Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning

Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning - [2017] NSWLEC 53 - NSWLEC 2016 case summary — Zoe

[4]

Judgment

Before the Court are two appeals brought pursuant to (now repealed) s 75L of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') against the decision of the Planning Assessment Commission ('PAC') on 11 September 2015, as delegate of the Minister for Planning ('Minister') to approve the project application by Moorebank Recyclers Pty Ltd ('Moorebank') for the construction and operation of a materials recycling facility ('MRF'). The MRF is to process up to 500,000 tonnes per year of masonry construction and demolition waste such as sand, bricks, asphalt and concrete for reuse in the construction industry.
Moorebank is the owner of a rectangular, undeveloped 20.5ha block of land in the suburb of Moorebank on the western bank of the Georges River known as Lot 6 DP1065574 ('site'). The site is surrounded by a residential area to the west, a proposed residential and commercial marina to the north, and a golf course to the south. It is also located within the Liverpool Local Government Area.
The proposed development was declared a major development under s 75B of the EPA Act, and a formal development application was submitted in May 2006. After various delays and the usual Pt 3A processes, the application was referred to the PAC in May 2015, who in turn granted approval for the proposal pursuant to conditions on 11 September 2015.
Subsequent to approval being granted, the two objector appeals presently before the Court were brought pursuant to the former s 75L of the EPA Act. The first of these, filed on 8 October 2015, was initiated by Liverpool City Council ('Council'). The second, which was commenced on 23 October 2015, was brought by Tanlane Pty Ltd ('Tanlane') and Benedict Industries Pty Ltd (together 'Benedict'), which respectively own and occupy the land to the north of the site and are related companies. Both proceedings name the Minister and Moorebank as respondents (albeit in a different order). The proceedings have been heard together and the Court previously directed that evidence in each proceeding be evidence in the other. This is the latest case in a long running series of proceedings between Moorebank, Benedict, Tanlane and, on occasions Council, regarding the development of both the site and the surrounding land some of which are referred to by Biscoe J in Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93 ('Moorebank 88K Proceedings') at [22]-[59].
While there were numerous issues raised in the various Statements of Facts and Contentions in each matter, the issues in dispute were narrowed during the hearing. In summary, Council contended: 1. that the proposed development was incompatible with the existing and future use of the locality and inconsistent with various objects, aims and goals outlined in the relevant planning instruments; 2. that sewage management was inadequate given its proximity to the Georges River; and 3. that there was insufficient information regarding ecology, noise, urban design, air quality, traffic management, flooding, stormwater collection, contamination, waste management and various geotechnical issues.
Conversely, Benedict contended: 1. that the proposed development was generally inconsistent with the future use of the surrounding land and applicable zoning objectives; 2. that the noise, visual and traffic impacts would be unacceptable; and 3. that there was insufficient information available regarding the urban design and traffic impacts of the development.
The Minister's position in relation to each of the appeals is best summarised by his contentions filed in each matter as follows: The Minister disagrees with all of the contentions raised by [Council] and [Benedict] and relies upon the Secretary's Environment Assessment Report dated April 2015, the Planning Assessment Commission's Determination Report dated 11 September 2015, and the Project Approval dated 11 September 2015. The Minister contended that approval should be forthcoming (albeit subject to appropriate conditions) and made submissions primarily in relation to proposed conditions.
For the reasons below, I consider the proposal can be supported primarily on the basis that the proposed land use is consistent with the Liverpool Local Environmental Plan 2008 (NSW) ('LLEP 2008') (and other NSW Government strategic and planning documents) and that, taking into account all relevant issues, the environmental and amenity impacts can be adequately managed by stringent conditions of consent. The conditions, which I intend to impose, provide for consistent and ongoing monitoring, go further than those which were imposed by the PAC and are based upon extensive further evidence marshalled in these appeals, and will ensure a tightly controlled development.
I have been assisted in the hearing of these appeals by Commissioner Chilcott under s 37(1) of the Land and Environment Court Act 1979 (NSW) ('Court Act').
Given the complex subject matter of these appeals, I adopt the following structure in this judgment: 1. first, an outline of the background facts; 2. second, consideration of the task of the Court when undertaking a merits review; 3. third, consideration of Moorebank's preliminary argument regarding issue estoppel and possible abuse of process; 4. fourth, consideration of each of the planning, traffic, acoustic and visual/urban design impacts of the proposed development; 5. fifth, consideration of the air quality, geotechnical, contamination, waste management, aquatic ecology and water management impacts of the proposed development; and 6. sixth, consideration of the disputed conditions of consent.

[5]

The site

The site is approximately 20.5ha and is roughly rectangular in shape, with a thin, 810 metre access route (known as and referred to in these reasons as the 'panhandle') travelling north comprising a dirt road linking the northwest corner of the site to Newbridge Road, and a small appendage extending from the northeast corner to the bank of the Georges River. Whilst approximately two-thirds of the site to the west has been cleared, the eastern third and the appendage remain forested. The site forms part of the Georges River floodplain, and is substantially lower than the land to its west.
The cleared portion of the site is the proposed location for the MRF, and was previously used as landfill by an organisation then known as Collex (now Veolia) from around 1972 to 1979, when it was capped. Whilst only non-putrescible waste was intended for the landfill, investigations have shown that at least some organic waste was deposited in the landfill prior to 1979.
The site is situated at the eastern edge of the suburb of Moorebank. It is surrounded by: 1. to the east, the Georges River; 2. to the north, a former sand mine and gravel premises operated by Benedict (referred to as 'Benedict land' in these reasons and sometimes referred to as 'Tanlane land' in the evidence before the Court). For ease of understanding these reasons, the Benedict land comprises, first, land immediately to the north of the site which is zoned "RE2 - Private Recreational" and is referred to below as the 'RE2 land' which has recently received development consent for use as a marina and, second, land further to the north of the RE2 land which is mostly zoned "R3 - Medium Density Residential", which is referred to below as the 'R3 land', is approximately 22.5ha; 3. to the west, further forested land which, upon reaching Brickmakers Drive, becomes a newly built residential development known as "Georges Fair" (formerly an industrial area known as the "Boral Brickworks"); and 4. to the south, the New Brighton Golf Course, which has been partially redeveloped as a residential development.
Whilst the site is zoned "E2 - Environmental Protection" under LLEP 2008, due to the unique planning history outlined below, the construction of a MRF is permissible with consent.
Before it acquired the land in 1996, Moorebank made clear its intention to seek approval for the construction and operation of a MRF on the site, which required access to Brickmakers Drive across land owned by Council known as Lots 308, 309 and 310 DP111048.
The site does not have any road frontage. As noted above, it is presently accessed by way of the panhandle, which runs from Newbridge Road. It is proposed that an access ramp be constructed which will allow access to the unmade road from Brickmakers Drive, approximately 300 metres south from Newbridge Road.
It is relevant to note that Benedict (or more particularly Tanlane) has development consent from Council (granted in 2007) to construct a road bridge passing approximately six metres above Council land and the adjoining panhandle of Moorebank's battleaxe land. The Benedict land is approximately six metres higher than the panhandle in some sections. When constructed, the road bridge will run between the Benedict land and Brickmakers Drive, a public road owned by Council. Brickmakers Drive runs north-south and connects on the north to Newbridge Road, the major east-west trunk road in the locality. The road bridge will comprise two sections, in the west a solid embankment adjoining Brickmakers Drive and in the east a structure suspended on pylons to join the Benedict land.
Consistent with Council's vision over the past decade and as required by Roads and Maritime Services ('RMS'), the only road access for future developments on the lands in the precinct east of Brickmakers Drive, including the Moorebank and Benedict lands, is via the future road bridge in this location.

[6]

Planning history

As at July 1995, the site was zoned "1(c) - Non Urban" under Interim Development Order No. 75 - City of Liverpool.
During the process of drafting the Liverpool Local Environmental Plan 1997 (NSW) ('LLEP 1997'), a submission was received from Nexus Environmental Planning Pty Ltd ('Nexus') on behalf of an undisclosed client, to have the site rezoned so that a material recycling facility could be developed and operated on the site. Council resolved that LLEP 1997 would allow a MRF to be developed as an additional permitted use on the land, so long as such a provision had a "sunset clause".
Despite the above resolution, the site was rezoned "1(a) - Rural" under LLEP 1997. Operations defined as "Material recycling yards" under cl 6(1) of LLEP 1997 (which would include a MRF) were prohibited on such land pursuant to cl 9 of LLEP 1997.
Nexus, on behalf of Moorebank, who purchased the site in 1996, continued to seek that the land be rezoned. On 25 February 2002, Council formally adopted the non-statutory "Moorebank Structure Plan", which recommended that the site (and part of the land to the north of the site) be used as a MRF with open space, whilst the then Boral sand quarry ('brick pit') being the northern part of the Benedict land (now known as Georges Fair) be used as a residential zone. It provided that the land east of Brickmakers Drive, including the site, the Benedict land, and other land is to be accessed not via Newbridge Road but via a "link road" dedicated to Council as part of the redevelopment of the former Boral brick pit. As a result, Nexus (on behalf of Moorebank) prepared a "Pre-Rezoning Submission" for the site dated 20 May 2002, where it stated Moorebank would agree to the inclusion of a sunset clause in the development consent should it be granted consent for a MRF.
LLEP 1997 was amended on 23 September 2005, rezoning the site as partly 1(a) - Rural and partly "7(c) - Environmental Protection - Conservation", and included a new cl 29 in Sch 4, which stated: So much of Lot 6, DP 1065574, as is within the 1(a) zone and shown edged heavy black with diagonal cross hatching on the map marked "Liverpool Local Environmental Plan 1997 (Amendment No 76)" [be able to be used as a] materials recycling yard, provided that arrangements have been made, to the satisfaction of the Council, for the level of contribution for the provision or upgrading (or both) of arterial roads to service the land.
As part of the standardisation process for Local Environmental Plans ('LEPs') across NSW, LLEP 1997 was repealed and replaced by LLEP 2008. The draft LLEP 2008 sought to rezone the site as partly "SP2 - Drainage", partly "RE1 - Public Recreation" and partly "E3 - Environmental Management". Nexus (again on behalf of Moorebank) submitted to Council on 12 March 2008 that the site be instead rezoned to a rural zoning, with an enabling clause similar to cl 29 of Sch 4 in LLEP 1997 to allow for the development of a MRF.
Council resolved on 5 May 2008 to rezone the site to E2 - Environmental Conservation and to include within Sch 1 of LLEP 2008 a provision which enabled the development of a MRF, on the condition that the effect of the provision was limited to two years. As such, LLEP 2008 which presently applies to the site, zoned the site as E2 - Environmental Conservation, and included the following clause in Sch 1: 11 Use of certain land at Moorebank in Zone E2 (1) This clause applies to Lot 6, DP 1065574 in Zone E2 Environmental Conservation at Newbridge Road, Moorebank. (2) Development for the purposes of a resource recovery facility is permitted with consent. (3) This clause is repealed on 1 September 2018.
On the same date as LLEP 2008 was gazetted, Council adopted the Liverpool Development Control Plan 2008 (NSW) ('LDCP 2008') which provided for residential subdivision for a maximum of 216 dwellings on Benedict land. It also provided for flood free access via a road bridge to Brickmakers Drive prior to any such subdivision. Benedict is progressing the residential subdivision of the R3 land and has consent for a marina on its RE2 land.
Whilst Council resolved on 29 May 2013 both to remove cl 11 from Sch 1 of LLEP 2008 and rezone the site from E2 - Environmental Conservation to RE2 - Private Recreation, no such amendments have been made.

[7]

Development history

On 24 March 2005, prior to the amendments to LLEP 1997, Moorebank lodged an application with Council in relation to bulk earthworks at the site. Whilst the purpose for the earthworks was to facilitate the later construction of a MRF, this did not form part of the application. On 29 June 2006, Council granted consent to the earthworks subject to conditions ('earthworks consent'). Whilst the bulk of the works required under the earthworks consent have not been undertaken, it was found in Benedict Industries Pty Ltd v Minister for Planning; Liverpool City Council v Moorebank Recyclers Pty Ltd [2016] NSWLEC 122 that engineering and construction works had commenced on the site, and that the earthworks consent has not lapsed pursuant to s 95 of the EPA Act (as it existed at that time) which provides for the lapsing of development consents which are not physically commenced within five years after consent is granted.
On 19 December 2005, approximately two months after cl 29 was added to Sch 4 of LLEP 1997, the Director-General of the Department declared that the development of a MRF on the site was a major project to which Pt 3A of the EPA Act applied. Approximately a month later, on 26 January 2006, Moorebank submitted a "Preliminary Environmental Assessment" to the Department, which was followed on 2 May 2006 with a "Major Developments Application" that sought approval for a MRF with an annual capacity of 500,000 tonnes.
Pursuant to s 75F(2) of the EPA Act, the Director-General's requirements ('DGRs') were issued on 8 July 2006. No formal response to the DGRs was received, and amended DGRs were issued on 7 July 2008.
One of the key issues in the DGRs was access to the site. As noted above, the site may presently only be accessed by way of the panhandle from Newbridge Road. However, on 29 January 2009, Council consented to the lodgement of an application under Pt 3A of the EPA Act for the construction of a ramp from Brickmakers Drive to the unmade road over Lots 308 and 309 in DP 1118048, which were owned by Council.
On 19 February 2013, Moorebank submitted its "Environmental Assessment" of the proposed development ('original EA') to the Department, which was put on public exhibition pursuant to s 75H(3) of the EPA Act between 28 February 2013 and 5 April 2013. As a result, Moorebank submitted its "Preferred Project Report" on 15 August 2013, pursuant to s 75H(6) of the EPA Act, which was again put on public exhibition between 9 October 2013 to 8 November 2013.
In April 2015, the Secretary's "Environmental Assessment Report" was published pursuant to s 75I of the EPA Act ('Secretary's EAR'), and the proposed development was referred by the Minister to the PAC on 1 May 2015. After a series of meetings and site visits, the PAC granted consent subject to detailed conditions to the development on 11 September 2015 that forms the subject of these appeals.

[8]

The proposed development

The proposed MRF, as described in the Secretary's EAR and shown on the plans for which Moorebank now seeks approval, occupies the northern half of the cleared portion of the site. It is proposed that uncrushed building waste will be deposited in stockpiles up to seven metres high in the southern half of the development area, which will be put through both a primary and secondary crusher located in the northern half of the proposed development. The crushed waste would then be separated into its component parts, and placed in finished product stockpiles up to four metres high in the northernmost part of the proposed development. The facility will process up to 500,000 tonnes per year of construction waste.
Given that the site forms part of the Georges River floodplain, it is proposed that mounds be raised in a roughly rectangular shape around the proposed MRF to six metres Australian Height Datum, or "AHD" (i.e. six metres above sea level). It is proposed that the northwest corner will not require such a mound, given that it is already six metres AHD, and will act as an access point for vehicles.
Given that the proposed MRF will create a substantial amount of noise, it is proposed that this be mitigated by the inclusion of six metre high noise walls for the northern third of the proposed development, and four metre high walls for the southern two-thirds of the development. The walls travel along the mounds, and are designed so that they protrude from the peak of the mounds. No noise walls are proposed for the mound traversing the southern end of the development, nor the northwest entrance.
With regard to access, trucks will enter the proposed development through the northwest entrance through gates, go over a weighbridge and travel within the mounds to deposit their loads at the stockpiles towards the south of the proposed MRF. They will then go through a "wheel wash", over an exit weighbridge, and leave through the same entrance as they entered.
The trucks will arrive and leave the proposed development via part of the unmade road. However, given that RMS advised in a letter dated 19 April 2013 that access should be restricted to Brickmakers Drive rather than Newbridge Road, it is proposed that ramps be constructed at the location of the proposed bridge (referred to in [17] above) from Brickmakers Drive to the Benedict land, approximately 300 metres south of Newbridge Road. This bridge will be connected to Brickmakers Drive by an as yet unnamed road ('unnamed road'). The ramps (and the bridge) are to be built on an easement over Council held land zoned R3 - Medium Density Residential, being Lot 309 of DP 1118048.
Given that it is proposed that all traffic entering the property will be coming south along Brickmakers Drive from Newbridge Road, and all exiting traffic will head north along Brickmakers Drive towards Newbridge Road, Moorebank proposes that two ramps be built on either side of the proposed bridge (and the unnamed road). To the north of the bridge, it is proposed that a ramp be built entirely separate to the bridge, which allows trucks to veer off Brickmakers Drive, head down the ramp, and under the bridge onto the panhandle. However, with regard to the exiting traffic, it is proposed that: 1. the traffic travels up a ramp from the panhandle, which curves towards the east; 2. this ramp, which travels upwards, plateaus and then slopes slightly downwards as it intersects with the unnamed road, approximately 60 metres from the intersection with Brickmakers Drive; 3. there will be a gate on the ramp (approximately 30 metres from the intersection with the unnamed road) that may be used to prevent trucks from going up the ramp, and a stop sign at the intersection with the unnamed road giving priority to traffic coming from the bridge; and 4. if clear, the trucks enter the unnamed road heading west, and then must turn right (being north) onto Brickmakers Drive at either a 'stop' or 'give way' sign.
Given that these trucks will make a considerable amount of noise, it is proposed that two further noise walls be constructed. The first noise wall is proposed to be constructed on the southern side of the entrance ramp, and continue along the centre of the panhandle (between the southbound and northbound lanes) for approximately 150 metres from the bridge. The second noise wall is proposed to be constructed on the southern side of the exit ramp, and continue southbound on the western edge of the panhandle for approximately 390 metres from the bridge. Both proposed noise walls start approximately four metres from Brickmakers Drive (to allow for visibility), and begin at one point five metres, gradually increasing to four metres as the AHD of the ramps (and panhandle) drops. No noise wall is proposed for the eastern side of the panhandle.

[9]

Statutory framework

Whilst Pt 3A of the EPA Act was repealed on 1 October 2011, it still applies to the present development pursuant to cl 2(1)(d) of Sch 6A of the EPA Act, as environmental assessment documents were duly submitted prior to its repeal. As such, the relevant version of the EPA Act for the purpose of these proceedings is that which existed immediately prior to its repeal pursuant to cl 3 of Sch 6A of the EPA Act.
Approval was granted by the Minister (through the PAC) on 11 September 2015 pursuant to s 75J of the EPA Act, which relevantly provides: 75J Giving of approval by Minister to carry out project (1) If: (a) the proponent makes an application for the approval of the Minister under this Part to carry out a project, and (b) the Director-General has given his or her report on the project to the Minister, the Minister may approve or disapprove of the carrying out of the project. (2) The Minister, when deciding whether or not to approve the carrying out of a project, is to consider: (a) the Director-General's report on the project and the reports, advice and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and (b) if the proponent is a public authority - any advice provided by the Minister having portfolio responsibility for the proponent, and (c) any findings or recommendations of the Planning Assessment Commission following a review in respect of the project. (3) In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit. (4) A project may be approved under this Part with such modifications of the project or on such conditions as the Minister may determine. (5) The conditions of approval for the carrying out of a project may require the proponent to comply with any obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).
As outlined above, I find that Moorebank has made an application for approval of the project, and that the Secretary of the Department (in lieu of the Director-General) has provided an assessment report to the Minister, meaning that both the preconditions in s 75J(1) of the EPA Act have been met.
The present appeals have been brought pursuant to s 75L of the EPA Act, which states: 75L Appeals by an objector (1) This section applies to a project if: (a) it is not a critical infrastructure project, and (b) there has been no approval of a concept plan for the project under Division 3, and (c) the project has not been the subject of a review by the Planning Assessment Commission, and (d) but for this Part, the project would be designated development to which the provisions of Part 4 would apply. (2) For the purposes of this section, an objector is a person who has made a submission under section 75H by way of objection to an application for approval under this Division to carry out a project. (3) An objector who is dissatisfied with the determination of the Minister under this Division to give approval to carry out a project may appeal to the Court within 28 days after the date on which notice of the determination was given in accordance with the regulations. (4) If such an appeal is made, the proponent and the Minister are to be given notice of the appeal, in accordance with rules of court, and are entitled to be heard at the hearing of the appeal as parties to the appeal.
It is clear on the evidence that the proposed development is not a critical infrastructure project and is not the subject of or related to a concept plan. Further, were it not for Pt 3A of the EPA Act, I find the proposal would have been classified as a "designated development" pursuant to s 77A of the EPA Act and cl 16 of Sch 3 of the Environmental Planning and Assessment Regulation 2000 (NSW). I also find that the development has not been the subject of a review by the PAC. Under s 23D of the EPA Act, the function of reviewing a development is a separate function to the delegation of authority to approve or disapprove a development, as was done in these proceedings. Finally, I find that both Council and Benedict are objectors, as they independently made submissions against the proposed development on 5 April 2013 (although Benedict Industries Pty Ltd made an application on behalf of Tanlane Pty Ltd, I consider this to be sufficient).
The powers of the Court on a merits appeal are outlined in s 39 of the Court Act, which relevantly states: 39 Powers of Court on appeals (1) In this section, "appeal" means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. … (7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court. …

[10]

Legal principles

When undertaking a merits review, the Court has regard to the following principles: 1. the Court has all the functions and discretions that were held by the consent authority that originally approved or disapproved the proposed development, including any restrictions on those functions and discretions: s 39(2) of the Court Act and ss 75J(2) and 75R(3) of the EPA Act; 2. a merits review is a rehearing, and the Court makes its decision based on the evidence that is before it, rather than solely the evidence that was before the consent authority: s 39(3) of the Court Act; 3. the Court must have regard to relevant legislation, regulations, planning instruments, the circumstances of the matter before it and the public interest (including community responses and the principles of ecologically sustainable development ('ESD')): s 39(4) of the Court Act, Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [39], [56] (Hodgson JA, with Campbell JA agreeing) and Bulga Milbrodale Progress Association Inc v Minister for Planning [2013] NSWLEC 48; (2013) 194 LGERA 347 at [63] (Preston CJ of LEC) ('Bulga'); 4. the Minister (and therefore the Court) must also have regard to the Secretary's EAR, and any findings or recommendations from the PAC: s 75J(2) of the EPA Act; 5. the effect of s 75R(2) and (3) is that State Environmental Planning Policies ('SEPPs') and LEPs do not apply at the determination stage of a Part 3A project: Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 at [76]-[112]; Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33 at [215]; (2011) 182 LGERA 370; Ironstone Community Action Group Inc v NSW Minister for Planning [2011] NSWLEC 195 at [25]; 6. nevertheless, the Court may take into account the provisions of SEPPs and LEPs that would otherwise apply, pursuant to s 75J(3) of the EPA Act. Taking those instruments into account does not require the Court to apply their provisions by their strict terms, even if it were persuaded that it would otherwise be appropriate to take them into account: Ironstone at [29]; 7. the Court is to look at whether the preferable decision, based on the evidence, is to approve or disapprove the proposed development: Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [172] (Bathurst CJ, Beazley P and Tobias AJA) ('Warkworth'); 8. the Court has the power to impose conditions on a development if the preferable decision is to approve the project: s 75J(4) of the EPA Act.

[11]

Merits review - relevant considerations

The amended DGRs dated 7 July 2008 identified a number of "Key Issues", including site access, traffic and transport, waste management, air quality, noise, soil and water issues, visual impact, impact on flora and fauna, hazards associated with handling potentially hazardous materials, fire management, and Aboriginal and non-Aboriginal heritage.
I have considered the Secretary's EAR dated April 2015, the PAC's "Determination Report" dated 11 September 2015 as well as the "Project Approval" dated 11 September 2015 in addressing the parties' contentions.
The Secretary's EAR outlined and addressed five key issues, being traffic impacts, noise impacts, air quality, flooding and visual amenity impacts. Whilst it also considered stormwater, contamination, ecology, property values, sewerage, heritage, streetscape and geotechnical issues, it determined that each of these was not a key issue, and as such only undertook a brief assessment of each.
The PAC, who provided a Determination Report dated 11 September 2015 when it approved the project, considered that the use of the site was permissible under the existing planning instruments and stated that the four key issues were road access and traffic, noise impacts, air quality and health concerns, and flooding. Whilst it also considered the sufficiency of onsite parking, the visual impacts of the proposed development, the height of stockpiles, access of construction vehicles from Newbridge Road and possible alternative sites for the project, these were not of key concern.
As noted at [5] above, Council contends that the key issues are consistency with relevant planning instruments, sewage management, ecology, noise, urban design, air quality, traffic management, flooding, stormwater collection, contamination, flooding, waste management and various geotechnical issues. Benedict's list of relevant matters is substantially shorter, contending that the Court should consider consistency with the surrounding land use, noise impacts, visual impacts and traffic impacts.
However, as the hearing (which occupied 11 hearing days) progressed, it became clear that subject to the proposal being otherwise acceptable, a number of the issues raised by Council and Moorebank could be resolved by granting approval subject to certain conditions. In particular, the parties accepted that the extensive expert evidence from the air quality, geotechnical, contamination and waste management, aquatic ecology and water (sewage, stormwater and flooding) experts meant that, should the proposal be otherwise acceptable, each of these issues could be adequately addressed by the imposition of certain conditions.
There was considerable community interest and opposition to the proposal. Detailed written and oral evidence was received from local objectors during the hearing. Most of the objectors' concerns fell within the discrete issues identified by the parties.
Accordingly, having regard to these issues, and the concerns raised by the community, I consider that the four primary issues that require detailed consideration are: 1. first, the planning and community context of the proposed development; 2. second, the traffic management impacts; 3. third, the acoustic impacts; and 4. fourth, the visual/urban design aspects.
Whilst it was accepted that if these issues could be appropriately dealt with, the other contentions could be addressed by way of the conditions ultimately agreed to by the relevant experts, because of the level of community concern and the fact that these issues raised legitimate concerns, I also consider it relevant to consider the evidence relating to those issues and in the context of what I consider to be the four primary issues.

[12]

Merits review - preliminary matter - issue estoppel - earlier undertaking

Before proceeding, it is important to deal with a preliminary matter that was raised by Moorebank regarding issue estoppel and an earlier undertaking given by Tanlane, (and for present purposes Benedict).
In opening submissions Moorebank submitted that a number of the planning issues now sought to be agitated by Council and Benedict were addressed and determined in Moorebank's favour in Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93 in a manner that should influence this Court. Further, it was submitted that Benedict should not be permitted to raise certain contentions (primarily in relation to traffic matters) because of an undertaking given in the Moorebank 88K Proceedings.
Moorebank submits: 1. that "most" of the planning issues raised by the Council and Benedict were addressed by Biscoe J and that his Honour's findings in relation to three distinct matters bind the parties to these proceedings by way of issue estoppel (as per Mirvac Homes Pty Ltd v Parramatta City Council (2000) 111 LGERA 233 at [23]). These three distinct matters are: 1. first, whether a MRF is still "appropriate for the area"; 2. second, whether cl 11 "has anything to say about restricting the period of the use"; and 3. third, whether the approach of the EPA suggesting that, if a residential development is not approved (for the Benedict land), it would be unreasonable not to support the proposed facility because approval for residential development is not guaranteed and that noise mitigation measures could be incorporated in any residential development approval. 1. as a separate matter, as a result of earlier proceedings brought by Tanlane against Moorebank seeking imposition of easements under s 88K of the Conveyancing Act 1919, Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445, the Supreme Court imposed easements (over part of the panhandle for the construction and use of the bridge) on particular terms and conditions ('Tanlane Easement') which included: The owner of the lot benefited [Tanlane] may not interfere with the use of the road, bridge abutment and ramps the subject of the Moorebank Easement without obtaining the written prior consent of the owner of the burdened land [Moorebank], such consent not be unreasonably withheld. 1. further, in Moorebank 88K Proceedings, an undertaking ('Tanlane Undertaking') was given by Tanlane, as noted by Biscoe J in orders made in 8 July 2013, as follows: The Court notes that Tanlane undertakes to the Court and to Moorebank that it will not; (a) interfere with the construction, maintenance and use by Moorebank of the bridge, road, bridge abutment and ramps in accordance with the easement imposed pursuant to order 1 above (including for the avoidance of doubt, it will not engage in any activity that would interfere with the future construction, maintenance and use of the bridge, road, bridge abutment and ramps by Moorebank) without the prior written consent of the Council, such consent not to be unreasonably withheld… 1. based upon the above, Benedict is not only prevented from interfering with Moorebank's use of the road bridge, but from engaging in any activity that would interfere with the "future… use… by Moorebank… of the bridge, road, bridge abutment…"; 2. accordingly, Moorebank submits that the effect of the above, is to impose an obligation on Benedict not to raise issues concerning traffic. By raising those contentions, Moorebank submits that Benedict is adopting a position inconsistent with that taken by it in the earlier Moorebank 88K Proceedings, and it is therefore not open to Benedict to advance a different position in respect of the same matters (that is the proper traffic management of the road bridge); and 3. additionally, it was submitted that Benedict's contention in these proceedings, that there will be an irreconcilable conflict between Moorebank's trucks travelling to and from the MRF and the likely traffic from Benedict's proposed marina and residential development traffic, raises "interferences" with Moorebank's rights at two levels - first, the proposed marina and residential developments will themselves amount to an interference with Moorebank's use of the bridge and, second, the conduct of these appeals deprives Moorebank of "the benefit of the bridge" for its intended purpose of operating the facility.
Finally, Moorebank submitted that even if the findings (in [59(1)] above) do not "bind" the parties, judicial comity dictates that this Court should follow Biscoe J's decision unless "convinced that it is wrong" (in accordance with the principles enunciated in Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 at [90]).
In response to Moorebank's position regarding the issue estoppel, Benedict submitted: 1. Moorebank should not be allowed to raise these complaints (and objections) as late as it did - during opening submissions. There have been several iterations of the contentions filed by the parties and several directions and interlocutory hearings when the question of issue estoppel or any other constraint was never raised or, more relevantly, pleaded. Expert evidence (specifically in relation to planning and traffic) has been prepared and exchanged on behalf of all parties and the experts have all produced joint reports without any suggestion there was a concern regarding issue estoppel. In the circumstances, Moorebank should be bound by its conduct and the Court should not entertain any arguments at this late stage; 2. it is clear that Moorebank had brought the Moorebank 88K Proceedings against Council, seeking orders pursuant to s 88K for the grant of an easement over Council's land to allow the construction of access ramps to the road bridge and were concerned specifically with s 88K and not the matters the subject of these proceedings; the reasons of Biscoe J demonstrated that much of the extensive expert evidence marshalled in those proceedings (including structural engineers, hydrologists, ecologists, traffic experts, acoustic experts, air quality experts, planners and valuers) went beyond "anything that has to be determined in these proceedings"; and 3. it is "plainly apparent" that his Honour did not "conclusively determine" any of the planning issues that are relevant to this Court's decision in these s 75L objector proceedings. Benedict further submitted that his Honour "went out of his way" to expressly state in the judgment that he was not required to decide such planning issues.
In response to Moorebank's reliance upon the Tanlane Undertaking and the Tanlane Easement, Benedict submits: 1. the Tanlane Undertaking is significantly different to the matters sought to be raised before this Court. There is no breach. It gives the example that Benedict's contention 5 (as it then was) that there had been "inadequate resolution of the conflict between heavy industrial traffic and future residential/marina traffic" and the matters before Biscoe J where Moorebank was seeking to obtain physical means of ingress and egress to the Moorebank land via the road bridge pursuant to the terms of an easement; 2. it is clear from Biscoe J's reasoning that the grant of the easement did not restrict the right of the present applicants to object to the MRF in respect of the use of the road and the bridge and the like; 3. Moorebank's submissions mischaracterise Benedict's contentions which do not "interfere" with Moorebank's use of the road and the bridge (even considering that none of the infrastructure has been built). Neither Moorebank nor Benedict can "interfere" with the others "use" of the road and bridge etc. because no such road or bridge exists; 4. further, Moorebank's submission that the prohibited "interference" goes beyond physical interference and extends to the applicants "interfering" with Moorebank's future or potential use of the road, should be rejected because in the earlier proceedings, the parties contemplated that both Benedict and Moorebank would be entitled to use the road and bridge and the use was subject to Moorebank obtaining the necessary consent for its MRF; and 5. the use of the word "interfere" in both the easement and the undertaking was to be interpreted in accordance with the concept of interference with an easement, namely, that, to constitute an actionable interference, it must be a substantial interference with the enjoyment of the rights created by the easement.

[13]

Consideration

The "place" of issue estoppel in Australian law has been relatively recently considered by the High Court in Tomlinson v Ramsey Food Processing (2015) 256 CLR 507 at [20]-[22] (Tomlinson) where the following was stated: [22] Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. …The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. … The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument. [Footnotes omitted and emphasis added.]
I find that both Benedict and Council are entitled to advance contentions and call evidence relating to traffic and other impacts. The words of the Tanlane Easement and the Tanlane Undertaking (referred to at [59] above), and the conduct of the Moorebank 88K Proceedings, do not prevent the issues being raised by the applicants in these proceedings for the following reasons: 1. the "interfere" constraint on Benedict in the undertaking should be considered to refer to the concept of interference with an easement, namely, that to constitute an actionable interference, it must be the result of a substantial interference with the enjoyment of the rights created by the easement. The manner in which the Court has dealt with such an interference is clear (see Powell v Langdon (1944) 45 SR (NSW) 136-139 per Roper J; Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 at [25] per Brereton J). Exercising a right to appeal pursuant to s 75L of the EPA Act is a right specifically granted to an objector (being a person who has made a submission under s 75H by way of objection to an application for approval under Pt 3A); 2. the findings of Biscoe J do not bind the parties to these proceedings by way of issue estoppel because his Honour did not, in my view, make findings on any town planning issue in any sense other than that which was required to deal with the required considerations pursuant to s 88K; 3. I do not accept Moorebank's submissions that his Honour was "required to decide and in fact decided" the three matters noted at [59] above as, again I find that, on a considered reading of the decision of Biscoe J, it is clear that his Honour was primarily focused upon the consideration of the matters required pursuant to s 88K; 4. I do not accept the position that the concept of judicial comity arises because, as I have found above, his Honour was not considering the three matters (nor necessarily resolving similar issues) as a "step in reaching the determination" (Tomlinson at [22]) in a planning sense but rather was looking at the matters for the purpose of s 88K; 5. finally, although Moorebank raised the fact of the Moorebank 88K Proceedings in its Statement of Facts and Contentions in Reply (filed 11 January 2016), it was not suggested (nor pleaded) that those proceedings raised any concern regarding issue estoppel or a potential restraint flowing from the Tanlane Easement or the Tanlane Undertaking. In circumstances where expert traffic (and other) evidence, including conclaves and joint reports had been marshalled by all parties, the failure of Moorebank to raise the question of issue estoppel until the first day of the proceedings and then attempt to exclude expert evidence leads me to the view that Moorebank should be bound by its conduct and the Court should not entertain the issue estoppel argument at such a late stage.
After the conclusion of the hearing, Moorebank and Benedict each provided further submissions in relation to whether this Court or the Supreme Court is the appropriate forum to determine the suggested breach of the Tanlane Undertaking, bringing to my attention the very recent decision of the Court of Appeal in Young v King [2016] NSWCA 282. In light of my findings above, it is not necessary to determine this issue.

[15]

Legislative objects

Ms Laidlaw and Mr Mitchell variously took the position that the development was contrary to the legislative objects of the EPA Act, and also contrary to both the aims of LLEP 2008 and the objects of the E2 - Environmental Conservation zone. Mr Kennan did not agree.
With regard to the relevant legislative objects of the EPA Act, s 5 provides: 5 Objects The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, … (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and (vii) ecologically sustainable development.
Mr Mitchell stated that the proposed development does not represent the proper management, development or conservation of natural and artificial resources, and as such fails to promote the social and economic welfare of the community, given its social impacts on the surrounding areas.
Both Ms Laidlaw and Mr Mitchell stated that the proposed development did not promote or coordinate the orderly and economic use and development of the site, as it is incompatible with the surrounding, existing and proposed land uses. Ms Laidlaw also opined that the proposed development was so inappropriate that the costs of resolving the conflict between land uses would not be outweighed by the benefits of developing the MRF. Mr Kennan, however, stated that there were significant economic benefits of developing a MRF, and that orderly and acceptable use could be achieved by the imposition of adequate conditions.
Mr Mitchell further stated that the proposed development failed to protect the environment, and raised a number of issues which had not been addressed in prior ecological studies of the site.
Mr Mitchell finally stated that the development did not abide by any of the four principles of ecologically sustainable development. However, Mr Kennan was of the opinion that the proposed development was consistent with the principles of ecologically sustainable development.
Having regard to their opinions in relation to these matters and having considered the statutory and non-statutory policies referred to further below, I find that: 1. with regard to intergenerational equity, which requires that the present generation ensures that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations, I find that whilst there may be some impacts, the proposed development would provide an environmental benefit through the recovery of concrete, brick, asphalt, sandstone and sand from the waste stream for the building and construction industry in the Sydney metropolitan area. I also find that the proposed development would divert building and construction waste from the waste stream which might otherwise have been directed to landfill, thus reducing environmental impacts to existing landfill operations, assisting in extending the lifespan of such landfill operations and assisting in stalling the need for the creation of new landfill sites; 2. with regard to orderly and economic use of development of land and improved valuation, pricing and incentive mechanisms, I do not accept Mr Mitchell's opinion that environmental factors "particularly amenity impacts for future residents" have not been properly considered in the costs and benefits of the facility and I accept the opinion of Mr Kennan that the proposal would provide incentives to recycle waste rather than dispose of that waste to landfill and this itself will provide an economic incentive to recycle waste; 3. with regard to the precautionary principle, which requires that if there are threats of serious or irreversible environmental damage, a lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation, the proposed conditions of development (dealt with below) represent adequate measures to meet any threats of serious or irreversible environmental damage, and address Mr Mitchell's concerns regarding the "serious environmental damage to the amenity of the surrounding residential area"; and 4. with regard to the conservation of biological diversity and ecological integrity, I accept, on the detailed evidence reviewed below, that while there may be some potential impacts to biological diversity and ecological integrity which are unknown, the potential for operational indirect impacts has been appropriately addressed in the expert material.
With regard to LLEP 2008, the relevant legislative aims are: 1.2 Aims of Plan … (2) The particular aims of this Plan are as follows: (a) to encourage a range of housing, employment, recreation and services to meet the needs of existing and future residents of Liverpool, (b) to foster economic, environmental and social well-being so that Liverpool continues to develop as a sustainable and prosperous place to live, work and visit, (c) to provide community and recreation facilities, maintain suitable amenity and offer a variety of quality lifestyle opportunities to a diverse population, … (e) to concentrate intensive land uses and trip-generating activities in locations most accessible to transport and centres, (f) to promote the efficient and equitable provision of public services, infrastructure and amenities, (g) to conserve, protect and enhance the environmental and cultural heritage of Liverpool, (h) to protect and enhance the natural environment in Liverpool, incorporating ecologically sustainable development, (i) to minimise risk to the community in areas subject to environmental hazards, particularly flooding and bush fires, (j) to promote a high standard of urban design that responds appropriately to the existing or desired future character of areas.
Ms Laidlaw took the position that the proposed development was contrary to each of these aims and the zone objectives noted below, primarily due to the impact that the MRF would have on the surrounding community. In particular she opined that the proposal was contrary to the social wellbeing of future residents, by reason of the increased isolation likely to arise by interposing a regular flow of heavy vehicle movements along the northern section of Brickmakers Drive and along the main gateway to the area immediately north of the site. Further, she stated that the proposal is likely to discourage use by Georges Fair and Moorebank residents of existing and new recreational facilities along the Georges River, and to that extent, the use is inconsistent with efficient and equitable provision of public amenities.
Whilst accepting that the proposal had benefits in terms of ecologically sustainable development objectives, she maintained that the proposal had significant disbenefits by entrenching a high impact industrial use that "…effectively precludes any realistic prospect that this [site] will ever be restored as part of the riparian zone of the Georges River". Finally, she opined that through both on and off site impacts, the proposed MRF presented a land use that is fundamentally inconsistent with the aim of achieving a higher standard of urban design that responds appropriately to the existing and desired future character of the area. She opines that this aim would not be such a problem if the MRF was to be located in a remote non-urban area or within an industrial area, however, it is a significant problem given the "higher amenity expectations" raised through the underlying zoning and desired future character both at the site and the surrounding residential, recreational and public reserve land uses.
Mr Mitchell generally agrees with Ms Laidlaw and opines, more generally that the proposal was "fundamentally at odds with the planning for the area".
Conversely, Mr Kennan considered that only subcls (h) and (i) were of some direct relevance. In particular, in regard to the sustainability of the proposed development, Mr Kennan referred to various policies such as the NSW Waste Avoidance and Resource Recovery Strategy 2014-21, the "objectives and targets" of which include the avoidance and reduction of waste regeneration, the increase in recycling, the diversion of waste from landfill, the better management of problem wastes and the reduction in litter and reduction in illegal dumping. Mr Kennan opines that the proposed MRF would provide an effective means of achieving those policy objectives. Mr Kennan also stated that the proposal would reduce haulage distance and time for recycled products, reduce the number of trucks on some metropolitan roads and provide cost savings to the industry. He further supports his opinion by reference to Sch 2 of the Environmental Planning and Assessment Regulation 2000 (NSW), which provides parameters for assessment with regard to the principles of ecological sustainable development.
Mr Kennan also opined that there are significant economic benefits to be had by the establishment of the proposal and, with appropriate conditions in place, the proposed use would encourage the orderly and economic use of the site.
The planning experts also considered the zone objectives, noting that the site is zoned E2 - Environmental Conservation. Under LLEP 2008, the objects of the E2 zoning are: To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. To prevent development that could destroy, damage or otherwise have an adverse effect on those values. To enable the recreational enjoyment, cultural interpretation or scientific study of the natural environment.
There was controversy as to the weight to be attributed to these objectives considering the fact that a MRF is permissible with consent pursuant to cl 11 of Sch 1 of LLEP 2008 and the operation of s 75R(3) of the EPA Act.
Mr Kennan opined that the proposed development was consistent with these objectives as it would at the least not prevent those objects from being realised. Conversely, Ms Laidlaw and Mr Mitchell adopting their positions summarised above, took the position that the proposed development was incompatible with the E2 zoning, as whilst the present site, a capped landfill, does not have high ecological, scientific, cultural or aesthetic value, the proposal does not seek to develop the site in a way that restores those values. Further, Ms Laidlaw stated that the proponent has not reconciled the fact that the development of a MRF would effectively prevent recreational enjoyment, cultural interpretation or scientific study of the natural environment.
I find that the proposed development does not fit comfortably within the objects of the E2 zoning under LLEP 2008 and with a number of the aims of LLEP 2008. It is clear that any MRF with the capacity to process 500,000 tonnes of construction waste per year that involves up to 324 truck movements per day does not necessarily enable the use of the land for an environmental purpose, and does not seek to protect, manage or importantly restore the environmental value of the land. I do note however that there will be benefit flowing from the proposed remediation measures to be adopted.
However, I also consider this to be of limited weight. Whilst the Court must have regard to planning instruments pursuant to s 39(4) of the Court Act, as I have noted at [47] above, it is not bound by local environmental plans pursuant to s 75R(3) of the EPA Act (Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 at [77]-[85]; Bulga at [48]-[49]; Ironside at [25]).
Even if the aims of LLEP 2008 and objectives of the E2 - Environmental Conservation zone are taken into account it would not necessarily lead to the conclusion contended for by Mr Mitchell and Ms Laidlaw. No part of the land proposed for development could be said to be in an area of "high ecological, scientific, cultural or aesthetic" values nor could it be said that the proposed MRF might adversely impact upon those values. As noted below in relation to the evidence of the various ecological and contamination experts, it is clear that there is agreement amongst those experts that the proposal would not have adverse environmental outcomes subject to the imposition of the extensive conditions agreed between those experts. This is particularly so in relation to the extensive conditions that require ongoing monitoring and validation.
In relation to Ms Laidlaw's concerns regarding the impact of the MRF on the surrounding community and in particular the social wellbeing of present and future residents and the use of existing and "new recreation facilities along the Georges River" as well as the on and off site impacts, I find that with appropriate conditions and environmental safeguards including ongoing monitoring, the MRF is not fundamentally inconsistent with the aims of the plan.
Furthermore, the various waste policies, such as the NSW Waste Avoidance and Resource Recovery Strategy 2014-21 and the legislation such as, initially, the Waste Minimisation and Management Act 1995 (NSW) and later the Waste Avoidance and Resource Recovery Act 2001 (NSW) have improved awareness of waste management, and seek to encourage the avoidance of unnecessary resource consumption. Further, the Waste Avoidance and Resource Recovery Act 2001 (NSW) has as its policy objectives, the encouragement of the most efficient use of resources and the reduction of environmental harm in accordance with the principles of ecological sustainable development and, inter alia, the minimisation of the consumption of natural resources and the final disposal of waste by encouraging the avoidance of waste and the reuse and recycling of waste. I accept Mr Kennan's evidence that the proposed MRF will provide an effective means of assisting in reduction of the total waste stream to landfill through recovery and recycling. I also note, and accept, the analysis of NSW Waste and Avoidance and Resource Recovery Strategy 2014-21 under the heading "Strategic and Statutory Context" in the Secretary's EAR.
I note Ms Laidlaw's evidence that these "macro" benefits could be achieved by locating the MRF in a more appropriate environment (such as designated industrial areas). However, first, this does not reduce the proposal's likely contribution to the waste hierarchy and second, while there may be more appropriate locations, this does not suggest that the current location is inappropriate if, as I have found, appropriate safeguards as to environmental and amenity concerns can be addressed.
In any case, apart from s 75R(3) of the EPA Act, it is clear when the objects of the E2 zone are read in the context of cl 11 of LLEP 2008 that Council, the drafter of the instrument, (then) intended that a MRF could be developed on the land regardless of the zoning of that land. As such, I find that the fact that the proposed development may contravene one or more of the objects of its zoning to be of marginal weight.
In addition, I accept Moorebank's submission that there are substantial remediation works to be undertaken on the site as part of the Remedial Action Plan prepared by Dr Sophie Wood (and accepted by the contamination and waste management experts - see [194]-[201] below). Further, I accept that the remediation of the site is unlikely to occur but for this proposal.

[16]

Permissible uses

The proposed MRF is permissible with consent as a result of the operation of cl 11 of Sch 1 of LLEP 2008. At hearing there was no suggestion that a MRF was not permissible.
I note that submissions were earlier made that this is not the case, and that cl 11 is (for want of a better phrase) a "sunset clause" restricting the operation of any MRF on the site. This is an incorrect interpretation of the provision. Where the language of a provision has a clear natural and ordinary meaning, there is no need to look beyond the text of the instrument: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161-162; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.
To the extent that cl 11 only prohibits approvals being granted after 1 September 2018, Ms Laidlaw relying on the planning history was of the opinion that this still "raises a flag" for any consent authority regarding whether the proposed development would be appropriate after this date. Mr Kennan disputed this, and stated that the planning history of the site was of "virtually zero" value, and that the "sunset" date on the granting of the consent did not have any implications for the appropriateness of developing a MRF at the site.
Benedict and Council submitted that it is not how cl 11 is interpreted that is relevant, but how it is applied and submitted that the effect of cl 11(3) (generally in accordance with the evidence of Ms Laidlaw) was to rezone the site, therefore the Court should accept that from September 2018 a MRF is not only impermissible but that such use after that date is incompatible with residential development in the locality. They further submit that this was a deliberate intention of the drafter (and Council) to restrict such use given the residential and other land uses on the land to the north of the site, and that cl 11 was drafted to give "maximum flexibility" to a consent authority such that the present proposal should not be permitted and, in the alternate, the use of the site as a MRF should be subject to a sunset clause.
There was extensive evidence called in relation to planning history. Given my findings above, specifically in relation to cl 11, I have not placed weight upon the planning history. My reasons may be briefly stated.
First, because I consider it clear that cl 11 expressly permits development for the purposes of a "resource recovery facility" other aspects of LLEP 2008 must be regarded with some caution (irrespective of s 75R(3) of the EPA Act). As such I do not consider it appropriate to give significant weight to the objectives of the E2 - Environmental Conservation zone.
Second, the land is in effect zoned specifically for the development now proposed. Moorebank submits that the proposal should not be considered an "industrial development within a residential area". This is because it says the proposal will be separated from recreational uses, either by distance, landscaping or acoustic amelioration and it is a question to be determined whether that which is proposed would avoid (or appropriately manage) the very conflicts which the applicants' planners say demonstrates incompatibility. Moorebank submits that those matters require examination of the technical evidence to be considered in the light of the design of both the proposed plant and the access arrangements, and are not addressed by the suggestion that the zoning of the land was some form of "historical mistake".
I also do not consider it necessary to consider in detail the planning history nor to consider the reasoning of Biscoe J (Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93) where his Honour rejected an argument that cl 11 should be considered as restricting the use of a MRF on the subject site to a limited period.

[17]

Other development controls and policies

The planning experts raised other policies and plans. I have considered these including LDCP 2008 however it does not relate directly to the site itself, aside from the panhandle. Rather, Pt 2.3 relates to Georges Fair (up to the western boundary of the site), whilst Pt 2.10 relates to "Moorebank East", being the Benedict land and the panhandle to the north of the site. Pt 2.15 applies to the New Brighton Golf Course, to the south of the site.
As noted at [87] above, the Secretary's EAR and Mr Kennan also raised the "NSW Waste Avoidance and Resource Recovery Strategy 2014-21", which has the general target of increasing the amount of waste, including construction and demolition waste that is recycled. The Secretary's EAR also recognised that the project is "in line" with the NSW Government's Waste Avoidance and Resource Recovery Strategy 2014-21, which aims to improve resource recovery in all waste sectors including construction and demolition waste as well as the Government's A Plan for Growing Sydney.
I note the following extracts from the Secretary's EAR: The supply of aggregates faces significant challenges in Sydney with the depletion of natural extractive materials from existing sites such as Penrith Lakes Scheme, and the conflicts and constraints associated with development of new resources within the metropolitan region. The recovery of aggregates and sand from demolition waste and its use as a substitute to reduce the demand for natural resources is an important outcome for growth under the NSW Government's A Plan for Growing Sydney. The site is strategically well located for a construction material recycling facility. By road it is about 4.5 km from the M5 Motorway and roughly mid-way between central Sydney, which is a major source of demolition waste, and the South West growth centre, which is identified as a future growth area in A Plan for Growing Sydney, and is a significant potential future market for the recycled product. Recycling facilities of this kind will become increasingly important as natural material quarries in the metropolitan area close without being replaced. Further, proposed development is fully permissible under the Liverpool Local Environmental Plan 2008 and it is compatible with the site's previous use as a landfill site. …
Further, The [Waste Avoidance and Resource Recovery Strategy] identifies waste and resource recovery facilities as an essential service in the community. It states that opportunities to improve recycling in the construction and demolition sector are linked to the cause of contamination in many construction site soils. Facilities that recover and recycle building and demolition waste such as concrete, sand and aggregate are an important component of improving recovery performance in the sector. … The proposed project at Moorebank has the potential to supply [the south west growth centre] with recycled aggregates and sand. As it is well located close to both the source and destination of the material, the facility would also reduce reliance on transport of natural materials from more distant sources or sources outside of the metropolitan region.
Mr Kennan stated, and I find, that the development of the MRF will generally assist to achieve these goals.

[20]

Benedict land

To the north of the site is the Benedict land (in which definition I have combined the RE2 land immediately to the north of the site and the R3 land further to the north). Whilst it still has the character of a sand extraction quarry, its use for a considerable period of time, it has been rezoned to RE2 - Private Recreation in the south and a strip heading to the northeast, and R3 - Medium Density Residential further to the north and northwest.
Benedict received approval on 29 September 2016, less than a fortnight before the hearing commenced, to develop a marina (and associated development) in the southern portion of the land zoned RE2, which includes a large, manmade lake on which boats could be moored. Importantly, this rectangular building is designed so that it fronts onto the manmade lake to the east, and generally backs onto the panhandle. Whilst a development application has been lodged to amend this consent to allow some residences to be constructed as part of the marina complex, this is not a permissible use under LLEP 2008, and has not been approved or disapproved. Benedict also intends to develop a subdivided housing complex on its R3 land - a proposal for which it does not yet have approval.
Whilst there is no evidence other than commentary from Mr Mitchell that would allow a finding that the industrial use of the Benedict land has ceased, the planning and acoustic experts agree, and I find, that some weight needs to be given to the zoning of the Benedict land. However, the amount of weight was disputed by the experts.
With regard to the RE2 land immediately to the north of the site, the experts agree that the fact that a consent to develop a commercial marina has been granted, should be taken into account. However, there is dispute as to whether the proposed amendments to the consent to allow residential development should be considered in the proceedings. Mr Mitchell stated that on the balance of probabilities (and given its consistency with strategic planning objectives) it was "much more likely than not" that Council would rezone the RE2 land to allow such (residential) development. Conversely, Ms Laidlaw and Mr Kennan stated that limited weight should be given to the proposed residential development on the marina, as such a use is presently prohibited on land zoned RE2, and there is no confirmation that the land is to be rezoned. In particular, Ms Laidlaw stated during cross examination that whilst residential development at the marina was "on the face of it a suitable use, and to some extent a likely use", it could only be given limited weight until a draft amendment to LLEP 2008 had been exhibited.
With regard to the R3 land further to the north of the site, Ms Laidlaw and Mr Mitchell opined that considerable weight should be given to this zoning, and that the development of a MRF would be inconsistent with the residential use of this land if such a residential use was to be realised. In particular, Mr Mitchell stated that a development application for a retaining wall, which was the first step in the development process for this land, had earlier been approved (although it is noted that this consent has subsequently been the subject of legal proceedings and surrendered), and that a further development application was likely to be lodged in the near future. All experts also accepted that residential development within the Benedict land was consistent with Pt 2.4 of LDCP 2008. As discussed below the primary issue with regard to the impact of the MRF on the R3 land concerns the likely noise impact from the truck movements.
In the light of the above, with regard to the use of the Benedict land: 1. I give considerable weight to any impacts of the MRF on the marina proposed to be constructed in accordance with the relevant approval, given that it is highly likely that the marina development will go ahead; 2. I take into account the proposed development of the R3 land, insofar as it is proposed to be subdivided into smaller residential lots, given that it is more likely than not that such a development will go ahead; and 3. I do not take into account any proposed residential developments at the marina, as whilst there is anecdotal evidence to suggest that it may go ahead, it is not approved and, more relevantly, it represents a prohibited use of the land as LLEP 2008 presently stands.
In light of the above, I find that the marina development (on the RE2 land immediately to the north of the site) is designed in a manner to primarily address the manmade lake to the east. To the extent that the MRF will have an effect on the use of the development as approved, I find that given the detailed evidence in relation to the traffic, and the traffic related acoustic concerns as well as the traffic management issues (that is, the interaction between likely traffic from the marina and from the MRF), for the reasons I give below, the effects are all able to be adequately dealt with by way of the proposed conditions.
In relation to the R3 land, I find that it is likely that there will be residential development on that land, although I do not consider such development to be imminent. As detailed below, I find that the primary concerns raised by Benedict and Council relate to the management of noise impacts (primarily a result of the truck traffic to be generated by the proposal) which are able to be managed by the conditions being imposed. Further, I find, again for reasons detailed below, that the responsibility to attenuate/mitigate noise has been the subject of reasonable measures proposed to be adopted by Moorebank and, furthermore, to the extent that there will be an exceedance of the guidelines, there will undoubtedly be a requirement for the development of the R3 land to take into account the changed noise environment.
Implicit in my finding above in relation to the R3 land, was an assumption as to the timeframe for the development of that land. Benedict contended that the development of the land was imminent and there was evidence of arrangements in place to deliver residential lots possibly by 2019. Further, Mr Mitchell gave evidence that a development application had been lodged, and may be approved in 2017. Moorebank submitted that estimate was "hopelessly optimistic" and indicated that because of the likely existence of contamination, any development would require consideration as designated development which would extend the timeline for the development. Further, Moorebank pointed to evidence in relation to contractual arrangements regarding future residential development with Mirvac and further evidence in relation to contamination studies undertaken by Douglas Partners which involved a draft Remediation Action Plan. Having noted these matters, I am of the view that while development of the land is not imminent, it is most likely the development will take place. Accordingly, as considered at [177] below, I find that it would be inappropriate for the current proposal to adopt the significant (in my view as found below unreasonable) noise attenuation measures as suggested by Benedict's acoustic expert Mr Ishac.

[22]

New Brighton

To the south of the site is the New Brighton Golf Course. Whilst part of the golf course has been rezoned R1 - General Residential and is presently being redeveloped, this is to the west and some distance from the site. Further, it is noted that the proposed development is to be entirely located within the northern half of the site, further limiting its impact to the south.
No evidence was tendered that suggested that the MRF would have any undue impact upon the New Brighton, and as such I find that that there is no need to take it into account when considering whether to approve the proposed development.
To that extent, and based upon the further detailed evidence before the Court (which was significantly greater than that which was available to the PAC) I note that the Secretary's EAR dealt squarely with the land use conflict raised by the Council and Benedict and concluded as follows: The Department recognises the potential for land-use conflicts between the two sites and it acknowledges the significant degree of concern about such conflicts raised by Council and the growing community in Georges Fair. Subsequently, the Department has closely and carefully examined the potential impacts of the project, particularly in relation to residential amenity such as traffic, noise and air quality. The Department's assessment has found that, with strict conditions of approval, proper environmental management and appropriately designed infrastructure, the project can be carried out to: • comply with the relevant traffic, common noise and air quality criteria, as set out in the various State policies that apply to industrial development; • avoid unacceptable impacts on bio-diversity, flooding and water quality in the Georges River; and • avoid visual impacts as it would be unlikely to be visible from most of Georges Fair, and would be either wholly or partially screened by the landscaped earthen amenity bunds …"
Having the benefit of further detailed expert traffic, acoustic and visual impact evidence and for the reasons below, I have reached similar findings.

[25]

Existing traffic

It was agreed by the experts that, on an average weekday, there were approximately 13,265 vehicles per day ('VPD') travelling on Brickmakers Drive. The experts agreed that approximately 5% of these vehicles were presently heavy vehicles, such as trucks, and that these numbers were slightly lower if one were to average across the weekend. The experts also agreed that the morning peak traffic was approximately 751 vehicles northbound and 313 vehicles southbound, whilst the evening peak traffic was approximately 298 vehicles northbound and 810 vehicles southbound.
Anecdotal evidence was provided regarding the present traffic situation by members of the local community. In particular, the Vice-President of the Moorebank Residents' Action Group produced a number of photographs taken at around 8:30am on Wednesday, 27 May 2015, showing northbound traffic backed up at the intersection between Brickmakers Drive and Newbridge Road. As shown in the photographs, the traffic goes back at least 300 metres to the intersection with Maddecks Avenue, a residential road that feeds onto Brickmakers Drive. A further photo shows traffic similarly backed up on Maddecks Avenue.
This was generally confirmed by the oral evidence of a number of objectors. One resident, the President of the Moorebank Residents' Action Group, stated that the traffic is often backed up as far as the roundabout at Conlon Avenue, a further 300 metres from Newbridge Road, and that she would sometimes be unable to see the end of the traffic if she were to look south whilst turning right from Conlon Avenue onto Brickmakers Drive. Other residents corroborated this, testifying that the traffic build up begins as early as 7:20am, and that similar congestion can be found on the southern end of Brickmakers Drive between approximately 5:00pm and 5:30pm at its intersection with Nuwarra Road.
This is clearly inconsistent with the empirical traffic data collected by Mr McLaren, and agreed to by the other traffic experts. Whilst it is not uncommon for there to be such inconsistencies and whilst I accept that the anecdotal evidence of the residents is based upon their specific experiences, the nature of the modelling and the empirical data relied upon (and ultimately agreed upon) by the three experts, is to be preferred. That is not to say that there had not been occasions (possibly many) where delays and congestion have occurred which would explain the evidence of the various residents. The experts considered this inconsistency when giving their oral evidence. There were various further investigations undertaken in relation to discrete days where significant delays and queues were observed. Dr Brooker gave evidence that, in the light of the residents' evidence, traffic movements are "very unpredictable on a day to day basis …and an accident on the surrounding road network or breakdown could contribute (in the sense of worsen) delays and queues otherwise experienced". Mr McLaren, whilst accepting the concerns of residents, confirmed that the primary data relied upon was collected over three weeks and gave his personal experiences in the vicinity. He also gave evidence that his further research indicated that various dates in relation to the specific delays observed by the residents in May 2015 both coincided with an accident on Newbridge Road and therefore, in his opinion, it was not surprising that congestion on that particular day occurred. Based upon the evidence, whilst I take into account the particular concerns raised by the residents, I prefer the objective data primarily obtained by Mr McLaren and agreed to by the experts, and my consideration below proceeds upon this basis.

[26]

Modelling

Whilst agreement was reached between the experts on the number of vehicle movements and traffic conditions generally, there was disagreement regarding the model that should be used to show how this (and any added) traffic would impact upon both the traffic on Brickmakers Drive, and in particular its intersection with the unnamed road.
Dr Brooker utilised a model known as SIDRA, a widely used intersection analysis model that has existed for over 15 years. SIDRA allows for an analysis to be undertaken on two intersections, and the respective impacts upon one another.
Conversely, Mr McLaren used a model known as AIMSUN, a more recent microsimulation model which takes into account "platooning", being the tendency for traffic to move in a block when travelling from traffic lights or roundabouts, which creates traffic gaps. In particular, AIMSUN allows for modelling of multiple intersections, rather than just two, and shows how changes to one intersection will impact all of the other intersections within the model. It also allows adjustments to be made to account for variations in driver behaviour, such as those who look for an alternate route when traffic is backed up a sufficient distance. SIDRA does not take into account any such considerations. Dr Martens agreed that the AIMSUN model is the more reliable.
Dr Brooker's primary concern with the AIMSUN model is that it is better used for present predictions, and its simulations regarding future traffic flow were not necessarily reliable. He opined that SIDRA was a better tool for future predictions, as it was more crude, and therefore less susceptible to incorrect assumptions regarding future traffic flow. Mr McLaren responded that, on balance, the AIMSUN model was still likely to be more accurate, given that it provided for more intricate simulations.
I agree with Mr McLaren and Dr Martens and find that AIMSUN is the superior model for the present purposes, as it allows for a more nuanced approach to the modelling of future traffic impacts. Given that two experts have independently undertaken simulations using their own assumptions and modelling and achieved sufficiently similar results, I do not consider that any possible unreliability postulated by Dr Brooker appears to be present in the evidence before me.

[28]

The intersection

There was debate in relation to the intersection with Brickmakers Drive. Three options have been debated, being (a) a set of traffic lights with a crossing, (b) a roundabout, and (c) a 'stop' or 'give way' sign that gives preference to the traffic already on Brickmakers Drive. The traffic experts agree that any such intersection must allow for a 19 metre "truck & dog" vehicle to turn onto Brickmakers Drive (noting that the left hand, southern turn off Brickmakers Drive onto the unnamed road does not form part of the intersection).
It is clear that, at least at this stage, the RMS will not consent to traffic lights being constructed at the intersection. The evidence was that, as a policy, the RMS will only allow the installation of traffic lights where certain conditions are met, such as traffic flow or pedestrian safety, which is not presently a concern at the intersection. However, it was agreed by Mr McLaren and Dr Martens that once the development of the surrounding locality (including the Benedict land which would use the intersection) was complete, and there was a requisite increase in the amount of traffic and concerns for pedestrian safety, it was likely that the RMS would alter its position and allow the installation of traffic lights. It is also noted that under the recent marina consent, Benedict was required to pay a deposit to the RMS for the future provision of traffic lights in any event.
Whilst Dr Brooker had some concerns as to whether the RMS would alter this view and allow the installation of the traffic lights, he did consider that traffic lights would be appropriate when pedestrian levels picked up, and he had previously prepared multiple reports on behalf of Benedict in relation to the proposed development of the R3 land and the marina on the RE2 land, recommending that traffic lights be installed. Despite their future probability, it is clear that at this stage traffic lights are not an available option for the intersection.
It is similarly clear that, as pointed out by Mr McLaren, there is not sufficient physical space to construct a roundabout at the intersection. Thus, this is not an appropriate option.
As such, the only remaining option postulated by the experts which is a realistic possibility is the 'stop' or 'give way' sign which gives preference to the traffic already on Brickmakers Drive. Whilst Dr Brooker prefers a 'give way' sign, given that a 'stop' sign would make it difficult for trucks to exit the unnamed road, Mr McLaren would prefer a 'stop' sign to be installed for driver safety reasons. Regardless of which is installed, however, this option gives rise to two related concerns, being: 1. whether the trucks will be able to turn out of the unnamed road onto Brickmakers Drive ('intersection capacity'); and 2. the safety of future pedestrians walking across Brickmakers Drive to access the bridge and the Benedict land ('intersection safety').

[30]

Intersection safety

The experts agreed that the installation of traffic lights would be the superior option from a safety perspective, but that for present purposes (where there is likely to be little pedestrian traffic until the Benedict development takes place) the options outlined by Mr McLaren would be sufficient.
Despite this agreement, there were two points on which the experts disagreed. First, Dr Brooker considered that it would be likely that a pedestrian walkway would need to be constructed on the eastern side of Brickmakers Drive (there is presently only a walkway on the western side). Mr McLaren disagreed, and stated that such a walkway would be inappropriate, given that the present "path" was installed to support Brickmakers Drive and to prevent cars from falling off the carriageway down the steep embankment to the east. I consider that this concern is irrelevant to my consideration, given that such a path would in any event lead to the south of the unnamed road, and not impact upon the truck movements in any event. As such, I make no finding as to which expert should be preferred in relation to a pedestrian walkway.
Second, whilst each of the experts considered that a viable pedestrian link between the western walkway and the unnamed road required that traffic lights be installed, Dr Brooker considered that this would be unlikely to occur, whilst Mr McLaren and Dr Martens opined that it would occur upon the completion of the development of the Benedict land, if not before. As I have already found that it is likely that the traffic lights would be installed before pedestrian access would become an issue, and given that such access would be an issue regardless of whether this development went ahead, I consider that this concern is of limited consequence.
As such, I find that there are no legitimate concerns that have been raised against the development in relation to the safety of the intersection.
I note that to the extent that there was a concern raised in relation to "site lines" for cars approaching the intersection, a redesign of the noise walls (noted below) was undertaken in accordance with the joint opinion of the traffic experts.

[31]

Conclusions on traffic

There was significant agreement between the traffic experts with Mr McLaren and Dr Martens opining that all contentions in relation to traffic generation and management, excluding any potential impacts in terms of noise or amenity which are in the domain of other experts, have been resolved through the provision of additional information modelling as part of proceedings and the joint conferencing process.
Briefly stated, Mr McLaren and Dr Martens agree that each of the contentions relating to traffic generation and management have been resolved.
Dr Brooker had "a number of various concerns". Despite this, traffic volumes on Brickmakers Drive; traffic generation from the proposal; civil design and swept path analysis for a proposed intersection and the proposed intersection design and location were all matters about which there was significant agreement.
In relation to intersection traffic impact assessment, as noted above, having preferred the AIMSUN modelling process, I accept that all traffic related impacts (apart from amenity which is dealt with below) are acceptable and appropriate given the detailed conditions that are now proposed (and have been substantially agreed including the requirement for a detailed traffic management plan) by the experts.
There was a suggestion on behalf of Council and Benedict that a deferred commencement condition requiring traffic lights to be installed at the intersection prior to the Moorebank approval becoming operational is appropriate however I note that none of the traffic experts supported the imposition of such a condition.
The suggested deferred commencement condition was also opposed by the Minister who submitted (as did Moorebank) that a condition of the type suggested would be beyond power and therefore fail the test as noted in the case of Newbury District Council v Secretary of State for the Environment [1981] AC 578.
Given my findings above, and in particular noting the fact that there is no evidence to suggest that the traffic lights are required when no marina/residential uses exist on the RE2 land or the R3 land, and the evidence that the RMS is unlikely to support the introduction of traffic lights, the imposition of the condition would, as submitted by the Minister, be tantamount to a refusal of the application. In the circumstances where the proposed development therefore does not demand it, it is inappropriate to impose the deferred commencement condition.

[32]

Merits review - acoustic impacts

Expert acoustic evidence was adduced by Benedict who retained Najah Ishac, Council who retained Dr Gail Greer, and Moorebank who retained Dr Renzo Tonin. Each expert provided an individual expert report and together produced a joint report.
Benedict contends that the MRF will have unacceptable impacts in particular upon the RE2 land to the north (in particular the marina development) and the R3 land further north. The principal point of contention amongst the acoustic experts relates to the necessity to assess noise impacts for future residential use on the R3 land to the north and in any proposed future residential use of the marina.
The experts agree that the acoustic impacts on existing residential development (in particular Georges Fair) are resolved if the recommendations in Dr Tonin's report are implemented. These recommendations are adopted in the proposed conditions.
As noted above, it is accepted by the planners that the current R3 zoning on the Benedict land must be given weight irrespective of whether or not the land is presently being used for residential development (or development of a kind provided for by the zoning). Benedict submits that there are two different "types" of acoustic impacts that need to be considered - first, noise impacts from the operations on the site including the private road and the ramps, and, second, the road noise omitted by Moorebank's trucks when on public roads.
Benedict submits, and I accept, that the impacts and the operations on the site should be considered against the NSW Industrial Noise Policy ('INP') which seeks to achieve a "feasible and reasonable balance" by the application of noise goals having regard to the likely receivers that will be affected. The sensitivity of particular receivers to noise levels is primarily determined in accordance with the underlying land zoning. Adopting the issues identified by Benedict, I will consider the acoustic impacts of operations on the site (and proposed measures to mitigate impact) on each of the R3 land, RE2 land and road traffic noise.
Given the detailed expert evidence, it is clear that there remain three separate questions: 1. first, who should bear the burden of the noise mitigation? 2. second, is residential use of the R3 land imminent? and 3. third, has Moorebank done all that is appropriate re noise and how should this be considered in relation to measures that may be available on the R3 land?

[33]

The R3 land

Benedict submits that in relation to the R3 land (which as noted above is defined R3 - Medium Density Residential), the likely receivers should be considered to be residents in any future residential subdivision. Whether such future residential development is certain as submitted by Benedict and whether even if certain, it is not imminent (i.e. there is a doubt about its timing), as submitted by Moorebank, it requires consideration in light of the fact that the MRF proposal does not propose the construction of any noise attenuation continuation measures to shield the R3 land from operational noise, and in particular noise from articulated trucks operating on the ramps and the panhandle. Put simply, it is common ground amongst the experts that the acoustic treatment and amelioration measures proposed by Dr Tonin referred to below will be insufficient to protect all of the R3 land from some adverse impacts.
Mr Ishac opines that effective noise attenuation for the R3 land requires first, enclosing the ramps on Brickmakers Drive and the unnamed road intersection to reduce the noise levels at future residences; and second, installation of a six metre high acoustic barrier immediately adjacent to (and within the road corridor) and on both sides of the access road. This six metre barrier will extend from the enclosed out-bound ramp at the intersection to the southern extent of the northern portion of the R3 land.
Dr Tonin in his evidence set out the type of "common engineering measures" that could be adopted as part of any future development on the R3 land in order to reduce noise levels "arising" from the MRF. His rationale for not imposing separate noise control measures or, more particularly, treating the R3 land as presently a non-residential use, is based upon his view regarding the imminence of residential development on that land.
The essential question is whether it is appropriate that noise mitigation measures should be included in any future residential development on the R3 land especially, according to Moorebank, in view of the uncertainty of the timing of any such development, or whether Moorebank should cater for the likely future residential development on the R3 land.
It is common ground that, in relation to the R3 land, the "intrusive criteria otherwise provided for in the NSW Industrial Noise Policy ('INP') is exceeded". Accordingly, there is dispute as to the basis of Dr Tonin's opinion that the residential use is not imminent as importantly, this goes to whether or not to assess the land as residential use.
Understandably, Benedict submits that the INP, properly read, requires consideration to be given to the zoning and not the current development status of the land. Further, Benedict submits that Dr Tonin was unaware that there had been an application related to the future development on the R3 land which was subsequently withdrawn.
The question is therefore whether, on the basis that all the noise mitigation measures that are feasible and reasonable have been recommended by Dr Tonin for the proposal (and are to be adopted by Moorebank), there are readily available mitigation measures that can be carried out, in future, at the receiver site.
Dr Tonin accepted a general proposition that noise amelioration at the source of the noise is the preferred method and therefore it should be Moorebank, as noise generator, who controls the noise. However, Dr Tonin maintains that it is unreasonable and unfeasible to require Moorebank to contain the acoustic impacts which adversely affect the R3 land due, at least in part, to the cost of Moorebank of doing so. His position is that it is therefore reasonable that the R3 land bear the acoustic impacts of the trucks generated by the proposal. Both Mr Ishac and Dr Greer reject Dr Tonin's position.
In paragraph 8.3 of his primary report Dr Tonin details the mitigation measures that may be required to be incorporated into any future residential development on the R3 land. Further, Dr Tonin gave oral evidence as to why it would be significantly more cost effective (and practically effective) to address noise on the R3 land as opposed to the cost of the type of barriers suggested by Mr Ishac. While accepting that it is preferable to control noise at the source, Moorebank submits that this approach is not simply a matter of forcing neighbouring land to bear the impacts of industrial development (as Benedict contends) and that Dr Tonin's approach is "more nuanced and carefully thought through", and is more consistent with the INP.
Moorebank submits that the noise mitigation measures advocated by Mr Ishac effectively involving enclosure of the ramps, were so costly as to make them impractical. It was further submitted that requiring such measures as well as the further measures suggested by Mr Ishac to protect the marina (assuming it was also to include residential development), would be tantamount to refusing the application.
In relation to Dr Tonin's position, in summary, Benedict submits: 1. the mere fact that the project will have the predicted acoustical impacts is indicative that its scale and size is too great for the location and demonstrates a serious conflict between two land use zones which are "at opposite ends of the noise spectrum" thus the development is inappropriate for the site; 2. the acoustical impacts on the Benedict land (both the R3 land and the RE2 land) can be adequately contained by the acoustical measures recommended by Mr Ishac; and 3. an alternative approach is, that, if the project approval was limited as to time, so as to expire at or about the time of the completion of the proposed residential development on the R3 land, the absence of acoustical barriers to protect that land may be regarded as reasonable however in circumstances where there is no limit on the time for the approval, there can be no justification for not requiring sound mitigation measures.
It is further suggested on behalf of Benedict that the acoustic measures proposed by Dr Tonin for the R3 land would have significant visual impacts. In response, Moorebank submits that while the proposed acoustic wall at the western boundary may affect some views, it would not have a significant impact. Further, Mr McLaren gave evidence that the proposed acoustic wall can be transparent, and even without transparency, tall vegetation in the conservation area between Brickmakers Drive and the panhandle will still be visible.

[34]

Consideration

I accept there will be some deleterious acoustic effect upon Benedict's land in particular from truck noise from the proposed ramps and access roads which are adjacent to the R3 land. Further, I accept that the R3 land will in time be the subject of residential subdivision, and that the access road is also adjacent to the RE2 marina land. However, I find that the acoustic mitigation measures proposed by Dr Tonin are sufficient and that it is not appropriate to require the further measures propounded by Mr Ishac. My reasons can be shortly stated: 1. first, whilst the measures proposed by Dr Tonin will be insufficient to protect the whole of the R3 part of the Benedict land, not all of that land is negatively affected and that land is presently clearly undeveloped. Whilst Benedict suggests a "polluter pays" principle and an "internalisation" approach, I find that it is appropriate to require adequate noise mitigation measures in any future residential development on the R3 land. Whilst I accept that there is no firm evidence, the likely cost of measures necessary to ameliorate truck noise on the R3 land (and the RE2 land if residential development is considered) suggested by Mr Ishac would, on one view of his evidence, render the proposal unfeasible; 2. second, it does not seem appropriate or feasible in circumstances where there is no firm timeline for the development of the R3 land; 3. third, the source of the noise is primarily the truck movements adjacent to the Benedict land. However, the material produced supporting the development application for the marina shows that there will likely be some, not dissimilar, noise issues and concerns arising from the marina development. Thus the marina development itself will require amelioration measures either on its own or to be considered in the further development of the R3 land; 4. fourth, the suggestions as to how those residences most likely to be affected by noise along the perimeter of the R3 land may be developed to address possible acoustic concerns made by Dr Tonin (in siting), would appear to be reasonable noting the type of development that has been undertaken in Georges Fair. Mr Kennan in oral evidence did not accept that such recommendation would seriously diminish the development potential of the western part of the R3 land although he considered that there would be some effect upon the amenity of those houses; 5. fifth, the standard set out in the INP, whilst providing first, that the emitter of noise should integrate measures to mitigate impacts of noise and second, controlling noise at the source is preferred to controlling noise at the receiver, provides: The policy outlines processes to help strike a feasible and reasonable balance between the establishment and operation of the industrial activities and the protection of the community from noise levels that are intrusive or unpleasant. [Emphasis added.] In the circumstances, and doing the best I can, I find that the proposal, accepting Dr Tonin's opinion, strikes a "feasible and reasonable balance"; 1. sixth, whilst I accept, and the INP provides, that the sensitivity of particular receivers to noise levels is primarily determined in accordance with the underlying land zoning, it is clear that the proposal is permissible and some noise effect must be expected. The "feasible and reasonable balance" in the present circumstances is likely not met by the implementation of the measures suggested by Mr Ishac. I note Mr Ishac's suggestions using his words, could, "particularly in the marina residential case, prove highly impractical, unfeasible and unreasonable from a cost and engineering perspective to result in acceptable noise levels in accord with NSW EPA Noise Policy"; and 2. seventh, in Mr Ishac's noise report for the marina he states that the noise concerns arising from the marina will be similar to the MRF. I also note that the recommendation in that report was not to deal with the noise omissions at the source, to some extent contrary to the position he adopted in the current matter, but rather involved incorporating noise mitigation measures into future R3 residential development. In oral evidence Mr Ishac clarified that his position in that the report was based upon an understanding that the development of the R3 land and the marina were undertaken by the one entity.

[35]

Merits review - visual impact/urban design impacts

Expert visual impact/urban design evidence was adduced by Council, who retained Gabrielle Morrish, and Moorebank who retained Dr Philip Pollard. Moorebank also relied on landscape design/horticultural evidence from Marilyn Woodland. Ms Woodland produced a number of detailed reports including a landscape layout plan, a landscape concept plan, and a vegetation management plan, which provided further detail in relation to proposed landscaping and visual impact. Ms Morrish, Dr Pollard and Ms Woodland together also produced two joint reports. The final joint report considered further information in relation to the visual impact of the proposed acoustic barriers and the proposed vegetative screening from various viewing points.
The material prepared by Ms Woodland addressed a number of earlier concerns relating to visual impact. The remaining points of disagreement between the visual impact experts related to the treatment of the proposed ramp and access road barriers and the visual impact of the acoustic barriers to the entry and exit ramps for drivers and for pedestrians from Brickmakers Drive. Whilst there were various other locations of concern to Ms Morrish, it was generally agreed that at the area-specific planting layouts proposed by Ms Woodland will assist over time in reducing the visual impact of the proposed acoustic barriers to the entry and exit ramp and for the more recently suggested extended barrier proposed by Dr Tonin.
Dr Pollard concluded that the landscape strategy designed by Ms Woodland meant the MRF would be acceptable in visual/urban design terms. Ms Morrish remained concerned that there was a dependence on landscaping as the primary method to alleviate visual impacts and was concerned in relation to the view experienced by pedestrians and motorists in relation to the proposed bridge. She expressed further concern in relation to the visual impact of any future acoustic barrier on the edge of the R3 land.
Dr Pollard opined that the pedestrian view catchment would be dominated by the extensive native vegetation which was to be supplemented by plantings provided for in the further vegetation plans prepared by Ms Woodland.
Ms Morrish maintained in oral evidence, that reliance upon landscaping as the only method to ameliorate visual impacts is of concern, on the basis that the landscaping may not be successful and in some circumstances, in particular the barriers for the northern ramp, landscaping would be of limited utility.
Landscaping aside, Ms Morrish also had a concern that the "visual outcome" is much more akin to an industrial area or a motorway because of the nature of the acoustic walls, and that this would not be appropriate particularly in an E2 - Environmental Conservation area.
In light of the more recent plans prepared by Ms Woodland, providing for detailed planting (and maintenance of planting) in the areas of specific concern, and accepting that there is an inherent risk in reliance upon vegetative screening, I find that the proposal is acceptable in relation to visual amenity concerns for the following reasons: 1. first, as a MRF is specifically permissible and has been earmarked for some period of time, some visual impact is to be expected. On the southern part of the site where the facility itself is proposed, there will be significant bunding and earthwork, which will visually shield the primary works. The layout of the main area of the site includes acoustic mounds to the northern end of eight metres in height, mounds to the western side of six metres in height, mounds to the eastern side of four metres in height and mounds to the southern side of one metre in height; 2. second, whilst the noise walls along the panhandle will be the most significant because they will be the highest, the panhandle itself, is to some extent protected by vegetation from public views to the east with the exception of an area which is opposite Council land. Ms Woodland has prepared a plan ("Area 7 Panhandle Road Concept Plan") which I find will ameliorate any visual impact; 3. third, although reliance upon vegetation to screen views of structures may not always be appropriate, it must be considered that there will, irrespective of this proposal, be a bridge and a link road which will facilitate a relatively significant change in the landscape. Accordingly, there will be pedestrians and motorists using the bridge in any event. Ms Woodland's plantings on the southern side of the up ramp will provide some relief from the structures otherwise visible. To that extent I accept Moorebank's submission that there will be different users who will share access across the bridge and that the bridge is, on one view, a "choke point" for all development as part of East Moorebank; 4. fourth, it is inevitable that there will be some visual effect where hard infrastructure is located in and about a conservation area. The addition of noise walls and the like are necessary for acoustic amenity and I find that they are able to be appropriately (if not completely) screened by vegetation; 5. fifth, Ms Morrish's concern in relation to a likely future acoustic barrier on the edge of the R3 land is understandable, but does not warrant refusal of the application on the basis that, in addition to matters at [177] above, there is evidence that whatever acoustic measures are required in relation to the R3 land will be able to be integrated into the future design of buildings on that land; and 6. sixth, I am fortified in my view by the detailed computer generated "3D Perspective Model" material providing detailed perspectives of the proposed MRF - particularly in relation to the bridge and access ramps and the likely views from Brickmakers Drive, which demonstrate acceptable levels of visual impact.

[37]

Air quality

Expert air quality evidence was adduced by Benedict, who retained David Rollings, and Moorebank who retained John Wasserman.
Mr Rollings, identified several areas of concern in relation to the assessments of air quality available prior to the PAC granting approval for the proposal in September 2015. These concerns related to: 1. meteorology: that it had not been demonstrated that the wind patterns used for air quality monitoring represented the most conservative year of meteorological data available; 2. receptor location: that the identified sensitive receptor locations were inadequate as they did not represent the closest sensitive receptors situated on the boundary of the newly constructed Georges Fair residential development; 3. cumulative impact assessment: that the potential for cumulative impacts associated with the proposed future use of the Benedict land in the North had not been assessed; and 4. emissions calculations deficiencies: that the emissions calculations used in the assessment of air quality impacts required further justification.
Following the provision of additional analysis and technical data, Mr Wasserman and Mr Rollings were in agreement that: 1. there had been no assessment of fine particulate matter pollutants before the PAC. In particular, the potential impact of very fine particles in the range PM2.5 in the areas around the site; 2. the air quality methodology subsequently prepared and adopted by Moorebank's consultants Wilkinson Murray in its further assessment of air quality was based on the use of existing data for particles of size PM10. This approach assumed a constant ratio between the PM10 data and PM2.5 levels and was a reasonable approach to adopt for the purposes of the assessment of potential air quality impacts of the proposal; 3. based on the air quality methodology adopted, an assessment of potential impacts arising from PM2.5 particulates could be completed; 4. the project would not cause any significant impact on cumulative PM2.5 levels in the area of the proposed activity; 5. a Conceptual Air Quality Management Plan was required for the assessment of air quality impacts of the project; and 6. no proposed methodology had been presented to prevent tracking of mud and debris onto residential roads and/or to prevent dust blowing in the direction of residential developments.
In relation to the Conceptual Air Quality Management Plan, I note that such a plan was finalised (with modifications) and agreed by the air quality experts, which included the addition of contingencies to ensure that any activities that might generate high dust levels would be stopped, and only recommenced once measured pollutant levels had fallen below required trigger levels. I further note that in relation to the concern articulated at [186(6)] above, a condition was proposed to resolve this issue.
The experts agreed that, should the project be approved, the following conditions of consent would address concerns regarding air quality and would mitigate any potential air quality impacts of the proposal. For convenience in these reasons, I have numbered any recommended conditions in accordance with Ex 2R3 (draft without prejudice conditions): Meterological Monitoring C2. For the life of the Project, the Proponent shall ensure that there is a meteorological station in a suitable location on the site that complies with the latest version of the Approved Methods for Sampling of Air Pollutants in New South Wales. The meteorological station must be maintained so as to be capable of continuously monitoring air temperature, wind direction, wind speed, rainfall and relative humidity. Air Quality Odour C3. The Proponent shall not cause or permit the emission of offensive odours from the site, as defined under Section 129 of the POEO Act. Greenhouse Gas C4. The Proponent shall implement all reasonable and feasible measures to minimise the: a) energy use of the Project; and b) scope 1 and 2 greenhouse gas emissions of the Project. Air Quality Criteria C5. The Proponent shall ensure that all reasonable and feasible avoidance and mitigation measures are employed so that the particulate matter emissions generated by the Project do not cause exceedences of the criteria listed in Tables 2, 3 and 4 at any residence on privately-owned land. Table 2: Long term impact assessment criteria for particulate matter Pollutant Averaging period ᵈ Criterion Total suspended particulate (TSP) matter Annual ᵃ 90 µg/m³ Particulate matter < 10 µm (PM₁₀) 24 hour ᵃ 30 µg/m³

[40]

Notes to Tables 2-4: • ᵃ Total impact (i.e. incremental increase in concentrations due to the Project plus background concentrations due to other sources); • ᵇ Incremental impact (i.e. incremental increase in concentrations due to the Project on its own); • ᶜ Deposited dust is to be assessed as insoluble solids as defined by Standards Australia, AS/NZS 3580.10.1:2003: Methods for Sampling and Analysis of Ambient Air - Determination of Particulate Matter - Deposited Matter - Gravimetric Method; • ᵈ Excludes extraordinary events such as bushfires, prescribed burning, dust storms, fire incidents or any other activity agreed by the Secretary. Air Quality Impact Mitigation C6. The Proponent shall: a) operate the Project so that air quality impacts are minimised during all meteorological conditions; and b) implement all reasonable and feasible measures to minimise dust emissions including, but not limited to: • water sprays for all external crushing, screening or sorting; • watering of stockpiles and exposed earth; • stabilising the perimeter bunds and other areas of exposed earth with vegetation; • ensuring heavy vehicle loads are covered at all times; and • maintaining trafficable areas to minimise wheel dust emissions and to ensure heavy vehicles leaving the site do not track dirt onto public roads. Air Management C7. Prior to commencement of operation of the Project, the Proponent shall prepare an Air Quality Management Plan for the Project to the satisfaction of the Secretary. The plan must: a) be prepared in consultation with the EPA, and be approved by the Secretary prior to the commencement of construction; b) describe the measures that would be implemented to ensure: • all reasonable and feasible measures are employed to minimise dust emissions; • compliance with the relevant conditions of this approval and the EPL; • contingency measures are deployed to minimise impacts should an exceedence of the criteria occur or appear likely to occur; c) include an Air Quality Monitoring Program to evaluate the performance of the Project; and d) include a protocol to determine the occurrence of an exceedence of the criteria in this approval and the EPL should an exceedence occur. C7A. The Proponent shall carry out the Project in accordance with the Air Quality Management Plan approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary. C7B. The Proponent shall undertake environmental monitoring required by the Air Quality Monitoring Program for a period of no less than 3 years from commencement of operation of the Project. After the 3 year monitoring period, the removal or ongoing operation of the monitoring activities will be subject to demonstration to the satisfaction of NSW EPA that the facility will in the future operate in accordance with the environmental limits (set out in condition C5 and the EPL) and that the operation could feasibly proceed without monitoring. C7C. The Proponent shall prepare site environmental monitoring reports and provide to the Secretary as follows: i reports will be prepared for submission to NSW EPA for the first three months following the commencement of site operations; ii reports will be uploaded to a website monthly for the duration of the monitoring program (minimum of 3 years) Reports for the previous month will be uploaded within two weeks of the end of the monitored month. This excludes the HVAS sampling results which are subject to equipment validation analysis; and iii reports are to include details of any additional measures to address any exceedences. Air Quality Validation C8. The Proponent shall prepare an Air Quality Validation Report for the Project to the satisfaction of the Secretary. The reports must be prepared in consultation with the EPA by a qualified expert whose appointment has been endorsed by the Secretary. The report must be prepared within 12 months of commencing operation or as otherwise agreed by the Secretary. The reports must: a) validate air quality impacts of the Project in operation against predictions made in the EA, the criteria in this approval and the EPL; and b) review the effectiveness of the Air Quality Management System and measures to minimise dust emissions and if necessary make recommendations to implement and prioritise additional measures. C8A. The Proponent shall carry out the Project in accordance with the Air Quality Validation Report approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary.

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Contamination and waste management

Expert contamination and waste management evidence was adduced by Council, who retained Rowena Salmon and Andrew Kosciusko, and Moorebank who retained Dr Sophie Wood and David Bristow.
Council's experts stated that the proposal's potential impacts with respect to contaminated land and waste management issues had not been adequately addressed in the material before the PAC. Their concerns related to: 1. the potential for asbestos to be present in capping materials on the site; 2. the need for the site to be cleared of surface asbestos; 3. the need for monitoring of groundwater and associated contaminants on the site; 4. the provision of outstanding design details concerning the proposed perimeter noise bunds and mounds, landfill gas protection measures for buildings, and leachate management procedures; 5. the arrangements for the proposed capping of landfill on the site; 6. preparation of an environmental management plan for the bulk earthworks proposed as part of the development, including an asbestos management plan and details of leachate dewatering, treatment and disposal; 7. preparation of a site audit to determine site suitability for the proposed uses in various areas of the site; and 8. preparation of a RAP for the site and its approval by the Site Auditor.
Ms Salmon stated that while a range of environmental assessment documents, including a Site Audit Statement (2001), had been prepared in support of previous development applications for the site, the implementation of recommendations of those reports had not been reliably documented. Consequently, it was her view that the suitability of the site for the proposed activity could not be reliably demonstrated.
Dr Wood agreed with Ms Salmon and Mr Kosciusko that the preparation of a RAP for the proposed development was required prior to approval being granted.
A RAP prepared by Dr Wood was reviewed by Ms Salmon and Mr Kosciusko, as well as by Mr Bristow, an expert in leachate management. The experts agreed that the RAP was appropriate for the proposed development, subject to a number of amendments which they identified and included in proposed condition C32A.
The RAP identified that options for disposal of leachate extracted from the site included disposal to the Georges River or though the Sydney Water sewer network. While a final approach had yet to be confirmed, Mr Bristow and Mr Kosciusko stated their view that disposal via a Sydney Water sewer was the preferred option.
The experts agreed that a review of the RAP by a Site Auditor was unnecessary prior to the approval of the development. However, they agreed that the Site Auditor review should be completed prior to the commencement of any earthworks on site.
Finally, the experts agreed with the recommendation of Dr Wood that the site be notified to the NSW Environment Protection Authority ('EPA') regarding the presence of ammonia and other contaminants in the groundwater on the site in line with the requirements of s 60 of the Contaminated Lands Management Act 1997. Dr Wood noted that this notification had been made to the EPA on 6 September 2016.
The experts agreed that, should the project be approved, the following conditions of consent should be included to address contamination and waste management issues: Site Audit Statement C32. The Proponent shall obtain a Site Audit Statement for the site as follows: a) prior to the commencement of earthworks, a NSW accredited Site Auditor shall review the Remedial Action Plan and prepare a Site Audit Statement confirming that the site can be made suitable for use; and b) prior to the occupation of the site, a Site Audit Statement confirming that the site is suitable for its intended use in accordance with this approval. Remedial Action Plan C32A. Prior to the commencement of construction of the Project, the Proponent shall amend the Remedial Action Plan of Dr Sophie Wood dated 29 September 2016 in accordance with the following, to the satisfaction of the Secretary: a) include recreational criteria relevant to the Undeveloped Area and Excavation Area (section 3.1.1); b) refer to the requirements in relation to inspection of capping materials for asbestos (section 6.3.1.1); c) amend Table 8.1 to identify the supervision/inspection requirements for identification of Unsuitable Waste Material with reference to the Unexpected Finds Procedure (section 6.3.13); d) include requirements for characterisation of existing soil stockpiles (section 6.3); e) include validation soil sampling frequency for capping materials located beneath existing soil stockpiles that do not comply with the chemical criteria for Suitable Capping Material (section 6.4.2); and f) the draft Operations EMP should be amended to include an increased monitoring frequency on leachate head for a short period of time following development, for example 1 year. C32B. The Proponent shall carry out the Project in accordance with the Remedial Action Plan (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary. Construction Environment Management Plan D1. Prior to commencement of construction of the Project, the Proponent shall prepare a Construction Environmental Management Plan for the construction of the Project to the satisfaction of the Secretary. The plan must: a) be prepared by a suitably qualified and experienced expert or team of experts; b) be submitted to the Secretary for approval no later than 4 weeks prior to the commencement of construction of the Project, or within an alternative timeframe agreed to in writing by the Secretary (see Condition D3 for management plan requirements); c) identify the statutory licences, permits and approvals that apply to the Project; d) include a copy of all relevant management plans and monitoring programs relevant under this approval; e) incorporate all relevant management and mitigation measures outlined in Appendix C of this approval; f) outline all environmental management practices and procedures to be followed during construction and demolition works associated with the Project; f) describe all activities to be undertaken on the site during construction of the Project, including a clear indication of construction stages; h) detail how the environmental performance of the construction of the Project will be monitored, and what actions will be taken to address identified adverse environmental impacts and issues, including (but not limited to): • air quality (see conditions C3 to C8A); • noise and vibration (see conditions C9 to C16); • traffic and transport (see conditions C17 to C24A); • soil and water (see conditions C25 to C32B); • visual amenity (see conditions C34 to C36); • flora and fauna (see conditions C37 and C38); • heritage (see condition C39); • fire, flood and emergency response (see conditions C40 to C42A); and • earthworks environmental management plan in accordance with the Remedial Action Plan (as revised and approved by the Secretary from time to time). i) describe the roles and responsibilities for all relevant employees involved in construction and demolition works associated with the Project; j) include arrangements for community consultation at key stages of the Project; k) include a complaints handling procedure during construction, demolition and operation; and, l) include appropriate procedures to allow the regular review of the requirements of each plan to ensure that they are effective and allow for adaptive management to address contingencies that may arise over the life of the Project. The approval of a Construction Environmental Management Plan does not relieve the Proponent of any requirement associated with this approval. If there is an inconsistency with an approved Construction Environmental Management Plan and the conditions of this approval, the requirements of this approval prevail. D1A. The Proponent shall carry out the Project in accordance with the Construction Environmental Management Plan approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary. Management Plan Requirements D3. The Proponent shall ensure that the management plans required under this approval are prepared in accordance with any relevant guidelines, and include: a) detailed baseline data; b) a description of: • the relevant statutory requirements (including any relevant approval, licence or lease conditions); • any relevant limits or performance measures/criteria; and • the specific performance indicators that are proposed to be used to judge the performance of, or guide the implementation of, the Project or any management measures; c) a description of the measures that will be implemented to comply with the relevant statutory requirements, limits, or performance measures/criteria; d) a program to monitor and report on the: • impacts and environmental performance of the Project; and • effectiveness of any management measures (see (c) above); e) a contingency plan to manage any unpredicted impacts and their consequences; f) a program to investigate and implement ways to improve the environmental performance of the Project over time; g) a protocol for managing and reporting any: • incidents; • complaints; • non-compliances with statutory requirements; and • exceedences of the impact assessment criteria and/or performance criteria; and h) a protocol for periodic review of the plan; and i) an Operations Environmental Management Plan in accordance with the Remedial Action Plan (as revised and approved by the Secretary from time to time).

[43]

Aquatic ecology

Expert ecological evidence was adduced by Council, who retained Dr Paul Anink, and Moorebank who retained Dr David Robertson.
Dr Anink was concerned that the proposed potential impacts with respect to aquatic ecology had not been adequately addressed prior to the granting of approval for the proposal in September 2015 and that the following matters were inadequately addressed in the environmental assessment and supplementary reports produced in support of the application: 1. description of the existing aquatic environment, including groundwater dependent ecosystems; 2. assessment of the potential impacts in relation to surface and groundwater flows, particularly in relation to impacts of the Georges River; and 3. management and mitigation of potential stormwater and flood impacts, including potential drainage impacts on the aquatic environment both on-site and off-site.
Dr Robertson had agreed that additional investigation was required in relation to the extent of aquatic ecology habitats on the site and the potential for discharges of surface and groundwater to impact on these habitats, and had prepared further material addressing these matters.
In the joint expert report, Dr Anink acknowledged that Dr Robertson's report addressed his concerns. They further agreed that any potential impacts on aquatic habitats, including in groundwater dependent ecosystems, could be mitigated through the development and implementation of management plans and their associated control measures.
Dr Robertson and Dr Anink therefore proposed conditions of consent and agreed that, should the development be approved, it should be subject to the following conditions of consent to mitigate potential impacts of the development on aquatic habits: Aquatic Ecology Construction Environment Management Plan C37B. Prior to commencement of construction of the Project, the Proponent is to prepare an Aquatic Ecology Construction Environment Management Plan (CEMP) that details how potential construction impacts on aquatic habitats and associated biota are to be avoided, minimised or mitigated, to the satisfaction of the Secretary. The Aquatic Ecology CEMP is to include a water quality monitoring program and a Trigger Action Response Plan (TARP) to achieve the aim of minimising aquatic ecology impact. Within the CEMP the Proponent is to provide the following additional base-line aquatic ecological and water quality data against which potential construction impacts and potential operational impacts or improvements can be assessed: a) mapping of sub-catchments and the interrelationship of drainage lines, and mapping of all ponded water bodies surrounding the development site and the panhandle easement, bounded by Newbridge Road and the Benedicts site to the north, Brickmakers Drive to the west, Georges River to the east and New Brighton Golf Club to the south; b) accurate mapping of surface expressed aquatic habitats of the receiving waters as defined in (a) including reed beds, freshwater and tidal bogs, fresh or brackish ponded waters and estuarine intertidal habitats (mangroves and saltmarsh); c) mapping of the surface water interconnections of the identified habitats with each other, with the Development Site, the Northern Creek, Georges River and Brickmakers Drive Urban development discharges to the ponded waters west of the Site, including a discussion of impediments to flow and potential fish passage between habitats; d) mapping to include sufficient survey (height and location) data to determine: i. basic dimensions of the water bodies or bogs that support the identified aquatic habitats; ii depth in relation to surrounding surveyed land heights; iii the uppermost limits of tidal inundation during dry-weather king times and under minor flood conditions in the lands between the Site and the Georges River; iv the permanence of water bodies including their overall response to varying weather conditions (wet, prolonged-dry and flood) and varying groundwater levels; v the ability of ponded and interconnecting waters to support fish and/or provide fish passage between each habitat and the river; and vi their overall relationship to groundwater levels; and e) assessment of the range of water quality of the identified receiving surface-expressed water bodies identified and mapped for (a) and (b) under dry (stressed and possibly disconnected) conditions and under wet (well connected) conditions, to include physical parameters, nutrients and selected heavy metals as identified in groundwater studies. C37C. The Proponent shall carry out the construction of the Project in accordance with the Aquatic Ecology CEMP approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary Aquatic Ecology Operational Environment Management Plan C37D. Prior to commencement of operation of the Project, the Proponent is to prepare an Aquatic Ecology Operational Environment Management Plan (OEMP) that details how potential operational impacts on aquatic habitats and associated biota are to be avoided, minimised or mitigated, to the satisfaction of the Secretary. The Plan is to include a Trigger Action Response Plan (TARP) to achieve the aim of minimising aquatic ecology impact. Mitigation is to include management measures to improve water quality and interconnection of the identified habitats, and management options to protect and enhance the aquatic ecology of the surrounding aquatic habitats and associated biota. The Aquatic Ecology OEMP is to include a water quality and aquatic ecology monitoring program that will be able to demonstrate no operational impact and that can demonstrate net improvements in aquatic habitat water quality following implementation of management options. C37E. The Proponent shall carry out the Project in accordance with the Aquatic Ecology OEMP approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary

[44]

Water (sewage, stormwater and flooding) management

Expert water management evidence was adduced by Council, who retained Dr Daniel Martens, and Moorebank who retained Dr Steve Perrens.
Dr Martens opined that the proposal's potential impacts with respect to sewage, stormwater and flooding had not been adequately addressed prior to the granting of approval in September 2015. In particular, the following matters were inadequately addressed: 1. sewage: the specifications of the proposed sewage storage tank for the site. This included the adequacy of calculations and information relied upon to determine the tank's size, configuration, location and installation, as well as the assessment of risk associated with the tank's operation and management via a pump-out system; 2. stormwater management: the generation of stormwater flows from the proposed access driveway, the management and treatment of stormwater flows to receiving waters, and the adequacy of the proposed stormwater management plan in relation to the identification and management of pollution events should these occur; and 3. flooding: the requirement for a flood impact assessment, consideration of potential impacts arising from climate change, the adequacy of the previously approved bund walls for the site, and the assessment of risks within the evacuation plan prepared for the proposed development.
In their joint report, Dr Martens and Dr Perrens agreed that, having jointly conferred and having considered further detailed material prepared on behalf of Moorebank; 1. the proposal for a pump-out sewage management system on-site could be made to work safely for the development as proposed; 2. a stormwater management system could be designed to mitigate the potential stormwater impacts of the proposal, and to maintain the water quality in receiving environments surrounding the site; 3. "significant further" information had been provided in respect of flood risk and flood risk management; 4. the proposed land filling activities on site would not give rise to potential adverse impacts from flooding on surrounding environments or neighbouring properties; and 5. potential impacts associated with climate change were unlikely to result in material differences in modelled flood scenarios for the site.
The experts agreed that, should the project be approved, the following conditions of consent should be included to mitigate potential impacts of the proposal in relation to sewage, stormwater and flood management: Sewage Management C29. Prior to the commencement of operation of the Project, the Proponent shall prepare an on-site sewage management system design for the Project to the satisfaction of the Secretary. The design must be prepared in accordance with the following requirements: a) wastewater collection tank(s) should have a minimum total capacity of 20KL; b) ideally, the wastewater tank(s) should include a baffle to assist with solids separation; c) all wastewater tank infrastructure should be founded on driven pile footings in order that they will not impact the integrity of the landfill liner system; d) wastewater from the collection tanks should be pumped out on a minimum weekly basis; e) the collection tank should be fitted with the following alarms which, when actuated, deliver a visible and audible alarm to the site office: • first stage high water alarm, which is actuated when the collection tank(s) reaches a capacity of 14KL. When this alarm is actuated, a pump-out service should be ordered within the next day; and • second stage high water alarm, which is actuated when the collection tank(s) reach a total capacity of 18KL. C29A. The Proponent shall carry out the Project in accordance with the on-site sewage management system design approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary. Stormwater Management Plan C31. Prior to the commencement of construction of the Project, the Proponent shall prepare a Stormwater Management Plan for the Project to the satisfaction of the Secretary. The plan must: a) be prepared in consultation with Council and the EPA, and be approved by the Secretary prior to the commencement of construction; b) include measures to manage stormwater impacts including, but not limited to: • clean water diversion and site separation into clean and dirty surface water areas; • sediment detention, water quality control and rainwater harvesting; • erosion and sediment control in accordance with Managing Urban Stormwater - Soils and Construction Volume 1 (Landcom, 2004); • stabilisation and revegetation of areas of exposed earth; and • volume and quality control for any stormwater discharges. c) include a detailed Stormwater Management System design consisting of the following key elements: • grading within the operational area which provides a minimum grade of 2% to the stormwater collection sumps; • four stormwater sumps with a minimum volume of 200 kL each to collect stormwater runoff within the area enclosed by the flood protection bund; • a stormwater collection and re-use system comprising of pump-sets in the stormwater sumps and a delivery pipework to the on-site 1,000 kL stormwater storage / re-use tanks; • outlets from the stormwater collection sumps to be provided with an oil retention cap and a non-return valve to prevent backflow in the event of a flood; • outlets from the stormwater collection sumps to discharge into the perimeter drainage swales to be reconstructed at the outer toe of the perimeter earthworks. These swales are to be constructed as bio-retention swales to provide further treatment of any overflow from stormwater collection sumps; • a bio-retention system is to be installed to treat runoff water generated from the carpark located external to the flood protection bund; and • in accordance with Councils engineering specifications, incorporating at a minimum: • final design levels; • locations and specifications for all pit and pipework, pumps and transfer mains, and any ancillary stormwater related infrastructure; • engineering drawings and design calculations for all drainage related works. d) describe the measures that would be implement to ensure: • management of stormwater impacts; and compliance • with the relevant condition of this approval and the EPL; e) include a Stormwater Monitoring Program to: • evaluate the performance of the Project; and • support the Stormwater Management System. C31A. The Proponent shall carry out the Project in accordance with the Stormwater Management Plan approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary. Flood Management C41. Prior to commencement of construction of the Project, the Proponent shall: a) ensure the finished floor level of: • the office building is at least RL 6m AHD; and • any other building is at least RL 5.5m AHD; b) only use building materials that can tolerate repeated immersion in floodwater below RL 6m AHD; c) ensure any power point, control panel or other electrical item is installed above RL 6.5m AHD; d) implement suitable measures to ensure mobile plant, other equipment, oils, fuels and other consumables are protected and/or secured during flooding; and e) implement an early warning flood readiness and evacuation plan for the site. C41A. The finished flood protection bund shall be designed such that it is no lower than 6m AHD at the crest. C41B. The entry ramp into the bunded area, at its highest point, should not be lower than 6m AHD. C41C Prior to commencement of construction of the Project, the Proponent shall prepare to the satisfaction of the Secretary: a) a flood risk and evacuation management plan that provides further details for the implementation of the plan that forms Annexure D to Appendix 14 of the Preferred Project Report. This should include details of the driver warning process, location of flood warning signage, site evacuation process, clean-up process, etc; and b) certification from an appropriately qualified engineer that the flood protection bunds are capable of withstanding any hydrostatic pressures. C41D. The Proponent shall carry out the Project in accordance with the flood risk and evacuation management plan approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary.

[46]

Consideration of disputed conditions

Shortly after the hearing a further document, being an update of Ex 2R3 ("draft without prejudice conditions of approval") styled "Minister's Combined Version - 28.10.16" was provided to the Court. This document noted conditions that were agreed, marked up (in various colours) a number of conditions which were not agreed. The document contained short notes as to the parties' positions.
Subject to the parties agreement, I shall substitute that document for Ex 2R3 and note the following: 1. in relation to "Appendix D" (Noise Barrier Plan), the plan references marked in blue on p 3 which provide updated plans for noise barriers in accordance with the evidence, should be adopted; 2. in relation to "Appendix A" (Project Plans), to the extent that the list of drawings and plans on p 3 of the document reflect Ex R58 ("full set of plans for which approval is sought"), that change should be made; 3. in relation to the "Schedule B" (Deferred Commencement Conditions): 1. for the reasons stated above, condition BA is not imposed; and 2. in relation to condition BB, this condition is not imposed as I find that it would have the effect of inappropriately postponing the development and is unnecessary in the light of the noise mitigation measures now proposed by Moorebank. 1. in relation to the "Administrative Conditions": 1. each of the coloured amendments in B2 should be made; 2. in relation to B4A, this condition is not imposed. There is no proper evidentiary basis for the imposition of any time limitation; 3. in relation to B17, the amendment should be made; and 4. in relation to C9, given the respective responses from Moorebank and Council, the parties are directed to confer in relation to this condition and condition C23. 5. in relation to C11, to the extent that the proposed condition reflects agreement between the noise experts (Ex R41), the amended condition is imposed with the exception of the final two entries in Table 6 being "R3 Zone Tanlane Development" and "Marina Development - Residential areas". My reasons are: 1. as noted above, the RE2 land (where the marina consent has been granted) is zoned for non-residential uses. It should be assessed on the basis that it is proposed to be used as a mixed commercial/industrial retail use. This position was agreed between Dr Tonin and Ms Greer (and accepted by each of the EPA, the Secretary and the PAC) and assessed on this basis, the appropriate noise goals for those uses are met; 2. as found above, any proposal to incorporate residential uses is presently prohibited, and it is unreasonable to impose upon the current proponent a requirement to design for a use that at the time of determination is not permissible; 3. as noted above, in the event that there were some residential uses to be incorporated in the future, such uses would need to incorporate designs and controls to meet residential goals; 4. in relation to the R3 Zone Tanlane Development, although the present zoning permits residential uses, it is clear from observations during the view of the site, and the evidence, that there is much work required to make it suitable for residential use. As found above, the imminence of the use as residential is not certain; 5. further, as the Minister submitted, "an almost coincident portion of the R3 land will need to be acoustically protected from the marina use as it will need acoustic protection from the Moorebank road use."; and 6. I accept the further submission of the Minister stating "…consistent with the INP it is not unreasonable to require a later use to accommodate the road noise from the earlier industrial use". 1. in relation to C13, the condition as proposed by Moorebank should be imposed. Condition 13(f) proposed by Benedict is not imposed as it is not the agreed position of Dr Tonin and Dr Greer and the increase at this receiver is below the 2dBA increase allowed for in the EPA's Road Noise Policy ('RNP') as per evidence of Dr Tonin; 2. in relation to C14, the proposed condition is imposed; 3. in relation to C18, the parties are directed to confer and clarify the condition; 4. in relation to C20A, the condition is not imposed on the basis that there is no compelling evidence to justify the imposition of the condition. The project has been assessed on the basis of 324 truck movements per day; 5. in relation to C20B, this condition is not imposed for the reasons noted above in relation to Deferred Commencement condition BA; 6. in relation to C23(b) the amendment proposed by Moorebank is imposed; 7. in relation to C23(e) the alternative wording proposed by Moorebank (and supported by the Minister) is imposed; 8. in relation to amendments to C24, the amendments proposed by Council and Moorebank are imposed; and 9. in relation to C35A, parties are directed to confer in relation to specific plans the subject of the condition, noting that the plans referred to in C35A(a) and (e) are not reflective of plans presently the subject of evidence (Ex R58).

At a glance

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Judgment (49 paragraphs)

Legislation Cited (7)

Cases Cited (21)

Cited By (5)