Hub Action Group Incorporated v Minister for Planning and Orange City Council

Land and Environment Court (NSW)|2008-07-01|Before: Preston CJ, Mr J, Mr P

The Applicant [Orange City Council] shall prepare and implement a Waste Minimisation Strategy for the Cabonne and Orange LGAs to the satisfaction of the Director-General. This strategy must:

(a) be submitted to the Director-General for approval prior to the commencement of operations;

(b) be prepared by a suitably qualified and experienced expert whose appointment has been endorsed by the Director-General;

(e) classify the different waste streams in each LGA, and establish baseline data for each waste stream;

(f) establish short (3 years), medium (6 years) and long term (20 years) waste minimisation/diversion targets for each of these waste streams with the medium term target to be not less than 55% waste minimisation/diversion averaged across all waste streams;

(g) determine the maximum amount of waste (tonnages) on an annual basis that would be disposed of to landfill in the short and medium term;

(h) describe what measures would be implemented to meet these targets, and minimise the amount of waste being disposed to landfill; and

(i) include a program to monitor the effectiveness of these measures, and whether the targets are being met.

The Applicant shall comply with the waste minimisation/diversion targets in the Waste Minimisation Strategy, or any alternate targets or comparable requirements imposed by DECC or the Director-General following a review of the results of each independent environmental audit (see conditions 7-9 of schedule 4)." 111 The Action Group proposes a number of modifications to these conditions of consent. However, they do not propose a radical alteration of the structure of these conditions. These modifications are to be seen in their proposed revised conditions in these terms: "Waste Minimisation Strategy

The Applicant [Orange City Council] shall prepare a Waste Minimisation Strategy for the Cabonne and Orange LGAs to the satisfaction of the Director-General. This strategy must:

(a) be submitted to the Director-General for approval prior to the commencement of operations;

(b) be prepared by a suitably qualified and experienced expert whose appointment has been endorsed by the Director-General;

(c) be prepared in consultation with DECC; (d) set the strategic framework for waste management in both LGAs over the next 20 years;

(e) classify the different waste streams in each LGA, and establish baseline data for each waste stream;

(f) establish short (3 years), medium (6 years) and long term (20 years) waste minimisation/diversion targets for each of these waste streams with the medium and long term targets to be not less than 55% waste minimisation/diversion averaged across all waste streams;

(g) determine the maximum amount of waste (tonnages) on an annual basis that would be disposed of to landfill in the short, medium and long term;

(h) describe what measures would be implemented to meet these targets, and minimise the amount of waste being disposed to landfill; and

(i) include a program to monitor the effectiveness of these measures, and whether the targets are being met.

(j) be accompanied by an undertakinq from Cabonne Shire Council to implement the measures recommended in the Waste Minimisation Strategy for the Cabonne LGA.

At all times when they are using the site for disposal of waste from their LGAs, the Applicant and Cabonne Shire Council shall implement the Waste Minimisation Strategy and comply with the waste minimisation/diversion targets in the Waste Minimisation Strategy, or any higher targets, imposed by DECC or the Director-General following a review of the results of each independent environmental audit (see conditions 7-9 of schedule 4)." 112 Orange City Council's response to the first of these conditions of consent, on the other hand, is to propose an alternative approach based on a detailed statement of commitments contained in appendix 11 to its proposed version of the conditions of consent. Orange City Council's version of these conditions is: "Waste Minimisation Strategy

The Applicant [Orange City Council] shall implement the Waste Minimisation Strategy set out in Table A the Statement of Commitments at Appendix 2 [sic, should be 11]. This strategy may be revised with the approval of the Director-General in consultation with DECC, and must be reviewed annually by the Applicant to determine whether its targets have been and are likely to be met. Any revision of the strategy is not to set a lower target than 55% diversion of waste from landfill. This revision is in addition to the review and revision of the strategy, which may be necessary as a result of the Independent Environmental Audit under schedule 4 below." 113 Orange City Council adopted the Minister's version of the second of these conditions.

114 In this context, I have been provided with copies of contracts which have been entered into between Orange City Council and its waste collection contractor. These contracts permit the extension of the service to a third bin for the kerbside collection of garden organics. It is upon these contracts and community education programmes presently undertaken (and to be expanded) by the Councils and the contractor that Orange City Council relies as the basis for enabling compliance with the waste minimisation strategy conditions.

115 It is appropriate that I note that Orange City Council's statement of commitments contains a wide ranging list of topics coupled with desired outcomes, proposed actions and the timing of such actions as set out in the various parts of this table. My concerns here do not relate to specific items but to the framework itself.

116 There are a number of fundamental problems with both the approach in the Minister's and Action Group's versions of the conditions and the alternative embodied in Orange City Council's versions of the conditions. These problems do not relate to the matters that might be contained in such a strategy or to the commitment of Orange City Council to the pursuit of environmental goals - I am satisfied that there is a genuine policy and operational commitment by Orange City Council to the pursuit of waste minimisation and diversion from landfill.

117 The first problem concerns the fundamental nature of a development consent. A development consent runs with the land. It is not personal to the original applicant to whom it is given but enures for the benefit of subsequent owners and occupiers: Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 324; Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637; Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 at 513. In Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 293, Stephen J further observed that:

"First, although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor…."

118 Hence, conditions of consent should relate to the land and its development and be capable of implementation by whomever is the person carrying out the development on the land.

119 Each of the parties' versions of the proposed conditions of consent oblige "the Applicant" to implement the specified waste minimisation strategy in both Orange and Cabonne local government areas. The applicant is currently Orange City Council. However, if the person carrying out the development were to change, for instance because of a change in ownership or occupation, the obligation would be transferred to the person carrying on the development. A person other than each Council would be incapable of performing such an obligation in the respective local government areas.

120 No doubt in recognition of this fact, each party's proposed conditions of consent include a condition (condition 18 - Management) that "the development shall be managed at all times by the Applicant". The intent of this condition is that even if there is a change in ownership or occupation of the land, the Applicant (defined to be Orange City Council) must continue to manage the development. The period of this obligation certainly extends throughout the period of active operation of the landfill (40 years) but also continues afterwards during post-closure rehabilitation and on-going monitoring and maintenance, including the leachate which continues to be produced after closure of the landfill. There is no end point for this latter work.

121 This condition therefore imposes a non-transferable, non-delegable, personal obligation on Orange City Council that endures for a long period of time, perhaps indefinitely. Such an obligation is contrary to the fundamental nature of development consents which are not personal to the original applicant. I have serious doubts as to the power of a consent authority to grant development consent which imposes a non-transferable, non-delegable personal obligation on an original applicant requiring that person to continue managing the development for its life and perhaps indefinitely. But even if there is power, it is an undesirable condition.

122 Secondly, the parties' proposed conditions require Orange City Council to implement the specified waste minimisation strategy not only in its own local government area, but also in Cabonne local government area. Orange City Council has no power to do so directly in any local government area other than that of which it is the local government authority. Orange City Council, therefore, would seek to do so by entering into contractual arrangements with Cabonne Shire Council whereby Cabonne Shire Council would need to fetter the future exercise of its discretionary functions in relation to provision of waste services in its local government area. The legality of such contractual arrangements is in serious doubt: see, for example, Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 at 74-76 and Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17.

123 The proposed conditions of consent do not impose the obligation to implement the specified waste minimisation strategy on Cabonne Shire Council. In any event, there would not be power to do so given that Cabonne Shire Council is not an applicant and is not an owner of the land.

124 Independently of the issue of power, there has been no evidence from Cabonne Shire Council upon which I could be satisfied that Cabonne Shire Council has the dedicated commitment, institutional capacity and necessary resources to implement the specified waste minimisation strategy. I am unable to be satisfied, therefore, that Orange City Council, notwithstanding its best endeavours, will be able to discharge the obligation to ensure the implementation of the specified waste minimisation strategy in Cabonne local government area.

125 Thirdly, the proposed conditions of consent requiring the implementation of the specified waste minimisation strategy in the two local government areas may not have sufficient nexus with the development proposed so as to satisfy the second limb of the Newbury tests requiring conditions of consent to fairly and reasonably relate to the proposed development: Newbury District Council v Secretary of State of the Environment [1981] AC 578 at 599, 607-608, 619 and 627 and see also Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at 55 [57], 59 [72], 87 [155].

126 Devising and implementing a waste minimisation strategy may well be a desirable object but its desirability exists independently of any particular proposal for a waste disposal facility. There is nothing about this particular waste disposal facility proposed for this particular site, as opposed to any other one, which necessitates devising and implementing the specified waste minimisation strategy. As Callinan J observed in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at 87 [155], the second limb of the Newbury tests requires that the condition "must be a condition, not simply justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case " (emphasis in original).

127 For these reasons, I am not satisfied that the proposed conditions requiring the implementation of waste minimisation strategies in Orange and Cabonne local government areas can or should be imposed. Yet these conditions are critical to enable the proposed development to achieve sustainability. The proposed development would not yield all of the claimed environmental benefits without implementation of the waste minimisation strategy in both local government areas. Furthermore, I am not satisfied on the evidence that, even if the conditions were to be imposed, the waste minimisation strategy would be able to be implemented successfully in Cabonne local government area.

128 Having regard to the foregoing reasons for concluding that the development application should be refused, it is unnecessary to deal with the other issues raised by the Action Group (issues 2, 3, 4 and 5).

129 For the reasons I have given above, development consent should not be granted to this particular proposal for a waste disposal facility at this particular site. This conclusion does not mean that another proposal at another site would not be acceptable. It also should not be taken to imply any criticism of Orange City Council's policy and commitment to achieving sustainability and waste minimisation. It is simply a conclusion specific to this particular development on this particular site.

130 I acknowledge the considerable assistance of Commissioner Moore in this appeal.

Development Application DA 95-4-2005 for the construction and operation of the "Hub" Regional Resource Reprocessing Facility and associated infrastructure on Lot 10 DP 1034198 at the corner of Euchareena and Shades Creek Road, Molong is determined by refusal of development consent.

02/04/2008 - agriculture changed to agricultural - Paragraph(s) 69

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CITATION : Hub Action Group Incorporated v Minister for Planning and Orange City Council [2008] NSWLEC 116 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Bungendore Residents Group Inc v Palerang Council & Anor (No 3) [2007] NSWLEC 251 Clifford v Wyong Shire Council (1996) 89 LGERA 240 Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 CASES CITED: Franklins Ltd v Penrith City Council [1999] NSWCA 134 Hortis v Manly Council (1999) 104 LGERA 43 Manly Council v Hortis (2001) 113 LGERA 321 Newbury District Council v Secretary of State of the Environment [1981] AC 578 Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 Winn v Director-General of National Parks and Wildlife Service (2001) 130 LGERA 508

(2008) 161 LGERA 136

(1998) 100 LGERA 365

(2001) 113 LGERA 321

(2001) 130 LGERA 508

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