Residents Against Intermodal Development Moorebank Incorporated v Minister for Planning - [2018] NSWLEC 1130 - NSWLEC 2017 case summary — Zoe

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Residents Against Intermodal Development Moorebank Incorporated v Minister for Planning

[2018] NSWLEC 1130

Land and Environment Court (NSW)|2017-10-27

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2017-10-27

Source

Original judgment source is linked above.

Judgment (59 paragraphs)

[1]

Judgment

The association known as Residents Against Intermodal Development Moorebank Incorporated (RAID) was formed in 2014 as a community action group for the purpose of opposing the development of an intermodal terminal at Moorebank. On 16 March 2017, RAID filed this appeal, pursuant to section 98 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the determination of the First Respondent, the Minister for Planning's delegate, the New South Wales Planning Assessment Commission (PAC) on 12 December 2016 to approve the Stage 1 Consent for the development known as the SIMTA Intermodal Terminal Facility Stage 1 (SSD 6766) at Moorebank (the approved development).
The Second Respondent, Qube Holdings Limited (Qube) is a wholly owned subsidiary of Sydney Intermodal Terminal Alliance (SIMTA), and the recipient of the development consent at issue in this appeal. Prior to the hearing, by notice of motion dated 7 June 2017, Qube sought an order that the proceedings be summarily dismissed. It asserted that RAID must, and had not established that it was an 'objector' within the meaning of s98 of the EPA Act. The competency of the appeal was confirmed by Preston CHJ in his judgement Residents Against Intermodal Development Moorebank Incorporated v Minister for Planning [2017] NSWLEC 115. The judgment records relevant background to these proceedings. Further detail can be understood from RAID's Statement of Facts and Contentions (SOFC) filed on 4 May 2017 and the Respondents' Statements in Reply.
The essential facts are set out below.

[2]

[6]

Overview of the contentions

The catalyst to these proceeding, at least in respect of the ecological contentions agitated by RAID, was the discovery of new species on the development site which was not communicated to the PAC or the Minister before its determination. The Minister's SOF&C in Reply (Exhibit M3) at [6] concedes as much. It states: "Prior to and since the determination of the development application by the PAC, the Second Respondent [Qube] carried out further vegetation surveys, resulting in the identification of species not previously known to be present in the vicinity of the proposed rail link (between the southern boundary of the SIMTA site and the eastern side of Moorebank Avenue). The species are Acacia bynoeana (endangered), Hibbertia puberula subsp .Puberlua (endangered), and Hibbertia fumana (critically endangered)". In addition, individuals of the species Persoonia nutans (endangered) were also found at additional locations to those known by the PAC at the time the development consent was granted. The identification of the Hibbertia fumana shortly before the development application by the PAC was not communication to the First Respondent or the PAC.
RAID, concerned about the impacts of the approved development on these recently identified threatened species, habitats and endangered ecological communities, and the acoustic impacts of the project on local residents in the vicinity of the proposed rail link exercised its right of appeal to the Court and commenced this action.
As originally framed RAID's application contended that the approved development is: 1. not suitable for the site; 2. not in the public interest; and 3. inconsistent with the principles of ecologically sustainable development (ESD)
RAID challenged the adequacy of: 1. the assessments undertaken by Qube of the biodiversity and acoustic impacts of the approved development; and 2. the PAC's consideration of those assessments prior to granting the Stage 1 Consent.
As it happened, RAID's original contentions were narrowed during the course of the litigation after the provision of additional ecological and acoustic evidence.
The additional evidence - which the Minister submits the Court should have the benefit of in assessing the impact of the proposed project on the recently identified species - includes an updated Biodiversity Assessment Report (BAR) from Qube's ecological consultant Dr Robertson (Exhibit 5) - prepared in accord with the approach identified by the Office of Environment and Heritage (OEH); and, proposed amendments to the conditions of consent to require a pre - clearing survey within the railway corridor for the Hibbertia species for the purpose of confirming that the biodiversity offset credits required for the development are appropriate.
Following assessment and advice from OEH that the further reports are acceptable, (as outlined in OEH's letter to the Minister dated 17 October 2017(Exhibit M4)) the Minister now supports the grant of consent, subject to the amended conditions in response to the updated BAR (Exhibits M3 at [8] and [9]; and M4) as proposed by Qube.
The receipt of the updated BAR and the proposed amendments of the conditions of consent has also addressed RAID's contentions. On the second day of the hearing, Mr Pickles, Senior Counsel for RAID informed me that his client no longer pressed allegations of insufficient information. Rather, it accepted that the Court has before it all requisite information to assess the impacts of the approved development on the relevant species and communities. Moreover, Senior Counsel also stated that the Association no longer contends:

that the Court does not have jurisdiction to grant consent to the development application (contention 42);
that the development consent should be refused;
that the rail line should be relocated from its current position; and
that a proposed rail noise barrier be erected from the outset for the rail "southern connection", but instead submitting that it would be prudent to make provision for such a rail noise barrier to be installed in the future if noise monitoring following the commencement of operation demonstrates that it is appropriate to do so (Harrison oral evidence, 26 October 2017).
that the approved development is inconsistent with the following ESD principles - 1. precautionary principle, 2. the principle of intergenerational equity ; and 3. the principle of conservation of biological diversity and ecological integrity as fundamental considerations.

[8]

Lay evidence

Separate to the issues raised by the parties to the appeal the Court received evidence from a number of lay witnesses who are concerned about the assessment of the approved development. Their evidence is summarised in Exhibit M1. It includes the oral and written submissions received from 12 lay witnesses - including that taken at the onsite conciliation conference held pursuant to s34 of the Land and Environment Court Act 1979 (LEC Act) which preceded the hearing. The lay witnesses at that time included: 1. Daniel Thompson from Cardno Pty Ltd - on behalf of Liverpool City Council - who was concerned principally about biodiversity and wheel squeal; 2. Fiona Macnaught, President - Moorebank Residents Action Group - who spoke about the impacts of the development on local residents 3. Ian Bailey - who raised concerns about traffic impacts; and 4. Dara Bionic - European heritage. 5. Narelle van den Bos - traffic.
Several other lay witnesses gave oral evidence at the hearing in the Court house. They were: 1. Robert Michie chairperson of the Georges River environment Alliance - environmental issues and planning issues 2. Michael Byrne President of the East Liverpool Progress Association - suitability of the site the development 3. Alan Corben- noise 4. Julia Scutella - contamination 5. Michael Russell- noise 6. Greg Cameron - traffic and transport 7. Signe Westerberg - fauna (koalas)
Generally speaking, the lay evidence can be grouped into six broad categories: traffic, contamination, pollution, site suitability, acoustic impacts and impact on koalas/ecology. While each of the lay witness believes that the assessment process has not adequately dealt with their specific concern Ms McKelvey, Counsel on behalf of the Minister, confirmed that each of the topics raised by the objectors had earlier been identified in the Secretary's environmental assessment requirements (Minister's Volume 1 Tender Bundle Tab 2) and was the subject of expert assessment which had been available to the PAC before its determination (apart from the updated BAR). The same information, she said had been produced to the Court in this hearing including the 224 written submissions from the public, and 8 submissions from the government agencies made during the earlier assessment process for the development.
I have read and considered the lay evidence and public submissions together with the further written and oral expert evidence about ecological impacts from Dr Steven Douglas retained by RAID and Dr David Robertson and the evidence about wheel squeal and other acoustic matters given by Dr Renzio Tonin retained by Qube and, Mr David Anderson and Mr Matthew Harrison retained by RAID. I have also had regard to my observations at the site view including the inspection of Glenfield Farm and surrounding residential areas. And, although Qube and the Minister submit that the evidence before the Court supports a finding that the approved development is in the public interest - and the matters raised by the residents have been considered and found to be no impediment to an approval of the development it is the case that I must satisfied of that fact. This requires, amongst other things that I address the expert evidence and the lay witnesses' evidence - which comes forward as part of the public interest, and, as such, is made in accordance with the EPA Act and thereby relevant considerations under s79C (1) (d) and (e) of the EPA Act.
Let me deal first with the ecological issues agitated in the appeal.

[9]

Hibbertia fumana: contention 37

As stated earlier RAID originally contended (at [37] of RAID's SoFC) that the approved development was likely to have a significant impact on the critically endangered species, Hibbertia fumana, that cannot be mitigated or offset, contrary to the principles of ESD. The particulars to the contention 37 were that: 1. until its recent re-discovery on and around the project site, Hibbertia fumana was presumed to be extinct, and was last recorded prior to 1824; 2. Hibbertia fumana is listed as a critically endangered species, and is currently only known from a single, very small (-370 plants) population on and around the Site; 3. very little is known about the distribution and habitat requirements of Hibbertia fumana; 4. the Approved Development is likely to result in loss of habitat for Hibbertia fumana; 5. Hibbertia fumana has not been the subject of any assessment relating to the impact of the Project on its survival; 6. indirect impacts on Hibbertia fumana that are likely to result from the Project include weed invasion, changes to hydrology, changes to bushfire management and increased edge effects, including changes to the microclimate; 7. the cumulative impacts of the Approved Development, and other approved and approved Developments in the locality, being the approved development of the Moorebank Precinct West and Approved Developments including the realignment of Moorebank Avenue, on Hibbertia fumana have not been assessed; and 8. the Approved Development is inconsistent with the following principles of ESD: 9. the precautionary principle; 10. the principle of intergenerational equity; and 11. (c) the principle of conservation of biological diversity and ecological integrity as fundamental considerations.
While contention 37, is no longer pressed by RAID, (except in relation to fragmentation of the proposed Wattle Grove offset area) - based on ecology evidence now before the Court, I need to address the matters raised because I must be satisfied of that fact and some of the lay witnesses have raised not dissimilar issues.
In understanding the volume of evidence about this topic I have been assisted by the parties oral and written submissions provided at the conclusion of the hearing.

[10]

Summary of the expert evidence - ecology

In response to particulars 1 - 3 and 5 of contention 37 (outlined above) , the parties' ecology experts agree that: 1. due to its relatively recent identification as a distinct species, little is known about the species and its habitat requirements; 2. the population of Hibbertia fumana within the area known as the Boot Land on the Site is the only presently known population of Hibbertia fumana. However, the ecological experts engaged by the parties have agreed in their Joint Expert Report (Exhibit 8 Joint report of Dr Steven Douglas and Dr David Robertson filed on 18 October 2017 , p1) that more may be present elsewhere, and may yet be undetected; and 3. the assessment of the impact on Hibbertia fumana is now dealt with sufficiently in the material before the Court (Exhibit 8 p3).
In any event, the assessment of the direct and indirect from the approved development, and cumulative impacts from other approved developments, on this species have now been dealt with in the Updated BAR and by the Joint Expert Report on ecology. In this regard, it is now common ground that the ecological information before the Court is sufficient for the Court to grant consent.
In response to particular 7, Qube submits that cumulative impacts from other approved projects or proposed projects which are currently being assessed by the Department of Planning and Environment (DPE) have been assessed in the Updated BAR (Exhibit 5, Individual Expert Report of David Robertson filed on 6 October 2017).
In relation to future projects which are not yet the subject of a development application, Qube submits that it is not practical to require a proponent to assess cumulative impacts from projects at such a preliminary stage of consideration. Rather, cumulative impacts from Stage 1 and subsequent stages can (and will) be assessed in future development applications.
It is submitted that there is no basis for the Court to conclude that the loss of up to three individual plants, and some habitat for, Hibbertia fumana, in or adjoining the rail link: 1. will have a significant impact on the species; or 2. cannot be mitigated or offset.
In that regard, RAID's ecological expert, Dr Steven Douglas, agrees that the vast majority of the plants are not within the rail link but within the proposed offset area, and the habitat is already degraded (Exhibit 8 p6).
The experts agree that the loss of plants and habitat will not have a significant impact on the species.
Furthermore, Dr Douglas agrees that the offsets for the approved development meet the "legally specified offsets requirement" for the clearing2 under the former NSW Major Projects Biodiversity Offsets Policy and Framework for Biodiversity Assessment (FBA) (Exhibit M2 Vol 5 Tab 16).
The evidence from OEH provides further support for this conclusion. Mr Steenbeeke's letter concludes that, even if all of the plants currently assigned to Hibbertia puberula were Hibbertia fumana (which is not conceded by Qube), "there is adequate offset count available such that this species should not be cause for a halt in development' (Exhibit M4 OEH letter dated 17 October ).
At [2.5] of his individual statement (Exhibit 5) Dr David Robertson's evidence is that: 1. Hibbertia fumana was described as a distinct species only in 2012 based on 2-3 Herbarium samples, and no surveys were conducted in the localities where samples were collected from to determine the presence of the species prior to it being presumed extinct; 2. ongoing surveys have provided improved understanding of the distribution and habitat of the species; 3. a precautionary approach was taken in the assessment of the impacts of the approved development on the species in the Updated BAR. It was assumed that vegetation within the rail link may comprise potential habitat for Hibbertia fumana despite the observation that its extent to date does not appear to overlap greatly with that of Hibbertia puberula which is present in the rail link; and 4. the potential habitat for Hibbertia fumana within the rail link occurs within the proposed offset sites and will be conserved in perpetuity. Furthermore the vegetation within the offset sites will be actively managed to improve the quality of the PCTs which will result in a gain in (currently known) habitat for Hibbertia fumana in the long term.
In their Joint Expert Report the parties' ecologists agreed that: 1. approximately 400 plants of Hibbertia have been counted on the Boot Land, but more may be present elsewhere, and that the species may have a sizable seed bank in long-undisturbed parts of the Site. Under suitable conditions, the population of this species on the Site may be considerably larger than currently known. There is suitable habitat available for the species elsewhere and it may yet be detected in other locations; 2. whilst the ecology of Hibbertia fumana remains inadequately understood, there is sufficient information about Hibbertia fumana such that the proposed removal of approximately three individuals in peripheral habitat is not of concern; 3. the vast majority of the known population of Hibbertia fumana is within the proposed offset area; 4. the potential losses of Hibbertia fumana seedbank by the clearing for the rail link is not significant in terms of number of individuals or the area of habitat; 5. the proposed route for the rail link entails clearing of the least threatened of the TECs, being Castlereagh Scribbly Gum Woodland, some of which is already degraded or absent as a result of historic clearing on RailCorp land; and 6. indirect impacts from weeds and fire have been addressed in the Weed Management Plan appended to the Updated BAR.

[12]

Other species and communities: contention 38

RAID's contentions as filed asserted (at [38] of RAID's SoFC) that the approved development will have an unacceptable impact on threatened species and EECs that cannot be mitigated or offset, contrary to each of the principles of ESD.
The particulars state that: 1. The Environmental Impact Statement dated May 2015 (EIS) (Exhibit M2 Vol1 Tab3) identified that the approved development would have a significant impact on the following threatened species and ecological communities: 1. Persoonia nutans; 2. Grevil/ea parviflora subsp. Parviflora; 3. Castlereagh Swamp Woodland; 4. River-flat Eucalypt Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South-east Corner Bioregions; and 5. Freshwater Wetlands on Coastal Floodplains of the NSW North Coast, Sydney Basin and South-east Corner bioregions. 1. The Site is known habitat for the following threatened species: 1. Hibbertia puberula sp puberula; 2. Acacia bynoeana; 3. Acacia pubescens; and 4. Pultenaea pedunculata. 1. The Site is known to support Cooks River/Castlereagh lronbark Forest in the Sydney Basin Bioregion, an endangered ecological community. 2. The Site is potential habitat for the Hibbertia sp. Bankstown (syn. Hibbertiapuberula subsp. Glabrescens). 3. The EIS for the Approved Development identifies that the following species cannot withstand further loss: 1. (a) Acacia bynoeana (particularly on the Cumberland Plain which includes the 'Castlereagh Woodlands' present at the Project site); and 2. (b) Hibbertia sp. Bankstown (syn. Hibbertia puberula subsp. Glabrescens); 1. The impacts of the Project on the following threatened species and ecological communities have not been assessed: 1. Hibbertia puberula sp puberula; 2. Acacia bynoeana; 3. Acacia pubescens; 4. Pultenaea pedunculata; 5. Hibbertia sp. Bankstown (syn. Hibbertia puberula subsp. glabrescens); and 6. Cooks River I Castlereagh lronbark Forest in the Sydney Basin Bioregion. 1. The cumulative impacts of the Project, and other approved and Approved Developments in the locality, being the approved development of the Moorebank Precinct West and Approved Developments including the realignment of Moorebank Avenue, on these species has not been assessed. 2. The proposed biodiversity offsets are not consistent with the conservation of biological diversity and ecological integrity as a fundamental consideration.
On the second day of the hearing, Mr Pickles for RAID informed the Court that only the final bullet point of Contention 38 (subparagraph (8) above), remains in issue.

[13]

Qube's position

The adequacy of offsets is principally addressed in the section of these submissions headed "fragmentation", above.
Qube disputes that the approved development will have an unacceptable impact on threatened species and EECs that cannot be mitigated or offset, contrary to each of the principles of ESD.
Qube submits that the Response to Submissions Biodiversity Assessment Report dated September 2015 (RtS BAR), (Exhibit M2 Vol4 tab 6(h)) and now the Updated BAR, have been prepared in accordance with the FBA (Exhibit M2 Vol5 Tab 16) which implements the ESD principles. Accordingly, the assessment of the impacts of the approved development, and proposed offsets for direct impacts to some species and communities will be in accordance with principles of ESD.
In response to particular 1, Qube submits that the impact of the approved development on the following species and communities was accurately assessed in the RtS BAR : 1. Persoonia nutans; 2. Grevillea parviflora subsp. Parviflora; 3. Castlereagh Swamp Woodland; 4. River-flat Eucalypt Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South-east Corner Bioregions; and 5. Freshwater Wetlands on Coastal Floodplains of the NSW North Coast, Sydney Basin and South-east Corner bioregions.
Furthermore, that the removal of these species and communities will be offset through the establishment of a biobank site, in accordance with the requirements of the FBA. The application for the biobank site is to be approved by OEH in a separate process to the assessment of the impacts, and grant of approval, for Stage 1.
In response to particulars 2, 3, 4 and 6, the evidence of Dr Robertson is that: 1. Impacts of the Approved Development on Hibbertia puberula ssp. puberula have been assessed in the Updated BAR;(Exhibit M2 vol1 tab 6(h); 2. Multiple surveys conducted on the Site only recorded Acacia bynoeana within the proposed offset sites. The individual plant identified by Dr Douglas' was not recorded within the rail link. Any indirect impacts on this species have been assessed in the Updated BAR (Exhibit 5 at Table 4.1-4.6); 3. Acacia pubescens only occurs outside the development footprint, within the proposed offset areas on the Site, and therefore will not be directly impacted by the approved development (Exhibit 5 at Table 4.1) Any potential indirect impacts on this species have been assessed in the Updated BAR (Exhibit 5 at Table 4.1). 4. There is no evidence that Pultenaea pedunculata and Hibbertia sp. Bankstown occur on the Site, either within the development footprint or within the offset areas (Exhibit 8 pp10-11). Accordingly, the particulars in relation to these species are unfounded. 5. Cooks River ICastlereagh lronbark Forest only occurs outside the development footprint, within the proposed offset areas on the Site, and therefore will not be directly impacted by the Approved Development.
In relation to particular 7, Qube submits that the cumulative impacts of the approved development on these species have been assessed in the Updated BAR.
In relation to future projects which are not yet the subject of a development application that it is not practical to require a proponent to undertake cumulative impacts of any projects which are at such an early stage of consideration.
Qube disputes particular 8 to the extent that it remains in issue in this appeal. The proposed offset sites have been assessed in accordance with the FBA, which applies principles of ESD. Accordingly, Qube submits that the proposed offset sites are consistent with the conservation of biological diversity and ecological integrity as a fundamental consideration. The ecology experts confirm that the proposed offset sites meet the legal offset requirements for clearing (Exhibit 8 atp7).
The experts agree (Exhibit 8 at p10) that: 1. Hibbertia puberula sp. puberula is now known to be relatively common in the Southern Boot Land, and may be so elsewhere in the Boot Land offset area. This species is of relatively low concern given it is known to occur over a large range, in numerous NPWS reserves, and that a large area of secure habitat is present across its range; 2. the single individual of Acacia bynoeana located by Dr Douglas does not appear to be in the route of the rail link, and otherwise Acacia bynoeana is only known to occur within the proposed offset site; 3. the approved development does not entail clearing of known occurrences Acacia pubescens; 4. Pultenaea pedunculata is not known to occur on the Site, or likely to be harmed by clearing for the rail link; 5. Hibbertia puberula ssp. glabrescens has some potential to occur in the slashed zone. However, it is unlikely to occur to an extent that would prevent the construction of the rail link; 6. Cooks River I Castlereagh lronbark Forest has been adequately mapped and is outside the impact area of Approved Development; and 7. The biobanking methodology used in this Approved Development specifies that many of the threatened plant species that it deals with in this context "cannot withstand further loss, which is somewhat a "generic response" in that process.
Despite that wording, the process does allow further loss, indicating a policy conflict within the methodology. Dr Robertson's evidence (Exhibit 5) is that: 1. cumulative impacts have been assessed and impacts of other projects are also proposed to be offset in accordance with FBA requirements which will ensure that any residual impacts (i.e. impacts after all reasonable measures to avoid and minimise are implemented) are adequately offset in accordance with principles of ESD; 2. the approved development has implemented the "avoid and minimise" requirements before considering offsetting for residual impacts that cannot be avoided or minimised; 3. the Approved Development is largely located within historically developed or modified areas (Exhibit 5 MPE Stage 1 Construction in Figure 3.1) thus, thus avoiding requirement to clear vegetation within the majority of the development footprint; 4. the precautionary principle is built into the FBA process in that greater survey effort and higher offsetting commitments are required for threatened species and communities that are at greater risk; 5. the lands proposed to be set up as offset sites currently have no formal protection for conservation and are not actively managed. The proposed offset sites will be established as BioBank sites which will be legally conserved in perpetuity; and 6. management actions under a future biobanking agreement, such as weed management, feral animal control and ecological burns, will also be implemented to improve the current biodiversity values of the sites, thus resulting in a long term gain for threatened species and communities and preserving native bushland for future generations (Exhibit M2 Vol 5 tab 13 Biobanking Bar) . Thus the ESD principles of intergenerational equity and conservation of biological diversity and ecological integrity are met as the management of the BioBank sites will improve conditions compared to current conditions.
RAID's ecological expert Dr Douglas contends that the offset area land should be dedicated to and managed by National Parks and Wildlife Service (Exhibit 6 at p5). However, in oral evidence, Dr Douglas conceded that: 1. he was unaware that the Boot Land was owned by the Commonwealth of Australia and not the Second Respondent; and 2. that his recommendation of dedication to NPWS did not have regard to the likelihood of that eventuating (Transcript 26 October).
The suggested dedication of the land to NPWS via a condition of consent is opposed by Qube and, it is submitted beyond the power of this Court, that land being in the ownership of the Commonwealth.
For the reasons above, based on the experts evidence now before the Court Qube submits that I should find that the Approved Development is consistent with the principles of ESD.

[19]

Glenfield Farm and background noise levels

As is clear from the joint acoustic report prepared by Mr Harrison and Dr Tonin the acoustic experts disagree about the background noise levels and assessment of noise levels at Glenfield Farm (Exhibit 10 at [18]).
Based on further measurement of the ambient noise levels at Glenfield Farm, Dr Tonin believes that the results (recorded in Table 2 row 7 of his expert statement of evidence (Exhibit 6 at [37]) show that the RBLs at Glenfield Farm are in fact the highest in the highest range of any of the other residential locations surveyed. Dr Tonin is satisfied on the available evidence that background noise surveys at a wide range of residential locations have now been undertaken and there is no unacceptable impact.
Mr Harrison rejects the RBLs determined by Dr Tonin and relies instead on the noise monitoring results reportedly obtained by Parsons Brinckerhoff (PB) during 20 months of unattended monitoring in 2012.
Relevantly, Mr Harrison did not undertake any noise monitoring of his own. He said that he did not have sufficient time between being retained and the date of the hearing to do so. Moreover, Mr Harrison accepted during his oral evidence that it was prudent for Dr Tonin to have done so, and that it would be appropriate for the Court to give weight to that further noise monitoring (Transcript oral evidence 26 October 2017).
Despite his views about the relevance of Dr Tonin's further noise monitoring Mr Harrison maintained that he was still entitled to prefer the PB monitoring data in order to establish the RBLs even though he conceded that:

he had not reviewed any reports prepared in relation to the PB monitoring data;
did not know the brand or model of the monitoring equipment which was used by PB, nor whether that equipment was properly calibrated;
did not know the locations in which the monitoring equipment was placed and whether those locations were suitable; and that
he accepted the PB noise levels because they were consistent with what he would expect from his "intuition and experience" (Transcript 6 October 2017).

In contrast, Dr Tonin gives no weight to the PB monitoring data, and he sets out the basis for this in his statement of evidence at [45] and discusses it further in the acoustic joint report (Exhibit 10 at [24] - [34] ). He told the Court that the PB monitoring data should be treated as "an outliner" and be disregarded for the purpose of setting the RBL (Transcript 26 October 2017). He believes that his actual measurements corroborate the non-PB data.
If, as Qube submits, the Court should adopt Dr Tonin's RBLs the result is that there are no noise exceedances in respect of operation noise at Noise Catchment Area NCA 1 - Glenfield Farm (Exhibit 10 at [52]).
With respect to the actual impacts of the approved development on sensitive receivers the acoustic experts agree that; 1. the night-time noise level scenario represents the worst-case situation and that if those criteria are complied with in the daytime and evening criteria will also be complied with; 2. as the intrusive noise limits are complied with, the amenity noise limits will also be complied with; and 3. night-time stacking of containers more than 2 containers high exceeds by 2dB (A) the sleep disturbance screening level at the western receivers denoted as L17/SLR-L5.
Dr Tonin and suggests that a flexible approach should be adopted to establish a noise barrier along the western boundary of the site, in preference to constructing a permanent noise barrier 4.5 m high and 400 m long along the western boundary of the site. This flexible approach is justified he says given the temporary nature of manual handling and the intention to use electric gantry cranes in the future.
Dr Tonin has proposed: 1. the use of container storage areas to provide an equivalent level of noise reduction as compared with a fixed noise barrier (noting that the height of a container is 3 m). This is particularly when the predicted exceedances only occur at night time in winter months when temperature inversions are likely to occur; and 2. the preparation of a Container Noise Barrier Management Plan to address the operational requirements to achieve an equivalent level of noise reduction as a 4.5 m high fixed barrier, and ongoing noise monitoring at the affected receivers, and limitation of the night-time stacking (Exhibit 10 at [120]).

[20]

Wheel squeal

In summary, Mr Harrison and Mr Anderson agree that: 1. the management of rolling stock is the key to minimising (or eliminating) wheel squeal at source; 2. in principle, 160 m radius curve is acceptable if rolling stock steering performance is managed; 3. with the mitigation measures required by the Stage 1 Consent conditions in place, curve gains can be reduced effectively to zero; 4. the rail noise monitoring system required by Stage 1 Consent condition G7 should be augmented by a wayside angle of attack monitoring system condition; and 5. it is appropriate to design the Rail link for the provision of future noise barriers to screen wheel/rail noise.
To monitor the potential for wheel squeal, Mr Anderson recommends that: 1. the noise monitoring systems required by condition G7 of the Stage 1 Consent should be established on the curves associated with the northern and southern rail connections; and 2. the combined noise monitoring and angle of attack measurement system should be set up at the location shown on Figure 1 of the Expert Report of Dave Anderson, to monitor the performance of all traffic entering and leaving the intermodal facility.
Mr Harrison was asked during his oral evidence to clarify whether his position was that a noise barrier to screen wheel/rail noise should be installed from day one or whether his position remained (as set out in the joint report) the provision should be made for retrofitting. Mr Harrison confirmed that his preference was to have the monitoring in place and it would be prudent to make allowance for the barrier to be installed in the future. Dr Tonin agreed that the preferred approach was to allow the Rail link to be constructed without the noise barrier in place, initially, and then require an evaluation to be undertaken based on monitoring during operation, to establish whether it was necessary to install the barrier (Transcript 26 October 2017).
Qube proposes amendments to the conditions of the Stage 1 Consent to give effect to these recommendations.

[21]

Sleep disturbance

A particular issue raised by the local residents, concerned noise related to sleep disturbance especially at Glenfield farm and another property approximate to that site.
Dr Tonin's evidence in respect of this issue is as follows: 1. there are no criteria for the establishment of the maximum level of noise for the purposes of the sleep disturbance criteria. 2. historical studies have acknowledged that sleep disturbance differs as between noise source (traffic, rail, planes) albeit that freight trains are louder than passenger trains; 3. there is no specific criteria in the RING for the assessment of non-network rail noise as concerns sleep disturbance; 4. as a proxy, Dr Tonin considered the criteria in the RING regarding network rail (Exhibit M2 tab 14 appendix 2) those criteria looked to employ reasonable and feasible measures for increases between 0.5 and 2.0 dBA. 5. Utilising that proxy, Dr Tonin measured the number of trains (both passenger and freight) and noise generated is presently experienced (Exhibit 6 Table 10). 6. Dr Tonin then added to the current situation the predicted noise generated by the development's train movements during the night-time, both for the northern link to SSFL firstly, and then adding the southern link (Exhibit 6 Table 15). This also factors in curve gain attributable to wheel squeal - despite the evidence of Mr Anderson with respect to the expectation of zero curve gain. 7. Dr Tonin concluded there is the potential for a + 2.0dBa exceedance, but only with the curve gain (Exhibit 6 Table 16 last column) (southern link only). Accordingly provision for the ability to install a sound barrier (to remove the effect of the wheel squeal) should be made. 8. The barrier may in fact not be required (if the wheel squeal is otherwise mitigated) by the condition recommended by Mr Anderson. 9. The prediction in table 15 is precisely that - that operation of this facility will determine if a noise is required.
Mr Harrison did not contribute to this area of the evidence. Instead, with respect to sleep disturbance (and accepting that there is no criteria for the topic), by reference to the available literature used as a proxy a study looking at aircraft pass- overs for the purposes of identifying the "tolerable" number of noise events. (Exhibit 10 at [82]). That tolerable number was eight (8) events and Mr Anderson told the Court that he: 1. accepted that the number of events was to be determined from the magnitude of the predicted noise; 2. accepted that in terms of the predicted noise levels the number should be 6 (that is the maximum number of tolerable events should be 6); 3. accepted that the literature (and table 1) reflects the position that where there is a large number of sleep disturbance events, additional events have no effect; 4. accepted that the residents alleged to be affected presently experience the order of in excess of 50 events per night; 5. accepted that for the purposes of sleep disturbance there is no relative difference between passenger and freight trains as the noise levels of the passenger trains are similar (for sleep disturbance purposes) to freight trains, albeit freight trains are slightly louder; 6. accepted that the addition of four events (by the proposal) to the present circumstances is a minor number and that has no sleep disturbance consequence; 7. accepted that if the facility was installed elsewhere, but with the same freight catchment, the trains would be on the SSFL and the same result would occur.
Ultimately, Dr Tonin agreed with the proposition (derived from the available literature) namely that it is the number of events that is relevant, and the addition of 4 events in an environment of in excess of 50 per night presently is not of significance.

[22]

Acoustic impacts - the Minister and Qube's submissions

The Minister adopts Qube's submissions in respect of the acoustic matters in this case but maintains that the Rail Infrastructure Noise Guideline is relevant for the assessment of noise from the Rail link not the Industrial Noise Policy because the former assess absolute noise levels - not by reference to background noise.
With respect to the assessment of acoustic impacts at Glenfield Farm and background noise levels Qube submits on the evidence prepared by Wilkinson and Murray appended to the EIS and Rts (Exhibit M2 Ministers Bundle at Vol 2 TAB 3(g)) that the Farm was appropriately assessed as a residential receiver as it was located in the noise catchment NCA 3. In any event, it further submits that ambient noise levels have now been measured at Glenfield Farm, which demonstrate the highest or in the highest range when compared to other residential locations. Based on the additional assessments undertaken and reported by Dr Tonin's individual expert report (Exhibit 6) (which is accepted by Mr Harrison) Qube submits that there is no basis to assert that the noise assessment has not been carried out appropriately. And, even if the rating background levels (Rbls) adopted by Mr Harrison are accepted the only exceedance of standards by acoustic impacts from the approved development is the night-time stacking of containers more than 2 containers high during the winter months, and only on some residential receivers. At worst this would be catchment NCA1 (Exhibit 10 Joint report of Mr Harrison, Dr Tonin and Mr Anderson filed on 19 October 2017 at [44])., and this could be managed, on the evidence of Dr Tonin (Transcript 26 October 2017), by the placement of the warehouse buildings as part of Stage 2. This impact can be managed , and mitigated , if not eliminated , through the: 1. use of container storage areas to provide an equivalent level of noise reduction as a fixed noise barrier; and 2. preparation of a container noise barrier management plan to limit night-time stacking of containers, and requiring ongoing noise monitoring at the effective receivers.
Qube has proposed a condition for inclusion in the Stage 1 Consent to this effect.
The Minister and Qube submit that the Court should adopt Dr Tonin's RBLs and prefer his evidence for the reasons he gave and place no weight upon the PB monitoring data. In particular, the Court should prefer and adopt the RBLs established by Dr Tonin and set out at paragraph 47 in Table 5 of his individual expert report (Exhibit 6).
Furthermore, Qube and the Minister submit that the issue in respect of wheel squeal is satisfied by the additional assessments reported in Dr Tonin's individual expert report. In any event, RAID's experts have agreed the Stage 1 Consent conditions which require the management of rolling stock will effectively eliminate any squeal wheel squeal (Exhibit 10 at [144]).

[25]

Traffic and Air Quality - Expert evidence

In relation traffic and air quality Qube submits that the Secretary and the PAC have adequately considered the traffic and air quality impacts of the approved development. In support of that submission the Court was referred to the documentation within Exhibit M2 Minsters 's Bundle Vol 4 PAC's Determination report pp2292-2297 (traffic) pp2297 -2299 (air quality).
It is submitted that documentation supports a finding that the Secretary's and PAC's assessments followed a detailed assessment by the proponent in the EIS: 1. In respect of traffic , in the EIS appendix L (Exhibit M2 Vol 2Tab 3e (on CD), and in the Response to Submissions at Appendix F (Exhibit M2 Vol 3 Tab 6e ( on CD); and 2. In respect of air quality, in the EIS appendix M (Exhibit M2 Vol2 Tab 3f (on CD) and in response to submissions appendix G (Exhibit M2 Vol 3 Tab 6f (on CD).
The evidence is that the PAC concluded that the "conditions of consent have been significantly strengthen throughout the development assessment process in order to address the key issues associated with the project, and "particularly" in relation to traffic and air quality (Exhibit M2 Vol 4 Tab 9 PAC determination report p2373). The Minister submits that Traffic is dealt with in the proponent's EIS, the Response to Submissions and the Secretary's report as well as the Planning Assessment Commission report. In Exhibit M2 Vol 4 p2292 the Department summarises both the findings of the EIS as well as the Response to Submissions and ultimately concludes at p2297: "the Department is satisfied that the construction and operation of Stage 1 would not result in an unreasonable impact on the efficiency of the local and regional road network. The design of the access points from Moorebank Avenue would operate in an acceptable level of service, ensure heavy vehicles are unable to use Moorebank Avenue South, and queuing of heavy vehicles into Moorebank Avenue would be prevented. Further, the Department considers construction related traffic impacts can be adequately managed, subject to the recommended conditions requiring the preparation and implementation of relevant construction management plans".
Ms McKelvey, on behalf of the Minister, in closing submissions emphasised that the assessment undertaken has been substantial in terms of transport and traffic issues, and that a key consideration of the PAC in relation to traffic was what culminated in the 250,000TAU per annum limitation that has been placed on the site. Furthermore, it was submitted that it is only if it can be demonstrated that the transport network can bear more that there will be the potential for an additional 250,000 TAU's per annum under this concept plan approval. The TAUs are how you manage the traffic for this site, and so by placing a control on the number of truck movements traffic impacts are able to be controlled. (Transcript 27/10/2017 pp 10,11)
Moreover, the Environment Protection Authority's (EPA) records in its submission in relation to air quality that: "the EPA has reviewed the air quality impact assessment prepared for the SIMTA Stage 1 project approval. The AQIA has been conducted in general accordance with the Approved Methods of the Modelling and Assessment of Air Pollutants in NSW. The assessment includes a best practice review, and an air quality management plan as required by the SEARS. The EPA considers that the outcome of the assessment is plausible "(Exhibit M2 Vol 3 Tab 6 main report p1450).

[26]

Contamination - lay evidence

Julia Scutella also raised concern about contamination. In her written and oral evidence she referred to significant contaminations at Defence sites within Australia. Ms Scutella expressed particular concern about per- and poly- fluroalkyl substances or PFAS - manufactured chemicals that are used in products that are resistant to heart, grease and water and include perfluroocatnte sulfonate or PFOS, perfluoroctanic acid or PFOA and perflourohexane sulfonate or PFHxS. Ms Scutella referred the Court to the 2015 review of the MIC site by Mark Taylor and the identification of low concentrations of AFFF at three locations at the site.
In relation to the contamination issues raised in the objector evidence, Qube submits that the Secretary considered these issues in detail, (Exhibit M2 Vol 4 Tab 9 Secretary's Assessment Report at section 5.4 page, p2304ff), and the PAC had the benefit of this and all other assessment material . Relevantly, the Court was also provided with copies of the reports in appendix L which considered the PFAS contaminants referred to in Ms Scutella' evidence. Relevantly, the Minister submits that the particular contaminants identified by Ms Scutella were not identified as contaminants of concern on this site as they are being managed on the Moorebank Precinct west site (M2 Vol 4 Appendix R to the EIS for this site) (Transcript 27/11/2017, p11, at [23]-[40]).
In any event, further investigations in respect of contamination are mandated by the Minister's conditions. Item 9L p19 refers to the requirement for a contamination assessment report under the Contaminated Land Management Act - both for an assessment of potential environmental and human health risks of the site. It requires a remediation action plan as the site was known to be contaminated and consideration was given to the implications of proposed remediation actions on the project timing and design, and a phase 2 environmental site assessment of the project including the rail corridor.

[29]

Findings - lay evidence - air quality, traffic matters, contamination, and water quality, koalas

I have summarised some of the lay evidence. Needless to say several other lay witnesses raised not dissimilar issues about air and water quality and possible pollution, traffic matters, contamination and ecological matters. I have read and considered all of the submissions. They are extensive and well considered objections to the proposal and reflect a significant community concern with both process and impacts generated by the Stage 1 development.
While these objections raise valid concerns they must be weighed against all of the evidence including the expert evidence before the Court today. The parties accept that the extensive expert evidence from air quality, traffic, geotechnical, and contamination and waste management, ecology and water experts has addressed these discrete issues identified by the lay witnesses. It is the fact that the proponent's EIS was supported by a stormwater and flooding environmental impact assessment, an air quality impact assessment and a health impact assessment. The proposal is predicted to achieve relevant EPA criteria in relation to air quality and the noise impacts.
Having considered that detailed evidence and the submissions made in respect of these issues I am satisfied that any environmental and amenity impacts can be adequately managed by stringent conditions of consent. The conditions which I intend to impose provide for consistent and ongoing monitoring and go further that those which were imposed by the PAC and are based upon extensive further evidence marshalled in this appeal and in my assessment will ensure a tightly controlled development.
The Department has concluded that the proposal is in the public interest (Exhibit M2 Vol4 Tab 7 Secretary's Environmental Assessment Report p2333) and that the site is suitable for the development (Exhibit 1). Based on the evidence before me I accept that on balance the proposal's benefits outweigh its potential impacts. The development will provide significant public benefits in terms of job creation in Western Sydney (Exhibit M2 Vol 4 Tab (PAC's Determination Report p2373). Furthermore, the Department has determined that the proposal is consistent with an identified demand for the western and southern regions of Sydney. It will reduce trucking demand for the catchment that the SIMTA site would service and increase network efficiency by relieving congestion at bottlenecks on the road and rail networks (Exhibit 1). Improving the efficiency and movement of freight at Port Botany is said to be critical to the State's ongoing productivity, growth and competitiveness (Exhibit M2 Vol Tab 9 at p2364).

[30]

Proposed amendments to the conditions of consent Stage 1

Qube has provided conditions of consent to the Court. They adopt the conditions originally approved by the Minister but are supplemented to address the evidence on: 1. Biodiversity matters: see conditions C23,C23A and C23B, and condition E31A; 2. Design to allow retrofit of the rail link noise barrier: see condition F5A; 3. A container Noise Barrier Management Plan: see condition F5A; 4. An 'angle of attack' noise monitoring system : see condition G7A; and 5. A condition requiring rail noise monitoring and the installation of a rail noise barrier in certain circumstances: see condition G7B.
RAID has also forwarded its final version of draft conditions. The amendments RAID seeks are identified in red in the consolidated set of conditions of consent and were forwarded to the Court, as directed, under cover of letter dated 10 November 2017. I have marked this document Exhibit Z.
In addition to the proposed amendments marked red in Exhibit Z RAID has also requested that I consider some further amendments to draft conditions F5A and G7B. With the consent of the parties, RAID's email dated 10 November 2017 explains the competing positions in respect of these amendments. I will deal with RAID's email separately and shortly. However, before that I need to give some context to the evolution of the conditions in Exhibit Z.
Subsequent to the completion of the evidence, further discussions took place between the parties resulting in certain refinements to the draft conditions. The proceedings were adjourned to accommodate these discussions and when it resumed I was told that the Minister and Qube were in agreement about the final terms and that a number of changes to the conditions sought by RAID had been either refined or resolved but not all of them. It was decided that the Court and the parties' legal representatives would work through RAID's proposed amendments together. As the Transcript dated 27 October 2017 records during that process Mr Pickles, on instructions, agreed for several clauses of RAID's proposed conditions to be struck out. As the Transcript records they were either relatively minor matters- stylistic changes; or amendments which on further consideration were simply beyond power or unenforceable and not pressed.
In relation to my consideration of the amendments proposed by RAID I am conscious that the draft conditions proposed by the Minister and accepted by Qube accommodate all of the agreed recommendations of the ecologists and acoustic experts in these proceedings. Furthermore, I am satisfied that RAID through this litigation has achieved a more stringent set of conditions which respond to many of the concerns raised by the lay witnesses and the expert evidence as it presently stands. I do not need to deal individually with all of the changes marked red in Exhibit Z accept to note the following:

[55]

RAID's email dated 10 November 2017 concerning amendment of Condition F5A and G7B

RAID has requested that the Court consider the inclusion of additional words to proposed condition F5A. The relevant text, with the consent of the Minister and Qube is set out in the LECourt communication on 10 November 2017. RAID has also proposed deletion of words in Condition G7B (d) "…for 30% or more nights in the winter months", which is not agreed.
RAID submits that the evidence of the acoustic experts during the hearing was that noise barriers should be required if there was a 2dB(A) increase in total rail traffic noise levels at the Glenfield Farm , not an increase of 2dB(A) for 30% or more nights in the winter months. Dr Tonin's evidence is that 30% or more nights in the winter months was reasonable.
In my opinion the changes proposed by RAID to Condition F5A are acceptable as they clarify matters.
With respect to the trigger for the construction of the noise barrier along the relevant sections of the rail link so as to limit the increase in the total rail traffic noise level at Glenfield Farm caused by any new rail traffic to and from the development to not exceed 2dB (A) I accept the applicant's amendment. After consideration of the evidence including the Transcript and the parties' submissions about the terms of this condition I do not accept that if the noise barrier is required that it was only required to reduce the noise level at Glenfield Farm to not exceed 2dB(A) "for 30% or more night in the winter months." Rather, I understand that the evidence of the experts was if the acoustic testing provided for in G7B (c) determines that the 2dB(A) noise level is exceeded during the testing period this triggers the requirement for the construction of a noise barrier within 12 months to limit the increase in the total rail traffic noise caused by any new traffic to and from the development to not exceed 2dB(A) indefinitely - without qualification.
Accordingly, I agree with RAID's proposed amendment to condition G7B (d). The words "for 30% or more nights in the winter months" at the end of the sentence should be deleted.

Residents Against Intermodal Development Moorebank Incorporated v Minister for Planning

At a glance

Court

Decision date

Source

Judgment (59 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)