of the Worksafe Australia Guidelines 1988.

Sale and lease-back

1. [60]

   By December 2002, Defence had assembled due diligence documents for those interested in the sale and lease-back of the Moorebank site. I do not have a list of the reports which were included in the due diligence package, but it appears to have included two memoranda prepared by Environmental and Earth Sciences in December 2002. The first memorandum reviewed reports pertinent to environmental investigations conducted at DNSDC. The second memorandum reviewed URS’s Investigation Review Report and Dr Ryall’s site audit statement.

2. [61]

   In January 2003, Defence exchanged contracts to sell the Moorebank site to an investment vehicle of a major bank. In March 2003, Defence completed the purchase and leased the site back for ten years, with an option to renew the lease for two further terms of five years each. The terms of this lease were relevantly the same as the subsequent lease entered into by the developer and Defence: see [142]-[143]. It is convenient to consider the terms of the lease.

3. [62]

   The lease is a commercial contract and should be given a businesslike interpretation, paying attention to the language used by the parties, the commercial circumstances that the document addresses and the objects which it was intended to secure: McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579; [2000] HCA 65 at [22] (per Gaudron J); Liberty Mutual Insurance Company Australian Branch (t/as Liberty Specialty Markets) v Icon Co (NSW) Pty Ltd (2021) 396 ALR 193; [2021] FCAFC 126 at [151]-[152].

4. [63]

   The meaning of the lease is determined objectively, by reference to what a reasonable person would have understood it to mean having regard not only to the text of the document but to the surrounding circumstances known to the parties and the purpose and object of the transaction: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 at [22] (per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 at [16]. As the developer submitted, the only conduct that is relevant to construing the contract is of the people at the time they entered into it.

5. [64]

   The context includes the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46] (per French CJ, Nettle and Gordon JJ) citing Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24.

6. [65]

   For example, in Kane & Co (NSW) Pty Ltd v Idolbox Pty Ltd [2024] NSWCA 278, the parties entered into a contract for the sale of land for a service station. The contract included a special condition, which required the vendor to obtain a Phase 2 Contamination Report from environment consultants, JBS&G Australia Pty Ltd. If that report “indicates that the property does not fall within the NSW Environmental Protection Authority guidelines in relation to the contamination levels in, on or under the property and which permits the property to be used as a Service Station then either party may rescind this contract”. In construing the contract, the Court of Appeal considered it necessary to understand the statutory and regulatory framework regulating contaminated land in New South Wales: at [23]. The Court concluded that the special condition conferred a right of rescission where the report indicated that contamination levels exceeded those specified by EPA guidelines for commercial / industrial use of land: at [77].

7. [66]

   The Court is entitled to approach the task of construction on the assumption that the parties intended to produce a commercial result, construing the contract so as to avoid making commercial nonsense or working commercial inconvenience: Electricity Generation Corporation v Woodside Energy Ltd at [35] (per French CJ, Hayne, Crennan and Kiefel JJ), citing Codelfa at 350 (per Mason J). As observed in Onley v Catlin Syndicate Ltd (as the underwriting member of Lloyd’s Syndicate 2003) (2018) 360 ALR 92; [2018] FCAFC 119, “It goes without saying that a construction that avoids capricious, unreasonable, inconvenient or unjust consequences, is to be preferred where the words of the agreement permit”: at [33] (per Allsop CJ, Lee and Derrington JJ).

8. [67]

   Where both parties submitted that their proffered construction was supported by the commercial context and accorded with business commonsense, it remains the case that primacy must be given to the text of a contract, “The starting point and the ending point of the construction of a written commercial contract is the language chosen by the parties to record their bargain”: Cherry v Steele-Park (2017) 96 NSWLR 548 at [72]. Leeming JA there repeated his observations in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633 at [74]: “Very often, nothing in the context will come close to displacing the ordinary grammatical meaning of the legal text”. His Honour concluded, “The ultimate question is whether the written language of the contract, when considered in light of legitimately relevant surrounding circumstances, permits a constructional choice to be made between two different legal meanings”: Cherry v Steele-Park at [75].

9. [68]

   Similarly, in McGrath v Sturesteps; Sturesteps v HIH Overseas Holdings Ltd (in liq) (2011) 81 NSWLR 690, Bathurst CJ observed at [17]: (citations omitted)

10. [69]

    Or as Moshinsky, Derrington and Colvin JJ put it in Star Entertainment Group Limited v Chubb Insurance Australia Ltd (2022) 400 ALR 25; [2022] FCAFC 16, “reasoning by reference to commerciality has its limits”: at [11]. This is because what is "business commonsense" is itself a topic on which minds may differ and in respect of which an imputed consensus is impossible: Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 at [43]. Nor are judges best placed to assess the commerciality or otherwise of a particular construction: Cirrus Real Time Processing Systems Pty Limited v Jet Aviation Australia Pty Limited [2023] NSWCA 280; 113 NSWLR 80 at [87]-[88] (Leeming JA, who also noted that the High Court was divided as to whether a construction accorded with commercial commonsense in Ecosse). As the Full Court cautioned in Rockment Pty Ltd t/a Vanilla Lounge v AAI Limited t/a Vero Insurance (2020) 282 FCR 561 at [56]:

11. [70]

    Similarly, in Newey v Westpac Banking Corporation [2014] NSWCA 319, Gleeson JA (with whom Basten and Meagher JJA agreed) said at [91]:

12. [71]

    Finally, the contract should be construed as a whole “since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another”; commercial contracts should be construed fairly and broadly, without being too astute or subtle in finding defects: Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99 at 109 (per Gibbs J). Preference is given to a construction supplying a congruent operation to the various components of the whole: Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17 at [16] (per Gleeson CJ, McHugh, Gummow and Kirby JJ).

13. [72]

    The lease began with rules for interpretation. Headings were for convenience only and did not form part of the lease or affect its interpretation: cl 1.3(3). There was an entire agreement clause: cl 1.3(7). Words of inclusion were not words of limitation: cl 1.3(8). The contra proferentem rule did not apply: cl 1.3(10).

14. [73]

    First and foremost, the lease addressed rent and outgoings. Clause 7 then dealt with the use of the Premises. Clause 7.1 provided:

15. [74]

    Permitted Use meant (Item 5, Schedule 1):

16. [75]

    Defence Purposes, although capitalised, was undefined. The balance of the definition – “together with all such other uses as may be permitted under the local planning laws” – was not necessarily tied to Defence Purposes. Defence was entitled to sublet the Premises, either in whole or in part: cl 15.1. Defence was entitled to assign the lease to a Commonwealth statutory body: cl 15.2(1). With the lessor’s consent, Defence could also assign the lease to someone other than a Commonwealth statutory body: cl 15.2(2). The definition of Permitted Use was sufficiently broad to enable uses other than for Defence Purposes by, say, a sub-lessee or assignee of the lease.

17. [76]

    Clause 7.3 provided:

18. [77]

    This might be thought unremarkable in the circumstances, where Defence knew far more about the state of the site than the lessor, whose knowledge was presumably limited to what it had gleaned from due diligence. As to the embedded defined terms in cl 7.3, the definition of Asbestos was obvious and need not be set out. Contaminants and Hazardous Substances were defined as (cl 1.2): (emphasis added)

19. [78]

    The definition of Contamination appears to have been based on the statutory definition in s 5 of Contaminated Land Management Act 1997, which then provided:

20. [79]

    As the statutory definition was modified in the lease, whether there was Contamination turned on whether the concentration of the substance presented a risk of harm to human health “if the Premises are continued to be used for their Permitted Use” and was not at large.

21. [80]

    Clause 8 concerned maintenance and repair of the Premises. Clause 8.1 provided: (emphasis added)

22. [81]

    The Condition Report was the three-volume Building Condition & Services Survey prepared by Egis in 2002 and the report on fixed plant and equipment contained on a CD, which was exhibited to the parties when signing the lease: see [55].

23. [82]

    Premises was defined as the Land, Buildings, Plant and Lessor’s fixtures and fittings: cl 1.2. Land meant the whole of the Moorebank site: cl 1.2, Item 4, Schedule 1. Buildings meant all improvements on the Land other than the Lessee’s Property (being loose furnishings, fittings and equipment on the Premises at any time which were the property of Defence): cl 1.2. Plant meant air conditioning and ventilation systems, wires, cables, pipes, ducts, conduits, tanks, cisterns and mechanical plant and equipment required to provide utilities and services: cl 1.2.

24. [83]

    Lessor’s fixtures and fittings meant any improvements and property owned by the Lessor on the Premises, (including all Plant and infrastructure, all roads, sewers, drains, water reticulation systems servicing the Premises) at any time: cl 1.2. Maintenance or repairs of a Structural nature were in relation to walls, floors, windows, gutters, downpipes, facades, foundations, ceilings or roofs: cl 1.2.

25. [84]

    In sum, Defence had to keep the Premises in good repair – using the Egis’ 2002 Building Condition & Services Survey as the baseline – and also maintain the plants, gardens and landscaped areas. Defence’s obligation did not extend so far as to improve the Premises, but to routine maintenance only.

26. [85]

    Clause 10 concerned the parties’ compliance with Official Requirements, which was defined as follows: (emphasis added)

27. [86]

    The definition contains the only reference in the lease to redevelopment of the site. Clause 10 provided: (emphasis added)

28. [87]

    Under cl 11.1, Defence was entitled to make alterations, demolitions or additions to the Premises, including of a Structural nature. Defence had to consult with the Lessor if the works had a value of $100,000 or more, or were likely to impact on Structure or Lessor's fixtures and fittings (such that the provision of utilities and services was adversely effected).

29. [88]

    In sum, Defence, or perhaps an assignee, was only obliged to comply with an Official Requirement arising from their “particular use and occupation of the Premises”, being for Defence Purposes or “such other use as may be permitted under the local planning laws”. While Defence was entitled to make alterations, demolitions or additions to the Premises, including of a Structural nature, it is difficult to see Defence’s actions during the term of the lease as amounting to “future development”. Most likely, the developer would have to comply with Official Requirements in respect of any future development of the Premises. Defence would be under no obligation to assist, or to bear the costs of doing so. (Indeed, I think this may explain some of the provisions in the deed, which imposed an additional obligation on Defence in this regard: see [197]).

30. [89]

    Clause 17 concerned Contamination and Hazardous Substances, although little regard may be paid to the heading: cl 1.3(3). Clause 17.2 provided:

31. [90]

    This is the critical clause. The remediation obligation contained two elements, joined by “and”. I will return to this provision in detail shortly.

32. [91]

    Clause 19 concerned termination of the lease. Clause 19.1 provided:

33. [92]

    There is a tension between Defence’s positive obligation under cl 17.2 – to remediate the site to a particular standard by the expiration of the lease – and the obligation in cl 19.1 to return the Premises in the same condition as detailed in the Condition Reports, fair wear and tear excepted. To some extent, this tension is abated by each clause focussing on a different aspect of the Moorebank site. The obligation in cl 17.2 applied to the Land only. The obligation in cl 19.1 applies to the Premises, which included the Land but also Buildings and Plant.

34. [93]

    Further, the Condition Reports informed the content of Defence’s obligations in cl 19.1. Defence was required to perform the obligation “having regard to the condition of the Premises detailed in the Conditions Reports”. The Condition Reports contain a detailed review of each building, its existing services and fixed plant and equipment. The Land does not feature. As such, the tension between cl 17.2 and cl 19.1 is more apparent than real. The obligation to return the Premises in good condition, fair wear and tear excepted, was focussed on improvements to the land, rather than the land itself.

35. [94]

    Finally, cl 29.3 apprehended that the lessor may on-sell the site.

36. [95]

    The developer submitted that cl 17.2 did not use any of the potentially relevant terms used elsewhere in the lease, such as Contamination, Asbestos or Hazardous Substances. While “remediation” was then defined in the Contaminated Land Management Act 1997, that did not mean that it had the same meaning in the lease and regard to that definition could be misleading: David Hughes, Lord Justice Lewison, Interpretation of Contracts in Australia, (2nd ed, 2024. Thomson Reuters), at 261; Festa Holdings Pty Ltd v Adderton [2004] NSWCA 228 at [56] (Mason P); Opal Group Holdings (Australia) Pty Limited v Franklins Limited [2002] NSWCA 169 at [43] (Sheller JA), cited with approval in AAI Ltd v Solarus Projects Pty Ltd [2014] NSWCA 168. Nor did the lease specifically refer to the Contaminated Land Management Act 1997, as in Kane & Co (NSW) Pty Ltd v Idolbox Pty Ltd [2024] NSWCA 278. In these circumstances, where “remediate” was neither defined nor used as term of art, it ought be given its ordinary meaning. The developer relied on the Macquarie Dictionary definition of “remediate” as “to correct or improve (a deficiency or impairment)”.

37. [96]

    Perhaps at odds with this submission, the developer then submitted that “remediate” was expressed to apply to a particular standard, namely “a standard suitable for on-going commercial/industrial use…”. That standard was said to be contained in Table 7 in section 4.8 of Schedule B1 of the NEPM as amended in 2013 (NEPM (2013)): see [144]-[153]. (I cannot help but note that this instrument was not referred to in the lease either.)

38. [97]

    The developer submitted that “on-going” did not mean a one-off or temporary use, but nor did it mean a continuing use. Rather, “on-going commercial/industrial use” embraced changes to use and how that change of use would be effected, including alterations to the surface of the land, the subterraneous services and the possibility of new and different buildings being on and in the land. The developer pointed to the fact that NEPM (2013) addressed risk associated with “the current or proposed land use” and did not differentiate between existing and future uses. (The relevance of this is unclear, particularly as NEPM (2013) did not exist in 2003).

39. [98]

    The developer submitted that “remediate”, properly construed, imposed an obligation to make the Land suitable for commercial / industrial use that was of an ongoing nature, including that such use may involve the disruption of the topsoil by, for example, constructing a new building or changing the drainage lines. It may envisage demolishing buildings and disturbing the topsoil. Defence was required to ensure that the property was suitable for all of these things. It was said to be a "foolish business arrangement" for a landlord to agree to take on the tenant's asbestos management obligations without requiring the tenant to, at least, fully remediate known or suspected asbestos contamination: J Kitchen & Sons Pty Ltd v Stewart's Cash and Carry Stores (1942) 66 CLR 116 at 124-5.

40. [99]

    Defence submitted that the commercial context included the known fact that, in 2002, the Land had been certified as suitable for ongoing industrial/commercial use by site auditor Dr Ryall, subject to the preparation of a site management plan for residual contamination. The purpose of cl 17.2 was to ensure that, at the expiration of the Lease, the Land would continue to be able to be used for ongoing commercial/industrial use. While “remediate” was not defined in the lease, s 4 of the Contaminated Land Management Act 1997 then included the following definition:

41. [100]

    Defence submitted that “remediate” must be understood in the context of the Contaminated Land Management Act 1997 and the NEPM guidelines, which set out the statutory regime against which land suitability was assessed: Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104 at [45]; Kane & Co (NSW) Pty Ltd v Idolbox Pty Ltd [2024] NSWCA 278 at [23].

42. [101]

    Defence submitted that other obligations under the Lease told against the developer’s proffered construction of cl 17.2. Defence was obliged to return the Premises in good repair and condition, having maintained its condition for the Term (fair wear and tear excepted) up to and including the Surrender Date. In order to comply with the obligation as defined by the developer, Defence would have had to destroy the site. To do so would be a breach of Defence’s ‘make good’ obligations under cls 8.1 and 19.1. That construction was contrary to commercial good sense: J Kitchen & Sons Pty Ltd v Stewart’s Cash and Carry Stores (1942) 66 CLR 116 at 124-5. The better construction of cl 17.2 was to impose an obligation on Defence which permitted it to comply with all of its obligations under the lease, preserving “internal coherence” in the Lease through the “iterative process” of giving preference to “a construction supplying a congruent operation to the various components of the whole”: HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342 at [134]; Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17 at [16].

43. [102]

    The general framework of the lease was that Defence took the site as it found it on commencement of the lease and maintained the status quo during its occupation of the site: cl 7.3, cl 8.1. However, Defence also had a positive obligation to do something by the end of the lease, being to remediate the Land to a particular standard.

44. [103]

    Clause 17.2 rather presupposed that the Land was not then at the requisite standard and that something would need to be done to achieve that standard. The commercial context makes plain that Defence understood that to be the case. The reports commissioned by Defence in the lead-up to the sale and lease-back, and the site audit report, were particularly concerned with the leaching of hydrocarbons from the refuelling area. This is further documented by the second element of the remediation obligation at the tail-end of cl 17.2: “and so that no significant contamination is migrating from the site”. This is the only appearance of the word “contamination” in the key provisions of the lease, albeit uncapitalised.

45. [104]

    That is not to say that Defence’s only obligation was to address the contamination in the refuelling area. Far from it. The tail-end of cl 17.2 was the second element of the remediation obligation – “and so that no significant contamination is migrating from the site” – in addition to the first element stated at the outset. That first element was, however, undefined both as to what was meant by “remediate” and what was the requisite standard of remediation of the Land, being “to a standard suitable for on-going commercial/industrial use.”

46. [105]

    Looking first at “remediate”, this word is not defined in the lease. Nor does the lease specifically refer to the Contamination Land Management Act 1997.

47. [106]

    The commercial context included the fact that Defence had just completed an apparently protracted process of investigating site contamination in order to re-zone the land. This culminated in a site audit completed under the Contaminated Land Management Act 1997, to certify that the site was suitable for commercial / industrial use subject to a site management plan being implemented during the ongoing use of the site. This process had been disclosed to interested purchasers through a due diligence process.

48. [107]

    But I agree with the developer that, when cl 17.2 is read as a whole, “remediate” is simply used as a verb and does not incorporate the definition in the Contamination Land Management Act 1997. The verb should be given its ordinary English meaning, and the Macquarie Dictionary definition relied on by the developer is as good as any, being “to correct or improve (a deficiency or impairment)”.

49. [108]

    Looking then at the “standard”, the obligation to “remediate” is promptly clarified and qualified by the following words: Defence was to remediate the land “to a standard suitable for on-going commercial / industrial use and so that no significant contamination is migrating from the site.” That Defence was obliged to ensure that no significant contamination was migrating from the site necessarily envisaged that significant contamination may remain on the site. When read with the preceding words, Defence was obliged to ensure that any remaining contamination on the Moorebank site did not compromise the Lessor’s ability to use the site for ongoing commercial/industrial use, whatever that meant.

50. [109]

    Here, the word “on-going” is important, strongly evoking the concept of continuity. To use the same Macquarie Dictionary relied on by the developer, “on-going” means “in progress” or “continuing to exist”. Similarly, the Concise Oxford English Dictionary defines “on-going” as “continuing; still in progress”. The concept of continuity is repeated in the tail-end of cl 17.2, referring to “contamination” migrating from the site. As earlier mentioned, the definition of Contamination was a modification of s 5 of the Contaminated Land Management Act so that whether there was Contamination turned on whether there is a risk of harm to human health “if the Premises are continued to be used for their Permitted Use”.

51. [110]

    The only on-going commercial/industrial use referred to in the consultants’ reports compiled by Defence in preparation for sale, and apparently shared with interested purchasers in due diligence, was the continued use of the site as a storage and distribution facility. I do not think that “on-going” was intended by the parties to be construed narrowly as referring only to the use for which Defence was then putting the site, where the definition of Permitted Use was defined more broadly to cover the use to which a sub-lessee or assignee of the lease may put the site. But the ability of a sub-lessee or assignee to do something markedly different on the site was limited by local planning laws (Item 5, Sch 1). Whilst Defence or its assignee could make alterations, demolitions or additions to the Premises (cl 11.1), the commercial realities of the term of the lease suggest that a wholesale change of use was not in reasonable contemplation.

52. [111]

    I consider that, viewed objectively, the obligation to remediate the land would not have been understood by the parties at the time to extend to remediation to a standard that accommodated any future commercial / industrial use. Nor do I consider that the parties would have contemplated that the obligation to remediate the land extended to remediation to a standard that accommodated any physical changes which may need to be made to the landform to accommodate any future commercial / industrial use. Such an interpretation gives the word “on-going” no work to do, where I consider that this word is specifically deployed to confine the remediation obligation. Further, such an interpretation would expand “commercial / industrial use” to include demolition, excavation and construction activity, which strikes me as the antithesis of “on-going” use and, rather, embarking on something new and different. It is not “continuing” but stopping and starting again.

53. [112]

    Other provisions of the lease tell against the construction proffered by the developer, where the lease must be read as a whole. Although the developer put its argument in a variety of formulations, essentially, it was said that Defence’s remediation obligation was to remove the asbestos which the developer has since encountered when levelling the buildings, digging up the underground services and removing existing pavements, hardstands and roads in order to use the land for something different than what Defence had been using the site. Such an extensive obligation would be inconsistent with Defence’s obligation to ‘make good’ the Premises at the end of the lease, in accordance with the Condition Report and where no improvement in the condition of the Premises was required: cls 8.1(2), 19.1. Destroying these improvements to see whether there was any asbestos present would also destroy Defence’s ability to make sure that the buildings, pavements, road and services were in good condition.

54. [113]

    Finally, the commercial context includes the fact that Defence was selling a very large parcel of land. The possibilities for the use of that land by a purchaser were endless. The lease formed part of a ‘sale and lease-back’ transaction. As I read cl 17.2, Defence was effectively agreeing to remediate the Moorebank land at the end of the lease so that the purchaser got what it paid for, being a large site which Defence was then using for a particular purpose, and which the purchaser could continue to use for that purpose at the end of the lease without further remediation.

55. [114]

    I consider that a reasonable person would have understood that Defence agreed to address contamination to permit the purchaser to continue to use the land for what Defence had been using it, but not to remediate the site to enable the purchaser to use the land for any commercial / industrial use, including major earthworks. The expansive, open-ended and extremely onerous obligation contended for by the developer strikes me as commercially unpalatable and a bargain to which the vendor of this land would not have agreed, nor a purchaser expected.

56. [115]

    In sum, I consider that the remediation obligation in cl 17.2 was expressed in general terms. Clause 17.2 did not refer to a particular “standard”. The clause certainly did not refer to the standard suggested by the developer, being NEPM (2013), which did not then exist. Rather, the word formed part of a phrase “a standard suitable for …”. Defence was obliged to remediate the site to a standard suitable for “on-going” commercial / industrial use, being what the Moorebank site was then being used for, give or take, being a storage and distribution centre.

After the lease

1. [116]

   In 2006, Defence considered licensing some buildings at DNSDC to a defence contractor. Defence commissioned another study from HLA-Envirosciences, to undertake baseline contamination investigations and collect site condition information in areas where potentially contaminating activities could affect the site during the licence. In January and February 2006, HLA-Envirosciences reviewed the existing studies, supplemented by their own detailed inspection, photographs and further testing. The buildings were noted to be in good condition. The photographs included an asbestos components disposal bin and asbestos components storage in Building 48.

2. [117]

   HLA-Envirosciences concluded that the sources of potential risk to the environment were associated with the historical and existing storage and use of fuels and chemicals, and the presence of possible historical waste burial pits. Again, the focus of the report was on contamination by fuels and chemicals. The results of HLA-Enviroscience’s 2002 testing were annexed to the report, including the test results for asbestos fragments: see [42]. It does not appear from the report that further asbestos was found in 2006.

3. [118]

   In 2007, the bank on-sold the site to (ultimately) the developer. Defence continued to occupy the site under the lease.

4. [119]

   The developer began to explore the development of the site. In 2008, Arup completed a geotechnical desk study report. In 2009, Douglas Partners prepared a report, “Summary environment conditions”. In August 2011, environmental scientists Golder Associates Pty Ltd completed a Phase 1 Environment Site Assessment for Stage 1A of the intermodal development, after inspecting the site in July 2011.

5. [120]

   In March 2012, the developer lodged an environmental assessment with the Department of Planning and Infrastructure, to develop the site into an intermodal terminal facility at a cost of $490 million. In September 2012, JBS&G began to conduct preliminary site inspections for the developer, obtaining information on current site conditions to assist in understanding previous investigations, the site’s environmental setting and to aid in developing an appropriate investigation program.

A clean-up

1. [121]

   In parallel with the developer’s efforts to obtain planning approval, Defence undertook a site clean-up after discovering asbestos in one of the buildings. In 2011, AC debris and associated dust was discovered inside Building 80 at DNSDC. Defence commissioned GHD to undertake an asbestos re-survey of the buildings and structures at DNSDC. GHD then noted that the lease was due to expire in 2014, when Defence planned to move out.

2. [122]

   In August and September 2011, GHD’s health and safety consultant, Matt Goodwin, inspected the buildings at DNSDC for asbestos. A detailed spreadsheet was compiled, which became the asbestos register. The spreadsheet included where suspected ACM fragments had been collected outside buildings for sample, with additional notes such as “likely more present throughout grassed area. Likely to experience disturbance during lawn maintenance.”

3. [123]

   On 4 October 2011, GHD reported its findings and provided advice on the proposed scope of works to decontaminate the structures identified for remediation. The consultants noted that the majority of the structures at DNSDC were built prior to 1985 and originally had cement roofs believed to contain asbestos. An aerial photograph from the 1980s depicted a large portion of the buildings with cement roofs. Other buildings with metal roofs were believed to have previously had cement roofs that were replaced at some point. The surveyors focussed on asbestos cement debris associated with the removal of cement roofs from warehouse structures. Asbestos cement debris was identified on the floor within 13 buildings and on elevated surfaces in 15 buildings (assumed to be associated with the previous removal of roofs within each structure). In addition, “Asbestos cement debris was identified externally throughout the site.”

4. [124]

   GHD recommended a remediation strategy for asbestos cement debris located internally and externally. GHD identified those buildings requiring the removal of internal debris. GHD noted that it was possible that there was unidentified debris in areas that were not accessible during the survey, including between roof sheets and sarking. The proposed remediation strategy was designed to ensure the safe occupation of the buildings, and would be carried out in conjunction with a full air monitoring program to assess the suitability for occupation, “This strategy is not designed for the completed remediation of the buildings as this is not deemed cost effective due to the limited lifespan of the asset.”

5. [125]

   For external asbestos, GHD recommended “The contractor is required to undertake an emu-pick of asbestos cement debris located externally within a five metre buffer zone around the footprint of all buildings and also on known transit routes between buildings.” Further details were given as to how the emu-pick should be undertaken. The consultant’s report concluded with a number of limitations, including that the report did not provide a complete assessment of the status of the site. Attached to GHD’s report was the spreadsheet completed by Mr Goodwin which, as mentioned, became the asbestos register.

6. [126]

   On 4 January 2012, hygienist Parsons Brinkerhoff provided an asbestos remediation inspection certificate for the removal of AC debris on the ground externally to Building 80, between the building and the boundary as determined by a western stormwater drain. Visible materials had been removed from the area as far as reasonably practicable. Areas not accessed included areas below the ground surface, areas covered or obscured by vegetation and areas obscured by stockpiles.

7. [127]

   In January 2012, GHD provided its final audit and clearance report on the removal of asbestos from Building 80, concluding that the building was suitable for re-occupation. GHD presumed that the source of asbestos contamination at Building 80 was the result of “poor removal practices during the removal of a former asbestos cement roof.” GHD set out at length the asbestos removal works which had been undertaken. The consultant also noted that asbestos debris directly to the west of the building was emu-picked after the final audit was completed. GHD noted the limitations of its audit report, where no audit inspection could be regarded as absolute and where partial or total demolition of structures may reveal further asbestos, and where not all areas could be accessed at the time. Further:

8. [128]

   In February 2012, GHD prepared a further scope of works to Defence for asbestos remediation works at DNSDC. The site was delineated into 20 emu-picking zones.

9. [129]

   From June 2012 on, GHD provided an asbestos removal clearance certificate for emu-picking zones. Where each certification followed a similar format, it is convenient to set out the first such report. GHD noted that the asbestos removal works were commissioned “following the identification of asbestos debris on surface soils throughout the entire site which appeared to be concentrated around building footprints.” The clearance certification outlined their findings, “including any areas of further concern, potential ACM that could not be removed and any limitation.” A contractor had been engaged to remove asbestos debris across the entire site, “The majority of contamination was identified surrounding each building footprint, however as a risk mitigation measure the entire site was subject to Emu Picking”. Personnel walked the area in a series of parallel traverse lines spaced one metre apart and collected all visible asbestos cement debris, “Rakes were used to aid in visual observation but at no stage were they used to investigate sub-surface soils.”

10. [130]

    GHD concluded that, as far as reasonably practicable, all visible and accessible asbestos containing debris had been removed to a satisfactory standard and the area was suitable for reoccupation. The consultant set out some limitations on their report:

11. [131]

    On 18 February 2013, an occupational hygienist provided an asbestos remediation clearance certificate in respect of the removal of visible ACM fragments on the ground surface to the western side of the building footprint of Building 13 extending five metres from the building. Visible fragments had been removed as far as reasonably practicable from the ground surface only. The hygienist had not accessed areas below the ground surface, areas covered or obscured by vegetation, furniture, skip bins, stockpiled office items and shipping containers. No subsurface investigation was undertaken. The hygienist certified that the area could now be returned to normal use.

12. [132]

    Similar certificates were provided for other buildings at the DNSDC, where the areas not accessed included areas within guttering, an electrical substation, areas obscured within drains and drainage channels, areas obscured by military vehicles, boats, miscellaneous equipment, garden beds, vehicles and the like. The last certificate was issued on 16 March 2013.

13. [133]

    In total, 18 asbestos remediation clearance certificates were issued by the occupational hygienist for the removal of asbestos containing debris on the ground surfaces extending five metres from the perimeter of buildings on the DNSDC, specifically, for Building 12, Building 17 (eastern and western sides), Building 18 (southern, eastern and western sides), Building 24 (eastern and northern sides), Building 50 (northern western sides), Building 51 (northern side), Building 53 (northern and eastern sides), Building 54 (eastern and northern sides), Building 60, Building 63, Building 67 (all sides of the building), Building 72 (southern side), Building 73 (eastern side), Building 75, Building 80 (western side). I note that the certificates and GHD’s clearance reports do not refer to each of the 20 emu-picking zones proposed at the outset, nor all of the buildings at DNSDC. It would appear that not all of the initial work proposed by GHD was completed.

14. [134]

    From 26 to 28 February 2013, the occupational hygienist also inspected the DNSDC site and updated the asbestos register based on their observations. The updated register recorded that external asbestos fragments had been removed, with further notations also made including, “This area should be inspected periodically due to the tendency for fragments to migrate to the surface.” and “Continue monitoring”.

15. [135]

    This advice appears to have been heeded. In April 2014, hygienist Parsons Brinckerhoff inspected the DNSDC site and updated the asbestos register. Asbestos detected was noted as being either external to a particular building or internal. The type of asbestos was also recorded together with its condition, any laboratory results, a risk rating, control and any comments, including previous inspections or action taken.

Developer’s preliminary investigation

1. [136]

   In April 2013, Golder Associates provided a Preliminary Environmental Site Assessment report for the developer. Mr Molinari and Greg Stratton authored the report. They observed that, between 2000 and 2002 “extensive environmental investigations were completed” at DNSDC such that “further Phase 1 investigations were not warranted”. The authors reviewed the reports to which I have earlier referred. It would thus appear that Defence and the developer had access to the same body of work.

2. [137]

   An exception to this was, however, GHD’s 2011 report following the discovery of asbestos in Building 80 and GHD’s 2012 report following the subsequent emu-picking of the site. Mr Molinari said, when preparing the Golder Associates’ report, he did not have a copy of GHD’s report of 4 October 2011 and, if he had, then his analysis would have been different. Nor was Mr Molinari provided with GHD’s asbestos removal clearance certificates when preparing his report in April 2013. Mr Molinari said that the limitations on the removal of asbestos expressed in those certificates would have been “a red flag … I don’t know if I’d call it a smoking gun [but is] something that really needs to be more thoroughly assessed.”

3. [138]

   To be clear, the developer did not allege in its pleading that Defence was obliged to share GHD’s reports with it, either under the lease or at all. Some of Mr Molinari (and Dr Swane’s) criticisms of the clean-up undertaken by GHD, were also based on the requirements of NEPM (2013), which was not issued until after the clean-up: see [144].

4. [139]

   In any event, the authors of Golder Associates’ report noted that an accredited site auditor had concluded in 2002 that the site was suitable for ongoing commercial/industrial use, including the use as a storage and distribution centre, subject to the implementation of a site management plan. Whilst the status of implementation of the site management plan was not clear, the areas of environmental concern on the site comprised underground tank installations, filled areas including ACM and possible unexploded ordnance. There were well-established methods for each area of environmental concern. In particular, filled areas including asbestos could be excavated and removed, with the soils either placed or capped on site, or off-site disposal at a licensed landfill.

5. [140]

   Golder Associates concluded, “It is evident that extensive information is available on the environmental condition of the … site”. It was recommended that further investigations be completed in the areas of identified environmental concern that were likely to be impacted upon by the proposed development, “these investigations should be based on the detailed design of the proposed development, with the objective to identify the extent of contamination and what, if any, remediation activities are needed.” Remediation of these areas could be considered as part of the future design, for example, using potential site contaminants as fill on other parts of the site.

6. [141]

   The authors suggested that the additional investigation results would also facilitate the development of a contamination management plan for the development of the site, to include detailed procedures on handling, stockpiling and assessing potentially contaminated materials encountered during the development works. Golder Associates concluded, “The review and investigation undertaken by Golder have not identified significant environmental issues which would preclude the currently proposed development”.

New lease

1. [142]

   In July 2013, Defence entered into another lease with the developer for a five year term and an option for a further five year term. The lease between Defence and the bank was annexed to the new lease and defined as the “Prior Lease”. Clause 2 of the new lease provided:

2. [143]

   Amendments to the Prior Lease then followed. None are relevant here. Noting that the terms of a contract are interpreted as at the date on which it was entered into, it is worth considering whether there were any circumstances or commercial context which warrant a different construction of the obligations under the lease than that already considered: Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544 at [16].

3. [144]

   The only matter which appears to warrant re-visitation is whether the reference in cl 17.2 to “a standard suitable for on-going commercial/industrial use” should be construed as a reference to a particular benchmark which identified the criteria for suitability.

4. [145]

   In May 2013, two months before the new lease was executed, the NEPM was extensively amended by National Environment Protection (Assessment of Site Contamination) Amendment Measure 2013 (No. 1) to become NEPM (2013). A health screening level was now added for asbestos contamination in soils. The developer pointed to this as the standard now referred to in cl 17.2.

5. [146]

   I have a couple of problems with this. First, the parties did not make this plain by amending the lease to refer expressly to NEPM (2013). It would have been simple to do this, if that is what the parties intended, where a number of amendments to the Prior Lease were made at this time.

6. [147]

   Second, there is no commercial reason why the parties would have agreed to substantially change Defence’s obligation to remediate the Land at this time. Doubtless, the scope of Defence’s obligation to remediate the Land was factored into the sale price of the Land, when it was sold and leased back in 2003. The same was doubtless the case when the developer acquired the Land from the bank in 2007. There is no apparent reason why Defence would have taken on any additional obligation to remediate the Land in 2013, absent additional consideration in one form or another.

7. [148]

   Third, NEPM (2013) now comprised some 1,200 pages and covered a wide range of subject matter. If it was a “standard”, it was certainly an unwieldy one.

8. [149]

   Fourth and relatedly, NEPM (2013) does not readily produce one answer or remediation method to any given problem, but a range of options which may be selected, as thought appropriate. The definition clause sets the tone at [3]:

9. [150]

   As Pike J recently observed in 191 Bells Pty Ltd v WJ & HL Crittle Pty Ltd [2024] NSWSC 297, “The NEPM only provides guidelines and is not a rule book required to be followed to the letter”: at [73]. By way of illustration, Schedule A to NEPM (2013) contains a flowchart for the general process for assessment of site contamination. If, for example, after completing a Preliminary Site Investigation, it is found that investigation levels or screening levels for intended land use are exceeded, then the next step is to ask oneself, “Is there sufficient information to devise risk-based remediation strategies?” A footnote explains:

10. [151]

    In like vein, Schedule B1, “Guideline on Investigation Levels For Soil and Groundwater” repeats the same explanation to be found in NEPM (1999), at [2.1.2]:

11. [152]

    Schedule B1 now included Table 7 as follows:

12. [153]

    Footnote 4 explained, as it had NEPM (1999), that “Commercial/industrial D includes premises such as shops, offices, factories and industrial sites. As to how to proceed if the Health Screening Levels are exceeded, NEPM (2013) notes at [4.11]:

13. [154]

    In sum, just because asbestos contamination exceeds the specified level in NEPM (2013) does not mean that the contamination must be removed from the site. If NEPM (2013) was the standard now referred to in the lease, it was not productive of a definitive answer as to what that standard required, when Defence vacated the site.

14. [155]

    Fifth, post-contractual conduct may aid in finding what the terms of a contract were: Lym International Pty Limited v Marcolongo (2011) 15 BPR 29,465; [2011] NSWCA 303 at [124]–[126] (per Campbell JA, Basten JA and Sackar J agreeing). Subsequent conduct may indicate what was important or essential to the transaction and indicate the parties’ contractual intention: Queensland Phosphate Pty Limited v Korda and Shepard (as joint and several liquidators of Legend International Holdings Inc (in liq)) [2017] VSCA 269 at [37] (per Tate and Beach JJA and Sifris AJA). Post-contractual conduct may also amount to an admission against interest as to the terms of the contract: JR Consulting & Drafting Pty Ltd v Cummings (2016) 239 ALR 625 at 637; [2016] FCAFC 20 at [54] (per Bennett, Greenwood and Besanko JJ).

15. [156]

    If the developer understood that it was Defence’s obligation to remediate the site in the accordance with NEPM (2013), or to remediate the site more extensively to permit any industrial / commercial use and the associated construction to order to achieve that use, it rather begs the question why the developer proceeded to act as it did in the months and years which followed. Specifically, the developer continued to extensively investigate the potential asbestos contamination on the site, to inform regulatory authorities of the results of its investigations, and to prepare to deal with that contamination as and when it was encountered when the site was disturbed during the proposed demolition and excavation works: see [158] ff.

16. [157]

    I conclude that “standard” remained generally expressed in the new lease and did not incorporate by reference the requirements of NEPM (2013). The word formed part of a phrase “a standard suitable for …”. The remediation obligation remains as earlier construed.

Preparing for development

1. [158]

   In August 2013, the developer submitted an amended environmental assessment report to the Department of Planning and Infrastructure, prepared by Urbis. The authors referred to the report prepared by Golder Associates, a Hazards and Risks Assessments prepared by Hyder Consulting Pty Ltd in 2013, and the earlier audit of the site and asbestos register developed by Hibbs & Associates in 2002: see [22]. Urbis noted that Hyder had identified key potential hazards and risks, including “presence of asbestos in existing structures and the soil (construction risk)”.

2. [159]

   Urbis concluded that the review and investigation undertaken by Golder Associates had not identified significant environmental issues that would preclude the development, but recommended further investigations be completed in the areas of environmental concern that were likely to be impacted upon by the proposed development, noting “The remediation of areas of the site (if any) would be best matched to the development of the site and considered as part of the future design.” The general approach to remediation of physical contaminants and contaminated soil was likely to be selective excavation and disposal. The developer proposed to develop an asbestos management plan for the site.

3. [160]

   In September 2014, the NSW Minister for Planning approved a Concept Plan for the intermodal facility, including a rail link, warehouse and distribution facilities, freight village (ancillary site and operational service), stormwater, landscaping, servicing and associated works. The development was to be undertaken in accordance with a statement of commitments prepared by Urbis, which included the development of an asbestos management plan and asbestos removal control plan.

4. [161]

   In October 2014, Hyder completed a preliminary environmental assessment in support of approval of Stage 1 of the intermodal terminal. The report summarised the earlier work undertaken by Hyder, Golder Associates and Hibbs & Associates (in 2002). The potential hazards and risks associated with the development proposal included:

5. [162]

   These matters would be further considered in an Environmental Impact Statement, to be prepared in support of the proposal.

6. [163]

   In December 2014, the NSW Secretary of the Department of Planning and Environment provided their environmental assessment requirements in respect of the development proposal. The Environmental Impact Statement was to include a contamination assessment in accordance with the guidelines made under the Contaminated Land Management Act 1997 and in consultation with the Environmental Protection Authority. The assessment was to include the potential environmental and human health risks of site contamination, a remediation action plan, consideration of the implications of proposed remediation actions on the project design and timing, and a Phase 2 environmental site assessment of the project.

Developer’s detailed investigation

1. [164]

   In December 2014 and January 2015, JBS&G conducted an investigation program on the site for the developer, as part of a Phase 2 Environmental Site Assessment for Stage 1 of the intermodal development. JBS&G collected 29 soil samples to see whether asbestos was present. These samples were tested at a laboratory. The results were below the adopted NEPM human health commercial/industrial criteria, where the remediation criteria for asbestos in soil was noted to be “No asbestos on ground surface.” In addition, 41 test pits, five soil bores and four groundwater wells were installed over the development site (albeit some samples were taken from outside the DNSDC site). No asbestos was observed throughout the fill profile.

2. [165]

   In May 2015, JBS&G completed the Phase 2 Environmental Site Assessment. JBS&G reported that ACM was positively identified on the surface at the north-western corner of Building 11 by HLA-Envirosciences some years earlier, which “may be related to degrading o[f] historical building infrastructure.” The risk of migration of this contaminant off site was considered to be low, given the inert and isolated nature of the bonded asbestos finds. ACM was also found in fill on an adjacent site.

3. [166]

   JBS&G concluded that ACM finds had the potential to pose a risk to future workers at the site, should the ACM be disturbed. In line with the mitigation of this risk, JBS&G assumed that the removal and/or appropriate management of surface ACM would be conducted in parallel with the hazardous materials removal work prior to the demolition of existing buildings.

4. [167]

   JBS&G concluded, “the site is considered suitable for ongoing commercial/industrial use” subject to these limitations and management of these impacts, “There is no gross or widespread contamination that would unreasonably restrict development and use of the site”. Further, “It is recommended that a Remedial Action Plan (RAP) be developed to address the … impacted areas to minimise the risk to future workers at the proposal site. As a precautionary measure, it is also recommended that an unexpected finds protocol be incorporated in future site management plans to ensure the protection of future onsite workers.”

5. [168]

   Attached to JBS&G’s report was a Remedial Action Plan (RAP). Bonded ACM impacted surfaces were anticipated to be the areas adjacent to previous or current buildings. Further, ACM was potentially related to historical burials or filling activities. Investigations to date suggested that ACM impact was not widespread, potentially affecting 2.5 ha and a depth of some 0.7 mgbs. Potentially impacted material would be managed via a contamination management plan (CMP) either through excavation and remediation or excavation and on-site containment of the potential ACM impacted materials, “Should the subsurface of this area be left undisturbed, then a visual validation and clearance of the ground surface for ACM will suffice.”

6. [169]

   JBS&G reviewed the remedial options. Hand picking of ACM was considered to be the most effective for on-site treatment of contaminated material “given the limited extent of impacted areas.” The scraping of surface soil for hand picking off-site was considered not to be practical “as the impacted areas are on the ground surface and are limited in extent” and “given the likely success of remediation via hand picking.” If this proved hard to achieve, then removal of the contaminated material, followed by replacement with clean material, should be reconsidered. The preferred remediation strategy was as follows:

7. [170]

   As will be seen, although a Remedial Action Plan was prepared for Stage 1 of the intermodal development, it proceeded on the basis of a site audit statement and environmental management plan instead.

8. [171]

   In May 2015, Hyder completed the Environmental Impact Statement for the development. Annexed to the Environmental Impact Statement was the “Geotechnical Interpretive Report” prepared by Golder Associates and the Phase 2 Environmental Site Assessment prepared by JBS&G. The Environmental Impact Statement summarised these reports, noting that JBS&G had identified bonded ACM on the site. The risk of migration of fragments of ACM from the site was considered to be low, given the inert and isolated nature of asbestos finds. Surface bonded asbestos “would be removed by hand picking”.

9. [172]

   The Environmental Impact Statement also noted that Hyder had undertaken a Preliminary Risk Screening, which identified the presence of asbestos in three buildings on the site; demolition of these structures had the potential to release asbestos fibres into the atmosphere, causing harm to human health. JBS&G had identified asbestos as a contaminant of potential concern in areas of the site where filling and burial of waste materials may have occurred or where there was asbestos in the soil resulting in the demolition of former structures. Bonded ACM had been positively identified on the ground surface near Building 11 (presumably a reference to the find in by HLA-Envirosciences some years earlier), which may be related to degrading of historical building infrastructure.

10. [173]

    The authors of the Environment Impact Statement noted that the highest risk of exposure to contamination was during the construction phase, when ground disturbance would be greatest. Disturbance of existing areas of contamination associated with excavation for construction of the proposal would provide opportunities for the release and movement of contaminants. In respect of bonded ACM, this was considered likely to be associated with the buildings which were onsite, “Removal of surface bonded ACM would be conducted in parallel with the hazardous materials removal, prior to demolition of the existing buildings and excavation of soils on the site.”

11. [174]

    The Phase 2 Environment Site Assessment concluded that the site was suitable for continued industrial / commercial use, subject to implementation of the remedial action plans presented in the RAP. In respect of bonded ACM impacted soil, surface bonded asbestos “would be removed by hand picking … This would be done concurrently with the removal of hazardous materials from the site, prior to or during demolition works. Removal would be undertaken by a WorkCover NSW licenced asbestos removalist contractor and any material disposed of [as] ‘Asbestos (asbestos) Waste’. … An environmental consultant would visually validate the remediated ground surfaces once the hand picking as been performed.”

Geotechnically unsuitable soil

1. [175]

   In May 2015, Golder Associates considered the geology and soil of the site. The fill on the site was found to be about 0.5 m to 1.2 m thick. The topsoil was generally between 60 mm to 400 mm, had been placed over fill and was not naturally occurring. As Mr Mettam recalled it, “yeah, there wasn’t a lot of topsoil on the site, as my recollection was.”

2. [176]

   The geotechnical engineer noted, “There is some uncertainty as to how the fill might behave under the additional load of new fill plus floor or pavement loads, and whether adverse total and differential settlements would occur that would damage the floor slabs and pavements. As the site is to be raised by placing new fill, a decision will need to be made about whether to remove and replace the existing fill prior to placing the new fill. … We would anticipate that the existing fill could be reused, with some sorting to remove unsuitable materials … Development of options will require consideration of contamination issues and geotechnical issues, as the preferred geotechnical solution may not be possible due to contamination constraint.”

3. [177]

   Golder Associates suggested that, prior to placing new fill materials, the existing topsoil should be stripped from the surface of the site and stockpiled for reuse in landscaped areas. As will be seen, there are a large number of contemporaneous documents recording that topsoil was removed from across the DNSDC site and put into “geotechnically unsuitable” stockpiles, before being considered for disposal off-site or re-use on site. The extent to which the topsoil was able to be re-used on-site is unclear.

Preparing to leave

1. [178]

   In parallel with the developer’s investigation of the site in the course of advancing its development proposal, Defence was assessing the site with a view to compliance with its remediation obligations under the lease.

2. [179]

   Defence commissioned GHD to undertake a “Stage 1 Contamination Assessment & Data Gap Analysis” of the petrol, oil and lubricants (POL) areas at the DNSDC. GHD was instructed that Defence intended to terminate the lease of the site by 30 June 2015. Defence sought advice as to whether its obligations under cl 17.2 of the lease had been met or whether additional work was required to meet those obligations. The consultant noted:

3. [180]

   GHD reviewed the existing available reports, which totalled some 37 reports and other documents, including by Egis, URS, HLA-Envirosciences and Dr Ryall’s Site Audit Statement. Two environmental scientists from GHD inspected the site in November 2014, driving over the site and inspecting areas of concern identified in their desk top review. There is no reference in their report to observing asbestos.

4. [181]

   GHD identified several areas as requiring additional works. These works predominantly involved targeted soil and groundwater assessments in the southern portion of the site and areas where underground storage tanks (USTs) were located. Additional areas of concern were former burial pits. The consultants recommended that an additional data review be undertaken and a management strategy implemented for the southern burial pits to assess the potential risks associated with historical activities in that area. GHD also made recommendations for the overall management of the potential for contamination across the site, including:

5. [182]

   On 20 May 2015, Defence met with the developer and undertook to provide a copy of the asbestos register for the DNSDC site. The asbestos register was provided on 10 June 2015. This was the asbestos register updated by Parsons Brinkenhoff in April 2014. The spreadsheet appears to have been updated from time to time since, with asbestos items struck through once removed and a clearance certificate sighted.

6. [183]

   Defence commissioned GHD to undertake intrusive site investigations at targeted areas across the DNSDC, to address the data gaps identified in GHD’s previous report. GHD was tasked with preparing a report with their findings and providing “recommendations for management or remedial works which may be required in order for Defence to meet their requirements under the Lease Agreement.”

7. [184]

   In September 2015, GHD produced its report entitled “Intrusive Site Investigations”, having collected soil samples from 79 boreholes, 29 test pits and 15 hand auger locations, together with groundwater samples from six existing and 23 newly installed groundwater monitoring wells. The data produced was generally consistent with that reported during previous investigations. GHD also noted:

8. [185]

   GHD reviewed the site audit statement prepared by Dr Ryall on 9 December 2002, and how each of the issues listed on Attachment 1 to the Site Audit Statement had been addressed by Defence during the lease period.

9. [186]

   In respect of Item 8 (requiring a procedure to be implemented for collecting fragments of material that may contain asbestos), GHD noted that it had undertaken asbestos survey works in 2011 and a remedial strategy was developed. A program of remedial works associated with the management of asbestos in buildings was undertaken between 2012 and 2013. GHD was not aware of operational procedures for the management of asbestos on-site other than in building material.

10. [187]

    In respect of Item 9 (implementing a procedure for managing asbestos-containing materials in burial pits or when undertaking intrusive earthworks), GHD was not aware of any particular procedure which had been prepared for the management of asbestos in soils, “With the exception of fragments of asbestos on the ground surface … no evidence of gross contamination requiring remediation within the southern burial pits has been identified. No remedial works have been undertaken in this area of the site to date and as such, management of asbestos impacted materials would not have been required.”

11. [188]

    GHD made various recommendations including, “The presence of fragments of ACM on the ground surface within the southern burial pits should be noted and managed as part of any further works within this area of the site.” GHD considered that the issues raised by the site auditor in 2002 “have been closed out”.

12. [189]

    Whilst Mr Molinari agreed that he and his staff later reviewed and relied on GHD’s report (see [286]), he was critical of GHD’s report in cross-examination, “it doesn’t appear to me that the 2015 report or investigation reflects what was found in 2011, which I now see was significant contamination within buildings, which is highly unusual, and it would speak of very poor demolition practice. But more particularly, that this case is contaminated ACM in the curtilage of those buildings, quite a significant amount of asbestos.”

13. [190]

    In September 2015, GHD also provided Defence with a report on additional site investigations and evaluating remediation options for the refuelling area. In November 2015, GHD provided Defence with a Remedial Action Plan in respect of the refuelling area.

Surrender of lease

1. [191]

   On 14 December 2015, Defence and the developer executed a “Deed of surrender of lease”. In short, the lease was surrendered on Defence paying $25 million: cl 3.1; cl 1.1(22) and (23). The parties agree that Defence ceased to occupy the Moorebank site on this date. However, Defence was granted a licence to access the refuelling area (called the Licensed Area) for six months (the Licence Period) to comply with its remediation obligations and a further 12 months (the Extraction Period) to complete extraction and testing of that area. Defence was also given a licence to access the rest of the site (the Balance of the Land) for six months (the Access Period) in order to obtain a new site audit statement.

2. [192]

   While the parties executed a Deed of Variation to Deed of Surrender of Lease on 16 May 2016, the variation is not presently relevant. It is thus convenient to construe the deed. The same principles of construction apply.

3. [193]

   Similar rules for interpretation were included in the deed as under the lease: words of inclusion were not words of limitation; the contra proferentem rule did not apply: cl 1.2. Clause 18.1 provided:

4. [194]

   As such, the deed had potential to modify the parties’ obligations under the lease. The issue is the extent to which it did.

5. [195]

   Clause 4.1 of the deed provided:

6. [196]

   As defined in cl 1.1, Lease meant the 2013 lease; Surrender Date meant the date that the Surrender Fee was paid; Premises and Condition Report were as defined in the Lease. That is, cl 4.1 re-stated Defence’s ‘make good’ obligation in respect of the Premises in cl 19.1(1) of the lease but brought forward the time for performance of that obligation to “prior to the Surrender Date”. No additional licence was granted to attend to the ‘make good’ obligation. Presumably, Defence considered that it had already done so.

7. [197]

   Clause 4 continued: (emphasis added)

8. [198]

   Clause 4.3 is a critical sub-clause. Noteworthy, the sub-clause did not bring forward the time for performance of the remediation obligation to “prior to the Surrender Date”. I will return to this provision in detail shortly.

9. [199]

   Clause 7 of the deed is also a critical clause and provided:

10. [200]

    That is, on performance of their respective obligations under the deed, the parties gave mutual releases subject to some exceptions, of which cl 7.3 is presently relevant and barely intelligible.

11. [201]

    The reference in cl 7.3.1 to “the remediation of the Premises” is curious. There were no provisions in the lease relating to the remediation of the Premises. The remediation obligation in cl 17.2 of the lease was in respect of the Land. I accept that the definition of Premises included the Land, but it is curious nonetheless. Cl 7.3(2) refers to the ‘make good’ obligations in respect of the Premises. Cl 7.3(3) refers to the return of keys and security devices, which I suppose may concern the Premises or the Land.

12. [202]

    In endeavouring to give cl 7.3 a businesslike interpretation, sub-cls 7.3(1) to (3) gather Defence’s hand over and ‘make good’ obligations in respect of the Premises. These obligations were now to be performed at the Surrender Date. Clause 7.3 clarifies that the release does not apply to specific instances where Defence has not performed those obligations satisfactorily as at the Surrender Date. The chaussette to the sub-clause prescribes the criteria for identifying these specific instances: “which have not been fully and satisfactorily performed by the Tenant as at the Surrender Date and the unsatisfactory performance verified by the Landlord following an inspection of the Premises”.

13. [203]

    There is no evidence that the developer inspected the Premises at the time and verified any unsatisfactory performance. So the ‘carve out’ in sub-clauses 7.3(1) to (3) does not apply in any event.

14. [204]

    The chapeau to cl 7.3 provided, however, that Defence’s other obligations in the lease continued to be governed by the deed. This obviously included the remediation obligation in respect of the Land. And that is because cl 4.3 set out a procedure to be followed by Defence in respect of its remediation obligation, the performance of which would continue for some months after the Surrender Date.

15. [205]

    Where cl 4.1 brought forward the time for performance of the ‘make good’ obligation to “prior to the Surrender Date”, and there were no specific instances of non-performance of the hand-over or ‘make good’ obligations identified at the time, then Defence was released from all claims in respect of performance of hand-over and ‘make good’ obligations arising after the Surrender Date, subject to Defence complying with its obligations under the deed: cl 7.2.

16. [206]

    Similarly, on Defence complying with its obligations under the deed in respect of the remediation obligation in cl 4.3, then Defence was released by the developer from all claims under or relating to the lease in respect of that obligation which arose after the Surrender Date.

17. [207]

    However, clause 8 of the deed provided:

18. [208]

    That is, the release did not extend to pre-Surrender Date breaches of the lease, even if the developer did not discover the breach until after that date. It is difficult to see how this ‘carve out’ from the release could apply to pre-Surrender Date breaches of the remediation obligation in cl 17.2 of the lease. The time for performance of the remediation obligation had not been brought forward. There could be no breach of the remediation obligation before the Surrender Date, where the time for performance had not arrived.

19. [209]

    The position is not as clear when one considers the ‘make good’ obligation in cl 19.1 of the lease. Clause 4.1 of the deed brought forward the time for performance of that obligation to “prior to the Surrender Date”, which is basically the same thing as “before the Surrender Date”. Clause 8.1(2) is inconsistent with cl 7.3, in particular, the chaussette, which prescribes criteria for identifying specific instances of non-compliance with the ‘make good’ obligation as at the Surrender Date.

20. [210]

    As to how this inconsistency should be resolved, I consider that primacy should be given to the specific provisions in cl 7.3 over the general provisions in cl 8.1(2): Herzfeld & Prince, Interpretation (3rd Ed) at [6.200]. Clause 8.1(2) is a general provision applying to all breaches of the lease, whilst cl 7.3 sets out specific requirements to identify any particular breaches of the ‘make good’ obligation, including an inspection by the Landlord of the Premises. Were it otherwise, that specific procedure would be rendered nugatory.

21. [211]

    As such, whether Defence was released from all claims under the lease – both as to its remediation and ‘make good’ obligations – turned on whether Defence complied with its obligations under the deed.

22. [212]

    The deed then turned to granting access by Defence to the site after the Surrender Date in order for Defence to comply with its obligations under the deed. For the site generally, the developer gave Defence access to the Balance of the Land (being the Land other than the Licensed Area) during the Access Period to comply with its remediation obligations under cl 17 of the Lease and cl 4.3(3) of the deed: cl 12.1(1). Access Period was the earlier of six months from the Surrender Date or the date when Defence complied with its obligations under cl 4.3(3) of the deed: cl 1.1(1).

23. [213]

    For the refuelling area in particular, the developer granted Defence a non-exclusive licence to the Licensed Area during the Licence Period: cl 10.1. Licensed Area was the refuelling area identified by GHD on its 2015 Remedial Action Plan: cl 1.1(14); Annexure C – Licence Plan. Licence Period was the earlier of 10 months after the Surrender Date or when Defence had complied with its obligations under cl 4.3 of the deed: cl 1.1(11). Defence was permitted to access the Licensed Area to comply with its obligations under cl 17 of the Lease and cl 4.3 (except for cl 4.3(3)) of the deed: cl 10.1.

24. [214]

    The developer granted Defence a further licence to access the Licensed Area for 12 months after the License Period (referred to as the Extraction Period) in order to undertake multi phase vapour extraction (MPVE) and testing activities, to be carried out by an experienced remediation contractor and supervised by an environmental consultant: cl 11; Annexure D; cl 1.1(a).

25. [215]

    So far as the developer’s pleading is concerned, the developer contended that the lease and the deed operated together. The developer contended that Defence was obliged by the lease and the deed to remediate the Land to a standard suitable for on-going commercial / industrial use by the expiration of the Lease. (Defence agreed.) The developer further contended that the standard of remediation by the lease and the deed required Defence to remove ACM from the Land. (Defence disagreed.) Resolution of this issue turns on the proper construction of the deed.

26. [216]

    The developer submitted that the obligations in the deed did not replace or vary Defence’s obligations in the lease. This was plain from the opening words of clause 4.3, “Without limiting the Tenant's obligations under the Lease”, and the words in the second sentence to that clause: “The parties acknowledge and agree that this obligation includes, but is not limited to ...”. The remediation obligation was breached as there was asbestos in the topsoil, as discovered when the developer began early works. This was contrary to the requirements of NEPM (2013). The Land was not, in fact, suitable for on-going commercial/industrial use.

27. [217]

    The developer submitted that did not contract with Defence to have the Land returned to it in a non-remediated state or with a “passive form of remediation” in the form of an Environmental Management Plan that identified the risk of asbestos contamination but did not actively remediate the topsoil. The developer did not agree to a form of remediation that meant “known” ACM was left in the topsoil.

28. [218]

    Defence submitted that cl 17.2 of the lease was amended by cl 4.3 of the deed in two ways. Clause 4.3 required Defence to “evidence” performance of the remediation obligation with site audit statements prepared by a Site Auditor in “a form capable of being relied upon by the Landlord.” On the proper construction of the deed, a Site Audit Statement that complied with the requirements of cl. 4.3(3) was conclusive proof of performance by Defence of its obligation to remediate the site: Assafiri v The Shell Company of Australia Limited [2010] NSWSC 1058 at [147] per McDougall J (where his Honour adopted the dictionary definition of a certificate as “a formal document attesting a fact, especially … a fulfillment of requirements”, and “certify” as meaning “make a formal statement of; a test, a test to … declare by certificate”); Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113 at [38]-[40] (certificate as to practical completion).

29. [219]

    Defence submitted that a Section A Site Audit Statement certificate, certifying that the Land which was suitable for commercial/industrial use subject to compliance with the 2016 GHD EMP was conclusive proof that the defendant had remediated the Land to the requisite standard: cl 4.3(3)(b), the deed. This certificate was effective to prove that the “remediation of the Premises” had been “full and satisfactorily performed by the Tenant at the Surrender Date”: cl 7.3(1), the deed. This triggered the release under cl 7.2 of the deed. The developer approved the EMP before it was provided to Mr Lau, as required by cl 4.4 of the deed. There is no basis to go behind the certificate. The Site Audit Statement complied with the regulatory requirements: s 53B, Contaminated Land Management Act. Not only was the Site Audit Statement “in a form capable of being relied upon by the Landlord”, it was relied upon by the developer in its applications for development approval. The unexpected finds protocol in the EMP was also used by the developer to manage asbestos exposed onsite. The developer’s claim should be dismissed without further ado.

30. [220]

    Defence submitted that, if the deed did not amend the lease, then Defence would have been in breach of the lease on the Surrender Date. That objective intention could not be imputed to the parties. Insofar as the Licensed Area was concerned, the deed permitted Defence to surrender that land in a condition that was capable of being made suitable but future remediation had to be carried out. The phrase “includes, but is not limited to” simply preserved the ongoing remediation obligation in respect of the Licensed Area, where further work had to be done. “Without limiting the tenant’s obligations under the lease” also referred to the fact that the deed only dealt with two clauses in the lease and the other provisions of the lease continued to apply. It did not apply, however, to the variation of Defence’s obligations under cl 17.2 and, to that extent, could be considered “solicitor’s verbiage”.

31. [221]

    The first sentence of cl 4.3 emphatically repeats Defence’s obligation to remediate the Land “as required by clause 17.2 of the Lease”. Land was as defined in the lease: cl 1.1. It will be recalled that the time for performance of the remediation obligation under the lease was “By the expiration of the Lease …”. This was emphasized in the opening words of cl 4.3 of the deed, “Without limiting the Tenant's obligations under the Lease upon the expiration or earlier determination of the Lease, …” However, unlike cl 4.1, the time for performance of the remediation obligation was not brought forward to the Surrender Date.

32. [222]

    The parties then “acknowledge and agree” that the remediation obligation under the lease “includes, but is not limited to” a detailed procedure then set out, by which Defence may perform that obligation. (Put another way, completion of this procedure was indicative, but not conclusive, evidence of performance of the remediation obligation.) The rules for interpretation provided that words of inclusion were not words of limitation: cl 1.2(3). This is not “solicitor’s verbiage”, but makes plain that the remediation obligation under the lease was not thereby diminished in any way.

33. [223]

    Why did the parties “acknowledge and agree” that this detailed procedure may be one way of performing the remediation obligation? Because it was otherwise not obvious at all. The remediation obligation in the lease was generally expressed. I have concluded that it did not incorporate by reference any ‘standard’ to be found in NEPM (2013). The remediation obligation certainly did not oblige Defence to obtain another site audit statement. Nor was there any commercial imperative on Defence to do so, where it was not seeking to re-zone or sell the Land (having already done so), was not seeking to develop the Land and was not obliged to comply with any Official Requirement in that regard: cl 10, the lease. Presumably, procuring site audit statements for the Moorebank site was of benefit to the developer. The procedure agreed by the parties conferred a benefit on each, giving the developer something of use and giving Defence certainty. To use GHD’s words, it provided an agreed mechanism by which performance of the remediation obligation could be “closed out”.

34. [224]

    The agreed procedure was then set out separately in respect of the two elements of the remediation obligation in cl 17.2 of the lease. Clause 4.3(3) dealt with remediation of the site generally. Clause 4.3(4) dealt with remediation of the refuelling area. Both procedures required a site audit statement to be obtained.

35. [225]

    Of note is the basis of land suitability which was to be certified by the site audit statement for the site generally. The lease only required Defence to remediate to the Land “to a standard suitable for on-going commercial / industrial use”, which connoted continuity, being use of the site as a storage and distribution centre. This limitation was removed in respect of the site audit statement to be obtained for the Balance of the Land: the site audit statement must certify that site is “suitable for commercial / industrial use” at large, albeit either unconditionally or subject to compliance with an environmental management plan. Presumably, that is what the developer needed to advance its development. But it is certainly not what Defence was obliged to provide under the lease.

36. [226]

    I agree with the developer that the deed did not vary the extent of the remediation obligation. What the parties to the deed did agree, however, was that, if Defence performed its obligations under cls 4.3 and 4.4 of the deed, then Defence would be released from claims relating to non-performance of the remediation obligation from the Surrender Date: cl 7.2. If Defence did not comply with that procedure, then the remediation obligation remained as stated in the lease. The acknowledgement in cl 8.1(2) did not alter that result, where Defence did not (and could not) breach the remediation obligation before the Surrender Date.

37. [227]

    By these means, the generally expressed remediation obligation in the lease was re-crafted into a set of bespoke obligations, which were likely of more use to the developer and productive of certainty to Defence. To be added to the mix was $25 million paid by Defence. It is not known to what extent that figure reflected compensation to the developer for rent foregone and to what extent it reflected compensation for the risks associated with vacating the site without further remediation. But it was a substantial sum negotiated by sophisticated commercial parties. That was the deal struck, and by which both parties are bound.

38. [228]

    Nor does it appear that such a deal was out of the ordinary. As Mr Molinari observed, where an owner accepts a site as suitable for industrial/commercial use with a site audit statement and an EMP, whether the owner is accepting the risk that more work might need to be done in the future in relation to contamination depends on the contract between the vendor and purchaser of the land. Mr Molinari said “we often deal with sites where it’s to be developed subject to an EMP, but the seller and the buyer have agreed on who is going to cover any costs for finds”. This was one such contract, where the developer agreed to bear the risk but received a lump sum, which presumably included a component to reflect that risk.

39. [229]

    The next thing to consider is whether Defence complied with its obligations under the deed in respect of the agreed mechanism in cl 4.3. There is no issue in respect of Defence’s remediation of the refuelling area, of which no further mention will be made.

Site audit report

1. [230]

   Defence retained GHD to prepare an EMP for the DNSDC. In May 2016, GHD provided accredited auditor, Andrew Lau of JBS&G, with their reports for consideration. On 4 May 2016, Mr Lau provided lengthy comments. So far as asbestos was concerned, Mr Lau advised: (formatting added)

2. [231]

   For far as the Remedial Action Plan for the refuelling area was concerned, Mr Lau also asked GHD to include asbestos in both the stockpile characterisation and validation samples during the excavations.

3. [232]

   On 18 May 2016, GHD provided their comments on the matters raised by Mr Lau including, “Asbestos fragment[s] were noted at limited locations; and where identified the fill was sampled. We propose to manage asbestos within the EMP as part of an unexpected find protocol and safeguards during below ground works.” GHD noted Mr Lau’s requirements in respect of the Remedial Action Plan.

4. [233]

   On 15 June 2016, GHD met with Mr Lau and noted that the EMP needed to include management measures in respect of the potential presence of asbestos beneath building footprints.

5. [234]

   On 1 July 2016, GHD issued a draft EMP to Mr Lau. On 6 July 2016, Mr Lau provided his comments, suggesting that management of asbestos on the ground surface required further consideration and action. The EMP should include a management measure to address ACM fragments that may be encountered from time to time, primarily in the southern parts of the site. “The proposed annual inspections should also include a visual inspection of the accessible ground surface (at least while ever the current ground levels are maintained) and removal of any identified suspected ACM fragments to a licenced waste facility …”.

6. [235]

   A revised draft EMP was provided to the developer. On 14 September 2016, the developer advised that the document was approved and could now be provided to the Site Auditor for review.

7. [236]

   The EMP was issued on 26 September 2016. GHD noted:

8. [237]

   GHD summarised the work undertaken on the site in 2015 and the results of its intrusive testing in 2016. In particular, GHD repeated that fragments of ACM were noted on the ground surface and shallow soils at several locations, most notably in the southern burial pits; “The potential for widespread presence of ACM on the surface across this portion of the site cannot be discounted.” G7292 An aerial photograph including the southern burial pits was provided and the locations where asbestos had been detected was marked. G7303 A summary of the soil contamination found by GHD in its intrusive investigation was provided, including fragments of ACM in the southern burial pits.

9. [238]

   GHD’s investigations into subsurface conditions and fill were also summarised, noting “very limited presence of building material present in the fill soil; which is considered to present a primary indicator for the potential presence of asbestos in soil.” GHD noted that it had previously (in 2013) reviewed historical aerial photographs and noted that the limited demolition of buildings, but the southern part of the site was “notably disturbed” and tied in with the location of the southern burial pits and therefore has the potential for fill materials. GHD also advised:

10. [239]

    GHD noted than an EMP had been developed to mitigate these risks. GHD then set out the potential sources of contamination (including asbestos fragments in the soil), potential exposure pathways to this contamination and potential receptors for contamination. When considering receptors, GHD noted that Defence was in the process of vacating the site, “GHD understands the site will be developed in the future for use as an intermodal terminal (commercial / industrial land use).” Potential receptors may include future construction and maintenance workers. A number of control measures were necessary to control this exposure. GHD then set out environmental management procedures, including for ACM in the southern portion of the site and a procedure for unexpected finds.

11. [240]

    On 12 October 2016, Mr Lau signed a site audit statement certifying that, in his opinion, the site was suitable for commercial/industrial use subject to compliance with the environmental management plan prepared by GHD. Mr Lau listed the information sources for the site audit, including the reports of Egis, URS, HLA-Envirosciences, Milsearch, Dr Ryall’s site audit statement of 9 December 2002 and, more recently, GHD’s reports from 2014 and 2015, together with GHD’s environmental management plan.

12. [241]

    In the accompanying site audit report, Mr Lau summarised the assessment and audit work undertaken at the site, including the site audit by Dr Ryall in 2002 and GHD’s more recent work. Mr Lau accepted the conclusions of Dr Ryall but noted that revisions to guidelines relating to the assessment and management of asbestos since the completion of that audit meant that further consideration was required. As such, further assessment and management of asbestos was needed in accordance with guidance provided in NEPM (2013). Mr Lau noted the GHD had addressed this issue in the EMP prepared for the site.

13. [242]

    Mr Lau assessed the soil sampling undertaken by GHD and noted that asbestos analysis in soil was limited to five samples collected from locations where fibre cement pieces were observed. The sample sizes vary between 68 and 112 g and did not conform to NEPM (2013). The auditor noted that the asbestos analysis conducted by GHD was insufficient but further noted that asbestos management had been addressed in the EMP prepared for the site.

14. [243]

    The auditor also noted that relatively limited sampling had been conducted beneath current buildings, but the soil data from the site as a whole did not indicate that any additional contamination issues, other than what was already nominated as requiring management in the EMP, was likely to be present, “Should the existing building slabs/pavements be removed, then the requirements in the EMP relating to the managing of asbestos … as directed by the unexpected finds protocol, must be followed.”

15. [244]

    The auditor considered that the EMP nominated appropriate management measures to address the identified residual contamination issues including asbestos such that the suitability of the site for the nominated use was ensured. GHD’s EMP was attached to the site audit statement and site audit report.

Compliance with the deed

1. [245]

   The developer contended that the presence of ACM on the Land meant that the Land was not suitable for on-going commercial / industrial use; Defence had not complied with its obligations under cl 4.3 of the deed. Defence denied this, contending that it had complied with its obligation by obtaining a site audit statement in compliance with cl 4.3(3)(b) of the deed, certifying that the Land was suitable for such use, subject to compliance with the environmental management plan prepared by GHD.

2. [246]

   In reply, the developer contended that provision of the site audit statement and EMP did not constitute compliance with cl 17.2 of the lease or the deed. As particularised, the site audit statement was said to be deficient as:

3. [247]

   The developer submitted that neither the site audit statement nor the EMP complied with the relevant requirements. Firstly, the EMP needed to “succinctly describes the nature and location of contamination remaining on-site” but did not do so, as opined by Dr Swane. There was, in fact, asbestos in the topsoil, as was discovered by the developer when it began early works. There was no legal mechanism to bind an owner of the Land to comply with the EMP, as the then applicable guidelines required. As such, the EMP was ineffective, and the Site Auditor could not rely on the EMP as a proper means of managing contamination on the Land. The Land was not suitable for ongoing commercial/industrial use. It followed that the EMP and site audit did not comply with cl 4.3 of the deed. It followed that Defence was also in breach of the lease. The fact that the developer consented to the form of the EMP did not change this result, as post-contractual conduct cannot inform the terms of the contract: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57, per Gummow, Hayne and Kiefel JJ at [35].

4. [248]

   Defence submitted that the Guidelines were not a code and largely turned on the exercise of professional judgement by the site auditor. Defence rebutted each of Dr Swane’s criticisms in detail, which it is not necessary to repeat.

5. [249]

   Although expressed as guidelines, accredited site auditors must comply with the mandatory aspects of the Guidelines: at [1.7]. In his first report, Dr Swane considered that Mr Lau had failed to comply with four mandatory requirements. In his second report, Dr Swane added a further six mandatory requirements which were said to have been unfulfilled.

6. [250]

   Put shortly, Dr Swane said the site auditor guidelines were revised in 2006, which implemented a much stricter regime. Whilst Dr Ryall’s site audit statement complied with the requirements in 2002, additional remediation and investigation work could then be undertaken after the site audit was issued. After 2006, an environmental management plan had to be attached to the site audit statement, which complied with EPA guidelines. Dr Swane considered that Mr Lau did not properly address these changes when issuing his site audit statement. Dr Swane considered that the site auditor did not independently re-assess or critique the pre-2002 data or the validity of the conclusions made by Dr Ryall.

7. [251]

   Dr Swane considered that there was a major shortcoming in the 2016 site audit, where the objectives of the 2002 and 2016 site audits were very different. The objective of the 2002 site audit was said to be to assess the suitability of the site for ongoing use as the DNSDC while the 2016 site audit assessed the suitability of the site for “ongoing commercial / industrial use”, which he took to include the proposed future use of the site as an intermodal terminal. Given this, Mr Lau should have re-assessed the date and conclusions which underpinned Dr Ryall’s site audit: s 3.2.2, s 3.7.1, Guidelines. Further, Dr Swane said that Mr Lau did not personally inspect the site. The site was inspected by his assistant, whose expertise and competence was not known, contrary to s 3(1)(m) of the Guidelines. Mr Lau only reviewed GHD’s investigation report of 2015 but not the earlier six investigation reports.

8. [252]

   Dr Swane was also critical of GHD’s investigation methodology in their 2015 investigation. Dr Swane considered that the methodology did not meet EPA guidance. Dr Swane considered that the EMP was flawed, both in itself and as an approach to managing contamination on the site. Dr Swane considered that remediation could only be said to have been achieved in this case by emu picking and removal of asbestos contaminated soils. He did not accept that contamination could be managed by an EMP given the requirements of the lease and the deed. Dr Swane said that the site audit statement should not have been issued. The site auditor thereby certified that no further remediation or investigation of the site was needed to render the site fit for the specified use. In Dr Swane’s view, more needed to be done before that could be said in order to comply.

9. [253]

   Mr Clay disagreed with Dr Swane. He considered that the effect of Mr Lau’s site audit statement was to certify that the site was suitable for ongoing commercial / industrial use on the basis of GHD’s EMP. That EMP restricted access by unauthorised people to the southern portion of the site and required signage to warn of potential ACM and unexploded ordinance in that area. The EMP created institutional controls on the whole site by putting in place procedures for managing asbestos, unexploded ordinance and unexpected finds and required that the EMP be updated if and when the site configuration changed. The site was not suitable for all forms of commercial / industrial use without control. Had that been the case, then the auditor would have provided an unconditional site audit statement. The site was patently not suitable for unrestricted commercial / industrial use without an EMP and therefore there were limits on what future development could occur at the site without the developer having to manage contamination risks. The developer would have had to become intimately aware with the mitigation measures in the EMP.

10. [254]

    Mr Clay considered that it was simply not appropriate to suggest that the risk that there was asbestos on-site meant that the site was not suitable for ongoing commercial / industrial use. If there was asbestos on the surface, the EMP implemented an unexpected finds protocol to deal with it. This meant that the site would not have thereby been unsuitable for commercial / industrial use at the Surrender Date. The concept that visible ACM rendered a site unsuitable for use was wrong.

11. [255]

    Mr Clay said that to obtain an unconditional Section A site audit statement the minimum guidelines must be followed including raking the top 10 cm of soil to make sure that it was asbestos free. This was a high standard to achieve on a site like DNSDC, because of the amount of fill on the site. Nor was it possible to remove the top 10 cm of every site to make it safe, Mr Clay said, unless one was about to go through a major earthworks exercise and remove all of the soil from the site, then it was a very difficult thing to achieve an unconditional site audit statement. Most sites like DNSDC would end up with a management plan.

12. [256]

    Ms Organo considered that the 2016 site audit statement and EMP were capable of being relied on by the developer. Ms Organo considered that the 2016 EMP addressed the risks associated with any potential asbestos contamination that may be present on the site. The use of the Land for ongoing commercial / industrial use as at the Surrender Date broadly comprised activities undertaken for the continued and normal occupation and use of the buildings, hardstands and other features of the Land as listed at that date, together with activities undertaken to change the layout of the buildings, hardstands and other features but where their use, after that change, continued to be for commercial / industrial purposes. The land was then largely occupied by buildings and hardstand surface coverings. The landscaped areas were generally well covered with vegetation such as shrubs, grasses and trees. The nature and extent of the surface coverings was adequate to preclude the disturbance of surface or sub-surface soils and the generation of dust and airborne particles during the use of the land as a workplace.

13. [257]

    Ms Organo said the 2016 EMP provided the control measures to ensure that any disturbance of the soil or similar works were undertaken in a manner that would mitigate the potential risk of exposure to asbestos. Section 1.6 of the 2016 EMP contemplated that the ongoing commercial / industrial land use may require the redevelopment of the Land and, if such works were undertaken, then suitability would need to be re-assessed and the 2016 EMP revised. In Ms Organo’s experience, where management plans such as the 2016 EMP rely on the existing layout of a site to achieve their objectives, it is usual for the plans to require that they be revised when changes are made to the layout, even where land use remains the same. This ensures appropriate revisions to the EMP where required to maintain land use suitability.

14. [258]

    The developer’s contention that the site audit statement did not comply with the lease can be immediately put to one side. Clause 17.2 of the lease imposed a remediation obligation that was generally expressed. Defence’s obligation under cl 17.2 did not include an obligation to obtain a site audit statement, let alone one which complied with guidelines which did not exist when the wording in cl 17.2 was agreed in 2003.

15. [259]

    I accept, however, that Defence was obliged under the deed to provide a site audit statement which complied with the Guidelines. Clause 4.3(3) and (4) provide that the site audit statements were to be prepared by a Site Auditor, meaning an independent accredited site auditor: cl 1.1(20). The chaussette to cl 4.3 provided that the site audit statements must “be in a form capable of being relied upon by the Landlord.” That is, the site audit statements must be valid. Implicit within this obligation was a requirement that the site audit statements comply with applicable guidelines.

16. [260]

    In addition to this implied (albeit unpleaded) requirement, however, the deed contained two express requirements.

17. [261]

    First, if Defence proposed to obtain a site audit statement that certified land suitability subject to compliance with an EMP, then the developer must approve the EMP. The developer did so: see [235].

18. [262]

    Second, the site audit statement must “be in a form capable of being relied upon by the Landlord.” Self-evidently, it was in that form as the developer did rely on the site audit statement in the years which followed, both in progressing the development and in managing ongoing use of the site. The developer relied on the site audit statement: in an Environmental Impact Statement submitted in support of development consent for Stage 1 of the development (see [289]); in a Contamination Management Plan required as a condition of approval for Stage 2 of the development (see [322], [328]); dealing with unexpected finds in Stage 1 (see [333], [348]); and managing the tenanted warehouse (see [338]).

19. [263]

    Given that the site audit statement complied the express requirements of the deed, the debate as to whether it complied with the Guidelines is arid.

20. [264]

    If I am wrong about the immateriality of any non-compliance of Mr Lau’s site audit statement with the Guidelines, then I preferred the views expressed by Mr Clay to those of Dr Swane on this subject. Mr Clay addressed each of Dr Swane’s criticisms in great detail. Mr Clay was an impressive witness who gave evidence in an even-handed and impartial manner; indeed, the developer ultimately relied on large tracts of Mr Clay’s evidence as well.

21. [265]

    Further, the contemporaneous documents do not support Dr Swane’s view that Mr Lau did not turn his mind to changes which had occurred to the guidelines in relation to asbestos since Dr Ryall’s audit statement of 2002. Rather, Mr Lau took these changes up with GHD: see [230]. Mr Lau did not initially accept GHD’s work but went back and forth with additional requirements until he was satisfied. Mr Lau specifically addressed the changes in the guidelines in relation to asbestos in his site audit report: see [241].

22. [266]

    Nor it is entirely clear to me how Mr Lau would have critiqued the pre-2002 reports and underlying data fourteen later, or how relevant that exercise would have been where there was much more recent data and consultants’ work available.

23. [267]

    I also take comfort from the fact that Mr Lau’s site audit report was reviewed and endorsed by another site auditor, James Davis, in 2019 without adverse comment: see [355]-[356].

24. [268]

    In the result, I am not satisfied that the site audit statement did not comply with the Guidelines. Nor did any non-compliance matter, where the express requirements in respect of the site audit statement and any EMP were satisfied.

25. [269]

    The second suggested deficiency referred to in the developer’s Reply was that Mr Lau’s site audit statement was issued despite further remediation or investigation of the Land being needed to render the Land suitable for ongoing commercial / industrial. As I understood the evidence given by all experts, site audit statements were commonly issued in circumstances where the land was, and would remain, contaminated. Rather, the suggested deficiency stemmed from Dr Swane’s views on two matters.

26. [270]

    First, Dr Swane expressed an opinion on matters of fact. Dr Swane considered that asbestos “was known” to exist in the top 10 cm of soil and below the top 10 cm of soil as at the date of the deed. Dr Swane pointed to references to asbestos in Dr Ryall’s site audit report, GHD’s EMP and Mr Lau’s site audit report.

27. [271]

    I think “known” puts it too highly. The position was more fairly described by Mr Clay. Mr Clay did not see any evidence of there being visible asbestos on the surface of the site at the Surrender Date outside of the southern burial pits. While GHD stated in 2016 that a piece of asbestos was found at the ground surface near a bore hole, this was removed and sent to the laboratory for analysis.

28. [272]

    Second, Dr Swane’s views were based on his understanding of the meaning of the lease and the deed, with which I do not concur. Dr Swane considered that the existence of “known” asbestos meant that the Land was not suitable for “on-going commercial/industrial use” as it did not comply with NEPM (2013) and where the proposed intermodal development necessitated disturbance of the soil. I have concluded that the lease did not incorporate requirements NEPM (2013) nor oblige Defence to remediate the site to permit any commercial / industrial use and associated demolition, excavation or construction necessary to bring about that use.

29. [273]

    In sum, this suggested deficiency rested on the acceptance of other elements of the developer’s case, which have not been accepted.

30. [274]

    The third suggested deficiency with Mr Lau’s site audit statement – that the EMP noted that the Land would be redeveloped as an “intermodal terminal (commercial industrial land use)” – appears to be a contention that “on-going commercial/industrial use” thereby included use of the Land as an intermodal facility. As I understood the argument, it was said to follow that Defence was obliged to remediate the Land such that the developer could complete that development without encountering asbestos in its travels.

31. [275]

    There is no doubt that Defence was aware, when executing the deed, that the developer intended to develop the Moorebank site and adjoining land into an intermodal facility. GHD referred to this – albeit fleetingly – in the EMP in the context of identifying potential receptors of contamination: see [239]. GHD also noted that the EMP had been prepared to “reflect current site activities” and would expire and require amendment “should the site use change … including redevelopment”.

32. [276]

    References in the EMP to the proposed use of the site as an intermodal facility did not enlarge the scope of the remediation obligation in the lease, being to “remediate the Land to a standard suitable for on-going commercial/industrial use”. Specifically, the reference in the EMP to the intermodal facility did not bring the construction and operation of such a facility within the concept of “on-going”. That was something which the developer wanted to do on the site. It was a substantial departure from what Defence had been doing, or what its tenants had been doing, or what any sub-lessee or assignee of the lease might have been expected to do.

33. [277]

    In the result, Defence complied with cl 4.3(3) in respect of the Balance of the Land, specifically, by procuring a site audit statement which certified that the Land was suitable for commercial / industrial use subject to compliance with an EMP (which had been approved by the developer) and in a form capable of being relied up by the developer (and, in fact, relied upon the developer). The developer did not suggest that Defence had not complied with its obligations in respect of the refuelling area. It follows that Defence complied with its obligations under the deed.

34. [278]

    Having done so, Defence was released from any claims in respect of non-performance of the remediation obligation arising after the Surrender Date. Defence was also released from all claims under the lease in respect of its ‘make good’ obligations from the Surrender Date. These proceedings are one such claim. It follows that the Summons should be dismissed.

35. [279]

    If I am wrong about this, then it is necessary to consider whether Defence failed to comply with its remediation and ‘make good’ obligations under the lease, to which this judgment now turns.

Moving on

1. [280]

   In April 2016, environmental consultant Arcadis prepared preliminary environmental assessment for Stage 2 of the development, being the construction and operation of warehouses and distribution facilities on the site. This involved clearing vegetation, remediation works, demolishing existing buildings and infrastructure, earthworks and levelling of the site, installing drainage and utilities, establishing a hardstand and constructing warehouses and distribution facilities.

2. [281]

   Arcadis’ report considered the potential for soil contamination. Previous studies were reviewed, including those of Hyder, Hibbs & Associates, Golder and JGS&G. Arcadis observed, “Given the age of the buildings within the Proposal site, there is potential for asbestos containing materials (ACM) to be present throughout the site within the buildings to be demolished and in areas where fill material is present.” Construction of the proposal had the potential to disturb contaminated soil and existing structures containing asbestos. Prior to demolition or construction, the developer proposed to develop an asbestos management plan.

3. [282]

   On 27 May 2016, the NSW Secretary to the Department of Planning and the Environment issued its environment assessment requirements for Stage 2. The developer was to provide a contamination assessment, to include the potential environmental and human health risks on the site, a Remedial Action Plan and consideration of implications of proposed remediation actions on the project design and timing.

4. [283]

   In May 2016, plans were drawn up by the developer to construct a Contamination Assessment Treatment Area (CATA) on-site as part of the land preparation works, involving demolition and remediation.

5. [284]

   On 22 June 2016, JBS&G inspected the site for the Stage 2 proposal, to visually assess potentially contaminated areas identified during their desktop review. Features such as evidence of fill, stockpiled waste, disturbed soil or buildings of an age that could typically include asbestos were inspected. There is no indication that JBS&G saw any asbestos fragments at the time.

6. [285]

   In November 2016, Golder Associates provided a geotechnical interpretative report in respect of the Stage 2 proposal. A decision needed to be made as to whether to remove and replace the existing fill prior to placing new fill across the site. The report considered the viability of reusing existing topsoil and fill. Golder Associates noted that topsoil was typically 0.1 m thick and concluded, “Typically topsoil will need to be removed.” However, contamination issues would need to be considered. Existing fill would be suitable for re-use as general fill, provided it was moisture conditioned and sorted to remove unsuitable material including topsoil, vegetation, rock fragments and the like.

7. [286]

   On 15 November 2016, JBS&G provided a Contamination Summary Report in respect of the Stage 2 development, in support of an environmental impact statement. Mr Molinari was the reviewer of the report, authored by Beatrice Gomez. The report contained a review of the existing studies, together with the results of JBS&G’s site inspection and preparation of a conceptual site model. JBS&G concluded that, based on the review of available information, historical activities on the DSNDC site may have resulted in potential contamination of surface soils and the subsurface environment. “However, based on the intrusive contamination investigations and site inspections completed for the former DSNDC site no evidence of widespread residual contamination at the Proposal site has been reported; however, isolated areas … have been reported to be impacted by … ACM ….”

8. [287]

   JBS&G advised that the Construction Environmental Management Plan for the site should contain a Contamination Management Plan, including an asbestos management plan and an unexpected finds protocol. Previous investigations had not identified widespread residual contamination and, as such, the risk posed by contamination was considered to be low, “However, this finding does not preclude the possibility of encountering unexpected and incidental contamination during the construction and operation of the Proposal.”

9. [288]

   Mr Molinari explained that, whilst JBS&G undertook a site inspection, it would not have been a detailed inspection, “In this case [t]here had been a lot of other work done on this site and it was really to ascertain whether the conditions had changed in any significant way that might have led to a change in the contamination status of the site.” The report largely relied on other reports which were available for the site. Mr Molinari again volunteered, “But, just to go back, you know, there was an important report related to asbestos find on the site which wasn’t available to me or to anybody else on this assessment.”

10. [289]

    By November 2016, a bulk earthworks plan had been prepared. It accompanied the Environmental Impact Statement, which was finalised on 2 December 2016. The Environmental Impact Statement noted that a site audit statement and site audit report had been developed by JBS&G, which certified that the site was suitable for commercial/industrial use and that further contamination investigations (that is, a Phase 2 contamination assessment) was not required. The site audit report noted that construction works on the site should be undertaken in accordance with the environmental management plan developed for the site by GHD, including procedures to control exposure to potential human health and environmental receptors from residual contaminated soil, ACM and potential unexploded ordnance. Prior to commencement of construction, an asbestos management plan had been developed.

Development approval

1. [290]

   On 12 December 2016, development consent was issued for Stage 1 of the development, comprising an intermodal terminal facility, rail link and associated works including vegetation clearing, remediation and leveling works. Prior to commencement of construction, the developer was to prepare and implement a Construction Environmental Management Plan, to include measure for handling, treatment and management of hazardous and contaminated materials including asbestos. Approval of the Stage 1 proposal included approval of the demolition and remediation of a number of buildings including Buildings 7 to 11, 16 to 18 and 24 to 27.

2. [291]

   On 15 December 2016, the developer retained JBS&G as consultants to deal with unexpected finds on the site, including the preparation and submission of validation reports for such finds encountered during excavations associated with the development of the site.

3. [292]

   In January 2017, Mr Mettam was engaged as project manager for the intermodal project. The first construction phase was to demolish the buildings left by Defence, before the developer could commence earthworks. Once earthworks were complete, the next activity was to construct an intermodal terminal known as IMEX (Import Export Terminal), followed by the warehouses.

4. [293]

   In February 2017, the developer prepared a Contamination Management Plan in respect of Stage 1. The objective of the plan was to provide procedures for the management of known or suspected contaminated materials during construction, where “Unexpected finds may occur in areas which, although searched extensively, contain remnant materials which were obscured by the local topography, the type of surface cover (eg building) or at a depth preventing detection.” Known or potential hazards associated with the work included contaminated material such as asbestos. An Asbestos Management Plan was detailed, together with an Unexpected Finds Protocol.

5. [294]

   In February 2017, drawings and specifications were issued for the early works demolition and remediation on-site. The drawings and specifications noted that the contractor was obliged to perform site remediation works including removal of asbestos contaminated soils.

6. [295]

   In March 2017, the developer engaged Liberty Industrial Pty Ltd to undertake demolition work for the IMEX terminal. The superintendent was Tactical Project Management Pty Ltd. Under the contract, an asbestos removal supervisor was nominated as key personnel of the contractor. The contractor was also obliged to engage an occupational hygienist: cl 2.20(a).

7. [296]

   Mr Mettam explained that Liberty Industrial’s contract covered works within a limited section of the site, referred to as the Stage 1, Phase 1 works, and comprised six demolition zones. The works comprised demolition of the buildings and structures in each of these zones being, effectively, where the IMEX terminal was to be constructed.

8. [297]

   Under the conditions of development approval, the developer was obliged to appoint an Environmental Representative, who was independent of design and construction personnel and approved by the NSW Secretary of the Department of Planning and Environment. On 20 March 2017, the Environmental Representative inspected the Stage 1 site during pre-construction and discussed demolition and asbestos removal.

9. [298]

   In July 2017, the developer modified the Stage 2 proposal and addressed submissions made in respect of the Environmental Impact Statement, following its public exhibition. Several submissions raised concern about the management of asbestos during construction. The developer did not propose any alteration to its proposal on that account, noting that the potential for construction activities to cause asbestos fibres to become airborne, through the demolition of existing buildings known to contain asbestos or excavation or disturbance of soil potentially containing asbestos, would be undertaken in strict accordance with the Asbestos Management Plan.

Stage 1 demolition

1. [299]

   URS had produced a map of buildings on site, which may assist in understanding what follows:

2. [300]

   In August 2017, asbestos was encountered in the demolition of Building 20. According to Mr Mettam, this was a very small building. The floor slab was raised above the surrounding ground. Once the slab was demolished, then the material immediately under the slab was found to contain a high portion of broken asbestos sheeting, “It was basically sheets of asbestos sheeting all crumpled.” Mr Mettam said this was the only occasion on the site where there was asbestos found underneath the footprint of a building.

3. [301]

   Liberty Industrial began to dismantle Buildings 10 and 11. As Mr Mettam described it, the buildings were freestanding with a lot of grass around, “So, we scraped that grass around [Buildings] 10 and 11 and didn't find any surface ACM”. Digging proceeded to where buried stormwater pipes were thought to be, where the top of the pipe was maybe 150 mm below the surface of the ground. Mr Mettam said, “as soon as we started to excavate from the … existing stormwater trenches, we found ACM in the trenches.”

4. [302]

   According to JBS&G’s reports, on 21 September 2017, asbestos fragments were found in fill material surrounding five stormwater pipelines following the northern and southern lengths of the Buildings 10 and 11 footprints. These fragments were identified during service removal works and continued to an approximate depth of 1.5 m below ground level. There was also another unexpected find south of Building 11, being a suspected ACM stormwater pit identified at 0.1 m depth during demolition excavation works. ACM impacted fill was excavated and transported to a licenced waste facility, while remaining ACM fragments visible on exposed soils within the trench were picked up and the soils visually inspected to confirm that no visual asbestos was observed. JBS&G later provided a waste classification report: some 1,000 m3 of material was classified as General Solid Waste with Special (Asbestos) Waste.

5. [303]

   Mr Mettam explained that, after these early buildings, Liberty Industrial developed a technique of pre-investigation of the ground surrounding the building before demolition, by scraping the ground to around 50 to 100 mm before demolition commenced. If, on visual inspection, asbestos fragments were detected in that area, safety protocols would be implemented. Work stopped. Personal protective equipment (PPE) was donned. The material was then sampled by a testing company.

6. [304]

   On 27 September 2017, Liberty Industrial was directed by the supervisor to undertake a literature review of earlier studies on the buildings, hazardous substances and dangerous goods, being the 2002 studies undertaken by URS, HLA-Envirosciences and Hibb & Associates. The contractor was instructed to undertake an intrusive audit of the buildings, including material testing, and prepare a pre-demolition hazardous material survey report, documenting its findings. The report was to cover, essentially, the area of the DNSDC site other than the tenanted warehouses and the buildings in the IMEX terminal area.

Waste classification reports

1. [305]

   There followed a slew of waste classification reports prepared by JBS&G. As a kindness to the reader, I have included the details of these reports in Addendum 1. I pause to explain the import of these reports, which are relevant to the extent to which Defence may have failed to comply with its remediation obligation, the costs incurred by the developer, and whether those costs were caused by the breach or would have been incurred in any event.

2. [306]

   Once a decision had been made to remove material from the site, then the material had to be classified in accordance with guidelines issued by the NSW EPA. That is, waste classifications were generated for materials that had been identified as unsuitable for re-use on the site; these classifications were not necessary if the material was left in situ. Mr Molinari explained, “So, you can have material that is suitable to remain on site, asbestos, but if you take it offsite it's a waste and it's an asbestos waste. So, it's highly protective of landfills, not necessarily the public.”

3. [307]

   As Ms Holmes also explained, it could not be assumed that the estimated volume of material in JBS&G’s waste classification reports was disposed of as asbestos waste. The estimated volumes were based on the fact that “when we wrote this we know that potentially we won’t find all the asbestos … and we knew that there was probably more asbestos when we started digging it up, … once we started excavating the soils … if further asbestos was found it fell under this waste classification.” Mr Molinari agreed that it was not possible to tell from the waste classification letter what portion of the asbestos impacted soil was ultimately disposed of off-site and what was re-assessed as suitable. The field notes may provide more detail. The position was different if laboratory sampling indicated friable asbestos, then the whole stockpile had to be taken to a licenced facility, “you can’t treat friable asbestos. That’s … just a policy, it's not seen as doable.”

4. [308]

   Having reviewed each of these reports, some general observations can be made.

5. [309]

   First, the waste classification reports indicate that asbestos contamination was largely encountered when digging up underground infrastructure such as stormwater pipes and telecommunication pits. Not only were some of these materials made from AC materials, but the backfill around this underground infrastructure contained AC fragments. There is little mention in the waste classification reports of AC fragments being observed on the surface of the soil.

6. [310]

   Second, as noted at the outset of this judgment, the waste classification reports detail how the developer took the site apart. Obviously enough, the developer was not continuing to use the site as a supply and distribution centre but was demolishing the existing buildings and removing the underground infrastructure, pavements and roadways with a view to constructing a major new facility.

7. [311]

   Third, as mentioned the waste classification reports do not provide an accurate guide as to how much material was actually disposed of as asbestos waste. In addition, these reports provide little detail on what portion of that material, if any, was topsoil. Further still, these reports do not reveal whether that topsoil had AC fragments on the surface at the time it was removed. And this is because the demolition contractor was not tasked with making sure that there was no AC fragments on the surface of the soil, but was tasked with removing the soil altogether.

8. [312]

   As earlier noted, the geotechnical engineers had concluded that the topsoil was geotechnically unsuitable and had to be removed: [175]-[177], [285]. Mr Molinari explained that the topsoil was removed by scraping the surface with the bucket of an excavator, which “tends to, as a matter of course, bring it into a stockpile.” Further, “So, the cause of it being put in a stockpile was not initially anything to do with ACM. It was about a construction process which requires the removal of geotechnically unsound materials; top soil, grass, all the other sorts of things that get mixed up in top soil, and in preparation for construction. … at this point in time this is where construction is underway and we have been asked to look at this material, which is not going to be left where it is. Where it goes from there is a decision that's made by others. For example, "Is it geotechnically sound? Is it surplus to our requirements?", all of those things, and then we come in and we support the management of that material.”

9. [313]

   Mr Molinari said it was not necessary for the waste classification letters to record how many pieces of asbestos were found in stockpiled soil, or whether the asbestos was visible on the surface before being brought to the stockpile, “No, the stockpile was formed not for the purposes of cleaning up the asbestos. They - it became apparent once the materials had been scraped.” Mr Molinari also agreed that the waste classification letters did not indicate whether the ACM had been buried under vegetation before the topsoil was scraped, “so, somebody in construction … for the development said we need to scrape this topsoil. … They geotechnically had no other purpose for it. Because it had asbestos in it the regulations say that any amount of asbestos defines it as asbestos waste for the purposes of disposal.” Ms Holmes agreed that waste classification was necessary as the developer had already decided to excavate the site and strip the topsoil.

10. [314]

    Mr Molinari further explained that the stockpiled material was also screened, “So it was moved to the stockpile, then it was moved from the stockpile into the screen and then it was screened and stockpiled post screening.” Mr Molinari agreed that the soil had been disturbed at least three times, which had the potential to damage any asbestos that had been found. Against this, the existence of one fragment in a very large stockpile amounted to asbestos waste, even though it was a de minimus amount of asbestos. Screening endeavoured to make more of the material reusable on-site if possible. Absent screening, a much larger amount of material would be taken to landfill.

11. [315]

    All of this means that, even when a waste classification report concerned topsoil, there is insufficient information to know whether any AC fragments identified when that topsoil was in a stockpile had, before removal, been on the surface of the soil, within 10 cm of the surface or further below the surface. This is not to criticise JBS&G, but to record the fact that these reports were prepared for a different purpose than that for which they are now deployed. It does mean that these reports are of limited utility in identifying instances in which asbestos was actually on the surface of soils at the time, and the extent to which waste disposal was attributable to such instances.

Hazardous chemicals

1. [316]

   In August 2017, Liberty Industrial commissioned ADE Consulting Group Pty Ltd to undertake a hazardous chemical inspection within Building 16, before the building was demolished. This building contained an abrasive blasting bay, cleaning bay, painting bay and a chemical bath area. Flammable tanks were in the basement. ADE Consulting collected samples to determine potential risks for workers, who may be exposed to chemicals during removal and remediation.

2. [317]

   In September 2017, Avcon Projects Australasia submitted a proposal for cleaning, decanting and waste removal works for Building 16 at a cost of $648,718. In January 2018, Avcon provided expanded costings in respect of its proposal, now totalling $515,430 exclusive of GST. On 24 January 2018, the superintendent issued a direction to Liberty Industrial to proceed to remove residual contamination in the remaining portion of Building 16 in accordance with ADE Consulting’s report of 18 August 2017 and Avcon’s proposal of 18 September 2017.

3. [318]

   Decontamination works were conducted by sub-contractors and overseen by EP Risk Management Pty Ltd in respect of Building 16 from January to March 2018. In February 2018, Avcon discovered that the tank room basement had flooded, but were unable to verify when the flood had occurred. Liquid waste containing oil and hydrocarbons, totalling 30,000 litres, was pumped out of the tanker and sent away for disposal. Eight underground storage tanks were lifted out by crane in March 2018 and were either sold for re-use or recycled as scrap metal. Four above ground storage tanks were considered too contaminated to warrant cleaning and were disposed of, while 17 above ground storage tanks were decontaminated for either sale or recycling as scrap metal. Ducting previously connected to the above ground storage tanks was removed and decontaminated for re-use or recycling into scrap metal.

4. [319]

   Liberty Industrial issued a variation notice in respect of the removal of residual contamination in Building 16 in accordance with the Avcon proposal. This involved cleaning and removing all internal tanks offsite to a licenced hazardous waste treatment facility. In addition, “Class 3 mixed product” was decanted within the underground basement section and, where the contents of the product within the tanks was somewhat unknown, treated as worst case Class 3 flammable product. The plaintiffs paid $746,879.90 for this variation.

5. [320]

   In October 2017, ADE Consulting was commissioned by Liberty Industrial to undertake a Hazardous Chemical Inspection within and around Buildings 67, 69, 81, 82 and 83 before the buildings were demolished. Samples of suspicious hazardous products were collected on 18 and 19 October 2017 and sent for testing. These buildings had a number of chemical tanks, painting booths and ovens and underground drains.

6. [321]

   On 28 February 2018, the superintendent directed Liberty Industrial to proceed with the decontamination of Buildings 67, 69 and 81 in accordance with ADE Consulting’s report and the Avcon proposal. In April 2018, Avcon undertook work on Buildings 67, 69, 81, 82 and 83 and rendered invoices totalling $501,794 plus GST. On 10 May 2018, Liberty Industrial was paid $551,973 in respect of a variation for decontaminating Buildings 67, 69 and 81.

Stage 2 demolition

1. [322]

   By February 2018, Mr Mettam said that Liberty Industrial had completed the demolition and remediation of the majority of the Stage 1 works area. Arcadis provided a six-monthly compliance report in respect of Stage 1 of the development. Unexpected asbestos finds had been identified across the site and managed in accordance with the Remediation Action Plan. Works were stopped immediately and the area delineated and signposted. An asbestos hygienist was notified to inspect the find and remove the asbestos, including classification and licenced transport and disposal of asbestos materials. The hygienist provided clearance and validation of contaminated areas and included the unexpected finds in the final validation report.

2. [323]

   On 31 January 2018, the developer received approval for Stage 2. A condition of approval included that, prior to early works, a Contamination Management Plan (approved by a NSW EPA accredited Site Auditor) was to be prepared and to form part of a Construction Environmental Management Plan. The Contamination Management Plan was required to include an Asbestos Management Plan and Unexpected Finds Procedure. The Contamination Management Plan was to be based on the EMP prepared by GHD in 2016 and to take into account additional risks posed by the proposed works including excavation within the southern burial pits, disturbance of soil containing asbestos material and demolition of buildings containing asbestos materials.

3. [324]

   Liberty Industrial’s construction contract was amended to expand the scope of works to Stage 2. Mr Mettam explained that the works performed under this contract covered demolition and remediation across the balance of the site, marked out as Demolition Zones 1 to 10. These works were further broken up into phases. Phase 2 comprised demolition of the northern area, comprising Building 67 to 69, together with Building 70, 72, 73, 75, 80 to 83 and 90 to 93. These works were also referred to as the Northwest Limited Works Stage or ‘Target Warehouse Area’. Phase 3 works took place on the eastern side of the site, excluding the tenanted warehouses, and involved the demolition of buildings 31 to 35 and 37 to 48. Phase 4 works took place in the northeast section of the site surrounding former Buildings 49 to 54, that is, the tenanted warehouses.

4. [325]

   Mr Raval understood that, due to the extent of contamination claimed by Liberty Industrial in the Stage 1 Works area, the developer incorporated provisional sums for the removal of ACM into the amended construction contract. He explained that a provisional sum is an allowance inserted into a contract price for a specific element of the works that is not yet defined in enough detail to accurately account for the whole price. In Mr Raval’s experience, this is common where the extent of the scope of works cannot be fully understood until it has commenced. To resolve the uncertainty of the scope of works, a fixed rate at which the scope of works is to be completed and an adjustable quantity are often incorporated into the contract. If the developer had not inserted provisional sums into the contract for ACM remediation and removal, then the contractor would have been entitled to claim these amounts as variations, which would then incur a margin. Mr Raval understood that the inclusion of the amounts as provisional sums was seen as a cost minimisation measure.

5. [326]

   JBS&G continued to issue waste classification reports in respect of asbestos contamination encountered in Stage 2. Details of these reports are in the Addendum 1 to this judgment. Mr Molinari said that, in Stage 2 of the development, topsoil was assessed in situ rather than in stockpiles. Whilst JBS&G had got involved in the Stage 1 works by responding to unexpected finds, by Stage 2, “I guess people [had] been alerted to the fact that there was more asbestos on the site than had been reported, at least in reports generally available. … The client wanted to be on the front foot and did in situ assessments for … worker health … and … to understand what the quantum of impacted materials may be for the purposes of managing it. Further, “there was advice that the topsoil was geotechnically unsuitable for the development and there was an in situ assessment to then say, okay well how do we manage this [unsuitable] material? And it was important to know whether it was impacted by asbestos to do that management.”

6. [327]

   On 19 February 2018, the supervisor gave a direction in respect of asbestos contaminated soil in and adjacent to the “Central Access”, and directed the excavation and disposal of up to 612 t of asbestos contaminated soil. This volume was calculated based on 65 m3 from Area 4, 20 m3 from Area 5 and 250 m3 from Central Access.

7. [328]

   In March 2018, EP Risk prepared a Contamination Management Plan for Stage 2. The Contamination Management Plan included an Asbestos Management Plan and Unexpected Finds Protocol. The objective of the Contamination Management Plan was to comply with the conditions of consent and provide procedures to manage remnant contamination issues during construction activities being: excavation within the southern burial pits, which contained asbestos containing materials; the removal and remediation of underground storage tanks; disturbance of soil containing asbestos material; and demolition of buildings containing asbestos materials. The plan was developed based on the EMP prepared by GHD in 2016, noting that GHD had specified that the EMP required amendment should the site be redeveloped. Stage 1 and Stage 2 had now been approved. The EMP prepared by GHD had apparently been updated and reported on by EP Risk in 2018.

8. [329]

   In May 2018, JBS&G prepared a strategy for asbestos in soils management for Stage 2, as contemplated by the Contamination Management Plan. The consultant noted that, following preparatory works, Early Works on the site included the importation of fill to raise the elevation of the site by two metres, and the installation of major services including stormwater and utilities. JBS&G set out the procedures to be followed when removing topsoil: “Where “geotechnically unsuitable” materials are identified, typically topsoils, the materials are stripped and removed off-site to a licenced landfill.” Following removal of the “geotechnically unsuitable” materials, the area was to be assessed by a Licensed Asbestos Assessor to confirm no visible asbestos remained. The strategy also addressed procedures for excavating trenches, removing redundant services, ACM pipe, ACM impacted pipework backfill and installing new services. The Site Auditor was asked to review the strategy for comment.

9. [330]

   According to Arcadis’ quarterly compliance report in respect of Stage 2, from July to September 2018, land preparation works were undertaken including demolition and remediation. So far as asbestos was concerned, asbestos fragments were emu-picked around Building 35 and 40. Asbestos soils from Building 34 were screened and loaded out together with asbestos and contaminated soils from Building 52.

10. [331]

    In August 2018, Arcadis provided a further six-monthly compliance report in respect of Stage 1, noting that unexpected asbestos finds continued to be identified across the site and managed in accordance with the Remediation Action Plan. Arcadis also prepared a pre-construction compliance report in respect of Stage 2, addressing the conditions of approval. Relevantly, a Contamination Management Plan had been prepared by EP Risk on 17 April 2018, which included an Asbestos Management Plan and Unexpected Finds Procedure and satisfied the condition of consent in respect of such a plan.

11. [332]

    According to Arcadis’ quarterly compliance reports, 6,640 tonnes of asbestos and “geotechnically unsuitable” contaminated soils were disposed of from October to December 2018. Demolition and excavation continued from January to March 2019 including demolishing access roads, removing stormwater pipes and an asbestos surface scrape and emu-pick around the tenanted warehouses, being Buildings 50 to 54.

12. [333]

    On 29 January 2019, JBS&G provided a report to the project manager, summarising the processes followed to that point in managing with asbestos on the site. For Stage 1, ACM was encountered as asbestos impacted fill, ACM service conduits, ACM telecommunications pits and bituminous asbestos insulated metal pipes. Unexpected finds were dealt with in accordance with the EMP prepared by GHD. Waste classification was undertaken in accordance with NSW EPA (2014) Waste Classification Guidelines. JBS&G advised that, during construction, “geotechnically unsuitable” materials were also stockpiled on the Stage 2 site. Some 30,000 m3 was stockpiled and assessed as impacted by low level concentrations of ACM fragments. During Stage 2, this material was treated (emu-picked/screened) to improve its geotechnical properties and assessed for compliance with NEPM asbestos commercial/industrial land use criteria. Non-complaint materials were disposed of to landfill as special waste (asbestos). Some stockpiles required re-processing to remove additional ACM and “geotechnically unsuitable” material.

13. [334]

    In respect of Stage 2, JBS&G advised that asbestos in soils was dealt with in accordance with the Asbestos Management Plan, which was part of the Contamination Management Plan prepared by EP Risk. For the Northwest Ltd Works Stage, soils were assessed in-situ for geotechnical suitability and the potential presence of asbestos. “Geotechnically unsuitable” materials were either disposed off-site as general solid waste or general solid waste with special (asbestos) waste.

14. [335]

    In the eastern precinct of Stage 2, JBS&G applied modified geotechnical assessment criteria. During the work, the contamination status of materials was characterised for the purpose of potential on-site soil re-use (with or without treatment) or, where required, waste disposal in accordance with the framework provided by the Contamination Management Plan. ACM was generally encountered during the removal of “geotechnically unsuitable” materials, typically being topsoils, as well as ACM impacted stormwater/redundant services trench backfill. Redundant services included ACM telecommunications pits, ACM concrete stormwater pit formwork, bituminous asbestos insulated metal pipes and the like. Asbestos impacted burial “hotspots” were also encountered during civil excavation works. Further:

15. [336]

    JBS&G advised that, typically, topsoil was scrapped to a depth of 5 cm to remove vegetation and the areas re-scraped. JBS&G provided plans, aerial photographs and other photographs of the works undertaken. For the site of the former DNSDC, JBS&G identified areas assessed as suitable for on-site reuse, areas with bonded ACM which was suitable for on-site treatment or processing, areas with friable ACM which were unsuitable for treatment, areas where the material was removed as special waste (asbestos) and those areas where the materials were removed as general special waste.

16. [337]

    On 6 March 2019, the superintendent directed Liberty Industrial to place the asbestos contaminated IMEX topsoil in accordance with the direction and supervision of Golder Associates. Following placement of each layer and prior to compaction, Liberty Industrial was to arrange inspection by JBS&G for the presence of asbestos and, if required by JBS&G, to conduct asbestos emu-picking. Upon acceptance by JBS&G, Liberty Industrial was to compact the layer of material and carry out geotechnical testing under the supervision of Golder Associates. Liberty Industrial was also to comply with the quality systems of Fulton Hogan, including the Inspection and Test Plan for the works.

Tenanted warehouses

1. [338]

   Meanwhile, the tenanted warehouses were still being actively used as such. The tenanted warehouses were managed under the EMP approved by Mr Lau. There was a program of periodic inspection to ensure that there had not been any disturbance to the area. As will be seen, the developer’s consultant, JBS&G, basically approached this task in the same way that GHD had done in 2011 and 2012.

2. [339]

   On 19 December 2018, JBS&G provided advice to the project engineer in respect of asbestos in soil for Buildings 50 to 54, which were tenanted warehouses. Ms Alamango prepared the report, which was reviewed and approved by Mr Molinari.

3. [340]

   The report noted that a preliminary visual inspection of the surface of the ground had been conducted, limited to accessible ground surfaces only. Where vegetation was present, comprehensive inspection of the ground surface was not possible and ACM may or may not be present below the vegetated surfaces and/or in subsoil surfaces. ACM was identified on the ground surface adjacent to the tenanted warehouses. The condition of the ACM was assessed. Mr Molinari agreed that soil samples collected were not tested but Ms Alamango was a very experienced asbestos assessor, “On the basis that on a weight of evidence it visually looks like it, it’s in an area that’s been impacted by it, I think it is fair to assume that is ACM.”

4. [341]

   JBS&G recommended that a surface emu-picking be undertaken of areas where bonded ACM fragments were present. Surface scraping of the topsoil was recommended in other areas, where weathered or degraded ACM fragments had been observed. This would ensure that ACM was not disturbed during normal site activities. Until this work was done, parking and driving vehicles on grassed and/or unvegetated soil areas should be prevented, with parking and driving restricted to hardstand areas.

5. [342]

   JBS&G noted that, in the medium term, should intrusive soil disturbance activities be conducted in this area, regular inspections should be conducted by a suitable trained person to assess the presence of ACM during soil excavation works. In the long term, when demolition and redevelopment of the tenanted warehouses was undertaken, it was recommended that ACM be assessed and handled “as per construction works elsewhere at the site”, where ACM had been encountered and removed as required during topsoil removal for geotechnical purposes, removing redundant stormwater and services and unexpected finds. JBS&G noted that ACM had generally been encountered during the removal of “geotechnically unsuitable” materials, typically being topsoils and redundant underground services. On-site treatment of “geotechnically unsuitable” materials included manual picking and mechanical screening to remove “geotechnically unsuitable” debris including ACM. ACM impacted materials deemed as “unsuitable for on-site treatment” had been disposed off-site after appropriate waste classification or designated for treatment prior to potential reuse.

6. [343]

   Mr Molinari agreed that the tenanted warehouses area was suitable for use as long as any asbestos was not disturbed. Land use criteria could be satisfied by emu-picking all visible asbestos. But for unstabilised soils, which did not have grass cover, “You would probably want to go a bit deeper than just picking material simply off the surface. … You would go deeper to … assure yourself that you weren’t just picking up something now that in the short period of time further asbestos may be uncovered and you’re just going through the same cycle again and again.” A localised scraping may bring the surface to a state that could be easily managed by a property manager, who would be in a position to restrict access, erect signs and supervise the area with regular inspections to ensure or confirm that there wasn’t any disturbance to the areas.

7. [344]

   On 6 March 2019, JBS&G provided an asbestos clearance report in respect of the tenanted warehouses, comprising the ground surfaces adjacent to roadways and verges in between Buildings 50 to 54. Asbestos removal was conducted for ground surfaces surrounding these warehouses prior to roadway and footpath construction by the civil works contractor. Asbestos was removed by emu-picking from the surface of the soil, together with the excavation of asbestos hotspots identified during visual inspection of exposed surfaces. ACM hotspots with weathered or degraded ACM fragments were scraped.

Preconstruction contamination assessment

1. [345]

   On 30 April 2019, JBS&G provided the plaintiffs with a Preconstruction Contamination Assessment Report in respect of the Northwest Ltd Works Stage Area. The purpose of the report was to verify the satisfactory management of site contamination encountered during preparatory works and that the site remained suitable for the proposed commercial/industrial land use.

2. [346]

   JBS&G noted that, following preparatory works, early works on site included the importation of sandstone/shale fill to raise the elevation of the site by some two metres, and the installation of major services including stormwater and utilities. JBS&G outlined the procedures followed in respect of topsoil areas, stormwater trenches and backfill spoil. JBS&G noted that, in March 2018, it had classified the topsoil in Stage 2; these topsoil materials “had been identified as “geotechnically unsuitable” and were designated for off-site disposal, with the sampling undertaken to support waste classification of the material.”

3. [347]

   JBS&G then investigated underground stormwater infrastructure and trench backfill materials, as well as underground storage tanks. JBS&G set out in detail the work undertaken in respect of Buildings 67 to 70, 72, 73, 75, 80 to 83, 91 to 93 and surrounding areas. These buildings were now included within the Northwest Limited Works Stage, where concrete roads, asphalt pavement and water tanks also remained. JBS&G was of the view that there was a low risk of impacts below hardstand areas. Based on their work, JBS&G considered that the Northwest Limited Works Stage area was suitable for the proposed commercial/industrial land use, subject to the conclusions of supplementary investigations conducted by EP Risk in relation to the findings of a hazardous chemical inspection of Buildings 67, 81 and 83.

4. [348]

   On 14 May 2019, JBS&G provided a contamination assessment and management report, verifying the satisfactory management of site contamination encountered during earthworks and the importation of fill onto the site. The consultant confirmed that Area 1 was managed under the EMP prepared by GHD. Where asbestos in soils was encountered, a waste classification was provided and all impacted materials were disposed off-site. Following removal of visible ACM, a clearance letter was issued for the excavated area. The works completed for Area 1 were considered to suitably meet the requirements of the EMP.

5. [349]

   Area 2 was managed under a Contamination Management Plan developed by EP Risk. JBS&G maintained a full-time presence throughout the topsoil stripping and removal of stormwater infrastructure for Building 7, 82 and 83. No visible ACM was observed on the ground surfaces of these building areas. All final soil sampling and laboratory analysis met the site criteria outlined in the Contamination Management Plan.

6. [350]

   For Area 3, being the former refuelling area, remediation and validation works had been completed. Area 3 was considered suitable for commercial/industrial land use subject to implementation of the EMP. The consultant concluded that the assessment and management of contamination encountered during early works was suitably documented. The site remained suitable for continual commercial/industrial land use, subject to implementation of the EMP within the refuelling area.

7. [351]

   On 30 May 2019, JBS&G provided a preconstruction contamination assessment report in respect of Stage 2. The consultant verified the satisfactory management of site contamination encountered during preparatory works and confirmed that the site remained suitable for the proposed commercial/industrial land use. The report covered Building 82, demolitions zones 7 to 9 including the stockpile area and Building 9.

8. [352]

   In outlining its task, JBS&G noted that it had inspected and prepared waste classification letters for “geotechnically unsuitable” topsoils for potential off-site disposal. Topsoils surround the buildings, asphalt and concrete roadways were scrapped to approximately 50mm depth across the site. Some areas required further scrapping, when weathered/graded ACM small fragments were identified in the subsoils following the initial removal of topsoils. During topsoil scraping, stockpiles were generated and assessed as either suitable for on-site re-use, suitable for treatment/processing, or unsuitable for treatment. Following the removal of “geotechnically unsuitable” materials (typically topsoils), the former building footprints and former hardstand areas and surrounding former landscaped areas were inspected for ACM. These inspections included the exposed sand bedding beneath former building slabs, exposed sub-grade below hardstand areas and areas external to the buildings where topsoils had been removed.

9. [353]

   Further, during the removal of redundant stormwater infrastructure, the excavated trenches and spoil were inspected for the presence of ACM. JBS&G maintained a full-time presence throughout the topsoil stripping, removal of unexpected finds and removal of underground services and tanks within Building 82 and Demolition Zones 7 to 9.

10. [354]

    On 31 May 2019, James Davis of Enviroview Pty Ltd provided a Site Audit Statement in respect of the Northwest Ltd Works Stage, certifying that the site was suitable for commercial/industrial use. There were asbestos containing materials, being asbestos cement conduit, with the potential for contamination of soil in two discrete areas, being a pipe extending below the café carpark and another beneath the water tanks and associated hardstand. If future demolition works let to the removal of the hardstand in these areas, then the potential for soil contamination should be managed in accordance with the Contamination Management Plan.

11. [355]

    Mr Davis also provided an extensive site audit report. The site auditor had inspected the site and reviewed the various reports from 2002 on, in particular, Mr Lau’s site audit report of 2016 and the underlying reports prepared by GHD. Mr Davis considered that the conclusions and outcome of the audit were appropriate for the site status and guidance available in 2016. The work undertaken since that site audit was also examined, including the Contamination Management Plan prepared by EP Risk. (Mr Davis considered that the plan should have been updated to more specifically identify further areas of contamination which had been encountered during the works.)

12. [356]

    The auditor considered JBS&G’s Preconstruction Contamination Assessment Report of 15 January 2019. Mr Davis considered that the level of documentation provided by JBS&G was sufficient to evaluate the works conducted. The sampling, analytical and quality protocols undertaken by the consultant were satisfactory and the data was adequately reliable for the purpose of assessing the validation status of the site for the proposed commercial/industrial land use. Mr Davis concluded that the reports relating to the management of contamination met the relevant guidelines and the objectives of the site audit. The site auditor was satisfied that the site assessment, site redevelopment and remediation works as reported demonstrated that the site was suitable for the proposed land use.

13. [357]

    On 15 August 2019, Mr Davis also provided a site audit statement in respect of the IMEX, certifying that the site was suitable for commercial/industrial use, subject to compliance with the EMP prepared by GHD in October 2018 in respect of the former refuelling area.

14. [358]

    On 15 October 2019, Mr Davis provided a site audit statement in respect of part of the site described proposed Lot 22 site, Moorebank Precinct East. The site was suitable for commercial/industrial use. Assessment, remediation and validation had been undertaken during the site preparation phase of development, including demolition and disposal of structures, removal of redundant infrastructure, installation of new infrastructure, and the alteration of land levels by site filling. The assessment, remediation and validation works were considered to have rendered the site suitable for commercial/industrial development. Some of the site remained covered in asphalt / hardstand or structures (being Building 49 and surrounding hardstand areas). Minor quantities of asbestos were remediated from soil surrounding these areas. If future development works led to the removal of the hardstand, the potential for soil contamination should be managed in accordance with the regulatory requirements for the removal of asbestos.

15. [359]

    On 16 January 2020, JBS&G provided a Preconstruction Contamination Asbestos Report in respect of Lot 23 of Stage 2 of the development. The consultant noted preparatory works had been undertaken to the area in Stage 2, where contamination encountered had been managed under the Contamination Management Plan and the site as a whole had been subject to filling activities. The consultant confirmed that site contamination had been satisfactorily managed and addressed such that the site remained suitable for proposed commercial/industrial land use.

16. [360]

    JBS&G described at length the processes undertaken. In particular, topsoil was assessed in situ to support the management of material potentially “geotechnically unsuitable” for site re-use. Asbestos in the form of ACM in weathered/degraded condition was identified on the surface and these areas were stockpiled separately for off-site disposal. Topsoil surrounding the buildings, asphalt and concrete roadways were scraped to approximately 0.05m depth across the site. The topsoil was stockpiled to enable further assessment for the level of ACM impact and subsequently classified into three categories: suitable for site reuse, suitable for on-site treatment and screening, and unsuitable for treatment and disposed to landfill as Special (Asbestos) Waste. Some areas required further scraping when weathered or degraded asbestos was identified in the subsoils following the initial removal of topsoil.

17. [361]

    JBS&G explained that, during preparatory works for Stage 1, a “geotechnically unsuitable” stockpile was generated in the south-western corner of the Lot 22 site. This stockpile was approximately 30,000 m3. While ACM was observed within the stockpile, it was considered to generally be below commercial/industrial site assessment criteria but, due to the geotechnical unsuitability of the soil, screening was required. The soils were mechanically screened to improve geotechnical properties and also remove ACM where identified. The stockpile initially underwent a screening treatment trial, and the remaining stockpile was transported to Lot 23 for screening and emu-picking. A number of stockpiles within Lot 23 were not assessed for site suitability in relation to contamination due to their classification as “geotechnically unsuitable”. Details of each stockpile and its classification were provided.

18. [362]

    In April 2020, construction work began in Stage 2, including stripping and stockpiling topsoil, preparing foundations, removing asbestos unexpected finds and the construction of warehouses.

19. [363]

    On 21 July 2020, Mr Davis provided a site audit statement in respect of proposed Lot 23 of Moorebank precinct east, certifying that the site was suitable for commercial/industrial uses. Assessment, remediation and validation had been undertaken at the site during the site preparation phase of development, including demolition and disposal of structures, removal of redundant infrastructure, installation of new infrastructure and an alteration of land levels by site filling. The assessment, remediation and validation works were considered to have rendered the site so suitable.

Breach of remediation obligation

1. [364]

   I have already concluded that Defence performed its obligations under the deed. As a result, the developer released Defence from claims relating to non-performance of the remediation obligation from the Surrender Date: cl 7.2, the deed. If I am wrong about that, then it is necessary to consider whether Defence breached its remediation obligation under the lease.

2. [365]

   As earlier mentioned, the developer contended that the standard of remediation required under the lease required Defence to remove ACM from the Land. Since August 2017, the developer was said to have discovered some 42,524.32 tonnes of ACM on the Land while carrying out demolition and site preparation work. Self-evidently, Defence had not removed the ACM from the Land. The presence of the ACM was said to mean that the Land was not suitable for on-going commercial / industrial use. By reason of these matters, Defence was said to have breached its obligations under cl 17.2 of the lease and cl 4.3 of the deed.

3. [366]

   Defence denied that the standard of remediation required it to remove ACM from the Land. Rather, Defence had remediated the Land to the requisite standard at the time the lease expired. Defence was not required to remove additional ACM from the Land. The requirement to remove the ACM arose as a result of redevelopment works carried out subsequent to the surrender of the lease. Defence contended that it had complied with its obligation to remediate the Land to the requisite standard by obtaining a Site Audit Statement Section A in compliance with cl 4.3(3)(b) of the deed, certifying that the Land was suitable for ongoing commercial / industrial use subject to compliance with a specified Environmental Management Plan. Defence relied on the Site Audit Report prepared by Mr Lau on 12 October 2016 and the Environmental Management Plan prepared by GHD in September 2016 in respect of the former DNSDC.

4. [367]

   The developer contended that Defence was required to take all reasonable steps, prior to vacating the Land, to remove the asbestos contamination that Defence had knowledge of, that could reasonably interfere with the developer's future use and occupation of the Land for "on-going commercial/industrial" purposes. The standard so far as asbestos was concerned was to ensure there was no visible asbestos in the surface soil, being the first 10 cm of the topsoil: NEPM Schedule B1. Whilst “surface soil” was not defined in the NEPM standard, the experts generally agreed that it included the top 10 cm.

5. [368]

   The developer submitted that Defence breached that duty when it failed to remediate the topsoil of the Land for this purpose, to at least the 10cms prescribed by the NEPM but, in reality, to any depth of topsoil from which the asbestos could reasonably be expected to emerge in the future. Defence knew of the strong likelihood of the existence of the asbestos identified in the GHD reports of 2011 and 2012. It was this asbestos that Defence was obliged to "remediate" (cl 17.2) or "clean" (cl 19.1) before vacating the Land. The parties would most likely have contemplated that it could require the stripping of grass and shrubs and the sieving or raking of the topsoil together with the subsequent replacement of the grass and shrubs. None of the terms of the lease prohibited this action.

6. [369]

   The developer submitted that the discovery of widespread asbestos on site in 2011, as described in GHD’s reports at the time, together with the limited clean-up then undertaken, evidenced that Defence breached the lease by leaving the site without ensuring that the topsoil was free of asbestos. That required more than a limited emu-pick to a distance 5 metres around the buildings, as appeared to have been carried out in selected areas. The fact that Defence provided the developer with the asbestos register in June 2015 made no difference, where Defence did not disclose that ACM was identified externally throughout the site and Defence had not remediated that debris down to the top 10 cm of the topsoil.

7. [370]

   The developer relied on Mr Molinari’s evidence as to what GHD’s work in 2011 and 2012 revealed about poor demolition practices on the site, such that a thorough assessment was needed. Where GHD warned after the clean-up it was “highly likely that asbestos debris are present within the sub surface soils, and overtime … may become visible on the surface”, the clearance certificates obtained at the time did not amount to remediation so that the Land was suitable for ongoing commercial /industrial use. Rather, as Mr Clay explained, the soil had to be free of asbestos in the top 10 centimetres of soil. While the asbestos register suggested that Defence removed ACM when found on the ground, there was no evidence of repeated emu-picks or clearance of the top 10 cm of topsoil, by raking, or any other method. There was a serious possibility that the asbestos would subsequently be discovered, and that this discovery could occur during earth works, if the asbestos was not removed.

8. [371]

   Defence submitted that it was entitled to use any method of remediation provided the Land was ultimately suitable for ongoing commercial/industrial use. Where a promise permits performance in a number of ways and does not state which party has the right to elect, the promisor has the right to elect which of the methods of performance he will choose: Timmerman v Nervina Industries (International) Pty Ltd [1983] 2 Qd R 261 at 262 (cited in Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227 at [27] per Macfarlan JA); Reardon Smith Line v Ministry of Agriculture [1963] AC 691 at 729 – 30, Lord Devlin. Defence was entitled to perform the remediation option most favourable to it: Lewandowski v Mead Carney-BCA Pty Ltd [1973] 2 NSWLR 640 at 643.

9. [372]

   Defence submitted that s 4 of the Contaminated Land Management Act 1997 set out a number of means by which land may be remediated. Removal of contamination was one means. A management plan was another. The lease did not permit the developer to elect which method of remediation Defence had to use. This could be compared with the clause considered in Bong Bong Town Centre v Illawarra Clay Target Club [2015] NSWSC 316, which explicitly required the Lessee “at its own cost” to “remove any lead contamination from the Land and put the Land into a condition suitable for development by the registered proprietor of the Land for the purposes contemplated by any development application lodged by or on behalf of the registered proprietor of the Land.” The lease did not specify that Defence must remove the top 10 cm of soil from the whole of the site, where it would have been something that the parties could have recorded if that was the intention.

10. [373]

    Defence submitted that whatever asbestos had been observed in 2011, Defence implemented an extensive program of inspections and emu-picking in 2012 and continued to address asbestos on site through the asbestos register. After the Surrender Date, the plaintiffs' own consultant, JBS&G, conducted a visual inspection of the Land in June 2016 and did not report any visible asbestos on the ground surface. In any event, the developer’s use of the Land and its ground surface had substantially changed between the Surrender Date and when asbestos was identified during demolition and earthworks.

11. [374]

    Defence submitted that there is no evidence that the Land was unsuitable for ongoing commercial/ industrial use. To the contrary, the tenanted warehouses continued to be operated subject to the 2016 GHD EMP. The fact that asbestos had since been found on the Land did not prove breach, where the lease and deed required Defence to remediate the Land to a standard "suitable" for ongoing commercial/industrial use; the presence of asbestos alone did not establish unsuitability.

12. [375]

    Defence submitted that Dr Swane’s interpretation of the NEPM guideline was unique. The NEPM allowed for a certain concentration of ACM to remain on commercial/industrial land. There must be no visible asbestos on the surface and, below the surface, bonded ACM and/or friable asbestos can be present so long as it is present in concentrations less than 0.05% and 0.001%, respectively, without the need for a management plan. Alternatively, an environmental management plan could be implemented. “Visible” asbestos did not mean asbestos that was not presently visible but which might become visible if the soil was disturbed or removed.

13. [376]

    Dr Swane was of the view that Defence did not comply with its remediation obligation as asbestos contamination was known to remain at the site in the top 10 cm of soil, having regard to Dr Ryall’s site audit report in 2002, Mr Lau’s site audit report in 2016 and GHD’s EMP prepared in September 2016. Dr Swane considered that the clearance certificates provided after the emu-pick in 2012 were insufficient to demonstrate that the top 10 cm of soil had no visible asbestos. A lot of work that had to be done, according to GHD in 2011, was not done.

14. [377]

    Dr Swane was of the view that the soil would need to be remediated as it may be disturbed by ongoing commercial / industrial use. As the soils did not comply with the Health Screening Levels in the NEPM, the soils needed to be remediated. Remediation to a standard suitable for “ongoing commercial / industrial use” required all visible asbestos to be removed from surface soils, including as encountered when disturbing ground for new development. Dr Swane considered that this extended to the construction of the intermodal facility. Dr Swane said it was a very rare site where there was no potential for soil to be disturbed, as sites are redeveloped and maintained all of the time. This included soil in open areas, under buildings and pavements, in backfill around buried services and the removal of buried services containing asbestos.

15. [378]

    Dr Swane considered that asbestos was still visible even though not on the surface but might be visible if the first 10 cm of the soil was scraped. Dr Swane also considered that visible asbestos included asbestos that could become visible over time. Dr Swane considered that there was asbestos contamination wherever there was detectable asbestos in soil, including where asbestos remained at depth but could potentially be brought to the surface. He accepted, however, that asbestos at depth could also be managed through an EMP that placed restrictions on how the land could be used.

16. [379]

    While Dr Wright and Dr Swane agreed that the soil surface referred to in Table 7 of NEPM (2013) referred to the top 10 cm of soil, Dr Wright added that much depended on the available evidence as to how asbestos came to be in the soil. If the material came from the demolition of structures and buildings, it would be reasonable to expect that the asbestos was on the surface. If there was evidence that asbestos had been buried, a different approach would be taken. Dr Wright disagreed with Dr Swane’s suggestion as to the extent to which soil must be investigated to remove potential asbestos, “If we expect it on the surface that’s where we should be focussing the work. We don’t expect it to be at depth.”

17. [380]

    Dr Swane did not agree that grass cover may provide a level of protection to exposure to asbestos on the surface. Rather, he considered that NEPM (2013) required the removal of vegetation in order to allow easy access to rake and remove the contamination from the surface. Dr Swane rejected the approach taken in the Netherlands, which recommended grass cover as a suitable means of reducing the exposure to asbestos. He said that, in Australia, a different approach was taken. Against this, Mr Clay was involved in another case in the Land and Environment Court where Dr Swane gave expert evidence accepting that grass was a suitable protection measure.

18. [381]

    In something of the ‘middle ground’, Dr Wright agreed that grass was a “very tricky surface cover” but may be relevant to the conceptual model for remediation. If there was good grass cover at the time when the buildings were demolished and asbestos material may have fallen on the soil, then emu-picking would be an appropriate way to remove asbestos fragments and there would be no reason to think that the asbestos would be beneath the grass cover. But if grass cover had grown over the top of the soil into which debris may have fallen in the past, then asbestos may be beneath the grass cover. In that case, the asbestos fragments may come to the surface and be re-exposed if the grass cover was not maintained. ACM would need to be removed in the grass covered area. The maintenance of grass cover may not be reliable given droughts and the like.

19. [382]

    Dr Wright added that one approach would be to emu-pick all visible asbestos from the surface and what could be seen in the roots of the grass, and also remove some of the grass to see whether there were fragments underneath the grass, “But whether you needed to remove all the grass over an entire site … would … have to be subject to proving that that actually occurred.” Nor would it be necessary to remove the top 10 cm of soil, “it would be raking the soil and hand picking out the pieces of asbestos. That’s quite a different thing to saying we’re going to take off all the grass and the 10 cms.” Dr Wright continued that if, on removing the grass cover to check whether there was a viable pathway for asbestos fragments to be under the grass, and that was confirmed, “then absolutely you need to remove that grass then continue to rake the surface soil and do what is required for that surface”, including continuing to rake until you reach soil where there is not asbestos showing. Dr Swane agreed with this.

20. [383]

    Dr Swane considered that trees should also be removed unless protected under the development consent, in order to ensure that there was no asbestos in the top 10 cm. Mr Clay said it was “inconceivable” that a site auditor would require one to chop down all trees on a site in order to obtain an unconditional site audit statement, “I can’t think of a single example where an auditor has made people chop trees down because of asbestos intermingled in the roots.”

21. [384]

    Dr Wright said that, if there were large established trees when the buildings were demolished and asbestos was deposited onto the ground, then it was unlikely that asbestos would move under those trees. If landscaping had taken place since the demolition, such as planting small shrubs or grass, then asbestos material at the surface may have gone into the subsurface but “If the emu picking got everything then there’s no reason to suspect it would be at that depth. … if it has been emu picked I wouldn’t expect it to be there. … If you removed it ten years ago and didn’t do a good job, then there may be something that’s left underneath.” Dr Wright pointed out that ACM which is visible is usually large pieces, which don’t travel by themselves “unless you dug a hole and put it in it. … They have to have a way of moving. It's a physical object. It won’t necessarily go to any great depth. The top 10 cm is an appropriate level to look at to see if that remains there.”

22. [385]

    Mr Clay said the asbestos register indicated that asbestos on the site was already being managed. (Dr Swane disagreed) Mr Clay considered that, in terms of remediating the top 10 cm of soil, if that kind of system was in place “then you just don’t need … there is no point in removing the top 10 cm of soil, because the situation is managed.” If you were in a situation where you were going to get a conditional site audit statement, then it was not necessary to remove the top 10 cm of soil. Mr Clay said that the presence of some reportedly limited ACM at or below the ground surface of DNSDC did not mean that it was significantly contaminated or unfit for use.

23. [386]

    Ms Organo also strongly disagreed with Dr Swane. Having reviewed the available reports, Ms Organo could find no documentation of the surface conditions of the Land at the Surrender Date, nor the conditions between the Surrender Date and when asbestos was identified in or on the soil. Asbestos was not identified until 2017 and 2018, when the land was being prepared for the intermodal development. The Land was no longer being used as it had as at the Surrender Date but was being converted to a major construction site. Initial site establishment activities would have been sufficient to have altered or disturbed the existing ground surface coverings prior to the commencement of larger scale demolition and earthworks, in which these coverings were completely removed. The condition of the surface coverings of the Land would not have remained consistent with the conditions as at the Surrender Date, particularly across unsealed areas. The fact that asbestos was identified at a later date, when the surface conditions may have altered, did not allow Ms Organo to infer that the asbestos would have been able to have been visually identified at an earlier date.

24. [387]

    Ms Organo reviewed the reports commissioned by the developer in support of its development application, which did not identify the presence of asbestos that was different to the reports previously obtained by Defence prior to the Surrender Date or the 2016 EMP. There was no evidence of the presence or potential presence of asbestos contamination other than had been previously documented by Defence and where the developer’s reports had been prepared closer to the Surrender Date. The fact that the developer identified asbestos during demolition and earthworks did not prove that there was asbestos contamination as at the Surrender Date either, where the condition of the Land was significantly different to its condition as at the Surrender Date and the results of then undertaken could not be considered as representative of the condition of soils as at the Surrender Date. The presence of ACM in stockpiles, and the concentrations of friable asbestos in soil samples collected after the surfaces had been disturbed was also not reliable evidence of the presence of asbestos contamination in the same soils before stockpiled or disturbance.

25. [388]

    Ms Organo reviewed JBS&G’s contemporaneous reports and considered that these letters provided evidence of the presence of asbestos contamination in topsoils present at three locations on the Land that were likely to be present at the Surrender Date. After reviewing Liberty Industrial’s contemporaneous reports, Ms Organo considered that this material was removed from April to July 2018 as part of the land preparatory works. Ms Organo was of the opinion that there was no need to remove this contamination but, rather, to prepare a long-term environmental management plan. Ms Organo considered that the “remediation” that Defence needed to carry out in order to comply with its obligations to make sure that the Land was suitable for ongoing commercial / industrial use was to prepare a long-term EMP.

26. [389]

    If it be the case that Defence was not released from the developer’s claims in respect of non-performance of the remediation obligation after the Surrender Date, then it is necessary to consider whether Defence complied with its remediation obligations under the lease. As earlier mentioned, I consider that the remediation obligation in cl 17.2 was expressed in general terms. Clause 17.2 did not refer to a particular “standard”. The clause did not refer to NEPM (2013), which did not exist when the wording in cl 17.2 was first formulated. Rather, the word formed part of a phrase “a standard suitable for …”. Defence was obliged to remediate the site to a standard suitable for “on-going” commercial / industrial use, being what the Moorebank site was then used for, being a storage and distribution centre.

27. [390]

    As such, it was not necessary for Defence to remediate the site in anticipation of earthworks to effect a change in the use of the site to a different commercial / industrial use. Defence did not have to dig up, as a precautionary measure, stormwater pipes or telecommunication pits to check whether these items were made with ACM materials or backfilled with soil containing AC fragments. Indeed, doing so would have made it difficult for the developer to continue to use the site for “on-going” commercial / industrial use, where services and utilities were no longer available.

28. [391]

    It is inherent in the notion of “on-going” use that, generally speaking, the existing buildings and surfaces will remain and be used in the same manner. So far as the Land was concerned, this would mean, generally speaking, that the Land would be undisturbed. But things do happen. Maintenance may require a stormwater pipe to be dug up, repaired or replaced. A new footpath may be constructed or a new garden bed planted. A mature tree may be blown over in a storm, dislodging the surrounding soils in the process. What was the content of Defence’s remediation obligation in the circumstances?

29. [392]

    In this regard, I think it is important to bear in mind that “remediate”, in its ordinary English usage, does not mean to make perfect. To use the Macquarie Dictionary definition relied on by the developer, “remediate” is “to correct or improve (a deficiency or impairment)”.

30. [393]

    Whether regard is had to NEPM (1999) or NEPM (2013), the commonly expressed position was that there should be no asbestos on the surface of soils. Having asbestos on the surface of soil also strikes me as inconsistent with the “on-going” commercial / industrial use of the site. How can employees use the site where there is asbestos on the ground, given the infamous potential for interaction with that substance to have profoundly adverse health consequences? I consider that it was Defence’s remediation obligation, so far as asbestos was concerned, to ensure that there was no AC fragments on the surface of the ground. Defence also needed to warn those using the site of the potential presence of asbestos beneath the surface, in the event that it was necessary to disturb the surface of the soils. Defence attended to the latter as I have endeavoured to describe.

31. [394]

    As to the former, had Defence looked to NEPM (2013) for guidance as to how to go about this, Table 7 required that there be “No visible asbestos for surface soil”. Paragraph 4.8 of NEPM (2013) added:

32. [395]

    The “various acceptable means” to ensure that there is no visible asbestos in surface soil included raking to 10 cm depth. There was no mandatory method. Section 4.8 did not suggest that the top 10 cm of soil must be removed.

33. [396]

    Indeed, no one thought that the top 10 cm of soil had to be removed except Dr Swane. I prefer the views of Dr Wright and Mr Clay in this regard. As Mr Clay said, it was neither possible nor necessary to remove the top 10 cm of soil from every site to make it safe, “I mean there just isn’t enough landfill space in Australia to put all that material, it’s completely unsustainable, and it is a legitimate and often carried out remedial method to do a regular inspection of sites, to pick the asbestos out of the dirt, to give a clearance certificate at that time and come back 12 months later and repeat the process all over again.”

34. [397]

    As to how Defence should have gone about the task of ensuring that there was no asbestos in surface soil, I prefer the very sensible approach outlaid by Dr Wright, being to consider the history of the site and how AC fragments might have come to be on the soil in the first place. There was no great mystery as to how AC fragments might have come to be on the ground at the Moorebank site. Reports obtained by Defence, both before and after the sale, pointed to “poor removal practices” during the replacement of the asbestos cement roofing in the 1990s: at [127]. The history of the site indicated that any AC fragments mostly likely landed on the surface of the ground around the building footprints. The AC fragments were not buried but, most likely, on the surface. But that was some 25 years ago. Those AC fragments may have become covered by grass, plants or additional soil added to garden beds.

35. [398]

    Making sure that there was no asbestos on the surface of the soils appears to have been what GHD endeavoured to achieve in 2011 and 2012, when preparing and executing a remediation strategy for AC debris located externally to the DNSDC buildings. An emu-pick was undertaken within a 5 m buffer zone around the footprint of buildings and known transit routes between buildings. That is, the emu-pick was not across the entire Moorebank site but focused, as Dr Wright suggested was appropriate, on the areas where AC fragments were most likely to be.

36. [399]

    That said, GHD’s clearance reports and the asbestos hygienist’s clearance certificates were not in evidence for all of the DNSDC buildings nor all of the emu-picking zones delineated by GHD. On the evidence, the clean up was not completed as initially recommended. In particular, I was unable to locate any clearance certificate or clearance report in respect of the tenanted warehouses. When the developer conducted an emu-pick in that area, albeit some years later, AC fragments were found on the surface of the ground. It is reasonable to think that there was some asbestos left on the surface of the soil after GHD’s 2012 cleanup in the parts of the site which had not been emu-picked at the time.

37. [400]

    Nor was that emu-pick definitive as grass, shrubs, trees, skip bins, military vehicles and the like prevented a complete inspection of the soil. This presented the further possibility that AC fragments may come to light in areas of the site which could not be seen at the time. To mitigate against the possibility of AC fragments coming to light in the future, an asbestos register was compiled and updated. Mr Clay said that the asbestos register indicated that Defence was managing the risk of asbestos well, in accordance with its work health and safety obligations, “it looks very much like Defence was going through a process of examining the site, checking the site, seemingly on a yearly basis, and if it found asbestos on the surface, picking it up, recording it … on the asbestos register.” Having reviewed the asbestos register, that does appear to be the case.

38. [401]

    That is, putting together GHD’s clean-up and continued monitoring via the asbestos register, Defence had gone some way to performing the remediation obligation.

39. [402]

    As to how well Defence performed that obligation, I note that the site was inspected by consultants from time to time after the 2012 cleanup. The consultants’ reports suggest that whatever asbestos was left on the surface of the soil after the emu-pick was not particularly noticeable. In November 2014, GHD returned to the site to inspect areas of concern, when preparing their “Stage 1 Contamination Assessment & Data Gap Analysis” of the refuelling area; there was no reference in their report to observing asbestos. In JBS&G’s site investigations in December 2014 and January 2015, 29 soil samples were taken and tested for asbestos; the results were below the NEPM criteria: see [164]. In September 2015, GHD produced its “Intrusive Site Investigations” report, which largely focused on the refuelling area. GHD noted that there were AC fragments, essentially around the southern burial pits. Defence left the site in December 2015. The site was next inspected by JBS&G in June 2016, but there is no indication that the consultant saw any asbestos fragments at the time: see [284].

40. [403]

    That is, the consultants’ reports referred to the possibility of AC fragments on the ground, but not so much as having actually seen any, other than near the southern burial pit. The consultants certainly anticipated that asbestos may be encountered once early works began; the developer prepared accordingly. Ms Organo also considered that JBS&G’S later waste classification reports provided evidence of the presence of asbestos contamination in topsoils present at three locations on the Land that were likely to be present at the Surrender Date.

41. [404]

    Asbestos was encountered when demolition began some 21 months after Defence vacated the site. JBS&G’s waste classification reports indicate that, by and large, asbestos was not found on the surface of the soil but on excavation. Whilst some waste classification reports refer to ACM contaminated soils surrounding the footprints of buildings, the reports do not reveal whether the AC fragments were on the surface or below the surface but revealed when the topsoil was scraped away.

42. [405]

    The precise extent of any breach of the remediation obligation is now unknowable. On the balance of probabilities, I am satisfied that there was asbestos on the surface of the soil at the Surrender Date near the southern burial pits and in the three areas referred to by Ms Organo. Apart from this, any incidence of AC on the surface of soils was likely minor, as it went unobserved by both Defence and the developer’s consultants at the time.

Breach of ‘make good’ obligation

1. [406]

   The developer contended that Defence breached its obligation to make good the Premises under cl 19.1 of the lease, leaving ACM and hazardous chemicals. These were discovered by the developer in August 2017, when carrying out demolition and site preparation work. The developer pointed to the ACM and hazardous chemicals found at Buildings 16, 67, 69, 81, 82 and 83.

2. [407]

   Defence denied that it failed to comply with its obligations under cl 19.1.

3. [408]

   This matter was not addressed in any detail in the developer’s written or oral closing submissions.

4. [409]

   Defence submitted that, on the proper construction of cl 19,1, Defence was required to preserve the condition of the site for ongoing commercial/industrial use, not improve the condition of the Land. It was not possible to “vacate” Premises that have been demolished, or “give them back to the Landlord clean and in good repair and condition” if the Land has been levelled to locate and remove asbestos. Defence’s obligation to maintain the grounds and gardens was not consistent with the suggestion that Defence was obliged to remove the top 10 cm of soil, plants and trees in order to perform its obligation to remediate the site. The definition of Premises and the description of their contents in the Condition Report illustrate that the Premises had to be returned, intact. As Dr Wright explained, the ACE Consulting reports did not contain the necessary information to form any conclusion that the materials left in the tanks were hazardous. Those reports were prepared for the purposes of demolition, which was a different standard to ongoing commercial/industrial use.

5. [410]

   Dr Swane considered that Defence did not satisfy the ‘make good’ requirements of cl 19.1 of the lease, given the contents of the ADE Consulting and EP Risk reports. Those reports indicated that hazardous materials remained in the buildings in the form of dusts, blast sand, chemical spills, surfaces covered with lead-based paint, solvents remaining in tanks, tanks containing caustic soda, chemical sludges, chemical containers, pits and drains containing hydrocarbons, metallic waste and sludge, and that the buildings were not clean.

6. [411]

   Dr Wright noted that no reports were available to document the condition of Buildings 16, 67, 69 and 81 to 83 as at the Surrender Date. Dr Wright reviewed URS and GHDs’ 2002 reports in respect of plant and equipment in these buildings. Dr Wright then reviewed the reports prepared by ADE Consulting in 2017 in preparation for demolition, Avcon’s proposals for cleaning, decanting and waste removal works and EP Risk’s final report documenting the work undertaken to decontaminate these buildings. Where each of these reports were obtained for a purpose other than assessing the level of contamination in the buildings for ongoing or general industrial use, Dr Wright observed that the reports did not contain the data necessary to assess whether chemicals were present, whether such chemicals were hazardous and whether Premises were “clean” or in “good condition” from the perspective of human health.

7. [412]

   Dr Wright observed that there were different risk profiles for ongoing industrial use as opposed to general industrial use. For ongoing industrial use, workers would be aware of the products present at the Premises and the management measures in place for the storage and use of these products included in Safe Data Sheets and work procedures. Hence, worker exposure was often managed or minimised. For general industrial use, workers may undertake very different activities and may not be aware of the former use of products and fixtures and fittings. These workers may also not be required to incorporate management measures in the workplace to minimise exposure. The ways the workers may be exposed to chemicals is likely to be different. Likewise, workers engaged in decommissioning and demolition activities had a different risk profile again, as these workers will be involved in removal of fixtures and fittings and the demolition of structures. These activities may result in exposure to areas of the Premises and chemicals that were not normally accessible.

8. [413]

   In Dr Wright’s experience, if the reports prepared by ADE Consulting, and others, were designed to assess the condition of the Premises for ongoing or general industrial use, a different testing criteria and methodology would have been adopted, specifically designed to identify and assess whether the Premises had the potential to pose a risk to human health and/or the environment. The ADE Consulting reports did not include this information but assumed the presence of hazardous chemicals and made recommendations based on that assumption, to protect the health and safety of workers decommissioning and demolishing the site. Dr Wright observed, “there is no way to assess whether those recommendations were necessary, especially in circumstances where the Premises were to be cleaned for future ongoing or general industrial use.”

9. [414]

   As a result, Dr Wright did not consider ADE Consulting’s reports to be adequate for the purpose of testing whether there were hazardous chemicals present on the Premises. In addition, there was a significant time lag between the Surrender Date and when these reports were prepared, being some two years. During this time, the condition of the Premises would have changed. Products in tanks and drains would not be in use and the properties would have changed as a result of degradation and/or evaporation. Tanks that may have been in a condition suitable for ongoing or general industrial use may have become unsuitable in the intervening period. Soil from the development site may have blown into the Premises such that it was not possible to determine if soil and dust samples in 2017 were present on the Surrender Date.

10. [415]

    Dr Wright analysed ADE Consulting’s reports in detail and considered that the sampling methodology was significantly flawed such that the analytical data was not considered to be reliable. The information provided was inadequate to understand the location of the samples collected. Hence, it was not possible to undertake an assessment of the risks to the health of workers and/or the environment. Recommendations for the amount of work required to the Premises was not supported in most areas. Nor was it possible to conclude whether the contamination reported would have been hazardous. While the recommendations to use personal protective equipment (PPE) made sense in the context of removal and demolition works, PPE would only be required for specific activities to ensure that the Premises were “clean” for ongoing and general industrial use.

11. [416]

    Similarly, Dr Wright considered that the work detailed in the EP Risk final reports related to the removal of tanks, pipework, flooring, walls, ducting, ventilation and other fixtures and fittings for demolition. The remediation work undertaken related to removing these items and making them suitable for scrap or resale. Many of these areas were not exposed or accessible where the Premises were unchanged and could not be accessed or considered in terms of the risks to workers or the environment.

12. [417]

    I have already concluded that Defence was released from its ‘make good’ obligations under cl 19.1 on the Surrender Date, as:

13. [418]

    If I am wrong about that, then the question is whether Defence complied with its obligations under cl 19.1 of the lease. As earlier mentioned, the Condition Reports informed the content of Defence’s obligation in cl 19.1. That obligation that did not involve, for example, removing underground storage tanks by crane for on-sale or recycling as scrap metal. Understandably, the bulk of the work undertaken by the developer’s contractors was not concerned with ‘make good’ tasks but demolition, removal and disposal.

14. [419]

    If Dr Wright is not satisfied from the material produced by the developer’s contractors and consultants that hazardous chemical remained on the Premises as at the Surrender Date (apart from some minor exceptions), nor am I. Dr Wright was a very impressive, considered and dispassionate witness; I accept her evidence. I am not satisfied that the ‘make good’ obligation was breached save for the minor exceptions she identified.

Damages

1. [420]

   If I am wrong about everything that has gone before, then it is necessary to consider the developer’s claim for damages. The developer submitted that, as a consequence of Defence’s breach of its obligations under the lease, the developer incurred the substantial cost of removing asbestos and other contaminated material from the Land, in the course of preparing for construction of the intermodal terminal project. The developer claimed $20,724,898.76, being the costs of removal and remediation of the ACM and hazardous chemicals. The developer said it had mitigated its loss by removing or remediating these contaminants.

2. [421]

   Defence contended that these costs were not loss and damage, but costs incurred as a result of redevelopment of the site.

3. [422]

   The developer submitted that it was entitled to damages to place it in the same situation as if the contract had been performed: Robinson v Harman (1848) Ex 850 at 855; Tabcorp Holdings Pty Ltd v Bowen Investments Pty Limited (2009) 236 CLR 272; [2009] HCA 8 at [13]. Costs were incurred to bring the Land up to the required standard of “commercial/industrial use,” which required no visible asbestos in surface soil. Defence breached the lease when it vacated the site in 2016, by failing to remove the asbestos in the top 10 cms of topsoil, that it had previously identified in 2011-2012. But for Defence’s breach, the asbestos that was subsequently identified by the developer would not have been present. Everything that occurred afterwards was simply a consequence of that breach. The developer also suffered loss when hazardous chemicals were identified in Buildings 16, 67, 69, 81 and 83 and were required to be remediated.

4. [423]

   The developer submitted that any added difficulty in establishing the remediation of land itself was not something that should be laid at the feet of the developer, where proof had been made more difficult by Defence’s wrong: Armory v Delamirie (1722) 1 Str 505; Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17; 98 ALJR 719 at [129]. Defence’s failure to remediate in accordance with the lease meant it was not possible for the developer to do so once the development started and the earthworks were in full operation. The developer was entitled to rely on Defence’s compliance with its obligations under the lease. Defence’s failures meant that the developer had to deal with the asbestos as best it could. Proof of what was done could not be exact.

5. [424]

   The developer submitted that Mr Raval’s evidence was not challenged. Mr Madden had verified and assessed the developer’s claim and adjusted the figure to $20,980,244. The developer accepted that the amount recovered ought to exclude ACM discovered beneath the buildings and pavements, which was calculated by Dr Swane, and assessed by Mr Madden, in the sum of $200,030. This brought the claim to $20,780,214 plus interest. Where Defence suggested that the work was undertaken by way of redevelopment of the land, that should not tell against the developer where there was no suggestion that the work was not properly or reasonably incurred or that it was performed outside of the definition of “commercial/industrial use”. These damages were said to flow naturally from Defence’s failures to comply with its remediation obligations in the lease and the deed.

6. [425]

   The developer noted that it was not entirely clear from JBS&G’s waste classification reports whether some waste was topsoil, taken from the first 10cm of soil. The developer was said to be entitled to an inference that it was topsoil, due to the fact that Defence’s breach had made it difficult to make that assessment accurately. Further, Dr Swane undertook an analysis of the tipping records, which Ms Organo did not, and “found that more asbestos waste was documented in tip records than were documented in waste classification or stockpile reports”. Mr Madden had since done a breakdown of the developer’s claim in respect of known topsoil ($9,273,333), possible topsoil ($882,243), building services and deeper soil ($4,164,437) and screened soil ($822,522).

7. [426]

   Defence submitted that the costs incurred by the developer were not caused by any breach of the lease or the deed but by the need to strip geotechnically unsuitable topsoil in any event. The decision to strip the topsoil was an intervening act which hugely magnified the expense of managing the Land to ensure ongoing suitability for commercial industrial use. The geotechnical unsuitability of the topsoil for the developer’s purpose was essentially a latent defect in the Land which only came to light when the developer advanced the intermodal facility project. That was not consequential loss. Defence had no knowledge of the geotechnical requirements of the development. This was not within the reasonable contemplation of the parties and the loss was too remote.

8. [427]

   Defence submitted that, if there was a breach, recoverable loss was limited to the cost of bringing the Land into conformity with the standard required by the deed. The developer’s evidence did not address what works would have been necessary to achieve conditional site suitability, nor the cost of such works. The developer did not have evidence of the location and condition of any visible surface asbestos on the Surrender Date. Without this, the developer could not establish a right to recover the cost of carrying out any localised surface scrapes, let alone wholesale topsoil removal.

9. [428]

   Defence submitted that the truth was that the developer elected to carry out the development in a particular way, aware of the possibility of asbestos contamination. JBS&G was engaged to classify large tracts of land for potential disposal. Since a decision to remove the soil had already been made, JBS&G took the broadest of broad brushstrokes in characterising these large areas as impacted or not impacted by asbestos. Dr Swane’s calculation of the amount of topsoil affected by asbestos contamination was said to be replete with errors, double counting the volume of topsoils excavated and mis-allocating soils in the categories in his tables.

10. [429]

    So far as the ‘make good’ claim was concerned, Defence was obliged to clean accessible visible surfaces to the extent that they were able to be cleaned. Even if Defence did not fulfill that obligation, the developer still had to incur the same costs when dismantling the tanks and other fixtures in the buildings as part of the development. The costs of preparing the Buildings and fixtures for demolition were not costs of making good the Premises for ongoing commercial/industrial use and would have been incurred in any event.

11. [430]

    The general measure of contractual damages is the amount, so far as money can provide, necessary to put the plaintiff in the position they would have been if the contract had been performed: Koufos v C Czarnikow Ltd (The Heron II) [1969] 1 AC 350; Wenham v Ella (1972) 127 CLR 454 at 460 (per Barwick CJ); Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653; [1986] HCA 81. This has been described as the only measure of consequential losses for breach of contract: Cessnock City Council v 123 259 932 Pty Ltd at [117]. Assessing such damages requires the Court to compare the actual position of the party who sustains a loss by reason of the breach to what that party’s position would have likely been in a counterfactual scenario in which the contract was performed: Brighton Automotive Holdings Pty Ltd v Honda Australia Pty Ltd (No 2) [2024] VSC 262 at [74] (per Matthews J).

12. [431]

    The Court must also consider whether the loss sought is too remote, having regard to the two limbs in Hadley v Baxendale (1854) 9 Ex 341 at 254. The first limb is often referred to as ‘general’ damages: can it be said that the damage arose “according to the usual course of things”. The second limb is often referred to as ‘special’ damages: can the damage be reasonably supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach. The precise damage and the precise manner of occurrence of ‘special’ damage need not have been contemplated, but damage of the kind that occurred must have been a “serious possibility”: Elisha v Vision Australia Ltd [2024] HCA 50; (2024) 421 ALR 184 at [63]-[64] (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ). The issue of remoteness is assessed by looking forward from the date of the contract, not looking back from the date of breach: Elisha v Vision Australia at [63].

13. [432]

    As observed in Cessnock City Council v 123 259 932 Pty Ltd, the onus to prove loss arising from a breach of contract falls on the plaintiff, albeit in some circumstances the common law facilitates the discharge of that onus where the defendant’s wrongdoing has resulted in uncertainty regarding the quantum of loss: at [127]-[133]. The Court must do the best it can in assessing damages notwithstanding the difficulties in doing so, where estimation, if not guesswork, may be necessary in assessing the damages to be allowed: Fink v Fink (1946) 74 CLR 127 at 143 (per Dixon and McTiernan JJ); McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 at 411-412 (per Dixon and Fullagar JJ); The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83 (per Mason CJ and Dawson J).

14. [433]

    It is convenient to set out Defence’s evidence in respect of quantification of loss first, as it is short. So far as the remediation claim was concerned, Ms Organo prepared a scope of works to remove asbestos from the three locations where asbestos contamination was likely to have been present at the Surrender Date. The parties agreed that if this scope of works was applicable, then damages should be awarded in the amount of $330,152.82.

15. [434]

    So far as the ‘make good’ claim is concerned, Dr Wright also prepared a scope of works. Mr Cowman prepared a bill of quantities to ‘make good’ the chemical tanks and associated infrastructure in Buildings 16, 67, 69, 81 to 83 based on a scope of works provided by Dr Wright. Ultimately, the parties agreed that if the scope of works set out in Mr Cowman’s report was the applicable scope, then the award of damages ought to be $30,658.07.

16. [435]

    Turning to the developer’s case on quantification of loss, Mr Raval was the costs lead and contracts administrator for the project. In 2019, he was asked to assess the costs incurred in performing the remediation works associated with contamination. In his first report, Mr Madden considered that the total costs collated by Mr Raval were reasonably and properly incurred, reducing the total slightly to $20,980,244.

17. [436]

    Mr Madden then sought to apportion these costs between the types of soil that had been processed, focussing particularly on the costs incurred in respect of contaminated topsoil. Where Mr Madden’s calculations were adjusted over time to accommodate changes in Dr Swane’s calculations of the amount of topsoil involved, it is sufficient to go to Dr Swane’s final apportionment.

18. [437]

    Dr Swane proceeded on the basis that, if GHD had done their investigation properly, they would have realised that a surface scrape was required across all of the landscaped areas of the site and that process would have been very much the same as what was subsequently done by the developer. Dr Swane’s calculated that 49.72% of remediated soil was topsoil, 33.58% was soil from buried services and deeper soils, 7.97% was screened soils, 7.11% was possible topsoil; and 1.61% was soil from below buildings and pavements.

19. [438]

    Before reviewing the apportionment of costs, it is necessary to consider the cost items which have been apportioned. To assist the reader, Mr Raval’s list of costs, Mr Madden’s assessment and my conclusions are attached as Addendum 2.

20. [439]

    First, JBS&G was paid $1,700,964.55. Mr Raval said that he had reviewed JBS&G’s invoices and noted that there were small amounts which did not relate to the contamination claim, but did not say what those amounts were.

21. [440]

    As for the demolition contractor, Mr Raval said that the superintendent issued directions to Liberty Industrial to undertake additional tasks in respect of contamination encountered on site, which resulted in a series of variations to the contract. Mr Raval reviewed Liberty Industrial’s progress claims, progress certificates issued by the superintendent in respect of those claims, the quantity surveyor’s assessment at the time, together with tracking and weighbridge tipping dockets for contaminated materials, invoices from waste disposal service providers, receipts and invoices from Liberty Industrial’s subcontractors and plant and equipment hire providers.

22. [441]

    The first item identified by Mr Raval was $31,500 paid to Liberty Industrial under contract item 1.7.7, said to be located in Annexure Part T of the contract in respect of “Implementation of Asbestos Management Requirements”. (This portion of the contract with Liberty Industrial was not in evidence. I have proceeded on the basis that it was in the same form in Part T of the amended construction contract). A lump sum based on six weeks at $5,250 was provided for this item, totalling $31,500.

23. [442]

    Given the description of this item, and the fact that this payment was made progressively from May to August 2017 – largely before asbestos was encountered on-site – I infer that this expense was incurred as part of the subcontractor’s obligation to set up a system to deal with contamination, if encountered, as required under the various approvals given by statutory authorities for work to be done on the site. Incurring this fee had nothing to do with whether Defence had complied with its obligations under the lease or not. This claim is disallowed.

24. [443]

    The same can be said for $32,500 incurred by the developer in relation to contract item 5.3.11, located at Annexure Part T of the contract, being the costs associated with constructing, operating and disestablishing a temporary facility on-site where asbestos could be assessed and treated, if required. This facility was referred to as the Contamination Assessment Treatment Area (CATA). As earlier noted at [283], the plans for CATA were drawn up by the developer in May 2016, long before any asbestos was found on-site and apparently as part of the application to obtain approval for the development of the site. The construction of the CATA was unrelated to Defence’s performance of its obligations under the lease. This item is disallowed.

25. [444]

    The same can be said for $41,100 claimed in respect of contract item 5.3.2.1, “Implementation of Asbestos Management plan and controls”. Mr Raval said this was being the overhead costs of ensuring compliance with the Asbestos Management Plan requirements, at $6,850 per week. The obligation to comply with the Asbestos Management Plan pre-dated any discovery of asbestos on the site and arose from the conditions of consent for the development, unrelated to Defence’s compliance or non-compliance with its obligations under the lease. This item is disallowed.

26. [445]

    On 25 August 2017, Liberty Industrial issued a variation notice in respect of the removal of ACM from beneath the concrete slab under Building 20. The plaintiffs paid $355,817.65 for this variation. Ultimately, the plaintiffs did not seek the recovery of this amount. Nor can it be suggested that Defence’s obligations under the lease extended to demolishing buildings in order to ensure that there was no asbestos located beneath.

27. [446]

    On 26 October 2017, Liberty Industrial issued a variation notice for the literature review and pre-demolition hazardous material survey report it was directed to prepare in respect of the hazardous materials in DNSDC buildings: see [304]. The plaintiffs paid $155,524.60 for this variation. As I understand it, this report focussed on the hazardous items in the buildings, rather than any asbestos in the topsoil around the buildings. This item is disallowed.

28. [447]

    On 22 November 2017, Liberty Industrial issued a variation notice in respect of addressing contamination around Buildings 1 and 19, being asbestos pipework adjacent to the buildings and fragments within excavated areas at the northern entrance. The plaintiffs paid $95,477.43 for this variation. Liberty Industrial issued a further variation, when the excavation and removal of stormwater pipes between Building 16 and 17 revealed asbestos fragments and sheeting within the soil surrounding the pipework. The plaintiffs paid $73,601.92 for this variation. Where it cannot be suggested that Defence’s obligations under the lease included excavating and removing underground stormwater pipes, these expenses are disallowed.

29. [448]

    On 23 November 2017, Liberty Industrial issued a variation notice in respect of the excavation and removal of stormwater pipes around Building 20 and 11 and the asbestos fragments and sheeting identified in the soil surrounding the pipework. The plaintiffs paid $746,935.50 for this variation. Where it cannot be suggested that Defence’s obligations under the lease included excavating and removing underground stormwater pipes and surrounding fill, this item is disallowed.

30. [449]

    On 23 November 2017, Liberty Industrial issued a variation in respect of dealing with asbestos impacted soils encountered during the excavation and removal of stormwater pipes surrounding Buildings 6 and 9. The ACM fragments and sheeting were identified within the soil surrounding the pipework. The plaintiffs paid $646,430.50 for this variation. Where it is not suggested that Defence, acting in conformity with its obligations under the lease, should have removed the stormwater pipes and surrounding fill, this item is disallowed.

31. [450]

    On 29 January 2018, Liberty Industrial issued a variation, which was ultimately paid by the plaintiffs in the sum of $201,085.80, in respect of three items:

32. [451]

    Where it is not suggested that Defence, acting in conformity with its obligations under the lease, should have removed the stormwater pipes and surrounding fill, the first and second items are disallowed. If I take the portion of the tonnage in respect of the third item, being 83% of the soil disposed of, then $167,473.22 of the variation may be apportioned to the third item. This expense may have been incurred as a consequence of Defence failing to remediate the site to a standard suitable for ongoing commercial / industrial use, albeit it is unclear whether AC fragments were found on the surface of the soils, or after the topsoil had been scraped in accordance with the demolition contractor’s practice at the time, or after the topsoil was removed completely as geotechnically unsuitable.

33. [452]

    In February and March 2018, Liberty Industrial claimed, and the plaintiffs paid, $130,846.12 in respect of the disposal of contaminated soil in and adjacent to the “Central Access”: see [327]. As I read JBS&G’s report in respect of the former access road, the asbestos contamination was found when the access road was removed. Area 4 and Area 5 appear to have been alongside that road and comprised, together, some 25% of the estimated volumes of asbestos contaminated soil. Where the evidence in respect of the variation did not delineate between the three items of work, doing the best I can, 25% of this item may relate to soil on the road side, being $32,711.53. It can hardly be thought that Defence was required to remove the access road in order to conform with its obligations under the lease. This portion of the variation may have been incurred as a consequence of Defence failing to remediate the site to a standard suitable for ongoing commercial / industrial use, albeit it is unknown whether the AC fragments were on the surface of the roadside or only uncovered on scrapping or deeper excavation.

34. [453]

    In April 2018, Liberty Industrial claimed $4,429,381.24 against contract item 5.5.4 (“Load, haul and dispose off-site as General Solid Waste – Special Waste (Asbestos)”). Whether this waste was topsoil is not known.

35. [454]

    In May 2018, Liberty Industrial claimed $751,043.53, which was paid, in relation to contract item 5.5.3, being “Load, haul and dispose off-site as General Solid Waste”. According to Mr Raval, this related to the disposal of general solid waste from stockpiled materials referred to in contract item 5.3.3.1 (“Construction, operation and disestablishment of CATA”) and contract item 5.3.4.1 (“Load and haul from assessed stockpile, remediate by segregating, sorting and screening and stockpile (including emu pick as required)”) not be repurposed or disposed of on-site. Whether this waste came from topsoil is not known.

36. [455]

    In June 2018, Liberty Industrial claimed $669,633.18 against contract item 5.5.4 (“Load, haul and dispose off-site as General Solid Waste – Special Waste (Asbestos)”). Whether this waste was topsoil is not known.

37. [456]

    In September 2018, Liberty Industrial made a claim under contract item 5.3.1, “Construction, operation and disestablishment of CATA”. The claim related to the cost associated with excavation, loading samples of excavated material in relation to an unexpected find into a truck and hauling it to the CATA area into a stockpile for assessment by JBS&G. The plaintiffs paid $33,405.90 for this item. Whether this waste was topsoil is not known.

38. [457]

    In October 2018, Liberty Industrial claimed $122,248.20, which was paid, for contract item 5.3.4.1, being “load and haul from Assessed Stockpile, remediation by segregating, sorting and screening and stockpile (including Emu pick as required)”. This related to the sorting and screening of an unexpected find, after assessment by JBS&G into stockpiles appropriate for on-site treatment, off-site disposal or suitable for re-use. Whether this waste was topsoil is not known.

39. [458]

    In October 2018, Liberty Industrial claimed $56,868.65 for a variation in respect of the removal of an asbestos containing membrane to the roof of Building 47. The claim was paid in full. It is hard to see how Defence was obliged to re-roof buildings in order to comply with the lease. This item is disallowed.

40. [459]

    In January 2019, Liberty Industrial claimed $3,341.11 for a variation in respect of the costs of disposing of a ACM impacted stormwater pipe uncovered during the removal of Building 13. The claim was paid in full. Again, this expense appears to have been incurred in relation to the removal of a stormwater pipe, which I have concluded Defence was not obliged to do when performing its remediation obligations under the lease. This claim is disallowed.

41. [460]

    In February and March 2019, Liberty Industrial claimed a variation of $133,174.05, which was paid, in respect of the costs of locating and removing ACM from the ground surface adjacent to the tenanted warehouses. This was approved by the quantity surveyor, who noted that they were unable to verify the quantum of hours by reference to day dockets or the like but “will take on good faith, considering photographic evidence, JBS&G report noting days decontamination works occurred, clearance of said areas and the area involved in the required decontamination” being 26,880 m2. The quantity surveyor was also unable to verify the quantity of materials used but took it on good faith, considering the hours allocated to the tasks and the photographic evidence provided.

42. [461]

    Mr Madden said the fact that, on occasion, day dockets were unavailable to verify the quantum of hours, which were taken on good faith by the quantity surveyor, did not prevent Mr Madden assessing whether the amount claimed for emu-picking was reasonable, where assessing reasonableness without dockets was “not an uncommon task”. I accept that the amount claimed for the emu-pick around the tenanted warehouses was reasonable.

43. [462]

    The more important question is whether that expense was incurred as a consequence of Defence failing to comply with its remediation obligation under the lease. It is not clear to me whether the area around the tenanted warehouses was emu-picked by GHD in 2012. Although the tenanted warehouses formed part of an emu-pick zone (being zone 12 and zone 14), I could not locate a letter from GHD confirming the removal of asbestos from those emu-pick areas. I will proceed on the basis that it was not done in 2012. The cost of doing so in 2019 is recoverable from Defence, where failing to take steps to ensure there was no asbestos on the surface at the time had the consequence that the developer incurred this cost instead.

44. [463]

    On 1 March 2019, Liberty Industrial claimed a variation of $57,440.11 for a subsurface scrape carried out near Buildings 32, 33, 34, the eastern side of Building 35 and 39 (within the telecommunications pit), Building 44 and 45, around Buildings 46 and 48 and the scraping of the stormwater pit found at the north-eastern side of Building 44. The claim was paid in full. The reference to “subsurface” scraps, telecommunications pits and a stormwater pit suggest that the soil was not surface soil. This item is disallowed.

45. [464]

    From March to May 2019, Liberty Industrial claimed, and was paid, variations totalling $356,855.28 for layering and compacting asbestos contaminated IMEX topsoil under the supervision of Golder Associates and JBS&G: see [337]. Again, it is unclear whether this topsoil came to be removed because AC fragments were on the surface, or deeper down, or simply because it was geotechnically unsuitable.

46. [465]

    In total, Mr Raval calculated that $10,423,063.68 had been specifically claimed by Liberty Industrial under the construction contract in respect of the contamination dealt with on-site. To this, Mr Raval calculated a proportion of the contractor’s preliminaries costs which should be allocated as well. Mr Raval explained that preliminaries costs are project costs of the contractor which are general running costs to perform the works and are not specifically included in the contract sum, such as site management and security. He did not calculate preliminaries against specific line items but on completion of the contract. The amount claimed for proportionate preliminaries was $949,624.01, which was only applicable under the amended construction contract.

47. [466]

    The amended construction contract was executed in about January 2018. I will proceed on the basis that variations from January 2018 on were issued under that contract. By my count, $6,945,322.80 was paid under that contract. Working back from the preliminaries apportioned to contamination variations, Mr Raval has added 13.7% to the variations.

48. [467]

    Of the expenses tallied by Mr Raval to this point, I have accepted $133,174.05. To this should be added 13.6% to allow for preliminaries, making a total of $151,285.72. Yet to be resolved are the expenses which may or may not have involved topsoil removed by reason of visible asbestos on the surface. These expenses total $6,562,751.80 which, with preliminaries, makes $7,455,286.

49. [468]

    In addition, Mr Raval calculated $7,651,082.94 as provisional sum adjustments under the amended construction contract, where additional quantities of work relating to remediation works had been required, and adjustments had been made. Five provisional sum adjustments were involved:

50. [469]

    What portion of these provisional sum adjustments related to topsoil, removed because there was AC fragments on the surface, is not known. In sum, as matters presently stand, I accept that $151,285.72 flows from Defence’s breach of its remediation obligations (if I am wrong about everything else) while a further $14,213,834 may or may not have involved topsoil removed by reason of visible asbestos on the surface. That is, Mr Madden’s starting point of $20,980,224 must be revised as follows:

51. [470]

    By my calculations, Mr Madden’s total is now $151,285.72 and potentially a further $16,938,833.

52. [471]

    Turning then to the apportionment exercise undertaken by Mr Madden, he first calculated the costs which he considered were entirely attributable to the remediation of topsoil, totalling $3,643,482. Mr Madden included $32,500 for construction of the CATA and $57,400 in respect of “subsurface” scrapes, both of which I have disallowed: see [442], [462]. He also included the proportionate preliminaries figure of $949,624, which needs to be recalculated having regard to the items which I have disallowed: $18,111.67 is referable to the emu-pick around the tenanted warehouses and $910,645.91 is potentially recoverable in the event that it related to the removal of topsoil which had asbestos on the surface, which is not clear. Of Mr Madden’s $3,643,482, the figure of $3,514,604 should be used, noting that it remains unclear whether all but $18,111.67 of that figure was clearly attributable to asbestos on the surface of soils.

53. [472]

    Mr Madden then used an allocation percentage of 49.72% to attribute other costs which were associated with all material types, including $41,100 for “Implementation of Asbestos Management plan and controls” (which I have disallowed) and the costs of EP Risk’s reports (which was not pressed). These cost items totalled $2,083,381.95. Taking into account the items which I have disallowed or were not pressed, the total is now $1,772,045.40. With these alterations, as I calculate it, Mr Madden would have apportioned $881,061 for known topsoil, $585,053 for costs associated with buried surfaces and deeper soil, $141,232 for screened soil, $125,992 for possible topsoil and $28,530 for soil below building footprints and pavements.

54. [473]

    As I understand it, Mr Madden then used the final tonnages calculated by Dr Swane to attribute haulage costs referred to at [452], [454] and [467(b)]. In the result, Mr Madden calculated haulage costs of $5,130,537 for known topsoil, $3,464,837 for costs associated with buried surfaces and deeper soil, $822,522 for screened soil, $734,114 for possible topsoil and $166,487 for soil below building footprints and pavements.

55. [474]

    In doing so, I note that Mr Madden used the demolition contractor’s schedule of rates. I note that Liberty Industrial charged the following rates per tonne to load, haul and dispose off-site of the following materials:

56. [475]

    I put to one side the apportionment of costs to buried surfaces, deeper soil and soil below building footprints and pavements. I will include the apportionment for known topsoil and possible topsoil but exclude the apportionment for screen soil. Where the apportionment for possible topsoil and screen soil is roughly the same, proceeding in this manner reflects the chance that the possible topsoil was not, in fact, topsoil and that a portion of the screen soil was not topsoil either. That means that 56.83% of costs that may have related to topsoil will be included, for the purposes of further consideration. The resulting figure is $9,701,942. It is then necessary to consider whether this amount should be awarded as damages having regard to the legal principles earlier outlined.

57. [476]

    In assembling its damages claim, the developer has, with Mr Raval’s assistance, basically tallied up all costs incurred by the developer in dealing with contamination on the site, whether those costs were required in order to discharge the developer’s obligations under the development approval, or related to contaminated material found on or near the surface or at depth, or related to topsoil which had been removed as geotechnically unsuitable and, on being placed in a stockpile, proved to contain AC fragments.

58. [477]

    The developer has then, with the assistance of Dr Swane and Mr Madden, tried to isolate costs which may be seen as related to the treatment of topsoil only, in the event that the Court is not minded to award the entirety of Mr Raval’s costs as damages. In the preceding exercise, I have tried to do this too.

59. [478]

    The problem I have with Dr Swane’s efforts to apportion remediation costs to topsoil is that he has proceeded on the basis that it was necessary for Defence to remove the top 10 cm of topsoil, regardless of whether there was visible asbestos on the surface, or after raking, or at all. I have already concluded that Defence was not obliged to do this in order to discharge its remediation obligation. That is because Defence only had to remediate the site for “on-going” commercial / industrial use, being continued use of the site as a supply and distribution centre. To perform that obligation, Defence was obliged to ensure that there was no asbestos on the ground or, if one follows the guidance in NEPM (2013), in surface soils.

60. [479]

    Another problem is that Dr Swane’s analysis was based, in part, on the amount of material referred to in JBS&G’s waste classification reports. But it cannot be assumed that the estimated volume of material in JBS&G’s waste classification reports was ultimately disposed of as asbestos waste: see [307]. Nor can one now know what portion of the topsoil had visible asbestos on the surface and what portion was removed as geotechnically unsuitable, as a consequence of which AC fragments became visible.

61. [480]

    I accept that the Court should facilitate the discharge of the onus of establishing damages where the defendant’s wrongdoing has given rise to uncertainty regarding the quantum of loss. But damages must still be assessed in accordance with legal principle, including having regard to causation and remoteness. Further, there needs to be some basis for choosing a particular figure; I need to be able to do more than take a ‘stab’ at it.

62. [481]

    As to causation, there is clear evidence from the geotechnical reports that the topsoil and fill on the Moorebank site was regarded as geotechnically unsuitable and, thus, would have to be removed from the site in any event. Mr Mettam agreed that a large portion of the topsoils were assessed by Golder Associates to be geotechnically unsuitable and, for that reason, irrespective of whether there was ACM in the soils, it was necessary to remove those soils from the site in any event. There was a possibility that some of the material could be re-used if mixed with other suitable material. Some attempt appears to have been made to do so, although it appears to have been minor in the scheme of things: see [463]. That is, the developer was going to have to disposal of the topsoil in any event.

63. [482]

    As mentioned, the general measure of damages is the amount, so far as money can provide, necessary to put the plaintiff in the position they would have been if the contract had been performed. Assessing such damages requires the Court to compare the actual position of the party who sustains a loss by reason of the breach to what that party’s position would have likely been in a counterfactual scenario in which the contract was performed. Where the developer was going to have to remove the topsoil in any event, a more accurate measure of the developer’s loss is the additional cost incurred to dispose of this material off-site where the waste included asbestos, as opposed to if it had not.

64. [483]

    The developer acknowledged as much in closing submissions, but submitted that the onus was on Defence to demonstrate the difference between the cost of disposal incurred, and the cost of disposal which would have been incurred in any event. Where the developer had claimed the whole cost of waste disposal, it was said to be for Defence to prove that it was something less than the full amount.

65. [484]

    But the different waste disposal rates are known: see [472]. From my reading of JBS&G’s waste classification reports, I understand that soil which contained asbestos fragments beyond a certain concentration or, in the case of friable asbestos, any concentration, was classified as special waste (asbestos), while the other soil was, by and large, classified as general solid waste. There were some classifications of restricted waste, but this was not in respect of soil with asbestos. On that basis, the increase in cost to dispose of soil with asbestos was another 4% or 9% on what would otherwise have been the case.

66. [485]

    Not all of the cost items which are included in my earlier total of $9,701,942 are haulage and disposal. Some of these cost items may not have been incurred at all if the topsoil did not have asbestos. I have gone through the cost items which are included in the $9,701,942 and have allowed 10% for the haulage and disposal cost items only. This is because the damages are the additional cost of disposal, not the whole cost, where the soil was going to be disposed of in any event. The resulting figure is $3,238,830.

67. [486]

    A way to test whether this figure is reasonable is to consider what it would have cost to perform the remediation obligation properly, albeit I accept that the cost of performance will not necessarily be the same as the cost involved in remedying non-performance. As I have earlier concluded, there was some asbestos on the surface of the soil at the Surrender Date, being near the southern burial pits and in three locations identified by Ms Organo. Beyond this, any incidence of asbestos on the surface was likely minor.

68. [487]

    Defence would certainly have complied with its remediation obligation under the lease if it had done another emu-pick of the Moorebank site before the Surrender Date, removing all AC fragments on the surface of the soil. The cost of undertaking that task is known for the tenanted warehouses, which were initialled marked out in GHD’s recommended remediation strategy of 2011 as Zones 12 and 14. GHD had then marked out the DNSDC site into 20 zones, of roughly equal size. If we apply the cost of emu-picking the tenanted warehouses to the whole of the site, then the cost would have been roughly 10 times $133,174.05, that is $1,331,740.50. To that should be added proportionate preliminaries of 13.6%, which brings us to $1,512,857.20. As far as can be told, the amount claimed by the demolition contractor for the emu-pick included the cost of disposing of the AC materials.

69. [488]

    The bill of quantities prepared in respect of Ms Organo and Dr Wright’s scope of works should be added, making $1,873,368. There may be some duplication between the scope of works prepared by Ms Organo and the cost of an emu-pick for the same area, but I consider any duplication to be minimal. Something should be allowed for the costs of consultants to confirm that this work had been done properly. The cost of performing the remediation and ‘make good’ obligations was some $2.2 million.

70. [489]

    This is $1 million less than the damages I have calculated. This gives me some comfort that the damages are not too wide of the mark.

Orders

1. [490]

   For these reasons, I make the following orders:

   1. (1)

      Dismiss the Summons with costs.

   2. (2)

      Grant liberty to apply to vary the costs order.

ADDENDUM 1 – waste classification and clearance reports

1. [1]

   On 19 September 2017, JBS&G provided a waste classification report in respect of an unexpected find of an ACM pipe south of Building 4. Some 10 m3 of material was classified as general solid waste with special (asbestos) waste. On 28 September 2017, JBS&G confirmed an unexpected find south of Building 4, being an ACM services pipe. ACM pipe fragments were identified on ground level and were removed but the pipeline appeared to extend in an easterly direction and remained in situ. On 8 January 2018, JBS&G provided a letter confirming that the unexpected find of an asbestos pipe and pipe fragments west of Building 4 had been appropriately removed. The pipe was in poor condition “due to damage during earthworks prior to the identification of potential ACM”. The pipe and impacted fill was excavated only to the boundaries required for earthworks, being 10m in length, 2 m in width and 30 cm deep. JBS&G provided its report on this unexpected find in Zone 3 East on 23 January 2018.

2. [2]

   On 20 September 2017, JBS&G provided a waste classification report in respect of an unexpected find of ACM fragments near Building 19. Some 75 m3 was classified as general solid waste with special (asbestos) waste. On 27 September 2017, JBS&G also reported on an unexpected find of ACM fragments and service pipes west of Building 19. The initial fragment was identified protruding out of the ground and another suspected ACM pipe found 2 m south of that find, “Upon excavation, further ACM fragments were identified in the vicinity of the pipes beneath a tree stump”. The suspected ACM fragments, pipes and associated contaminated soils were removed and an additional suspected service pipe identified underneath, running horizontal. The pipe uncovered by the excavation was removed but the suspected ACM pipe remained in situ. On 8 January 2018, JBS&G reported on the remediation of an unexpected find of AC pipe and pipe fragments south of Building 19. The material was identified during earthworks. An area of approximately 15 m in length, 5m wide and 0.5 m in depth was excavated around the area to delineate the potential impact and no further AC pipe fragments or in situ pipe were observed.

3. [3]

   On 20 September 2017, JBS&G reported on an unexpected find near Building 1. The find had been identified on 4 September 2017, during demolition works west of the building footprint. Asbestos fragments were identified west of the building, in an area approximately 17 m long and 6 m wide. The contaminated soil surrounding the ACM material consisted of the upper 1.2 m of the contaminated area. Impacted soils were removed and stockpiled in Stockpile 08. After removal and laboratory testing, JBS&G advised that the area of the unexpected find was considered suitable for continued commercial/ industrial land use. JBS&G also provided a waste classification report in respect of some 54 m3 held in Stockpile SP08, noting that the asbestos was bonded and classifying the material as general solid waste with special (asbestos) waste.

4. [4]

   On 21 September 2017, JBS&G provided a waste classification report in respect of an unexpected find of ACM fragments south-west of Building 1, uncovered during excavation of soil in the area. Some 60 m3 was classified as general solid waste with special (asbestos) waste. On 26 September 2017, JBS&G reported two unexpected finds in the footprint of Building 1, being potential ACM fragments and cladding north of the footprint and a stormwater pipe south of the footprint. The former was identified at ground level during demolition works, while the pipe was identified at 0.3 m depth. Both were thought to be bonded ACM. JBS&G classified materials as associated with an unexpected find of ACM fragments southwest of Building 1 at 30 cm depth. The ACM was removed. On 28 September 2017, JBS&G provided a waste classification report in respect of the asphalt waterproofing underneath the concrete slab for Building 1. Some 250 m3 of material was classified as general solid waste. On 29 September 2017, a further waste classification report was provided in respect of an ACM pit found south of Building 1 uncovered during service removal in the area. Approximately 5 m3 of material was classified as general solid waste with special (asbestos) waste.

5. [5]

   According to JBS&G’s reports, on 21 September 2017 asbestos fragments were found in fill material surrounding five stormwater pipelines following the northern and southern lengths of the Buildings 10 and 11 footprints. These fragments were identified during service removal works and continued to an approximate depth of 1.5 m below ground level. ACM impacted fill was excavated and transported to a licenced waste facility, while remaining ACM fragments visible on exposed soils within the trench were picked up and the soils visually inspected to confirm that no visual asbestos was observed. JBS&G later provided a waste classification report: some 1,000 m3 of material was classified as General Solid Waste with Special (Asbestos) Waste.

6. [6]

   On 25 September 2017, JBS&G provided a waste classification in respect of some 8 m3 of ACM contaminated soils south of the Building 27 footprint. The material was classified as general solid waste with special (asbestos) waste.

7. [7]

   On 26 September 2017, JBS&G reported on another unexpected find surrounding the footprint of Building 11, being a suspected ACM stormwater pit identified at 0.1 m depth during demolition excavation works. Laboratory analysis of the sample did not identify any ACM.

8. [8]

   On 29 September 2017, JBS&G provided a waste classification report in respect of materials associated with an unexpected find, being bonded ACM fragments bordering the footprint of Building 6 and Building 9. The material comprised some 984 m3. The waste was classified as general solid waste with special (asbestos) waste. On 16 October 2017, JBS&G provided a waste classification report in respect of ACM fragments within the backfill of service pipes alongside Buildings 6 and 9. The stormwater pipes were being removed. ACM impacted fill was excavated where required for service removal. Remaining ACM visible on exposed soils within the trench were picked up and the soils visually inspected to confirm that no visible asbestos was observed. The identified ACM within the excavated area had been appropriately removed.

9. [9]

   On 11 October 2017, JBS&G provided a waste classification report in respect of stockpiled ACM impacted soil sourced from an area adjacent to Building 5 during archaeological works and then held in ‘SP04’ in the stockpiling area. Some 75 m3 was classified as general solid waste with special (asbestos) waste. Stockpiled ACM impacted soil sourced during archaeological works adjacent to Building 5 were held as “SP04” in the stockpiling area. On 25 October 2017, JBS&G confirmed that they had inspected the footprint after the impacted material was being removed and advised that the material had been appropriately removed.

10. [10]

    On 13 October 2017, JBS&G reported on an unexpected find of potential ACM during the demolition of Building 16. The item was a fire door with suspected ACM. On 20 December 2017, JBS&G provided a waste classification report in respect of an unexpected find in Zone 3 East, being bonded ACM fragments surrounding a stormwater pipe uncovered during bulk earthworks within the former Building 16 footprint. The material comprised 150 m3 was classified as general solid waste with special (asbestos) waste.

11. [11]

    On 16 October 2017, JBS&G provided a waste classification report in respect of an unexpected find of bituminous waterproofing material between concrete slabs at the former Building 1 site. The material was “appropriately removed”. A similar letter was provided in respect of an unexpected find, being asbestos containing communications pit located at the southern end of Building 1, “and associated fragments broken during surface removal”. The communications pit and associated fragments were observed within fill material to a depth of 1m below ground level. The consultant confirmed that the ACM had been “appropriately removed”. Stockpiled ACM impacted soil sourced from an unexpected find at Building 1 and unexpected finds at the northern entrance were held as “SP08” in the stockpiling area. On 26 October 2017, JBS&G advised that the ACM fragments within the fill material had been appropriately removed.

12. [12]

    On 17 October 2017, JBS&G provided a waste classification report in respect of an unexpected find of bonded ACM fragments bordering Building 17. JBS&G noted that the find was uncovered during stormwater service removal in the area. There existed the potential for further such finds to be unearthed during service removal along the length of the building and extending along the footprint of Building 18. The volume of material presently located was 250 m3, with potential additional material of some 750 m3. The waste was classified as general solid waste with special (asbestos) waste.

13. [13]

    On 19 October 2017, JBS&G classified a stockpile of asphalt from pavement removed during demolition activities on-site. The asphalt and road base gravels were considered suitable for site re-use.

14. [14]

    On 26 October 2017, JBS&G provided a waste classification report in respect of asbestos fragments in fill encountered during the removal of a stormwater pipeline alongside Building 17. On 26 October 2017, JBS&G reported on an unexpected find in Building 17. ACM fragments were found within the backfill of service pipes along the length of the building. Remaining ACM fragments visible on exposed soils within the trench were picked up and the soils visually inspected to confirm that no visible asbestos remained.

15. [15]

    On 1 November 2017, JBS&G provided a waste classification report in respect of an unexpected find of ACM fragments at Building 7. The find was uncovered during topsoil removal works in the area. The visible ACM was bonded asbestos. Works were stopped, where there was a potential for ACM contamination to extend east along the length of the building during topsoil removal in that area. Some 30 m3 had been unearthed, with potential additional material affected of some 200 m3. The waste was classified as general solid waste with special (asbestos) waste. On 6 April 2018, JBS&G provided a waste classification report in respect of backfill materials excavated during the removal of redundant stormwater pipes from the former Building 7 site. Some 350 m3 was classified as general solid waste mixed with special waste (asbestos).

16. [16]

    On 28 November 2017, JBS&G provided a waste classification report in respect of an unexpected find, being an asbestos containing pipe and pipe fragments uncovered during earthworks in the western portion of Zone 2. Some 25 m3 was classified as general solid waste with special (asbestos) waste, containing bonded ACM.

17. [17]

    On 4 December 2017, JBS&G provided a waste classification report in respect of an unexpected find, being asbestos containing pipe and pipe fragments uncovered during earthworks in Zone 4 West. The material comprised some 20 m3 with both bonded and friable asbestos; the AC pipe had been crushed during excavation. The waste was classified as general solid waste with special (asbestos) waste.

18. [18]

    In January 2018, ACM fragments were found in fill surrounding a concrete stormwater pipe west of Building 16. A stormwater pipe was being removed to facilitate development of earthworks. On 15 and 16 January 2018, the stormwater pipe trench was excavated for approximately 75 m in length, 2 m in width and 1 m depth. No ACM materials or ACM impacted soils were encountered in the last 10 metre section of the stormwater pipe and this material was stockpiled for re-use on the site. Following the excavation works, the excavation area was some 130 m long and 5 m wide. The stockpiled material was inspected to confirm that there was no visual asbestos, while ACM impacted soil was transported to a licenced waste facility.

19. [19]

    On 9 February 2018, JBS&G provided a waste classification report in respect of an unexpected find in Area 5 Southeast. An ACM telecommunications pit had been uncovered during earthworks in the area. The material comprised 20 m3 and was classified as general solid waste with special (asbestos) waste. A further waste classification report was also provided for an unexpected find in Area 4 Northwest, being ACM impacted soil in a services trench uncovered during earthworks in the area. Some 65 m3 was classified as general solid waste with special (asbestos) waste.

20. [20]

    On 13 February 2018, JBS&G provided a waste classification report in respect of an unexpected find, being ACM impacted soil at an access road. The material comprised some 250 m3 and was classified as general solid waste with special (asbestos) waste.

21. [21]

    On 26 February 2018, JBS&G provided a report on an unexpected find of asbestos cement fragments in fill surrounding an access road, old entrance gate and garden area. The material was identified during general site excavation works, with removal required to facilitate swale excavation earthworks. ACM fragments were observed on the surface and confirmed by test pitting at a depth of 0.5 m. It was assumed that ACM contaminated fill was present in soils in the swale excavation area. Excavation was approximately 33 m long, 10 m wide and 0.5 m deep. Following the excavation, a visual inspection of the surface of the soil was conducted to confirm no visible asbestos remained. JBS&G also confirmed that remediation of the unexpected find at Area 4 Northwest had been completed. So too had the remediation works at the unexpected find at Area 5 Southwest.

22. [22]

    On 12 March 2018, JBS&G gave an asbestos clearance in respect of two topsoil stockpiles and a western scrape area, following their relocation to the southern portion of the site.

23. [23]

    On 16 March 2018, JBS&G provide a waste classification report in respect of an unexpected find, being ACM impacted soil in the footprint of Building 80. The find was uncovered during earthworks in the area. The estimated volume was some 250 m3. The asbestos fragments were bonded. Ten samples were collected and tested. The waste was classified as general solid waste (non-putrescible) with special (asbestos) waste. On 6 April 2018, JBS&G provided a waste classification report in respect of an unexpected find in the form of ash and slag material containing asbestos within the south-eastern portion of the Building 80 footprint. This comprised approximately 10 m3 and was classified as general solid waste (non-putrescible) with special (asbestos) waste. A further waste classification report was provided in respect of backfill materials excavated during the removal of redundant stormwater pipes from the former Building 80 site. Some 90 m3 of material was classified as general solid waste (non-putrescible) mixed with special waste (asbestos), where the material included concrete, building rubble and minor quantities of non-friable ACM.

24. [24]

    On 21 March 2018, JBS&G provided a waste classification report in respect of asbestos impacted topsoils in the northern area of the site. JBS&G noted that asbestos was identified at multiple locations across the site during waste classification of the topsoil; asbestos was considered likely to be present in other areas outside the test location. Samples were taken in 33 locations. Asbestos was detected by the laboratory in five samples. Topsoils extended to approximately 10cm depth of a volume of some 7,720 m3. Approximately 60% of the soils were assessed as general solid waste (non-putrescible) with special (asbestos) waste, being up to 4,600 m3. The balance of the topsoil was classified as general solid waste (non-putrescible).

25. [25]

    On 21 March 2018, JBS&G also provided a waste classification report in respect of an unexpected find at Central Access South, being approximately 75 m3 of ACM impacted soil. The find was uncovered “during the removal of “geotechnically unsuitable” material in the area.” The material was classified as general solid waste with special (asbestos) waste.

26. [26]

    On 9 April 2018, JBS&G confirmed that the remedial work in respect of the unexpected find at Central Access South had been completed, being the unexpected find of ACM within “geotechnically unsuitable” material disturbed during site excavation works. The excavation area was approximately 6 m x 20 m, extending to a depth of 1 m. ACM impacted soils and bituminous pipes within the excavation area were loaded out from the site and the remaining surface inspected.

27. [27]

    On 19 April 2018, JBS&G provided a waste classification report in respect of an ash layer identified beneath the topsoil between Building 93 and a stormwater canal. The material comprised some 60 m3 and, after laboratory testing, was classified as general solid waste (non-putrescible). On 2 May 2018, JBS&G provided a clearance in respect of “Sediment Basin 1”, being an area between Building 93 and a stormwater channel in the north-west portion of the Stage 2 site. Following the removal of loose topsoils, the exposed ground surfaces and excavations were inspected for asbestos but none was observed. JBS&G concluded that the area was safe for civil works.

28. [28]

    On 20 April 2018, JBS&G provided a waste classification report in respect of some 70 m3 of leaf litter debris accumulated in the stormwater channel. After laboratory testing, the waste was classified as general solid waste.

29. [29]

    On 30 April 2018, JBS&G provided a waste classification report in respect of material excavated around underwater stormwater pipework adjacent to Buildings 72, 73 and 75. The material comprised some 2,000 m3. Test pits were set up in 16 locations, at which visible ACM was identified at seven locations. Asbestos in the soil was detected by laboratory tests at three of these test pits. The attached photographs show stormwater pipes installed about a metre underground and backfilled. The excavated backfill material included ACM fragments. After 31 soil samples were taken and tested in the laboratory, the waste was classified as General Solid Waste (non-putrescible) with (Special Asbestos) Waste.

30. [30]

    From 27 April to 3 May 2018, Liberty Industrial removed asbestos from Building 72 and its surrounds. An exclusion zone was established with asbestos warning signage. Grass covered topsoils were scrapped. Asbestos impacted backfill materials were excavated from underground stormwater infrastructure. On 4 May 2018, JBS&G provided a clearance for the area, as well as areas of topsoil removed south of the building. JBS&G considered that the area was safe for civil works to recommence, subject to ongoing implementation of the Asbestos Management Plan and Unexpected Finds Protocol.

31. [31]

    From 30 April until 11 May 2018, Liberty Industrial removed asbestos from Building 75, both in the building footprint and removing topsoil surrounding the building. Grass covered topsoils were scrapped. Asbestos impacted backfill materials were excavated from redundant underwater stormwater infrastructure. On 16 May 2018, JBS&G provided a clearance for the building; the area was considered safe for civil works to recommence.

32. [32]

    From 2 to 14 May 2018, Liberty Industrial undertook the removal of asbestos works for Building 82, including scrapping grass covered topsoils. On 22 May 2018, JBS&G provided a clearance for the area, comprising the building footprint, areas of topsoil removal surrounding the building and grassed topsoil areas to the east of the building awning structure. JBS&G concluded that the areas of known asbestos impact had been adequately removed. However, underground storage tanks remained and, after removal, validation of the tank pit would be required.

33. [33]

    On 16 May 2018, JBS&G inspected Building 83, being the building’s footprint and surrounding topsoil areas. No asbestos was identified at the location. All topsoil was removed from the building area for geotechnical purposes were classified and disposed of as General Solid Waste. Following the removal of loose topsoils, the exposed ground surfaces and excavations within the building footprint were inspected but no ACM or loose asbestos debris was observed. The area was considered safe for civil works. (JBS&G provided its report on 22 May 2018.)

34. [34]

    On 21 May 2018, JBS&G provided a waste classification report for petroleum hydrocarbons located to the south-east of the former Building 80 site. The material was around a concrete pit and sediment deposited on the inside of concrete pipes removed from a stormwater trench. Some 30 m3 material was involved and classified as restricted solid waste. On 29 June 2018, JBS&G provided a clearance for Building 80 after the removal of the three underground storage tanks and associated pipework infrastructure, confirming that any potential contamination associated with the tanks had been appropriately removed. The excavations of the underground structures were observed and had no indications of residual contamination, including asbestos.

35. [35]

    On 19 June 2018, JBS&G provided a waste classification for off-site disposal of topsoil in Stage 2 east precinct northern area. The material was described as “geotechnically unsuitable” topsoil adjacent to Buildings 41, 45, 46 and 48 to a depth of approximately 0.2 m below the ground surface. Some 650 m3 was classified as General Solid Waste (non-putrescible) with (Special Asbestos) Waste, where the soil contained visible asbestos fragments. An aerial photograph of the area noted that ACM was present in 41 locations. Topsoil samples were taken in 25 locations. Friable asbestos was detected by the laboratory in four locations.

36. [36]

    On 10 July 2018, JBS&G provided a waste classification for approximately 2,000 m3 of topsoil from Stage 2 east precinct southern area. The area was described as “geotechnically unsuitable” topsoil material adjacent to Buildings 32 to 40, to a depth of approximately 0.02 m below the ground surface. ACM fragments were observed in the soil. A total of 11 samples were collected. The waste classification was special (asbestos) waste with general solid waste (non-putrescible).

37. [37]

    On 12 July 2018, JBS&G provided a waste classification report for some 100 m3 of topsoil and some 50 m3 of bedding sand located in an excavation area in Stage 1. ACM fragments were observed and confirmed by laboratory tests. The waste was classified special (asbestos) waste with general solid waste.

38. [38]

    On 25 July 2018, JBS&G assessed 92.5 m3 of topsoil scrapped within the south-eastern corner of Building 48 as unsuitable for site reuse, given the presence of fibrous asbestos.

39. [39]

    On 26 July 2018, JBS&G assessed 42 m3 of bonded asbestos impacted soils, sourced from topsoil scraping near OSD 9 as unsuitable for site re-use. These soils required treatment for bonded asbestos prior to re-use and it was recommended that geotechnical suitability testing be conducted before further consideration of asbestos treatment to determine potential for site re-use.

40. [40]

    On 27 July 2018, JBS&G provided a waste classification report in respect of ACM (being bonded asbestos sheeting) attached to a concrete pit, being an unexpected find. Some 2 m3 of material was classified as special (asbestos) waste with general solid waste. A further waste classification report was provided in respect of some 91 m3 in stockpile OSD9 SP1, being soil from topsoil scraping of the northern end of the western side of OSD9. The material was classified as suitable for site reuse. A further 90 m3 of soil sourced from topsoil scraping near Building 46, to a depth of 0.05m below the ground surface, was also classified as suitable for site reuse.

41. [41]

    On 27 July 2018, JBS&G also classified a further 55 m3 of asbestos impacted soils sourced from topsoil scraping near Building 48 to a depth of approximately 0.05 m below the ground surface as unsuitable for re-use, together with 55.5 m3 of asbestos impacted soils sourced from topsoil scraping near Building 48, 90.5 m3 of asbestos impacted soil sourced from topsoil scraping near Building 48, 18m3 from topsoil scraping near Building 44, 28.5 m3 from topsoil scraping at Building 45 and further 76 m3 from topsoil scraping near Building 45.

42. [42]

    On 31 July 2018, JBS&G classified some 198 m3 of topsoil scraping within the southwest portion of Building 35 as unsuitable for site re-use. The soil required treatment for non-friable asbestos by hand picking prior to re-use but it was recommended that geotechnical suitability testing be conducted before considering further asbestos treatment. Some 110 m3 from topsoil scraping near Building 35 was considered unsuitable for site re-use and required off-site disposal due to fine ACM fragments. Some 90.5 m3 of topsoil scraping near Building 35 was considered unsuitable for site re-use, given the weathered, small ACM fragments.

43. [43]

    On 1 August 2018, JBS&G classified 55 m3 of soil from topsoil scraping within the northern corner of Building 34 as suitable for site reuse. On 2 August 2018, JBS&G classified 63.5 m3 of topsoil scraping to the northwest of Building 34 as suitable for site re-use. A further 27 m3 from the same area was also classified as suitable for site reuse. A further 86.5 m3 of topsoil scraping near Building 33 was considered unsuitable for site re-use given the small size of ACM fragments.

44. [44]

    On 3 August 2018, JBS&G assessed some 445 m3 of topsoil scraping near Building 33 as unsuitable for site re-use given the weathered, small ACM fragments. A further 171.5 m3 of topsoil scraping between Building 33 and Building 34 was considered unsuitable for site re-use given the weathered, small ACM fragments. A further 80 m3 from near Building 34 were considered unsuitable for site re-use for the same reasons. So too was an additional 15 m3 from topsoil scraping south of Building 34.

45. [45]

    On 8 August 2018, JBS&G provided a waste classification for up to 1,100 m3 topsoil material south of Buildings 33, 34 and 35 to a depth of approximately 0.05 m below the ground surface. Visible asbestos fragments were in the soil. The topsoil was classified as Special (asbestos) Waste with general solid waste (non-putrescible). Four ACM fragments were recorded on an aerial photograph. Six further ACM fragments were recorded, which were unsuitable for treatment by emu picking.

46. [46]

    On 9 August 2018, JBS&G provided a waste classification in respect of some 97 m3 of asbestos impacted soils sourced from secondary scraping between Buildings 33 and 34 to a depth of 0.05 m to 0.1 m below the ground surface. As the asbestos fibre cement fragments were in a weathered/degraded condition, the material was unsuitable for on-site treatment via emu-picking and was classified as special (asbestos) waste.

47. [47]

    On 10 August 2018, JBS&G classified 26 m3 of asbestos impacted soils sourced from topsoil scraping near Building 44, to a depth of 0.05 m below the ground surface, as unsuitable for site reuse. A further 86 m3 of soil sourced from topsoil scraping within the northeast of Building 34, to a depth of 0.05 m below the ground surface, was considered suitable for site re-use. A further 60 m3 of topsoil scraping near Building 39 was considered unsuitable for site re-use given the small, weathered ACM fragments.

48. [48]

    On 13 August 2018, JBS&G classified 63 m3 of soil sourced from topsoil scraping near Building 46, to a depth of 0.05 m below the ground surface, as suitable for site re-use. A further 353 m3 of topsoil scraping within the western portion of Building 33 was also classified as suitable for site re-use, as was a further 38 m3 from topsoils scraping within the southern portion of the same building and another 17.5 m3 from the same location. A further 22 m3 from topsoil scraping near Building 39, to a depth of 0.05 below the ground surface, were classified as unsuitable for site re-use. Some 28.5 m3 of soils sourced from an ACM telecommunication pit excavation were also considered unsuitable for site re-use, but could be re-used following satisfactory treatment by emu-picking.

49. [49]

    On 14 August 2018, JBS&G classified some 62 m3 of material from the “geotechnically unsuitable” stockpile, which had been processed by emu-picking, as suitable for site re-use. Further letters were issued in respect of other parts of the “geotechnically unsuitable” stockpile, classifying 43 m3, 51 m3, 46 m3, and another 33 m3.

50. [50]

    On 15 August 2018, JBS&G classified a further 41 m3 of soil from the “geotechnically unsuitable” stockpile as suitable for reuse processing by emu-picking. A further 25 m3 was also so classified. A further 592 m3 of soils from secondary scraping on the western side of Building 33 and between Building 33 and 34 from a depth of 0.05 m to 0.1 m below the ground surface was also classified as special (asbestos) waste. Given the weathered/degraded condition of ACM fragments, it was unsuitable for onside treatment via emu-picking.

51. [51]

    On 15 August 2018, JBS&G also classified some 227 m3 from a stockpile sourced from topsoil scraping within the northern portion of OSD 9, which appears to have been related to Building 34, as suitable for site re-use. A further 79 m3 from topsoil scraping near Building 39 was considered unsuitable for site re-use and required treatment by hand picking. It was recommended that geotechnical suitability testing be conducted before further consideration of asbestos treatment. The same recommendation was made in respect of a further 126 m3 from topsoil scrapings near Building 39, that is, the material was presently unsuitable for site re-use but could be suitable with treatment subject to geotechnical suitability testing.

52. [52]

    On 20 August 2018, ADE Consulting gave an asbestos materials clearance inspection report in respect of Building 47, following removal of asbestos containing bituminous membrane within the roof felt materials. ADE recommending the removal of all hazardous materials prior to demolition works within the area. No ACM or appreciable dust was identified following visual examination of the concrete slab roof surface. No asbestos was detected in any samples collected.

53. [53]

    Also on 20 August 2018, JBS&G gave a waste classification report in respect of approximately 27 m3 in stockpile SP078, being a “geotechnically unsuitable” stockpile. The material was classified as special (asbestos) waste, as the asbestos fibre fragments were in a weathered or degraded condition and unsuitable for on-site treatment via emu-picking. A further 37 m3 was classified as suitable for site re-use. A further 179.5 m3 was also so classified. This material was sourced from topsoil scraping within the western and eastern portion of Building 45, to a depth of approximately 0.05 m below the ground surface. An additional 147 m3 was also classified as suitable for re-use, the material having come from topsoil scraping alongside Building 40 to a depth of 0.05 m below ground level.

54. [54]

    On 21 August 2018, JBS&G classified 34 m3 from the “geotechnically unsuitable” stockpile as suitable for site reuse. A further 22 m3 was also so classified. A further 48 m3 sourced from topsoil scraping alongside Building 44 to a depth of 0.05 m below the ground surface was also classified as suitable for site reuse. A further 185.5 m3 of topsoil scrapings from alongside Building 45 were considered unsuitable for site re-use. A further 17.5 m3 of topsoil scraping within the western portion of Building 37 was considered suitable for site reuse.

55. [55]

    On 21 August 2018, JBS&G provided a waste classification report for asbestos impacted soils sourced from a secondary scraping within 7 m of Building 48, from a depth of approximately 0.05m to some 0.1 m below the ground surface. Some 216 m3 temporarily placed in stockpiles SP053 to SP058 was classified as special (asbestos) waste with general solid waste, as a significant number of asbestos fibre cement fragments was in a weathered or degraded condition and less than 7 mm and unsuitable for on-site treatment via emu-picking, and was classified as special (asbestos) waste. JBS&G also provided a waste classification report in respect of asbestos impacted soils sourced from a secondary scraping near Building 46, from a depth of 0.05 m to 0.1 m below the ground surface. Some 92 m3 had been placed in stockpiles SP045 and SP046 and was classified as special (asbestos) waste given the significant number of asbestos fibre cement fragments in a weathered or degraded condition, unsuitable for on-site treatment via emu-picking.

56. [56]

    On 22 August 2018, JBS&G classified 83.5 m3 from topsoil scraping near Building 35 as unsuitable for re-use, requiring treatment by hand picking subject to geotechnical suitability testing.

57. [57]

    On 23 August 2018, JBS&G classified 81 m3 of topsoil scrapings near Building 39 as unsuitable for site reuse. A further 92 m3 of soil from secondary scraping from the southern face of Building 46 was also considered unsuitable for site reuse. This material was classified as special (asbestos) waste. JBS&G also classified approximately 44 m3 of topsoil scrapings from Building 35 as suitable for site re-use. Some 352 m3 from top scraping near Building 32, over-excavated to 0.1 m below the ground surface, was considered unsuitable for site re-use. Due to over-excavation of the soils, the stockpile contained a greater volume of soils, including underlying clean soils. To address the co-placement of asbestos impacted and clean soils, it was proposed to treat the soils via emu-picking. A further 16.5 m3 of topsoil scraping from near Building 35 was considered unsuitable for site re-use given the presence of fine asbestos exceeding the site assessment criteria.

58. [58]

    On 29 August 2018, JBS&G classified some 205 m3 of topsoil scraping alongside Building 32 as suitable for site re-use.

59. [59]

    On 30 August 2018, JBS&G identified stockpiles as suitable for site re-use. The soils were sourced from topsoil scraping within the eastern precinct, to a depth of approximately 0.05 m below the ground surface. The stockpiles comprised some 1,267 m3. While ACM had been identified within topsoils across the site, a visual inspection and asbestos quantification sampling did not identify ACM within these stockpiles. Laboratory analysis was below the site assessment criteria of 0.001% w/w. These stockpiles were considered suitable for re-use. A further 42.5 m3 of soil from topsoil scrapings within the northern portion of Building 44 were considered unsuitable for site reuse.

60. [60]

    On 3 September 2018, JBS&G classified some 133 m3 of topsoil scraping near Building 35 as unsuitable for site re-use given the significant amount of weathered ACM fragments of small size.

61. [61]

    On 5 September 2018, JBS&G provided a waste classification report in respect of asbestos impacted soil sourced from ACM formwork in a concrete stormwater pit, found during the excavation of the stormwater line at Building 46. Some 10 m3 was classified as special (asbestos) waste, as the fragments were in a weathered/degraded condition, unsuitable for on-site treatment via emu-picking. A further 75 m3 of asbestos impacted soils from topsoil scraping to the south of Building 45 were considered unsuitable for site reuse.

62. [62]

    On 6 September 2018, JBS&G provided a waste classification report in respect of asbestos impacted soils identified underneath the concrete slabs of two building annexes, during the demolition of Building 46. The material totalled some 52m3 and was classified as special (asbestos) waste given the weathered and degraded condition of the fragments, unsuitable for on-site treatment via emu-picking. JBS&G also classified some 3.6 m3 of asbestos impacted soils sourced from ACM formwork in a concrete stormwater pit found during stormwater line excavation adjacent to Building 44. The material was classified as special (asbestos) waste given the weathered/degraded condition of the fragments, which were unsuitable for on-site treatment via emu-picking.

63. [63]

    On 13 September 2018, JBS&G classified some 260 m3 of asbestos impacted soil in a stockpile, generated from the screening process. The material was classified as special (asbestos) waste.

64. [64]

    On 14 September 2018, JBS&G classified some 30 m3 of asbestos impacted soil from a stockpile, generated from the screening process. The material was classified as special (asbestos) waste, as fibrous asbestos was detected in the soil, which was thus unsuitable for on-site treatment by emu-picking. A further 180 m3 of soil from another stockpile was also classified in the same manner.

65. [65]

    On 13 September 2018, JBS&G classified some 120 m3 of asbestos impacted soil from a stockpile, generated from the screening process. The material contained fibrous asbestos, unsuitable for on-site treatment via emu-picking, and was classified as special (asbestos) waste. A further 8 m3 from another stockpile was similarly classified.

66. [66]

    On 17 September 2018, JBS&G provided a waste classification report in respect of a stockpile of some 8 m3, being asbestos impacted soil sourced from crushed clay granules. The material came from Demolition Zone 7 in respect of Building 13. The material was classified as special (asbestos) waste as fibrous asbestos was detected in the soils and was thus unsuitable for on-site treatment via emu-picking. A further 6 m3 of asbestos impacted soils sourced from unexpected finds, being south of Building 33 to a depth of 0.7 m and south of Building 34 to a depth of 1 m, were classified as special (asbestos) waste given the weathered/degraded condition of ACM fragments. A further 330 m3 were similarly classified from another stockpile generated from the screening process. A further 292 m3 was also so classified.

67. [67]

    On 18 September 2018, JBS&G classified 148 m3 of topsoil scrapings alongside Building 40 to a depth of 0.05m below the ground surface as suitable for site re-use. A further 77 m3 of topsoil scraping south of the Resource Co carpark were also classified as suitable for site re-use.

68. [68]

    On 24 September 2018, JBS&G classified 180 m3 of material in the “geotechnically unsuitable” stockpile as unsuitable for site reuse, where bituminous ACM fragments were noted throughout. The waste was classified as special (asbestos) waste.

69. [69]

    On 28 September 2018, JBS&G classified some 70 m3 of stockpile generated from the on-site screening process as special (asbestos) waste given the detection of fibrous asbestos in the soils. This material appears to have been taken from a stockpile of some 700 m3, which was divided into ten volumes of 70 m3 for assessment purposes.

70. [70]

    On 2 October 2018, JBS&G classified some 480 m3 from the “geotechnically unsuitable” stockpile as suitable for site re-use, after emu-picking ACM fragments and laboratory testing of samples.

71. [71]

    On 3 October 2018, JBS&G classified 7.5 m3 of asbestos impacted soil generated from scraping asbestos impacted topsoil southeast of Building 39. The material was in a weathered condition and unsuitable for on-site treatment via emu-picking. A further 345 m3 from the “geotechnically unsuitable” stockpile were classified as suitable for re-use after laboratory analysis of samples. Mr Molinari said that, if, having scraped this soil, no further asbestos was observed then the area would have been considered to have been remediated.

72. [72]

    On 8 October 2018, JBS&G classified some 70 m3 of stockpile, generated from the on-site screening process, as special (asbestos) waste given the detection of fibrous asbestos in the soils. A further 279 m3 from screened material in the “unsuitable” stockpile was classified as suitable for site re-use following visual inspection and testing. A further 342 m3 appears to have been classified as unsuitable for site re-use (although it is not entirely clear).

73. [73]

    On 9 October 2018, JBS&G provided a waste classification in respect of 22.5 m3 of asbestos impacted soil generated from stormwater backfill south of Building 35 and a surface scrape of 0.1 m deep southwest of Building 33. The material was classified as special (asbestos) waste given the degraded condition of the ACM fragments, making it unsuitable for on-site treatment by emu-picking.

74. [74]

    On 11 October 2018, JBS&G classified 165 m3 of asphalt road and carpark pavements, being the tenanted carpark area, to be excavated and removed as suitable for site re-use.

75. [75]

    On 15 October 2018, JBS&G classified some 200 m3 (based on JBS&G field notes, albeit reported in Liberty’s materials tracking sheet as some 372.9 m3) as suitable for site re-use. The material came from the screened “unsuitable” stockpile. A further 415 m3 (based on JBS&G field notes, compared to Liberty’s materials tracking sheet of 677.7 m3) was also classified as suitable for site re-use. So too was 250 m3 (based on JBS&G field notes).

76. [76]

    On 22 October 2018, JBS&G classified 12 m3 of soil sources from near Building 48 as suitable for site re-use. A further 80 m3 of topsoil scraping near Building 33 was also considered suitable for site re-use. A further 525 m3 from the “geotechnically unsuitable” stockpile was also considered suitable for site re-use after emu-picking ACM fragments and laboratory testing of samples. A further 679 m3 from the same stockpile was also so classified.

77. [77]

    On 23 October 2018, JBS&G classified 18 m3 of soil sourced from a stormwater pit excavation north of Building 44 as suitable for site re-use. A further 200 m3 from the “geotechnically unsuitable” stockpile was classified as suitable for site re-use, as was an additional 90 m3, 270 m3 and 43 m3.

78. [78]

    On 25 October 2018, JBS&G classified some 236 m3 of black asphalt roadways removed from the area south of Buildings 33, 34 and 35 as suitable for site re-use.

79. [79]

    On 29 October 2018, some 108 m3 of topsoil scraping, apparently near Building 34, was considered unsuitable for site re-use. Re-treatment to remove visible ACM fragments by hand-picking was required, due to significant quantities of visible ACM present on the surface of the stockpile. Some 81 m3 of soil re-treated by hand-picking was classified as suitable for site re-use; the soil was in a stockpile in Demolition Zone 10.

80. [80]

    On 30 October 2018, JBS&G classified some 130 m3 (based on JBS&G field notes, as compared to Liberty’s materials tracking sheet which recorded 163.10 m3) as suitable for site re-use. The material came from a screened “unsuitable” stockpile. Given the large size of the fragments, the material could not be emu-picked. The stockpile was divided into portions. A representative volume was selected and “de-clumped” to create individual pads, which were visually inspected and tested. A further 272 m3, (based on JBS&G field notes, as opposed to Liberty’s tracking sheet of 369.7 m3) was also so classified.

81. [81]

    On 2 November 2018, JBS&G provided an asbestos clearance for part of Demolition Zone 7 in Stage 2, which comprised Buildings 7, 46, 47 and 48 footprints and areas of topsoil removed around these buildings, together with areas of topsoil removed east of Buildings 52, 53 and 54. Asbestos had been removed from this area from March to September 2018 by scraping grass covered topsoils and removing redundant underground stormwater infrastructure. During the removal of stormwater infrastructure backfill, materials were assessed for the presence of visible ACM and emu picked where required. Concrete stormwater pits with attached ACM formwork sheeting were removed during the excavation of stormwater infrastructure, being Unexpected Finds 07, 08 and 09. ACM hotspots were identified during the removal of concrete ground slabs for Building 46, including Unexpected Finds 05 and 06. Due to the presence of weathered or degraded ACM and ACM fragments, these soils were disposed of off-site with the ACM impacted concrete formwork. JBS&G concluded that the area was considered safe for civil works. JBS&G also provided an asbestos clearance for part of Demolition Zone 9, comprising the footprints for Buildings 39 and 40, topsoil removal around these buildings and associated stormwater and unexpected finds removal.

82. [82]

    On 5 November 2018, JBS&G provided a waste classification report for a stockpile of some 52.5 m3 containing vegetation and sediments excavated from a concrete swale near Building 33. Asbestos in the form of bonded sheet fragments was observed on the surface of the stockpile, which was classified as special (asbestos) waste.

83. [83]

    On 7 November 2018, JBS&G classified some 55 m3 of soil from stockpiles generated from the on-site screening process as special (asbestos) waste given the fibrous asbestos detected in the soil. This appears to have been taken from a stockpile of 160 m3 stockpiled in Demolition Zone 10 and divided into three volumes of 55 m3 for assessment purposes. A further 110 m3 from the “geotechnically unsuitable” stockpile was classified as suitable for site re-use.

84. [84]

    On 8 November 2018, JBS&G classified some 288 m3 (based on JBS&G field notes) from a screened “unsuitable” stockpile as suitable for site re-use.

85. [85]

    On 12 November 2018, JBS&G classified some 140 m3 of the “geotechnically unsuitable” stockpile as special (asbestos) waste given the presence of fibrous asbestos.

86. [86]

    On 14 November 2018, JBS&G provided a waste classification report for a stockpile of some 264 m3 of asbestos impacted backfill excavated from the Building 13 northern garden beds, uncovered during the removal of the brick footings on the northern end of the building footprint. Non-friable ACM and asbestos fines were observed on the surface of the stockpile, which was classified as special (asbestos) waste. A further 307 m3 was also so classified, being consolidated soil sourced from topsoil scraping within Demolition Zones 7, 8, 9 and 10 to a depth of 0.05 m below the ground surface. Asbestos in the form of bonded sheet fragments was observed on the surface of the stockpile. The results of samples indicated the presence of a contaminant over permitted levels.

87. [87]

    On 16 November 2018, JBS&G provided an asbestos clearance for part of Demolition Zone 7, being Building 13, topsoil removal north of the building and the “geotechnically unsuitable” stockpile footprint which had been to the west of the building.

88. [88]

    On 19 November 2018, JBS&G classified 97 m3 from topsoil scraping alongside Building 40 to a depth of 0.05 m as suitable for site reuse.

89. [89]

    On 20 November 2018, JBS&G provided a waste classification report in respect of some 24 m3 of soil from topsoil scraping near Building 37, to a depth of 0.05 m below the ground surface. The material was classified as special (asbestos) waste as asbestos fines were detected, unsuitable for on-site treatment via emu-picking. A further 288 m3 from a stockpile generated from the screening process, designated as “geotechnically unsuitable”, was also designated as special (asbestos) waste. ACM had been widely identified in the stockpile. Due to the large clay clumps present in this stockpile, not all soils could be visually assessed and, as a conservative measure, asbestos in the form of non-friable ACM was assumed to be within the stockpile. A further 346 m3 was also classified in the same manner for the same reasons. A further 428 m3 from the “geotechnically unsuitable” stockpile and geotechnically unsuitable topsoil materials were classified as suitable for site re-use. Some 13 m3 of topsoil scraping near Building 37 was unsuitable for site re-use and required re-treatment to remove ACM by hand-picking.

90. [90]

    On 21 November 2018, JBS&G classified some 64 m3 of asbestos impacted soil generated from a surface scrape to 0.1 m deep adjacent to Building 39 as special (asbestos) waste. Fibrous and weathered asbestos was observed.

91. [91]

    On 22 November 2018, JBS&G provided a waste classification report in respect of some 70m3 of soil generated from the screening process and designated as “geotechnically unsuitable”. The soil came from near Building 34. Due to large clay clumps present in the stockpile, not all soils could be visually assessed and, as a conservative measure, asbestos in the form of non-friable ACM was assumed to be within a stockpile, which was classified as special (asbestos) waste. A further 3,860 m3 from the “geotechnically unsuitable” stockpile was considered suitable for site re-use. Some 26 ACM fragments were observed over a surface area of approximately 3,000 m2. All visible ACM was picked. Asbestos samples did not detect asbestos fines above site criteria.

92. [92]

    On 23 November 2018, some 324 m3 from the “geotechnically unsuitable” stockpile was classified by JBS&G as suitable for site re-use, as was a further 528 m3 and 181 m3.

93. [93]

    On 29 November 2018, JBS&G classified 24 m3 of material sourced when excavating an unexpected find of concrete stormwater pits with ACM formwork near Building 39, to a depth of approximately 1m below the ground surface, as suitable for site re-use. A further 300 m3 from a topsoil scrape around the rail spur, and designated as geotechnically unsuitable, was also classified as special (asbestos) waste. Bonded asbestos sheet fragments were observed on the stockpile, which was poorly sorted and included sticks, grass, roots, blue metal and concrete with minor ACM. A further 1,142 m3 from the “geotechnically unsuitable” stockpile was classified as suitable for site re-use after emu-picking of ACM fragments and laboratory testing. So too was a further 704 m3, 536 m3, 681 m3 and 229 m3.

94. [94]

    On 11 December 2018, JBS&G classified 32 m3 from a surface scrape of ACM fragments east of Building 33 to a depth of 0.1 m, and surface scrapes at validation sample locations to 0.1 m deep. The material was classified as special (asbestos) waste.

95. [95]

    On 13 December 2018, JBS&G gave an asbestos clearance for part of Demolition Zone 9 comprising the footprint of Building 37, the topsoil removed from that building and Building 39, as well as stormwater and unexpected finds removal. Some 24 m3 of soil sourced from excavation of the unexpected find to a depth of approximately 1 m below the ground surface, being concrete stormwater pits with ACM formwork encountered during the removal of stormwater pipes, was considered for site re-use.

96. [96]

    On 19 December 2018, JBS&G provided an asbestos clearance of the eastern half of the Building 16 footprint, concluding that the area was safe for civil works to recommence, following the work undertaken by Liberty Industrial in October and November 2018. A “geotechnically unsuitable” stockpile had been created, inspected and assessed. Various ACM impacted stockpiles were loaded-out. Bituminous insulated pipes on the western side of the building had been cleaned up, removed and disposed of. These metal pipes were found stockpiled with building waste on the western portion of the building slab. An underground tank storage room, which had contained underground storage tanks that had been removed at an earlier time, was also removed from the north-eastern portion of the building footprint.

97. [97]

    On 20 December 2018, JBS&G gave an asbestos clearance for part of Demolition Zone 10, which comprised Buildings 31 to 35. The consultant noted that Liberty Industrial had undertaken the removal works from July to December 2018, scraping grass-covered topsoils, excavating asbestos impacted backfill materials from redundant underground services including stormwater infrastructure, removing ACM hotspots, removing ACM underground services including telecommunications pits, stormwater concrete pit ACM formwork and bituminous ACM insulated metal pipes, treating “geotechnically unsuitable” and ACM impacted soil by mechanical screening and emu-picking. Various unexpected finds were identified during these excavation works. During the removal of stormwater infrastructure backfill, materials were assessed for the presence of visible ACM and emu-picked when required. Following treatment by screening and emu-picking of “geotechnically unsuitable” stockpiles of ACM impacted soil stockpiles, processed materials were assessed by JBS&G for the presence of visible ACM. Laboratory sampling was also conducted to determine the presence of asbestos fines in processed material. When required, additional re-processing of bonded ACM impacted materials was carried out by emu-picking and then reassessed by JBS&G. Off-site disposal for “geotechnically unsuitable” material or material impacted with asbestos fines above the site criteria was undertaken when required. JBS&G concluded that the area was safe for civil works.

98. [98]

    On 31 December 2018, JBS&G classified 644 m3 of soils from the “geotechnically unsuitable” stockpile as suitable for site re-use after emu-picking of ACM fragments and laboratory testing of samples. A further 705 m3 was also so classified.

99. [99]

    On 24 January 2019, JBS&G provided an asbestos clearance for Demolition Zone 8, comprising the footprints of Buildings 42 to 45, areas of topsoil removal surrounding these buildings and a concrete roadway south of Buildings 44 and 45. The consultant noted that three unexpected finds of stormwater line, comprising ACM formwork sheeting on the outside of a concrete stormwater pit, had been appropriately removed.

100. [100]

     On 25 January 2019, JBS&G classified 548 m3, 495 m3 and 840 m3 of soil from the “geotechnically unsuitable” stockpile as suitable for site re-use.

101. [101]

     On 30 January 2019, JBS&G classified some 205 m3 from the “geotechnically unsuitable” stockpile as suitable for site re-use. Original assessment of the stockpile found asbestos fines above the site criteria in the southern portion of the stockpile, which was disposed off-site. The remaining surfaces of the stockpile identified no visible ACM and samples were tested in the laboratory. A further 640 m3, 660 m3, 158 m3, 243 m3, 357 m3 and 856 m3 from the same stockpile was also classified as suitable for site re-use.

102. [102]

     On 31 January 2019, some 273 m3, 470 m3, 423 m3, 552 m3, 475 m3, 554 m3 and 682 m3 from the “geotechnically unsuitable” stockpile was classified by JBS&G as suitable for site re-use.

103. [103]

     On 1 February 2019, JBS&G classified some 5 m3 of soil sourced from a stormwater pit excavation near Building 35 as suitable for site re-use. A further 10 m3 sourced from a stormwater pit excavation near Building 35 was also considered suitable for site re-use. The ACM was treated by emu-picking. Associated ACM containing pits were separated for off-site disposal. Following ACM treatment, visual inspection and asbestos quantification sampling did not identify ACM within the excavated soil. Some 400 m3 from topsoil scraping within the southern burial area, to a depth of 0.05 m below the ground surface, was also classified as suitable for re-use.

104. [104]

     Also on 1 February 2019, JBS&G classified some 672 m3, 572 m3, 672 m3, 677 m3 and 429 m3 from the “geotechnically unsuitable” stockpile as suitable for site re-use after removal of ACM fragments by emu-picking and laboratory testing of samples.

105. [105]

     On 18 February 2019, JBS&G classified some 565 m3, 483 m3, 1,012 m3, 696 m3 and 978 m3 of soil from the “geotechnically unsuitable” stockpile as suitable for site re-use.

106. [106]

     On 19 February 2019, JBS&G assessed 580 m3 from a topsoil stockpile, sourced from Stage 1, as suitable for site reuse, albeit minor ACM was observed on the surface of the stockpile and thus it was possible that fragments would be encountered when the material was reused. A further 1,585 m3 of topsoil sourced from Stage 1 was also so classified. A further 300 m3 from the “geotechnically unsuitable” stockpile was considered unsuitable for site re-use. Re-treatment to remove ACM fragments by hand-picking was required, given the significant quantities of visible ACM present on the surface of the stockpile. A further 252 m3 from the “geotechnically unsuitable” processed stockpile, with soils re-treated by hand picking, was classified as suitable for site re-use.

107. [107]

     On 22 February 2019, JBS&G gave an asbestos clearance for part of the access road to Warehouse 5, following the removal of a concrete roadway.

108. [108]

     On 1 March 2019, JBS&G classified some 30 m3 of a stockpile of material generated from Stage 2 lead excavation as special (asbestos) waste given the detection of asbestos fines during laboratory assessment.

109. [109]

     On 4 March 2019, JBS&G provided an asbestos clearance for the area referred to as the Resource Co carpark following the removal of the concrete pavement by Liberty Industrial. No visible ACM was observed during the removal of the concrete pavement or on the surface of the soil following removal. The area was safe for civil works to recommence.

110. [110]

     On 12 March 2019, JBS&G classified 204 m3 of topsoil sourced from a secondary scrape east of Building 45 as suitable for site re-use, albeit noting that it was possible that ACM fragments would be encountered when the material was reused.

111. [111]

     On 13 March 2019, JBS&G gave an asbestos clearance for a further portion of the access road to Warehouse 5 following the removal of the concrete roadway.

112. [112]

     On 18 April 2019, JBS&G provided a waste classification in topsoil and vegetation scraping in the former ecological endangered communities area within Demolition Zone 10, south of Resource Co carpark. Some 200 m3 was classified as general solid waste. No ACM was observed.

113. [113]

     On 23 April 2019, JBS&G classified some 84 m3 of excavated material in a stockpile, from a lead contamination hotspot east of the rail spur at the south of the site. The material was classified as special (asbestos) waste, where ACM fibres and fragments were observed during excavation of the hotspot.

114. [114]

     On 24 April 2019, JBS&G classified a further 80 m3 of topsoil and vegetation scraping within the former ecological endangered communities area within Demolition Zone 10, as well as to the east of the adjacent rail spur, south of Resource Co carpark. The material was classified as special (asbestos) waste, where two ACM fibre cement fragments were observed on a stockpile.

115. [115]

     On 29 April 2019, JBS&G provided an asbestos clearance for the former Endangered Ecological Communities and surrounding area, following the removal of trees and stripping of vegetation and topsoils. No visible ACM was observed on the surface of the soil. The area was considered safe for civil works to recommence. A further asbestos clearance was given to Buildings 17 and 18; no visible ACM was observed on the surface of the soil. The area was considered safe for civil works to recommence.

116. [116]

     On 3 May 2019, JBS&G gave asbestos clearance for the rail spur in the southern portion of the Stage 2 site, following the removal of the rail spur infrastructure, vegetation and topsoils and the lead contamination hotspot excavation works as identified by GHD. During excavation of the lead contamination hotspot, ACM fragments were identified in the fill materials. The excavated soils were stockpiled and remove elsewhere. The area was considered safe for civil works to recommence.

117. [117]

     On 20 June 2019, some 54 m3 of material generated from the lead excavation during benching of the excavation during backfill works, and topsoils and vegetation scraping south of the Fulton Hogan compound and west of the rail spur, was classified as general solid waste.

118. [118]

     On 26 June 2019, JBS&G classified 205 m3 from topsoils and vegetation scraping within the southern rail spur area. Visual assessment and laboratory analysis indicated asbestos fibre cement fragments. The material was classified as special (asbestos) waste.

119. [119]

     On 15 July 2019, JBS&G provided an asbestos clearance for the rail spur in the southern portion of the Stage 2 site, following the removal of the rail spur infrastructure including rails and ballast material. A vegetation scrap was also undertaken. No visible ACM was observed on the surface of the soil.

120. [120]

     On 22 July 2019, JBS&G gave an asbestos clearance in respect of the compaction pad removal area north of Sediment Basin 10 and south of topsoil stockpiles 1 and 2, located in the southeast portion of the Stage 2 site. The inspections followed the removal of soil from the compaction pad area. Vegetation was removed. The area was considered safe for civil works to recommence.

121. [121]

     On 5 August 2019, JBS&G assessed a stockpile of material generated from topsoils and vegetation scraping within the rail spur area. Some 205 m3 was assessed as suitable for site re-use.

122. [122]

     On 6 August 2019, JBS&G gave an asbestos clearance following the topsoil stripping and removal of an asbestos impacted stockpile 3Z in the Environmental Protection Zone in the southeast portion of Stage 2. The topsoil was not observed to be impacted with asbestos impacted material. The area was safe for civil works to recommence.

123. [123]

     On 23 August 2019, JBS&G confirmed that the final validation results following the excavation of lead impacted soils in historical test pit ‘TP062’, located adjacent to the rail spur in the southern portion of the site, complied with the Contamination Management Plan. This area had been identified by GHD in 2015 as a potential lead hotspot and management of the lead impacts had been addressed within the Contamination Management Plan and had been dealt with accordingly. All temporarily stockpiled material had been suitably classified for off-site disposal. The lead excavation area was considered suitable for continued commercial/industrial land use.

124. [124]

     On 19 October 2019, a further unexpected find of fragments of ACM was encountered during excavation of a stormwater pipe trench. The unexpected find was managed in accordance with the Contamination Management Plan. The ACM fragments were removed. During that clearance inspection, a further two fragments were identified and removed.