Victorian Civil and Administrative Tribunal|2002-02-27

Keays v Golden Plains Shire Council [2002] VCAT 93 (27 February 2002)

Works Approval Review, Decision to grant review, State Environment Protection Policies, Air Emissions, Noise, Modelling, Peak Load Power Station, Gas Turbines, Landscaping

APPLICATION FOR REVIEW AGAINST NOTICE OF DECISION TO GRANT A PERMIT NO. P50704/2001

RESPONDENT/PERMIT APPLICANT: AES Power One Pty Ltd

APPLICATION FOR REVIEW AGAINST CONDITIONS: NO.P50717/2001

RESPONSIBLE AUTHORITY: Golden Plains Shire Council

REFERRAL AUTHORITIES: Department of Infrastructure

APPLICATION FOR REVIEW EPA WORKS APPROVAL: NO.P51122/2001

RESPONSIBLE AUTHORITY: Environment Protection Authority

APPLICATION FOR REVIEW OF EPA WORKS APPROVAL: P51306/2001

APPLICANTS FOR REVIEW: P Keays, J Lindros and Ors

RESPONSIBLE AUTHORITY: Environment Protection Authority

SUBJECT LAND: `Dalkeith', Crown Allotments 5, 6 and Part 7, Section 15, Gheringhap

BEFORE: Roger Young, Senior Member; Howard Terrill, Member

DATES OF HEARING: 15,16,17,18,19,22,23 October 2001

Medium Neutral Citation [2002] VCAT 93

1. Under the powers vested in the Tribunal by Section 51 of the Victorian Civil and Administrative Tribunal Act 1988, we find that the decision of the Responsible authority in Application No. P50704/2001 is affirmed.

2. Under the powers vested in the Tribunal by Section 51 of the Victorian Civil and Administrative Tribunal Act 1998, we find that the decision of the responsible authority in Application No. P50717/2001 is varied. To the extent that it is varied, such variations are set out in the Permit Conditions below.

3. With the leave of the Tribunal the Application for Review of the Works Approval: Application No. P51122/2001, on the grounds that the Environment Protection Authority had failed to reach a decision, is withdrawn.

4. Under the powers vested in the Tribunal by Section 51 of the Victorian Civil and Administrative Tribunal Act 1998, we find that the decision of the Environment Protection Authority in issuing Works Approval No. WA 46026, Application No. P51306/2001, is affirmed.

5. With the consent of the Parties, the Tribunal gave leave to join the "Geelong Environment Council Inc." as a party to Application Nos. P50704/2001 and Application No. P51306/2001.

6. Subject to no contrary written application by any party within 14 days of the date of these orders, there is no order as to costs.

The Conditions of the Planning Permit, in Application No. P50717/2001, varied as required by the Tribunal, are as follows:-

1. The use and development shall be in accordance with certified plans Nos. 08222-D020-0003, 08222-D020-004, 08222-D-020-0005, 08222-D10-0049 and 08222-D10-0050 provided that such plans are amended to the satisfaction of the responsible authority as follows:

* Plan 08222-D10-0049 must be amended to include 20 car parking spaces with two spaces with two spaces specifically maintained for disabled persons.

* Plans 08222-D020-0003, 08222-D020-0004, 08222-D020-005, 08222-D10-0050 and 08222-D10-0049 must be amended to show the perimeter fence south of the turbines moved south to allow for fire protection access.

2. No development or use under the authority of this permit shall commence until such time as a Works Approval for the proposal is issued by the Environment Protection Authority.

3. This permit will expire if the development and use are not started within two (2) years of the date of this permit. The responsible authority may extend the period if a request is made in writing before the permit expires or within three months afterwards.

4. The perimeter planting depicted on the Landscape Development and Management Plan shall be completed in Spring 2002 unless the responsible authority consents in writing to a later time. The planting and landscaping shall be maintained and replaced where necessary to the satisfaction of the responsible authority. Alternatively, the permit applicant must provide the responsible authority with a bank guarantee or other form of bond to the satisfaction of the Responsible Authority to ensure the establishment and maintenance of landscaping in accordance with the approved screen planting and landscape plan. The bank guarantee or other form of bond must be paid prior to commencement of the use, if the landscaping works have not been completed at that time. The amount of the bond or bank guarantee will be calculated on the basis of the estimated cost plus maximum of 25%, with 75% of the bond refundable on satisfactory completion of the works and the remainder after satisfactory maintenance for a period of five (5) years.

5. Before the development starts, a Stormwater Drainage Plan shall be prepared by suitably qualified engineers to the satisfaction of the responsible authority. The plan shall demonstrate that the site will be suitably drained accommodating stormwater flow only. Measures shall be included so as to prevent any polluting matter discharging into the drainage system. Once approved, the stormwater drainage plan shall be endorsed by the responsible authority and will then form part of this permit.

6. In conjunction with the commencement of construction work on the proposed development, that part of Booley Road, extending from the access point on the property on Booley Road to the Fyansford-Gheringhap Road, must be upgraded to the satisfaction of the responsible authority. The same part of the road shall be sealed to the satisfaction of the responsible authority and in accordance with its standards prior to commencement of the use.

7. The use authorised by this permit shall not commence, and no works shall be undertaken, until the following requirements have been met to the satisfaction of Aboriginal Affairs Victoria and the responsible authority:

(a) The permit applicant is to fund a survey to locate, record and assess aboriginal sites, places and objects on all land likely to be affected by the development, including land which may be disturbed by associated works such as new access roads, pipelines, buildings and services.

(b) The permit applicant is to undertake and fund any archaeological sampling or salvage excavations which may be recommended as a result of the above-mentioned survey, subject to the endorsement of such recommendations by Aboriginal Affairs Victoria.

8. Prior to the disturbance of any identified aboriginal site, place or object, the permit applicant is to obtain written consent to disturb from the relevant local aboriginal community, as nominated for the purposes of Part IIA of the (Commonwealth) Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

Note 1: All archaeological work undertaken in connection with Condition 7(a) and 7(b) above is to be carried out, or supervised by, persons with appropriate qualifications and experience in australian archaeology. Standards of fieldwork and report production are generally to comply with guidelines issued by Aboriginal Affairs Victoria.

Note 2: Aboriginal Affairs Victoria can also advise on procedures for seeking statutory approvals in connection with Condition 8.

9. The access gate to the property on Booley Road shall be setback far enough from Booley Road to the satisfaction of the responsible authority, to enable double articulated trucks to pull fully off Booley Road before stopping to open the gate.

10. Before the use starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be constructed to the satisfaction of the responsible authority by being;

(a) properly formed to such levels that they can be used in accordance with the plans;

(d) line-marked to indicate each car space and all access lanes.

Such areas shall be maintained to the satisfaction of the responsible authority.

11. A sign, to the satisfaction of the responsible authority, must be provided directing drivers to the area set aside for car parking and must be located and maintained to the satisfaction of the responsible authority. The sign must not exceed 0.3 square metres

12. The loading and unloading of goods from vehicles must only be carried out on the land.

13. Parking areas, loading areas and access lanes must be kept available for the designated purposes at all times.

14. Access to the satisfaction of the responsible authority, must be constructed to allow safe negotiation of any fire-fighting tanker, having a minimum fire clearance, height and width of 4 metres with passing points located every 200 metres along the access, and a turning area with a minimum radius of 10 metres included at the end of the access.

15. A minimum distance of 10 metres is required between all buildings, unless approved by the responsible authority.

16. A water distribution system, to the satisfaction of the responsible authority, shall be coupled to the water supply and be established around the buildings with sufficient pressure due to gravity or a petrol/diesel powered pump, for fire fighting purposes.

17. A Fire Prevention Plan shall be developed to the satisfaction of the responsible authority, prior to the commencement of the use for the entire complex which shall include printed instructions to employees on what to do should fire occur:

18. Outdoor lighting must be designed, baffled and located to the satisfaction of the responsible authority to prevent any adverse effect on adjoining land.

19. All buildings and works must be constructed and maintained in materials and colours which blend with the natural environment to preserve the aesthetic amenity of the area to the satisfaction of the responsible authority.

20. That security fencing around the periphery of the power station works must be constructed of materials which blend in with the natural appearance of the area to the satisfaction of the responsible authority.

21. (a) The works must be designed to achieve at all times the noise objectives

i. measured at the most noise sensitive receivers; and

ii. measured under favourable noise propagation conditions; and

iii. the Effective Noise Level is measured in accordance with SEPP N-1 procedures including all adjustments for noise character.

(b) The permit applicant must submit a detailed report to EPA within 2 months of the date of this approval demonstrating how the above objectives will be met, including consideration of the dBC noise (the S-weighting enhancing the low frequency noise components in measurement).

(c) The permit applicant must ensure that design and construction of stacks, turbines and associated structures enable provision of further noise attenuation equipment if required.

22. The permit applicant must implement, to the satisfaction of the responsible authority, the objectives set out in Environment Protection Authority Works Approval No. WA 46026 and those listed below:

* Meet environmental quality requirements for all segments of the environment. This includes meeting the general provisions of the Environment Protection Act (1970), State Environment Protection Policies, and Industrial Waste Management Policies. In particular:-

s Industrial Waste Management Policy (Waste Minimisation);

s State Environment Protection Policy (Waters of Victoria);

s State Environment Protection Policy (Groundwaters of Victoria);

s State Environment Protection Policy (Air Quality Management);

* Operate in accordance with good environmental practice at all times; and

* Take opportunities to minimise waste and continuously improve environmental performance.

23. The permit applicant must ensure, to the satisfaction of the responsible authority, that the layout of the turbines and associated plant allows for the future addition of steam turbines and the conversion to a combined cycle plant if required.

24. The use must be conducted to the satisfaction of the responsible authority so that the amenity of the area is not detrimentally affected by the use or development through the:

(a) transport of materials, goods or commodities to or from the land;

(b) appearance of any buildings, works or materials.

(c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; or

25. During the construction stage, the permit applicant shall take all reasonable action necessary to the satisfaction of the responsible authority, to protect adjoining residents and commercial tenants from dust, rubbish and undue noise.

26. The areas of the subject land shall be maintained in a clean and tidy condition to the satisfaction of the responsible authority.

27. The plant will be staffed at all times whilst it is operational.

28. The plant shall operate as a peak load power station only. The permit applicant shall maintain records, available for inspection by the responsible authority, of the periods of operation of each of the gas turbines and the capacity at which each turbine operated on a month by month basis. At the end of each financial year the permit applicant will publish a notice in the Geelong Advertiser, or some paper circulating generally in the district, setting out the number of hours of operation of each gas turbine on each of the fuels of gas and liquid. The notice will also set out on an equivalent full output basis, the percentage of time on an annual basis that the plant operated.

29. Assessed at full power equivalent, if the plant operates, any greater than 5% of the time on an annual basis within a financial year, the permit applicant will publish a notice in the Geelong Advertiser or a paper circulating generally in the district that the plant has operated in excess of 5% of the time on an annual basis and the reason for this degree of operation.

30. Assessed at full power equivalent, the permit applicant will publish a notice in the Geelong Advertiser or a newspaper circulating generally in the area each time the annual operation of the plant in any one financial year goes past a further 1% of the time on an annual basis in excess of 5%. Such notice shall state the time the plant has operated to that date in the financial year and the reason the permit applicant considers the plant has operated to that extent.

31. Within six months of the date of the endorsement of the Landscape Development and Management Plan, Crown Allotments 5,6 and Part 7 of Section 15, Parish of Gheringhap together with that part of Lot 2 on PS/427198U as delineated in the endorsed Landscape Development and Management Plan and required to remain as part of the site must be consolidated under the Subdivision Act 1988. The consolidation will be supported by a Section 173 Agreement which will be registered on the title to the land; this Section 173 Agreement to preclude subdivision of the site.

32. Any septic tank system installed on the land in connection with the permitted use shall be designed to the satisfaction of the responsible authority, so that no specific tank effluent shall enter the natural waterways, lagoons or dams on or adjoining the subject land.

33. The permit applicant shall use its best endeavours to ensure that:

(a) All heavy vehicles delivering goods, equipment and machinery to the site shall use declared highways and Gheringhap-Fyansford Road and Booley Road to access the property.

(b) no other local roads within the Golden Plains Shire shall be used by heavy vehicles delivering to the site, except with the prior consent of the responsible authority.

34. The area set aside for the power station including the carparking and driveways as shown on the endorsed plan, must be provided with an all weather seal surface and designed so as to disperse surface water to an approved drainage system to the satisfaction of the responsible authority.

35. Upon expiration of the development and use, all equipment and machinery associated with the power station, shall be removed from the property and the subject site shall be rehabilitated to the satisfaction of the responsible authority.

36. The power station be constructed in the area specified on the endorsed plans.

37. Waste and contaminated waters are disposed of to the satisfaction of the responsible authority, in such a way as to prohibit their entry into any waterway.

VICTORIAN WORKCOVER AUTHORITY (CHEMICAL STORAGE)

38. The proposed works and any development must comply with the relevant requirements of the Dangerous Goods Act and its subordinate legislation, particularly the Dangerous Goods (Storage and Handling) Regulations 2000.

39. In conjunction with the commencement of construction work on the proposed development, the road pavement of the Fyansford-Gheringhap Road, at the Booley Road intersection must be widened to a "Type C" intersection, to the satisfaction of the responsible authority. The treatment must incorporate a 3.3 metre wide sealed right turn land and 3.0 metre wide sealed left turn land. All works are to be designed and constructed generally in accordance with AUSTROADS publication "Guide to Traffic Engineering Practice, Part 5 - Intersections at Grade" and at the full cost of the applicant.

40. Prior to commencing work within the declared road, the permit applicant must, to the satisfaction of the responsible authority:-

(a) forward detailed design plans to VicRoads and the responsible authority for approval.

(b) prepare a specification for the works in accordance with relevant sections of the VicRoads Standard Specification for Roadworks.

(c) any consultants or contractors engaged in the design or construction processes are to be approved by VicRoads and the responsible authority.

(d) demonstrate that all works will be administered in accordance with quality assurance principles.

(e) work site practices are to be in accordance with VicRoads' Roadworks Signing Code of Practice.

DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENT

41. The permit applicant will carry out flora and fauna surveys over the whole of the site to the satisfaction of the responsible authority and the Department of Natural Resources and Environment. From the results of the surveys, the permit applicant will develop and prepare a Landscape Development and Management Plan and an Environmental Management Plan to the satisfaction of the responsible authority and the Department of Natural Resources and Environment; whereupon such plans will be endorsed by the responsible authority and form part of this permit.

42. The Environmental Management Plan shall be prepared to address the following:-

* identification of remnant flora and fauna values on the entire property by way of flora and fauna surveys undertaken by a suitably qualified consultant;

* appropriate management strategies to conserve and enhance the flora and fauna values of the site;

* removal of serrated tussock together with vermin control.

43. The Landscape Development and Management Plan and the Environmental Management Plan may be prepared, each in two parts, one dealing with the area proposed for the site works for the power station and the other dealing with the balance of the site. Works shall not commence on any part of the site until the Landscape Development and Management Plan and the Environmental Management Plan for that part of the site have been endorsed under this permit. The plans shall be implemented to the satisfaction of the responsible authority and Department of Natural Resources and Environment within 2 years of this permit or such further time as is to the satisfaction of the responsible authority and Department of Natural Resources and Environment.

44. The site must be managed in a manner which minimises the introduction, growth and spread of pest plants and animals to the satisfaction of the responsible authority.

45. To reduce the spread of weeds, all earthmoving equipment shall be made free of soil and seed before being taken to the works site and again on completion of the project.

46. No environmental weeds as identified by the Department of Natural Resources and Environment shall be planted on the site.

_________________________________ ___________________________

Mr. W Nelson, Solicitor of Harwood Andrews, appeared for the Responsible Authority.

Mr G Purcell of Counsel instructed by Ms L King, Solicitor of EPA, represented the EPA. He called as expert witnesses:-

Mr C Canavan, QC, with Ms M Quigley of Counsel, instructed by Mallesons Stephen Jaques, appeared for the Permit Applicant. He called as expert witnesses:-

Mr F Sutton, Electricity Production Consultant of Evans & Peck Management

Mr R Zauner, Principal of Sinclair Knight Merz Pty Ltd, gave evidence as to gas turbines greenhouse gas implications.

Dr G Ross, Managing Director of CAMM Pty Ltd, gave evidence of modelling the disperson of air emissions.

Mr B Pollock, Principal of Aegis, gave evidence of peer review of Dr Ross's modelling of air emissions.

Mr P Fearnside, Principal of Marshall Day Acoustics, gave evidence of proposal's noise impact.

Mr A Wyatt, Principal of ERM Pty Ltd, gave evidence of landscape and environmental management of the site.

Mr M Townsend of Counsel, directly briefed, appeared for the Objectors. He called as expert witnesses.

Dr G Lorimer, Director of Biosphere Pty Ltd, gave evidence of modelling the air emission dispersion.

Mr R Burton, Principal of Burton Acoustic Group, gave evidence as to the noise impact of the proposal.

Mr V Natoli, Principal of V & C Environment Consultant Pty Ltd, gave evidence as to the best available technology.

Ms R Dyall, Solicitor of Environment Defenders Office, appeared for Ms J Lindros and Geelong Environment Council Inc, Objectors, and she called as expert witnesses:-

The following Objectors made individual submissions to the Tribunal:-

Mr P Keays on the north east boundary of power station site.

1.1 This is a proposal by permit applicant, AES Power One Pty Ltd, to construct a peak load power station at "Dalkeith", C.A. 5,6 and Part 7, Section 15, Parish of Gheringhap, and Part Lot 2, PS 42719U in Booley Road, Stonehaven. The power station will comprise for 4 NOx 125MW frame 9E G.E. gas turbines capable of running on natural gas or liquid fuels. The initial turbine will have water injection to control the production of oxides of nitrogen("NOx"). Subsequent turbines will use Dry Low NOx (`DLN'), for natural gas and water injection for liquid fuels. The power station is proposed to be operational with the water injection gas turbine by mid 2002. The proposal is opposed by a large number of residents in the district and local conservation groups. The objectors were in 2 groups and separately represented. The first group was identified as Mr P Keays and Others. The second group as the Geelong Environmental Council and Others.

1.2 Prior to entering into the reasons in detail the Tribunal wishes to refer to 2 letters forwarded to the Tribunal during the hearing. On 22 October 2001 the Minister for Planning, the Honourable John Thwaites MP wrote to the Principal Registrar of the Tribunal requesting that the Tribunal consider the draft State Environmental Protection Policy (Air Quality Management) ["SEPP (AQM)"]provisions as part of its review. A copy of this letter was given to all other parties prior to being presented to the Tribunal. The Tribunal noted at the time of reading the letter that it was only requesting the Tribunal to do its job. The Tribunal would take into account any seriously entertained amendment to a SEPP, similar to an amendment to a planning scheme: see Albury - Wodonga Development Corp v Fitzpatrick [1982] VR165 at 170. The weight we would give to such draft policy would depend on the degree of its development into an adopted policy and the degree to which expert evidence indicated that the draft provided a more satisfactory policy than the current policy. This weight would be a matter of assessment for the Tribunal. We do not consider that the Minister intended to indicate what weight we should give to the such draft policy.

1.3 The second letter of 14 November 2001 from the Surf Coast Shire caused more concern to the Tribunal. The letter was addressed directly to the President of the Tribunal requesting his assurance that this Tribunal would admit further evidence being prepared by the objectors. The Shire sought further investigations of the proposal and made their known concern as to the potential impact of the development on its resident. However, the Shire made no attempt to be heard before this Tribunal. Copies of its letter were not sent to other parties who were not aware of the letter until provided with the copy by the Tribunal.

1.4 The letter from the Surf Coast Shire has the potential to cause a serious breach of the Tribunal's statutory obligation to accord natural justice to all parties: see subsection 98 (1) of the Victorian Civil and Administrative Tribunal Act ("VCAT") . Attempts to have private correspondence with members of the Tribunal can undermine its ability to demonstrate that it is abiding by its statutory obligation to provide natural justice. Further, in planning services adjacent municipalities are simply another party and if they wish to put information before the Tribunal they should comply with the normal requirements to be joined to a proceeding. They should not seek to address the Tribunal privately. The President of the Tribunal, His Honour Mr Justice Kellam replied to the Surf Coast Council letter pointing this out forcefully. This Tribunal endorses his comments.

1.5 In his letter the President requests that in fairness to all participants and interested persons and to enable all these parties to have confidence in the Tribunal any person or body wishing to correspond with the Tribunal must ensure that a copy of that correspondence goes to all other parties to the review. This is in accordance with Section 1 of Planning List Practice Note No 1.

2.1 This proceeding involves numerous proceedings which are set out below in chronological order.

2.2 P50704/2001: a review of the Responsible Authority's Notice of Decision to Grant was lodged on 12th July 2001 by P. Keays and Others.

P50717/2001: a review of the proposed conditions in the Notice of Decision to Grant was lodged by the permit applicant on 24 July 2001 and objected to by P Keays and others. The permit applicant objected on the basis that the proposed permit Conditions 29, 30 and 35 were ultravires. Conditions 29 and 30 specified what particular requirements must be contained in the terms of the Works Approval to be issued by the EPA. Condition 35 required the plant operation must not exceed of 5% operation over the lifespan of the power station. The responsible authority conceded in its submission to the Tribunal that Conditions 29 and 30 were ultravires. The responsible authority maintained that it viewed as fundamental a limitation on the proportion of time to which the power station operated, as the permit was granted for a peak load power station. The objectors sought to retain all the disputed conditions.

P51122/2001: a review of the Environmental Protection Authority's ("EPA") failure to decide in relation to the application for Works Approval by the permit applicant lodged on 7 September 2001. The EPA resolved to grant the Works Approval on 12 September 2001. At the commencement of the hearing the permit applicant sought leave to withdraw this application, all other parties consented to this course and the Tribunal gave leave for this application to be withdrawn.

P51306/2001: a review of the EPA's decision to grant a Works Approval on 25 September 2001 by the Geelong Environmental Council and Others and on 3 October 2001 by P Keays and Others.

3.1 The Objector's grounds of review were broadly similar for the application to review the decision to grant a planning permit and the issue of the Works Approval. These grounds may be summarised as;

(a) the proposed plant should not be built as it is the policy of the state government that there should be a reduction in power demand; secondly, there is no demonstrated need;

(b) the use will result in significant pollution and the effects on health from the air emissions of combustive products, particularly NOx and the proposal fails to comply with the draft SEPP (AQM);

(c) the proposal fails to comply with the best environmental practice as required by the Golden Plains Planning Scheme; further, it does not use sufficiently clean technology;

(d) the development will generate unacceptable noise;

(e) the development will cause unacceptable visual amenity impacts for neighbouring residents; and,

(f) the development will have unacceptable impacts on the flora and fauna values of the area and subject site.

3.2 The submission of P Keays and Others concentrated on the ground level concentration of Nitrogen Dioxide ("NO2") with reference to the relevant SEPP. Secondly, they claimed the proposal did not comply with best practice environmental management; and thirdly, it generated an unacceptable level of noise.

3.3 The submission of the Geelong Environment Group Inc. also supported the major themes of the submissions of P Keays and Others. It presented detailed evidence through Mr. Macmillan of the alleged shortcomings of the landscaping development and management proposal of the permit applicant; and, its unacceptable impact on the flora of the subject site.

This proceeding combines reviews of decisions to issue Works Approval by the EPA and reviews of the responsible authority's decision to grant a planning permit. These reviews arise under two different statutory schemes as set out in their applicable acts. The statutory scheme for the protection of the environment as set out in the Environment Protection Act ("the Act") which is administered by the EPA. The right of the responsible authority to create and manage to the Golden Plains Planning Scheme is set out in the Planning and Environment Act ("the Planning Act").

4.2 As the Tribunal noted in Melbourne Water Corporation v Kingston City Council [2001] VCAT 2446, the two schemes are statutorily different and the enquiry and assessment carried out in the review under each scheme should not be allowed to influence each other, unless such overlap is allowed, either expressly or by implication, in the statutes governing each scheme.

4.3 Therefore, where it is obvious from the statutory scheme that an aspect of the proposal is to be dealt with by either the environmental review, or the planning review, such aspect will be confined to that review, and will not be allowed to influence the review under the other Act. Thus, the responsible authority's attempt to dictate in Conditions 29 and 30 as to the specific requirements to be contained within the Works Approval must be ultravires. The responsible authority's concession in its submission is welcomed.

4.4 In this proceeding the most crucial issue is the emission of NOx and the assessment of the likely NO2 ground level concentration resulting from this emission. This inquiry relates to both the environment review and the planning review. The methods of control and the limits on the emission of the NOx is achieved by particular requirements in the Works Approval under the Act. The effect of an increase in the ground concentration of NO2 due to the operation of the power station is an amenity issue which has to be considered under the Planning Act and the planning scheme.

The Environment Protection (Schedule Premises and Exemption) Regulations 1996 prescribes that the proposed power station will be a scheduled premises under any of the Items 11(a), 12(a) (I) or 12(a)(II) Schedule A of the Regulations. Under Section 19 A of the Environment Protection Act 1970 a Schedule Premises needs to obtain Works Approval prior to carrying out any work.

4.6 The Works Approval does not authorise its holder to commence discharge of waste. Upon conditions it permits certain work to be carried out prior to the discharge of any waste. The holder of the Works Approval must apply to the EPA for a licence under Section 20 of the Act. The EPA issued the Works Approval on 12 September 2001.

4.7 In determining this review the Tribunal should take into account and give effect to any relevant SEPP. The most relevant SEPPs; to the proposed works are the SEPP (Ambient Air Quality) ["SEPP (AAQ)"] and the SEPP (AQM), these SEPPs were promulgated in February 1999.

4.8 The pollutant of most concern is NO2 this is designated as a Class 1 pollutant under the SEPP (AQM). The relevant maximum design ground level concentration of NO2 under the Schedule of SEPP (AQM) for NO2 is 0.15 part per million ("ppm") or 308 ì/m³; that is at any location down wind of the proposed power station.

4.9 The SEPP (AQM) is currently being reviewed. The EPA informed the Tribunal that a draft revised policy and impact assessment was released for public comment in December 2000. Public comments were open until the end of April 2001. It is likely that the SEPP (AQM) revisions will be completed by the time the works are constructed and ready for licencing. Any variations to the SEPP (AQM) that affect this application will be addressed at that time and in consultation with the company as will occur for all scheduled premises industries in Victoria.

4.10 It should be emphasised that compliance with the current SEPP at the time a plant is licenced and commencing as operation does not give it prior use rights as with conditions or uses under a planning scheme. All companies emitting waste to the air must at all times comply with the SEPP (AQM) then in force. Therefore, if the limits are in the SEPP (AQM) are lowered in the future, this power station must meet those more stringent criteria. Obviously, therefore, given that the draft proposal has completed its public review and is awaiting final government consideration the Tribunal will treat the draft as a seriously entertained revision to the SEPP (AQM). Under the current draft the maximum design ground level concentration for NO2 with an averaging time of 1 hour is 0.10 ppm or 205 ìg per m³.

The Tribunal has taken its information regarding the planning scheme and its provisions from the submission of the responsible authority. The proposed site is zoned `Rural' under the Golden Plains Planning Scheme. A `Salinity Management Overlay' applies to the subject site. A `Land Subject to Inundation Overlay' applies to the lower part of the site; however, this does not include the land proposed for buildings or works. The responsible authority treated the proposal as both `industry' and `utility installation'. The generation and transmissions facility proposed together with its ancillary components do not fall within any planning uses contained within either Section 1 or Section 3 of the table of uses to the Rural Zone. Therefore, it falls within description of Section 2, and under clause 35.01-3 of the planning scheme, a planning permit is required for buildings and works. There is nothing in the planning scheme provisions for the Rural Zone that specifically relate to this application.

4.12 The need to meet community expectations in the provision of infrastructure and utility services and at the same time to require a balance against amenity and social considerations of the surrounding community is recognised in the State and Local Government Planning Policy frameworks. Clearly, the provision of adequate and reliable electricity supply is a matter of fundamental importance to the community.

5.1 The subject site is a 500 hectare parcel of grazing land, known as "Dalkeith" which has a frontage to both the Hamilton Highway and Booley Road Stonehaven. The access to the proposed works will be via Booley Road. Currently the site is grassland with very little tree cover, it was native grassland prior to European settlement. The underlying geology is volcanic and the surface is littered with medium to small basalt and scoria rocks. Currently, the land is used for grazing, the grassland is a mixture of native and exotic grassland with substantial infestations of pest plants such as serrated tussock.

5.2 The closest dwelling to the site is the homestead of Dalkeith. The closest residential area is at Dog Rocks, where there is a rural residential subdivision with further potential for dwellings, this is about 2 kilometres to the north east of proposed works. There are scattered farm houses commencing at a distance of approximately 1.2metres from the works with the closest neighbour being the Keays. The Barrabool Hills are more than 5 kilometres to the south.

5.3 There is a large high pressure natural gas pipeline and a high voltage electricity transmission line which parallel each other across the north western corner of the subject land. It is this gas main which will provide the source of fuel for the proposed power station and the transmission line which will carry the generated power away. It is the proximity of these infrastructure resources which makes this subject site attractive for use as a peak load power station.

5.4 The proposed peak load power station will have a maximum capacity of 500MW, generated by a maximum of No 4GE, frame 9E gas turbine generators. The power station will provide a peaking supply to the regional and national electricity market. The power station intends to operate in times of high electricity pool prices, which typically occur at times of peak electrical demand or when there are outages from other power stations or transmission lines. In times when there are gas supply shortages the power station will have capacity to operate on liquid fuel, either low sulphur diesel or kerosene, which will be stored on site in a bunded storage tank. The station will normally run on gaseous fuel as this is seven times cheaper than liquid fuel. There is no incentive on the station to use liquid fuel. The provision is there in case the gas supply breaks down.

5.5 To minimise the time for the commencement of operation, the first turbine will be installed with water injection emission controlled technology to minimise the emission of NOx, the other 3 turbines to be installed with have Dry Low NOx technology for gas operation to minimise emissions of NOx and water injection for liquid fuel operations.

5.6 It is anticipated that the power station will only operate during times of peak electricity demand which are normally between 11am and 8pm during the very hot summer days to power airconditioners and between 7pm and 11pm on cold winters nights to provide power for heating. Power breakdowns and outages can occur at any time and have been known to continue for a number of days but the proposed power station is unlikely to run for more than 18 hours per day during such a period as only a minimal baseload is required to supply the demand between midnight and 6am.

5.7 The permit applicant estimates that supplying during peak demand and outages the peak load power station will only operate for approximately 5% of the time. Its primary source of income is not from the sale of power but from guaranteeing electricity distributors of supply. The plant will only operate at times of high demand or when there are breakdowns in the generation or transmission resources of the electrical system, this means supply will only take place at times when the price of electricity is very high. For a guarantee of supply of specific periods of time the electricity distributors pay an insurance premium and this, according to the permit applicant, is its major source of income. The permit applicant operates an existing peak load power station using similar gas turbine technology at Jeeralang in the Latrobe Valley. The evidence of the operation of this plant submitted to the Tribunal was that it was lower than 5% of the time. The permit applicant insists that the period over which the plant operates cannot be limited by condition as the plant needs to sell the distributors the right to request power at all times, whenever the demand is sufficiently high.

5.8 The Works Approval requires that the layout of the gas turbines and associated plant allows for the future addition of steam turbines and conversion of combined cycle. The combined cycle would generate approximately 30 to 50% more power for double the capital cost. The EPA considers that combined cycle should be considered if the level of operation exceeds 20%, this will be the operational limit in the licence. If the plant operation exceeds 20% of the time it will require reconsideration of its licence; further, it would not be regarded as a peak load power station and it would require a further planning application if it was to operate other than as a peak load power station.

5.9 The gas turbines and the support infrastructure will be located on a site of approximately 12 hectares. It is proposed that the remaining area of the subject site, approximately 488 hectares, will be given over substantially to agroforestry with a significant area remaining as grazing. The Tribunal is aware that there has only been limited investigation into the extent of indigenous grass species on the subject land, this was noted by Carr and Silveria in their report of December 2000. A subsequent letter of the Department of Natural Resources and Environment to the responsible authority requires a more detailed investigation of the subject site and the Tribunal endorses that request.

5.10 The current landscaping proposal shows a 50 metre weed barrier on the boundary of the subject site. The barrier will be planted with indigenous trees, a number of which are reasonably fast growing and which, according to the permit applicant, should screen the power station works in approximately 3 years,. The height of the exhaust stacks of the gas turbine is approximately 15 metres and with the exclusion of the transmission towers to carry the power from the turbines to the existing transmission line, these are the tallest structures of the works.

All parties recognise that the most significant environmental and amenity effect of the proposal will be the impact of the air emissions of combustible products from the gas turbines, in particular NOx, on the air quality of the surrounding area. Air emissions are highly relevant to both the review of the Works Approval and the review of the notice of decision to grant. The minimum quality of the air emissions is fixed by the SEPP (AQM).

6.2 The oxides of nitrogen in the turbine of the exhaust consist mainly of nitric oxide (NO) and nitrogen dioxide (NO2). NO will convert to NO2 in the atmosphere, mainly via a photochemical reaction. The rate and degree of conversion will vary depending on atmospheric conditions and the concentration of other pollutants such as ozone. It was the evidence of all of the air emission experts that the most likely time for high ground level concentration of pollutants is in atmospherically stable periods, this most likely during cold winter nights when there is low atmospheric turbulence and a slight steady breeze that minimises the dispersion and breakup of the plume. At this time there is little light to drive the photochemical reaction of NO to NO2. In the paper by P Manins : "A case study of plume impact on elevated terrain, submitted to the Tribunal by Dr Lorimer, it showed only approximately 10% of the NOx had been converted to NO2 during the night time.

6.3 NO2 has effects on human health and is a Class 1 pollutant under the SEPP (AQM). NO does not have direct health affects but in conjunction with reactive organic compounds can react to form ozone (O3). Ozone has impacts on human health. The rate and degree of ozone formation varies with the atmospheric conditions. Therefore, it is very important to control the rate of emission of NOx and further to check that any emission does not result in a ground concentration level of NOx or its derivates, eg. ozone O3, that would result in a danger to human health or to have a significant detrimental effect on the natural environment.

6.4 There was some initial concern regarding the emissions of O3, but this concern was mollified by the modelling results of Dr Ross using the sophisticated TAPM model, which has the capacity to model photochemical reactions and atmospheric chemistry whilst modelling the plume characteristics. The objections in relation to the creation of O3 were not pursued vigorously.

The statutory control of air emissions is contained in the SEPP (AQM). There are two maximum limits which cannot be exceeded under the SEPP (AQM). The first is the maximum rate of emission from the plant as set out in Schedule G. Under Clause 23 of SEPP (AQM) emissions from a source shall not exceed the limits prescribed in Schedule G - Emission limits for stationary sources in Victoria. The limit in Schedule G for the oxides of nitrogen from burning fuel units is 1.0g/m3, this is 486 parts per million ("ppm") at 15% O2. Schedule G applies to areas outside any declared Air Quality Control Region. However, the proposal is close to the declared Port Philip Air Quality Control Region and the EPA considers that the limits for air emissions within a controlled region, see Schedule H, should apply, the Tribunal concurs. The Schedule H limits are far more stringent that the limits under Schedule G. The Schedule H limits are 0.07 g/m3, 34ppm for gaseous fuel and 0.15g/m3, 73ppm for liquid fuel. The Dry Low NOx are well beneath these limits, the Works Approval limits the maximum design NOx emission concentration for gaseous fuel to 25ppm and for liquid fuel to 42ppm.

6.6 However, the turbine using water injection emission control cannot meet the Schedule H emissions limit for gaseous fuel. This turbine has a maximum design NOx emission concentration of 42ppm using gaseous fuel. The Tribunal does not consider this to be significantly increase above the Schedule H emission limit of 34ppm, but it is of concern. This is a major reason why the water injected turbine will have its operating hours limited in the licence to no greater than 10% of the total plant operation.

6.7 The limitation on the operations of the water injected turbine should mean that on a cumulative pollutant balance the overall operation of the power station would meet the intent of Schedule H limits. The Tribunal considers that such a cumulative balance is valid when the maximum limit is not substantially exceeded and the portion of the emission that the exceedance represents is a relatively small proportion of the whole emissions, as in this case. Therefore, the Tribunal does not consider the slight exceedance of the emission limit by the water injected turbine is a significant impediment to the approval of the power station.

6.8 The second set of maximum limits set by the SEPP (AQM) for air emissions is the maximum allowable one hour ground level concentrations of individual pollutants. These limits are set out in Schedule C: see Clause 25, ie. "Limits for Common Pollutants." Under Schedule C the maximum design one hour ground level concentration for NO2 is 0.15ppm (308 ìg per m³)

6.9 Clause 25 of the SEPP (AQM) requires a plume model calculation be carried out as outlined in Schedule E, such that the predicted maximum ground level concentrations do not exceed those set out in Schedule C.

6.10 Schedule E sets out "The plume calculation procedure", which sets out a number of steps that should be contained in the model calculation. This led to the development of Ausplume Model by the EPA. The Ausplume model is the regulatory model recommended by the EPA for calculating likely pollutant concentrations from plume emissions from chimneys.

6.11 The SEPP (AQM) is currently being redrafted and at present the anticipated maximum design one hour ground level concentration for NO2 will be 0.10ppm (205 ìg per m³).

The Tribunal heard from four experts as to the air quality air emissions and the proposals effect on air quality. The EPA called its Air Quality Officer, Mr Hearn, the permit applicant called two witnesses, Dr Ross, who had developed and used the TAPM model and Mr Pollock, who carried out a peer review of Dr Ross' analysis. The objectors called Dr Lorimer who had worked extensively with Ausplume. Dr Lorimer maintained that Ausplume must be used to comply with Schedule E of SEPP (AQM), modelling by other models was not satisfactory. Further, Dr Lorimer maintained that the Ausplume modelling of Dr Ross and Mr Hearn had been non conservative in its boundary conditions or modelling assumptions, resulting in the prediction of lower than probable ground level concentrations.

6.13 Mr Hearn carried out extensive Ausplume modelling. His predictions show that ground level concentrations close to the site ie. on a 4 kilometre grid, are well below the design ground level concentrations in the current SEPP (AQM) and the proposed draft. For more distant and elevated sites, such as the Barrabool Hills to the south, the results were within the current SEPP (AQM) ground level concentration of 308 ìg per m3 but on higher elevations exceeded the proposed draft of 205 ìg per m3.

6.14 Dr Hearn submitted that it was known that Ausplume became inaccurate and overestimated ground level concentrations of pollutant at larger distances. The highest predictions from the Ausplume model result from the model predicting a plume strike on the higher elevations ie hills. This means the model predicts that the plume will collide with the ground, rather than divert around it. This results in dramatically increased ground level concentration predictions. Therefore, he had modelled for the relatively distant locations using Calpuff. Calpuff was a gaussian puff model, which is able to simulate the continuous release of emissions and track the plume as it encounters changing meteorological conditions while moving from the source to the more distant locations. The Calpuff predictions of ground level concentrations at larger distances ie. 20km grid, were well below the limit of the draft SEPP (AQM).

6.15 Dr Ross used a model, TAPM, that his company had recently developed. This was the most sophisticated model described to the Tribunal. The model allowed for the reaction converting NO to NO2 during the time of plume travel. It also modelled the dispersion of O3. Dr Lorimer accepted that TAPM had a great potential for specialist research modelling, particularly of photochemical smog from a broad range of pollutant sources in cities, for which its reliability had been tested. The TAPM O3 results showed that the proposed station would make an insignificant contribution to the current predicted ground level concentrations for O3. In relation to NO2 the TAPM model predicted the current ground level concentration would increase marginally as a result of the power station. The TAPM results predicted readings far below the draft SEPP (AQM).

6.16 Dr Lorimer recommended that the Tribunal should not accept the TAPM results as conclusive. He submitted this on the basis that it was a new model that had not been verified for modelling the contribution of a single source and had not been verified for use in this region. The Tribunal considers there is some weight in Dr Lorimer's submission and did not place a great deal of weight on the TAPM results.

6.17 Dr Lorimer submitted that any modelling should use Ausplume only, as this was the regulatory model developed to meet the requirements of Schedule E. Further, he considers that the modelling boundary assumptions used by Mr Hearn and Dr Ross in their Ausplume modelling was not sufficiently conservative and that his modelling reflected the more conservative boundary criteria. Accordingly, Dr Lorimer's Ausplume modelling, because it predicted a large plume strike, gave results far in excess of the current and draft SEPP (AQM) limits. Dr Lorimer's more conservative boundary criteria were;

(a) the ground level concentrations shall be predicted at the worst possible topographical locations and not at a grid point;

(b) Mr Hearn's modelling did not go far enough spatially and the worst results were for an elevated area to the north of the areas covered by Dr Hearn's Ausplume modelling, this was some 10 kilometres from the power station;

(c) the background Geelong meteorological file is missing data and therefore not the ninth highest hourly reading should be used but it should be the eighth highest hourly reading;

(d) the value of surface roughness used by Mr Hearn and Mr Ross was too high and Dr Lorimer used a significantly lower figure;

(e) the model should be run with the plume travelling horizontally instead of using the Egan Half Height Approach. Dr Lorimer's assumption that Egan Half Height Approach should not be used means that when the plume comes to topography higher than it there must be a plume strike.

6.18 Using liquid fuel Dr Lorimer's modelling using Ausplume predicts an NO2 eighth highest hour concentration of 777 ìg per m3, which is well in excess of the current SEPP (AQM) and the proposed draft. Dr Lorimer's predictions with gaseous fuel and the using the Egan Half Height method to allow the plume to divert at higher topographies gives a prediction of 244 ìg per m3. This is well below the current SEPP (AQM) and is 20% above the proposed draft limit.

6.19 The Tribunal was confused in trying to combine and evaluate the evidence of the individual experts. Accordingly, a conclave of all air emissions experts was held on the last day of the hearing 16 November 2001. At the conclave a number of issues was addressed in turn with a contribution from each of the experts and questioning between the experts. The conclave discussed the reliability of using Ausplume at larger distances and, secondly, it discussed the assumptions and boundary criteria used by the individual modellers. The aspects of the air modelling discussed at the conclave were:

(a) the effect of the assumption in Ausplume that all NOx had been transformed to NO2;

(b) the vertical rate of change of temperature of the atmosphere;

(d) the failure by Mr Hearn to use the vertical rate of change of turbulence within the atmosphere ie. Óè, in the Calpuff modelling.

The conclave also addressed whether it was a requirement of SEPP (AQM) that Ausplume must be used as the regulatory model and what was the effect of using other models.

6.20 The Tribunal sets out below its analysis and conclusions regarding the air emission evidence. This evidence is taken from the experts reports and their evidence and to a large degree from the expert's evidence during their conclave. The Tribunal has analysed the evidence on the basis; firstly, whether the Tribunal considers Ausplume must be used as the model; secondly, in relation to Ausplume the Tribunal will examine the various modelling assumptions. This will result in the Tribunal outlining the evidence it accepts in relation to air emission modelling; and, finally the Tribunal will set out its decisions and conclusions in relation to air emission modelling and the current and draft SEPP (AQM).

It is Dr Lorimer's position that Ausplume must be used in assessing ground level predictions for pollutants as this is required by Schedule E of the SEPP (AQM). The other experts agree that Ausplume is the adopted regulatory model for use with the SEPP (AQM), however, they submit it is recognised that Ausplume overpredicts at distances of approximately 5 kilometres or more from the source. The opinions that Ausplume overpredicts arose as a result of verification studies in the Geelong and Melbourne areas, which showed that Calpuff was more accurate over relatively larger distances. Dr Lorimer submitted that the results of the validation studies both at Corio and elsewhere were somewhat mixed; however, he did concede that Ausplume tends to overpredict with distance. However, he submitted, that a degree of overprediction was small relative to the uncertainty in the model.

6.22 Dr Lorimer's has authored a detailed commentary on Ausplume entitled "The Ausplume Gaussian Plume Dispersion Model", EPA publication Number 264. At paragraph 1.2 "Limitation to the models of Applicability" he comments:

"The empirical dispersion parameters óy and oz are difficult to determine experimentally beyond about 10km from a source, and become meaningless at distances sufficient large for avection effects to dominate over diffusion (which may only be a kilometre or so in complex terrain)."

6.23 At paragraph 2.9 "Terrain effects", Dr Lorimer notes

"areas in which the terrain elevation varies little compared with the effective release height of the source of interest can be treated as effectively flat, in other cases the effects of the terrain must be considered The effect of the terrain on a plume depends on a complex way of topography and atmospheric stability. In stable conditions, the plume may then impact on an obstacle or travel over it very close to the surface, causing high surface concentration. In neutral or unstable conditions, the plume will tend to be lifted over the obstacle. The complexity of the picture is increased by the influence of surface roughness on the flow. Gaussian plume models like Ausplume can only partially simulate these effects. A major constraint is the assumption that the wind speed and direction remain constant throughout the full length of the plume, so that channelling of the flow around and between hills or ranges cannot be handled.

Thus, Dr Lorimer's comments show that Ausplume becomes increasingly inaccurate with greater distance; and, the simplicity of its analysis means that it is unlikely to be accurate when further away from the source. Where the ground elevation is changing quickly ie hills, Ausplume predicts a plume strike; which will obviously give high ground level concentrations.

6.24 In the EPA publication "Asplume Gaussian Plume Dispersion Model Technical User Manual", the Notes to Paragraph 2.18 Terrain Effects state:

Keays v Golden Plains Shire Council [2002] VCAT 93

At a glance

Court

Decision date

Source

Judgment (247 paragraphs)

Keays v Golden Plains Shire Council [2002] VCAT 93 (27 February 2002)

Parties

Legislation Cited (6)