In their written submissions, Mr Howard and Ms Novak for the applicant argue the application should be approved by the Court. They identify the following broad elements that support the approval of the application:
1. The environmental context of the site is one of the existing waste cells situated on a "highly disturbed site" in proximity to a disused Council waste depot (170-200m from the site) and a current Council waste transfer station (670-800m from the site). Both facilities are visible from the site.
2. The application supports the Visy Paper Mill which is considered of importance to the State as detailed in the Visy Mill Facilitation Act 1997. The subject development application is regionally significant and "fufills an essential part of a larger recycling process undertaken by Visy at its Kraft Pulp and Paper Mill in Tumut" (Applicants written submissions, 22 August 2016, at par24).
3. The placement of waste at the Burra Road facility is the preferred option of the Visy Paper Mill as it is the most cost effective and results in significantly less consumption of fuel, emissions, and impact to roads that the next preferred facility.
4. That the economic benefits of the development should be given weight in the merit assessment of the application; namely: the employment of eight full time workers, the flow on benefits of the facility to the Gundagai and the further economic benefits detailed in the EIS at Section 9.13 of Exhibit 1.
5. Existing Cells 1 & 2 are forecast to reach capacity in the last quarter of the 2018 calendar year. The approval of the subject development would allow continued operation of the facility for 12-15 years. This has economic and employment benefits for the locality.
6. At the time of the grant of consent for development of Cells 1 & 2 on the subject site (DA/11/2013), the relevant consent authority and the NSW Environmental Protection Authority (the EPA) were "satisfied that the proposed landfill comprising Cell 1 & 2, was sited in an appropriate location referable to the location guidelines set out in Table 1 in the Department of Urban Affairs and Planning 1996 Landfilling EIS guideline and that the EPA was otherwise satisfied that the proposal was acceptable having regard to both the DUAP 1996 guidelines and its own landfill guidelines" (Applicants written submissions, 22 August 2016, at par 11)
7. The site has a current license and has recently completed its five year review. This current license is capable of being amended to facilitate the expansion of the facility envisaged by current development application. The current operator of the site (M H Earthmoving) is the applicant and has a demonstrated good track record of environmental compliance.
8. There is nothing about the location of proposed Cell 3 which would make its footprint less appropriate than that of the existing Cells 1 & 2. In fact, the applicant argues that the evidence of the hydrogeologists' is that Cell 3 is: "better sited because, whereas there is a substantial layer of relatively impermeable ("extremely weathered" and "highly weathered") natural material (also describe as "clay mantle") that lies between the floor of Cell 3 and the aquifer 12-19 metres below it, Cells 1 & 2 where placed on an existing quarry directly on rock with the protective of confining clay mantle having been removed in the quarrying process" (Applicants written submissions, 22 August 2016, at par 20)
9. That the hydrogeologists' agree:
1. the ground water aquifer is not encountered until a depth of 12 -19m below ground level; that the leachate barrier design conforms to the requirements of the EPA Landfill guidelines in distinction to Cells 1 & 2 which were approved under the now superseded EPA (1996) Environmental Guidelines: Solid Waste Landfills.
2. that Cells 1 & 2 along with Cell 3 are overlying an aquifer.
3. That whilst the that the water contained within the aquifer at a technical level could be classified as drinking water, Mr Lane maintained his position that it would not be used as drinking water as it would only be marginally palatable (Applicants written submissions, 22 August 2016, at par 87)
1. that "not one person gave evidence that the ground water from any bore in this locality was used as a primary source of drinking water" and that on a "balanced assessment of all of the evidence, there is a real question of whether it is 'drinking water quality' within the meaning of the DUAP 1996 Guideline." The applicant asserts that given this is a merit issue, the Court, in applying the Landfill Guidelines would give consideration to the evidence that the water is only marginally within the nominated numerical parameters drinking water, is of dubious palatability, and not used by any persons as a primary source of drinking water (Applicants submissions in Reply, at pars 8 and 12);
2. And that "having regard to the totality of Mr Jewel's evidence, it does not provide any real support for the proposition that this particular aquifer is vulnerable to pollution", and in his oral evidence "Mr Jewel conceded that he hadn't suggested any physical criteria which would make the aquifer in issue vulnerable to pollution". (Applicants written submissions, 22 August 2016, at pars 94 and 96) In fact, Mr Jewel's position was consistently put that the likelihood of any impact was low.
3. In contrast, Mr Lane provide direct evidence that in his opinion the aquifer is not vulnerable to pollution at this site on the basis of a variety of factors including that: "deeper confined aquifers overlain by thick clay strata (which is characteristic of the site features and the aquifer in issue) are less vulnerable to contamination than unconfined aquifers; the aquifer is protected by 10m of overlying weathered dacite; and groundwater does not occur until a depth of 12-19m below ground" (Applicants written submissions, 22 August 2016, at par 92). On the basis of this specific and direct response, the Applicant argues Mr Lane's evidence should be preferred.
4. That given the preceding:
"the Court can comfortably conclude that:
(a) Having regard to the dual liner design of Cell 3 and the CQA measures that will be in place there is unlikely to be a failure in the lining of the Cell;
(b) Its siting over a significant natural barrier over a confined aquifer is an additional safeguard;
(c) any impact on groundwater (in the unlikely event of any impact at all) would expect to be localised and readily managed."
(Applicants written submissions, 22 August 2016, at par 148)
1. And that is so far as the SRPP seeks for the Court to refuse the application on the basis of the Landfill Guidelines the argument is not made out.
In addressing the position of the SRPP directly, Mr Howard and Ms Novak argue that the second respondent gives inappropriate weight to correspondence received from the EPA in reply to the request for general terms of approval.
As this letter is the subject of submissions from both parties it is appropriate to extract the pertinent sections. The letter in question is signed by a Mr Craig Bretherton, Manager Regional Operations South West EPA and dated 3 November 2017 (the November letter). It includes a more detailed, unsigned, attachment. The letter clarifies that this attachment "outlines further details of the EPA's assessment of the proposal". In part the letter states:
"Site Selection
The EPA Landfill Guidelines list several recognised environmentally sensitive and inappropriate areas for landfilling consistent with Table 1 in the NSW Department of Planning and Environment's EIS Practice Guideline: Landfilling, (NSW Department of Urban Affairs and Planning, 1996).
The EPA notes the list of inappropriate areas for landfilling includes -
sites located in or within 40 metres of a permanent or intermittent water body or in an area overlying an aquifer that contains drinking water quality ground water that is vulnerable to pollution
The EPA also notes section 4.4 of NSW Department of Planning and Environment's EIS Practice Guideline: Landfilling, (NSW Department of Urban Affairs and Planning, 1996) states amongst other things:
It is inappropriate to locate landfills in areas of high environmental value, or in areas subject to a significant environmental constraint with associated high environmental risks.
On environmental grounds, areas in Table 1 should be excluded from further consideration at the outset.
The EPA's position remains unchanged, in that the proposal being considered, is within 40 metres of an intermittent water body, given the proposed landfill expansion is to occur within an unnamed third order intermittent stream. It is the EPA's view that, consistent with NSW Department of Planning and Environment's EIS Practice Guideline: Landfilling, (NSW Department of Urban Affairs and Planning, 1996) this expanded site should have been excluded from further consideration at the outset.
Assessment of the EIS
…
After considering all the available information and in accordance with clause 70(2)(b)(i) of the Environmental Planning and Assessment Regulation 2000, the EPA has determined it is unable to provide General Terms of Approval for the application.
In addition to the list of inappropriate areas for landfilling outlined above, available data indicates that the site may be fundamentally unsuitable for the proposed development based on the potential for ground water quality impacts. In assessing the EIS, including the location and the constraints of the proposed site, the EPA considers that the information provided in the EIS does not provide the necessary certainty to the EPA that the potential risks to the environment from the proposed development have been fully and adequately assessed, and that those risks can be adequately prevented, mitigated or managed.
…"
(Exhibit 2 at #50)
Mr Howard and Ms Novak submit that the EPA's stated position in the November letter is based on a false premise. They argue that it is the agreed evidence of the hydrogeological experts that the development is not within 40 metres of an intermittent water body. They note that the joint position of the experts is that Cell 3, if approved, is to be constructed in the unnamed gully which is an "ephemeral water body" (Exhibit 5). They argue this error should influence the weight given by the Court to the conclusions of the EPA November letter.
Further, Mr Howard and Ms Novak argue that the stated concern of the EPA in the November letter was in relation to this unnamed gully and its status as a water body, not on any impact to the aquifer (noting this is the second part of the description of "Environmentally sensitive areas to be avoided" in the Landfill Guidelines). They emphasise that the November letter does not raise concern about the proposed location of Cell 3 "overlying an aquifer that contains drinking water quality ground water that is vulnerable to pollution". They note that the EPA also held no such concern when it provided general terms of approval and a license for the development of Cells 1 & 2 for waste disposal, located overlying an aquifer. This inconsistency, in their submission, reduces the weight that should be given by the Court to the conclusions of the EPA November letter.
The applicant further asserts that the Court should balance any reliance on this letter on the evidence of the minutes of the meetings held between the EPA and the applicant's consultant's team in early 2017. They argue the approval of the existing development of Cells 1 & 2, the ongoing meeting of the EPA and the consultants seeking expansion does not accord with the assertion of the November letter that the EPA is maintaining its position that "this expanded site should have been excluded from further consideration from the outset" (Exhibit 2 at #50).
The applicant submits that the EIS Guidelines, and in particular the locational criteria detailed in Table 1 (refer to [42(1)]) have not been consistently applied. In particular, the applicant relies on the EPA's grant of General Terms of Approval on two landfills: the Blaxland Resource Recovery and Waste Management Facility; and the Albury Waste Management Facility (Exhibit H) and the approval of Cells 1 & 2 on the subject site overlying the same aquifer as Cell 3. They note that these approvals all demonstrate inconsistency of the application of the "List of environmentally sensitive areas to be avoided" detailed in Table 1 of the EIS Guidelines.
In regards to the Blaxland Resource Recovery and Waste Management Facility, the applicant submits:
"… the description of the proposal was involving 're-diversion of Cripple Creek to the north of the existing landfill mound to overcome current surface water pollution from landfill leachate' and that this required a permit under the Fisheries Management Act 1994 because it would involve dredging and reclamation works in the creek" (Applicants written submissions, 22 August 2016, at par 73).
In regards to the Albury facility, Mr Howard and Ms Novak draw attention to the proposal which describes that: "an un-named creek that flows through the site would be diverted around the site and ground water at a minimum depth of 10m". However, they note that the Court heard no evidence of about the quality of the ground water.
Mr Howard and Ms Novak argue that the sole reason put by the SRPP to warrant refusal is "the risk that leachate from the proposed new Cell 3 might leak through the leachate barrier and contaminate the aquifer which lies 9-12m below the floor of the cell". They submit that an "orthodox planning approach to the assessment of the alleged risk of contamination to the aquifer would result in the approval of the development proposal because of the improbability of there being any unacceptable impact on ground water" (Applicants written submissions, 22 August 2016, at pars 40 and 42).
The applicant submits that, applying the principles in Stocklands v Manly Council (2004) 136 LGERA 254 at [92], the inconsistency in application of the locational criteria in the EIS Guidelines should diminish the weight given to them by the Court. Further, they argue that the obligation of the Court (at cl 123 of SEPP Infrastructure) is the "take into consideration" the locational criteria and that the guidelines do not have the effect of a "de facto prohibition", but rather to guide site selection (Applicant's written submissions, 22 August 2016, at par 81).
It is the submission of Mr Howard and Ms Novak that the alleged possibility of groundwater contamination by leachate arising from carrying out the development is unlikely (or on the evidence of Mr Lane, highly unlikely). They emphasise that both experts agree that:
"(a) it is unlikely that leachate will leak through the leachate barrier so as to enter the aquifer which is located 12- 19 metres below the proposed floor of Cell 3;
(b) any leakage of leachate - even in the unlikely event it were to leak through the leachate barrier would be unlikely to have any impact on ground water in the aquifer below the cell due to attenuation by the weathered dacite; and
(c) even if both of the unlikely contingencies above materialised, it would be unlikely that there would be any impact to the groundwater in the locations of extraction at the limited number of bores that use the aquifer in the general locality because of various factors, including their distance from the site and the dilution due to dispersion of any contaminants in the ground water and inflow to any pumping bore from alternative sources of water in the fractured rock aquifer"
(Applicant's written submissions, 22 August 2016, at par 107)
In addressing the evidence of the experts in relation to the changes in the ground water chemistry and ground water levels at the existing monitoring bore P1, Mr Howard argued in his opening that the consensus of scientific opinion, other than Mr Jewell, is that there is an alternative cogent explanation, other than leachate migration, for the elevation in levels in the monitoring bore at P1.
[2]
SRPP Submissions
In their written submission, Mr Leggat and Mr Nash emphasise that the site is fundamentally unsuitable for the development proposed, and that as a result of the EIS Guidelines (and in particular Table 1: List of Environmentally Sensitive Areas to be avoided), should have been excluded from consideration for the expansion of the Burra Road facility at the outset.
Mr Leggat and Mr Nash argue that pursuant to cl 123(1)(c)(ii) of SEPP Infrastructure, the EIS Guideline is a mandatory relevant consideration in the assessment of the Cell 3 landfill proposal. They state:
"The proposal is unquestionably 'permissible' as a matter of law, by operation of the Gundagai Local Environmental Plan 2011 and the Infrastructure SEPP. The EIS Guideline, however, expressly recognises that although a landfill proposal may be 'permissible' on a particular site, issues of 'site suitability' must remain at the forefront of any environmental assessment."
(Second respondent's written submissions, 17 August 2018 at par 6)
Further, Mr Leggat and Mr Nash argue that it is only appropriate, or necessary, to consider engineered solutions which are designed to prevent, minimise or mitigate pollution impacts (such as those arising from the escape of leachate) if a site is not a 'site to be avoided' as documented in Table 1 of the EIS Guidelines.
In his opening submission, Mr Leggat underscored the consistency of the approach taken by Table 1 of the EIS Guidelines, the approach of the EPA in their November letter and the Landfill Guidelines. It is his submission that each of these emphasise that the primary environmental control is judicious choice of landfill location. He references the following extract from the Landfill Guidelines:
"Siting Restrictions
Location is an important factor in determining the environmental risk posed by a landfill. Judicious location of a landfill is the single most effective environmental management tool.
Some minimum standards is these guidelines will be easier to achieve, and some design elements may even be omitted, by selecting a site where natural barriers (e.g. hydrogeological barriers) protect environmental quality and where the separation distances to sensitive receptors ensure that there will not be adverse impacts on existing and future development. The risk of leachate contamination increases where the site is in poor hydrogeological conditions, near sensitive water bodies such as wetlands, or near water sources used for drinking, irrigation, industrial use or stock watering."
(Exhibit 2, tab 10)
Given that Table 1 of the EIS guidelines (extracted at [42]) includes: "sites located… in an area overlying an aquifer which contains drinking water quality ground water which is vulnerable to pollution" as an area to be excluded from further consideration from the outset; Mr Leggat and Mr Nash submit that there are three elements to be considered by the Court in determining whether the site of Cell 3 is suitable for the development proposed:
1. Is the site overlying an aquifer?
2. Does the aquifer contain drinking water quality ground water?
3. Is the aquifer vulnerable to pollution?
(Second respondent's written submissions, 17 August 2018 at par 11)
Mr Leggat and Mr Nash rely on the following definition from the Macquarie Dictionary:
"vulnerable/ ˈvʌlnrəbəl, -nərəbəl/ adjective 1. susceptible to being wounded; liable to physical hurt. 2. not protected against emotional hurt; highly sensitive. 3. not immune to moral attacks, as of criticism or calumny, or against temptations, influences, etc. 4. (of a place, fortress etc.) open to attack or assault; weak in respect of defence. 5. Contract Bridge exposed to greater than usual penalties (applied to the partners who have won one game towards a rubber). [Late Latin vulnerābilis wounding] -vulnerability /vʌlnrəˈbɪləti/-nərə-/ vulnerableness, noun -vulnerably, adverb"
They argue that it is not necessary to establish that pollution will (as matter of fact) occur but rather that: " 'Vulnerability' involves notions of susceptibility - i.e. there is a potential for leachate to enter the ground water" (Second respondent's written submissions, 17 August 2018 at par 16).
Mr Leggat and Mr Nash argue that on the evidence before the Court the site of Cell 3 overlies an aquifer of agreed drinking water quality, and on the evidence of Mr Jewell that aquifer is vulnerable to pollution from leachate escaping the landfill. They argue on these grounds the site is unsuitable for the development proposed (pursuant to s 4.15(1)(c) of the Act), inconsistent with the EIS Guidelines in a circumstance where a variation to them has not been justified, and should be refused by the Court.
Mr Leggat and Mr Nash conclude that, when the Court considers the totality of the evidence, it is sufficient to demonstrate that the chosen site for Cell 3 is associated with an unacceptable risk to the receiving environment and the application should be refused notwithstanding the economic and other asserted benefits of the proposal.
[3]
Evaluation of the merits of the application
In evaluating the merits of the application, s 4.15 of the Act requires the consent authority, amongst other factors, to consider the provisions of the relevant environmental planning instruments. As noted at [31] cl 123 of SEPP Infrastructure provides a number of matters for consideration.
I am satisfied on the evidence that the Visy operation, which is the source of the material proposed to be landfilled at the subject site, has a suitable level or resource recovery to minimise material placed in landfill (cl 123(1)(a) SEPP Infrastructure). I have drawn this conclusion on the following reasoning:
1. The EIS describes the waste material proposed for Cell 3 as follows:
"The waste material is primarily an unrecyclable inert product generated from a paper recycling process undertaken by Visy. Over 220,000 tonnes per year of recycled paper and cardboard are processed at the Visy Tumut plant, of which 85% become recycled products and the remaining 15% requiring disposal to landfill. Other waste included in the subject landfill waste stream is a by-product of the Visy Mill pulp and paper production process, also classified as inert non-putrescible waste.
…
the majority of waste is Paper Machine Rejects (74%), which equates to 44,400 tonnes per year, if the proposal to increase the maximum waste deposition rate is approved. The volume of dregs and grits to be disposed of is calculated to be approximately 11,400 tonnes per annum (19%) and the remaining 4,200 tonnes (7%) comprising of fly ash and boiler sand."
(Exhibit A)
1. The requirement for waste used in the landfill to only be sourced from the Visy paper mill at Tumut is also a condition on the site's existing EPA license.
2. On 7 July 2017, Visy secured a modification approval for their operations at Tumut. Extracts of the application documentation, and the resulting approval, are appended to the joint report of the planning experts. Relevantly, this documentation notes that 48% of the wastepaper recycled at the plant is contaminated, and that 80-90% of the rejects/contaminants are plastic. This accords with my visual inspection of the site at the commencement of the hearing.
3. In approving the modification application for the Visy plant, the NSW Department of Environment and Planning included the following requirement by condition:
"5.4(f) An updated Solid Waste Management Plan for the existing plant (DA/6/98) and the project (06_0159), as modified, in consultation with the EPA, and to the satisfaction of the Secretary. The plan must:
i. describe the type, quantity, handling, storage and disposal of all waste streams generated on site, consistent with the Protection of the Environment Operations Act 1997, Protection of the Environment Operations (Waste) Regulation 2014and the Waste Classification Guideline (Department of Environment, Climate Change and Water, 2009);
ii. describe how waste is managed in accordance with the EPA's waste hierarchy for the life of the existing plant and project;
iii. include a landfill diversion that:
a. investigates reuse and recycling opportunities and identifies the approvals required for these activities;
b. etails timeframes for the implementation of reuse and recycling activities;
c. includes a monitoring program to measure the volume and composition of waste captured by the reuse and recycling activities and the waste sent to landfill;
iv. detail the contingency measures to ensure suitable management and disposal of waste …"
(Exhibit 4)
1. I am satisfied that the preceding is sufficient to demonstrate a suitable level of resource recovery to minimise material placed in landfill at the proposed Cell 3.
Clause 123(1)(b)(i) of SEPP Infrastructure requires the consent authority to consider whether the landfill adopts "best practice landfill design and operation". I note that the hydrogeology experts agree that the proposed design of Cell 3 accords with the standards imposed for a solid waste landfill, including putrescible waste, in the Landfill guidelines. On this basis, I am satisfied that the proposal meets this provision, in terms of its technical design, subject to my findings following on the appropriateness of the siting of the proposed waste cell.
Further, I am satisfied that the development satisfactorily reduces the long term impacts of the disposal of waste from greenhouse gases and odour impacts (cl 123(1)(b)(ii) of SEPP Infrastructure). My reasoning is as follows:
1. This matter is addressed within the EIS report (Exhibit A) at Section 9.3. The assessment of sources of greenhouse gas emissions concludes that the most significant source would arise from waste decomposition, but that capture is not feasible on the following reasoning:
"As the proposed waste is considered to be a general, non-putrescible solid waste, it is not anticipated to produce significant amounts landfill gas. Therefore, a formal gas collection and treatment system is not currently proposed for Cells 1, 2 or 3."
(Exhibit A)
1. Within the EIS the conclusion of the assessment of potential odour impacts arising from the development on adjoining properties is:
"Air quality impact assessment modelling suggested that cumulative odour ground level concentrations above the standard set for rural environments will not be encountered at any identified sensitive receptors. The cumulative contributions of odour have included the adjacent Council landfill and capped Cells 1 & 2 of the existing waste disposal facility."
(Exhibit A)
1. Neither odour impacts, nor management of greenhouse gas emissions, from the proposed use are issues contended by the Respondent.
At cl 123(1)(c), the matters for consideration include: whether the land on which the development is located is degraded; and whether the development is sited to avoid land use conflicts, including whether it is consistent with any regional strategies or locational principles located in the EIS Guidelines.
The SRPP's principal argument is that the application fails to satisfactorily address this provision, and that the consequently the subject site is unsuitable for the development proposed. In addition to the evidence summarised in the proceeding, I sought, by agreed Directions, additional information from the Application overlaying the proposed location of Cell 3 on the available historical aerial photography. I am satisfied that this material accords with the evidence of Mr Salvestro, that the proposed location of Cell 3 was subjected to quarrying activities (such as vehicular access), but I am satisfied that no indication of the actual quarrying of material in the area of proposed Cell 3 is demonstrated in the evidence.
The EIS notes the "the proposed new waste cell is to be established contains highly degraded ephemeral gullies" (Exhibit A). It is also Mr Salvestro's evidence that the "proposed earthworks and gully diversion are designed to provide a net environmental benefit to the catchment". Mr Perica's evidence is that the site of proposed Cell 3 is "moderately sloped, with erosion evident. The land is susceptible to degradation from the land fill on the site and past quarrying activities (apart from the proposed expansion)" (Exhibit 4).
I prefer the evidence of Mr Perica and find the land on which the development is proposed to be located, whilst showing evidence of erosion and susceptibility to soil degradation, is evidently in a less degraded state that the land now occupied by Cells 1 & 2.
I find there is a clear distinction between the pre-approval degradation of the existing quarry, now Cells 1 & 2, and the condition of the land proposed for Cell 3. I am satisfied it is appropriate to give this distinction weight in the application of the EIS Guidelines as a matter for consideration under cl 123 of SEPP Infrastructure.
Further, the proposed site design of Cell 3, in its final form, involves a transformation of the existing gully landform, and a substantive redirection of water flows to bypass the proposed Cell 3. I do not accept the evidence of Mr Salvestro, or the conclusion of the DM McMahon Pty Ltd Report: 'Hydrogeological, Hydrological and Land Assessment' (Attachment 7 of EIS) that: The final capping layer will be formed to be consistent with the surrounding landform (Exhibit A).
Following the site view, a review of the Creek Diversion Plan Layout and Sections prepared by SLR Consulting, consideration of the Closure and Rehabilitation plan (at 11.3 of the EIS) and the submissions, I prefer the evidence, and the conclusions of Mr Perica, that the subject site is susceptible to degradation, but not degraded to the extent foreseen by cl 123(1)(c) where rehabilitation by such a proposal may result in a net positive outcome.
On this basis, the final design of proposed Cell 3 is in plain contrast to the comparative rehabilitation of the subject site of Cells 1 & 2, which was previously quarried. The final form of that Cells 1 & 2 seeks to reinstate a capped level of approximately RL 294, aligning with the top of the current lip of the pit. This is in contrast to the final design of Cell 3, which will remove the existing gully landform, and redirect water flows around the site, both detrimental impacts arising from the development.
Further, I accept the submissions of Mr Leggat and Mr Nash that the proposed development of Cell 3 is also inconsistent with the matters for consideration at cl 123(1)(c) of SEPP Infrastructure. My reasoning is detailed in the following paragraphs.
I accept the evidence of Mr Perica (at paragraph [96]) that the development proposed is inconsistent with the locational principles contained in Table 1 of the EIS Guidelines.
I accept the agreed evidence of the hydrogeologist's that 'the proposed location of Cell 3 overlays an aquifer' (Exhibit 5).
In relation to the second descriptor contained in Table 1 of the EIS Guidelines, I note that the ADWG includes two different types of guideline values:
a health-related guideline value, which is the concentration or measure of a water quality characteristic that, based on present knowledge, does not result in any significant risk to the health of the consumer over a lifetime of consumption;
an aesthetic guideline value, which is the concentration or measure of a water quality characteristic that is associated with acceptability of water to the consumer; for example, appearance, taste and odour.
And at Table 10.6 the ADWG relevantly states:
(Australian Drinking Water Guidelines Version 3.5 at s.1.3.2)
I note that the experts agree that technically the ground water extracted from the bores in proximity to the site (drawn from the aquifer) is of 'drinking water quality'. Applying the preceding guidelines I accept their evidence.
I accept the submission of Mr Leggat and Mr Nash that, in the context of the EIS Guideline and the application of Table 1, 'vulnerable' is appropriately read as 'susceptible'.
I am satisfied that, when considered in totality, the evidence of the hydrogeologists' is concordant that: the natural material underlying the proposed Cell 3 is not impervious (although highly weathered); if leachate was to breach the liner/s of proposed Cell 3 it would, over time, reach the aquifer. I accept the experts differ in the likelihood of that occurring, the potential effect of attenuation and dilution of the leachate and the effect of dispersion between the aquifer at the point of draw down at a bore. However, I find that the differences in the expert's evidence are not germane to the question of the aquifer's susceptibility to the ingress of pollution. I am satisfied that the proposed site of Cell 3 is 'an area overlying an aquifer which contains drinking water quality which is vulnerable to pollution'. On this basis the location proposed for Cell 3 is inconsistent with the EIS Guidelines.
I am not satisfied by the Applicant's evidence that:
"Ground water susceptibility to pollution from leachate is minimised through appropriate management of all sources of leachate and the leachate holding dam. Monitoring of groundwater ensures that any pollution, if it was to occur, would be detected. Remediation measures will then be put in place to prevent future pollution incidents. Flow velocities of the associated aquifer are very low, so the potential for pollution to extend beyond the confines of the landfill site without detection are negligible." (Attachment 7 of EIS)
The conclusions of the hydrogeology experts is that there is no evidence of which bores would be potentially impacted if there was ingress of leachate to the aquifer, and that there is an overall lack of certainty of the behaviour of the fractured rock aquifer given its nature. This lack of evidence reduces the validity of the applicant's conclusions that the risk of pollution extending beyond the confines of the site without detection is negligible.
Importantly, there is a consistency between the assessment of the risk of the use on the subject site and the weighted consequences between the evidence of Mr Jewell and the EIS (Exhibit A, page 97). The EIS applies a 'medium' likelihood and a 'medium' consequence to the risk of: Impacts to groundwater from leachate generation of the waste cell. Mr Jewel, in his evidence, allocates a 'low' likelihood, and a 'high' consequence, resulting in a moderate risk.
I accept the evidence of Mr Jewel that, in the absence of further knowledge of the fractured rock aquifer, and the information detailed at [132], it is appropriate to allocate 'high' to the potential consequence of the identified risk: Impacts to groundwater from leachate generation of the waste cell.
[4]
Orders
The orders of the Court are:
1. The appeal is dismissed;
2. Development Application DA/242/2017 for the expansion of an existing General Solid Waste (non-putrescible) disposal facility at Lots 472 and 502 DP 751421 and Lot 2 DP 111917, 303 Burra Road, Gundagai is refused.
(3) The exhibits are returned with the exception of A, B, 1, 2 and 3.
…………….
D M Dickson
Commissioner of the Court
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 02 October 2018
Parties
Applicant/Plaintiff:
M.H. Earthmoving Pty Ltd
Respondent/Defendant:
Cootamundra-Gundagai Regional Council
Cases Cited (8)
Planning Framework
Section 4.10 of the Environmental Planning and Assessment Act 1979 (the Act) defines designated development as:
development that is declared to be designated development by an environmental planning instrument or the regulations. (Emphasis added)
As the application proposes the landfilling of 60,000 tonnes/ pa, it is classified as designated development by virtue of cl 32(b)(iii) of the Regulation).
Section 4.12(8) of the Act requires:
(8) A development application for State significant development or designated development is to be accompanied by an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations. (Emphasis added)
In September 2016, the NSW Department of Planning issued Secretary's Environmental Assessment Requirements (SEARs) for the proposed development. The SEARs identify that:
"The Environmental Impact Statement (EIS) must meet the minimum form and
content requirements in clauses 6 and 7 of Schedule 2 of the Environmental
Planning and Assessment Regulation 2000."
(Exhibit A)
A copy of the SEARs is incorporated in Exhibit A.
Clause 7 of Schedule 2 of the Regulation outlines the requirements for the contents of an EIS. The Applicant's EIS contains an assessment of the application against the ESD principles at Section 6.10.10: ESD Principles, and the justification of the project at Section 2.0. The conformity of the EIS to the SEARs and cl 7 of the Regulation is not an issue raised by the SRPP.
The application is also classified as integrated development by s 4.46(1) of the Act as it requires licenses and approvals under other NSW Legislation. The proposed development will require licensing under the Protection of the Environment Operations Act 1979 and activity approval under the Water Management Act 2000. The status of those agency responses are as follows:
NSW Environmental Planning and Assessment Authority (EPA): Letter of 3 November 2017, General Terms of Approval not provided.
NSW Transport: Roads and Maritime Services: Letter of 27 July 2017: no objection, subject to conditions provided.
NSW Office of Environment and Heritage: Letter of 17 July 2017: no objection, subject to conditions provided.
NSW Department of Primary Industries: Letter of 1 November 2017: no objection, subject to conditions provided.
In hearing the appeal, the role of the Court (s 39 of the Land and Environment Court Act 1979 (LEC Act)) is to assess and determine the development application based on the evidence in the proceedings and any amended documentation. The Court may determine the appeal whether or not the consultation with the relevant Government Agencies has taken place and whether or not the concurrence or approval has been granted (s 39(6)(a) of the LEC Act).
Part 3 of State Environmental Planning Policy No 33 - Hazardous and Offensive Development (SEPP 33) applies to development for the purposes of a potentially hazardous industry or a potentially offensive industry. Clause 12 of Part 3 requires:
A person who proposes to make a development application to carry out development for the purposes of a potentially hazardous industry must prepare (or cause to be prepared) a preliminary hazard analysis in accordance with the current circulars or guidelines published by the Department of Planning and submit the analysis with the development application.
Clause 13 of Part 3, SEPP 33 provides that the following matters must be taken into consideration by the consent authority prior to determining the application:
In determining an application to carry out development to which this Part applies, the consent authority must consider (in addition to any other matters specified in the Act or in an environmental planning instrument applying to the development):
(a) current circulars or guidelines published by the Department of Planning relating to hazardous or offensive development, and
(b) whether any public authority should be consulted concerning any environmental and land use safety requirements with which the development should comply, and
(c) in the case of development for the purpose of a potentially hazardous industry - a preliminary hazard analysis prepared by or on behalf of the applicant, and
(d) any feasible alternatives to the carrying out of the development and the reasons for choosing the development the subject of the application (including any feasible alternatives for the location of the development and the reasons for choosing the location the subject of the application), and
(e) any likely future use of the land surrounding the development.
The Applicant has provided the analysis required by cl 12 of SEPP 33 as a component of the EIS document. The satisfaction of the preliminary hazard analysis is not contended by the SRPP.
Because of the nature of activity and waste involved, a landfill site is identified as being potentially contaminated. State Environmental Planning Policy No 55: Remediation of Land (SEPP 55) applies to the development. Clause 7(1) of SEPP 55: requires the consent authority to consider whether the land is contaminated (at subcl (a)) and, if it is contaminated, the consent authority must be satisfied "that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out".
The existing use is listed in Table 1 of: Managing Land Contamination Planning Guidelines SEPP 55-Remediation of Land, NSW EPA 1998. Pursuant to cl 7(2), the current application does not propose a change of use. I am satisfied that, whilst the land is contaminated, it is suitable in its contaminated state for which the development is proposed to be carried out. I note that the proposed draft conditions incorporate the requirement for closure and rehabilitation of the site once filled, if approved.
Is there an inconsistency between SEPP Infrastructure and LEP 2011?
Preston CJ in Hub Action Group Incorporated v Minister for Planning and Orange City Council [2008] NSWLEC 116 identifies two forms of preconditions: firstly, procedural preconditions; and secondly, preconditions that that require the Court to form a position opinion of satisfaction:
38 The first precondition prescribes a process that must be undertaken: the making of an assessment of the kind specified. The second precondition requires the consent authority to form the requisite opinion of satisfaction. Both preconditions must be satisfied before the weighing of the merit considerations under s 79C(1) of the Act. Making the requisite assessment and forming the requisite opinion of satisfaction enlivens the power to grant consent to the development: (Citations omitted)
As noted at par [40] cll 6.1(4), 6.2(4) and 6.3(4) of LEP 2011 require the Court to form an opinion of satisfaction that:
(a) the development is designed, sited and will be managed to avoid any adverse environmental impact, or
(b) if that impact cannot be avoided - the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
The relevant "adverse environmental impact" for each subcl (4) is particularised at cll. 6.1(3), 6.2(3) and 6.3(3) of LEP 2011. The Applicant's satisfaction of these preconditions is contested by the SRPP.
It is accepted by the parties that the subject site is mapped as within the relevant Natural Resources Sensitivity Maps referred to in LEP 2011 and that these clauses apply to the subject development.
Further preconditions apply to the process undertaken and the requisite assessment of the application. They are:
1. Clause 13 of Part 3, SEPP 33 matters for consideration (as detailed at [25]);
2. Clause 123 of SEPP Infrastructure matters for consideration (as detailed at [31]);
3. Consideration of the zone objectives (cl 2.3(2) of LEP 2011)
4. The matters for consideration in cll 6.1(3), 6.2(3), and 6.3(3) of LEP 2011.
The Applicant argues that cll 6.1, 6.2, and 6.3 of LEP 2011 are inconsistent with the provisions of cl 8 of SEPP Infrastructure and do not operate as a precondition to consent. They submit:
"Whilst the Gundagai LEP is a relevant consideration to be taken into account, in so far as cl 6.2(4) and 6.3(4) would impose a prohibition on the grant of consent unless the consent authority is satisfied as to the matters stipulated in that subclause, the provision is inconsistent with the Infrastructure SEPP. Clause 121 of the Infrastructure SEPP will prevail and cl 6.2(4) and cl 6.3(4) do not operate to mandate that development consent should be refused."
(Applicant's written submissions, 22 August 2018, at 159)
Consideration
The hierarchy of planning instruments results in the presumption of SEPP Infrastructure prevailing to the extent of any inconsistency with any other environmental planning instrument (cl 8(1) of the Act). LEP 2011 is such an environmental planning instrument.
Clause 121(1) of SEPP Infrastructure provides that development for the purposes of waste disposal facilities "may be carried out by any person with consent on any land in a prescribed zone". While cl 121(1) of SEPP Infrastructure is worded differently to cl 17 of the SEPP(SL), as considered in Hastings, it is to the same effect, in making development permissible which would otherwise be prohibited by a local environmental plan. My reading of the relevant case law is that such a prohibition may arise either by operation a clause, such as the zoning of the land at cl 2.3(1) of LEP 2011, through a clause that acts as a precondition to consent (such as the failure to satisfy a precondition such as cll 6.2 and 6.3 of LEP 2011).
Inconsistency arises when two clauses are incapable of concurrent operation. This is explained in Hastings at [1] as follows:
Where cl 8(1) of the TLEP mandates that the Council refuse consent to development unless three conditions to which it refers are satisfied, and cl 17 of SEPP-SL permits the development to which it refers despite the provisions of any other instrument if the development is carried out in accordance with SEPP-SL, the two clauses are incapable of concurrent operation, and inconsistency arises between them: Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; 155 LGERA 52.
Applying Hastings, I am satisfied that there is relevantly an inconsistency for the purposes of s 3.28 of the Act between LEP 2011 and the SEPP Infrastructure. In that circumstance, the SEPP Infrastructure would prevail, and the proposed development would be permissible, despite a finding that the precondition in either cll 6.1, 6.2, and 6.3 of LEP 2011 is not met.
While there is power to grant consent under cl 212(1) of SEPP Infrastructure, compliance with its provisions does not mandate that the proposed development be granted consent: McColl JA in Hastings at [6] and the matters in cll 6.1, 6.2, and 6.3 of LEP 2011 are relevant matters for consideration under s. 4.15 of the Act.
'a threat of serious or irreversible environmental damage'
As to the first condition precedent, it is not necessary that serious or irreversible environmental damage has actually have occurred - it is the threat of such damage that is required. The environmental damage threatened must attain the threshold of being serious or irreversible, and be sustained by scientific evidence (Telstra at [129]).
It is clear from Telstra that if there is no threat of serious or irreversible environmental damage, there is no basis upon which the precautionary principle can operate (Telstra at [138-139]).
The basis of concluding there is a threat of serious and irreversible harm must be more than a "simple hypothesis, speculation or intuition". It should be postulated to an extent that it is "reasonable to envisage a scenario, even if it does not enjoy unanimous scientific support", Telstra at [148].
Applying the principles in Telstra, the first step is to assess the seriousness and the irreversibility of the environmental damage. The Respondent relies on Mr Jewel's evidence to satisfy this step.
In the decision of Mansfield v Minister for Planning and Hanson Construction Materials Pty Ltd [2012] NSWLEC 1063, which related to an application for a new quarry where naturally occurring asbestos was located, the Court held that the first precondition was met on the basis that: it was common ground that naturally occurring asbestos presents a risk to human health where it is disturbed or exposed to the atmosphere (at [5]); and the evidence of a qualified expert that "that once inhaled, tremolite cannot be removed; it causes changes in the lungs which manifest as mesothelioma, for which there is no known cure; these conditions appear 10-20 years after first exposure; and the average time from first onset of symptoms and diagnosis to death is approximately nine months" (at [77]).
I am satisfied that the evidence of the hydrogeologists' establish, with differing conclusions of likelihood, that there is a risk arising from leachate leakage from the proposed cell and migration into the aquifer.
I am not satisfied however; there is sufficient evidence before the Court to establish, to the level intended by the condition precedent in Telstra, of environmental harm to either uses or users of water from the aquifer if it is so impacted. I am not satisfied that the Respondent has demonstrated the environmental damage that would arise. I note the evidence of Mr Jewel that: contaminated bore water may impact stock quality and livestock accreditation; ongoing bore licenses for stock and domestic use; devaluation of property and economic harm. However, this evidence was not supported by any further documentation.
(1994) 84 LGERA 324
(2009) 168 LGERA 99
(2004) 136 LGERA 254
(2006) 146 LGERA 10
This conclusion of vulnerability is supported by the fact that the subject site is identified as 'sensitive land' for the purposes of cll 6.1, 6.2 and 6.3 of LEP 2011, as well as within the NSW Land and Water Conservation Groundwater Vulnerability Map (2001) regional mapping.
I accept the submission of Mr Leggat and Mr Nash at [151] that the thrust of the EIS Guidelines is that avoidance of risk impact is most effective by judicious choice of landfill location.
In forming the conclusion that the proposed development is inconsistent with the EIS Guidelines, and in particular the principles of site selection, I have given weight to the November letter of the EPA and the results from the existing P1 monitoring bore. I am satisfied on the evidence of Mr Lane and Mr Jewel that the presence of chlorine in the monitoring results at bore P1 is most likely to have arisen from egress of leachate from the existing Cells 1 & 2. Noting Mr Lane's oral evidence was:
"the chloride is the one that's least likely to have an alternative explanation than leachate. So chlorine is not a very abundant element in rock material, and it isn't in the dacite. So in the absence of anything else, the only other source of it would be the leachate, which has a high chloride concentration."
(Transcript 17 August, par 159)
It was Mr Jewel's conclusion that the results at P1 'had clearly been impacted by leachate' (Exhibit 5).
In my view, notwithstanding the "beneficial" highly weathered material underlying proposed Cell 3, I am satisfied that the conclusions of the experts confirm the susceptibility of the aquifer to the receiving of leachate, and the risk of failure of an engineered solution to waste containment. I find that this, in combination with the acceptance of the experts that water (or leachate) will move through the weathered rock to the aquifer, makes the proposed site of Cell 3 unsuitable for the development proposed.
In forming this conclusion, I have given weight to the purpose of the exclusion of those areas identified in Table 1 of the EIS Guidelines. The guidelines state that the environmentally sensitive areas denoted in Table 1 "should be excluded from further consideration [as landfill sites] from the outset". Further, the EIS Guidelines are clear that "it is inappropriate to locate landfills in areas of high environmental value, or in areas subject to significant environmental constraints with high environmental risks" (EIS Guidelines at 15). In relation to this development, the purpose of the exclusion is noted as: to protect ground water resources. I am satisfied that there is a moderate risk of the ground water being impacted by the development and it is inappropriate to locate a new landfill cell in the location proposed.
I am satisfied that it is appropriate to consider the current and future use of the bores downstream bores, for both stock and domestic use, and to give weight to the need to protect the ground water resources.
On the basis of the preceding reasoning I find that, pursuant to s 4.15(1)(c) of the Act that the subject site is unsuitable for the development proposed.
Further, pursuant to s 4.15(1)(a) of the Act, I find that the development is inconsistent with the intent and objectives of cl 6.2 of LEP 2011 as it fails to protect "landforms" at (e) and is not designed and sited to avoid adverse environmental impact.
Equally, I find that the development is inconsistent with the intent and objectives of cl 6.3 of LEP 2011 as it fails to protect "(b) natural water flows" and "(d) groundwater systems" and is not designed and sited to avoid adverse environmental impact.
I am satisfied that given the likely impacts of the development, the proposal does not warrant a variation to these provisions.
Further, on balance I am satisfied that the economic benefits that will arise from the proposed development (refer to Section 9.13 of the EIS, Exhibit A) do not offset the likely environmental impacts of the development (s 4.15(1)(b) of the Act) and the application warrants refusal.
Division 23 of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) provides that a waste disposal facility is permissible with consent in the prescribed zones (at cl 121(1)), including the RU1 Primary Production zone. As the subject site is zoned RU1 under the Gundagai Local Environmental Plan 2011 (LEP 2011) the development proposed is permissible with consent.
Section 3.28 of the Act, and cl 8(1) of SEPP Infrastructure, address inconsistency between instruments. Respectively, they state:
Section 3.28 of the Act
3.28 Inconsistency between instruments
(1) In the event of an inconsistency between environmental planning instruments and unless otherwise provided:
(a) there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy, and
…
(c) the general presumptions of the law as to when an Act prevails over another Act apply to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind.
…
(4) Nothing in this section prevents an environmental planning instrument from being expressly amended by a later environmental planning instrument, of the same or a different kind, to provide for the way in which an inconsistency between them is to be resolved.
Clause 8(1) of SEPP Infrastructure
Relationship to other environmental planning instruments
(1) Except as provided by subclause (2), if there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after commencement of this Policy, this Policy operates for the extend of the inconsistency.
None of the exclusions at cl 8(2) of SEPP Infrastructure apply to the development.
Clause 123 of SEPP Infrastructure provides that the following matters must be taken into consideration by the consent authority prior to determining the application:
123 Determination of development applications
(1) In determining a development application for development for the purpose of the construction, operation or maintenance of a landfill for the disposal of waste, including putrescible waste, the consent authority must take the following matters into consideration:
(a) whether there is a suitable level of recovery of waste, such as by using alternative waste treatment or the composting of food and garden waste, so that the amount of waste is minimised before it is placed in the landfill, and
(b) whether the development:
(i) adopts best practice landfill design and operation, and
(ii) reduces the long term impacts of the disposal of waste, such as greenhouse gas emissions or the offsite impact of odours, by maximising landfill gas capture and energy recovery, and
(c) if the development relates to a new or expanded landfill:
(i) whether the land on which the development is located is degraded land such as a disused mine site, and
(ii) whether the development is located so as to avoid land use conflicts, including whether it is consistent with any regional planning strategies or locational principles included in the publication EIS Guideline: Landfilling (Department of Planning, 1996), as in force from time to time, and
(d) whether transport links to the landfill are optimised to reduce the environmental and social impacts associated with transporting waste to the landfill.
(2) In this clause:
putrescible waste means general solid waste (putrescible) within the meaning of clause 49 of Schedule 1 to the Protection of the Environment Operations Act 1997.
The Applicant and the SRPP made opposing submissions in relation to the interaction of cl 123 of SEPP Infrastructure and the provisions of the applicable local environmental plan.
The subject site falls within the boundaries of the LEP 2011. Under the definitions of LEP 2011, the use of the site is defined as a 'waste disposal facility'.
The aims of LEP 2011 (cl 1.2(2)) are:
(a) to retain the distinctive character of Gundagai town in its riparian setting,
(b) to protect Gundagai's crop and pasture lands and vineyards from adverse environmental impacts,
(c) to protect environmentally sensitive land and important fauna and flora,
(d) to protect, conserve and enhance Gundagai's rich indigenous and non-indigenous cultural heritage,
(e) to encourage economic growth, employment creation and business opportunities in the rural, village and urban areas of Gundagai,
(f) to maintain Sheridan Street as Gundagai town's primary area for business, civic and cultural uses and visitor services,
(g) to encourage the renewal and consolidation of older residential areas close to the Gundagai town centre to provide appropriate housing that meets the needs of the community,
(h) to ensure that all development in Gundagai is required to comply with the principles of ecologically sustainable development.
The subject site is zoned RU1 Primary Production. The objectives of the zone are:
• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.
• To encourage diversity in primary industry enterprises and systems appropriate for the area.
• To minimise the fragmentation and alienation of resource lands.
• To minimise conflict between land uses within this zone and land uses within adjoining zones.
• To encourage the efficient use and conservation of water resources.
• To protect significant scenic landscapes.
• To encourage development that does not adversely impact nearby agricultural activities.
• To protect, enhance and conserve the natural environment, including native vegetation, wetlands and wildlife habitat.
• To ensure development prevents or mitigates land degradation.
Part 6 of LEP 2011 contains additional local provisions relevant to the assessment of the proposal: cl 6.1 Biodiversity Protection; cl 6.2 Land Protection and cl 6.3 Water Protection. These clauses apply to land identified as "sensitive land" on the relevant Natural Resources Sensitivity Maps. The subject site is included in those maps.
Clause 6.1(3) "Biodiversity Protection" states:
(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider any adverse impact of the proposed development on the following:
(a) native ecological communities,
(b) the habitat of any threatened species, populations or ecological community,
(c) regionally significant species of fauna and flora or habitat,
(d) habitat elements providing connectivity.
Clause 6.2(3) "Land Protection" states:
(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider any adverse impact of the proposed development in relation to:
(a) the geotechnical stability of the site, and
(b) the probability of increased erosion or other land degradation processes.
Clause 6.3(3) "Water Protection" states:
(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider any adverse impact from the proposed development on the following:
(a) the water quality of receiving waters,
(b) the natural flow regime,
(c) the natural flow paths of waterways,
(d) the stability of the bed, shore and banks of waterways,
(e) the flows, capacity and quality of groundwater systems.
Each of the preceding cll 6.1, 6.2 and 6.3 have the following precondition at subcl (4):
(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that:
(a) the development is designed, sited and will be managed to avoid any adverse environmental impact, or
(b) if that impact cannot be avoided - the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
The instrument requires the consent authority to form a positive opinion of satisfaction on these matters before the exercise of power to grant consent (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [13]).
Relevant to the assessment of the application are the following guidelines:
1. Landfilling: EIS Guideline by Department of Urban Affairs and Planning, 1996 ('the EIS Guidelines'), and in particular Table 1, extracted below:
1. Environmental Guidelines Solid Waste Landfills by NSW Environment Protection Authority, Second Edition, 2016 ('the Landfill guidelines')
The Applicant argues that their submission is supported by the decision of the Court of Appeal in Hastings Point Progress Association Inc v Tweed Shire Council (2009) 168 LGERA 99 ('Hastings').
Relevantly, the Hastings case concerned a development application for a seniors living development permissible under State Environment Planning Policy (Seniors Living) 2004 (SEPP(SL)). In a regime similar to the current case, cl 5(3) of SEPP(SL) provided that that policy prevails to the extent of any inconsistency with any other environmental planning instrument, and cl 17 provides that Ch 3 of the SEPP(SL) allows development for seniors living "despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy…". Clause 8(1) of Tweed Local Environmental Plan 2000 (TLEP) provided that consent could be granted to development only if the consent authority was satisfied, among other things, that the development "is consistent with the primary objective of the zone within which it is located", and "would not have an unacceptable cumulative impact on the community, locality or catchment that will be affected…".
The decision of the Court of Appeal in Hastings was that where cl 8(1) mandated refusal unless the conditions were satisfied, and cl 17 permitted the development, that provision could not operate concurrently with cl 17 and there was an inconsistency between them. Young JA held that the primary Judge had been correct to hold that the failure to be satisfied under cl 8(1) could not on its own give rise to a refusal of a development application that was for a development within SEPP(SL).
It is on similar reasoning that the Applicant argues that failure to satisfy cll 6.2(4) and 6.3(4) in LEP 2011 does not preclude the Court from undertaking a merit assessment and granting consent to the development.
Mr Howard and Ms Novak address the preconditions in cll. 6.2(4) and 6.3(4), and their interaction with SEPP Infrastructure in their written submissions.
Firstly, they argue that the interpretation of cll 6.2(4) and 6.3(4) advanced by the SRPP is incorrect and that:
"On its proper construction, clause 6.3(4) requires the consent authority (Court), before granting development consent to land identified as 'sensitive land' on the Natural Resources Sensitivity Map to be satisfied that the development is designed, sited and will be managed to achieve the objectives listed in sub-paragraphs (a), (b) or (c). Those sub-paragraphs set out, in descending order, the objectives the Court must be satisfied the development is designed and sited and will be managed to achieve."
(Applicant's written submissions, 22 August 2016, at par 151)
Importantly, Mr Howard and Ms Novak argue that if achievement of (a), avoidance of adverse environmental impact, is not possible, objective (b) articulates "an alternative (next best) objective" of designing, siting and managing to minimise the impact. If that isn't possible, subcl (c) focusses on managing the development to mitigate the impact.
Further, Mr Howard and Ms Novak argue that, in the event that the Court is not satisfied by the matters in cll 6.2(4) and 6.3(4), that does not preclude the grant of consent. Their reasoning is as follows:
1. the Infrastructure SEPP (cl 121) provides that the proposal is permissible with consent and does not require the Court to be satisfied as to the matters listed under cll 6.2(4) and 6.3(4) of LEP 2011;
2. to the extent that cll 6.2(4) and 6.3(4) would impose a prohibition on the grant of consent (unless the consent authority was satisfied as to the matters listed) the provision is inconsistent with cl 121 of SEPP Infrastructure;
3. Relying on Hastings Point Progress Association v Tweed Shire Council & Anor (2009) 168 LGERA 99 they submit that "cl 121 of SEPP Infrastructure will prevail and cl 6.2(4) and 6.3(4) do not operate to mandate that development consent be refused".
(Applicant's written submissions, 22 August 2016, at pars 158-161)
In the alternative, the SRPP argues that cll 6.2(4) and 6.3(4):
"do not reverse the beneficial effect of the Infrastructure SEPP which makes the proposal 'permissible', because the proposal was already permissible under the Gundagai Local Environmental Plan 2011 and those clauses are merely merit assessment considerations, satisfaction of which gives the consent authority the power to grant consent (if that be the consent authority's decision with respect of the application)" (Respondents written submissions at 51).
The SRPP submits that the application warrants refusal on the grounds that the preconditions cll 6.2(4) and 6.3(4) are not satisfied. Mr Leggat and Mr Nash note that in particular they rely on cl 6.3(4), refer to [39].
Mr Leggat and Mr Nash argue that cl 123 of SEPP Infrastructure acts to provide additional matters of consideration for the consent authority in determining the application, and is not, in their view, inconsistent with cll 6.2(4) and 6.3(4). They note that in their submission these clauses "do not reverse the beneficial effect of the Infrastructure SEPP which makes the proposal 'permissible', because the proposal was already permissible under the Gundagai Local Environmental Plan 2011 and those clauses are merely merit considerations, satisfaction of which gives the consent authority power to grant consent..." (Second respondent's written submissions, 17 August 2018 at par 51).
Mr Leggat and Mr Nash argue that the construction of these clauses should be taken as follows:
"… in order to satisfy the Court as to a proposal's satisfaction of cll 6.2(4) and/or 6.3(4), one cannot simply 'chose' whether to 'minimise' or 'mitigate' and impact if any adverse environmental impact cannot be avoided. It is necessary that subclause (a) be satisfied, in the first instance, by evidence, and only once that has been done, may one proceed to consider subclause (b). Then, only if subclause (b) is satisfied, be evidence, may one proceed to consider subclause (c)."
(Second respondent's written submissions, 17 August 2018 at par 45)
Relevantly, they argue that "…the Applicant has not brought forward any evidence to satisfy the first precondition that the proposal is designed, sited and will be managed to avoid any adverse environmental impact, or that the proposal cannot avoid that impact. Accordingly, the Applicant does not get through the 'first gate' of cll 6.4(4) or 6.3 (4) - that is options to minimise or mitigate impacts are irrelevant unless and until the first gate can be passed through" (Second respondent's written submissions, 17 August 2018 at par 46). On this basis, it is Mr Leggat and Mr Nash's submission that the leachate barrier design and the ongoing management of the facility in accordance with the Landfill Guideline and the EPA license therefore do not arise for consideration.
On this basis, Mr Leggat and Mr Nash say that the precondition is not satisfied and the Court has no power to grant consent to the development.
Neither of the hydrogeology experts asserted that the increased concentration of salinity and a change in the alkalinity in bore water, that would arise from leachate ingress, are harmful to human health (Page 75 and 79 of the Court transcript, 16 August 2018). I acknowledge the concern of Mr Jewel that unintended contaminants in the landfill material may contain substances that cause environmental harm, but no scientific evidence is before the Court that sustains that proposition.
As a result, in the current proceedings, I find that the evidentiary basis proposed to establish serious or irreversible environmental harm arising from leachate discharge into the ground water to uses or users downstream (in the manner defined by Telstra) is insufficient to satisfy the first condition precedent.