Residents Against Intermodal Developments Moorebank Incorporated v Independent Planning Commission

Residents Against Intermodal Developments Moorebank Incorporated v Independent Planning Commission - [2021] NSWLEC 1501 - NSWLEC 2021 case summary — Zoe

[5]

Modification of the development after my reservation of judgment

The fact that the consent continues to operate is relevant because the development was modified twice after I reserved judgment. I was informed of this in an email from the IPC's lawyer on 30 November 2021, sent with the consent of all parties. The email stated that each modification had been duly accepted, assessed, and approved by the relevant consent authority and that "…all parties agree that the modifications do not change the merit considerations review by the Court but will need to be reflected in the draft conditions of consent". An amended version of the draft conditions of consent which replaced the earlier version dated 1 July 2021 (Ex R1-3) was provided to me on 7 December 2021 together with a comparison table comparing the conditions in the form contained within Ex R1-3 and as against the further amended conditions.
For the reasons outlined later in this judgment, I accept the respondents' submission that consequent upon the operation of s 4.55(4) of the EPA Act, the development now proposed, and the subject of this judgment is the MPW Stage 2 Consent, as modified since judgment was reserved.
Accepting that the modifications did not raise merit issues, I sent an email to the parties asking if the legal issues were impacted by the changes. RAID indicated that it was unsure about its position in respect of the respondents' changed conditions, so I listed the matter for mention via Microsoft Teams, as requested by Mr Rakowski, on 17 December 2021 at 4.15pm. At that time, Mr Rakowski told me that he had sought advice about the impacts of the changes from RAID's air quality, traffic and acoustic experts. Each of them, he said, had advised him that they were unavailable to review the matter until sometime in February 2022. Mr Rakowski sought an adjournment to allow RAID to consider whether to seek to reopen the case as a consequence of the modifications.
The respondents opposed the adjournment and any further delay in my judgment. They jointly submitted that the changed conditions were in part generated by the grant of another approval. After fully explaining the effect of the relevant conditions by reference to the comparison table that had been prepared and provided to Mr Rakowski, they submitted that the changes did not raise any acoustic or air quality impacts. In respect to traffic, the terms of condition A9 were said to reduce traffic impacts by reducing the volume of fill. The IPC also reiterated its position that there is no appeal right available to RAID in respect of the modifications, a circumstance that should not be lost on the Court when considering RAID's present application to adjourn the proceedings to allow opportunity to consider a reopening of the hearing directed to the recent modifications.
Ultimately, I was not satisfied that RAID had provided any satisfactory reason to delay my determination of this State significant development application. The respondents had submitted that the modifications did not change the merit considerations and evidence before the Court and RAID had initially agreed that this was the case, as was stated in the email of 30 November 2021 from the IPC's lawyer. There was no submission by Mr Rakowski that he had insufficient time to address the modifications. Although seeking an adjournment, Mr Rakowski was not able to state that he would necessarily seek to call evidence from any one or more of the experts to whom he had referred the changed conditions.
At its highest, RAID's case for the adjournment was that it required time to receive and consider advice from its nominated consultants upon the additional conditions, advice that would not be available until sometime in February 2022. That said, there was no evidence provided to support this assertion nor any evidence produced explaining RAID's efforts in seeking advice from its experts about these conditions, save for the statement by Mr Rakowski in the course of making his application that in speaking with the traffic expert by telephone, he understood the expert to indicate that the amendment of condition A9 may result in additional traffic generation "when considered with other consents". I have already addressed that contention, assuming that Mr Rakowski correctly understood the traffic expert's statement to him.
With no satisfactory evidence to support the delay generated by an adjournment, in the interests of justice and the need to finally dispose of this application, I refused the adjournment sought on behalf of RAID.

[7]

Overview of the contentions

For the duration of the 7-day hearing including the site view, RAID was represented by its Secretary, Mr Rakowski, with Mr T Robertson SC retained to present final legal submissions via Microsoft Teams on the last day. Mr Rakowski is not a lawyer; however, he has an intimate understanding of the development, as modified, and the evidence before the Court. He also had access to legal advice and procedural assistance during the hearing, as required. Mr Rakowski gave the final address in respect of the merit issues.
As it transpired, the merit contentions ultimately raised by RAID covered four disciplines - traffic, air, noise and visual impact.
The 12 contentions as particularised in RAID's Amended Statement of Facts and Contentions ("ASOFAC") in these proceedings, filed on 15 April 2021 (Ex A) are summarised below: Traffic and traffic modelling contentions

Contention 1: the proposal exceeds the capacity of the traffic network with or without mitigation measures and upgrades
Contentions 2, 6 & 8: involved a criticism of the modelling results and traffic modelling impacts including a failure to disclose traffic models and modelling results, no adequate traffic modelling of impacts undertaken, consequential impacts of errors in modelling is significant
Contention 3: use of the RMS model - it is asserted that the Environmental Impact Statement ("EIS") did not use the RMS model or, if it did, it did not disclose the results of its use
Contention 4: the assessment failed to consider cumulative impacts
Contention 5: the modelling is out of date
Contention 7: the mitigation measures for model impacts are inadequate, untimely, and uncertain Air quality
Contentions 10, 15 and 16: air quality conditions, the modifications underestimate potential air quality impacts Visual impact
Contention 13: relevant to MOD 1 - the visual impact of warehouses JR and JN Acoustics
Contention 14: relevant to MOD 1 - no change to condition B131 should be made

RAID also raised legal issues in the following contentions:

Contention 9: in breach of former s 78A(8A) of the EPA Act, the DA was not accompanied by an EIS prepared on behalf of RAID in the form prescribed by the regulations, and consent must accordingly be refused - validity of the EIS
Contention 11: relevant to MOD 1 - in breach of s 4.55(2) the development to which the consent as modified relates is not substantially the same development as the development for which consent was originally granted
Contention 12: relevant to MOD 1 - inconsistent with the Concept Plan Approval

Mr R Beasley SC appeared for the IPC with Ms J Reid of counsel. In opening he informed me that his client's role in the proceedings was directed to assisting the Court - and that the IPC had little to say in relation to the merits. However, it did wish to address RAID's complaint that there was a breach of s 4.55(2) of the EPA Act which relates to a modification (Contention 11), and also say something about the Court's power to interrogate the validity of the voluntary planning agreement ("VPA") entered into with Transport for NSW ("TfNSW") who were not a party to the appeal (contention 12) (Tcpt, 21 June 2021, pp 21 (20-50) - 22(1-25)). The IPC's Statement of Facts and Contentions (SOFAC) in Reply was filed on 7 May 2021 (Ex R1-1).
Qube was represented by Mr A Galasso SC. In opening, Mr Galasso said that Qube relied on its SOFAC in Reply (Ex R2-2) which responds ad idem to each of the points raised by RAID and does not engage with the IPC's point in respect of power raised by Contention 11. Instead, his client seeks to assist the Court in terms of the assessment that has been undertaken by the IPC and others by providing expert evidence which specifically engaged with the specific contentions raised by RAID.
That said, Mr Galasso confirmed that Qube did join with the IPC in submitting that the Court should not deal with Contention 12 - relating to the VPA. He submitted, for the purposes of cl 7.36 of the Liverpool Local Environmental Plan 2008 ("Liverpool LEP"), the Secretary's certificate has been issued and in that circumstance, I could be satisfied as required by cl 7.36(4) that "satisfactory arrangements had been made to contribute to the provision of relevant State public infrastructure in relation to the land". Furthermore, to the extent that the relevant State public infrastructure picks up matters of State and regional roads, which it does for the purpose of cl 7.36, the Secretary's certification is the beginning and the end of the inquiry. Therefore, RAID's criticism of the VPA, being the mechanism by which the Secretary reached satisfaction, as ratified by Roads and Maritime Services NSW ("RMS") (now TfNSW), and not being a party to these proceedings, cannot and should not be reviewed in these Class 1 proceedings. Rather, the Court should proceed on the basis that the negotiation and implementation of the VPA is a matter for the relevant State instrumentality - the RMS/TfNSW. Despite its position in respect of my power to deal with the VPA, as it happened Qube's experts did in fact address RAID's contentions on this matter to the extent that the VPA was considered. Qubes' ASOFAC in Reply was filed with the Court on 30 April 2021 (Ex R2-2).

[12]

The MPW Stage 2 development the subject of this appeal

The MPW Stage 2 Consent relates to the MPW site on the western side of Moorebank Avenue ("MPW Site") which forms the western section of the IMT Precinct.
The MPW Site has an irregular shape and is approximately 3km from north to south and 960m from east to west at its widest point and covers an area of approximately 220 ha. The area surrounding the MPW Site has mixed land uses including industrial, freight and logistics, heavy and light manufacturing and office and business park developments. The nearest residential properties are in Casula approximately 200m to the west, in Wattle Grove North approximately 650m to the northeast of the site, and approximately 800m to the southwest in Glenfield and in Wattle Grove to the east, beyond the MPE component of the IMT Precinct (approximately 1km).
To better understand the presentation of the warehouses in the relevant landscape, and the development's visual impact more generally, the Court took a view of the site from Carroll Park and Marsh Street, Casula during Day 4 of the hearing, observing the restrictions imposed by the Court's COVID-19 Policy. The parties' legal representatives and Mr Rakowski together with Qube's visual expert Dr Lamb attended the view and examined the photomontages prepared by Dr Lamb and from the Hatch Roberts Day documentation whilst standing at various viewing points.
A description of the development is in the development consent SSD 7709, as modified; however, the key components include: 1. an intermodal terminal ("IMT") facility operating 24/7 with a capacity to handle up to 500,000 twenty-foot equivalent container units ("TEUs") per annum, including: 1. a rail terminal with nine rail sidings and associated locomotive shifter; 2. a rail link connection from the sidings to the rail link constructed under MPE Stage 1 (SSD 6766) to the SSFL; 3. rail and truck container loading and unloading and container storage areas; 4. truck waiting area and emergency truck storage area; 5. container wash-down facilities and degassing area; 6. mobile locomotive refuelling station; 7. engineer's workshop, administration facility and associated car parking; 1. a warehousing estate on the northern part of the site operating 24/7 and servicing the IMT facility, including: 1. six warehouses with a total gross floor area ("GFA") of 215,000 m2 and, for each warehouse, associated offices, staff amenities, hardstands and truck and light vehicle parking; 2. 800m2 freight village (operating from 7am to 6pm, 7 days per week) including staff/visitor amenities; 3. internal roads, noise wall, landscaping, lighting and signage; 1. intersection upgrades on Moorebank Avenue at: 1. Anzac Road providing site access; and 2. Bapaume Road for left turn only out of the site; 1. construction and operation of on-site detention basins, bioretention/ biofiltration systems and trunk stormwater drainage for the entire site; and 2. construction works and temporary ancillary facilities, including: 1. vegetation clearing, top soil stripping and stockpiling and site earthworks and temporary on site detention; 2. importation of up to 1,600,000m3 of uncompacted fill, temporary stockpiling and placement over the entire site to raise existing ground levels by up to 3m; 3. materials screening, crushing and washing facilities; 4. importation and placement of engineering fill and rail line ballast; 5. installation and use of a concrete batching plant; and 6. utilities installation/connection.

[16]

MOD 3 on 30 September 2021

MOD 3 had the effect of modifying the MPW Stage 2 Consent in the following ways: 1. Modifications made to the following conditions pursuant to the grant of approval to Modification Application No. 2 ("MOD 3") on 30 September 2021: 1. Condition B2(g); 2. Condition B43; 3. Condition B87; 4. Condition B88; 5. Condition B127; and 6. Condition B135(g).
The table below sets out the changes. Condition Draft condition as provided to Court on 1 July 2021 Modified condition Prior to commencement of construction, the Applicant must submit revised Development Layout Drawings to the Planning Secretary for approval. The revised Development Layout Drawings must be at a scale of approximately 1:2000 at A1 showing the key development elements including but not limited to estate infrastructure, internal roads, warehouse and associated carpark footprints, the freight village, intermodal terminal facility including the truck waiting area and emergency truck storage area, rail line and rail line vehicle access roads. The revised Development Layout Drawings must show the site, construction and operational boundaries and demonstrate: Prior to commencement of construction, the Applicant must submit revised Development Layout Drawings to the Planning Secretary for approval. The revised Development Layout Drawings must be at a scale of approximately 1:2000 at A1 showing the key development elements including but not limited to estate infrastructure, internal roads, warehouse and associated carpark footprints, the freight village, intermodal terminal facility including the truck waiting area and emergency truck storage area, rail line and rail line vehicle access roads. The revised Development Layout Drawings must show the site, construction and operational boundaries and demonstrate: B2(g) … … (g) a minimum 3 m wide maintenance access has been provided between the fill slopes and the riparian corridor, the ABB site and at the southern end of the development area, for ongoing maintenance works; (g) a minimum 3 m wide maintenance access has been provided between the fill slopes and the riparian corridor, the ABB site and at the southern end of the development area, for ongoing maintenance works where necessary to ensure ongoing maintenance works can be carried out without impacting on the riparian corridor or adjoining sites; Stockpiles must: Stockpiles must: a. not exceed 10m in height; a. not exceed 10m in height; B43 b. be benched over 4m in height; b. be benched over 4m in height; c. have maximum of 1V:3H slopes; and c. have maximum of 1V:3H slopes or a steeper slope where certified by a suitably qualified geotechnical specialist; and d. be stabilised if not worked on for more than 10 days. d. be stabilised if not worked on for more than 10 days. Existing and future utility and service infrastructure must be located outside the roadway being upgraded. The Applicant is to locate any drainage infrastructure to support the Stage 2 development entirely within the development site and not within the roadway, unless agreed by RMS. B87 Existing and future utility and service infrastructure must be located outside the roadway being upgraded. The Applicant is to locate any drainage infrastructure to support the Stage 2 development entirely within the development site and not within the roadway, unless agreed by RMS. The Applicant is to locate any drainage infrastructure to support the Stage 2 development entirely within the development site and not within the roadway, unless agreed by TfNSW and/or Liverpool City Council. The location of other existing and future utility and service infrastructure must be located outside the roadway being upgraded unless provision within the roadway is agreed by TfNSW and/or Liverpool City Council with relevant Roads Act 1993 approval. B88 Road design must incorporate structures for fauna movement between the Georges River riparian corridor and the Boot Land, either under or below the road. Road design must incorporate any structures for fauna movement between the Georges River riparian corridor and the Boot Land, either under or below the road, that have been identified by the Management Plan as required under Condition B152. Note: See also Condition B2(i) and B152(d) Note: See also Condition B2(i) and B152(d) Construction outside of the hours identified in Condition B125 may be undertaken in any of the following circumstances: Construction outside of the hours identified in Condition B125 may be undertaken in any of the following circumstances: a. works that are inaudible at the nearest sensitive receivers; a. works that are inaudible at the nearest sensitive receivers; b. where a negotiated agreement has been arranged with affected receivers; b. where a negotiated agreement has been arranged with affected receivers; works agreed to in writing by the Planning Secretary; B127 c. works agreed to in writing by the Planning Secretary; c. for the delivery of materials required outside these hours by the NSW Police Force or other authorities for safety reasons; d. for the delivery of materials required outside these hours by the NSW Police Force or other authorities for safety reasons; d. where it is required in an emergency to avoid the loss of lives, property or to prevent environmental harm; or e. where it is required in an emergency to avoid the loss of lives, property or to prevent environmental harm; or e. works associated with: f. where they are undertaken in accordance with an Out-of-Hours Work Protocol under Condition B135. i. the Moorebank Avenue/Anzac Road upgrade, the delivery of the rail link connection, and works required to be undertaken during rail corridor possession where they are undertaken in accordance with an Out-of-Hours Work Protocol under Condition B135; or ii. any other construction works on the site where they are undertaken Out-of-Hours must be in accordance with the approved Out-of-Hours Work Protocol (OOWP) required under condition B135. The CNVMP must form part of the CEMP required by Condition C2 and, in addition to the general management plan requirements listed in Condition C1, the CNVMP must include: The CNVMP must form part of the CEMP required by Condition C2 and, in addition to the general management plan requirements listed in Condition C1, the CNVMP must include: … … B135(g) (g) an Out-of-hours Work Protocol for the assessment, management and approval of works associated with the Moorebank Avenue/Anzac Road upgrade, the delivery of the rail link connection, and works required to be undertaken during rail corridor possessions, outside of the hours identified in Condition B125. The Out-of-hours Work Protocol must: (g) an Out-of-hours Work Protocol for the assessment, management and approval of works, associated with the Moorebank Avenue/Anzac Road upgrade, the delivery of the rail link connection, and works required to be undertaken during rail corridor possessions,, outside of the hours identified in Condition B125. The Out-of-hours Work Protocol must: (i) detail an assessment of out-of-hours works against the relevant NMLs and vibration criteria, (i) detail an assessment of out-of-hours works against the relevant NMLs and vibration criteria, (ii) provide detailed mitigation measures for any residual impacts (that is, additional to general mitigation measures), including extent of at-receiver treatments, and (ii) provide detailed mitigation measures for any residual impacts (that is, additional to general mitigation measures) including extent of at-receiver treatments, and (iii) include proposed notification arrangements. (iii) include proposed notification arrangements.

[21]

Contention 11: MOD 1 - Not substantially the same (RAID's ASOFAC "Contentions" par 11)

Contention 11 of RAID's ASOFAC filed on 15 April 2021 alleges a "breach" of s 4.55(2), that the development to which the consent as modified would relate is not substantially the same development as the development for which consent was originally granted (Ex A p 22).
Mr Robertson submitted: "I have a duty to determine whether the modification was validly made, and if I reached the view that the jurisdictional question substantially the same, that a consent authority could not answer that question other than one way, that it was not, that therefore the modification is a nullity, has no effect and should be ignored". In framing the question as a double negative, he submitted that the jurisdictional precondition to modification is a subjective jurisdictional fact. In short, he said I must be satisfied that the fact exists, and this is a precondition to the exercise of the power to modify. Mr Robertson submitted that the effect of making such a finding is not to set aside that decision because there is no merit appeal from it (Tcpt, 28 June 2021).
It was further submitted that while the state of satisfaction required under s 4.55(2) before a consent can be modified can be attacked on in a variety of ways; in this instance, only one is relevant. That is, that it was not open to the consent authority to form the state of satisfaction that the development originally consented to is the same as the development for which the modification is purported to be made (Tcpt, 25 June 2021, pp 260-264).
Mr Robertson said that RAID contends that the decision was not reasonably open to the decision maker to be satisfied of that fact and for that reason, I must treat the development as not having been modified. In that circumstance, a decision that is not reasonably open can only be decided one way. He said that the Stage 2 development application which sits under the concept plan is not consistent; there is conflict as evidenced by the conditions. He explained that the concept approval was granted under s 4.22 for State significant development and s 4.24(2) requires any further development consent for the development of the site to be consistent and that it cannot be inconsistent with the concept approval (Tcpt, 25 June 2021, p 266).
In respect to s 4.55(4), Mr Robertson submitted that this section is definitional. There are two structural features of the provision, the first is that the reference is to the modification of a consent in accordance with this section, which makes it clear that subs (2) requires "the satisfaction opinion that it is substantially the same development is obligatory" (Tcpt, 25 June 2021, p 267(30-45)). He submitted: "Once the modification is legally effective, that is what we call the consent by changing the consent to the consenting fact, then it's deemed not to be the granting of consent, but - and that provision is important because it means that the modification process does not have to comply with Part 4 and that's the basis in which the Court of Appeal in Standley and Associates of the Sydney Council (sic) decided that modification was a [law] unto itself, it was self-contained within the then section 96, … but in this case is self-contained in [s] 4.55, and there are many provisions of the [A]ct and [EPIs] that refer to the granting of consent to which the modification process doesn't engage at all." (Tcpt, 25 June 2021, p 267(25-45))
The second structural feature of subs (4) is the definition of "provision", that where development consent is used, it means the consent as modified, and that is the way that the Court gets to decide the merit issues. Mr Robertson observed that modifications do not often come this quickly and that he had been unable to find a case where the Court is actually hearing the appeal where the consent had been modified before the appeal is heard. Nonetheless, he submitted the language was clear. As a matter of general principle, rather than the definitional provision, Mr Robertson submitted that "…this is a rehearing appeal under s 39(3) of the Court Act, and in rehearing appeals of this character, the Court must consider the facts and the law in existence at the date of its decision" (Tcpt, 25 June 2021, p 269).
Mr Robertson submitted that the question posed by RAID is that the modifications or the consents as modified, now authorise warehouse development that is not ancillary to the intermodal in breach of s 4.22(2) and the Concept DA (Tcpt, 25 June 2021, p 269(13-40)). He contended that the warehouses are stand-alone developments that were never contemplated as part of the intermodal when the development was first consented to. Therefore, this is not substantially the same development - it is significantly increased in height and "don't nestle in the vegetation" and generates traffic and acoustic impacts (ASOFAC Contention 11 particulars d, e, f and g) (Tcpt, 25 June 2021, p 270(30-34)). For those reasons, Mr Robertson submitted that I could not form the opinion of satisfaction that the development as modified is substantially the same the development originally approved. In support of his argument, he relied on the reasoning in Arrage v Inner West Council [2019] NSWLEC 85 at [24] and [43] per Preston CJ and submitted that the relevant comparative exercise required by s 4.55(2) is between two developments - the development as modified and the development as originally approved.
Mr Robertson relied on the Court of Appeal decision in Helman v Byron Shire Council (1995) 87 LGERA 349 ("Helman") and a number of other authorities to support his case as reflected in the transcript of the 25th and 28th of June. He identified that there was a conflict of authority in the Court where it suggested that if an issue could be decided in Class 4, it cannot be decided in Class 1. Or it is more appropriate to decide it in Class 1 - suggesting there is some discretion on the part of the Court to decline to decide an issue that is properly before it.
There is authority against the proposition - Pepper J and Pain J on the one hand and Craig J on the other. Mr Robertson submitted: "however, the Court of Appeal has spoken, as has the High Court, and there is a wealth of authority in other administrative tribunals … exercising a kind of hybrid judicial/administrative power that the tribunal body is not just authorised, but has a duty to determine its jurisdiction and to decide questions of law that arise in the proceedings, including questions such as the validity of the decision under appeal." (Tcpt, 28 June 2021)
The IPC's position is identified in its reply to Contention 11 in its SOFAC in Reply filed on 7 May 2021.
Mr Beasley submitted on behalf of the IPC that contention 11 is "styled as a judicial review application" - by using the word "breach", and that I have no power in this Class 1 objector appeal to deal with this contention. As pleaded, the submission is that I should find that the decision maker, the Minister in this case, for the modification, had no power to grant the modification. The moment you are at point of saying that a decision power has no power, which is what Contention 11 does, the application needs to be Class 4 as required by s 20(2) of the Court Act: Greentree v Director-General of the Department of Land and Water Conservation [2002] NSWLEC 53 ("Greentree") per Pain J; Blacktown City Council v Satmell [2019] NSWLEC 93 ("Satmell") per Pepper J (Tcpt 29 June 2021, p 344(21-35), p 346(5).
Mr Beasley also submitted on behalf of his client that this application concerns SSD (Pt 4, Div 4.7, s 4.36 of the EPA Act), and if not so identified it would be designated development for the purposes of s 4.10(2)of the EPA Act, and Sch 3 (Pt 1, Item 28) of the EPA Regulations 2000. As such, the appeal right under s 8.8 of the EPA Act to the applicant only arises in relation to the determination to the grant of development consent. The section specifically does not provide a right of appeal to objectors to an application to modify a SSD or a designated development consent. Furthermore, as s 8.13(1) does not apply to the development consent, the operation of the consent is not suspended whilst the appeal is pending. Qube can act upon it and modify the consent as it has and the effect of approval of a modification is that the consent is immediately modified: s 4.55 and by operation of s 4.55(4) the modification of a development consent is taken not to be the granting of development consent.
Mr Beasley submitted that the Court must determine whether the development consent, as modified should be granted or refused consent. There is no right of appeal in relation to the modification power, in relation to which the only relief that is sought in this Court is recission and vacation of SSD 7709, there is no declaratory relief sought. In that circumstance the jurisdictional precondition in s 4.55(2) is not engaged. Mr Beasley submitted that the decision of Helmen (Handley JA at 356) concerning an appeal against a decision is not the statutory and factual circumstances of this s 8.8 objector appeal.
(For the same reason, the IPC submits that Contention 12(e) of the ASOFAC cannot be maintained - I will deal with this later).
In the alterative, the IPC submits that the development consent as modified was substantially the same development as the original grant of consent pursuant to s 4.55(2) of the EPA Act. on the basis of the assessment report in Tab 9 CB and the conclusion as to the scope of the modification at p 16 (IPC's WS 4-16).
Mr Galasso submitted on behalf of Qube that if the Court does not accept that Contention 11 is beyond the scope of the jurisdiction of this Court in this appeal and the jurisdictional position of the IPC, then the Court would be satisfied that the development to which the consent as modified would relate remains substantially the same development as the development for which consent was originally granted, for the following reasons.
Section 4.55(2) of the EPA Act allows a consent authority to modify a development consent, provided that: it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all). (emphasis added)
Relying on relevant decisions which considered the meaning of 'substantially the same', for the purposes of this threshold test Qube submits that the principles emerging from those cases are: 1. the Court will have regard to what is proposed and has been approved, by comparing the 'before and after' situations. This involves a comparison of both qualitative and quantitative aspects of the developments: Vacik Pty Ltd V Penrith City Council (unreported) [1992] NSWLEC 8 ("Vacik") per Stein J; 2. it is the specific elements and impacts of the two developments which must be compared, to determine this question: Vacik; 3. the question is essentially one of fact: Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16; 4. it is necessary to consider whether the modified development will be 'essentially or materially the same as the currently approved development', or 'have the same essence': Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 ("Moto"): 5. the comparison between the original development and the modified development 'involves an appreciation, qualitative, as well as quantitative, of the developments being compared' Moto at [56]; 6. a distinction can be drawn between a matter of substance as compared to a matter of mere detail: Sydney City Council v llenace Pty Ltd (1984) 3 NSWLR 414; 7. that in the context of s 4.55(2), to 'modify' means to 'alter without radical transformation'. An application to modify which alters an essential characteristic of a development will generally not be permitted by s 4.55(2): North Sydney Council v Michael Stanley and Associates Pty Ltd (1998) 43 NSWLR 468; 8. the modification power is 'beneficial' and 'facultative' Houlton v Woollahra Municipal Council (1997) 95 LGRA 201; and 9. additional environmental impacts associated with a modification application do not necessarily preclude a conclusion that the development is substantially the same, but rather these are a matter to be considered as part of the deliberation on the merits: Wolgan Action Group Inc v Lithgow City Council (2001) 116 LGERA 378; [2001] NSWLEC 199.
On the basis of a quantitative and qualitative analysis, Qube submits that the Court would conclude that the development as modified is substantially the same development as the development for which consent was originally granted.
A quantitative analysis of the development as modified compared to the development as originally approved indicates that: 1. the total gross floor area for warehousing remains at 215,000m2; 2. the total number of warehouses remains at six; 3. there is an increase in the maximum building height from approximately 21m to 41m, but only in respect of the areas where the proposed warehouses JN and JR are to be located; 4. the southern operational boundary of MPW is reconfigured to accommodate the construction of warehouses JN and JR in an area previously deferred for warehouse development at a future stage of the Precinct; and 5. the level of traffic generation sought remains below the threshold established under SSD 7709.
Accepting some quantitative differences between the development for which consent was originally granted and the development as modified, Qube submits that those differences are not of a sufficient scale and extent that the development is no longer substantially the same.
Notably, the most numerical difference is the change in the maximum building height of 2 of 6 warehouse buildings. However, Qube submits that it is important to view this change in the context of the approved development as a whole, as is required by s 4.55 of the EPA Act. The change in maximum building height only applies to warehouses JN and JR (condition 16 and 16A of MPW Concept Plan Approval).
It is submitted that when considering the 'substantially the same' question, the Court must consider the development as a whole prior to modification, and the development as a whole subsequently. RAID's contention incorrectly focuses only on the elements of the overall MPW Stage 2 development which were the subject of the MOD 1 application. Nonetheless: 1. the development (as modified) remains as described in the Modified Consent, namely 'Construction and 24/7 operation of a warehousing estate on the northern part of the site servicing the IMT facility…'; and 2. condition A17 of the Modified Consent maintains the requirement that: 'The warehousing and distribution facilities must only be used for activities associated with freight using the [sic] either the MPE or MPW rail intermodal terminal.'
RAID points to the visual impact of warehouses 'JN' and 'JR' as a basis for its contention, yet Dr Lamb provides expert evidence to the contrary. In his Individual Expert Report, Dr Lamb relevantly concludes that: "The modification does increase the visibility of the warehouses by virtue of the increased heights, as I have noted in my assessment. The increased heights and the limits to which future landscape in the setbacks from the western boundaries would screen the upper parts of the buildings cause medium visual impact. The higher warehouses in my opinion are nevertheless compatible with the adjacent setting and with warehouse buildings generally. … I don't agree that the visual impact of the modification are highly significant, as set out in my assessment, which also shows that the visibility of the modification is limited to a small number of vantage points."
RAID raises the increase in noise limits as a basis for asserting that the development as modified is not substantially the same development, however, this is satisfactorily addressed in the evidence of the acoustic experts (as set out in response to Contention 14) and Qube's proposed additional conditions of consent.
Furthermore, RAID's particular (g) in Ex A is wholly addressed by existing A15A of the MPW Stage 2 Consent which places a cap on the number of light and heavy vehicle movements.
It is submitted that a qualitative analysis of the development as modified compared to the development as originally approved indicates that the nature and purpose of the MPW Stage 2 development remains unchanged.
In that respect, the Modification Assessment Report prepared by DPIE for MOD 1 confirms the changes introduced with the approval of the modification application "do not substantially change the nature of the development or use of the site".

[22]

Finding - The power under s 4.55(2) of the Environmental Planning and Assessment Act 1979 is not relevant to the application before the Court

I am dealing with a development consent that has been modified. I am determining whether the consent in its current modified form is a consent that the Court should grant. The IPC submits that Contention 11 is styled as a judicial review application and ought to be entertained in Class 4 proceedings. In short, RAID is asking me to find that the Minister, the decision maker for the modification, had no power to grant the modification. The moment there is a contention that a decision maker has no power to do something I accept that we should be in Class 4. In that regard, I accept the IPC's interpretation of the case law relied upon by Mr Robertson on behalf of RAID. As Mr Beasley submitted, the decision in Helman (concerning an appeal against the grant of development consent and a defective EIS process) does not authorise me to deal with Contention 11 as framed in this objector appeal. In short, Helman does not respond to the statutory or factual circumstances of this appeal. The decision of Pain J in Greentree at [29] and Pepper J in Satmell at [42] make this plain.
Accordingly, I find that it is not within my jurisdiction in a Class 1 appeal to review a "breach" of s 4.55(2) of the EPA Act for the reasons articulated by the IPC as summarised.
Importantly, I also find that the jurisdictional precondition required by s 4.55(2)(a) is not engaged because s 4.55(2) is not relevant to the application before the Court. As the IPC explained, due to the ongoing operation of development consent SSD 7709 during the course of the proceedings, and the immediate effect of an approval of a modification application under s 4.55(2), the development under consideration incorporates the three modifications.
These proceedings brought pursuant to s 8.8 of the EPA Act relate to RAID's appeal against the IPC's grant of development consent to development application SSD 7709 on 11 November 2019, as modified. The appeal right under s 8.8 arises only in relation to the determination of a consent for designated development or SSD by a determination to grant development consent. The section is specific in its terms and does not provide an objector appeal to an application to modify a designated development (or SSD) consent. Section 8.13 deals with the effect of appeals on the operation of consents and relevantly provides: If the granting of development consent for development (other than State significant development) is subject of an appeal made under this Division, the development consent ceases to have effect.
Therefore, as this appeal relates to an SSD consent, the operation of the consent continues whilst the proceedings are on foot; the effect of the continued operation is that it permitted the proponent to act upon it, including the modifications of it. The effect of s 4.55 is that the modification is immediately effected and s 4.55(4) specifically provides that the modification of a development consent is not the granting of a development consent.
As such, RAID (an objector to a SSD) has no appeal right against a modification under s 8.8 and s 4.55 is not engaged.
In the alternative, if I do have jurisdiction and s 4.55(2) is engaged, I have undertaken the comparative exercise between the development as modified and the development as originally approved: Arrage v Inner West Council at [24] and [43] per Preston CJ.
In reaching that state of satisfaction, my focus has been on a comparison of the developments as a whole, not aspects of the developments. From both a quantitative and qualitative perspective, I accept that the developments have not materially changed. The essence of the development before and after modification remains the same. It is my considered opinion that RAID's submission that "the structural nature of the two developments are too different - the first consent is for an intermodal and the second is a modification for warehousing that is not warehousing assistive or ancillary to the intermodal" (Tcpt, 28 June 2021, p 284(8-45)) cannot be sustained on the evidence.
The evidence is that the total floor area warehousing remains at 215,000 m2. The total number of warehouses is six. There is an increase in height from 21m to 41m for only two warehouses. The southern operational area is reconfigured to accommodate, in particular JN. The level traffic generation remains below the threshold established under the State significant development. There are quantitative differences, but those differences are not of a sufficient scale and extent that the development is no longer the same. I accept that if you are looking at the changes themselves you do get a different answer to the test than if you look at the whole development. However, the case law is clear. I must compare and consider the whole of the developments - before and as modified. Whereas RAID focuses on the elements of the overall MPW Stage 2 development that was the subject of the modification. This is apparent from RAID's reliance on the visual impact of warehouses 'JN' and 'JR' as evidence to support this contention in circumstances where Dr Lamb provides uncontradicted expert evidence to the contrary in the context of a consideration of the whole development before and after modification (Ex R2-7 pp 33-34).
Furthermore, from a qualitative perspective the acoustic evidence (discussed in Contention 14) establishes acceptability in relation to the development on that basis. Finally, I accept the assessment report at Tab 9 CB and the conclusion as to the scope of the modification at p 16 which supports a finding that the consent as modified was substantially the same.
I note that RAID did not raise this jurisdictional issue or any legal issue for that matter at the mention on 17 December 2021 despite my invitation by email in respect of the modifications of the development made since reservation of my judgment. Therefore, I do not need to address those changes and s 4.55(2) save to say that I accept the respondents' agreed position that they do not materially change the developments or the merit issues in this case.
For all of those reasons, I am satisfied on the totality of the evidence before me that I have jurisdiction under the heads of consideration in s 4.55 to deal with this application.

[23]

Contention 12: Inconsistent with the Concept Plan Approval (RAID's ASOFAC "Contentions" par 12)

RAID contends that as a result of the approval of MOD 1, the MPW Stage 2 Consent is inconsistent with the MPW Concept Plan Approval and is therefore in breach of s 4.24(2) of the EPA Act. Mr Robertson outlined the argument by reference to p 4 of the ASOFAC and in oral submissions (Tcpt, 29 June 2021, pp 337-343).
The inconsistency with the MPW Concept Plan Approval is contended on two bases: 1. the warehouses "JR" and "JN" approved by MOD 1 are for a 'warehousing and distribution centre' and therefore are inconsistent with condition 15 of the MPW Concept Plan Approval; and 2. the development will not be carried out in accordance with the mitigation strategies required by condition 4(b) of the MPW Concept Plan Approval because the choice of finishes and materials for warehouses "JR" and "JN" do not limit the amount of contrast with the surrounding landscape with the preferred use of muted colours.
Qube submits in respect to the first basis that conditions A17- A19 of the MPW Stage 2 Consent (i.e. the determination of the consent - see s 4.24(2) of the EPA Act) are a complete response to the contention and demonstrate consistency with the MPW Concept Plan Approval.
Condition 15 of the MPW Concept Plan Approval provides as follows: "The warehousing and distribution facilities must only be used for activities associated with freight using the intermodal terminal facility unless otherwise approved in a subsequent Development Application."
The MPW Stage 2 Consent is entirely consistent with this condition. Conditions A17-A19 of the MPW Stage 2 Consent provides as follows: "A17 The warehousing and distribution facilities must only be used for activities associated with freight using the (sic) either the MPE or MPW rail intermodal terminal. A18 Notwithstanding Condition [A17], movements of containers between a rail intermodal terminal on either MPE and MPW site, and a warehouse on either the MPE or MPW site, are permitted where those movements are also approved for MPE. A19 For the avoidance of doubt, nothing in this consent permits: (a) the occupation or use of a warehouse and/or distribution facility on the site before the commencement of operation of either the MPE or MPW rail intermodal terminal; or (b) truck-to-truck movements."
Qube submits in respect to the second basis that the MPW Stage 2 Consent is consistent with condition 4(b) of the MPW Concept Plan Approval for the reasons provided by the Qube's visual impact expert (Dr Richard Lamb) in his Individual Expert Report, as follows: "I don't find the colours proposed overall to be either excessively bright or discordant and I have given this matter close consideration in my assessment. As the first buildings that are to the level of detail where colours are specified in the adjacent setting, the colours would contrast with existing buildings most of which have minimal colouration, however what is approved has a more contemporary approach to colour than is commonly seen in industrial development. Distinct colour is different from discordant colour in my opinion. …The colour scheme assists in braking down perception of large expanses of wall and it also relates appropriately to the naturally vegetated character of landscape in the setbacks and in the adjacent river environmental protection land, … In terms of overall colour, the light hues as proposed and the Surf Mist base colour are preferable, for reasons set out in my assessment. Use of dark, earthy, natural tones would accentuate the bulk and scale of the buildings more than the colours proposed, in my opinion. I therefore disagree that colours derived from the horizon and natural features (which are predominantly saturated, dark blue or blue/purple hues), or saturated and dark green/grey (natural vegetation hues) would be preferable. They would on the contrary tend to accentuate rather than mitigate the impact of bulk of the buildings."

[24]

Finding - The Stage 2 Consent is consistent with the MPW Concept Plan Approval

For the reasons submitted by the IPC as summarised earlier, I do not believe I have jurisdiction to consider a contention framed as a "breach" of s 4.24(2) of the EPA Act in this Class 1 objector appeal under s 8.8 of the EPA Act.
In the alternative, if I do have jurisdiction, I am satisfied that the development, as modified is consistent with the MPW Concept Plan Approval for the reasons submitted by Qube on the evidence as summarised and reproduced above. As Mr Galasso submitted, the matter to note is the nature of the consistency requirement. It is the determination of the further development application which cannot be inconsistent with the concept for the concept approval and the legislative source for that is s 4.24(2). However, the concept of inconsistency is not absolute, because the legislative scheme contemplates a modification of the concept approval: s 4.24(3).
The allegation is that as a result of the approval of MOD 1, the MPW Stage 2 Consent is inconsistent with the MPW Concept Plan Approval and is therefore in breach of s 4.24(2). The inconsistency is contended on two bases. One is the warehouses, JR and JN as approved in MOD 1 are for warehousing and distribution centres and are therefore inconsistent with condition 15 of the MPW Concept Plan Approval. Secondly, the development will not be carried out in accordance with the mitigation strategy required by the MPW Concept Plan Approval because of the choices of finishes etc. In respect to the first basis, Qube submits that conditions A17 and A19 of the Stage 2 Consent are a complete response to the contention and demonstrate consistency with the MPW Concept Plan. I accept Qube's written submissions par 13.6 in that regard. Condition A17 is consistent throughout. In relation to the second basis for mitigation measures in relation to colours (Qube's WR par 13.7) I accept the evidence of Dr Lamb about colour evidences consistency to the extent it is sought to be impugned by RAID.

[25]

State public infrastructure satisfactory arrangements

As identified earlier, cl 7.36(4) of the Liverpool LEP provides: Development consent must not be granted to development for the purposes of an IMT on land in the IMT Area unless the Secretary has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of relevant State public infrastructure in relation to that land.
The MPW Stage 2 Consent authorises development for the purposes of an IMT and the MPW Site is within the IMT Area.
To address cl 7.36, on 21 March 2019, RMS (now TfNSW) and Qube entered into a VPA pursuant to s 7.4 of the EPA Act.
Recitals G and H to the VPA provide that: "G The Developer has offered to enter into this deed to provide Development Contributions to satisfy the Relevant State Public Infrastructure needs that will arise from the Moorebank Precinct West Development - Stage 2 Development to enable Satisfactory Arrangements Certificate to be issued for the Moorebank Intermodal Precinct West Development - Stage 2 Application. H The parties agree that the Development Contributions offered by the Developer under this deed are also being provided to address the regional road infrastructure needs arising from the Moorebank Intermodal Precinct West Development as a whole."
The VPA requires Qube to: 1. pay a monetary contribution of $48 million towards regional road upgrades; 2. carry out certain road works, namely either: 1. the realignment of Moorebank Avenue to the east of the MPE Site ("the Moorebank Avenue Realignment"). The realigned Moorebank Avenue must be constructed to the standard prescribed by the VPA (which is higher than the standard of Moorebank Avenue in its current alignment); or 2. if Qube does not obtain all approvals required for the Moorebank Avenue Realignment by 31 December 2021, it must upgrade the southern section of Moorebank Avenue (in its existing alignment) to the standard prescribed by the VPA (the Moorebank Avenue South Upgrade); and 1. procure (from the Commonwealth of Australia, which is the registered proprietor) the dedication of certain land for road purposes.
On 23 April 2019, a delegate of the Secretary certified that pursuant to cl 7.36(4) of the Liverpool LEP satisfactory arrangements have been made to contribute to the provision of relevant State public infrastructure in relation to the MPW Stage 2 development on the MPW Site.
RAID contends that the mitigation measures are inadequate, untimely, and uncertain. The particulars, as they relate to the VPA entered into on 21 March 2019 (Tab 4, CB) assert: "d. On 2 July 2019, the RMS explained to the IPC the general methodology used to calculate the State infrastructure contribution of $48 million for "the broader regional network" upgrades under the VPA. The RMS advised "There is no obligation of time in (sic) to be spent or which works will be delivered as part of that" contribution. e. If the contribution is in fact spent on works within Liverpool/Moorebank, then: i. the works have not been identified; ii. it is unknown whether the works relate to the development; iii. the time for completing the works is unknown; iv. whether funding is available for those works has not been explained; v. there is no certainty that the works will ever be carried out. f. The IPC accepted the RMS apportionment modelling results without reviewing it. g. The RMS refer to the model in which apportionments for the contribution of the developments at Moorebank to the overall traffic growth were drawn as the RMS Static Model. It appears that it modelled the base case, and there is no evidence that future year 2036 "with development, do minimum" and 2036 "with development, with upgrades" models were undertaken or independently reviewed. Without disclosure of information concerning the use of the model, no one could be confident that the apportionment is sufficient to mitigate the proportionate impacts generated by MPW in total or MPW stage 2 specifically. h. The VPA imposes no obligation on the RMS to carry out the works or to fund the balance of the costs needed to construct the mitigatory works. The RMS may choose to spend the funds on other works unrelated to the project within the region. i. Unlike conditions for direct works to mitigate development impacts, the VPA provides no certainty that the impacts will be mitigated at the times that they are generated. The outcomes of the VPA condition are uncertain. j. As an already constrained network, if operation of the development precedes the works required to deliver the capacity upgrades, the consequences will be significant because parts of the surrounding network are at or near capacity. There is limited or no spare capacity to be used to mitigate the time difference between the creation of the impacts and the delivery by the RMS of the required upgrades."
While not addressing the merit matters raised in Contention 7 of the ASOFAC - (accepting that Qube will address those aspects of the contention relevant to its role in the proceedings), the IPC submits that cl 7.36 of the Liverpool LEP (Tab 20, CB) applies to the development and provides: 7.36 Arrangements for infrastructure arising out of development of intermodal terminal at Casula and Moorebank (1) The object of this clause is to require satisfactory arrangements to be made for the provision of relevant State public infrastructure, before the carrying out of development on the land in the IMT Area, to satisfy needs that arise from development on the land, but only if that land is developed intensively for an IMT. (2) This clause applies to the IMT Area. (3) This clause does not apply to land if the whole or any part of it is in a special contributions area (as defined by section 7.1 of the Act). (4) Development consent must not be granted to development for the purposes of an IMT on land in the IMT Area unless the Secretary has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of relevant State public infrastructure in relation to that land. (5) Subclause (4) does not apply in relation to development if the consent authority is satisfied that - (a) the development will not result in a significant net increase in traffic to or from the IMT Area, or (b) the development is of a minor nature or is a precursor to development for an IMT. (6) In this clause - IMT means an intermodal terminal for the connection of rail and road freight services, and includes road and rail works and associated commercial infrastructure. IMT Area means the area identified as "IMT Area" on the Key Sites Map. relevant State public infrastructure means public facilities or services that are provided or financed by the State (or if provided or financed by the private sector, to the extent of any financial or in-kind contribution by the State) of the following kinds - (a) State and regional roads, (b) bus interchanges and bus lanes, (c) rail infrastructure and land.
Furthermore, that cl 7.36(4) operates as a statutory precondition to the grant of development consent as it requires certification (in writing) from the Secretary to the consent authority that satisfactory arrangements have been made to contribute to the provision of relevant State public infrastructure in relation to that land. The relevant State public infrastructure includes State and regional roads.
Importantly, Mr Beasley submitted cl 7.36(4) does not impose a requirement on the consent authority to consider or make any assessment as to the certification nor does it require the concurrence or 'approval' of another body. It merely requires that the consent authority receive certification that meets the required description. It is a gateway to permissibility rather than a mandatory consideration.
Accordingly, the IPC submits that the Court as consent authority on appeal does not 'step into the shoes' of the concurrence or approval body pursuant to s 39(6) of the Land and Environment Court Act 1979 ("Court Act").
The Court has the benefit of the certificate issued by the Secretary pursuant to cl 7.36(4) of the Liverpool LEP at Tab 15 of the Electronic Court Book ("ECB"). The certificate relates to the subject application and certifies: "In accordance with the provisions of clause 7.36 of the Liverpool Local Environmental Plan 2006, I Brett Whitworth, Acting Deputy Secretary, Planning + Design, as delegate for the Secretary of the Department of Planning and Environment, certify that satisfactory arrangements have been made to contribute to the provision of State public infrastructure."
The VPA offer was made in the context of the requirement to obtain certification pursuant to cl 7.36 of the Liverpool LEP (see Tab 4, CB, pp 1-2) specifically to: "satisfy the Relevant State Public Infrastructure needs that will arise from the Relevant State Public Infrastructure needs that will arise from the Moorebank Precinct West Development - Stage 2 Development to enable a Satisfactory Arrangements Certificate to be issued for the Moorebank Intermodal Precinct West Development - Stage 2 Application." The VPA provides a commitment to undertake road upgrade works to Moorebank Avenue and to pay a monetary contribution in the sum of $48 million to the RMS for the purpose of road upgrade works. There is no obligation in the VPA for when or where the RMS ought to apply the monetary contribution funds.
The VPA is a planning agreement for the purpose of s 7.4 of the EPA Act, being a 'voluntary agreement' under which the developer is required to pay a monetary contribution and provide other material public benefits (road works) to be used for and applied towards a public purpose, being the provision and recoupment of the cost of providing road infrastructure (s 7.4(2)I).
There is no dispute that the VPA complies with the requirements of s 7.4(3) of the EPA Act and that there is no requirement for the RMS to apply the monetary contribution in any particular way.
The effect of the VPA, read with the Secretary's certificate, is that the Court must be satisfied, without undertaking further assessment that there are satisfactory arrangements in place to contribute to the impacts of the IMT on State public infrastructure, in this case the State and regional road network. Absent the requirement of cl 7.36 of the Liverpool LEP and certification from the Secretary, the Court would be required to undertake further assessment of the impacts on the State infrastructure arising from the proposal. However, the obligation to consider the impacts of the proposal under s 4.15(1)(b) of the EPA Act are discharged by receipt of the certification.
As these proceedings are a merit review of the development application and not judicial review, an argument is not available to RAID that the Court should 'look behind' the certification, such an inquiry needs to be commenced in the Class 4 jurisdiction of the Court.
The IPC submits that VPA should of course also be seen in the context of the various other road infrastructure upgrades conditioned in SSD 7709 (condition B84) and SSD 7628 (condition B13). As Mr Beasley pointed the VPA references s 7.36 of the LEP and it is a certification from the Secretary for relevant State public infrastructure in relation to the land MPW Stage 2 development. The developer has offered to enter into the deed to provide development contributions to satisfy relevant State public needs that will arise from the MPW Stage 2 development. That said, the parties to the deed are agreed that the development contributions offered by the developer under the deed are also being provided to address regional road infrastructure needs arising from MPW. Mr Beasley emphasised the fact that the $48 million does not have to be applied to anything specific, a specific intersection or disclosed works - but refuted the suggestion by Mr Robertson that they might go the Byron Bay as plainly wrong noting that at p 9 of the Deed, it identifies what the deed applies to in (a) and (b). The global purpose under the deed being for regional road upgrade works together with actual physical works to Moorebank Avenue Realignment or Moorebank Avenue south upgrade (Schedule 1 at p 21 of the VPA; Schedule 3 at p 26 of the VPA) (Tcpt, 29 June 2021, p 348(26-50)).
That said, Mr Beasley acknowledged that Qube advanced the position that, even if the above is not accepted or decided, the traffic impacts of this development (MPW Stage 2) are not such that would warrant refusal of consent, and that the objective of not exceeding the capacity of the traffic network will be achieved.
After endorsing the IPC's submissions Qube emphasised that in these proceedings it is not open to the Court to consider the acceptability of the VPA nor look behind the certification issued under cl 7.36(4) of the Liverpool LEP. Rather, the Court must proceed on the basis that the negotiation and implementation of the VPA is a matter for the relevant State instrumentality - namely, RMS/TfNSW. However, irrespective of this legal position, Qube's experts have addressed RAID's contentions on this matter to the extent that the VPA is considered in certain contentions.

[27]

Contention 9: Validity of the EIS (RAID's ASOFAC "Contentions" par 9)

RAID asserts that the form of the EIS under the EPA Regulations 2000, and in particular the certification, constituted a breach of the EPA Act: Ex A par 9. The argument is that former s 78(8A) of the Act, which was in force at the relevant time, required an EIS to accompany an application for designated development, and for SSD, and that the EIS that did accompany the subject DA was not prepared in the form prescribed by the regulations.
The evidence is that the EIS was certified on 21 October 2016. Mr Robertson submitted that as at that date Schedule 2.6 in Part 3 provided that an EIS must contain the following: (f) a declaration by the person by whom the statement is prepared to the effect that (i) the statement has been prepared in accordance with the schedule; (ii) the statement has been prepared in accordance with the schedule; (iii) the statement contains all available information that is relevant to the environmental assessment of the development to which the statement relates; and (iv) that the information contained in the statement is neither false or misleading (Tcpt, 25 June 2021, p 275).
RAID asserts that development consent must be refused because: 1. the declaration made on page xxi of the MPW Stage 2 EIS did not specifically declare that "the statement contains all available information that is relevant to the environmental assessment of the development, activity or infrastructure to which the statement relates" pursuant to Sch 2, Pt 3, cl 6(f)(ii) of the EPA Regulations 2000; and 2. the MPW Stage 2 EIS did not include all available information about the modelling of traffic impacts and precinct-wide impacts.
Mr Robertson made the submission that there is a real issue, which is raised in other contentions that the EIS should have contained a series of matters required by the Secretary's Environmental Assessment Requirements ("SEARs") or the conditions of the concept approval which it did not. For example, the cumulative impact of truck traffic from both MPW and MPE and various forms of modelling which was either not done or started and not completed before the EIS was published. It was submitted that the obligation to certify that everything relating to the environmental assessment is in the statement is a critical compliance issue. The assurance provided by the certification is fundamental and, in this case, it is defective and should allow the appeal and reject the development application.
Qube submitted that Contention 9 in the form submitted is outside the jurisdiction of this Court in this Class 1 appeal. Responding to Mr Robertson's submissions it submitted that in Satmell at [44], the Court determined that the delegation of powers to Commissioners in Class 1 of the Land and Environment Court's jurisdiction does not extend to the determination of matters which constitute assertions of breach of the EPA Act, within Class 4 of the Court's jurisdiction. That position is consistent with three decisions of Pain J to similar effect (Greentree and Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85 as referenced in Satmell at [45], and Charara v Ku-ring-gai Council [2019] NSWLEC 183 ("Charara") at [41]), and to the extent that there is a decision to the contrary, that of Craig J in Australian International Academy of Education Inc v The Hills Shire Council (2013) 196 LGERA 1 ("Australian International Academy of Education"), that decision was not correct (Satmell at [44]), or is distinguishable (Charara at [41]), and to the extent that decisions of the Court in Class 1 considered matters beyond merits, they were decisions of Judges of the Court whose role was not limited in the same way as Commissioners (Satmell at [46]).
Therefore, as an assertion of breach of the EPA Act it submits that the contention should be rejected.
Furthermore, in the circumstances of this appeal the application was in fact accompanied by an EIS. That fact was sufficient to dispense with the legislative requirement for it to do so. Its validity furthermore was not at issue before the decision maker. And, any challenge to whether the EIS was a valid EIS is properly a challenge in the Class 4 jurisdiction of this Court; but it is not justiciable in this appeal.
Qube also submitted that in the event that the Court does proceed to determine the matters raised in the contention it would find both that the declaration is adequate, and in addition that there is no substance to the allegation in the contention of a failure to include 'all available information' about the modelling of traffic impacts to which the declaration is to have attached, for the following reasons.
In respect to the adequacy of the declaration Qube submits, firstly, the particularised defect does not constitute the declaration for the purposes of cl 6 of the EPA Regulations 2000. In form, the certification commences on the preceding page (page xx commencing with the heading "Statement of Validity") and is not limited to the sentence particularised by RAID. In that complete form it follows the format of cl 6 of the EPA Regulations 2000.
Secondly, cl 6(f) of Sch 2 to the EPA Regulations 2000 in terms does not prescribe a certification in a particular form. To the contrary it provides that the Author's Declaration must be 'to the effect that…'. Qube therefore submits that the declaration does not need to use the exact wording contained in cl 6(f) provided the words have the same effect.
The author's declaration which was included within the MPW Stage 2 EIS certifies that the EIS has been prepared in accordance with the SEARs. The SEARs provide that: "The Environmental Impact Statement (EIS) must meet the minimum form and content requirements in clauses 6 and 7 of Schedule 2 of the Environmental Planning and Assessment Regulation 2000 including but not limited to…"
Therefore, in certifying that the EIS was prepared in accordance with the SEARs, the Author's Declaration is, by reference to the SEARS, declaring that the EIS includes the information required by cll 6 and 7 of Sch 2 to the EPA Regulations 2000 which includes cl 6(f).
Thirdly, as a matter of statutory construction, because the requirement for the certification is by reference to a "form" strict compliance with the form is unnecessary (and this, it is to be observed, is consistent with the words used in cl 6(f) "…to the effect…"). Section 78A (now s 4.12(8)) of the EPA Act and cl 2 of Sch 2 of the EPA Regulations 2000 provide that Pt 3 of Sch 2 of the EPA Regulations 2000 is a 'form prescribed by the Regulations'.
Section 80(1) of the Interpretation Act 1987 provides: If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient.
This needs to be read with s 80(2) of the Interpretation Act which provides: If a form prescribed by, or approved under, an Act or instrument requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information.
The MPW Stage 2 EIS as a whole substantially complies with the prescribed form (Botany Bay City Council v Minister for Planning (2006) 148 LGERA 251; [2006] NSWLEC 194).
The case law supports the proposition that an EIS is not required to be a document of "absolute perfection" (Prineas v Forestry Commission of NSW (1983) 49 LGRA 402). In that decision, Cripps J relevantly stated: "I do not think the obligation in s111, that is to take into account "to the fullest extent possible all matters affecting or likely to affect the environment" imposes on a determining authority when preparing an environmental impact statement a standard of absolute perfection or a standard of compliance measured by no consideration other than whether it is possible in fact to carry our the investigation….In my opinion, there must be imported into the statutory obligation a concept of reasonableness. Clearly enough, the legislature wished to eliminate the possibility of a superficial, subjective or non-informative environmental impact statement and any statement meeting that description would not comply with the provisions of the Act…But, in my opinion, provided an environmental impact statement is comprehensive in its treatment of the subject matter, objective in its approach and meets the requirement that it alerts the decision-maker and members of the public and the Department of Environment and Planning to the effect of the activity on the environment and the consequences to the community inherent in the carrying out or not carrying out of the activity, it meets the standards imposed by the regulations. The fact that the environmental impact statement does not cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or require a finding that it does not substantially comply with the statute and the regulations."
It is submitted that substantial - as opposed to strict - compliance with the form and content of a development application and an EIS has been consistently held by the Court to be sufficient for the purposes of complying with the EPA Regulations 2000 (Helman at 356.9 where Handley JA said 'the Courts have insisted on substantial compliance without being over technical or astute to find fault'); Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; [2000] NSWCA 364). Contextually there is no reason to construe cll 6 and 7 of the EPA Regulations 2000 in any different way (such that the cl 7 requirements are less onerous than cl 6). In fact, the use of the phrase "…must also include…" in cl 7(1) reinforces the alignment of cll 6 and 7.
Fourthly, cl 6(f)(ii) of Sch 2 of the EPA Regulations 2000 refers to the statement containing "all available information". To the extent that final modelling results were not finalised at the date of lodgement of the MPW Stage 2 EIS, that constituted information which was not "available" at the time but was subsequently provided to the consent authority as part of its determination of the application.
In addition, the notion of "all available material" as used in cl 6(f)(ii) of Sch 2 of the EPA Regulations 2000 cannot be an absolute term. This is for two reasons. The first is that it involves an evaluative exercise, as demonstrated by the use of the word "relevant". The second is that the statutory scheme contemplates that the assessment information for an application can be updated throughout the assessment process, for example following the public exhibition of the EIS (Botany Bay City Council v Minister for Planning). The process particularly for State significant development operates in a fashion that enables responses to public submissions being made by modification to the development as originally proposed.
Finally, and as relevant to RAID's contention that the Author's Declaration is insufficient and renders the EIS invalid, that point has been found to be insufficient to have that consequence. In that respect the decision of Lloyd J in Botany Bay City Council v Minister for Planning specifically found that: "…I reject the submission that the absence of the declaration required by s71(f) in relation to the supplementary information means that the supplementary information cannot be regarded as part of the EIS and as part of the development application, or that the absence of the declaration leads to invalidity of either the EIS or the development application.'
Next, insofar as the allegation in of failure in Contention 9(i) is concerned, there is no evidence before the Court relating to the absence of a body of evidence constituting any such failure, and in fact on the expert evidence before the Court all relevant modelling had been undertaken properly: see Traffic JER Ex R2-9 at pars 31, and 38-48.
Any allegation in the Joint Report that the EIS failed to include 'all available information' is sufficiently distinguishable from the circumstances of Helman (non-exhibition of a Fauna Impact Statement) and Scurr v Brisbane City Council (1973) 133 CLR 242 (failure to properly advertise the nature of the application). It is to be acknowledged, importantly, that whilst identifying the ability to raise invalidity, Handley JA in Helman also recognised that an appeal to the Court can cure any such invalidity in order to achieve what he described as 'substantial compliance': p 360.2.

[29]

Contentions 1 to 8: Traffic and traffic modelling

In addressing the question of the acceptability of the traffic impacts of the project, Qube asked me to have regard to the broader strategic benefits of the project which will have the effect of reducing heavy vehicles on the road network from Port Botany. Mr Galasso submitted there is an acute issue with the port of Botany and containerised transport. The traffic network saturation at Port Botany needs to be addressed to decentralise the distribution of the containerised transport and the way that can be done is that the containers, once offloaded from the ship, are transported by rail to the Moorebank Precinct and containers goods are transported to Moorebank and then transferred by rail to the port (the IMEX reference). In that way, at least in theory, what occurs is that truck transport is for end point or of source. It is submitted that this is important to bear in mind when I am asked to consider traffic and traffic modelling and to look at more regional impacts. As there is no doubt, on the evidence of Mr Krljic, that in terms of overall regional traffic benefits this project delivers those benefits by the reduction in road transport traffic and is concerned with the Port Botany manoeuvre.
In particular, I was referred to the following passage from the EIS (Ex R2-1 CB Vol 1 Tab 2, p xxix) prepared as part of the MPW Stage 2 application which states: "The Proposal includes infrastructure which is critical to the on-going distribution of freight interstate, intrastate and throughout the Sydney Metropolitan Area. The Proposal also contributes considerably to a change in mode share (from road to rail) which would result in some positive benefits for the region. Projected growth in trade volumes will lead to an increase in freight movements interstate, intrastate and across the Sydney Greater Metropolitan Area. This will pose substantial challenges for the supply chain which is currently dominated by road transport. To meet these challenges and to allow for increased use of rail, it is necessary to invest in new intermodal terminal capacity, to develop dedicated freight rail lines, to widen the orbital motorway network and ideally to complete the missing linkages in the current orbital motorway network, and to improve the rail interface at Port Botany."
I was also referred to the summary of the strategic importance of the project as stated in the DPIE Assessment Report (Ex R2-1, CB Vol 1 Tab 5, p19) again relevant in understanding the broader strategic benefits, namely: "The Moorebank Intermodal is identified as an 'important freight and logistics precinct' in Building Momentum: State Infrastructure Strategy 2018-2038 (INSW 2018). The Strategy indicates that the terminal is one of the 'highest priority investments necessary to achieve a target of carrying 40 per cent of the containerised traffic on rail to and from Port Botany'. The Government supports the Strategy's recommendation that it pursue a strategy to alleviate existing congestion on the road network around the site. …This is a theme investigated in the subsequent NSW Freight and Ports Plan (TfNSW 2018), which concludes that intermodal terminals within Greater Sydney are 'critical for increasing the utilisation of the rail freight network, particularly containers to and from Port Botany', and commits to investment in rail and road upgrades to support the Moorebank Intermodal."
Against that background, I will now deal with the merit contentions raised in the proceedings.

[30]

Contention 1: Capacity of the traffic network (RAID's ASOFAC "Contentions" par 1)

Contention 1 deals generally with an allegation about the capacity of the traffic network.
The contention is that the MPW Stage 2 proposal exceeds the capacity of the traffic network with or without mitigation measures or upgrades.
Qube submits that the notion of "with measures or upgrades" must be taken to contemplate that in terms of capacity there is an ability to introduce mitigation measures or upgrades that deal with the aspect of capacity.
In that regard, Qube referred me to the traffic assessment which demonstrates that the effects of cumulative development on the road network adjacent to the proposal can be mitigated with the following proposed intersection upgrades: 1. M5 weave between Hume Highway and Moorebank Avenue (currently under investigation by TfNSW and agreed by the traffic experts that there is a high probability it will progress through to construction) (Ex R2-9: at par 21). The VPA between Qube and RMS contributes $48 million towards regional road network improvements. 2. M5/Moorebank Avenue (required by condition B13 of the MPE Stage 2 Consent); 3. Moorebank Avenue/Newbridge Road (required by condition B13 of the MPE Stage 2 Consent); 4. Moorebank Avenue/Heathcote Road (required by condition B13 of the MPE Stage 2 Consent); 5. Northern section of Moorebank Avenue (required by condition B13 of the MPE Stage 2 Consent); and 6. Moorebank Avenue/Anzac Road intersection (required by condition B84 of the MPW Stage 2 Consent).
The Department's Assessment Report for the MPW Stage 2 Application dated May 2019 ("DPIE Assessment Report") (Ex R2-1; CB Vol 2 Tab 5, p 57), it is submitted, provides the following background in relation to the assessment of operational traffic impacts: "The Applicant conducted modelling of operational traffic impacts along Moorebank Avenue and at key intersections across the local and regional road network (i.e. Cambridge Avenue, M5 interchange, Heathcote Road, and Newbridge Road) to determine the level of impact resulting from the proposal….The modelling is based on the following inputs: full operation of the facility at 2019 and 2029 (key points in time); cumulative traffic scenario (operation of MPE Stage 1); existing traffic volumes and traffic growth without the proposal."
Mr Tim Rogers in his Individual Expert Report (Ex R2-3 at pars 2.1-2.2) and in the JER (Ex R2-9 at par 8) identified with the following intersection upgrades that: 1. the traffic effects of the cumulative development on the adjacent road network have been mitigated (see Tables 5-5 to 5-8 of the MPW Stage 2 Operational Traffic and Transport Impact Assessment dated October 2016); and 2. the adjacent road network would operate with reduced delays and an overall improved level of service compared to the 2029 'do nothing' scenario.
It was further submitted that Table 5-8 of the MPW Stage 2 Operational Traffic and Transport Impact Assessment dated October 2016 (Ex R2-10; CB Tab 47, p 78) confirms that in 2029, without the proposed development, the identified intersections all operate at Level of Service ("LOS") F in the AM Peak and PM Peak. With cumulative development and intersection upgrades, Table 5-8 shows that: 1. I-4 would operate at LOS D or better in the AM/PM peak hour; 2. I-3 and I-6 would operate at LOS D or better in the AM peak hour; 3. I-5 and I-6 would operate at LOS E in the PM peak hour; 4. I-3 would operate at LOS F in the AM peak hour but with much lower average delays than without the cumulative development and identified intersection upgrades; and 5. I-5 would operate at LOS F in the PM peak hour but with much lower average delays than without the cumulative development and identified intersection upgrades.
Ultimately, Mr Bitzios accepted in oral evidence that in circumstances where a network is already exceeding capacity, adding additional traffic from a development (even a single vehicle) would exceed the network capacity without mitigation measures (Tcpt, 23 June 2021, p 167(22-45)). And, in relation to those mitigation measures proposed as part of the development (which are required by condition B13 of the MPE Stage 2 Consent), Mr Bitzios accepted that the fact that those upgrades had commenced construction gives more confidence that they will be implemented (Tcpt, 23 June 2021, p 170(3-7)).
Furthermore, Mr Krljic the traffic modelling expert for Qube states in the Traffic JER that: 1. "…trip generation to/from the entire MIT development during peak hour is forecast to add insignificant extra traffic volumes on these intersections when compared to the background traffic volumes"; and 2. "Predicted traffic volume increases due [to] the Proposal at M5/Hume Highway, Moorebank Avenue/Heathcote Road and M5/Heathcote Road intersections is within the normal daily/hourly traffic volume oscillation range which naturally occurs on the urban area road network."
Qube submitted that these expert opinions are consistent with the assessment of MPW Stage 2 undertaken in the DPIE Assessment Report which concludes that: "improvements to the road network, including the upgrade of the Anzac Road/Moorebank Avenue intersection upgrade, combined with road upgrades funded by the planning agreement with RMS, and improvements required under the MPW Stage 2 development consent, would ensure operational traffic impacts are managed acceptably".
The IPC's Statement of Reasons for Decision provides that: "The Commission agrees with the conclusion that (sic) of the Department…that operational traffic impacts are manageable subject to the planning agreement and the upgrade of the Moorebank Avenue/Anzac Road intersection".
And, in response to a question from Mr Rakowski as to whether he believes there is sufficient capacity to accommodate the 'cumulative staged approval', Mr Rogers gave evidence that: "My answer to that is yes, as has been identified with the works associated with MPE stage 1 and the additional works required as part of MPW stage 2, it's been demonstrated there is capacity to cater for that traffic generated by MPW stage 2, and it shows that with those works and with the traffic, the road network would operate it better than what it would without those works and the development in place."
To the extent that Mr Bitzios raises criticism in relation to the calibration and validation of the traffic model used for the assessment of traffic impacts, Qube's traffic modelling expert (Mr Krljic) is of the opinion that: 1. "the modelling process…was reasonable and in line with a standard industry practice"; and 2. "the SIDRA intersection modelling…provided a sound basis for the assessment of traffic impacts and for the identification of works required to mitigate those impacts at key intersections".
In response to the evidence of Mr Bitzios in relation to the adequacy of the traffic model, Mr Krljic further gave oral evidence that: 1. he undertook sensitivity testing of the SIDRA intersection modelling and was satisfied that it was undertaken in the assessment of MPW Stage 2 appropriately, accounting for "the full demand and not just the throughput from the constrained network"; and 2. queuing through intersections was captured in the model.

[31]

Finding - Contention 1: Capacity of the traffic network

Based on the evidence as summarised including RAID's expert Mr Bitzios' oral evidence, I am satisfied that the traffic assessment demonstrates that the effects of cumulative development on the road network adjacent to the proposal can be mitigated with the intersection upgrades. This includes the M5 weave, which is currently under investigation by TfNSW and the traffic experts agreed that there is a high probability it will progress through to construction (Traffic JER par 21). The VPA provides an amount of $48 million which is towards regional road network improvements (an amount of money paid and currently available to State government instrumentality to affect the M5 weave, notwithstanding that the M5 weave is a current problem).
There is the M5 Moorebank Avenue intersection upgrade required by condition B13 of the MPE Stage 2 Consent. Moorebank Avenue, Newbridge Avenue upgrades required by condition B13 of the MPE Stage 2 Consent. There is Moorebank Avenue Heathcote Road, by the same condition. There is the northern section of Moorebank Avenue as conditioned. The VPA dealt with the realignment of the southern section of Moorebank Avenue and the Moorebank Avenue/Anzac Road intersection is required by condition B84 of the consent before me.
I rely on and accept Mr Rogers' expert opinion in the joint report that the traffic effects of the cumulative development on the adjacent road network have been mitigated as referenced in Table 5.8 to which the cross-examination of the traffic experts was directed.
The expert evidence is that in relation to the post-development scenario network, with the traffic generated by the development and with the mitigation measures in place, that the traffic network, in fact, is improved in terms of delay or the level of service at all intersections (Traffic JER p 26 at par 2.52; Qube's WS at 7.8).
As Mr Bitzios conceded in circumstances where a network is already at capacity, adding additional traffic - even one vehicle - would exceed the network capacity without mitigation measure. Yet, he accepted that where the upgrades had commenced construction, one could have more confidence that they would be implemented. Coupled with Mr Krljic's evidence that the trip generation forecast is to add insignificant extra traffic on these intersections, when compared to the background traffic volumes - noting that the prediction is within normal oscillation range, and that these opinions are consistent with the assessment undertaken by the Department upon which the IPC relied, I am satisfied that the road network will have sufficient capacity post-development.
And, in respect of sufficient capacity to accommodate the cumulative approvals I again accept Mr Rogers' expert opinion that the works in the MPE Stage 1 and MPW Stage 2 have been assessed and that assessment has demonstrated that there is capacity to cater for the traffic generated by MPW Stage 2 and it shows that those works, and with the traffic, the road network would operate better than it would without the works and without the development in place. That satisfaction establishes that the works do not exceed the capacity of the network.
Lastly, I accept that Mr Krljic is a modelling expert who gave objective and reliable evidence. I reject the criticisms of his calibration and validation of the traffic modelling process and accept his evidence that the process was reasonable and in line with standard industry practice and that the intersection modelling provided a sound basis for the assessment of the traffic impacts for the identification of works required to mitigate those impacts at key intersections. The reliability of his intersection modelling was further established by the sensitivity testing he undertook and his satisfaction on that basis that it had undertaken in the assessment the MPW Stage 2 appropriately.

[32]

Contentions 2, 6 & 8: Disclosure of modelling results and traffic modelling impacts (RAID's ASOFAC "Contentions" pars 2, 6 & 8)

These contentions are grouped together as they are concerned with disclosure of modelling results and traffic modelling impacts.
RAID contends that there was a failure to disclose the traffic model and the modelling results, and that no adequate traffic modelling of impacts has been undertaken.
Qube submits that the Court would be satisfied that: 1. an assessment was undertaken, in consultation with RMS, which utilised appropriate modelling tools for assessing the effects of the proposal on the adjacent road network; 2. all of the requirements for public notification of the development application were adhered to; and 3. members of the public and government agencies were given ample opportunity to comment in relation to modelling results and modelled traffic impacts, and did in fact do so on multiple occasions throughout the assessment process.
The Environmental Impact Statement ("EIS") prepared for MPW Stage 2 states that: "…future traffic growth and modelling data was sourced from Roads and Maritime's wider Liverpool Moorebank Arterial Road Investigations (LMARI) model built in AIMSUN modelling software version 8.0.9 (R35843)."
Use of the background growth models developed by the RMS for the Liverpool/Moorebank area was an express requirement of the SEARs (Requirement 4(a)), as was the requirement to "undertake detailed modelling analysis to assess network operation in consultation with RMS and identify intersection upgrade requirements with the modelling package to be determined by RMS" (Requirement 4(d)).
Mr Rogers' Individual Expert Report confirms that: "…the traffic effects of the approved development were assessed through a combination of strategic traffic modelling (Sydney Strategic Transport Model and accompanying Freight Movement Model), operational AIMSUM (mesoscopic and micro-simulation) modelling and SIDRA intersection modelling. These are considered appropriate tools for assessing the traffic effects of the approved development on the adjacent road network. It is noted that consultation on the level and extent of modelling required was undertaken with TfNSW/RMS."
The traffic experts agree in the Traffic JER that Requirement 4 of the SEARs for MPW Stage 2 has been met as the RMS model was used, although RAID's traffic expert raises criticism with respect to the adequacy of the assessments.
With regard to the adequacy of the traffic modelling, Mr Krljic is of the opinion that: 1. extensive and complex traffic modelling processes were undertaken by several reputable consultants including Parsons Brinckerhoff, Jacobs, GTA Consultants and Arcadis in order to assess the likely impact of the proposed Moorebank Intermodal Terminal development; 2. the traffic modelling approach adopted comprised a tiered suite of traffic models including a combination of strategic transport (demand forecasting) model, mesoscopic/microsimulation (hybrid) operational AIMSUN traffic models and analytical SIDRA intersection models. Applied modelling approach appears reasonable and in line with the traffic and transport modelling standards; 3. the traffic modelling approach appears reasonable and in line with the traffic and transport modelling practice standards; 4. the scenario models provided a reasonable forecast of the future road network performance in the study area and therefore can be considered suitable future base line for the comparative analysis with MPW Stage 2; 5. Dynamic Traffic Assignment ("DTA") was applied in the LMARI model. Application of DTA on a large modelled road network which comprised Liverpool CBD, Moorebank, Wattle Grove, Holsworthy, Casula, Glenfield, Lurnea, Prestons, Miller, Warwick Farm and Chipping Norton local road networks enabled the model to consider potential future "rat running" traffic behaviour in the study area; and 6. considering relatively low traffic volumes expected to be generated to/from the proposal during critical peak periods and the magnitude of the likely traffic impact from the proposal, it appears that proposed mitigation measures and monetary contribution set out in the VPA are sufficient to mitigate both adjacent and broader network impacts of the MPW Stage 2 development.
Mr Krljic also states in his individual expert report that: "…in practice, it was proven that the use of the calibration criteria for microsimulation models on the larger (mesoscopic and hybrid models) not only is not practical but is also in many cases unachievable. I am aware that TfNSW has been developing such guidelines to set out calibration and validation criteria for the large mesopic/hybrid dynamic models since the year 2018, however no specific guidelines in dealing with large area mesoscopic and hybrid traffic models is currently available. As a result, most projects tend to develop project specific model calibration and validation targets and submit a traffic modelling methodology to TfNSW and seek approval for each specific project…. Considering the complexity, size and dynamic traffic assignment nature of the 2015 base year LMARI AIMSUN model used to assess impacts of MPW Stage 2, I can say that achieving 100% calibration targets for this model extent using currently available TfNSW's calibration guidelines designed for micro-simulation (smaller area) models would be an extremely difficult and maybe impossible task…. Based on my understand of the study area network performance and [my own] high level review of the traffic density plots presented in Figures 2 and 3, it appears that the 2029 Do nothing scenario models provided a reasonable forecast of the future road network performance in the study area and provided a suitable future base line for the impact assessment undertaken for the MPW Stage 2 EIS."
The consent authority separately sought to be satisfied about the traffic modelling which was undertaken. In this regard, the IPC's Statement of Reasons states: "Commissioners also sought clarification from RMS about the traffic modelling. In response, RMS noted: That the development of the model was led by RMS, with support from the Applicant and MIC (Moorebank Intermodal Company), as the model needed to examine the impacts of the whole Moorebank Intermodal Precinct and produce traffic generation forecasts for both MPE and MPW, and That it had therefore been peer reviewed by three separate organisations."
Qube submits that on the basis of this evidence the Court would be satisfied that appropriate traffic modelling was undertaken in compliance with the SEARs, and that there was no legal requirement for the modelling to be disclosed as part of the public notification process.

[33]

Finding - Contentions 2, 6 & 8: Disclosure of modelling results and traffic modelling impacts

First it is to be noted that it is not sufficient for RAID to assert a defect. RAID needs to establish the defect.
The fact is that no deficiency and no defect in disclosure of modelling results and traffic modelling impacts has been established by RAID. Based on the evidence as summarised, I am satisfied that an assessment was undertaken, in consultation with the RMS, which utilised appropriate modelling tools for assessing the effects of the proposal on the adjacent road network which to a certain extent were accepted by Mr Bitzios.
All of the requirements for public notification of the development application were adhered to. Members of the public and government agencies were given ample opportunity to comment in relation to the modelling results and model traffic impacts and did in fact do so on multiple occasions throughout the assessment process. There is an exhibited file from the IPC available - a specific submission about modelling and traffic impacts in relation to the proposal that give rise to the satisfaction and understanding that the process was one which permitted relevant stakeholders to be engaged in the process.
According to the EIS, the future traffic growth and modelling data was sourced from RMS' wider LMARI model and built-in AIMSUM modelling software version and gave reference to it. The use of background models developed by RMS for the LMARI area was an express requirement of the SEARs, as was the requirement to "undertake detailed modelling analysis to assess network operation in consultation with RMS and identify the intersection upgrade requirements with a modelling package to be determined by RMS". That was Requirement 4D of SEARs.
Mr Rogers confirms in his individual report that the traffic effects were assessed through a combination of strategic modelling operational AIMSUM modelling, and SIDRA intersection modelling; that they were considered appropriate tools for assessing the traffic effects of the approved development on the adjacent road network; and that this is to be done in consultation with TfNSW.
The traffic experts agree that Requirement 4 of the Secretary's environmental assessment had been met as the RMS model was used, although the Mr Btizios raises criticism with respect to the adequacy of the assessments. I accept Mr Kriljic's assessment that extensive and complex traffic modelling processes were undertaken by reputable consultants in order to assess the likely impact of the proposed IMT development. The modelling approach adopted a tiered suite of traffic models; the traffic modelling approach appeared reasonable and in line with the traffic and transport modelling standards; the scenario models provided a reasonable forecast of future road network performance in the study area and therefore were considered a suitable future baseline for comparative analysis with MPW Stage 2. Dynamic traffic assessment was applied in the LMARI, therefore the LMARI model was the RMS model. Application of dynamic transport traffic assessment on large model road network - comprising many areas enabled the model to consider potential "rat runs". Considering the relatively low traffic volumes expected to be generated to and from the proposal during critical peak times and the magnitude of the likely traffic impact form the proposal, it appears that the proposed mitigation measures and the monetary contribution are sufficient to mitigate both adjacent and broader network impacts of the Stage 2 development.
Mr Krljic, who has experience with TfNSW gave evidence that in practice the use of calibration criteria for microsimulation models on the larger models not only is not practical, it is also often unachievable. Based on his understanding of network performance and his own high level review of the traffic density plots, he said that it appears that the 2029 "do nothing" scenario models provided a reasonable forecast of the future road network performance in the study and provided a suitable future baseline for the impact assessment undertaken for MPW Stage 2.
Relevantly, the evidence demonstrates that the consent authority (the IPC) also separately satisfied itself about the traffic modelling which was undertaken and the sanctioned peer review and further clarification from the RMS about traffic modelling is important confirmation of the processes relied upon. Noting that the development of the modelling was lead by RMS with the support of RAID and the Moorebank Intermodal Company as the model needed to examine the impacts of the whole of the Moorebank Precinct and produce traffic generation forecasts for both the MPE and MPW - thereby the cumulative aspect - and that it had therefore been peer reviewed by three separate organisations.
For all those reasons, I am satisfied that appropriate traffic modelling was undertaken in compliance with SEARs and that there was no legal requirement for the modelling to be otherwise disclosed as part of public notification.

[35]

Contention 4: Assessment of cumulative impact (RAID's ASOFAC "Contentions" par 4)

RAID contends that the MPW Stage 2 assessment failed to consider cumulative traffic impacts.
Qube submits that the Court would be satisfied that an appropriate assessment of cumulative traffic impacts was undertaken.
A cumulative traffic assessment of MPW, MPE and background traffic growth to 2029 was undertaken for the Operational Traffic and Transport Impact Assessment dated October 2016 and Response to Submissions Operational Traffic and Transport Impact Assessment dated June 2017 (Ex R2-10, CB Tab 48).
The MPW Stage 2 Consolidated Assessment Clarification Responses dated 20 December 2018 - Appendix B, Attachment E (Ex R2-1, CB Tab 49) provides: "The cumulative assessment identified that the change in operational traffic impacts when comparing MPW Stage 2 to the combined proposals would be negligible (when considering the implementation of assumed network upgrades). In addition to this, the MPW Stage 2 Proposal (as amended) includes a proposal upgrade to the Anzac Road/Moorebank Avenue intersection which would accommodate both MPE Stage 1, MPE Stage 2 and MPW Stage 2 operational traffic and background traffic growth until 2029."
As noted above, the IPC in its Statement of Reasons records that: "Commissioners also sought clarification from RMS about the traffic modelling. In response, RMS noted: That the development of the model was led by RMS, with support from the Applicant and MIC (Moorebank Intermodal Company), as the model needed to examine [the] impacts of the whole Moorebank Intermodal Precinct and produce traffic generation forecasts for both MPE and MPW, and That it had therefore been peer reviewed by three separate organisations. …The Commission considers that the modelling provides a representative assessment of the expected construction and operational traffic-related impacts and accepts the conclusions of RMS, as set out in paragraph 86 regarding the applicability of the traffic modelling."
Qube submits that there is no legal requirement for the modelling to have been made publicly available during the notification of the MPW Stage 2 Application.
Qube also submits that the RMS was the appropriate entity to review and determine the appropriateness of the modelling and modelling results given its responsibility for the road network and its specialised expertise.
This position was accepted by Mr Bitzios in his oral evidence. In particular, Mr Bitzios accepted that: 1. the modelling for MPW Stage 2 was undertaken in consultation with RMS; 2. the RMS indicated to the IPC that the modelling was done appropriately; 3. the traffic upgrades that are condition to be undertaken for MPE were conditioned with the assent of RMS; 4. the traffic upgrades conditioned as part of MPW Stage 2 were conditioned with the assent of RMS; 5. to the extent that the actual prescribed upgrades were required to be added to by a contribution from the developer for regional road infrastructure, the RMS was a party to a VPA that collected an amount of money; 6. the MPW Stage 2 Consent was issued, so far as traffic and transport matters were concerned, with the concurrence and assent of the RMS; 7. the RMS was the appropriate public sector instrumentality for consideration of the appropriateness of the modelling; 8. the RMS was the appropriate public sector instrumentality to advise the IPC of the appropriateness of the mitigation measures, both in MPE and via the VPA; 9. you could not find a State government department more qualified to deal with the matter of modelling or deal with the matter of the impact of this development on the regional network than RMS; and 10. in relation to the VPA: 1. $48 million for a development with a similar traffic generation of MPW Stage 2 would be sufficient applying a benchmark or rule of thumb contribution per trip generated; and 2. it is completely within the RMS' remit to structure their requirements however they wish.

[39]

Contention 7: Mitigation measures (RAID's ASOFAC "Contentions" par 7)

This contention deals with a complaint about mitigation measures.
RAID contends that the mitigation measures for model impacts are inadequate, untimely and uncertain.
Qube submits that the Court would be satisfied that the mitigation measures are adequate for the following reasons.
The MPW Stage 2 Operational Traffic and Transport Impact Assessment dated October 2016 identified improvements to six intersections to cater for the cumulative impact of traffic in 2029. These intersection upgrades are as follows: 1. M5 weave between Hume Highway and Moorebank Avenue (currently under investigation by TfNSW and agreed by the traffic experts that there is a high probability it will progress through to construction). The VPA between Qube and RMS contributes $48 million towards regional road network improvements; 2. M5/Moorebank Avenue (required by condition B13 of the MPE Stage 2 Consent); 3. Moorebank Avenue/Newbridge Road (required by condition B13 of the MPE Stage 2 Consent); 4. Moorebank Avenue/Heathcote Road (required by condition B13 of the MPE Stage 2 Consent); 5. Northern section of Moorebank Avenue (required by condition B13 of the MPE Stage 2 Consent); 6. Moorebank Avenue/Anzac Road intersection (required by condition B84 of the MPW Stage 2 Consent).
Mr Rogers records the status of the intersection upgrades at Items 2, 3, 4 and 5 in the Traffic JER, noting that some of these improvements would be required irrespective of the MPW Stage 2 development given the existing capacity constraints in the network. On this basis, Qube submits that the Court would be satisfied that these upgrade works are progressing, and in any event are required to be undertaken pursuant to Condition B13 of the MPE Stage 2 Consent which has been physically commenced.
In relation to those mitigation measures proposed as part of the development (which are required by condition B13 of the MPE Stage 2 Consent), Mr Bitzios accepted in oral evidence that the fact that those upgrades had commenced construction gives more confidence that they will be implemented.
In relation to the M5 weave, Mr Rogers identifies that TfNSW are currently investigating that project (as identified on the TfNSW website - community update December 2019) and project notification (March 2021), and that through the VPA, Qube has made a $48 million contribution to regional road network improvements.
RAID's traffic expert, Mr Bitzios, accepts in the Traffic JER that "it is probable that the $48 million contribution [required by the VPA] would be sufficient to mitigate the broader network impacts of the MPW Stage 2 development but there is no evidence available to me to draw a form conclusion on this." In his oral evidence, Mr Bitzios expressed his view that in relation to the VPA, $48 million for a development with a similar traffic generation of MPW Stage 2 would be sufficient applying a benchmark or rule of thumb per trip generated.
Finally, to the extent that RAID seeks to cavil with the terms of the VPA, the Court's power to entertain such submissions is constrained by s 7.8 of the EPA Act which limits the Court's jurisdiction with respect to planning agreements. Specifically, s 7.8(1) provides that a person cannot appeal to the Court against the terms of the planning agreement. To the extent that RAID's contentions seek to review the terms of the VPA, the Court has no jurisdiction to entertain those contentions. In addition, to the extent that cl 7.36 of the Liverpool LEP provides for a jurisdictional precondition, that precondition is effected by the Secretary's certification, which in this appeal is absolute.

[50]

Contention 13: Visual impact (RAID's ASOFAC "Contentions" par 13)

In relation to the warehouses 'JN' and 'JR' approved by MOD 1, RAID contends that: 1. the buildings will be visible from a large catchment of public and private places; 2. the buildings are designed to advertise corporate logos; 3. the buildings use colours designed to advertise occupation by a commercial operator; 4. the colours are not recessive and do not reflect the colours of the local landscape; 5. the materials used accentuate the contrast with natural landscapes; and 6. there is no articulation in the design to reduce the appearance of bulk and scale.
RAID relied on a submission entitled "Visual Impact - LEC 2020/4407" containing texts and photographs and other graphics to address visual impact. The document is not an expert report. As Mr Rakowski explained and noted in the foreword to the document, it is a collation of SSDA documentation that was prepared to brief an expert which he said "was triaged and then collated" into the submissions. It was accepted by the Court over objection on the basis that it would be given appropriate weight as lay evidence.
Qube submits that on the basis of the expert evidence given by Dr Richard Lamb, being the only visual impact expert evidence before the Court in these proceedings, the Court would be satisfied that the visual impact of warehouses 'JN' and 'JR' are acceptable.
In Dr Lamb's Individual Expert Report, he disagrees with all of the particulars of RAID's Contention 13. Dr Lamb's expert opinion is that: 1. The buildings will not be visible from a large visual catchment. The visual catchment is small and confined. There are few public viewing places. The private viewing places are likewise confined to a small area. 2. The buildings are designed as high-bay warehouses, not for display of corporate logos. To the extent that these are proposed, they include restrained building or business identification signage which is reasonable and unremarkable in the visual context. The building identification function is appropriate, and it also has a secondary way-finding function. 3. The overall colours proposed do not appear to be dominated by brand advertising. The base colour is generic and the distribution of darker green hues toward the bases of the buildings is appropriate, regardless of the fact that the colour is a part of the contemporary Woolworths corporate livery. The darker and green hue areas of colour have a visual impact mitigation function as well as creating a contemporary appearance. 4. The Surf Mist colour proposed for the upper parts and the majority of the buildings and other light green areas are preferable. Use of dark, earthy, natural tones would accentuate the bulk and scale of the buildings more than the colours proposed. 5. The materials used for the building are common and typical materials for industrial development, neither unusual not out of character with the intended use of the sites or the character of the buildings. The natural landscape character of the vegetated buffers responds appropriately to the natural attributes of the landscape and the darker green tones in the lower levels of the buildings assist with mitigation of visual impacts responding to the adjacent natural materials, as appropriate. 6. The extent to which the buildings can be articulated or modulated with height is limited and this is acknowledged as causing medium visual impacts.
In considering the visual impacts of warehouses 'JN' and 'JR', Dr Lamb used his own methodology and also considered the findings of Hatch Roberts Day as documented in the visual impact assessments lodged as part of the MOD 1 application. Dr Lamb relevantly forms the following opinion in relation to the significance of residual visual impacts of the buildings: "…the overall visual impacts of the approved buildings are medium. This is a conservative assessment, acknowledging a restricted visual catchment, low exposure to the public domain and the high sensitivity of private domain views from an isolated area of Casula. Medium visual impacts are typical consequences of large-scale industrial developments. … In the context of an environment intended to be transformed into an industrial precinct of a character and scenic quality significantly different from the existing environment and dominated by large, utilitarian built forms, high degrees of mitigation of visual impacts, for example hiding or disguising the building forms, are unreasonable to expect and impractical to achieve. Some residual evidence of the scale and form of the buildings is inevitable and does not constitute an unacceptable visual impact. The colours, materials and landscape design are factors that increase impact mitigation, to the extent that is practical. In my opinion, these are satisfactory…."
In Dr Lamb's oral evidence before the Court, he stated that a "medium [visual] impact is a common outcome in greenfield developments".

[51]

Finding - Contention 13: Visual impact

I am satisfied on the uncontradicted expert evidence of Dr Lamb and based on my own observation at the site view that the development, as modified, is acceptable and is designed to minimise the visual impact subject to the proposed conditions.
Dr Lamb was the only visual impact expert before the Court, and I am satisfied the visual impact of warehouses JN and JR are acceptable. Dr Lamb disagrees with all of the particulars raised by RAID and it is his opinion that the buildings would not be visible from the large catchment. The catchment is small and confined, there are few public viewing places, and the private viewing places are also confined to a small area essentially localised where the Court took its view. The buildings are designed as high bay warehouses - not to display corporate logos and to the extent that they are proposed they are to be confined to Australian building or business identification signage which I accept is reasonable in the visual context.
The overall colours proposed do not appear to be dominated by brand advertising the base colour is generic distribution of darker green hues toward the bases of the buildings is considered appropriate by Dr Lamb regardless of the fact that the colour is part of the contemporary Woolworths corporate identity. Darker and green hues have a visual impact mitigation function as well as creating a contemporary appearance. As I observed at the site view the Target building had some accentuated components which I accept mitigated the effect of otherwise unrelieved buildings in terms of colour. "Surf Mist" - the base colour - was said to be important for the upper parts of the building and the use of dark earthy natural tones would accentuate the bulk and scale of the buildings more than the colours proposed. The materials used are typical for industrial buildings but intended to integrate with vegetated buffers. Based on his own method and the Hatch Roberts Day document, Dr Lamb concluded that the overall visual impact was satisfactory. As I said I accept his expert assessment.

[52]

Contention 14: Acoustics (RAID's ASOFAC "Contentions" par 14)

RAID's Contention 14 raises a number of issues in relation to noise quotas and assessments of noise reflectivity.
Qube submits that on the basis of Dr Renzo Tonin's evidence, the Court would conclude that the assessment of noise impacts undertaken for MPW Stage 2 is adequate and that impacts are satisfactorily addressed by the proposed conditions of consent.
In his Individual Expert Report, Dr Tonin provides the following responses to particulars (b)-(e) of Contention 14: 1. RAID's interpretation of the night background noise is unsubstantiated by the noise measurements; 2. RAID's proposed changes to condition B131 are substantiated by the noise measurements; 3. RAID's suggestions to redesign the western access road, prohibit diesel trucks, limit vehicle movements and change hours of operation are not feasible in the context of the development (or necessary, noting the limit on vehicle movements in condition A15A); and 4. an assessment of the new warehouse heights, including reflections, was incorporated in the noise model.
In the Acoustic Joint Expert Report ("JER"), the experts confirm that particulars (b)-(e) of Contention 14 are unsupported or otherwise resolved.
In respect of particular (a), Dr Tonin concludes that the residential noise impacts that may result from the subject development can be appropriately mitigated through the imposition of a draft condition similar to that which appears as Appendix D to the Acoustic JER.
Mr Harrison was generally supportive of the receiver-based treatments proposed by Dr Tonin. In oral evidence, Mr Harrison proposed that the draft condition which appears as Appendix D to the Acoustic JER be updated to incorporate an option for the proponent of the development to provide funds to an owner of a residential property affected by the residual noise impacts as an alternative to receiver-based treatments funded by the proponent.
Qube's proposed condition B140A gives effect to the evidence of the experts outlined above.
Dr Tonin and Mr Harrison agree in the Acoustic JER that the heading of the last column in Table 4 of condition B131 in the conditions of consent for MPW Stage 2 as modified should be amended. The experts provided further clarification in oral evidence before the Court on this subject which confirmed the heading should read: 'Night LAFmax Sleep Arousal Screening Level'.
In Qube's draft conditions of consent, Table 4 in condition B131 has been amended to reflect the position of the experts.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (57 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (23)