No Dump Residents Association Inc v Collex Pty Limited

The Clyde Act 13 The critical provision of the Clyde Act is s4 which provides: "4 Development consent relating to certain land at Clyde Development consent is taken to have been granted under the Planning Act to carry out development on the subject land for the purposes of a waste transfer terminal, subject to the conditions set out in the document entitled 'Clyde Waste Transfer Terminal - Conditions of Development Consent' presented to the President of the Legislative Council (by or on behalf of the Member of the Legislative Council who introduced the Bill for this Act) when the Bill was introduced into the Legislative Council." 14 The issue turns on the reference to "the subject land" in s 4. That phrase is defined as follows: "the subject land means the land the subject of the development application (being Part Lot 201, Deposited Plan 1007683, situated at the Clyde Rail Marshalling Yards). 15 The words "development application" referred to in this definition of "the subject land" are also defined as follows: "the development application means the development application made by Collex Pty Limited on 2 August 2001 under, or purporting to have been made under, the Planning Act." 16 It is also pertinent to note s5 of the Act which states: "5 Nature of the development (1) The development that may be carried out under the development consent is taken to be State significant development that is integrated development, subject to section 9. (2) The following approvals are required from the following approval bodies in order for the development, as integrated development, to be carried out: (a) an environment protection licence referred to in sections 43 (b), 48 and 55 of the Protection of the Environment Operations Act 1997 issued by the Environment Protection Authority, (b) a consent under section 138 (1) (a), (b) and (e) of the Roads Act 1993 granted by the Roads and Traffic Authority." 17 The Development Application of 2 August 2001 identifies the land in the following way. It refers to the lot number as Lot 201 Deposited Plan Number 1007683 and adds after the reference to the DP number: "See Fig 5.1.2". 18 Furthermore in answer to that part of the Development Application which states: "Describe what you propose to do" the Development Application stated: "Waste storage, transfer and separating. Facilities include: - transfer building, - office and amenities, - gatehouse and weighbridge, - entry and exit access roads." 19 Figure 5.1.2 is a plan showing an area stippled in pink colour and identified as Lot 201 DP 1007683. The plan does not, however, precisely coincide with the area of Lot 201. There is a small area not stippled in pink colour. This is a matter of some significance for the purpose of the construction issue before the Court, because the definition of "the subject land" set out above refers to "being Part Lot 201". 20 On Figure 5.1.2 two areas identified in a dark outline are each described as a "proposed site location". These were the areas in which buildings were to be constructed pursuant to the Development Application as it then stood. Subsequently, the proposed location of what was referred to as the Transfer Building was moved from the original location in Lot 201 towards the centre of Lot 201. This was represented in another plan referred to in the proceedings as Figure 1.1 that was annexed to the SEIS.

The Scope of the Consent 21 The issue before Talbot J leading to his first judgment, and the issue that arises on the Notice of Contention in this Court, concerns the proper construction of s4 of the Clyde Act as set out above. That section deems consent to have been granted for the development on the subject land "for the purposes of a waste transfer terminal". His Honour held that the development to which this section referred was confined to the building constituting the Transfer Terminal itself and not to the area stippled pink on Figure 5.1.2. Accordingly, the consent under s4 did not extend beyond the confines of the building and the allegedly "unlawful activities" were not within the consent deemed to have been granted by s4 of the Act. 22 The critical steps in his Honour's reasons are as follows: "[53] … The identification of the land the applicant proposes to develop by reference to the Development Application is brief and concise, namely Lot 201 in DP 1007683. The reader of the Development Application is referred to Figure 5.1.2. Figure 5.1.2 purports to depict the Site Lot and DP Number of the Site and Surrounding Sites. The reference to Lot 201, DP 1007683 is imprinted over the area marked by pink stipple. Within the area marked by pink stipple are two sections of the land identified as 'Proposed Site Location'. Three other lots outside the pink stippled area are identified by Lot number and the location of Parramatta Road is also shown. [54] The problem for the respondent is that the Act requires an understanding and identification of 'the land the subject of the development application' rather than the description of the land taken from the development application. The conditions of consent incorporate the EIS and SEIS, thereby recognising that the area to be occupied by buildings and structures is as shown in Figure 1.1 of the SEIS rather than on the proposed site locations depicted in Figure 5.1.2 in the EIS. [55] The direction in Condition 1 to carry out development in accordance with, inter alia, the EIS and SEIS plainly shows that development consent taken to have been granted under section 4 authorises the construction of the transfer building at the location shown in the revised Site Layout in Figure 1.1 of the SEIS. At that point difficulty still remains because Figure 1.1 effectively confines the site to the area where it is proposed to construct the revised transfer building and part of the access road. The proposed modification which gave rise to the preparation of the SEIS involved a proposal 'to move the transfer terminal to a new location'. Significantly the only structure or facility that is relocated by the modified proposal is the transfer building itself, together with the movement of the gatehouse and weighbridges from the access area identified in Figure 5.1.2 so that they are placed adjacent to and connected to the entrance to the transfer building. [56] The SEIS consistently refers to the 'revised transfer building' as the 'Transfer Terminal' whereas the Transfer Terminal is repeatedly referred to in the context of compaction of waste and loading of containers onto trains. [57] The purpose of the Act is stated in the long title as being '…to permit the development…for the purpose of a waste transfer terminal; and for other purposes.' The interposition of the semi colon raises the question as to whether 'purposes' when used the second time is intended as a reference to other purposes of the Act or whether it is was intended to indicate the development of the land at Clyde was permitted for use as a waste transfer terminal as well as other purposes or uses. If the long title is to be used as an aid to identify the object or purpose of the Act, then I prefer the former interpretation on the basis that the other purposes are ancillary provisions which seek to regulate future conduct pertaining to the development consent that is taken to be effective and operate from the date of the assent to the Act. [58] Although the EIS and SEIS were prepared in support of a development application solely in respect of the transfer building and part of the access to it, the documents deal extensively with the related activities carried on separately by FreightCorp. The site where Collex proposes to operate its Transfer Terminal and Gatehouse/Weighbridge is described as being within the southwestern portion of the Clyde Rail Yard comprising 0.94ha. Lot 201 in DP 1007683 has a total area of 8.093ha. [59] The usual connotation of a terminal in the context of a railway line is the end point or station at one extremity of the railway line. Although the word terminal can be readily associated with the operation of a railway in a broader context the Australian Oxford Dictionary refers to a terminal as an extremity. The definition in the Macquarie Dictionary is to like effect when it refers to an end or extremity. Insofar as the delivery of waste from the various areas in the Sydney region is concerned, the Transfer building can be readily regarded as a terminal as being the place of final delivery by trucks of the waste to that point. It is possible and indeed quite probable that the transfer operation is limited to the compaction of the waste and loading into shipping containers after delivery to the floor of the transfer building. Thereafter, the containers are pushed into the railway yard for loading onto a train for conveyance to Woodlawn. The concept developed by the respondent during argument would have the transfer operation extend from the delivery of waste to the building by truck up to the point of the loading a full container onto a rail wagon. [60] The following statement appears in the SEIS:- This supplementary EIS and Development Application (DA) covers those proposed operations under Collex's management which would be inside the Transfer Terminal and involve the unloading of waste from trucks and compacting of waste into sealed containers [61] It goes on further to state:- In response to issues raised, the Clyde Transfer Terminal would be re-located to a different part of the Clyde Rail Yard site. The new location and additional controls offer improvements over the earlier estimates of environmental and social impact. [62] Accordingly, if pursuant to Condition 1 development is to be carried out in accordance with the EIS and SEIS then the approval given by the development consent taken to be granted can only relate to what is the underlying concept in those documents. [63] The specific reference to Figure 5.1.2 in the Development Application does not necessarily assist the respondent's argument. To the contrary, it supports Mr Brzoson's submission that the relevant notation on that Figure is in effect the reference to the proposed site location for the two distinct areas shown, being the then contemplated site for the Transfer building and the separate area where the Gatehouse and Weighbridges were proposed to be built. [64] I am prepared to acknowledge that the SEIS effectively amended the Development Application, so that in accordance with the revised Site Layout shown in Figure 1.1, the description of the subject land was amended to incorporate the area shown as 'Revised Transfer Building'. It follows therefore that the subject land is confined to the areas upon which Collex proposed to carry out the operations of waste storage, transfer and separating including the construction of the transfer building, office and amenities, gatehouse and weighbridge and entry and exit access roads. [65] The activities of waste storage, transfer and separating do not, in my opinion, extend to any operation outside the transfer building itself and the access road. In the absence of any definition of the pink stippled area in Figure 5.1.2 and the lack of any description of the area outside of the proposed site location in Figure 5.1.2 or the revised site layout in Figure 1.1, there is no justification for construing the subject land as defined in section 3 as comprising anything beyond the site layout shown in Figure 1.1. [66] If the Parliament had intended that the subject land would be either the whole of Lot 201 or the pink stippled area in Figure 5.1.2 then I would have expected it to say so in concise and clear terms. It chose not to do so and instead defined the land as being the land the subject of the development application. An analysis of the development application shows clearly it was originally the land shown in Figure 5.1.2 but ultimately the development application was modified so that the transfer building could be erected on the alternative location shown in Figure 1.1. Accordingly the land the subject of the Development Application is identified by reference to Figure 5.1.2 and Figure 1.1 and the areas specified therein as either Site Location or Site Layout. To incorporate any part of Lot 201 beyond those areas, as the respondent demands, would be to take a meaning of the words in the Act beyond what they say in accordance with their ordinary usage as applied to the material referred to for the purpose of identifying the subject land. I therefore find that the subject land on which development may be carried out, pursuant to section 4 of the Clyde Act, is the area depicted as Revised Transfer Building - Revised Site Layout in Figure 1.1 of the SEIS together with that part of the original site layout shown in the same figure which was separate from the area originally designated for the transfer building in Figure 5.1.2. [67] I agree with Mr Officer that the only purpose of the reference to the Development Application in the Clyde Act is for the purpose of the definition contained in section 3. However when properly construed the subject land is so confined that it can only accommodate development for the purposes of a waste transfer terminal within those areas. It is obviously intended that the wagon loading, container storage area and the railway Track 20 and 22 will be used in association with the waste transfer terminal for which development consent is taken to have been granted but they do not have the benefit of the effect of section 4." 23 The issue for this Court is whether or not "the subject land", within the meaning of s 4 of the Clyde Act, is confined to the Transfer Terminal understood as the building, or whether it extends to the whole of the pink stippled area. If the latter, then the Respondent is entitled to use the whole of the land for the purposes of a waste transfer terminal and that would encompass the rail freight part of the operation, including each of the allegedly "unlawful activities". 24 The determination of this issue can be resolved on the basis of statutory construction. The definition of "the subject land" is that it is "the land" that is "the subject of the development application". The reference to the "development application" must be understood as the document dated 2 August 2001. When one looks at the land which is the subject of that development application, there is a reference to Figure 5.1.2 in the manner set out above. I do not find any ambiguity in this. The land is identified by the pink stipple. There is nothing on the face of the Development Application that confines it to the two parts, each described as a "proposed site location", identifying the new buildings then proposed to be erected on the site. Nor is there anything in the definition section that suggests, in any way, that the subsequent amendment to the location of the buildings, contained in Figure 1.1, was the limits of what was referred to by the terminology "subject land". The definitions of both "the subject land" and the "development application" refer, and refer only, to Figure 5.1.2. 25 Although I can detect no ambiguity in this respect, the contemporary approach to statutory interpretation requires the Court to take into account context in the first instance and not merely after some form of ambiguity has been detected. (See CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].) 26 The Clyde Act directs attention to certain matters which are pertinent to the process of interpretation. Of greatest significance is the set of conditions for the development consent which are expressly referred to in cl 4 itself. Further assistance can be obtained from the reference to an Environment Protection Licence in s5(2)(a), and to the consent under the Roads Act 1993 referred to in s5(2)(b). 27 As I have noted above the "unlawful activities" questioned by the Appellant are those at the back end of the process, being the storage of the rail containers and their movement. However, if the Appellant's construction, accepted by Talbot J, were correct then s 4 being directed only to approval of the building, would not have any implications for the arrival of the waste by road. Although this aspect of the development was not challenged in the Class 4 Application, the position with respect to the commencement of the process, by the arrival of waste by road, is pertinent to an understanding of what is meant by "subject land". There are a range of conditions which refer in detail to the road freight process. Furthermore, there are also some conditions that refer to the transportation by rail from the process. These conditions would not have been relevant if the development consent was limited to the buildings alone. 28 Condition 1 relevantly provides: "1. Development shall be carried out in accordance with: (a) DA No. 205-08-01; (b) the EIS prepared for the 'Clyde Transfer Terminal' by Maunsell McIntyre Pty Ltd, dated 14 August 2001; (c) the Supplementary EIS prepared for the 'Clyde Transfer Terminal' by Maunsell McIntyre Pty Ltd, dated 18 December 2001; … except as modified by the following conditions." 29 References to the rail transportation component of the development appear in the following conditions: "8. No waste shall be received at the development except waste to be transported by rail from the Clyde Marshalling Yards for disposal at the Woodlawn Bioreactor. 9. The volumes of waste accepted at the development shall not exceed the annual waste input rates in Table 1, approved for acceptance at the Woodlawn Bioreactor, unless otherwise approved by the Minister. The Minister shall give such approval if the need for additional capacity at the Woodlawn Bioreactor is demonstrated by an independent public assessment of landfill capacity and demand in the Sydney Region. …" 30 Condition 39 required the Respondent to prepare an Environmental Management Plan with respect to the Operation Stage of the development. One of the requirements of this plan was that there be a "Noise Management Plan". Condition 54 refers to the rail operations as being regulated by a Noise Management Plan as follows: "54. The Noise Management Plan shall be drafted in consultation with the rail operator for operation of the rail siding adjacent to the waste packaging terminal for the rail haulage services for Collex. The plan is to be submitted to Auburn Council. The plan must address the objective of mitigating operational rail noise from operations directly attributable to the loading and unloading of containers and associated rail operation on the siding adjacent to the Collex terminal, relating to the movement of containers from the Collex packing terminal. The plan must also identify reasonable noise mitigation strategies: a) Upgrade to hardstand areas utilised for loading and unloading of trains and rail track upgrade where feasible; b) Resurfacing of hardstand area with appropriate noise mitigation materials; c) Track repair and realignment where feasible and appropriate to minimise forklift travel having regard for other rail operations and heritage issues; d) Container management protocols to minimise movement and handling of containers with an emphasis on noise mitigation; e) Identification and utilisation of forklifts to minimise noise impacts and implement measures to minimise use of reversing alarms at night; f) Establishment of a noise complaints procedure; g) Investigating the scheduling of trains outside critical hours subject to metropolitan curfew, Rail Infrastructure Corporation slot management and rail operational considerations; h) Ongoing community consultation; and i) Employee education in noise mitigation practices." 31 Furthermore, Condition 64 states relevantly: "64. No waste shall be removed from the premises except: … (b) waste in sealed shipping containers to be transported by rail for disposal at the Woodlawn Bioreactor." 32 Condition 108 identifies in a table form certain noise limits to be generated during the operation stage of the project at certain identified nearby residences. Pursuant to this section of the appeal the conditions under the general heading Noise Management concluding with Condition 114: "114. The Applicant shall, in conjunction with the rail operator, implement an induction program for all train drivers and other rail staff dedicated to transporting containers to and from the Collex terminal area by train to Woodlawn. The program is to emphasise noise mitigation measures through 'Good Neighbour' rail techniques such as notch control, idling practices, shunting speeds and engine control and shall form an integral part of the operational noise management plan." 33 With respect to the front end of the process, being the arrival of waste by truck, a range of conditions are pertinent. 34 Condition 118 provides: "118. All access to the development shall be via a sealed access road from Parramatta Road. No vehicle shall enter or exit the development via the internal road connecting the Clyde Marshalling Yards to Rawson Street." 35 There are numerous other references to waste arriving by vehicle. These include the following: "50. The Traffic Management Plan must address, but is not necessarily limited to, the following issues: (a) An education program for all drivers and owners of waste vehicles using the site, about the 'left turn only' restrictions on entering and leaving the premises via Parramatta Road (b) A monitoring and recording program to identify and record any waste vehicle and its driver that breaches the 'left turn only' restriction upon entering or leaving the premises via Parramatta Road (c) An education programme for all drivers and owners of waste vehicles using the site, about the waste transport routes permitted to be used in the vicinity of the development (d) A monitoring and recording program to identify and record any waste vehicle and its driver that breaches the permitted transport routes (e) An enforcement program including the imposition of identified punitive measures against any driver or vehicle owner whenever the above restrictions are breached (f) Contracts with waste transporters to include conditions addressing entry and exit restrictions and permissible waste transport routes and punitive measures for non-compliances. (g) Measures to minimise trucks and other heavy vehicles from entering or exiting the premises between the following hours: 10pm and 5am Mondays to Saturdays; 10pm and 7am Sundays and public holidays." 36 Further, under the heading of Dust Management appears Conditions 94 and 95: "94. All trafficable areas and vehicle manoeuvring areas in or on the premises shall be maintained at all times in a condition that will minimise the generation or emission from the premises, of wind-blown or traffic generated dust. 95. Trucks entering and leaving the premises that are carrying loads must be covered at all times, except during loading and unloading. (EPA)" 37 Finally, under the heading Noise Management, which includes Condition 108 with respect to the noise limits to which I have referred above, there also appear Conditions 112 and 113 as follows: "112. The Applicant shall ensure that annual noise emission assessments of all trucks owned or operated by the Applicant or trucks the subject of a delivery contract with the Applicant are carried out. The assessment shall assess compliance with relevant noise emission requirements of ADR 28/01 or its successor. The assessment shall be made available to Auburn Council and to the Director-General within 3 weeks of the Applicant's annual licensing report to the EPA. If any non-compliance with the relevant noise emission requirements is identified, the assessment report shall recommend mitigation measures with the objective of ensuring compliance with relevant noise emission requirements of ADR 28/01. 113. The Applicant shall implement an induction program for all drivers of trucks that deliver waste to the waste terminal with the objective of mitigating noise impacts of trucks entering and leaving the waste terminal, including driving procedures and throttle management. The program is to be designed in consultation with Auburn Council and is to emphasise the importance of noise emission control, driving and operating practices and procedures for night time activities." 38 It is clear from these Conditions that the arrival of waste by truck and its removal by rail was a critical part of the development. The regulation of these matters is a significant component of the Conditions of Development Consent which are expressly referred to in s4 of the Clyde Act. That, of course, is the very section which grants consent to "development on the subject land". 39 This is a significant part of the immediate context within which the words "the subject land" must be construed. It confirms the literal interpretation outlined above that the words referred to the whole of the land stippled pink in Figure 5.1.2. 40 In my opinion, Talbot J was wrong to confine the words "subject land" to the building constituting the Transfer Terminal. The Notice of Contention should be upheld. It is unnecessary to deal with the appeal.

Costs 41 The Appellant also sought to appeal from his Honour's order to pay the costs other than the costs of the separate determination of the construction issue. 42 The Respondent did not receive costs below of the argument on the construction issue, upon which it has succeeded on appeal. However, it sought no variation of the order made by Talbot J should it be successful in this respect. The Respondent did not seek any costs of the appeal and, accordingly, that is not a matter that needs to be dealt with. The Respondent did, however, resist the Appellant's appeal insofar as it sought to disturb the order for costs made by Talbot J. 43 In his judgment on costs Talbot J referred to the judgment in Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 per Stein J and on appeal in the High Court Oshlack v Richmond River Council (1998) 193 CLR 72. His Honour referred to the reasoning of Stein J to the effect that, in that litigation the Appellant had nothing to gain from the litigation, that it was motivated by desire to ensure enforcement to environmental law and the litigation had raised significant issues about the interpretation of future administration of statutory provisions relating to the protection of endangered fauna but that "something more" was required than the fact that the litigation involved public rather than private rights. 44 Talbot J concluded that: "[5] I have not been satisfied that the subject litigation covered, at least to the same extent, the wider purpose and benefit identified by Stein J. The applicant was unsuccessful in relation to an argument regarding existing use rights in respect of which no wider significant issues arose. Although the applicant represents a significant group of individuals and the immediate community it goes no further than that. The interests, as best I can determine them are predominantly local interests who disagree with the activity at that location. There were no significant issues regarding environmental law generally that had implications for the public at large. The equivalent of "something more" identified by Stein J has not arisen in the present case. I am not prepared to exercise the discretion in respect of costs on the basis that the litigation can be categorised relevantly as in the public interest." 45 In its submissions to this Court, the Appellant asserted that his Honour had not given the public interest dimension of the litigation appropriate weight. In the circumstances, that amounts to no more than an assertion that his Honour ought to have come to the opposite conclusion. His Honour was conscious of the fact that there was a public interest dimension. Nevertheless, there was nothing to suggest that that dimension was of such a character as to lead to an inference that he failed to give the public interest dimension proper weight. 46 The Appellant was unable to point to any error in the exercise of the discretion. The present case included elements of public interest, as well as elements of neighbours protecting the immediate amenity of their residences. The conclusion that his Honour reached was well within the permissible exercise of his discretion. 47 During the course of the appeal the Court indicated to the parties that it had come to a clear view on the notice of contention and did not hear full argument on the appeal with respect to Talbot J's decision on existing use rights. 48 The Respondent did not appeal to this Court from the first judgment of Talbot J. Such an appeal would have averted the further hearing requiring detailed factual investigation. This Court has not determined the issue whether or not the appeal on the existing use rights would have succeeded. It would not be an efficient use of this Court's time to consider that matter for the sole purpose of determining whether or not the costs order ought to be varied. 49 Each hearing before Talbot J took three days. No doubt, the preparation costs for the second hearing involving detailed factual inquiry, were higher than the first. Nevertheless, there is a broad equivalence before the two hearings before Talbot J. 50 The Respondent has now succeeded in the issue about which it did not receive an order for costs. It may well have succeeded on the separate matter with respect to which it did receive an order for costs. In the circumstances, this Court should not interfere with the orders of Talbot J.

1 An order extending time for the filing and service of the Notice of Contention dated 25 October 2005 up to and including that date.

3 Each party pay its own costs of the proceedings in this Court. 52 GILES JA: I agree with Spigelman CJ. 53 TOBIAS JA: I agree with Spigelman CJ. **********

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