Hunter Development Brokerage Pty Limited trading as HDB Town Planning and Design v Singleton Council

The Modification Application

1. The original modification application was lodged with Council on 3 November 2020.
2. The Applicant commenced these class 1 proceedings appealing against Council's deemed refusal on 7 May 2021.
3. On 18 August 2021, the Applicant was granted leave to amend the modification application and to rely upon amended plans and documents in the proceedings. The modification application (as amended) was then re-exhibited between 31 August 2021 and 27 September 2021.
4. On 29 October 2021, the Applicant was granted leave to further amend the modification application and rely upon further amended and additional documents in the proceedings. The amended class 1 application was filed with the Court on 8 November 2021. The modification application (as further amended) was then re-exhibited between 9 November 2021 to 7 December 2021. The further amended modification application is the application to which the determination of this appeal relates and references to the Modification Application refer to the application in the form of the further amended Modification Application for which leave was granted (Modification Application).
5. The Council filed a Further Amended Statement of Facts and Contentions identifying the background facts and the contentions in the proceedings as they related to the Modification Application on 24 November 2021 (SOFAC). The Applicant filed its reply to the SOFAC on 30 November 2021 (Reply SOFAC).

Proposed modifications

1. As expanded upon below, the primary modification proposed by the Modification Application is the introduction of biomass as a supplementary source of fuel for the operation of the Redbank power plant. Other modifications that are proposed arise from the proposal to introduce the additional fuel source or to facilitate the use of the additional fuel source.
2. No modifications are proposed to be made to the site administration buildings, boiler plant, steam turbine, ash handling plant, switchyard and electrical transmission equipment, cooling water systems, steam and water systems, Hunter River water make-up and discharge systems, control system equipment, the electrical generation capacity of the power station, hours and operation and shifts, and the connection to the electricity grid.
3. The Modification Application proposes to expand the permissible source of fuel so that either coal washery tailings (in BDT form as was approved by the 1997 Modification) or biomass from "forestry and sawmilling residues" or "uncontaminated wood waste" according to the EPA's Eligible Waste Fuel Guidelines can be utilised. Whilst the conveyor system for bringing coal tailings and run-of-mine (ROM) coal will remain in place, coal tailings and biomass are not able to be utilised simultaneously.
4. The feedstock for the biomass is generally proposed to be sourced from within 300 km of the Site, although according to documents contained in the Modification Application, this radius could expand depending on economic considerations.
5. Paragraphs [3]-[6] of the SOFAC describe the proposed modifications in the following terms: 3. Modification Application No. 5.1993.183.2 proposes to modify the development consent to allow biomass material to be burned as an additional fuel source for the electricity power plant, including for up to 100 per cent of the fuel for the power plant ("the modification application"). 4. The Planning Report prepared by Urbis dated 25 October 2021 accompanying the modification application (as amended) identifies that it is proposed to amend the description of the development, Conditions 1, 16 and 34 (as amended by the Court on 27 March 1997) to read as follows (with deletions marked in strike through and insertions marked in bold): (a) Description of the development: "Development consent is granted to the construction and operation of a power plant on land being part lots 1-3 DP 247820 and lots 4-5 DP 247820 at Long Point Road and Jerrys Plains Road, Warkworth, and to the construction and operation of ancillary tailing collection, fuel delivery and storage, preparation and transportation facilities and ancillary water and ash transportation facilities on site and adjacent land including land within consolidated coal lease 753 as specified in development application No. 183/93 as modified in the information contained in the prepared statements of Roy Alper and Thor Hibbler of February 1997, and as modified in the information referenced in condition 1 and subject to the conditions annexed hereto and marked "A". (b) Condition 1: "The development being carried out generally in accordance with the Amended Environmental Impact Statement prepared by the National Power Company and ESI Energy Inc. dated November 1993 and the additional clarification contained in the responses to comments prepared by the National Power Company and ESI Energy Inc. dated 21 February 1994 and the information regarding improvements to the development contained in the prepared statements of Roy Alper and Thor Hibbler of February 1997 as amended by:1. The modifications to the plant and equipment to enable Biomass fuel firing, including the receival, storage and materials handling of Biomass fuel, as described in the Redbank Power Station - Description of Proposed Modifications for Conversion to Fire Biomass Fuels by B&PPS dated 20 October 2021 and as shown in green on B&PPS engineering drawings No. C12198-000-010; C12189-000-100, C12198- 000120, C12198-000-130, C12198-000-140, C12198-121-105, C12198-121-110, and C12198-121-111; and 2. The modifications to traffic management arrangements on the site to limit the direction of traffic flow to one direction rather than two as described in the Operational Traffic Management Plan by Ason Group dated 20 October 2021. 3. The modifications to manage stormwater on the site as described in the Water Cycle Impact Assessment of Changing Biomass Fuel at Redbank Power Station by Sustainability Workshop Ltd dated 21 October 2021. 4. The modifications to lighting described in the Lighting Assessment by Tigerlight dated 21 October 2021'; Where there is any inconsistency between the Amended Environmental Impact Statement and associated documents and those referenced above then the latter documents will prevail." (c) Condition 16: "At least the majority of the fuel burnt at the power plant in any one year after commercial operation, on a dry tonnes basis, is to be derived from either: (a) coal washery tailings obtained either directly from the Warkworth mine washery washeries or indirectly from tailings storage dams on the Warkworth mine lease. Coal washery tailings are not to be obtained from mines other than the Warkworth without the further approval of Council, or (b) biomass fuel classified as Biomass from Forestry and Sawmilling Residues or Uncontaminated Wood Waste in the EPA's Eligible Waste Fuel Guidelines (2016)." (d) Condition 34: "Satisfactory arrangements are to be made with the Department of Mineral Resources and Warkworth Mine for final rehabilitation of ash emplacement at Warkworth Mine." 5. It is also proposed to delete Condition 33 concerning the removal of ash from the site. 6. The specific details of the proposed modified development are summarised as follows. Source of the biomass (a) A maximum of 850,000 tonnes of biomass are to be burned at the plant per annum. (b) The proposed biomass feedstock will comprise "forestry and sawmilling residues" and "uncontaminated wood waste" as identified in the NSW EPA Eligible Waste Fuel Guidelines. The feedstock is generally proposed to be sourced from within 300km of the site. (c) Biomass fuel is proposed to be prepared to meet plant specifications at off-site locations and then transported to the site. (d) It is not proposed to co-fire biomass and coal tailings. (e) The submitted Redbank Power Station QA/QC, Supply Chain and Material Handling Report ("QA/QC Report") estimates that approximately 70 per cent of the biomass to be sourced for the plant can be obtained from "approved forestry residues", 15 per cent from sawmill operations and 15 per cent from uncontaminated wood wastes by weight. (f) The Planning Report identifies that the plant will retain the ability to use coal tailings as fuel and that it is expected that no changes to the plant will be required to re- commence the use of coal tailings. Deliveries to/from site (g) Biomass is proposed to be delivered to the site by B-double trucks up to 70 times per day (140 movements) (with potentially an additional 4 truck movements for the transport of ash from the site as discussed in Contention 5 below). (h) Ash from biomass is proposed to be taken from the site by B-double trucks up to 3 times per day. (i) Ash from the burning of beneficiated dewatered tailings ("BDT") and run-of-mine ("ROM") is also proposed to be trucked from the site. Modifications to plant operations and infrastructure (j) Biomass will be delivered to the site 6 days per week (excluding Sundays and public holidays) between the hours of 6:00am and 6:00pm. (k) Conveyor CV 76 will be extended from the existing crusher house to feed existing Conveyor CV 34. (l) Conveyor CV 34 will be modified to feed Boiler Unit 1 only, and CV 35 will be modified to feed Unit 2 only. (m) Coal chutes will be replaced with reversing conveyors in the boiler silo area. (n) The boiler storage silos will be modified by removing the bottom section and trouser legs, which will be replaced with a cylindrical section inclusive of rotating discharge augers. (o) The furnace fuel feeders will be modified by removing the current stock feeders and replacing them with screw feeders, as well as reopening the pneumatic fuel distributors to their original dimension. (p) The tailings crushing plant will be removed because coal tailings received on site in the future will be required to meet site specifications upon delivery, (q) The existing fire detection and protection system will be extended. (r) Additional dust collection will be installed and the existing dust suppression system will be upgraded. (s) Incoming and outgoing vehicular weigh bridges will be installed. (t) Asphalt pavement and equipment to facilitate the unloading of B-double trucks will be provided adjacent to the current coal tailings stockpile area, including 2 mobile dual lane truck unloaders, 2 radial tele stackers feeding into the stockpile facility and 2 moving floor bulk loader bins. (u) The tailings stockpile area will be used as the unloading and stockpile facility for biomass. Residual ash management (v) It is estimated that the burning of biomass in the plant will produce ash at a volume of approximately 3 to 5 per cent of the feedstock, which equates to approximately 134 tonnes of ash or 3 truckloads per day. (w) The burning of coal would produce an estimated volume of 115,776 tonnes per annum (or 321 tonnes per day) of ash based on past performance. (x) It is proposed that B-doubles delivering biomass to the site be configured to carry ash generated from both biomass and coal tailings/ROM coal to approved off-site location(s) to be re-used as a soil or fertiliser amendment in accordance with the NSW EPA's The Ash from Burning Biomass Order 2014 and The Coal Ash Order 2014, respectively. The QA/QC Report (and Waste Management Plan prepared by Jackson Environment and Planning dated 15 October 2021 ("Waste Management Plan")) notes that if the ash from coal tailings is found not to meet the requirements of The Coal Ash Order 2014, an application will be made for a resource recovery order and exemption to allow the "beneficial reuse of ash in appropriate applications to ensure that human health and the environment are protected at all times."
6. In addition to the matters identified above, works are proposed to be undertaken on the internal roadways at the Site to accommodate the movement of biomass delivery trucks on the Site including new traffic management arrangements to limit the direction of traffic flow to one direction rather than the existing two-way movements.

Issues in dispute

1. The Council has by way of the SOFAC raised a number of issues for determination contending that a consideration of those contentions (either alone or together) would warrant refusal of the Modification Application. Contention 1 raises the question as to whether the proposed development is substantially the same, the remaining contentions raise matters going to the merits of the Modification Application.
2. Both parties accepted that satisfaction that the Modification Application was substantially the same was a precondition to the consideration of the merits and determination of the Modification Application. It is appropriate that such an issue be determined first and, if so satisfied, then turn to the determination of the merits of the application. If the development is not substantially the same the statutory precondition to the exercise of power has not been met and, therefore, a consideration of the merits will not arise.
3. Contention 1 of the SOFAC provides: Development Not Substantially the Same 1. The modification application must be refused because the development as proposed to be modified will not be substantially the same development as the development for which the consent was originally granted as required by section 4.56(1)(a) of the EP&A Act. Particulars (a) Section 4.56(1)(a) of the EP&A Act provides as follows (with emphasis added): "4.56 Modification by consent authorities of consents granted by the Court (cf previous s 96AA) (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)…" (b) Section 4.56(1)(a) requires that the consent authority be satisfied that the development as proposed to be modified (in this application, the "proposed modified development") is "substantially the same development" as the development the subject of the consent granted by the Court on 10 November 1994 ("the original development"), and not the modified consent granted on 27 March 1997. (c) When compared to the original development, the proposed modified development has the following significant differences: (i) The introduction of biomass as a fuel source, which was not contemplated by or assessed in the granting of the development consent. Biomass and coal tailings are entirely different feedstocks, with the former being derived broadly from the forest ecosystem and the latter being from geosphere reservoirs. (ii) The potential (and likely) use of 100 per cent biomass to fuel the plant to the complete exclusion of coal tailings. (iii) Where coal tailings are to be used, they cannot practically be sourced from the Warkworth and Lemington mines having regard to what is said in the QA/QC Report and the Redbank Power Station QA/QC, Supply Chain and Material Handling Addendum Report dated 15 October 2021 ("QA/QC Addendum Report"). (iv) There will therefore be no amelioration of the problem of coal tailings disposal at the Warkworth and Lemington mines, which was the principal claimed environmental benefit of the original development. (v) Greenhouse gas emissions from the burning of biomass that will have a greater unacceptable impact on the atmosphere because they are instantly emitted but not concurrently removed (as described in Contention 8 below) in circumstances where the climate presently has a far reduced tolerance for emissions. (vi) The proposed modified development involves the haulage of biomass fuel by road, where the original development involved the transport of tailings fuel primarily by pipelines from the Warkworth and Lemington mines, with only supplementary fuel being delivered by road haulage. (vii) The proposed modified development would be dependent for supply upon the forestry industry, which is subject to ongoing policy change and inconsistent supply. This is acknowledged in various documents accompanying the modification application (as amended) where it is noted that suppliers will vary from year to year, and particularly in the QA/QC Report and QA/QC Addendum Report as discussed in Contention 4 below. (viii) The proposed modified development will produce significantly different and unquantified impacts associated with the delivery of biomass to the site via road haulage as opposed to the delivery of coal tailings to the site via direct pipeline, including greenhouse gas emissions arising from the operation of delivery trucks and impacts upon the operation and integrity of various State and local roads (as discussed in Contentions 5 and 8 below). (ix) The proposed modified development will require an increase in the amount of fuel required from approximately 700,000 tonnes of tailings annually to a maximum of 850,000 tonnes of biomass annually (with potentially more being required depending on the moisture content of the fuel to be used as discussed in Contention 10 below). (x) The proposed modified development will involve fundamentally altered arrangements for the treatment of waste products (comprising ash), which had previously been conveyed to the mines for rehabilitation works/emplacement. Condition 33 of the development consent had also specified that any alternative arrangement for the regular transfer of ash by road haulage was required to be subject to separate approval by the Respondent. The ash from both biomass and coal tailings is now proposed to be conveyed by road haulage to unspecified locations for use as a fertiliser. (d) The use of coal tailings obtained from the Warkworth and Lemington mines for fuel and the associated environmental benefits was a fundamental, if not inherent, component of the originally approved development that is sought to be undone by the modification application.
4. The determination of this Contention requires an examination of the development consent as originally granted (before the later modifications), namely the development the subject of the 1994 DC and then a comparison of that consent to what is proposed in the Modification Application.

Relevant legislative provisions

1. The source of the power to enable the application to be approved is s 4.56 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) which relevantly provides: (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and … (1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

Evidence

1. An inspection of the Site of the existing Redbank power plant was undertaken in the company of the parties' representatives and their experts.
2. A number of submissions had been received in connection with the exhibition of the Modification Application. The written submissions were tendered in evidence. In addition, oral evidence was adduced from the following witnesses who gave evidence primarily in connection with the merits of the Modification Application, and to some extent touched on matters relating to the issues for consideration under Contention 1: 1. Jacqui Mumford, representing the Nature Conservation Council of New South Wales; 2. Dailan Pugh representing the North East Forest Alliance; 3. Virginia Young representing the Colong Foundation for Wilderness; 4. Frances Pike representing the Australian Forests and Climate Alliance Inc; 5. Jan Davis representing the Hunter Environment Lobby; and 6. Martin Faulding in his private capacity as a local resident.
3. Evidence was adduced from a number of experts relating to matters going to the merits of the Modification Application. To the extent that the evidence touched upon factors that enabled an assessment of whether the development as proposed to be modified was substantially the same as that originally approved that evidence was given by: 1. For the Applicant: 1. Clare Brown on town planning; 2. Ken Hollyoak on traffic; 3. Ronan Kellaghan on air quality and greenhouse gas emissions; 4. Dr Annette Cowie on ecologically sustainable development; 5. Mark Jackson on fuel supply and waste management; 6. Professor Mark Adams on forest science; 7. Dr Rhidian Harrington on ecology; and 8. Dr Victor Fattoretto on acoustics. 1. For the Council: 1. Stuart McDonald on town planning; 2. David England on traffic; 3. Professor Brendan Mackey on climate and ecologically sustainable development; 4. Hugh Saddler on greenhouse gas emissions; and 5. Dr Stephen Phillips on ecology.
4. There was disputed evidence between the parties' experts as to whether biomass was 'waste' produced and also whether it produced the same/more/less greenhouse gas when burned as fuel. For the reasons upon which I have determined the issue relating to Contention 1 it has not been necessary for me to resolve the disputes insofar as they relate to this evidence. Such matters will remain live issues for determination in the event that the Applicant seeks to pursue a development application for the use of biomass as a fuel source.
5. The evidence relating to the terms of the 1994 DC and the scope of the Modification Application was largely documentary.

What was the development for which development consent was originally granted?

Evidence - original consent

1. It was the common position of the parties that the scope of the 1994 DC comprised: the order of the Court and conditions together with the documents that were incorporated in that development consent by express reference.
2. Order 2 of the Court's orders described the development to which development consent was granted as: 2. Development consent is granted to the construction and operation of a 120 megawatt power plant on land being part of lots 1-3 DP 247820 and lots 4-5 DP 247820 at Long Point Road and Jerrys Plains Road, Warkworth, and to the construction of an ancillary slurry pipeline over adjacent land as specified in development application No 183/93, and subject to the conditions annexed hereto and marked "A".
3. The conditions to which Order 2 referred included condition 1 which provided: 1. Scope of Development The development being carried out generally in accordance with the Amended Environmental Impact Statement prepared by the National Power Company and ESI Energy Inc dated November 1993 and the additional clarification contained in the responses to comments prepared by the National Power Company and ESI Energy Inc dated 21 February 1994.
4. The documents to which express reference was made in the 1994 DC were, in particular, those identified in condition 1. From that material, whilst voluminous, the parties took the Court to a limited number of the documents tendered. Of those documents, particular attention was placed upon the matters that follow.
5. The Amended Environmental Impact Statement (EIS) referred to in condition 1 identified the proposed development as: 1.1 The Project * The Project, which is planned to be located near the Warkworth and Lemington Mines (refer to Figures 1.1-1 and 1.1-2), would use coal washery tailing as fuel. Combustion converts the tailing into a lesser quantity of inert soil-like material useful, among other things, for restoring areas disturbed by mining. Subject to final commitment from each mine, the fuel would be supplied from Warkworth and Lemington. If committed, this would provide the mines with an alternative means of permanent tailing disposal. It is proposed that electricity generated by the plant would be sold under long-term contract to Shortland Electricity. Subject to final commitments on behalf of Warkworth and Lemington Mines and Shortland Electricity, and the obtaining of all necessary planning and environmental permits and authorisations, it is proposed to commence construction of the Redbank Project in the second half of 1994. 1.2 Project Objectives * There are three major objectives of the Project: Efficient utilisation of natural resources - coal tailing, which has a usable energy content, is currently discarded. The Project would use this energy to produce approximately 120 megawatt (MW) of electricity, the net output of which (currently estimated at about 100 MW) would be sold to Shortland Electricity. This is enough energy to supply approximately 100,000 homes with electric power on a continuous basis. Introduction of an alternative, environmentally responsible method of tailing disposal - Commencing in 1996 the Project would consume 80% and 100% of the daily tailing production of the Warkworth and Lemington Mines respectively. This would significantly reduce the amount of new tailing requiring emplacement in tailing dams and help reduce the inventory of old tailing stored in current dams. In addition, the application of fluidised bed combustion would produce a dry (stable) ash for use in land reclamation. Design and operation in a manner that minimises environmental impacts - the Project would incorporate a number of features to reduce impacts to the environment. These include air emissions control (and monitoring of sulphur dioxide emissions) as well as noise abatement.
6. The clarification in the Responses to Comments on the Amended Environmental Impact Statement to which condition 1 referred provided no material change to the proposal as identified in the EIS but did provide comments responding to submissions and, inter alia, the following comments (at p 4): The primary reason for implementing the Redbank Project is that it provides an improved method of tailing usage (efficient utilisation of energy resources) and ultimate deposition (stable, long-term emplacement). On net the Project provides significant environmental benefits and will demonstrate that the use of a clean combustion technology can help to eliminate a serious long-term environmental problem while providing minimal environmental impacts of its own.
7. The EIS then proceeded to detail the manner and processes that would be undertaken to achieve the described project and project objectives. There were no plans approved as part of the development consent other than some generalised schematics and indicative drawings that formed part of the EIS. However, the EIS did include a process flow schematic.
8. It is also apparent from the EIS and the conditions imposed upon the original consent that with respect to some aspects of the proposed development: 1. Concept or performance-based controls were proposed with the precise details as to how such goals were to be met to be determined through later applications to other authorities; 2. Alternative means of addressing certain impacts or providing for elements of the plant were identified but an election as to which alternative would be adopted was not made. By way of illustration of this fact the Applicant's town planner Ms Clare Brown observed at [1.67-1.69] of Exhibit 6: 1.67 CB considers that neither the development application nor the approval as issued provide a high degree of certainty regarding the operation or layout of the Project many aspects of the Project were preliminary and subject to commitments of others (Warkworth and Lemington mines) or further approvals. While the major features of the Project are set out in section 2.5 of the amended EIS they are based on conceptual level engineering and it is stated at page 2-9 that "As engineering efforts proceed, changes or adjustments may be made in plant layout and arrangement, equipment and processes." 1.68 CB notes that the process drawing details in Figure 2.5-1, 2.7-1, 2.7-2, 2.9-1 are schematic drawings only showing engineering processes. CB further notes that Figures 2.10-1, 2.10-2, 2.10-3 and 2.10-4 showing the plant layout and site arrangements are schematic, do not include legends or scales and are not labelled. 1.69 CB further notes that elements of the Project were not set in terms of the consent. For example, the stack height which is identified in the amended EIS as being between 50- 60 metres was as stated by condition 25 to be in accordance with the requirements of the Environment Protection Authority. In terms of ash emplacement, it is noted that condition 34 requires that satisfactory arrangements are to be made with the Department of Mineral Resources and Warkworth mine.
9. Section 2.0 of the EIS contained the Project Description which identified factors such as the selection of: the combustion system; fuel resource and project sizing; and project siting. Each of these factors, with the exception of the project siting, discussed the factor as it related to coal tailings. As to the project siting the proximity to the mine sites and proximity to transmissions lines as well as other considerations were discussed. Thereafter, the EIS identified the basic design of the project observing (inter alia) at section 2.5: The descriptions of the major features of the Redbank Project provided below are based on conceptual-level engineering completed to date. As engineering efforts proceed, changes or adjustments may be made in plant layout and arrangement, equipment and processes. Fuel for the plant would consist, primarily, of coal washery tailing supplied directly from the coal preparation plants, supplemented as necessary from the existing tailing dams and supplemental fuel stockpile. Fuel would be transferred by slurry pipeline from the Warkworth and Lemington washeries (and, as needed, from the Warkworth and Lemington tailing dams) to the Project site via slurry pipeline. The major equipment was identified with the observations relating to fuel supply and materials handling stating (inter alia) at section 2.6.1: Fuel Supply and Materials Handling The tailing management and dewatering system would furnish the operating power plant with its requirements of fuel in accordance with its needs, including reliability of supply. The fuel supply system would consist of: Continuous delivery of dewatered tailing to the boilers at a design capacity of 120-140 tonnes per hour (dry solids basis) at concentration of at least 68% solids by weight; On-site tailing live slurry storage adequate for approximately 96 hours of operation at nominal plant output; On-site storage of low grade coal or selected coarse reject or other solid fuel as supplemental fuel, reclaimable by front-end loader. Typically, this "supplemental fuel" would be used to supplement or substitute for a part of the tailing during equipment malfunctions and/or due to low-quality tailing. The supplemental fuel or similar low-grade coal would also be used for startup of the boilers and, thus, the power plant. The startup coal would be used after initial firing with oil or Liquified Propane Gas (LPG) for a few hours when heating or reheating the boiler system for startup. The anticipated processes and project requirements was thereafter outlined in the remaining parts of section 2 of the EIS.
10. In addition to these matters, the following conditions imposed upon the original consent: 16 Fuel Source At least the majority of the fuel burnt at the power plant in any one year after commercial operation, on a dry tonnes basis, is to be coal washery tailings obtained either directly from the Warkworth and/or Lemington mine washeries or indirectly from tailings storage dams on the Warkworth and/or Lemington mine leases. Coal washery tailings are not to be obtained from mines other than the Warkworth and Lemington Mines without the further approval of Council. 17 Start Up and Supplementary Fuel Start up and supplementary fuel, other than diesel, is to be obtained only from the Warkworth Mine. Alternative sources may be utilised in emergency situations with the approval of the Director Environmental Services. 18 Project Siting The plant is to be sited on Site 2, the centre site, as recommended in the EIS. 33 Removal of Ash Any proposal to transfer ash by road on a regular basis is to require the separate approval of Council. 34 Arrangements for Rehabilitation of Ash Emplacement Satisfactory arrangements are to be made with the Department of Mineral Resources and Warkworth Mine for the final rehabilitation of ash emplacement.

Evidence - Modification Application

1. The evidence of the changes proposed by the Modification Application were also largely documentary.
2. The Applicant provided, in tabular form, summaries of the evidence indicating the relevant changes to the processes and plant as a comparison between: the 1994 DC; the development as modified in 1997 and as constructed; and the Modification Application. Whilst there was little dispute between the parties as to the factual elements of these physical features and process features of the Redbank power plant as identified in the different stages of its approval process, the fundamental dispute remained as to whether the changes comprised an alteration such that the Modification Application was not substantially the same as the 1994 DC.

Applicant's submissions

1. The Applicant submitted that in order to undertake the necessary task required by s 4.56 it is essential that the focus be on a comparison of the whole of the development as originally granted and compare that development to the whole of the development as proposed to be modified, including a consideration of those elements that do not change. It is an error to focus solely on one element of the development, namely fuel type, as to do so is to undertake a task not authorised by the relevant legislative provisions.
2. Inherent in the power to permit a development consent to be modified is that there will be a consequential change from that which was originally approved, otherwise there would be no need to modify the consent. The provision that permits the modification has been observed to be both beneficial and facultative.
3. The relevant "test" for determining whether a modification should be modified is that contained in the legislation itself, and judicial decisions are not substitutions for the legislative texts, however some relevant judicial guidance can assist in understanding the legislative text: see Arrage v Inner West Council [2019] NSWLEC 85 at [18]-[22] (Arrage). Decisions of the Court have suggested that substantially the same means essentially or materially having the same essence. The verb "modify" in context means "to alter without radical transformation": see Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 421 (Ilenace).
4. The identification of the essential elements, however, should be determined having regard to the development itself and not from the circumstances or context in which the original consent was granted. The resultant comparison requires a consideration of the whole of the development as originally granted and as proposed by the modification.
5. In this case, the essence of the whole of the development remains unchanged. It is and will remain an electricity generating work - a power station in which super-heated steam is produced from combusting calorific fuels to turn a turbine that generates electricity fed into the Singleton to Kurri 132kVA transmission line to power at least 100,000 homes.
6. Approval of this application means the essential processes involved in the generation of electricity and its supply to the grid are not modified. The parts of the power station that need to be physically modified are minor. The environmental impact of the modification is not transformed let alone radically so. Change in air quality is not issue; there is no change in water balance or treatment; staffing; hours of operation; noise impact; power output; visual impact; stormwater runoff; and there is no clearing of vegetation.
7. It is only the range of permissible calorific fuels to provide the heat to the two boilers that is proposed to be modified. With that change there will be a change to the fuel delivery method from conveyor and truck for coal tailings to truck only for biomass. Whilst it is true that trucks will travel state roads to collect and deliver biomass, using the lawful routes for B-double trucks, the local roads in Singleton Shire will not be impacted and have the capacity to carry the trucks. Long Point Road and the Golden Highway have the capacity to support B-double truck traffic and the intersection of those two roads has already been upgraded under the 1994 DC.
8. On-site handling of fuel to be able to unload biomass from trucks and transfer it to stockpiles is a de minimis change. Stockpiles of supplementary coal become stockpiles of biomass. They are in the same place and of similar footprint and height.
9. The right to combust coal tailings from Warkworth, Lemington or other coal mines remains unmodified.
10. As the physical nature of the development is not modified the environmental impacts, such as the visual impacts, the noise created, the water management systems, the waste management systems, dust generation and the like, are each unchanged.
11. The fact that different fuel may be delivered and combusted gives rise to the possibility that stack emissions and air quality impacts might be different. However, whilst the stack emissions will continue, the impact upon ambient air quality is improved when the plant burns biomass as compared to coal.
12. If the proposed development uses biomass, the vehicular traffic generation would be modified. Under the 1994 DC, the majority of the fuel for the development was required to come from the Warkworth or Lemington Mines in the form of tailings by condition 16. Fuel was also permitted to be brought from other mines, in that instance by road, with "further approval of Council". The Council presumably wanted to retain some control over traffic routes used by trucks in that event. Thus, the original development contemplated and allowed importation of fuel by truck using the road network, subject only to "further approval". The requirement to obtain further approval did not involve obtaining development consent under the EP&A Act. Therefore, the position has not materially changed.
13. The situation is similar to that in Reading Properties Pty Ltd v Auburn Council (2007) 158 LGERA 116, where consent was granted to development of a cinema and retail complex, but a condition required further approval from council for the occupation of individual shops. Shops subsequently became a prohibited use, but it was held that the council could nevertheless still grant the approvals required under the condition. The right to seek further approval was preserved. The approval was not one consequent on making a statutory application to modify the consent under the EP&A Act.
14. Similarly, under the Development Consent as it stands and without any modification, condition 16 always permitted fuel to be brought to the Site by road. Whilst that fuel would be coal tailings or supplemental fuel and not biomass, for the purpose of comparing the environmental impact of traffic generated under the original consent, bringing biomass to the Site by road is no different to bringing coal to the Site by road. The alternate source of the fuel in the form of coal tailings and supplemental fuel was not identified in the 1994 DC.
15. Even with the change to the traffic, the expert evidence of the traffic engineers does not identify any traffic impact that would deprive the Court of jurisdiction to grant the modification sought. Nor do the experts identify a merit matter that would persuade the Court to refuse consent.
16. The only other potentially different environmental impact arising from granting the modification is the change in greenhouse gas CO2 emissions. The Applicant relies on the evidence of Dr Cowie.
17. Notwithstanding the physical modifications to the plant, it is a relatively simple matter to reconfigure the conveyor systems to take coal tailings from Warkworth Mine again in the future. A construction certificate may be required to reconfigure the conveyors - that is all. The ability to take coal tailings is price dependant. If the tailings are too expensive then the Applicant cannot produce power at a profit and the development would go into care and maintenance mode. At present tailings are exported overseas at a high price. Given the provisions of s 4.56 are beneficial and facultative the Court ought to be positively satisfied that the development will be substantially the same if modified, as that which was originally approved.

Council's submissions

1. This state of satisfaction must be based on a correct understanding of the development that was approved under the original 1994 DC. In the present case, there were no stamped plans approved under the original consent. Instead, the original consent required that the development was to be carried out "generally in accordance with the Amended Environmental Impact Statement". It also contained some specific conditions which further defined the scope of the development, including condition 16 which required that at least the majority of the fuel burnt at the power plant was to be coal washery tailings, and condition 17 which specified that supplemental fuel could only be obtained from the Warkworth Mine.
2. The EIS authoritatively describes the development to which consent was granted, because condition 1 expressly requires that the development be carried out "in accordance with" the EIS. This is not a case like Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1 (HIRE) in which the EIS was not expressly referred to in the consent, but even where the EIS is not expressly referred to, it is appropriate to look at an EIS for designated development to determine the scope, nature and operation of the development. As Preston CJ of LEC said in HIRE at 68: ….An environmental impact statement is not merely information supporting a development application for designated development, but is a critical part of the development application necessary to enliven the power of the consent authority to determine the development application… …[R]eference may legitimately be made to… [the EIS]… in order to identify the nature, extent and other features of the development…to which consent has been granted.
3. When that was done, the Court of Appeal declined to characterise the development as a quarry (by reference to the works involved in extracting the resource) but instead as a quarry "for the purpose of winning material primarily for railway ballast".
4. In the present case, the purpose of the development is to dispose of coal tailings by using them as fuel and disposing of the residue ash for remediating the mines, not merely to generate power, and to source the fuel from the adjoining mines, either as a washery product or from existing tailing dams. No description of the approved development would be complete without reference to this purpose, and the works (conveyors, pipes etc) to achieve it.
5. The absence of approved plans under the original consent means that the Court cannot, as it usually would, compare two sets of plans to quickly ascertain the differences between the two proposals, but this does not remove or make uncertain any finding under s 4.56(1).
6. Beyond purpose, the Court can compare the two proposals by comparing the reasonably well-defined characteristics of the original proposal as set out in the original EIS against the final set of characteristics which the proposal will have if the modification is granted. Characteristics which can be compared without the benefit of plans include the type of fuel which will be burned, how the fuel will be transported to the Site, how fuel will be handled on the Site, whether the fuel will be processed on the Site and the addition or deletion of pieces of infrastructure such as the slurry pipelines and thickeners. The Respondent's Development Comparison Schedule itemises these changes.
7. The expression "substantially the same" has been held to mean "essentially or materially having the same essence": Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 at 4 (Vacik).
8. In Arrage Preston CJ of LEC also endorsed the view expressed by Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at 309 [62] that comparing the environmental impacts of the two proposals was a permissible way of identifying whether two development proposals were substantially the same.
9. It follows that in the present case, it is relevant for the Court to not only compare the purpose of the development, or the physical differences between the original and modified proposals, but also the context in which the original consent was granted and the different environmental impacts of each proposal.
10. It was an essential characteristic of the power plant the subject of the original consent that it involved the burning of coal tailings as fuel. This aspect was given prominence in the environmental assessment documents lodged with the original development application. For example, the second paragraph of the Executive Summary of the Amended EIS states: The Redbank Project would burn coal washery tailing supplied by the Warkworth and Lemington Mines as fuel in a pair of fluidised bed combustion boilers. The Redbank Project would provide an alternative means of permanent tailing disposal. Electricity generated by the Project would be sold under long-term contract to Shortland Electricity. It is notable that in this description, the objective of providing an "alternative means of permanent tailing disposal" is mentioned before the objective of generating electricity. It is also notable that the proposal is described throughout as a "Project" rather than as a power station. This is consistent with the proposal being an integrated set of activities directed both at disposing of coal washery tailings and generating electricity, rather than as a power station per se.
11. This impression is reinforced by the "objectives" of the proposal: see [31] above. These objectives give prominence to the disposal of coal washery tailings. Electricity generation is only mentioned in the first objective as a beneficial means of using the energy from coal tailings rather than as an objective in its own right. There is further, more detailed discussion of the mining operations from which the tailings will be sourced, and volume of available coal tailings at pp 1-5 to 1-6 and 2-2 of the EIS (Exhibit 1).
12. Section 5.0 of the EIS addresses "alternatives to the proposed project". All of the alternatives discussed in this section are alternative methods of tailing disposal, rather than alternative methods of electricity generation. This shows that the main driver of the proposal was tailings disposal rather than electricity generation.
13. In physical terms, the transporting of coal washery tailings through slurry pipelines, and the processes of thickening and dewatering necessary to make the tailings suitable for use as fuel formed an important aspect of the original proposal. These operations are described in the EIS at pp 2-2, 2-9 to 2-13 and pp 2-24 to 2-28. A schematic including this process can be seen at Figure 2.5-1 of the EIS. The slurry pipelines were approved as part of the original consent, notwithstanding that the proponent had not committed to a final route for either pipeline. Regardless of the route taken, they were large and significant pieces of infrastructure. The Lemington to Redbank pipeline was proposed to be 6.65 km long, while the Warkworth to Redbank pipeline was proposed to be 1.33 km long.
14. Neither of these pipelines were ever built because when the fuel source changed from tailings in slurry form to beneficiated dry tailings (BDT), pipelines ceased to be a feasible method of transport. The proposal to use tailings from the Lemington Mine was also deleted as part of the 1997 Modification. Nevertheless, the pipelines formed part of the original proposal for the purposes of s 4.56(1).
15. The deletion of the slurry pipelines means that the modified proposal as a whole will not be located on the same "land" as the original proposal. The original consent was granted for Part of Lots 1-3 DP 247820 and Lots 4-5 DP 247820 and "adjacent land". The general size and shape of the approved power plant site in the original consent roughly corresponds to the land on which the plant has actually been constructed and on which it is proposed to operate under the 1997 Modification. However, approval of the slurry pipelines on "adjacent land" extended the development site for the original consent many kilometres beyond the boundaries of the current site.
16. The location of the Site relative to its fuel sources is also an important characteristic. The site of the original proposal was obviously chosen primarily based on proximity to the Warkworth Mine, both as a source of fuel and the location to which the ash waste would be returned. Three possible sites were considered in the EIS, but all of them adjoined the boundary of the Warkworth Mine as it then was. While other factors were considered in choosing between these three sites, no sites were considered which were not adjacent to this boundary. By contrast, no evidence has been adduced that the Site offers any advantage over any other site in the north coast forestry region for access to forest residues. Fuel for the modified proposal is to be sourced from a radius of up to 300 km, and the destination of waste ash has not been specified.
17. In addition to the slurry pipelines, the original proposal involved thickening and dewatering units, which were designed to concentrate the coal washery slurry to at least 65-70% solids by weight, to make it rich enough to sustain combustion. These pieces of equipment were in fact never installed, due to the substitution of BDT fuel approved by the 1997 Modification. The removal of these processes from the Site is shown by a dotted line around them in the Process Flow Schematic at p 11 of the Statement of Roy Alper and Thor Hibbler (Exhibit 1). The absence of these important pieces of equipment forms another point of difference between the original and the modified development.
18. Since the primary fuel for the original proposal came by pipeline from adjacent mining operations, the original proposal was predicted to have negligible traffic impacts. The only regular daily trips likely to be generated by the original proposal were employee vehicles, tradespeople and salespeople, and the occasional delivery of spare parts. This was predicted to result in 60-85 movements per day, most of them light vehicles. Periodic deliveries of supplemental fuel were predicted to add another 100 return truck trips per day during delivery periods, but only for about 40 days each year. By contrast, all of the biomass proposed to be burnt in the modified power station will need to be delivered by truck. This is predicted to generate up to 148 truck movements per day, six days per week, in addition to employee vehicles.
19. That the proposal would provide an environmentally responsible method for disposing of coal tailings was a factor heavily relied upon by Pearlman CJ in deciding to approve the original proposal. Her Honour described this as the "principal reason" for the project when summarising the proponent's arguments at p 149. Her Honour also quoted from a NSW Office of Energy Report which advocated the generation of energy from coal tailings as a means to solve some of the State's most serious waste disposal problems, and to avoid the sterilisation of up to 600 ha of land per annum in tailings dams.
20. In her conclusion, Pearlman CJ carefully considered whether the proposal should be refused on the grounds of greenhouse gas emissions. Her Honour accepted that there was national and international concern with the enhanced greenhouse effect, and with the energy sector's contribution to it. Her Honour also accepted that the precautionary principle applied and warranted a cautious approach. Nevertheless, her Honour decided to approve the proposal because of its countervailing environmental benefits. These benefits were described as follows: 1. Redbank pointed to the beneficial environmental effects of the project. It will use tailing as fuel, thereby avoiding the detrimental environmental effects of tailing disposal in dams. It will produce lower emissions of SO2 and NOx in comparison with the coal-fired power stations which it is likely to displace. 2. There are other beneficial effects as well. The project will reduce the amount of land sterilised by tailing dams. It will convert a waste product into a usable one. It will permit more efficient use of energy resources by recovering coal currently discarded in tailing. 3. All of these benefits, with the possible exception of lower SO2 and NOx emissions, rely on the fuel source of the plant being coal tailings. They will all be lost if the fuel source changes to biomass. This is another important factor which shows that the original proposal and the modified proposal are not substantially the same development.
21. The physical changes associated with the proposed modification are not insignificant. In the B&PPS Report Appendix C, the Applicant has presented a series of drawings in which the proposed modifications are marked up on plans of the Redbank power plant as built. However, these plans do not accurately depict the extent of the changes between the original proposal and the modified proposal, because the proposal was built in accordance with the 1997 Modification. However, the B&PPS plans do show some of the additions to the physical plant which will be brought about by the proposed modification.
22. The plan titled "Biomass Conversion Project Key Plan" shows that a new two-lane roadway is to be built around the southern edge of Boiler 2. The roadway will lead to four new loading bays positioned under two truck unloaders, each of which will be able to unload two trucks at a time. From there, two new telestackers will transfer biomass into a stockpile. The easternmost unloader also enables biomass to be transferred from the trucks into two new moving floor bulk loader bins, from where it may be transferred via the existing BDT Conveyor to the six supplementary fuel silos, which feed directly into the boilers.
23. Even though the modified proposal will involve a fuel stockpile in the same location as the original proposal and will use some of the same fuel silos, an essential difference between the two proposals is that, whereas previously this stockpile and these silos were only used for supplementary fuel, in the modified proposal they will be used for the plant's only fuel while the plant is burning 100% biomass.

Substantially the same development

1. As was observed by the Applicant the provisions of s 4.56 are beneficial and facultative. Such observation, however, does not mean that the power to modify exists without constraint. The legislative power to modify is subject to the specific gateways expressed for each of the relevant powers of amendment provided for in s 4.56 and through which those who seek to invoke the power must first proceed: Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300 at [54]. In this case, that gateway is that the development must remain substantially the same once amended as that which was originally approved.
2. The relevant test is that set by the statutory language: Arrage at [18]. Judicial interpretations of the statutory language of "substantially the same" have approved of the formula adopted in Vacik at 4 of "essentially or materially or having the same essence": see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and 481-482. The term "modify" in this context has been held to mean "to alter without radical transformation": Ilenace at 421.
3. As was also usefully observed by Stein J in Vacik at 6, which observations I adopt as apt for the circumstances of this case: In approaching the s 102 exercise one should not fall into the trap of saying that the development was for a certain use - extractive industry - and, as amended, it will be for precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. Otherwise, there may be little purpose in s 102.
4. In its approach to the relevant task the Applicant, in its submissions, sought to identify the 1994 DC as: "an electricity generating work - a power station - in which super-heated steam is produced from combusting calorific fuels to turn a turbine that generates electricity fed into the Singleton to Kurri 132 kVA transmission line to power at least 100,000 homes." This identification is drawn from both the description of the development in the Orders of the Court and the conditions of consent together with one of the stated objectives of the project in the EIS as recited at [31] above. For the reasons that follow, I consider that the identification of the 1994 DC in terms that limits it, or prioritises it, to the generation of power fails to properly identify the material and essential elements of the 1994 DC.
5. As has been observed at [33] above, the 1994 DC did not approve plans for the actual form or layout of the plant. Accordingly, the extent of changes proposed to the existing form or layout of the existing plant to accommodate the modification - small or great - are of little assistance in determining whether the development the subject of the 1994 DC is substantially the same as the modification, as the form and layout of the plant formed no part of the 1994 DC development.
6. The 1994 DC did identify by words, and to a lesser degree by schematics, the intent or purpose of the development proposed. Those words are contained in the EIS, and the 1994 DC required the development to be carried out generally in accordance with that EIS. It is generally permissible to have regard to an EIS for the purposes of identifying the scope and nature of the proposed development: HIRE at [57], [64], [80] and [311].
7. This must be particularly so when the only source for the ascertainment of the particular features of the development to which the consent refers is the EIS rather than, as is more often the case, a set of plans.
8. An examination of the EIS and the other referenced documentation indicates that the development the subject of the 1994 DC was one that was delineated in broad concept rather than specific detail. As was observed by the Applicant's town planner Ms Brown at [34] above.
9. It is therefore necessary to identify the concept that was being approved as the bounds of the concept or purpose of the development became the benchmarks or the boundaries within which the development was to be measured or limited. If a use fell largely within what was envisaged in the broadly construed concept, it was the subject of the approval, if it did not it was not approved. Where there were necessary physical facilities that would be required to give effect to that purpose (which were not identified as part of the development consent) such facilities would be the subject of further consideration, investigation and approval at a later date.
10. Upon a consideration of the EIS and the other documentary material expressly incorporated into the 1994 DC, contrary to what was contended by the Applicant, the 1994 DC did not have a single purpose that was material or essential, being the generation of power, but rather two co-dependent interrelated purposes: being the disposal of coal tailings; and the consequential generation of electricity from the process of the disposal of the coal tailings.
11. This duality of purpose is illustrated in the express reference of the identification of the project and its objectives as is recited above at [31]. It may be that the development was ultimately characterised, for planning purposes, as a power plant, but the essence or material elements of the development for which the 1994 DC was granted was not solely (nor materially or essentially) for that purpose, it was for the treatment and reuse of a mine waste product and the sale of the by-product (electricity) of that treatment.
12. The interrelationship between these purposes was reinforced by the following factors as provided for in the 1994 DC: 1. The location of the Redbank power plant in proximity to the two nominated mine sources of coal tailings; 2. The delivery of tailings by slurry pipe from mines on an on-demand basis rather than stockpiled for later use; 3. The return of ash to the mine for use in the rehabilitation of the mine site; 4. The return of excess water to mine sites; 5. The sourcing of emergency fuel from nominated mines; and 6. Stockpiling only of start-up fuel. Of note is that from the beginning to the end of the process the only material brought onto or that left the Site (apart from products that could not be reused and were therefore waste emissions) that were not received from or returned to the nominated mines was the electricity generated by the burning of the coal tailings. The process was designed to be largely a closed system in conjunction with the mines apart from the electricity and waste products.
13. The conditions that were imposed upon the 1994 DC operated to reinforce this concept by: linking the fuel source to the nominated mine sites (conditions 16 and 17); and requiring the majority of the fuel to comprise coal washery tailings (condition 16).
14. The conditions, contrary to the submissions of the Applicant, did not envisage or allow: the importation of fuel from other mines; the change in fuel or waste transport to permit significant truck movements; or a change to ROM coal over coal tailings as a fuel, merely because the reference in conditions 16, 17 and 33 to a further or separate approval of the Council. It was submitted that those conditions operated to approve a form of development pursuant to Pt 4 of the EP&A Act such that no further development consent was required to undertake such development, rather a permission (being something less than development consent) was required in order to undertake the further development anticipated by the conditions. The Applicant cited the decision of Reading as authority in support of this submission. I do not accept this submission.
15. The terms of the conditions do not approve something for which development consent was not sought. At the relevant time the 1994 DC was granted conditions could be imposed pursuant to s 91 of the EP&A Act. In particular, s 91(3)(a) permitted conditions that related to any matter referred to in s 90(1) of relevance to the development the subject of the consent. It is apparent from the terms of the EIS that it was no part of the development proposed that fuel was to be sourced from mines other than those nominated or that trucks were to be used to transport fuel or waste except in emergencies or that ROM coal was to be used other than as supplementary fuel. The reference in the conditions to the further approval of the Council in that context can only be a confirmation that the consent is so limited.
16. The reliance upon Reading as authority for the proposition that such words in a condition do not require the making of a development application is misplaced. Reading was a case relating to a continuing use arising under s 109B where consent had been granted subject to a condition that the premises were to be used for "the storage, distribution and sale of sporting goods only and is not to be altered for another use without the prior consent of Council": at [16]. A number of subsequent applications were made to change the nature of the use including an application after the relevant LEP was changed to render the use of the premises for a shop as a prohibited use. As Biscoe J observed at [32]: The "applications" referred to in condition 3 of the 1997 Consent are not expressed to be development applications. In my view, an application pursuant to condition 3 does not necessarily have to be a development application. However, if it is labelled as a "development" application it is nonetheless an application under condition 3. I was informed, without dispute, that the subject application, at least, was made as a development application on the advice of the council. The 2001 Consent post-dated LEP 2000 which prohibited shops in this zone. This suggests that it was, and was understood by the parties to be, an application under condition 3 of the 1997 Consent. The subject application and the application to which the 2001 Consent related were, in my opinion, applications under condition 3 of the 1997 Consent even though they were labelled "development" applications.
17. From this passage I understand his Honour to be concerned that a development application was unable to be approved by a development application as the use was at the time prohibited and, therefore, the application was to be treated as something other than a development application. The fundamental basis of his Honour's reasoning was, however, the relationship of the continuing operation of the development consent under s 109B and the continuing rights that accrued thereunder. This factor of construction does not arise in connection with the 1994 DC and is clearly distinguishable from Reading even if Reading does stand for the proposition for which the Applicant contends.
18. Accordingly, for the foregoing reasons I also do not accept the submissions of the Applicant that the 1994 DC inherently envisaged changes of the type consequential upon the implementation of the Modification Application insofar as it related to the increase in truck traffic, change in fuel sources or fuel mixes. Accordingly, it cannot be said that such changes are not consequences of the Modification Application.
19. Having regard to the totality of the 1994 DC, for the reasons outlined above, the disposal of coal tailings was an essential component of the development the subject of the 1994 DC. The Applicant contends that it is impermissible to "focus" upon a single element of the development in determining whether it is substantially the same and that the totality of that approved must be compared to the totality of that modified. That is so, but this exercise cannot be undertaken in a numeric "tick a box" approach. The significance of a particular feature or set of features may alone or in combination be so significant that the alteration is such that an essential or material component of the development is so altered that it can no longer be said to be substantially the same development - this determination will be a matter of fact and degree depending upon the facts and circumstances in each particular case. Such an exercise is not focussing on a single element, rather it is identifying from the whole an element which alone has such importance it is capable of altering the development to such a degree that it falls outside the jurisdictional limit in s 4.56.
20. In this case, for the reasons I have found, the disposal of coal tailings was a fundamental element of the proposal, which if altered to a material degree would have the potential to alter an essential or material component of the development the subject of the 1994 DC. The replacement of the fuel source of coal tailings with biomass would be such a change. However, that is not what the Modification Application proposes in this case. The fundamental question here is whether the change proposed is so material that the modified development as proposed in the Modification Application is no longer substantially the same development.
21. The Applicant has taken great care to ensure that the Modification Application does not preclude the burning of coal tailings as fuel even though it acknowledges that at the present time it is not commercially viable for it to do so. So, it is true to say, as the Applicant does, that it is not seeking to replace coal tailing with biomass, but rather to provide for an additional fuel source, namely biomass. The Redbank power station will remain functionally capable of burning coal tailings. But is that enough to maintain the Modification Application as substantially the same as the 1994 DC? The answer must be no.
22. The 1994 DC had as an essential requirement the burning of coal tailings. The Modification Application leaves open to the operator an absolute discretion - as provided for in the proposed condition 16 - as to whether to burn biomass or coal tailings as fuel. As a consequence, the relationship between the coal mines and the disposal of coal tailings which was a fundamental aspect of the 1994 DC may be abandoned at the decision of the operator. The inherent discretion renders the continued capacity to burn coal tailings as fuel as an illusory maintenance of the essence of the 1994 DC. There being no longer an obligation to carry out the development to achieve the purpose for which it was developed there is no continual manifestation of the essence of the development. Accordingly, notwithstanding the retention of the physical capacity to burn coal tailings as fuel, the Modification Application in the form proposed alters the development in such a fundamental manner that it loses the essential and material relationship to the disposal of coal tailings and the associated mine operations that it cannot be characterised as being substantially the same development as the 1994 DC.

Conclusion and orders

1. For the reasons outlined above, I am not satisfied that the development to which the Modification Application relates is substantially the same development as the development for which the development was originally granted. Accordingly, I have no power to grant the approval sought pursuant to s 4.56 of the EP&A Act and the appeal must be dismissed.
2. The Court orders that: 1. The Appeal in proceedings 2021/128111 is dismissed; 2. The exhibits are returned; and 3. I direct the parties to contact my Associate to make arrangements to collect the exhibits within 7 days from the date of these orders.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2022