Wollongong City Council has again become involved with a private waste disposal and recycling facility that it later found was violating the terms of its development approval.
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The Wollongong Recycling facility at Kembla Grange had been operating a development footprint significantly in excess of what was allowed, a council investigation found.
The joint investigation, with the Environment Protection Authority last year, found unlawful structures erected, works conducted too close to the watercourse, unauthorised wastewater treatment, an unauthorised weighbridge and an unapproved access road built, the council said.
The council had been a customer of the facility from late 2012 until March 2014, when it eventually inspected the site. Soon afterwards the council stopped using the facility and took legal action against the operators, who were fined $35,000.
The council had been warned about the activities since 2013, in letters from a Sydney lawyer and planning expert, John Whitehouse, a partner at law firm Minter Ellison.
The situation was similar to one revealed by the Mercury in 2011, when the council was found to have been using an unauthorised waste management and recycling facility on environment-zoned land at Helensburgh, run by Blackwell Bros.
That site, also operating beyond the terms of its approval, was investigated by the council and the EPA.
Wollongong Recycling and Building Supplies at Kembla Grange is also operated by the Blackwell family.
They are now in the process of seeking major project approval through the NSW Planning Department to significantly expand the capacity and scope of the facility to 230,000 tonnes per year - a move which could retrospectively give approval to the unauthorised development.
This week, director Adam Blackwell told the Mercury the facility "would comply" with development regulations.
"Any development application for the Kembla Grange Resource Recovery Facility will be carefully considered," he said.
"The state planning policy, legislation and regulations will be fully complied with."
Later an email from Mr Blackwell and his lawyer said the development was operating within its conditions.
"We believe info provided to you is incorrect and the law firm in question should send their submissions to council or state planning," the email said.
"Our environmental engineers and planning team have been working through any questions pac have and all is ok.
"We do not believe that the development is exceeding its allowed conditions, however we will look into it immediately."
The Mercury understands "pac" could refer to Patrick Auto Care, the recycling site's neighbour, which has objected to Wollongong Recycling's proposed expansion, or it could refer to the Planning Assessment Commission.
The Mercury asked Mr Blackwell if the problems identified in 2014 had been rectified - but did not receive an answer.
Asked the same question, the council said it did not know if the rectification works had been completed. An application to modify the approval conditions had been lodged with the council last October, so any action to enforce the rules was put on hold until the modification is determined.
"A review of compliance will be undertaken by council's regulation and enforcement and EPA staff once a decision regarding the modification [has] been made," a spokeswoman said.
This week Wollongong Recycling remained busy with a large number of trucks entering and leaving, having deposited various building waste.
The council spokeswoman said WCC was "not in a conflicted position" as it had taken action.
"Following our joint inspection of the site in late March 2014 we ceased to be a customer of Wollongong Recycling in April 2014 and took regulatory action against Wollongong Recycling in court in June 2014 regarding the businesses non-compliances with the approved development consent," she said.
Mr Whitehouse is one of the state's foremost planning experts and was a co-author of NSW's Environmental Planning and Assessment Act, the Land and Environment Court Act and the Heritage Act.
A series of correspondence from 2013 between him and the council, and obtained by the Mercury, shows Mr Whitehouse telling the council it would be acting illegally if it were to grant a new consent to the development once it had already been operating unlawfully. He complains the council has not responded to his earlier letters in 2013.
On Friday, the council said it had acted after the letters arrived, and inspected the facility the following year.
"The letters in part were written as an objection to the DA but also raised allegations of non-compliance with existing approvals," a council spokeswoman said.
"This DA was subsequently withdrawn on 26 September 2013. Following this, council started a thorough investigation into the allegations and co-ordinated with the EPA around relevant agency responsibilities.
"This work led to a joint inspection in March 2014 and a successful local court prosecution in June 2014."
