Sell & Parker Pty Ltd v Minister for Planning and Public Spaces

Joinder of Fire and Rescue NSW

1. In its Statement of Facts and Contentions, the Secretary raised a contention that the proceedings "lack utility" in the absence of FRNSW as a party to the proceedings. Notwithstanding this, at no point in the course of the proceedings did the Secretary file a Notice of Motion for an order for joinder of FRNSW. Nor is there any record of such an order being sought by either party at a directions hearing before the Registrar. Sell & Parker maintained, in its Statement of Facts and Contentions in Reply, that the appeal concerned the decision of the Secretary and that FRNSW was not a necessary party to the appeal.
2. At the commencement of the second day of the hearing, I expressed my concern that, in the event that the decision of the Court is taken to be the final decision of "the person or body whose decision is the subject of the appeal" pursuant to s 39(5) of the LEC Act, and "the person or body" is to be interpreted as including two persons or bodies (s 8(b) of the Interpretation Act 1987), that decision could bind FRNSW notwithstanding that they were not a party to the proceedings. On that reading of s 39(5) (to which I do not now adhere), I indicated that it would be appropriate for the Court to make an order for joinder.
3. An equivalent provision to s 39(5) is also found in s 8.14(2) of the EPA Act, which provides that: The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly.
4. Ms O'Brien, for the Secretary, submitted that by reason of s 8.7(2)(a), the words "consent authority" in s 8.14(2) can be read to include any other decision-maker whose satisfaction is required under the conditions of development consent.
5. In response to both my concern regarding s 39(5) of the LEC Act and Ms O'Brien's reading of s 8.14(2) of the EPA Act, Mr Johnson submitted on behalf of Sell & Parker that if the words "consent authority" in s 8.14(2) are accepted as referring to another decision-maker (rather than the Minister, as the consent authority), then it must relate to each of the two different parties whose satisfaction is required under condition B35D. In that respect, Mr Johnson submitted that the reference to the "final decision of that consent authority" in s 8.14(2) is a reference to only that decision that is the subject of the appeal. That is, if condition B35D requires the satisfaction of both the Secretary and FRNSW, then two decisions are required which are each separately the subject of a right of appeal under s 8.7(2)(a). In that sense, on his submission, the deeming provision in s 8.14(2) of the EPA Act and s 39(5) of the LEC Act is divisible and can only bind the decision-maker whose decision is the subject of the appeal. As the appeal is only against the decision of the Secretary, FRNSW would not be bound by the decision of the Court and it would then remain for Sell & Parker to separately obtain the satisfaction of FRNSW.
6. Notwithstanding that I considered that such an interpretation was open to the Court, I noted that there would remain a requirement for Sell & Parker to obtain the satisfaction of FRNSW even upon Sell & Parker obtaining orders in its favour on this appeal. Although FRNSW had previously expressed its satisfaction by email on 15 October 2020 (Ex A Tab 8), at the time of the hearing there was some uncertainty as to whether the satisfaction was conditional, limited in some way, or subsequently withdrawn. There may have then been a necessity for later appeal proceedings, which would cause a duplicity of proceedings and unnecessary costs and delay, which would not be conducive to the overriding purpose in s 56 of the Civil Procedure Act 2005 for the just, quick and cheap resolution of the real issues in the proceedings. Accordingly, in the exercise of the Court's discretion and on the Court's own motion, pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005, I ordered the joinder of FRNSW as the third respondent in the proceedings. Following the tender of evidence and the cross-examination of the witnesses, the hearing was adjourned to allow FRNSW to appear in the proceedings.
7. As it transpired, following the joinder of FRNSW, FRNSW communicated its satisfaction with the Final Plan by email from its representatives to Sell & Parker's representatives on 6 August 2021 (Ex E), and filed a submitting appearance. Accordingly, I need not consider whether the decision of the Court on the appeal against the Secretary's decision needs to be expressed, in the final orders, as the final determination of both the Secretary and FRNSW. I note that I prefer the interpretation of s 39(5) of the LEC Act and s 8.14(2) of the EPA Act that was advanced by Mr Johnson, whereby the deeming provision in each is divisible and can only bind the decision-maker whose decision is the subject of the appeal.

The site and the relevant history

1. The site operates pursuant to a State significant development consent granted by the Minister (SSD 5041) on 12 November 2015. In summary, the use of the site is regulated by the conditions of SSD 5041 as modified on three occasions, as well as by two fire safety orders issued concerning its operations. Sell & Parker first prepared stockpile plans in response to a Notice of Intention to issue a fire safety order dated 23 June 2017, and the two fire safety orders require compliance with those plans.
2. A stockpile plan did not form part of the development consent as modified on the first or second occasion, but on the application for MOD 3, a stockpile plan was included in the engineering plans that supported the application, and therefore formed part of the modification application. However, that stockpile plan was not consistent with the site plan lodged with the same application. On the grant of MOD 3, the assessment report stated that "the location of stockpiles in the plan do not align with the site plans for the proposed modification", and page 19 includes a recommended condition for "the applicant to submit a final stockpile plan prior to operation of the relocated pre-shredder".
3. The following is a more detailed outline of the above summary, although, for brevity, only relevant events are described.

Development consent was granted

1. The consent SSD 5041 allowed Sell & Parker to expand its facility, permitting an increase in processing capacity to 350,000 tonnes of waste per annum. There were a number of plans that were approved as part of that consent, but they did not particularise the location and size of stockpiles on the site. Condition B35(a) of the consent required the implementation of suitable measures to minimise the risk of fire on-site "including but not limited to the recommendations of the Preliminary Hazard Analysis".

The preparation of stockpile plans

1. Following a fire on the site in April 2017, on 23 June 2017 the Minister for Planning issued Sell & Parker with notice of intention to issue a fire safety order in relation to the site.
2. Sell & Parker subsequently provided the Minister with a Transitional Fire and Risk Management and Implementation Plan (TFRMIP). The TFRMIP proposed to disperse the number and size of stockpiles, and included an interim Stockpile Management Plan (Drawing SP-02 Rev P1 dated 14 July 2017) (the Interim Stockpile Plan) at Appendix E, and a final stockpile plan (drawing SP-01 Rev A dated 11 May 2017) (the First Final Stockpile Plan) at Appendix F.
3. Section 4.2 of the TFRMIP stated that within 12 weeks of FRNSW approving the detailed fire services design for the whole site and the Construction Certificate being issued, an interim Stockpile Plan would be implemented, and Section 4.3 stated that within 4 months of the issue of a Construction Certificate the First Final Stockpile Plan would be implemented with a revised Fire Services Plan.
4. On 8 September 2017, FRNSW wrote to the Department of Planning and Environment (the Department) endorsing the implementation of the TFRMIP as proposed. The endorsement was subject to a number of conditions, including the following: "The final stockpile reconfigurations being implemented in accordance with the Final Stockpile Plan (ie Appendix F of the TFRMIP) and within the timeframe nominated in Section 4.3 of the TFRMIP."

The first fire safety order

1. On 27 September 2017, an order was issued by the Minister for Planning pursuant to the now repealed s 121B of the EPA Act, which required Sell & Parker to implement the Interim Stockpile Plan as follows: 1. Submit a construction certificate application for the works to implement the Interim Stockpile Plan within 7 days from the date of issue of the order; and 2. Implement the Interim Stockpile Plan within 12 weeks from the issue of the construction certificate.

The first modification of the consent

1. An application to modify the consent was lodged by Sell & Parker on 4 October 2016 (MOD 1), which sought changes to the site plan. It was granted by the Minister, but that determination was the subject of an appeal to the Court.
2. On 28 September 2017, FRNSW wrote to Sell & Parker confirming that it had reviewed plans including Fire Services Plans FH-01 and FH-03 dated 25 September 2017 and stated that: "Based on our review, we advise that in relation to the fire water tanks, pumpsets and fire system boosters, the proposed revised locations, as documented in the submitted drawings, meet FRNSW requirements."
3. On 19 October 2017, the development consent was modified by a decision of the Court following an agreement reached by the parties at a conciliation conference on 19 September and 17 October 2017. The Fire Services Plan FH-01 (Rev P4) was one the plans approved by the modification.
4. The modification resulted in the imposition of a number of new conditions of development consent, including a condition requiring the installation of a sprinkler system and a smoke detection system in the floc storage area in Building C, as well as condition B35B as follows: "Prior to: (i) expanded operations; (ii) the issue of an Occupation Certificate; or (iii) the date being 7 months after the determination of MOD 1 by the Land and Environment Court, (whichever is sooner), the Applicant must ensure that all fire safety measures required by the NCC for Buildings A, B, & C (as shown on drawing 14023-16-001-FH-01 Rev P4) have been installed and verified through a Fire Safety Audit in accordance with Australian Standard 4655 - Fire Safety Audits, to the satisfaction of FRNSW."
5. The site plans approved by the modified development consent, with which Sell & Parker were required to comply, depicted the general location of stockpiles, without particularisation of their size and precise locations.

Further fire protection measures are reported

1. A Fire Protection Measures Report (FPMR) was prepared on behalf of Sell & Parker to satisfy conditions B35 and B35B, and is dated 17 October 2017. That report sets out in detail the fire protection measures in place at the site.
2. On 23 October 2017, Sell & Parker provided a revised TFRMIP to the Department to address a number of fire-related queries. It contained the revised Fire Services Plan FH-01 (Rev P4) which had the approval of both FRNSW and Sydney Water, and which was also approved by MOD 1. There was no change to the Interim Stockpile Plan and the First Final Stockpile Plan, however the timeframe for implementation of the Final Stockpile Plan was changed to 'within 6 months of the issue of a Construction Certificate'.

The second fire safety order is issued

1. On 18 January 2018, the Department issued a fire safety order which required implementation of the TFRMIP dated October 2017 and the FPMR. By doing so, it required, and therefore authorised, the implementation of the Interim Stockpile Plan and the First Final Stockpile Plan.
2. In accordance with the former s 121O of the EPA Act (now Sch 5 cl 29), a person who carries out work in compliance with an order issued under s 121B is not required to make an application for development consent to carry out that work.

FRNSW is satisfied of the fire protection measures

1. On 27 March 2018, the Applicant's consultant prepared a Fire Safety Audit Report for Buildings A, B and C. The audit findings are that the fire safety measures required by the National Construction Code for Buildings A, B and C have been installed and verified in accordance with the applicable Australian Standard requirements.
2. Consistent with what was required by condition B35B (imposed by MOD 1), on 28 March 2018 FRNSW advised that it was satisfied that all fire safety measures required by the National Construction Code had been installed and verified through a fire safety audit conducted in accordance with the relevant standard. Specifically, FRNSW concluded: "Fire & Rescue NSW (FRNSW) have reviewed the above documentation and we advise that we are satisfied that all fire safety measures required by the National Construction Code (NCC) for buildings A, B and C (as shown on drawing 14023-16-001-FH-01 Rev P6) have been installed and verified through a Fire Safety Audit in accordance with Australian Standard AS 4655 - Fire Safety Audits."

The second fire safety order is modified

1. The Department received correspondence from MJ Harvey & Associated Pty Ltd on 24 and 25 July 2018, which requested, on behalf of Sell & Parker, an extension of the time for compliance with term number 2 of the second fire safety order on the basis that there was a delay in the arrival of a new pre-shredder machine on the site. The correspondence also included a Revision B Stockpile Plan, which amended a number of the stockpiles on the site and which was to be implemented before the First Final Stockpile Plan.
2. By letter dated 27 July 2018, the delegate of the Minister for Planning modified the second fire safety order to allow the extension for the period of compliance with term number 2 and to allow the Revision B Stockpile Plan to be implemented from 31 July 2018.
3. The letter also stated that: "FRNSW reviewed the Proposed Stockpile Plan B along with the s121B Order and, based on the information provided, did not have any undue concerns regarding the requested extension of the period for compliance with Term Number 2 of the s121B Order."
4. The time for implementation of the First Final Stockpile plan was further extended on 15 October 2018 until February 2019, which leaves the Revision B Stockpile Plan as the interim plan required to be complied with as part of the second fire safety order.

The third modification application

1. A second modification application (MOD 2) was granted on 26 February 2018 for a number of design changes.
2. In February 2019, MOD 3 was lodged with the Minister. The application was made pursuant to s 4.55(1A) of the EPA Act, which permits a modification only if the consent authority is satisfied that the "proposed modification is of minimal environmental impact".
3. The purpose and scope of MOD 3 is set out in sections 3 and 4 of the application report prepared by Arcadis dated 11 February 2019 (Arcadis report). The purpose of MOD 3 is described as: "…to improve the operational efficiency, including improving safety and environmental performance of the Site. The modifications are required to respond to market and policy changes in the waste recycling industry."
4. The site plan for which approval was sought, Drawing A101 Issue D dated 29 January 2019, is the first plan in Appendix B to the Arcadis report (MOD 3 site plan).
5. Amongst the works for which approval was sought was the relocation of the pre-shredder "from the approved location further south west, to the area identified as the 'hand unload area'", which was approximately 70m to the south-west of the approved location. In section 4.2 the built form alterations are described, and include fire infrastructure described as follows: "New fire infrastructure would be installed to assist the Site in meeting the requirements of the fire order. New infrastructure would include the provision of pipes, tanks, hydrants and water cannons in accordance with the fire design in Appendix C."
6. The fire design in Appendix C contained a revised design for the fire infrastructure, which differed from that in Drawing 14023-16-001-FH-01 Rev P4 (which formed part of the approved MOD1 documents and the revised TFRMIP, and was incorporated in the second fire safety order). The changes are shown in clouded red marking on Drawing 14023-16-001-FH-01 Rev P7 (MOD 3 fire services plan), and are confined to the addition of water cannons in the location to which the pre-shredder was to be moved, and additional cannons where the existing shear was to be converted.
7. That is, the only change to fire infrastructure as part of MOD 3 was these changes to cannon locations, including additional cannons.
8. The Arcadis report included a Revision C Stockpile Plan as part of the engineering plans. Non-combustible stockpiles were not shown on the plan.

FRNSW response to the modification application

1. On 16 April 2019, FRNSW made a submission in response to MOD 3, and confirmed that it had reviewed the application and was "satisfied with the fire safety measures proposed".

The assessment of the modification application

1. On 29 May 2019, the Department produced an Assessment Report in respect of MOD 3. It described the modification application as seeking approval for: "• increase in height of an awning and enclosing of new processing plant • erection of new fencing and signage along Tattersall Road and at the entrance to the site • installation of additional offices and amenities • changes to plant including conversion of an existing shear, realignment of the overhead conveyor and relocation of the pre-shedder • increase in operational hours for cleaning and maintenance • administrative changes for the discharge of wastewater"
2. The Assessment Report describes the fire safety orders, and the requirement for Sell & Parker to implement the TFRMIP. It then describes the works undertaken in compliance with the fire safety order, and provides that the relocation of the approved pre-shredder is an outstanding aspect of the second fire order. Specifically, the report states: "To date the Applicant has undertaken a number of works on the site to comply with this Fire Order, including: installation of new sprinkler systems, thermal cameras, and installation of smoke detection systems within the floc Storage area (Building C). However, there are some outstanding aspects of the Fire Order which form part of this modification, specifically, the relocation of the approved pre-shredder. To address this the Applicant has provided an updated site plan showing the location of the approved pre-shredder. As such, the proposed modification will facilitate compliance with the fire order."
3. In considering the scope of the proposed modification, the Assessment Report records the finding that the modification is of minimal environmental impact, and sets out the following: "The Department has reviewed the scope of the modification application and considers that the application can be characterised as a modification involving minimal environmental impacts as the modification: • would not change the approved maximum throughput of the site (350,000 tpa) • would not significantly increase the environmental impacts of the modification as approved • is substantially the same development as originally approved • any potential environmental impacts would be minimal and appropriately managed through the existing or modified conditions of consent. Therefore, the Department is satisfied the proposed modification is within the scope of section 4.55(1A) of the EP&A Act and does not constitute a new development application."
4. Part 6 of the Assessment Report sets out the assessment of the impacts of the modification application, consistent with the matters for consideration required by s 4.55(3) of the EPA Act. The findings with respect to consideration of the fire safety issues are as follows: "• Altering the layout and built form of the development has the potential to impact or alter the required fire safety measure to be implemented at the facility. • Aspects of this modification, such as the relocation of the approved pre-shredder, are required to enable the Applicant to meet the requirements of the Fire Order. • The Applicant noted that the majority of the fire engineering solutions have been implemented on-site to the satisfaction of FRNSW. • The Applicant provided a copy of the fire engineering plans with the modification application. However, the location of stockpiles in the plan do not align with the site plans for the proposed modification. • The Department raised concerns that the plans were inconsistent and identified that this would need to be addressed through the inclusion of relevant conditions. • FRNSW were satisfied with the fire safety measures as implemented thus far and through the finalization of the Fire Order were confident the site would have adequate fire safety measures. • The Department requires that revised stockpile plans are submitted to the Secretary for approval prior to commencement of operation of the relocated pre-shredder. • The Department's assessment concludes that the modification would ensure the Fire Order can be met, and fire safety is prioritised by the Applicant and any future fires can be managed and extinguished more effectively by FRNSW."
5. Consistent with points 5 and 7 above, a condition was recommended to "Require the Applicant to submit a final stockpile plan prior to operation of the relocated pre-shredder." This recommended condition is what is found in condition B35D. No other condition was recommended in relation to fire safety.

Notice of Determination

1. The notice of determination was given by letter dated 30 May 2019.
2. At the time of the determination of MOD 3 on 29 May 2019, cl 122 of the Environmental Planning and Assessment Regulation 2000 provided: 122 Notice of determination of application to modify development consent (1) Notice in writing of the determination of an application for the modification of a development consent must be given to the applicant as soon as practicable after the determination is made. (1A) A notice of determination of an application granted for the modification of a development consent must include a copy of any relevant plans endorsed by the consent authority. (2) If the determination is made subject to conditions or by refusing the application, the notice: (a) must indicate the consent authority's reasons for the imposition of the conditions or the refusal, and (b) must specify any right of the applicant to seek a review or make an appeal against the determination under the Act.
3. The notice of determination states that the reasons for the imposition of conditions are those contained in the assessment report.
4. Schedule 2 of MOD 3 sets out the conditions of consent that are modified, and includes the insertion of condition B35D. Additionally, Schedule 2 inserts a new definition of "Modification assessments" in the conditions of consent, which includes: "Modification Application SSD 5041 MOD 3 and accompanying document titled Section 4.55(1A) Application (SSD 5041 - Mod 3), 23-43 and 45 Tattersall Road, Kings Park dated 11 February 2019 and Response to Submissions dated 4 April 2019 prepared by Arcadis Australia Pacific Pty Ltd".
5. Schedule 2 of MOD 3 also alters the condition A2 of SSD 5041 by inserting a new Condition A2 that requires Sell & Parker to carry out the development in accordance with, inter alia, the modification assessments.
6. This means that, in accordance with Condition A2 of the modified consent, Sell & Parker are required to carry out the development in accordance with the Arcadis report, which includes both the MOD 3 site plan and the Revision C Stockpile Plan, which are presently inconsistent.

The evidence on the appeal

1. Pursuant to r 31.19 of the Uniform Civil Procedure Rules 2005, leave was granted to the parties on 4 June 2021 to adduce expert evidence on "fire safety issues". Mr Michael Harvey, a hydraulic and fire protection consultant, was engaged by Sell & Parker and gave evidence in an individual expert report and in the joint report. Mr John Hawes, Superintendent with FRNSW, was engaged by the Secretary and gave evidence in an individual expert report and in the joint report with Mr Harvey.
2. Curiously, Mr Hawes did not prepare his individual expert report in response to the contentions in the proceedings that are relevant to his expertise, contrary to the usual practice and what is typically expected of experts in the Court. The submission advanced for the Secretary that "it is not the ordinary practice… to put legal contentions… directly to an expert in the expectation that they will respond to propositions contained therein" is plainly wrong in relation to merit appeals in Class 1 of the Court's jurisdiction, and in fact, it is absolutely the ordinary practice to do precisely that.
3. Further, Mr Hawes has not visited the site, and was not apprised of the regulation of the site or its fire safety measures. As such, his evidence, which is considered further below, provides limited assistance to the Court.
4. On the other hand, Mr Harvey has a long history as a consultant for the site for Sell & Parker, providing advice concerning fire safety measures. He has attended the site on multiple occasions and prepared the FPMR, the Fire Services Plans, the audit report that formed the basis of the FRNSW satisfaction referred to above at [33], and the various stockpile plans. He has an intimate knowledge of the site, and his evidence is that the Final Plan accurately depicts the location of the combustible stockpiles, and that there is no fire safety risk associated with the size and separation of stockpiles of non-combustible waste materials.
5. Evidence on the day-to-day operation of the site, including the processes in place at the site for receipt, inspection and sorting of incoming scrap metal streams, was given in the sworn witness statement of Mr Jordan Rodgers, who is the property and development manager. Although Mr Rodgers was sworn in for the purpose of giving concurrent oral evidence with Mr Harvey and Mr Hawes, his evidence was not tested in cross-examination.

Sell & Parker's position that the Final Plan is satisfactory

1. Broadly, Sell & Parker submits that the nature of MOD 3 and the extensive consideration of fire safety matters at the site on numerous occasions inform the ambit of condition B35D, and also provide context for and guide the Court's exercise of the discretion concerning whether it should be satisfied with the Final Plan.
2. It advances a number of grounds in support of its position that the Final Plan is satisfactory. It contends that condition B35D cannot be construed to exceed the power to impose conditions, which is confined to the post-approval satisfaction with respect to an ancillary aspect of the development, pursuant to s 4.17(2) of the EPA Act. Sell & Parker submits that to interpret the condition as requiring a complete revisiting and assessment of the operations of the facility and their fire safety would be to interpret the condition in a way which would be beyond power. Further, it submits that to interpret it in a way which would change the approved operations of the development would also be beyond power. Both of these submissions are supported by well-established case law authority: see Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 at [24]-[28] and Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at [95]-[96].
3. Sell & Parker submits that regard ought to be had to the purpose for imposing condition B35D, as recorded in the assessment report, which is to reconcile inconsistencies between the MOD 3 site plan and the stockpile plan, both of which formed part of the MOD 3 application and approval. In doing so, Sell & Parker says that it is clear that condition B35D seeks a Final Stockpile Plan that achieves consistency with the MOD 3 site plan.
4. Sell & Parker says that, in going beyond the intent of condition B35D, the Secretary is attempting to regulate the site unreasonably and impermissibly, contrary to the circumstances in which it was imposed. Specifically, Sell & Parker point to the fact that MOD 3 was made, accepted and determined under s 4.55(1A) as a modification of "minimal environmental impact", and that the Secretary cannot seek to regulate the fire safety of the site through a condition imposed under s 4.17(2) of the EPA Act.
5. Further, it submits that the guideline relied upon by the Secretary, the FRNSW Guideline - Fire Safety in Waste Facilities (the FRNSW Guideline) does not apply to non-combustible stockpiles, as set out in Part 3, which excludes the FRNSW Guideline from applying to "areas of" a waste facility that contain "less than 50m3 of combustible waste material". Sell & Parker therefore submits that the FRNSW Guideline does not apply to the area of the site that stores the non-combustible material, and that there is therefore no basis upon which the non-combustible stockpiles are required to be particularised in any detail, other than to show the general location where non-combustible material can be stored.
6. Sell & Parker points out that, in accordance with the decision of the Chief Judge in Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [35], the past fires on the site are irrelevant and it is irrelevant to enquire whether the site will operate unlawfully in the future.
7. Sell & Parker also submit that the Court ought to prefer Mr Harvey's evidence that there is no fire risk associated with the non-combustible stockpiles or with the manner in which the combustible stockpiles are shown on the Final Plan. It points out that Mr Hawes' evidence was not responsive to the contentions, and was based on a limited understanding of the matters applicable to the site. In particular, Mr Hawes has not visited the site, took no account of the nature of the operations on the site, and was not briefed with any of the relevant documents, including the past approvals and fire safety orders. In contrast, Sell & Parker says that Mr Harvey is very familiar with the site and its operation, having designed the key fire safety measures in place at the site. Sell & Parker rely on the evidence of Mr Harvey that the areas where non-combustible material is stored, including the lead-acid batteries, do not pose a fire risk, and that the types of materials stored there are sufficiently separated from the combustible materials stockpile area and there is no fire safety reason to include any detail of them on the Final Plan. On his evidence, the Final Plan is adequate.

The Secretary's position that the Final Plan is inadequate

1. The Secretary, in the Amended Statement of Facts and Contentions, contends that the Final Plan is "inaccurate or incomplete" and provides a number of particulars in support. Largely, those particulars relate to the Final Plan not showing particulars of non-combustible stockpiles or of "waste and used lead acid batteries", and not complying with the FRNSW Guideline.
2. In support of this contention, the Secretary submits that the deficiency of information on the Final Plan compromises the ability of the Secretary to ensure that it reflects the operational realities of the site, and to assess the site from a fire safety perspective. The Secretary submits that the purpose of stockpile plan is to allow for a proper review and assessment of the fire safety risks associated with a site, and that the Final Plan does not achieve this.
3. In advancing this position, the Secretary submits that condition B35D reposes a wide discretion, with the only constraint on that power the terms of the condition itself and the general principles of administrative law. It submits that s 32 of the Interpretation Act 1987 cannot operate to "read down" the condition, but instead that the condition should be approached with a degree of flexibility, as expressed by the Court of Appeal in Scott v Wollongong City Council [1992] NSWCA 227 in the following way (at 8, per Samuels JA): "Moreover, in my view the attachment of conditions of this kind, which leave final details to be settled, should be approached with the degree of flexibility indicated, for example, by Pape J in Weigall Constructions Pty Ltd v Melbourne and Metropolitan Board of Works (1972) 30 LGRA 333. If I may quote the words of Barwick CJ in a somewhat different context in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437: - "No narrow or pedantic approach is warranted."
4. The Secretary also submits that the power of a consent authority to impose a condition of consent and the scope of those powers are not relevant in the present proceedings, as they would only be relevant in proceedings where the validity of the condition is in issue. The Secretary argues that the exercise of the discretion conferred by the condition would not fundamentally alter the development, and says that each of the cases relied upon by Sell & Parker do not have relevance as they relate to the validity of the condition, which is not in question in the present proceedings.
5. In support of its position, the Secretary relies on the evidence of Mr Hawes that the information it seeks is required, and submits that the objectivity and independence of the evidence of Mr Harvey ought to be called into question on the basis that he has been retained by Sell & Parker for at least 7 years.
6. The Secretary argues that the Final Plan is drafted in a way that would allow the site to operate in an uncontrolled manner and to avoid the compliance regime imposed on all other waste facilities. It says that the purpose of a stockpile plan goes beyond fire safety, and is required for the proper assessment of access to external doors, movement through the buildings by operational staff and emergency services, and whether there is sufficient space for waste processing. The Secretary says that the Final Plan needs to depict how the site is laid out, how it can be traversed, and how access can be obtained, for the purpose of planning an incident response. The Secretary submits that without doing so, the site cannot be properly assessed from a fire safety perspective.
7. The Secretary submits that the FRNSW Guideline applies to both the combustible and non-combustible stockpiles on the site, and that the locations of each non-combustible stockpile should be shown with the maximum height, type of waste, and dimension depicted. The Secretary also submits that the Final Plan does not comply with the FRNSW Guideline as the maximum height of combustible stockpiles is not limited to 4m, and the non-combustible stockpiles are not shown.

The Final Plan is satisfactory

1. In exercising the function of the Secretary pursuant to s 39(2) of the LEC Act, it is necessary to determine how condition B35D ought to be interpreted and understood, and to then make a decision as to whether I reach the "satisfaction" required therein. In doing so, I accept Sell & Parker's position that the Final Plan is satisfactory. Fundamentally, the Secretary's case is founded upon a misapprehension as to the purpose and scope of condition B35D. The condition requires some interpretation so as to understand the nature of the "satisfaction" required. However, it cannot be interpreted so as to allow a deferred assessment of the fire safety issues, and was instead imposed to allow Sell & Parker to submit a stockpile plan with final details that are consistent with the MOD 3 site plan. Further, there is no basis upon which additional particularisation of any of the stockpiles is required. I reach these conclusions for the following reasons.
2. Firstly, the modified consent must be construed in the same way as an instrument, "so that its validity is preserved and uncertainty avoided" (Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [40]). This means that where various interpretations of a condition are available, an interpretation that is within the scope of the power conferred by the EPA Act for the imposition of conditions ought to be preferred over one that is outside that scope. Further, in understanding the condition, the Court can have regard to the objective circumstances surrounding its imposition (Westfield Management Ltd v Perpetual Trustee Company Ltd at [41]).
3. The Secretary's case is founded upon an interpretation of condition B35D that would allow it to assess, or reassess, the fire safety issues associated with the operation of the site. That construction is not open to the Secretary or to the Court on appeal, either as a matter of law, or on the facts before the Court.
4. As submitted by Sell & Parker, to interpret the condition as requiring a complete revisiting and assessment of the operations of the facility and their fire safety would be to interpret the condition in a way that would be beyond power. A condition that demonstrates that a consent authority has deferred for later consideration a matter that is mandatory in assessing a development application means that the consent authority has not discharged its duty and the consent is liable to be set aside (King v Great Lakes Shire Council (1986) 58 LGRA 366 at 385; Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGRA 79 at 89; Weal v Bathurst City Council (2000) 111 LGERA 181 at [96]), and a condition that reserves the right for future assessment is clearly ultra vires as it results in a lack of finality in the consent (Jungar Holdings Pty Ltd v Eurobodalla Shire Council at 89).
5. The assessment of MOD 3 required consideration of the impacts of the development as modified, pursuant to s 4.55(3) and s 4.15(1)(b) of the EPA Act. Specifically, s 4.55(3) made it mandatory for the Minister to "take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application", and s 4.15(1)(b) therefore made it mandatory to consider "the likely impacts of that development, including environmental impacts on both the natural and built environments". This assessment of "likely impacts" includes an assessment of the impacts of MOD 3 on the fire safety of the site. If the Minister deferred this consideration by the imposition of condition B35D (which is not contended), then the grant of the modification application would not be a proper discharge of the Minister's duty and would be invalid. As stated by Hemmings J in Jungar Holdings Pty Ltd v Eurobodalla Shire Council in relation to a grant of consent, "A development consent subject to the above conditions, in my opinion, is not the granting of a consent at all" (at 89). Alternatively, if the imposition of condition B35D was for the purpose of reserving the right for future assessment of the fire safety issues, as contended by the Secretary, it is ultra vires and null and void (Jungar Holdings Pty Ltd v Eurobodalla Shire Council at 89; Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGERA 13 at 16), and if not severable, it could render the modification of the consent invalid (Randwick Municipal Council v Pacific-Seven Pty Ltd at 19-20).
6. I accept the submission of Sell & Parker that condition B35D ought not be interpreted in a way that would render it, or the grant of the modification, invalid. The interpretation of the condition advanced by the Secretary, which is that it allowed MOD 3 to happen "whilst deferring to later the proper consideration" and that "further particularisation is required" so that the Final Plan "can be adequately assessed from a fire safety perspective" (Submissions filed 20 August 2021, par 82) is an interpretation that would allow the condition to defer the assessment of fire safety. This goes beyond a condition which leaves "final details to be settled" (Scott v Wollongong City Council at 6) in accordance with the power to impose the condition, and falls squarely within what the case law describes as a condition that is ultra vires, and could render the modification of the consent invalid if not considered to be severable. The submission of the Secretary that the case law on the validity of conditions of consent is not relevant to the interpretation of condition B35D cannot be sustained. Where another construction of the condition is available on the facts and within the power for its imposition, it would be farcical for the Court to interpret the condition in a manner that the case law clearly establishes would render the condition ultra vires or the grant of the modification a nullity.
7. Similarly, the facts do not support the interpretation advanced by the Secretary that the condition was imposed to defer the assessment of fire safety. The impact of MOD 3 on the fire safety of the site was clearly assessed by the Minister. A record of that assessment is found in the assessment report and is extracted above at [51]. On finding that the fire safety was acceptable, the Minister had the power to impose a condition on the grant of the modification application, pursuant to s 4.17(2) of the EPA Act: (2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.
8. This power applies to the modification of a consent under s 4.55 of the EPA Act (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 at 475-476 and 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [41]). Such conditions can "provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed" (Scott v Wollongong City Council at 6).
9. As set out below, condition B35D can be construed in a manner that is consistent with this power and so as not to exceed this power, consistent with the applicable principles articulated by the Court of Appeal in Westfield Management Ltd v Perpetual Trustee Company Ltd. This interpretation should be preferred over an interpretation that exceeds this power and would render the condition ultra vires, or could render the grant of the modification application invalid.
10. In interpreting the condition, the Court can have regard to the reasons for imposing the condition. As set out by Hodgson JA in Westfield Management Ltd v Perpetual Trustee Company Ltd (at [40]-[41]): "40 In my opinion, the question of interpretation should be approached on the principles referred to by Mr. Walker. Just as a contract should be construed, if possible, so that its validity is preserved and uncertainty avoided (see for example Meehan v. Jones (1982) 149 CLR 571 at 589, and Upper Hunter County District Council v. Australian Chilling & Freezing Co. Limited (1968) 118 CLR 429 at 436-7), so also should instruments of this kind. Plainly, the Council intended to achieve something substantive by condition 56, and it should be construed if possible so as to give effect to that intention. 41 Another principle to be kept in mind in construing the condition is that a development consent is a document in rem, so that communications between the parties do not form part of the matrix relevant to construction: House of Peace Pty. Limited v. Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [23] and [27]. However, the Court can have regard to objective circumstances, including the physical circumstances, the plans accompanying the development application, and matters relating to title."
11. Condition B35D should similarly be construed to give effect to the intention of the Minister. In accordance with the Notice of Determination, the reasons for imposing the conditions are recorded in the assessment report. In the consideration of the fire safety issues, there were three matters advanced that were relevant to the imposition of condition B35D: "• The Applicant provided a copy of the fire engineering plans with the modification application. However, the location of stockpiles in the plan do not align with the site plans for the proposed modification. • The Department raised concerns that the plans were inconsistent and identified that this would need to be addressed through the inclusion of relevant conditions. … • The Department requires that revised stockpile plans are submitted to the Secretary for approval prior to commencement of operation of the relocated pre-shredder."
12. There are no other reasons advanced for the imposition of the condition. The other points made within the assessment of fire safety (recorded above at [51]) relate to the Minister's assessment of the modification application on the fire safety of the site, and there is no nexus between those other points and the imposition of condition B35D. No other deficiencies in the plans were identified in the assessment report or in any other documents that formed part of MOD 3. The correspondence following the grant of MOD 3 is not relevant to the interpretation of condition B35D.
13. Accordingly, the "satisfaction" required by B35D relates to the concern raised by the Department "that the plans were inconsistent". The inconsistency that arose related to "the location of stockpiles". It is clear, therefore, that the word "satisfaction" in condition B35D relates to ensuring that there is a stockpile plan that is consistent with the MOD 3 site plan and the MOD 3 fire services plan.
14. This interpretation is not only clear from the reasons given in the assessment report, but also based on the history of the site. The words "Final Stockpile Plan", which are used in B35D, are not defined in the modified consent but originated from the use of the same phrase in the TFRMIP and revised TFRMIP, with which Sell & Parker is required to comply by virtue of the second fire safety order. Without there being a Final Stockpile Plan consistent with what is approved in MOD 3, Sell & Parker would be in a position where it had a modified consent to enable it to move the pre-shredder but would be also be bound to comply with an inconsistent Final Stockpile Plan by the second fire safety order. This is also why it was logical for condition B35D to require the satisfaction "Prior to the commencement of operation of the relocated pre-shredder" (I note that an inconsistency between MOD 3 and the second fire safety order will remain until the latter is further amended).
15. Comparing the Revision C Stockpile Plan, which was submitted with and approved by MOD 3, with the MOD 3 site plan and MOD 3 fire services plan, the inconsistency is that the location of a number of the stockpiles in the western portion of the site encroached on site infrastructure, namely a metal shed and clearance around the pre-shredder. In addition, there is some site infrastructure shown on the MOD 3 site plan that was not shown on the Revision C Stockpile Plan.
16. Condition B35D is therefore properly interpreted as requiring satisfaction that there is a Final Stockpile Plan that is consistent with the MOD 3 site plan and the MOD 3 fire services plan. This is within the power to impose a condition pursuant to s 4.17(2) of the EPA Act, as it is a matter of detail to be settled that is ancillary to the core purpose of the development and its modification.
17. Secondly, the FRNSW Guideline relied upon by the Secretary does not require particularisation of the non-combustible stockpiles on a Final Stockpile Plan. I accept the submission of Sell & Parker that the FRNSW Guideline does not apply to the non-combustible stockpiles. This much is clear from Part 3, which specifies what the FRNSW Guideline applies to. In Part 3, it is clearly stated that: "This guideline applies to any waste facility within NSW involved in the storage, processing or resource recovery of combustible waste material. … This guideline does not apply to any waste facility, or areas of, that are being used for: … d) hazardous chemicals or special waste treatment (e.g. waste tyres), or e) less than 50m3 of combustible waste material."
18. The use of the words "or areas of" in the chapeau to what the FRNSW Guideline does not apply to, make it clear that it does not apply to areas of the site that are being used for less than 50m3 of combustible waste material. This, by extension, clearly means that the FRNSW Guideline does not apply to areas where there are stockpiles of non-combustible materials. There is no requirement that can be found in the FRNSW Guideline that would create a necessity to show particulars of the storage of materials to which it does not apply.
19. None of the arguments advanced on behalf of the Secretary persuade me otherwise. The note below clause 8.2.1, which is relied upon by the Secretary, is clearly a sub-point to clause 8.2.1 such that the reference to "all stockpiles" relates only to those stockpiles referred to in clause 8.2.1 proper. Further, the requirements of stockpiles, outlined in Part 8 of the FRNSW Guideline, clearly relate to the requirements for stockpiles of combustible materials, given the limitation in Part 3 of the FRNSW Guideline and the statement in clause 8.1.3 which concerns all of Part 8: "This whole section addresses the operation and management of a waste facility to ensure the fire hazard from combustible waste material fire is controlled".
20. Even in the requirements for an "Operations Plan" in clause 8.6 of the FRNSW Guideline (which is distinct from a stockpile plan), the requirements are directed to combustible waste.
21. Therefore, the FRNSW Guideline does not provide a basis upon which additional particularisation of the non-combustible stockpiles is required and the shading in blue on the Final Plan in order to show where non-combustible material can be stored is satisfactory.
22. Thirdly, there is no other basis upon which additional particularisation of the non-combustible stockpiles is required. The Secretary relies on the evidence of Mr Hawes that there is a fire risk associated with the non-combustible stockpiles, and that non-combustible stockpiles must be shown so that "FRNSW can take all such measures for the protection and saving of life and property" during an incident (Ex 1 p 81). That evidence is not persuasive. The first reason that his evidence is not persuasive is that his opinion is not supported by knowledge of the site, its operations, the fire safety measures already in place and the MOD 3 site plan and fire services plan that govern its use. Mr Hawes has not been to the site, and, prior to forming his opinion, did not inform himself of its operation or how it is regulated through the modified consent and the fire safety orders. Without informing himself of these matters, no weight can be placed on his opinion as his opinion is not informed by the relevant facts. The Secretary's submission that none of these facts are relevant to his opinion on the Final Plan cannot be sustained. The requirement for a "Final Stockpile Plan" pre-dated condition B35D and originated in the TFRMIP and revised TFRMIP, and became the subject of the second fire safety order. It is one of a number of documents that regulate the operation of the site, including the MOD 3 site plan and the various iterations of the Fire Services Plan. These, therefore, are some of the documents that are relevant in informing an opinion as to what ought to be depicted on the Final Plan from a fire safety perspective. Further, attending the site and understanding its operations is similarly relevant in informing such an opinion. In cross-examination, Mr Hawes confirmed that, in forming his opinion, he had not had regard to any the historical documents, some of which were annexed to the individual joint report of Mr Harvey, and confirmed that: "I didn't believe that I needed to have a complete understanding of the whole of the background in this matter because my role was and I was purely asked to respond on the final stockpile plan as submitted". (Tcpt, 27 July 2021, p 66) Without Mr Hawes being properly informed of the site's operations, the MOD 3 site plan that governs its use, and the fire safety measures already in place (through both the modified consent and the fire safety orders), his opinion is of little assistance and is not persuasive.
23. The second reason that the evidence of Mr Hawes is not persuasive is that his opinion that a fire risk arises from the non-combustible stockpiles is based on there being combustible material in the non-combustible stockpiles. There are two problems with this forming the basis for his opinion. The first problem is that this presumes that Sell & Parker will store combustible material in non-combustible stockpiles, which would mean that it would not comply with the second fire safety order or the conditions of the modified development consent, the latter which requires that the development is carried out in accordance with the Arcadis report including the MOD 3 site plan and the Revision C Stockpile Plan. Such a presumption is contrary to the well-established principle, which is articulated in the decision of Preston CJ in Jonah Pty Limited v Pittwater Council that it is irrelevant to enquire as to whether the use will be carried out unlawfully. Robson J summarised this principle in TL & TL Tradings Pty Ltd v City of Parramatta Council [2019] NSWLEC 160 at [13]: "This principle, simply stated, is that "past unlawful use" is not relevant when determining whether consent should be granted or modified because it should be assumed that the party who enjoys the benefit of the consent will observe conditions imposed in (or attached to) a development consent."
24. Similarly, in considering any fire risk associated with a particular stockpile plan, it should be assumed that Sell & Parker will observe the conditions of the modified consent, including by ensuring that the development is carried out in accordance with the Arcadis report and associated plans, and with the Final Plan once the satisfaction required by condition B35D is met, which means that combustible material will not be stored in non-combustible stockpiles. Mr Hawes concedes that there is no fire risk or hazard that arises from non-combustible stockpiles if those stockpiles do not contain any combustible matter (Ex 1 p 81).
25. The second problem with Mr Hawes' opinion with respect to a fire risk from the non-combustible stockpiles is that it is contrary to the evidence on the way the site is managed. It is clear from the FPMR what each of the buildings on the site are, and what fire safety measures are in place for each building. It is also clear from the evidence of Mr Rodgers how the site operates with three types of incoming scrap metal streams for the materials received on site, with only one incoming stream, the light gauge ferrous (or black iron) containing combustible materials. This stream is processed to separate combustible material from the non-combustible, and any unprocessed light gauge ferrous is stored in combustible stockpiles (see Ex B, pars 5-26). The processes in place for the movement of incoming materials ensure that the incoming loads of materials are graded on arrival into one of the three streams before they are offloaded, and are quarantined if material is found that is not consistent with what they have been graded (see Ex B, par 27). The separation of combustible materials and non-combustible materials is clear from the everyday processes in place at the site, as set out in Mr Rodger's evidence.
26. This is why Mr Harvey was resolute in his opinion that combustible material would not be stored in non-combustible stockpiles, other than in a di minimis sense. I accept Mr Harvey's evidence in that respect.
27. I also accept the evidence of Mr Harvey with respect to the storage of lead acid batteries. The Secretary uses lead acid batteries as an example of hazardous goods that should be shown on the Final Plan. However, Mr Harvey's evidence is that used lead acid batteries are not considered to be combustible, which is supported by the Manufacturers Guidelines and the Worksafe Australia Material Safety Data Sheet. Mr Hawes agrees that they are non-combustible (Tcpt, 28 July 2021, p 15(22)). I note that Mr Hawes says that it would be desirable to have them shown on the Final Plan just in case some metal fell across the contacts (Tcpt, 28 July 2021, p 15(23)). However, in circumstances where the batteries are accepted to be non-combustible, where the FRNSW Guideline does not apply to areas that are used for non-combustible waste material or hazardous goods, and where Sell & Parker is required to comply with its environment protection licence with respect to the storage of lead products, Mr Hawes' desire is not sufficient to persuade me that they need to be shown on the Final Plan.
28. I do not accept the Secretary's submission that Mr Harvey's evidence is partial in any way. He has indicated that he is bound by the code of conduct, and his expert evidence gives a considered opinion based on established facts that he is well-apprised of. He has authored earlier reports, such as the FPMR, that include requirements for the site to undergo upgrades to achieve compliance with a number of different regulatory regimes. In the FPMR, he reported on matters that did not satisfy the appropriate standards. As such, he has a demonstrated history of objective evaluation of the fire safety of the site. His evidence is consistent with the evidence of the operation of the site given by Mr Rodgers, and there is no reason to doubt the integrity of his evidence.
29. Further, there is no evidence to support the submissions by the Secretary, which were advanced in support of contention 2(b) concerning non-combustible stockpiles, that the provision of details of non-combustible stockpiles "is normal and accepted practice in relation to waste facilities" (Submissions filed 20 August 2021, par 53), that the size of non-combustible stockpiles will change "the magnitude of the fire and the resources, containment measures required" (Submissions filed 20 August 2021, par 64), that the types of non-combustible waste are important as they "produce hazardous fumes and vapours" and that the information is needed to "assist responders conducting a risk assessment in the event of a fire" (Submissions filed 20 August 2021, par 66). None of these submissions are borne out by the evidence.
30. Fourthly, there is sufficient particularisation of combustible stockpiles on the Final Plan. Although the FRNSW Guideline specifies a maximum height for combustible stockpiles, Mr Hawes was unable to articulate any fire risk associated with stockpiles expressed as an average height and maximum volume, rather than as a maximum height. Further, in cross-examination, once Mr Hawes was made aware of the content of the MOD 3 fire services plan, he expressed that he was "comforted" by the fire protection measures in place for the combustible stockpiles. As such, there is no evidence of an additional fire risk associated with stockpiles expressed as a volume rather than a maximum height.
31. Fifthly, it is now agreed between the experts that the Final Plan provides adequate detail of the swept paths of articulated vehicles, such that there is reasonable access to the site during an emergency incident.
32. For those reasons, the Secretary has not established that any of the particulars in contention 2 render the Final Plan inaccurate or incomplete. I have reviewed the Final Plan and consider that it is consistent with the MOD 3 site plan, and with the MOD 3 fire services plan. It clearly particularises the location of the pre-shredder, the combustible stockpiles and the means of circulation and access. It is presented in a form that overlays the stockpile details on the details in the MOD 3 site plan so that the site infrastructure is now also shown. It also provides sufficient indication of the location for storage of non-combustible material. There is no basis upon which additional particularisation of the non-combustible stockpiles is required and that there is no evidence to support showing a maximum height of the combustible stockpiles in circumstances where the average height and maximum volume is clearly shown. Therefore, in exercising the functions of the Secretary on the appeal, I am satisfied with the Final Plan, as required by condition B35D.

Outcome of the appeal

1. The appeal should therefore be upheld, and orders made to confirm that the Court is satisfied with the Final Plan, for the purposes of condition B35D. I also note that the FRNSW has already expressed its satisfaction with the Final Plan.
2. The Court orders that: 1. The appeal is upheld. 2. The Court is satisfied with the Final Stockpile Plan Revision 02 dated 28 July 2021, attached to the Amended Class 1 Application, for the purposes of condition B35D of State Significant Development Consent 5041. 3. The exhibits are returned, except for Exhibits D and E. ………………………. J Gray Commissioner of the Court Final Stockpile Plan (1738102, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2021