No Dump Residents Association Incorporated v Collex Pty Limited

Land and Environment Court (NSW)|2004-11-05|Before: Talbot J, Mr J, Bignold J

CITATION : No Dump Residents Association Incorporated v Collex Pty Limited [2004] NSWLEC 618 APPLICANT No Dump Residents Association Incorporated PARTIES : RESPONDENT Collex Pty Limited FILE NUMBER(S) : 40888 of 2004 CORAM: Talbot J KEY ISSUES: Construction and Interpretation :- plain and ordinary usage of words - proper use of extrinsic material - purpose of specific Act of Parliament. Clyde Waste Transfer Terminal (Special Provisions) Act 2003 s 3, s 4, s 6, s 7, s 9, s 10 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C, s 92, s 92A, s 96(6), s 97, s 98, s 98A(1)(a), s 99 , s 107, s 109 Interpretation Act 1987 s 34(1)(a) Auburn Local Environmental Plan 2000 cl 22, cl 58 Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471; ; Birch v Allen (1942) 65 CLR 621; ; CASES CITED: Botany Bay City Council v Remath Investments No.6 Pty Ltd (2000) 50 NSWLR 312 ; Cole v Director General Department of Youth and Community Services and Another (1987) 7 NSWLR 541; ; Drake & Ors; Auburn Council v Minister For Planning And Anor; Collex Pty Ltd [2003] NSWLEC 270, unreported; R v Mailes (2001) 53 NSWLR 251 at 272). DATES OF HEARING: 19/10/04, 20/10/04, 21/10/04 DATE OF JUDGMENT: 11/05/2004

APPLICANT Mr Brzoson (Agent)

LEGAL REPRESENTATIVES: RESPONDENT Mr D P F Officer QC with Mr J E Robson SC SOLICITORS Freehills

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40888 of 2004 No Dump Residents Association Incorporated v Collex Pty Limited

JUDGMENT 1 Talbot J: The applicant represents the interests of persons who are opposed to the establishment of a waste transfer terminal by the respondent, Collex Pty Limited ("Collex") at Clyde. 2 Pursuant to section 4 of the Clyde Waste Transfer Terminal (Special Provisions) Act 2003 ("the Clyde Act") development consent is taken to have been granted under the Environmental Planning and Assessment Act 1979 ("the EP&A Act") to carry out development on land defined in the Act as "the subject land" for the purpose of a waste transfer terminal subject to conditions. It is appropriate to set out section 4 in full as follows:-

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 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 3 Relevantly the "subject land" and "the development application" are defined in section 3(1) as follows:-

3 Definitions (1) In this Act: 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. the development consent means the development consent taken to have been granted as referred to in section 4. the Planning Act means the Environmental Planning and Assessment Act 1979. 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).

4 Pursuant to section 6 of the Clyde Act, the development consent "is taken to become effective and operate" from the date of assent, namely 8 December 2003. Under the provisions of section 7 the Minister is taken to be the consent authority in respect of the development consent. 5 Section 9 provides that sections 92, 92A, 96(6), 97, 98, 98A(1)(a) and 99 of the EP&A Act do not apply to or in respect of the development consent or the development. Section 10 provides that the provisions of an environmental planning instrument, in so far as they apply to the subject land, which are inconsistent with any provisions of the Clyde Act, have no effect to the extent of the inconsistency. 6 In Drake & Ors; Auburn Council v Minister For Planning And Anor; Collex Pty Ltd [2003] NSWLEC 270, unreported, Bignold J upheld appeals brought pursuant to section 98 of the EP&A Act against the determination of the Minister for Planning, dated 29 August 2002, whereby the Minister granted development consent to the development application made by Collex on 2 August 2001, on the ground that the proposed development was not for a permissible purpose under Auburn Local Environmental Plan 2000 ("LEP 2000"), on the basis that contrary to clause 22, it would not be compatible with the existing and likely future character and amenity of the surrounding area. Without coming to a concluded view on the proper characterisation of the proposal His Honour held that clause 22 of the LEP precluded the grant of consent. 7 However in the course of his judgment at [76] Bignold J held that the proposed development by Collex was not properly characterised as "freight transport terminal" within the meaning of the LEP. That category was the only possible permissible purpose of development. It followed that the development was prohibited development and incapable of being granted development consent. 8 Bignold J also carried out an evaluation of the merits of the proposal, conformably to the requirements of section 79C of the EP&A Act and decided that the development consent should also be refused on the grounds of likely adverse environmental, social and economic impacts. It is not necessary to delve further, except to note, that judgment was delivered on 7 November 2003 and the Clyde Act was introduced to Parliament immediately thereafter, so that the second reading speech was made in the Legislative Council on 19 November 2003 and in the Legislative Assembly on 5 December 2003. 9 Apart from historical background, none of the issues in the present proceedings turn upon the decision of Bignold J. However it is helpful for an understanding of the effect of the Act to appreciate that the description of the proposed development, considered by Bignold J, was confined to a proposed transfer building to be erected by Collex on part of the existing Intermodal Facility conducted by FreightCorp at the Clyde Rail Marshalling Yards, in contradistinction to the additional activities conducted by FreightCorp itself. 10 The Environmental Impact Statement (EIS) considered in conjunction with the development application described the main activity to be conducted by Collex as compacting of putrescible waste for containerisation. For that purpose Collex would lease part of the existing Intermodal facility from FreightCorp for the purpose of erecting the building for waste packing, weighbridge, administrative facilities and parking. The EIS states that FreightCorp will have responsibility for movement, storage and overall logistical management of containers used for transport. Collex was the only applicant for development consent. 11 Bignold J assumed that there was sufficient source of authority for the undertaking by FreightCorp for its activities pursuant to cl 58(1) of the LEP. However, he regarded the omission to assess the environmental impact of the activities to be undertaken by FreightCorp as exposing a fundamental deficiency in the environmental assessment of the proposed development by Collex, which he says was highly relevant to the required evaluation of the merits of the proposal being considered by him.

12 The distinct treatment and assessment of the Collex proposal and the failure to assess the FreightCorp activities in the EIS and a Supplementary Environmental Impact Statement (SEIS) suggests an explanation for the confinement of the applicant's challenge to the lawfulness of the following activities as outlined in paragraph 20 of its Points of Claim:-

(a) the removal of filled waste containers from the slug packer end of the waste terminal constructed on the Site; (b) the transfer of filled waste containers to an adjacent railway siding hardstand area; (c) the temporary storage of filled waste containers on the railway siding hardstand area; (d) the movement of the filled waste containers from the railway siding hardstand area onto the carriages of trains operated by Pacific National (NSW) Pty Ltd; (e) the movement of empty waste containers from the carriages of trains operated by Pacific National (NSW) Pty Ltd onto the railway siding hardstand area; (f) the storage of empty waste containers on the railway siding hardstand area.

13 There is no challenge to the lawfulness of the use of the transfer building for the purposes described in paragraph 16 of the Points of Claim as follows:- · the construction of the waste transfer building, being a building in which putrescible waste would be delivered, tipped, compacted and containerised; · the construction of an office and amenities; · the construction of a weighbridge and gatehouse; · construction of stormwater detention basin; · the operation of the waste packaging activities within the waste transfer building.

14 Mr Brzoson, who is the lay representative of the applicant, assisted by Mr Drake, clearly accepts the effect of the Clyde Act is to grant consent to the development application rejected by Bignold J. 15 Mr Officer QC, who appears for the respondent with Mr Robson SC, rejects that construction by adopting what he says is the plain and ordinary meaning of the words used in the statute, namely that development consent is taken to have been granted for the purposes of a waste transfer terminal incorporating all of the abovementioned activities and uses. 16 The respondent and FreightCorp have always contended that existing use or continuing use rights apply in respect of the activities on land outside the transfer building; a contention that is not accepted by the applicant. In the event that the respondent is not able to persuade the Court that the consent taken to have been granted pursuant to section 4 of the Clyde Act covers the whole of the activities at the site, then the respondent will rely on the continuing rights in respect of the uses outside the building, either as uses authorised by s 107 or s 109 of the EP&A Act or by clause 58 of the LEP, which reflects clause 35 of the Model Provisions that deals with the carrying out of activities by public authorities.

17 The SEIS was prepared after modifications were made to the design of the proposal to take account of issues raised by the public following exhibition of the original EIS. In response to the issues raised, the building described as the Clyde Transfer Terminal was relocated to a different part of the Clyde Rail Yard site. A succinct description of the proposed operations by Collex and FreightCorp appears in the Executive Summary contained in the SEIS as follows:- FreightCorp, a NSW Government owned rail organisation, own and operate a rail freight intermodal terminal at Clyde Rail Yard. FreightCorp currently holds a licence issued by the EPA for the storage, transfer, separating or processing of waste on land comprising the Clyde Intermodal Facility. Collex and FreightCorp would jointly manage the overall operations of the proposed Clyde Transfer Terminal within the conditions defined by FreightCorps EPA licence; the original EIS, this supplementary EIS and subsequent approval conditions. FreightCorp would have responsibility for the movement, storage, loading and overall logistical management of containers used for waste transport, which include: . Development and operation of the transfer building, weighbridge and associated infrastructure. . Entry and exit of waste vehicles from Parramatta Road into Clyde Rail Yard. . Unloading waste from the vehicles inside the Transfer Terminal. . Compaction of waste into sealed containers. . Throughput capacity of up to 500,000 tonnes of putrescible waste per year through the Transfer Terminal. Collex intends to lease part of the existing Intermodal Facility from FreightCorp for the purpose of erecting a building for waste packing, weighbridge, administrative facilities and parking. 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. 18 The Minister and the Court proceeded to determine the development application as an application in respect of the use of the transfer terminal building only. 19 The applicant claims the following relief by way of declaration:-

A declaration that the Respondent, by itself, its servants or agents, has, or is likely to carry out development an land being Lot 201 in deposited plan 1007683 in the Auburn Council area (the Site) without development consent, contrary to section 76A of the Environmental Planning and Assessment Act 1979 (EP&A Act). That development being:

a) the removal of filled waste containers from the slug packer end of the waste terminal constructed on the Site b) the transfer of filled waste containers to an adjacent railway siding hardstand area; c) the temporary storage of filled waste containers on the railway siding hardstand area; d) the movement of the filled waste containers from the railway siding hardstand area onto the carriages of trains operated by Pacific National (NSW) Pty Ltd; e) the movement of empty waste containers from the carriages of trains operated by Pacific National (NSW) Pty Ltd onto the railway siding hardstand area; f) the storage of empty waste containers on the railway siding hardstand area; ( the Unlawful Activity )

20 In opening address Mr Brzoson raised a number of merit issues and legal contentions. However, after discussion between the parties it was agreed that the Court be asked to determine the identity of the subject land referred to in the Clyde Act in the first instance, as the resolution of that issue has the potential to determine all issues between the parties except and unless the respondent is placed in the position where it must rely on existing or continuing use rights. The parties are content to defer the existing/continuing use arguments to a later date.

21 As a consequence of the agreement between the parties the only relevant documents for present purposes are:-

The Clyde Act;
The Development Application made by Collex Pty Limited on 2 August 2001;
The EIS;
The SEIS; and
DP 1007683. 22 The conditions referred to in section 4 of the Clyde Act and set out in the document entitled "Clyde Waste Transfer Terminal - Conditions of Development Consent" include condition 1 that provides 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; d) all additional information supplied by the Applicant or the Applicant's consultants or subconsultants to the Department or integrated approval bodies pertaining to the development, including ten listed documents which are then identified specifically. The applicant's case 23 Mr Brzoson contends that the Act contains no ambiguity and that accordingly, pursuant to section 34(1)(a) of the Interpretation Act 1987, it is only necessary to refer to the EIS and SEIS to confirm that the meaning of the provisions in the Act is the ordinary meaning conveyed by the text.

24 The development application is in a standard form that identifies the land that the applicant proposes to develop as being "Lot 201 DP 1007683 (see Fig 5.1.2)" in the suburb of Clyde. Figure 5.1.2 is in the EIS and is identified in the legend as follows:-

Clyde Transfer Terminal Site Lot and DP Number of the Site and Surrounding Sites 25 The figure is in the form of a plan showing an area stippled in pink colour and identified as Lot 201 DP 1007683. The plan is diagrammatic and does not appear to adopt the strict survey boundary lines shown in DP 1007683 itself. Two areas identified as "proposed site location" are edged in dark outline. It is the applicant's contention that the land the subject of the development application is the area of the two locations identified as "proposed site locations" by dark outline. This construction, according to Mr Brzoson is consistent with the words in brackets contained within the definition of the subject land in section 3 of the Clyde Act "(being Part Lot 201 Deposited Plan 1007683)." 26 Areas outside the stippled area in Figure 5.1.2 carry a reference to Lot 23, Lot 1 DP 6438951 and Lot 203 DP 1007683. 27 Figure 5.1.2 contrasts to Figure 1.1 in the SEIS which shows a Revised Site Layout for the Clyde Transfer Terminal identifying the original site layout more or less in accordance with Figure 5.1.2 and the Revised Site Layout which places the revised transfer building at a different location within Lot 201. For the purposes of Figure 1.1 the original transfer building is depicted as being within the proposed Site Layout shown in Figure 5.1.2. The second proposed site location shown in Figure 5.1.2 is essentially replicated in Figure 1.1. 28 Figure 5.1 in the SEIS is described as "Clyde Transfer Terminal Site Layout Plan - Initial Development" and shows the transfer building in the alternative location depicted by Figure 1.1. There are additional notations in Figure 5.1 which identify activities outside the revised transfer building shown in Figure 1.1, namely activities for the purposes of wagon loading and container storage area and existing rail lines referred to as Track 20 and Track 22. The loading and storage area and the rail lines are not incorporated within either the site layout in Figure 5.1.2 or in the revised site layout in Figure 1.1. 29 Mr Brzoson's argument is that any activities which will take place outside either of the proposed site locations shown in Figure 5.1.2, including the revised transfer building in Figure 1.1, will not occur on the subject land as defined in section 3 and accordingly are unauthorised. He contends that the reference to "a waste transfer terminal" in section 4 is a reference to a building. To support this argument he refers to section 3 of the Development Application form which describes the proposal as follows:- Waste storage, transfer and separating. Facilities include: - Transfer building, - Office and amenities, - Gatehouse and weigh bridge, - Entry and exit access roads. 30 Each one of the buildings described in section 3 of the Development Application are separately identified in Figure 5.3.4 in the EIS which depicts the "Proposed Yard Layout." Mr Brzoson says that although the wagon loading and container storage area and the railway tracks are shown on Figure 5.3.4, they do not form part of the Development Application as they are not included in section 3 of the form. That the activities to be carried out, other than within the nominated buildings, were excluded from the consideration process in relation to the development application and in respect of which a claim has been made for existing/continuing use rights, means the respondent Collex cannot now claim the consent, that has been taken to have been granted by dint of section 4, includes and approves of those uses. In other words it is the applicant's position that anything that occurs outside the areas nominated as the proposed site locations in Figure 5.1.2 cannot have the benefit of the Clyde Act provisions. The transfer building as built is not within those areas and as Bignold J refused development consent for it, the use of the building and the building itself is unlawful. 31 In the absence of an expressed objective of the Clyde Act Mr Brzoson says that the purpose of its provisions must be derived from the plain words of the Act itself. He submits that because the Act is intended to attach rights in rem to the subject land, then those rights can only benefit the land the subject of the development application, namely that land which is specifically the land identified as the proposed site locations in Figure 5.1.2 in the EIS. Furthermore in the circumstances, the Act should be construed strictly and if there is any ambiguity it should be construed against the interests of the beneficiary. At best the respondent may have a consent for the transfer building, but where all of the usual environmental assessment processes and considerations are bypassed, the company Collex, should not be placed in a better position that it can be from a narrow construction of the Act. Moreover, as it elected to apply for development consent in respect of specific matters then it cannot have consent in respect of aspects of its development which it chose not to pursue in the development application. 32 After noting the significant advantages which accrue to Collex, Mr Brzoson reiterates that the Court should bear in mind, while construing the provisions of the Act, that it is designed to usurp the judgment of Bignold J and to obviate any further need for public scrutiny, notwithstanding the considerable controversy surrounding the development. Therefore it is not open for the Court to construe the words used in the sections of the Act in a tortured and unrealistic manner in order to permit a construction that suits the purposes of Collex in order to overcome the findings of Bignold J and at the same time resolve any dispute that may remain in relation to the claim for existing/continuing use rights. The function of the Court remains to determine the effect of the Act from the words actually used in the text. In this context Mr Brzoson refers to the observations made by the Chief Justice in R v Young 46 NSWLR 681 at [32] to [35]. The respondent's argument 33 As Mr Officer refers to the long title of the Clyde Act it is appropriate to set it out in full, as follows:- An Act to permit the development of certain land at Clyde for the purposes of a waste transfer terminal; and for other purposes. 34 He refers to the long title in an attempt to show that if the applicant is correct, then the Act applies only to the transfer building. The result would be nonsensical because there would be no authority to deliver waste to or remove it from the waste transfer terminal after processing. 35 To put this submission in proper context it is relevant to note that the long title of an Act is intended to describe in a general way the purpose or object of the Act but its importance really lies in Parliamentary procedure (see Statutory Interpretation in Australia Fifth Edition DC Pearce and RS Geddes page 16 par 1-28). Notwithstanding where its primary importance lies, there is authority to the effect that the long title can be regarded as part of the Act and can be relied upon as indicating the purpose of the Act particularly if there is some ambiguity in the language of the provisions of the Act itself (Birch v Allen (1942) 65 CLR 621; Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471; Cole v Director General Department of Youth and Community Services and Another (1987) 7 NSWLR 541; R v Mailes (2001) 53 NSWLR 251 at 272).

36 Although the long title does little to directly clarify the identity of the land upon which the development is proposed, it nevertheless may assist with an understanding of the purposes of the development, which in turn could clarify the extent of land intended to be used for those purposes. 37 According to Mr Officer, an examination of the Act as a whole, but in particular section 4, discloses that the only purpose for the reference to the development application made by Collex on 2 August 2001 is to identify the subject land. Section 4 makes no reference to a development application. The effect of the section is that development consent "is taken to have been granted." Accordingly the starting point for the application of the Act is the time when the development consent is taken to become effective and operate, namely the date of assent on 8 December 2003, pursuant to section 6. Anything required to be done pursuant to the EP&A Act up to that point is taken to have occurred. 38 Furthermore he says section 9 of the Clyde Act provides that sections 92 and 92A of the EP&A Act do not apply in respect of the development consent to avoid the anomalous situation that would arise under the requirements of those sections in circumstances where there is no development consent, in fact, in respect of State Significant Development, that is Integrated Development. Sections 96(6), 97, 98, 98A(1)(a) and s 99 of the EP&A Act are made specifically not applicable by section 9 in order to avoid any confusion about a right of appeal against the development consent that is taken to have been granted under the EP&A Act pursuant to section 4. 39 Mr Officer argues that looked at in the above way, the starting point for the purpose of construing the Act and ascertaining its effect is to ascertain the literal and natural meaning of a "waste transfer terminal" and then to ascertain what is the "subject land" in order to identify the land upon which the respondent is entitled to carry out that development. The result of that enquiry would be to have an understanding that the purpose of the Act is to permit the development of the land properly identified for the purpose of a waste transfer terminal; and for other purposes as illustrated by the long title of the Act. The respondent does not accept that the description "waste transfer terminal" can be limited to one building or a collection of buildings. 40 Mr Officer further contends that the interposition of the word "transfer" introduces the concept of conveyance or removal from one place to another and therefore would necessarily involve the delivery of waste on the one hand and its removal on the other. In the respondent's case, it is not to the point that the proposed development considered by Bignold J in the earlier proceedings was confined to the building to be erected for waste packing, weighbridge, administrative facilities and parking. The nature, character and component parts of the development that is taken to have the benefit of a development consent is to be ascertained from the words of section 4 alone. 41 Dealing with the description of "the subject land" Mr Officer identifies the three following ways in which he says the definition in section 3 can be construed:-

The whole of Lot 201 DP 1007683 by reference to Figure 5.1.2;
Part Lot 201, Deposited Plan 1007683 as depicted in the stippled part of the plan on Figure 5.1.2; or

The land envisaged in the development application in respect of development described as Clyde Transfer Terminal in accordance with Figures 5.1.2, 5.3.1, 5.3.3, 5.3.4 in the EIS and Figures 5.1, 5.2, 5.3 and 5.4 in the SEIS. 42 If the Court accepts the respondent's submission that the only purpose of referring to the Development Application in the scheme of the Act is to identify the subject land, then Mr Officer says that there is no warrant to constrain the development to specific buildings. In support of this argument he refers to the plans incorporated in the EIS and in particular Figure 5.1.2 which is picked up by the reference to it in the Development Application form. Mr Officer seeks to demonstrate that the stippled pink area shown on Figure 5.1.2 is the relevant part of Lot 201 that is referred to in the definition of subject land in section 3. Therefore, either the subject land is that part of Lot 201 shown in Figure 5.1.2 or alternatively it is the whole of Lot 201 described as the land Collex proposes to develop and identified as such in section 2 of the Development Application form.

43 Mr Officer also relies upon the depiction of the Clyde Transfer Terminal in Figures 5.3.3 and 5.3.4 of the EIS to demonstrate that in addition to the transfer building itself, it includes the Clyde Intermodal Facility and the Wagon Loading and Container Storage Area. In particular, Figure 5.3.4 incorporates the whole complex and demonstrates the "Proposed Yard Layout." A similar observation is made in respect of Figure 5.1 in the SEIS which depicts a "Site Layout Plan - Initial Development" showing the transfer building the existing rail lines (Track 20 and Track 22) and Wagon Loading and Container Storage Area. Similar details are provided in Figures 5.2, 5.3 and 5.4 of the EIS. Figure 5.3 refers to an initial development whereas Figure 5.4 purports to depict final development. The difference between initial and final development principally relates to construction of a ramp at the northwestern end of the transfer building. 44 Mr Officer asserts that it is abundantly clear from the description of the proposal in the EIS that reference to a terminal includes not only the building that Collex proposes to construct but the land outside the building where the associated activities will take place. He admits that the outside activities were not part of the Development Application but nonetheless they were referred to as part of the activities associated with the facility. The contention is that the EIS and SEIS describe an overall proposal identified as the Clyde Transfer Terminal. 45 The only development consent that Collex applied for was in respect of the building and internal activities allegedly on the basis that no consent was required for the activities outside the building as they were either authorised as an existing use or as a continuing use. Nevertheless the EIS showed the composition of the whole terminal.

46 Accordingly the respondent's position is that, as a matter of construction, the purpose of the legislation is to benefit the whole proposal. By giving the words "waste transfer terminal" where used in section 4 their full and natural meaning the respondent contends they encompass more than the proposed new building. The total project is thereby incorporated in the development consent taken to have been granted by dint of section 4. Condition 1 requires that development shall be carried out in accordance with the EIS and SEIS. Mr Officer argues that to construe a "waste transfer terminal" otherwise would not only be contrary to the natural and usual use of the words but would also cause inconsistencies with the documents incorporated in the Consent Conditions. 47 Mr Officer has taken me to specific parts of the EIS and SEIS seeking to demonstrate that a full and proper description of the subject waste transfer terminal includes the waste transfer building itself, as well as those parts of the Clyde Intermodal Facility that include the area for the storing, loading and unloading of containers at the Clyde Rail Yard. It is made clear throughout the EIS that the new building will be used for the purpose of a weighbridge, administrative facilities, parking and receival of waste. The waste will be delivered from areas within the Sydney region by tipping onto the internal concrete floor before being fed to a slug compacter and then after compaction loaded into 40 foot containers. After loading it is proposed that the container is either transported to the Intermodal siding or stored temporarily at the loading manoeuvring area until placed on a train for transportation to Woodlawn near Goulburn. Throughout the two documents it is made clear that FreightCorp would have responsibility for the movement, storage, loading and overall logistical management of containers used for waste transport and that Collex would lease part of the existing Intermodal Facility from FreightCorp for the purpose of erecting a building for waste packing, weighbridge, administrative facilities and parking. 48 Table 5.3.4 in the EIS provides a convenient summary by way of a proposed breakdown of hours and tasks at the Terminal as follows:-

Table 5.3.4 Site Operation Hours Type of Operation Monday to Sunday (including Public Holidays) Open for waste receival 24 hours Plant (Tipping Floor and Compactors) 24 hours Transfer and storage of 40 foot containers FreightCorp - 24 hours General clean up maintenance As required Train arrival and loading FreightCorp - 10.30pm - 2.30am Train departure FreightCorp 2.30am - 3.00am

49 An Environmental Management Plan for the construction and operation works is detailed in the EIS. It distinguishes between the responsibilities of Collex and FreightCorp. The SEIS maintains the consideration of the total concept inside and outside the building. The SEIS identifies the need to commence operation of the Woodlawn Bioreactor as the principal reason for requiring a rail Transfer Terminal in the Sydney region. Clyde is recognised as an essential component of the waste handling process for the Sydney region by providing a point where waste can be compacted into containers and loaded onto rail for transport to Woodlawn. Furthermore, it is stated that the site selection process has shown that the Clyde Rail Yard offers the most suitable location to site such a "Transfer Terminal." 50 Figures 5.1, 5.2, 5.3 and 5.4 of the SEIS are also relied upon by the respondent to show that the proposed transfer terminal includes the compaction, containerisation and loading onto rail. Mr Officer seeks to impress upon the Court that it must be a self evident proposition that without the terminal operating as a whole, the waste management strategy involving Woodlawn cannot be achieved and that there would be no utility in merely approving the transfer building by itself. Accordingly by construing a waste transfer terminal in ordinary parlance it would be consistent with the EIS, SEIS and other documents incorporated into the consent conditions. For Mr Officer's argument to succeed it is essential that the Court accept a distinction between the subject of the development application considered by Bignold J and the subject matter of the Act. It is not seriously in dispute that the Development Application was in respect of the transfer building and associated structures, including the entry and exit access roads but the respondent's arguments demand that the development application be ignored, expect for the purpose of identifying the subject land. 51 The development the subject of the Act is "a waste transfer terminal" on land the subject of the development application "(being Part Lot 201, Deposited Plan 1007683, situated at the Clyde Rail Marshalling Yards)" described in the development application itself as being land at Clyde Lot 201, DP 1007683 (see Fig 5.1.2). It is the definition of the land in the Development Application itself which provides the fundamental basis for the respondent's argument that the subject land is to be regarded as either the whole of Lot 201 or that part of Lot 201 depicted in Figure 5.1.2 by pink stipple. 52 In summary, the respondent's contention is that the Clyde Act authorises the use of the area identified by pink stipple in 5.1.2 Part DP 1007683 for a waste transfer terminal in accordance with the "Clyde Waste Transfer Terminal - Conditions of Development Consent" including Condition 1 which incorporates DA 205-08-01 the EIS and SEIS together with all additional information supplied by the applicant for consent. It is claimed that Condition 54 also assists the respondent's case. Condition 54 provides that there be a Noise Management Plan with 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. The respondent does not go so far as to claim that a condition such as Condition 54 authorises the conduct of operations, as that authority only comes from the Act itself. Construction of the Act 53 Taking the distinction made by the Court of Appeal in Botany Bay City Council v Remath Investments No.6 Pty Ltd (2000) 50 NSWLR 312 namely between a development application and the documents required to accompany it, any reference to the EIS for the purpose of identifying the subject land can only arise if the development application specifically refers to and incorporates extraneous material contained in the EIS. 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. 68 I am not satisfied that a declaration should be made exactly in the terms proposed by the applicant in its application class 4. However my finding as to the true meaning of the Clyde Act would entitle the applicant to a declaration to the effect that the only development authorised to be carried on pursuant to the development consent that is taken to have been granted under section 4 of the Clyde Act is the purpose of a Waste Transfer Terminal on the Part of Lot 201, Deposited Plan 1007683 depicted as the Revised Transfer Building on Figure 1.1 in the SEIS and the smaller section of Lot 201 shown as Proposed Site Location in Figure 5.1.2. 69 A consequence of my finding is that further argument will now be required in relation to the existing or continuing use issue. It is appropriate to make directions and for a date to be set to hear argument in respect of that issue. 70 In the meantime, the exhibits will be retained.

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Judgment (30 paragraphs)

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