Victorian Civil and Administrative Tribunal|2008-08-14

The applicant for the works approval is Santos (N.T.) Pty Ltd. The applicant for the planning permit was David Craig. The applicant to review the failure of the responsible authority to grant a planning permit was originally Santos Ltd. Only the permit applicant has the legal right to apply for a review under section 79 of the Planning and Environment Act 1987. However, this was resolved by amending the name of the permit applicant and the name of the applicant for review to be Santos (N.T.) Pty Ltd which company name matches the applicant in the Environment Protection case.

The Patricia-Baleen gas plant is located upon land at 73 Ewing Marsh Road Corringle. The locality is sometimes referred to as Newmerella. It is an existing facility for processing natural gas drawn from offshore gas fields. It is located near the coast in East Gippsland.
These cases concern a proposal for buildings and works to modify the existing facility.
These proposed changes require a works approval from the Environment Protection Authority (EPA) under the (EP Act). They also require a planning permit under the East Gippsland Planning Scheme. The relevant expert regulatory authority, the EPA, has determined to grant the necessary works approval. Two third parties have sought a review of that decision pursuant to EP Act. They are Environment East Gippsland Inc, who brought their proceeding through Jill Redwood and Gippsland Environment Group Inc. That application for review (P779/2008) is the first of the proceedings before us.

The exiting Patricia-Baleen gas plant has been operating lawfully on this site since early in the current decade. It processes natural gas drawn from the two offshore gas fields known as the Patricia field and the Baleen field. Gas from these fields arrives at the plant through a pipeline. It is treated there before being sent north through an exit pipeline on its way to be sold or used.
The gas from these fields does not require a great deal of processing. Some minor components are removed from the gas. These include liquid hydrocarbons, frequently referred to in the course of the hearing as condensate. This is a minor component. Ms Crisp was mistaken when she repeatedly asserted that it is not present in, or extracted from, the Patricia and Baleen gas. The gas is also odorised in the plant and pressurised.
These two gas fields that currently supply the plant are becoming depleted. It is proposed to bring online gas from another offshore gas field known as the Longtom gas field.
The constituency of the Longtom gas differs from that of the Patricia and Baleen fields. It contains more water and more liquid hydrocarbons. Some extra or different equipment is needed to process this gas. These cases relate to the question of the provision of these altered or added facilities. The modified plant will also treat the Longtom gas in similar ways to the existing supply, but the increased load of heavier hydrocarbons and water occasion the need for the storage and use on site of another substance known as monothylene glycol. This would be used to prevent hydrate formation in the incoming pipeline which might otherwise occur with Longtom gas.
The site is an irregularly shaped area of 128.7 ha. It is located to the south of, and has access from, Ewing Marsh Road.
Under the East Gippsland planning scheme this land is in a Farming Zone (Schedule 1).
In terms of land use under the planning scheme the land is regarded as being used for a "Utility installation". The zone control provisions in relation to a Farming zone are found in Clause 32.07 of the planning scheme. In Clause 35.07-1 there is a table of uses controlling the use of land. This table is divided into three sections. Land uses listed in the second section require planning permission. Utility installation is a section 2 use. A planning permit to use the land for that purpose would be required if it was proposed to start that use at this stage.
However, no such permit is required as the land is already lawfully used for that purpose. It is not proposed to introduce Utility installation as a new use.
The relevance of this is in Clause 35.07-4. That clause deals with buildings and works on Farming zone land. It provides that a permit is required to construct or carry out buildings or works associated with a use in section 2 of Clause 35.07-1. That requirement is subject to a couple of exceptions that do not apply in the present case. It is pursuant to this provision that planning permission is required for the buildings and works now sought to modify the existing gas treatment plant.
Part of the site is also subject to a Land Subject to Inundation Overlay. However, that overlay does not apply to the part of the land on which the gas treatment plant has been established. There is a private road between the access point from Ewing Marsh Road and the gas plant. This private road passes over land that is covered by the Land Subject to Inundation Overlay. This track is the normal means of vehicle communication between the plant and the outside world.
The Snowy River flows into Bass Strait at Marlo, located to the east of the review site. The Snowy has a substantial upstream catchment and a flood plain adjacent to its lower reaches. This flood plain extends into the portion of the land that is covered by the Land Subject to Inundation Overlay.
The gas plant is established on a sand dune that stands above the flood plain and the land subject to inundation. The height of this dune varies but is not less than 5 metres Australian Height Datum (AHD). A such it stands above the flood line for a 1:100 year flood established for this locality.
In the lower reaches of the Snowy, just upstream from Marlo, there is a complex of low-lying wetlands including tributaries, anabranches, lakes (of which Lake Corringle is the principle one) and marshes. A tributary, which runs initially into Lake Corringle, is Corringle Creek. It flows from west to east, south of the dune on which the treatment plant is situated. There are other more minor wetlands, including Ewing Marsh situated to the west and north-west of the review site. That area has a much smaller catchment than the Snowy River.
Dr Andrew McCowan was called to give expert evidence on behalf of the applicant company in relation to questions of flooding. Although he was questioned by Ms Crisp, no rebutting expert evidence was called. We accept and rely upon his evidence, including the opinions and assessments he gave. In doing so we are in accord with the relevant authority in relation to these questions, namely the East Gippsland Catchment Management Authority.
He gave evidence in relation to the flood line for a 1:100 year flood in the Snowy River. The flood that occurred there in 1971 is accepted as the guide for this purpose. That is the highest recorded flood in that river being higher than a substantial flood that occurred in the 1930s. There has been some suggestion that another substantial flood that may be higher than the 1971 event, occurred in the 1870s. However, that does not diminish the proposition that the 1971 event should be accepted as the 1:100 year flood line. Such a flood leaves the existing plant and the ground on which it stands above and clear of inundation.
The same is true of a 1:100 year flood event in the Corringle Creek (fed by its much smaller catchment).
The coincidence of a 1:100 year flood simultaneously in the Snowy River and the Corringle Creek has a recurrence that might be difficult to assess on the history and experience available in this area at this stage, but which is clearly a good deal less frequent than 1:100 years.
Even if such events were to occur simultaneously the gas plant and the land on which it stands would remain clear of flood waters with a "freeboard" of approximately 300mm. That is without taking account of the effective increase in height achieved by bunding that exists and is to exist around sensitive facilities.
So far as the proposed new facilities are concerned, the increased holding tanks for hydrocarbons and for the storage of monothylene glycol will be not less than 2.5m above ground level. As such, those facilities would be at a very considerable height above any flood level for which even the most conservative design would cater.
Of course none of this changes the fact that there is land between the plant and the front gate over which the road passes and which is subject to inundation in the course of much lesser events. However, flood warning times in this locality are considerable allowing ample time, if necessary, for preparation for flooding and for evacuation. There would be, as there now is, more than enough time to shut down the plant if that was thought prudent, and to make other preparations including, if necessary, cleansing of bunded areas. Not only would there also be ample time for evacuation, but there would be no danger to personnel remaining onsite during the flood event.
There would be minimal noticeable change to the site and its operation if the proposed new buildings and works were to be installed and used. The existing works occupy a "footprint" area, within an enclosed compound. The new works would be accommodated within the footprint and compound. There would simply be closer development within the existing developed area.
We have mentioned that hydrocarbons are an existing by-product extracted from the gas currently being treated by the plant. It is collected onsite and then transported elsewhere (Geelong) in a tanker truck. This occurs only about once per month.
With the processing of Longtom gas, the volume of this by-product would be increased so that approximately six to eight tanker truck loads (semi-trailers) would be removed from the site each day. Although that is clearly a proportionate increase on the present situation, it is an increase on a tiny base. It would still leave truck traffic on the road network at a figure well within the road carrying capacity. Traffic volumes in this area are light although there can be the odd larger vehicle such as a rubbish truck or school bus.
Some consideration has been given to the use of so called B-Double tankers. That would call for some consideration of upgrading of the roads and the protection of some native vegetation including roadside orchids deserving particular consideration. However, that idea has been put aside and can be controlled by the means of imposing a condition.
Mr Lawson owns adjoining land to the west or north-west. His fence is approximately 400m from the plant and his house is over a kilometre away.
Onsite noise is currently controlled by a licence condition and, although that is to remain, noise disturbance would not be a problem in any event. Mr Lawson's house is the closest to the plant. We do not think that he will be adversely affected by noise, whether or not the new facilities are installed, in relation to plant noise or the still very low level of traffic.
The plant currently has lighting including lights erected on poles and lower level task oriented lighting. This enables routine inspections at night time. This regime will remain effectively unchanged.
Patricia-Baleen gas plant is a "scheduled premises" under the Environment Protection legislation. As such, works approval is required for the installation of new or modified works equipment. The purpose of the works approval process is to ensure that proposed works are planned so that, if operated as intended, they will not cause environmental damage.
It is not really to the point to observe, as the objector associations so repeatedly did, that the materials and processes involve potential environmental hazards. That is the very reason for the imposition of a works approval regime, to ensure that works will operate without danger. The procedure involves planning of the works before they are installed. The associations in the conduct of this case there has been a great deal of straying away from the essential points, including this one.
The works approval process involves an application to the EPA. The application involves that expert regulatory body in the process so that it can check and satisfy itself that the works proposed, if operated as intended, will be satisfactory. The EPA can refuse to grant a works approval, or require alterations before it grants approval, where it considers those steps to be necessary.
Section 33B EP Act provides some scope for third party review rights. It is a strictly confined scope. So far as works approval cases are concerned, s.33B(2) strictly limits the grounds upon which such reviews can be brought. The restricted scope and nature of this form of review is apparent upon a careful reading of that subsection. It has been described as imposing "a very high bar", that an applicant for review must attain to succeed.
We have little doubt that it is frequently frustrating for people who are opposed to a project to find themselves so confined, at least in relation to works approval. Perhaps this is what leads some applicants to ignore, or to seek to ignore, the constraints that the legislation imposes upon them, and to seek to put a case on much wider terms to express their opposition, whether or not they have a legitimate case within the narrow confines of review that are legally open to them.
Whether or not the current applicants for review have consciously sought to exceed those limits, they have certainly done so. It is apparent, from the case presented on their behalf, that a great deal of time and trouble has been expended on various aspects of the case. However, the applicants have not subjected themselves to the discipline of confining themselves to the grounds that are open to them. We have been presented with a great deal of speculation about dangers and possible disasters in terms of explosions, floods, leakage and the like without this being tied back to the essential question of whether the works proposed, if operated in accordance with the works approval, will give rise to either of the situations that allow applicants to be successful in a review of this sort.
We propose to confine ourselves to what the legislation makes relevant in proceedings of this sort. In the first place we remind ourselves that this procedure is essentially concentrated on the question of proposed works, and not generally about management procedures, or general management or general possibilities of disaster, mishap, act of God, sabotage, invasion or any conceivable or yet to be conceived upset conditions. Procedure and management are relevant to the extent that conditions imposed on the works approval can define requirements in that respect, but subject to that it is a question of whether the works proposed are satisfactory that commands our attention.
There is another important limitation on the scope of our consideration. The advocate for the applicant associations is well aware that this case is confined to the new works involved in the modifications to the existing (and lawfully operating) Patricia-Baleen gas treatment plant. It is only the changes proposed, and the changed works proposed, that are relevant.
We do not propose to reconsider the question of whether the plant should have been established in the first place, or whether it should have been established in the first place on its present site. It became abundantly clear that the associations regret its establishment, or its establishment on its present site. That emerged repeatedly in the course of the hearing. It was implicit in many of the submissions that were made. However, for our assessment of this case, it is a given circumstance that we must accept. It is only grounds and submissions relevant to the proposed changes or new works to this existing gas treatment plant that are relevant.

We have mentioned that the grounds open to a third party applicant for review in this case are confined by subsection (2) of section 33B EP Act. That subsection provides two available grounds for review, at least one of which must be established for the application to be successful. These two grounds are specified in paragraphs (a) and (b) respectively of section 33B(2). In each case there are a series of propositions that define and contain the scope of the ground. These defining and containing words are the same in respect of each of the two grounds. The difference between the two grounds lies in the concluding words of the respective paragraphs. We will come back to a consideration of the terms that are common at a later point. For the moment we refer to the expressions that differentiate the two grounds. The first is that, by virtue of the circumstances that are common between the two grounds, the works if completed in accordance with the works approval, will result in circumstances that would unreasonably and adversely effect the interests, wholly or partly, of the applicant.
The applicants, in this case, are the two incorporated associations. They claim that they and their members have had and continue to have an interest in environmental protection of the Snowy River and its estuarine waters including associated flood plains, wetlands, water bodies and tributaries. As such they are interested in the wellbeing of wet and potentially wet environs of this site.
This interest, as we understand it, has been held to be sufficient to get the applicant associations over the first hurdle that faces them when they attempt to bring review proceedings under section 33B. This first hurdle arises under section 33B(1), before any questions of grounds of review arise under section 33B(2). Under subsection (1) a review applicant must be "a person whose interests are affected by the decision" (in this case the decision to issue a works approval).
A preliminary hearing was conducted by Deputy President Gibson in relation to this case on 2 May 2008. The point was taken against the applicant associations at that hearing was that neither was a person whose interests are affected in the relevant way by the decision of the EPA to grant works approval. We read the reasons of the Tribunal on that occasion as indicating that this first requirement of interests being affected is satisfied.
The second situation in relation to which the question of the interests of the review applicants arises is the more specific one under the ground allowed in section 33B(2)(a). That is whether the interests of the associations will be unreasonably and adversely affected by the approved works or the use of the approved works.
It seems that this second question was raised on 2 May 2008, but deferred to this hearing. It was deferred on the basis that the applicants should have an opportunity to argue their case on this point, rather than having their case summarily rejected. The reasons did observe:

Whilst on the basis of the material set out in the application for review it is difficult to see how the interests of the environment groups will be unreasonably and adversely affected, they ought to be given the opportunity to argue their case, rather than have it summarily rejected.

I have indicated that the material filed thus far by the environment groups discloses a weak case.

A direction was given, for the applicant associations to file further and better particulars. This direction did not specify what actual further particulars were to be provided. It seems that this was more an invitation and opportunity to the applicant associations to restate their case so as to indicate how they allege their interests will be adversely and unreasonably effected in accordance with the first allowable ground.
The result was a new document headed 'FURTHER AND BETTER PARTICULARS' dated 12 May 2008. This document was not confined to particulars, or to things that we would regard to relevant within the narrow scope of the grounds available. We note that at the preliminary hearing the associations were represented by a barrister instructed by the Environment Defenders Office. They are no longer represented in that way. The 12 May 2008 document came from the Environment Defenders Office. Representation on behalf of the associations did not. The circumstances in which such legal assistance has been withdrawn or dispensed with were not explained to us. It was said, at the hearing before us, that it had been indicated to Deputy President Gibson that case on behalf of the associations would involve the calling of expert witnesses. Our recollection is that the number of six was mentioned in this context. In the event, none were called. Consequently, we have been left with expert witnesses called on behalf of the applicant company, with none of the promised rebutting expert evidence that had been foreshadowed. Any input of that sort was limited to questioning in cross-examination or some untested assertions.
The first ground provides for success in the event of showing unreasonable and adverse effect on the interests of the applicant. By contrast, the second ground refers to inconsistency with a relevant order declared under section 16[1] of the EP Act.
The second ground contains an alternative that applies when there is no such relevant order for the area. In those circumstances the alternative version can be established by showing the use of the works approved would cause pollution or an environmental hazard. The applicant associations initially sought to rely on both alternatives in the second ground, although they are clearly mutually exclusive. In the event they have relied upon the first alternative namely seeking to establish inconsistency with a relevant order declared for the area. In this connection the relevant order relied upon is the State Environment Protection Policy - Waters of Victoria. Ultimately their case has been to assert inconsistency with Clauses 37 and 43 of the SEPP[2]. At one stage there was mention of Clause 38, but that has been abandoned.
We now consider the terms of the first available ground of review in full. Section 33B(2)(a) reads:
- (a) that if the works are completed in accordance with the works approval, the use of the works will result in -
  - (i) a discharge, emission or deposit of waste to the environment; or
  - (ii) the reprocessing, treatment, storage, containment, disposal or handling of waste; or
  - (iii) the reprocessing, treatment, storage, containment, disposal or handling of substances which are a danger or potential danger to the quality of the environment or a segment of the environment -

which will unreasonably and adversely affect the interests, whether wholly or partly of that person;

In the first place it is the "works" that must give rise to the unfavourable or undesired result. That does not encompass some external mishap unrelated to the works. Some unrelated act of God or act of a foreign aggressor or unlooked for natural event unrelated to the works does not quality.
The next thing is that the undesirable circumstance must result from the use of the works, and this contemplates use of the works in accordance with the works approval. Remembering that works approval relates to the approval of the works, rather than possible faulty management or operation of the works, fault must be found with the works themselves or their operations in accordance with the works approval. Although it would be possible for approved works to be operated in a negligent, irresponsible or uncontemplated way so as to give rise to problems; and although there may be procedures, steps or sanctions aimed at preventing or punishing such behaviour, that is not what the works approval procedure is about. We are not here making speculations about what could possibly go wrong if the works are not operated correctly. We are not even here to speculate about what could go wrong due to unforeseeable mishaps in the actual operation of the works if they are constructed. We are concerned to ensure, so far as that is possible, that the works for which approval is sought are appropriate.
The formulation of the statutory ground does not deal with adverse situations that "might" arise, or that "could" arise; but rather with situations that "will" result in the unfavourable circumstances.
The associations in this case have made a wide and happy pursuit of all manner of possibilities and speculations about what could happen, and how bad the situation might be if they did. The essential link missing is as to whether their prognostications "will" result if the works are completed in accordance with the approval and used accordingly.
If, for example, it could be shown that the plans for the works for which approval is sought involve a gap in the storage facilities or the facilities for conveying some toxic substance so that that substance would be discharged to the environment, that would probably satisfy section 33B(2)(a)(i). It would be shown that the discharge would happen rather than it, under some imagined circumstances, could happen. Of course that has not been shown in the present case.
The associations have relied on section 33B(2)(a)(iii). This involves "the reprocessing, treatment, storage, containment, disposal or handling of substances which are a danger or a potential danger to the quality of the environment or any segment of the environment". In the case presented on behalf of the EPA, those concepts of reprocessing, treatment, storage, containment, disposal or handling were contracted to the use of the word "handling" on the basis that it could be taken to include the others. In a similar way, the environment can be taken to include any segment of the environment. On this basis then would the use of the works, if completed in accordance with the works approval result in the handling of substances which are a danger or potential danger to the environment? There may be substances that are a danger or potential danger to the environment if released into the environment. However, remembering that the works approval procedure only applies to scheduled premises and effectively only to premises where, amongst other things, such materials are handled, then this ground cannot be meant to apply to every undertaking involving the handling of substances that are dangerous or potentially dangerous to the environment. If that was so, it would prohibit all such undertakings. What is intended is that the works should only be approved if they are adequate to cope with such substances.
It has not, in our opinion, been shown that the currently proposed works fail the relevant test. We accept that the onus is on the applicants for review. They would have to show that their interests were both unreasonably and adversely effected. This adverse effect is to be from something that "will result" from the use of the works completed in accordance with the works approval. Although a discharge, for example, might satisfy the requirement, they cannot show that this will happen and they have not shown that the handling of any dangerous or potentially dangerous substances in accordance with the approved works and the works approval will adversely affect them. We consider that their review under the first ground must fail for this reason.
In a somewhat similar way their review under the second ground must also fail. Under it they must show that the use of the works, if completed in accordance with the works approval will result, by any of the specified means, in something that is inconsistent with the State Environment Protection Policy - Waters of Victoria.
The first of the provisions of that SEPP relied upon is Clause 37. It reads:

Chemicals including biocides, fertilisers, oil and fuel, other hazardous substances and prescribed industrial wastes need to be managed to minimise environmental risks to beneficial uses. To ensure this:

(1) chemicals and hazardous substances must not be stored in or adjacent to surface waters, drainage lines or flood plains, unless the storage facilities prevent them from coming into contact with surface waters[3];

(2) protection agencies and businesses that use, store or transport chemicals and hazardous substances must develop and maintain plans for the avoidance of spills, leakages or breakdowns. Contingency plans need to include emergency holding and clean up measures, actions to minimise environmental risks to beneficial uses, methods of disposal of spilled materials and staff training in operating the emergency response procedures;

(3) the Environment Protection Authority will work with protection agencies, businesses and communities to develop guidance for the use and storage of biocides and fertilisers in or near surface waters. Instream and riparian chemical spraying practices need to be consistent with guidance approved by the Environment Protection Authority. In particular, instream and riparian spraying needs to be avoided in the Aquatic Reserves and Highlands segments.

We suppose that the first step in proper management of such materials is to ensure that the works in which they are to be handled or stored are proper works properly thought out. That is the purpose of works approvals. We have found that it has not been shown that these proposed works will result in adverse things of this sort. Other than that, Clause 37 is primarily directed to management rather than the establishment of proper works in the first place. Perhaps paragraph (1) in the clause is the most pertinent aspect of it. It is concerned with chemicals and hazardous substances being stored in or adjacent to surface waters, drainage lines and flood plains but it specifically does not say that such storage cannot take place. On the contrary, a significant exception applies in the words "unless the storage facilities prevent them coming into contact with surface waters". In the first place we consider that the works proposed bring this project within words of that exception, but in any event, it has certainly not been shown that the contrary "will result" from the use of the proposed works if completed in accordance with the works approval.
The other clause of the SEPP cited is number 43. That clause reads:

Works on or adjacent to surface waters need to be managed to minimise environmental risks posed by the aquatic ecosystem and to protect other beneficial uses. To enable this, surface water managers need to:

(1) ensure that works in or adjacent to surface waters are managed so that unnatural erosion, sediment re-suspension and other environmental risks to aquatic habitats are minimised; and

(2) ensure that existing and new in-situ structures do not pose a barrier to native fish movements.

Again this is essentially directed at management rather than the establishment of works. It is not shown that the operation of these proposed works "will result" in adverse effects on surface waters or that proper management to ensure adverse effects on surface waters will be compromised. Insofar as the clause deals with works rather than management, it specifies the ensuring that existing and new structures do not pose a barrier to native fish movement. That is not suggested in the present case.
In our view the review applicant associations are unable to establish their grounds under section 33B(2) and, in any event, have failed to do so. We accordingly propose to refuse that application and affirm the decision of the Environment Protection Authority to grant the works approval.

The only permission required under the planning legislation is for the buildings and works for which works approval is required under the environment protection legislation. The attempt is made by the objectors to prevent these modifications to the works as a means of preventing a modification to the operation of the gas treatment plant.
From the point of view of most considerations relevant to planning the changes proposed are minimal and not such as to warrant a refusal.
The change to the appearance of the works is minimal and such changes are so distant from the public realm constituted by public roads, and even from the house of Mr Lawson, as to be inconsequential. That is true whether the site is viewed in daylight or in darkness. The regime of lighting will remain essentially unchanged.
Again we take the existing operating gas treatment plant as a given. We are considering only the changes now proposed. In particular, we are not reconsidering the decision made years ago to establish the existing plant on its current site. Ms Crisp pointed out that, at the time that decision was made several options were available. She said that the proponent at that time really favoured another site closer to the road. She informs us that the Minister at that stage determined on this site because it was more remote from existing houses. If she is correct, that demonstrates that there were competing considerations for and against this and other possible sites. In a normal permit application the situation is that a decision must be made as to whether a particular site is appropriate, whether or not there are other possibilities, even some other possibilities which, from some points of view, would be superior. We know Mr Lawson regrets the selection of the present site, and we gather that the three associations for which Ms Crisp appeared in relation to the planning matter entertain similar regrets. Those regrets may be understandable. There may be a strong case for the view that another option was preferable at the time of establishment. We make no assessment on that point. We confine ourselves to the present case and the present proposal for a modification to the existing facilities.
It is true to say that the current site is a considerable distance from any road or house. It more than meets the applicable buffer distances for the house under environment protection guidelines. It is sufficiently removed that operational noise is most unlikely to raise problems. We have noted that noise emissions are the subject of control under the existing environment protection licensing requirements. We have already indicated that we do not consider that noise, either on site or in relation to transport, raise concerns from a planning point of view.
Similarly we have already stated our conclusion that the altered traffic demands are trifling in the circumstances.
It is normal in relation to the consideration of flooding under planning assessments to be guided by the extent of Land Subject to Inundation Overlays. In this case the site is not within the area covered by the overlay. It is also common to consider a 1:100 year flood line. We have already explained why, on that basis, this site is not subject to flooding. It is all very well to speculate about floods exceeding that level, but it becomes impractical to attempt to plan on the basis of 1:500 years or 1:1000 years. It is not really sensible to try to make an assessment of such levels in an area where records do not reach back for 200 years. In any event, whilst not showing a basis for supposing this land will be flooded, it is further not shown that any adverse effect would result if it were to be subject to inundation having regard to bunding in the first place, and the elevation of the storage facilities for the new or increased substances to be stored as a result of the current proposal.
Of course it is theoretically possible for a 1:500 year flood or a 1:1000 year flood to occur in any stage, notwithstanding that by definition and over time there must be very lengthy spaces of time between such events. The evidence shows that a simultaneous 1:100 year flood in both the Snowy River and the Corringle Creek is not an occasion for concern. It is unlikely that another such event will occur during the operational lifespan of this plant, even if that span is increased by the works that would allow processing of Longtom gas. If it is later proposed to make further modifications to adapt to the particular characteristics of some other gas field, that can be considered when the time arises. We note, by the way, that there has been an application in relation to another field called the Sole field that has not been acted upon.
Similar considerations of useful life expectancy in the operation of the plant apply to arguments that were raised about the possible effect of future global warming and sea level change. Although those possibilities are a serious long term considerations in the minds of many, their onset is, in our opinion, sufficiently delayed to not be relevant to our consideration of this case in relation to this gas treatment plant.
A variety of apprehensions about possible mishaps, explosions and leaks were referred to. Most apply to the existing plant as much as to the modified version. We consider that the distances involved are reassuring and the possibilities and remote improbabilities mentioned do not themselves warrant refusal of the proposal. We note the absence of the foreshadowed expert evidence in this context.
On behalf of the associations there has been a scouring of state and local planning provisions in the search of policy statements or purposes or guidelines that might assist in opposition to this proposal. Some of the submissions in this connection are misconceived or irrelevant or out of proportion. For example, reference to the existing use provisions in Clause 63 of the planning scheme seem to us to be hardly to the point. There are existing use rights. Those rights continue subject to certain conditions and provisos. If they are breached, then consideration might have to be given to what the implications of such breaches might be. In the meantime, and where there is an application for permission for works rather than use, the relevance of the reference to Clause 63 seems to us to be tenuous.
We do not propose to attempt to deal with every suggestion, reference or speculation raised in the course of the fairly lengthy hearing of this case. We are dealing only with what we consider to be the main issues, and those that warrant comment. We pass over others that we consider to be sufficiently dealt with by conditions or so minor or irrelevant that they do not justify refusal or modification of the proposal. An example is parking. That was mentioned but all necessary parking can be readily accommodated.
There was reference to the concept of net community benefit and to Clause 11 of the planning scheme. We consider that there is a very strong case in planning terms in favour of this proposal. In this we include a preponderance of net community benefit. This is an existing operating gas treatment plant. Resources, including money, work, material and energy have been invested in its creation. It accords with good planning that it should be used, unless there is a compelling reason to the contrary. It is also in accordance with good planning that it should similarly continue to be used and that it should be modified for future use, again unless there is compelling reason to the contrary. We find no compelling reason to the contrary.
Furthermore, it creates or processes a product that is not only useful and valuable in itself, and of community benefit as such, but it is a product that is very advantageous from an environmental point of view, compared with other alternative sources of power such as brown coal.
We consider the arguments raised against this proposal to be speculative and insubstantial. They are a slight weight indeed, compared to the advantages of the proposal, including community advantages.
There is a need for the product and, we consider, a need for the facilities. These are matters that would weigh in its favour, in a balancing act where there was some doubt as to the outcome and where advantages are weighed against disadvantages. In this case we considered the merits in favour of this proposal to overwhelm the suggested considerations against it.

Mr Lawson is an objector in relation to the planning case. Most of his concerns have already been dealt with in our reasons so far. He also mentioned alarms, sirens and whistles sounding at the plant. Obviously they relate to current operations rather than anything that might be casued by the proposed works. He says that the operators have never explained the meaning of these noises to him, although he has never sought explanations.
He points out that winds from the south and east blow towards his property and that any emissions carried on such winds might contaminate his drinking water or collect on his house roof, apart from question of pollution in the air. However, we have no evidence or basis for supposing that there have been such emissions in the past, or that there will be if this permit is granted.
Early in 2001, he informs us, he obtained a permit to use his land as a Group accommodation for three cabins. He has not acted on that permit. We are not sure whether or not it has expired. He says that he has decided not to go ahead with the project for what he says are obvious reasons. There are no reasons obvious to us as to why he should not act on his permit, provided it is still current, if he wishes to do so. His not acting on it since 2001 cannot be because of the works now proposed. As yet they still do not exist.

As with the works approval review, we consider that the planning review should be refused and a permit granted accordingly. In doing do we affirm the decision that the responsible authority would have made if it had made a determination within the prescribed time. We have also referred to the acquiescence of the various referral authorities in the granting of such permission.
The responsible authority had provided a set of draft conditions for consideration. These were discussed in the course of the hearing. Our decision on conditions will be reflected in our determination. We have taken account of the submissions made in relation to the conditions. We have also made such modifications as we consider appropriate in the circumstances, including alterations to setting out and English expression.

Environment Act 1987

Santos v East Gippsland SC [2008] VCAT 1658 (14 August 2008)

Santos v East Gippsland SC [2008] VCAT 1658

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)

Santos v East Gippsland SC [2008] VCAT 1658 (14 August 2008)