Findings
187The key difference between these submissions is that the Minister focuses on the community concerns as representing the public interest, whereas the Applicant deals with the broader aspects of public interest. The Minister's submissions also give weight to the issues of visual impact and land use conflict raised in the community submissions on the basis that these issues are supported by expert evidence.
188Clause 8B of the Regulations requires the DGs Report to include:
(b) any aspect of the public interest that the Director General considers relevant to the project,
...
(d) copies of submissions received by the Director General in connection with public consultation under Section 75 H or a summary of the issues raised in those submissions.
189Section 5.6 of the DGs Report considered the public interest aspects of the Preferred Project. It states:
Generally, the 'public interest' relates to the overall welfare of the community as a result of a proposal. The Department considers there are two levels of public interest to assess in relation to this project. Firstly, the interest of the broader community of Sydney and NSW in relation to resource recovery, and secondly, the welfare of the community surrounding the site.
The Project involves recycling and resource recovery of significant amounts of waste that would otherwise go directly to landfill. The Department acknowledges that the proposal is generally consistent with the State Government's waste policies in this regard, and would serve the broad public interest by diverting waste away from landfill for the majority of the project's life.
However, as discussed earlier in 'project need', the Department does not agree with the Proponent's claims that a non-putrescible landfill of this scale is needed in this particular region, at this time. Therefore the Department does not consider this particular project, at this scale, serves the broader public interest in this regard.
The submissions reveal that the community surrounding the site believe that there is insufficient justification for a landfill / waste facility of this scale at Patons Lane Orchard Hills, and the project is 'not in their interest'. Further, the proposal under consideration has been unanimously opposed by the community's own Council and Council staff.
Following submission of the Preferred Project report, the Environmental Assessment predicts that the Project would comply with all necessary amenity criteria (e.g. noise and air quality, with the exception of one exceedance). The Department acknowledges the efforts the proponent made following the public exhibition to address potential exceedances. Whilst accepting the technical findings of the assessment, as explained above, the Department is still not confident that the Project will operate without incident, particularly in relation to noise. The risk is high. In addition, if approved, the project would require close regulatory scrutiny over a sustained period, which is a significant impost on government at both a State and local level.
The Department further acknowledges that it is in the public interest to rehabilitate the site, and that there are a number of unfortunate legacy issues to deal with on the site as well. However, whilst the project represents a particular means of rehabilitating the site, as discussed above, the Project would result in an unsightly final landform, inconsistent with the surrounding landscape, which is unacceptable. As discussed in section 5.2, this is a negative outcome of the project that the community would have to endure in perpetuity.
Conclusion
The Department has considered the issue of the public interest closely. The assessment reveals there are no obvious amenity benefits to the surrounding residents as a result of the Project, only impacts in the short, mid and long term. On balance, the Department does not consider the public benefit of an additional resource recovery facility outweighs the impacts that the proposal would have on the surrounding community. As a consequence, the Department does not consider the Project is in the public interest.
190The DGs Report recognises the public benefit of providing a resource recovery facility and of rehabilitating the site but considers these benefits are outweighed by the concerns relating to the need for a project of the scale then proposed, which is also not supported by the community, as well as the potential to exceed controls, such as noise and the unacceptable final landform.
191As discussed above, the FMP Project has largely addressed the concerns raised in the DGs report. It has significantly reduced the amount of landfill and consequently the need for the project is no longer raised as a contention. The impacts such as noise, air quality and contamination are also agreed by the experts to be within acceptable limits and are no longer pressed as contentions. The final landform is also agreed by the experts to be acceptable.
192Nevertheless, the community submissions are a relevant consideration in their own right and as an important aspect of the public interest.
193As discussed above, there have been a significant and increasing number of submissions made in response to each exhibition of the Project. The FMP Project attracted 18,210 community submissions. The applicant notes that of these, 15 were individual submissions and the majority were proforma letters. The proforma letter described the development as being "to establish an industrial waste resource management facility". It made no reference to the other proposed uses or to the existing approval for the site or to its current condition.
194Nonetheless, we acknowledge that the community is opposed to the proposed development. If the number of submissions and the strong community opposition were the only aspect of public interest that we had to consider, then there may be strong reasons why the application should be refused.
195Although the application is under Part 3A of the Act, the consideration of Lloyd J in New Century Developments provides guidance as to the appropriate weight to be given to community submissions. His Honour at [61] - [64] states:
61 In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area (Dixon at [53]). In Broad, de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use.62 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act (Newton v Wyong Shire Council, NSWLEC, McClelland J, 6 September 1983, unreported, Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79 at 93 per Hemmings J; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 per Cowdroy J). Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear (Dixon at [71]).63 It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. This is consistent with the statement of Mason P in Fairfield City Council v Liu at [2] that "... the demonstrable social effect of a particular ...use is relevant under s 90(1)(d) [now section s 79C]" (see also Dixon at [48]).64 The assessment of the specific objections raised by the local residents shows that the concerns raised by them, objectively assessed, must be afforded little weight. As is shown by the consideration of the specific objections, discussed above, they appear to have little basis in fact.
196The Minister submits that the residents' concerns regarding land use conflict and visual impact are supported by expert evidence and therefore have a justified foundation and should be given weight. For the reasons we have discussed above, we have found that neither the visual impact of the proposal nor the potential land use conflicts would warrant its refusal.
197The community raise concerns regarding a number of other matters such as noise, air quality, traffic and contamination. These issues were resolved by expert evidence and not pressed by either the Minister or the council as reasons for refusal, other than as contributing to potential land use conflicts by impacting on residential amenity. As discussed above, we accept that the proposal will effect the amenity of the area. However, the experts have agreed that the effect, when measured against the established objective criteria, is acceptable.
198We note that the proposed truck movements will impact on the amenity of 202 Luddenham Road, which adjoins Patons Lane. However, the truck movements are not beyond what is anticipated for a sub arterial road and the Acoustic Report concluded that the operational traffic noise levels at this property (the potentially most affected) are well within the relevant criteria. A condition is proposed which requires that landscaping be provided, if agreed to by the owner, to minimise visual and acoustic impacts of the proposal. The condition should also include the requirement for fencing.
199The issues raised in the community submissions would therefore not, of themselves, warrant refusal of the application.
200Consistent with the DGs Report and the submissions of the applicant, the public interest is broader than the community submissions and requires a balancing of the competing issues. While we acknowledge the strong community concern regarding the project, we consider that the significant changes that have been made to the project address the concerns raised in the DGs Report. On balance, we find that the benefits in the FMP Project of progressive remediation, extraction of clay/shale resources, reprocessing and recycling, land filling and the return of the site to a final landform which is visually acceptable and in character with the local area outweigh the impacts during the life of the proposal on the surrounding community. We therefore find that the proposal is in the public interest.
Other issues raised by council
201In its submissions, council raised concerns that an approval of the FMP Project would not ensure that proper planning outcomes are achieved or provide terms of approval that are enforceable. Council's submissions are largely based on the premise that while the real and potential impacts of the proposal are known the method of dealing with these impacts relies on further management plans and the implementation of conditions of consent. Council submits that "certain aspects of the proposal, its conduct and management (i.e. what is to be done and how it is to be done) are yet to be formulated". Any consent would therefore be uncertain and difficult to enforce. The Minister did not make a similar submission.
202The applicant is seeking consent for the development in the FMP Project Report and its supporting documents. Both the Minister and the council originally raised contentions in relation to the provision of further information, however these were not pressed as the required information was provided. The information that forms the project application has been assessed by the relevant experts and relevant public authorities that have recommended conditions of approval. These conditions include the relevant criteria that the development is to meet and the requirement for management plans which provide greater detail as to how the development is to operate to ensure that the criteria are met.
203The management plans are to be prepared by independent experts, in consultation with relevant authorities and approved by the Director General prior to the commencement of site establishment. These management plans cover matters such as contamination and asbestos, air quality and greenhouse gas, soil water and leachate, noise, traffic and rehabilitation.
204A number of these management plans are included in the recommended conditions of approval provided by the OEH. The applicant submits that management plans are a usual requirement for a landfill/extraction development and that there is nothing unusual about the recommended conditions of the OEH. We accept this submission.
205The Court's Practice Direction for Class 1 Appeals and the Directions made on in relation to the conduct of the hearing required the Minister to prepare Draft conditions of approval prior to the hearing. These conditions were amended during and after the hearing in response to expert evidence and agreements between the parties. Council has been part of this process, and it has had the opportunity to raise any concerns about the certainty or enforceability of any of the proposed conditions.
206The conditions, other than the conditions discussed below, are agreed between the parties. The disputed conditions include the documents that should be included in Schedule 6 and we accept that further amendments need to be made to this and other conditions before any consent can be granted.