HIS HONOUR: On 28 April 2015, The Next Generation Pty Ltd (the Applicant) lodged State Significant Development Application 6236 (the Application). The Application was lodged in conformity with the then applicable s 78A(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act), being an application to a consent authority for consent to carry out a development. There is no difference between that wording, as it applied in 2015, and the wording that now applies in the Dewey Decimal renumbered EP&A Act. Section 78A then required, in subs (8A), that a development application for State Significant Development (SSD) was to be accompanied by an Environmental Impact Statement (EIS) prepared by or on behalf of the Applicant in the form prescribed by the Environmental Planning & Assessment Regulation 2000 (the Regulation). Although that provision is no longer subs (8A) in the new numbered EP&A Act, the words are identical.
The proposal was for a waste-to-energy facility at Eastern Creek in the Blacktown local government area. During the course of the hearing before me, an air photo, which became Exhibit B, was tendered which enabled me to understand the site of the proposed development and its context.
As required, an EIS was lodged with the Application. Requirements applying in 2015, at the relevant time, for the preparations of an EIS were contained in Sch 2 to the Regulation, in its then form. The relevant parts of Sch 2 were in cll 2 and 3 and, with the exception of the minor change in the nomenclature from the Director General to the Planning Secretary in Sch 2, Pt 2, cl 3, there is no difference of any materiality; there being only different statutory references in the old compared to the new numbering provisions.
There is no suggestion that, at the time of lodgement of the Application and its accompanying EIS, those documents did not comply with the necessary statutory requirements.
In present terms, the EP&A Act provides in s 4.12 for the same provisions and that is an applicant may make an application to a consent authority for consent to carry out a development proposal. In the 2015 regime, there was the requirement to seek and respond to the Director General's requirements for what was necessary to be provided in the EIS. They have over the years commonly been referred to as DGRs. They now become more anthropocentrically focused as they become EARs. That, however is the only difference - the requirement to do both is maintained.
The matter fell to be determined after a considerable period of time by the now named Independent Planning Commission (the First Respondent). There is no need to set out, for the purposes of that with which I am dealing, the history of what appears to be the evolution of the proposal between 2015 and 9 July 2018, when the First Respondent determined the Application by refusal. It is sufficient to note that it changed, during the period between lodgement and determination, in matters that are not engaged for my consideration in these proceedings. On 14 January 2019, a Class 1 appeal was filed on behalf of the Applicant against the First Respondent's refusal of its proposed development.
The application with which I am dealing at this time is an Amended Notice of Motion filed on 16 January 2020, seeking leave to rely on amended plans and documents listed in an index to the Amended Notice of Motion. The index lists a large range of documents in seven folders. All of that material was tendered, becoming Exhibits C to J, in the proceedings before me.
It is also appropriate to note that, on 9 September 2019, Blacktown City Council (the Council) was joined following an application made for that purpose.
Ms Cowper's affidavit of 13 January 2020 sets out, at [8], the basis for that joinder:
8 On 9 September 2019, Blacktown City Council was joined under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) as the Second Respondent to the Proceedings to raise the following issues:
a. Security (or certainty) of the waste supply resource (feedstock) - and such being incompatible with the assumptions underlying the waste recycling policy, but which is necessary for the minimisation of environmental effects and potential adverse human health impacts;
b. A failure to consider alternative (and better suited) sites for the proposed EfW facility;
c. Deficiencies in the proposed processes to manage furnace ashes and constraints within the Sydney landfill systems to appropriately dispose of such;
d. Difficulties (due to the descriptions of the proposed facilities and processes) in suitably managing and controlling the presence in the feed of chlorinated plastics (which if incinerated will have unacceptable environmental and human health impacts);
e. Inappropriate proposed combustion temperatures in light of feedstock issues - with these interrelated concerns giving rise to potential and significant human health and environmental concerns;
f. The health risk assessment and methodology underpinning the SSD Application;
g. Uncertainty of the health impact data on which analyses of proposed impacts to the environment and human health are based;
h. Other potential health impacts from any approved EfW facility in this location, including social, mental, and emotional well-being;
i. Characterisation and permissibility of the SSD Application under SEPP 33;
j. The suitability of the Site;
k. Social acceptance of the EfW facility if approved in this location; and
l. Consistency of the SSD Application with the objects of the EP&A Act (including the promotion of the orderly and economic use and development of the land).
At the commencement of the hearing, Mr Tomasetti SC sought to be heard on the question of leave to amend, appearing for an entity named Jacfin, which is the owner of a substantial tract of land in the immediate vicinity of the development site. An issue arose, as Mr Tomasetti's client having been an objector during the relevant statutory period and having indicated that it wished to be heard on the appeal and having, as a consequence, rights under the provisions of s 8.12(3) of the EP&A Act, Jacfin sought to be heard as of right on the basis that the application for leave to amend constituted part of the hearing of the appeal against the refusal by the First Respondent.
As what some might regard as avoiding a vigorous contest as to whether or not that statutory interpretation was appropriate or not, I determined to invoke the power under s 38(2) of the Land and Environment Court Act 1979 (the Court Act), being a provision that permits me, being in Class 1, to inform myself on any matter in such manner as I think fit and appropriate and I permitted Mr Tomasetti to be heard on that basis without needing to determine whether he had a right to be heard.
As Mr Tomasetti's client was being heard, but had not yet become a party to the proceedings, Mr Tomasetti's client had no right to tender documents during the course of the proceedings. As there were matters to which he proposed to refer which included extracts from plans that are presently before the Court and plans that are part of the leave that is sought in this application as a matter of convenience, Mr Astill, counsel appearing for the Council, agreed to tender these documents.
As a result of that, four sets of plan extracts became Exhibits 21 to 24, they comprising comparative present and proposed extracts from the architectural plans and present and proposed extracts from the landscaping plans.
Other evidence in the proceedings, of a documentary nature, comprised:
correspondence arising out of the case management process being undertaken by the Senior Commissioner;
the air photo to which I have already referred;
two other documents of potential or actual relevance in the proceedings, they being Exhibit K which were the exhibited documents to Ms Cowper's affidavit of 16 January 2020; and
the revised project definition brief which had been specifically referred to as part of the material discussed in the submissions.
In addition, three affidavits were read on the application: the two affidavits of Ms Cowper to which I have made reference, and an affidavit of Ms Holm, who is a solicitor with the Department of Planning, Industry and Environment and who was acting in the matter on behalf of the First Respondent.
The power to amend arises from cl 55 of the Regulation, where reg 55(1) says:
A development application may be amended or varied by the Applicant but only with the agreement of the consent authority at any time before the application is determined.
Relevantly, for this purpose, the Court is the consent authority and, pursuant to s 39(2) of the Court Act, the Court stands, as is commonly referred to, "in the shoes of the consent authority", with s 39(2) making it clear that the Court has, on such an appeal, all the functions and discretions which the person or body, whose decision is the subject of the appeal, had in respect to the matter the subject of the appeal.
To the extent that there is any doubt as to whether or not that permits the Court to act as an amending authority (although it has been the practice over the years for that to occur) in the decision of Ku-ring-gai Council v Bunnings Property Pty Ltd [2019] NSWCA 28, his Honour, the Chief Judge of this Court, in delivering the leading judgment of the Court of Appeal, made it clear, at [151], that:
On the appeal, the Court may agree to an applicant amending or varying the development application at any time before the development application the subject of the appeal is determined by the Court.
Although there was some potentially contrary commentary by Basten JA, particularly commencing at [43] of that decision, his Honour was in the minority in that decision, as the decision of the Chief Judge of this Court was agreed to by the then President of the Court of Appeal.
I now propose to refer to a number of matters contained in Ms Cowper's affidavit of 13 January 2020, aspects which will be set out in the written judgment when it is prepared. At [6] of her affidavit, she describes, in short compass, the nature of the development that was refused by the Respondent. She does so in a number of items, as follows:
6 On 14 January 2019, the Applicant filed these Class 1 Proceedings appealing the First Respondent's actual refusal of State Significant Development Application no. SSD 6236 for the 'stage 1' construction and operation of an Energy from Waste (EfW) facility for the processing of 552,000 tonnes of waste per annum at Honeycomb Drive, Eastern Creek (the Site), including the construction of:
a. tipping hall and fuel storage;
b. waste bunker;
c. combustion line 1 and combustion line 2;
d. two independent boilers;
e. flue gas treatment systems;
f. stack;
g. turbine;
h. air cooled condenser;
i. associated auxillary equipment (including two emergency generators);
j. control room, workshop, office and amenties; and
k. laydown areas.
(the SSD Application).
She subsequently describes, at [12], the circumstances giving rise to the proposed amendments and the basis for the amendments:
12 The Applicant has made the amendments to the SSD Application in response to:
a. The First Respondent's Reasons for Refusal of the SSD Application (State Significant Development: Refusal of Development Application, dated 19 July 2018);
b. Objector comments and submissions made in respect of the SSD Application;
c. The First Respondent's Statement of Facts and Contentions filed 10 April 2019; and
d. The written submissions filed by the Second Respondent in support of its Notice of Motion for Joinder filed on 7 August 2019.
She describes, in [14] and [15], what is her understanding in [14] of the nature of the amended application, both as to changes of its fuel components and where those fuel components are to be understood by comparison to a facility in the United Kingdom:
14 The amended application proposes to:
a. Reduce the annual fuel throughput of the proposed EfW facility to a nominal 300,000 tonnes per annum, and encompass a broader range of fuel components to be more closely aligned to the Refuse Derived Fuel (RDF) currently used at the reference facility at Ferrybridge, United Kingdom.
b. Exclude the following materials from the RDF proposed to be accepted at the proposed EFW facility:
i. Asbestos;
ii. Contaminated soils;
iii. Chemicals and lead paint;
iv. Poly vinyl chloride (PVC) fittings;
v. Copper chrome arsenate (CCA) treated timber or lead painted timber;
vi. Metals, batteries and floc waste; and
vii. Medical waste
At [15], she sets out what she has been instructed by the Applicant's architect are the amendments to the plans for the proposed development:
15 I am instructed by the Applicant's architect, Mr Nick Tayler of Krikis Tayler, that the amended application has been reduced in scale to be a single line processing facility of approximately half the original proposed size and capacity. The proposed amendments include:
a. Retention of a single tipping hall across the northern extent of the building.
b. Fuel bunker component reduced from two to one.
c. Boiler hall component reduced from two to one.
d. Flue Gas Treatment Hall component reduced from two to one.
e. Turbine hall component reduced from two to one.
f. Air Cooled Condenser component reduced from two to one.
g. Remaining turbine hall and Air Cooled Condenser components relocated to west side of boiler hall and Flue Gas Treatment.
h. Relocation of transformers to west side of building.
i. Workshop relocated from east to west side and incorporated within tipping hall.
j. Introduction of Flue Ash treatment component at south-east corner of the building.
k. Removal of Bottom Ash silos to load truck pick-up for offsite treatment.
l. Introduction of free-standing Bottom Ash Process and storage building south of main building, linked to main building with conveyor.
m. Relocation of minor elements to be contained within main component enclosures.
n. Relocation and enlargement of administrative building to incorporate a visitor's centre at the north-west side of the main building.
o. Relocation of the car-parking area.
p. Realignment of circulation roadways in response to building configuration and access points.
She also comments, at [16], as follows:
I am informed by the Applicant and verily believe that the reduced size and scale of the building proposed to house the EFW facility will be designed so that it is not scalable and cannot be increased in size in the future.
I indicate that I am of the view that that is a matter of irrelevance in the present circumstances.
At [17] of her affidavit of 13 January 2020, she sets out what she understands from discussions with the Applicant's experts to be the revised environmental impact and improved community outcomes of the proposed amendments:
17 I have had discussions with the Applicant's experts (Clare Brown (town planner), Damon Roddis (air quality, noise, odour and ozone expert), Nick Tayler (architect) and Marc Stammbach (technology provider)), and verily believe, that the amended application will result in a reduced environmental impact and an improved community outcome for the SSD Application in the following respects:
a. A decrease in the size and scale of the proposed EfW facility, resulting in a facility more in keeping with the size and scale of the buildings in the surrounding industrial precinct.
b. A modified design exterior which befits the location.
c. A decrease in the fuel throughput from 554,000 to a nominal 300,000 tpa.
d. The addition of a Bottom Ash treatment facility. Bottom Ash generated from the combustion of fuel could potentially be treated for reuse in the construction industry or as cover material. Should the treated materials not be suitable for aggregate use, it would be disposed of at an appropriately licensed landfill.
e. The addition of a Flue Gas residue stabilisation process. This ensures that Flue Gas treatment residues from the Flue Gas treatment system will be combined onsite with cement (which then becomes concrete) in a sealed system. The addition of cement to the Flue Gas treatment residue stabilises and immobilises all contaminants allowing it to be handed and landfilled safely.
f. The introduction of significant quality assurance processed both on an offsite to ensure consistency of fuel composition and the exclusion of prohibited materials, include a Code of Conduct, contractual requirements and in-house inspection, audit and management processes.
g. The buffer before emission limits are anticipated to be exceeded will increase, compared to previous air assessment.
h. The air quality predictions (concentration and deposition data) are reduced.
i. The potential for adverse air quality impacts associated with the operation of the amended application are low, and lower still than the previous air quality assessment for the SSD Application - which also predicted compliance with all key air quality criteria.
j. It is anticipated that the operation of the proposed EfW facility will have no adverse impact on the local air environment in reference to odour.
It is my view that there are three matters that I am required to address for the purposes of this determination. They are as follows:
first, as a matter of fact, does the application fit within that which is permitted by the scope of amendment in reg 55;
second, if so, is there something arising out of the broader statutory framework concerning the EIS process which poses some jurisdictional barrier to me exercising the power to grant amendment, and
finally, if neither the first or the second matter stand as an impediment to the granting of leave to amend, should I, as a matter of the exercise of judicial discretion, refuse leave to grant the amendment.
I now turn to the question of factual matters in the reg 55 context.
First, it is clear that the Court has no jurisdiction to entertain an original development application. That matter was dealt with at [22] of Waite v Blacktown City Council [2004] NSWLEC 157 by Lloyd J. The commentary there arising is unexceptional. However, the final sentence of that paragraph is one where his Honour expresses the conclusion that the comparison which he was then required to undertake was one between the development application, as originally made, and the amendments that are now sought.
I do not accept that that is the appropriate proposition. I am satisfied that it is appropriate, as submitted by Mr Hemmings SC on behalf of the Applicant, at [10] of his written submissions, that the relevant comparison must be between the development application as formally determined and which resulted in the appeal being enlivened and acted upon, and the proposed amendment put forward. This would mean comparing the appeal application with the proposed amendment; the form of the application as originally lodged would not be relevant. Whilst I am proceeding on that basis, others may disagree with that proposition. However, proceeding on that more limited basis, it seems to me, does not alter the outcome of this application.
Mr Hemmings' written submissions then advanced, in [11], four propositions as to what was the appropriate and relevant enquiry to be made. They were:
1. Whether the development as proposed is the same as that originally proposed in the context of the characterisation of the overall concept and the surrounding circumstances of the application;
2. Whether essential elements are so altered in the context that they place the development in a different category for the purposes of assessment;
3. Whether acknowledging the changes to the form and sighting siting of a development could be necessary, the essence of the development remains the same, or that the fundamental nature is unchanged; and
4. Finally, whether the amendments are proposed to respond to contentions such that the use of the power is appropriate given its beneficial and facultative purpose.
Whilst there might be some argument as to the precise wording of those propositions, I am content to undertake my consideration of these matters on that basis.
Mr Astill's submissions, both written and oral, dominantly go to questions of power and discretion, the second and third aspects of what I earlier outlined. There is no need to contemplate those submissions unless and until the first matter is resolved in the Applicant's favour.
On the other hand, Mr Tomasetti dealt, at some considerable length, with matters of factual description and difference between that which was provided in the application presently before the Court and the matters that are the subject of the proposed amendment. The matters which he addressed can, in summary, be divided under four headings:
1. The first is the "project definition brief", a matter about which minor clarification was needed to be given to his written submissions during the course of the hearing;
2. Second, the nature of the amendments to the EIS;
3. Third, the amendments to the plans themselves; and
4. Fourth, to a range of amendments to other documents which are set out at pages 6 to 8 of Mr Tomasetti's written submissions:
The Air Quality and Greenhouse Report Amendments;
(gg) The Applicant proposes to replace the Air Quality and Greenhouse Gas Assessment dated 31 October 2016, currently before the Court with two separate documents being:
(i) Air Quality Impact Assessment dared 20 December 2019 (AQIA); and
(ii) Greenhouse Gas Assessment dated 20 December 2019 (GGA).
(hh) The GGA has changed to include far greater degree of detail so that it is a new assessment.
(ii) The AQIA has changed to such a degree that it is a new assessment.
The Ozone Report Amendments;
(jj) A change in levels NOx generated.
The Ozone Assessment Report dated 20 December 2019 states that NOx concentrations of 179 mg/m3 represent a best approach to tropospheric abatement. This represents a change from the Ozone Assessment Report dated 25 October 2015 (currently before the Court) which states that 120 mg/m3 of NOx represents a best practice approach to tropospheric abatement.
The Odour Impact Assessment Report Amendments;
(kk) The Odour Assessment Report dated 20 December 2019 (OAR) states that consideration has been given to Approved Methods for the Modelling and Assessment of Air Pollutants in NSW (NSW EPA, 2016) this is a change as the Odour Assessment Report dated 19 October 2015, currently before the Court, was prepared with reference to Approved Methods for the Modelling and Assessment of Air Pollutants in NSW (EPA, 2005).
(ll) The OAR has changed to include more detailed information reading the locations of sensitive receivers.
(mm) The OAR has been changed to include a new section which provides recommendations on plant management and mitigation. This was not included in the report before the Court.
(nn) The references cited by the OAR has increased by an order of magnitude.
The Noise and Vibration Report Amendments;
(oo) The Noise Impact Assessment dated 20 December 2019 (NIA), has identified that Jacfin's site is a sensitive receiver.
(pp) The NIA has included 'recent' noise monitoring data from 2015, 2016 and 2017 not before published and despite this data being available during the drafting of the Noise Impact Assessment before the Court.
(qq) The NIA contains changed sleep disturbance criteria, being results for Leq15min dB(A).
(rr) The NIA appears not to include any commentary on 'human comfort'.
(ss) The operational noise assessment has been changed to include mitigation considerations for project design (NIA p 29).
(tt) The operational noise levels and c-weighted noise levels predicted in the NIA have changed (NIA p 31-2).
(uu) The predicted maximum noise levels have changes (NIA p 33).
(vv) The NIA has changed to include commentary on 'Cumulative Impacts on Residential Receivers' and 'Cumulative Impacts in Eastern Creek Business Park' (NIA p 33).
(ww) The NIA has been changed to include mitigation measures and recommendations.
(xx) The input figures in respect of project generated traffic have changed (NIA p 36).
The Human Health Risk Assessment Report Amendments;
(yy) As set out below, the scenarios set out in the Human Health Risk Assessment dated 16 January 2020 (HHRA) prepared in support of the amended application have changed from to the Human Health Risk Assessment dated 28 September 2017 (Current HHRA).
(i) The description of the expected operation conditions has changed (HHRA p 30).
(ii) The description of the regulatory operating conditions has changed (HHRA p 31).
(iii) The description of the upset operating conditions has changed (HHRA p iv).
(iv) The HHRA does not appear to include a scenario titled 'Industrial Emissions Directive (IED) limits' (Current HHRA p 26).
(v) Scenario 4 'Diesel Generators' has changed as it is only addressing emissions from one diesel generator. This also represents a change in the Amended Application (HHRA p 32).
(zz) The HHRA has been changed to rely on a number of revised and amended data sources (HHRA p 17).
(aaa) The adopted stack parameters have been changed in the HHRA (HHRA p 20).
(bbb) The 'Grid Maximum Locations' have been changed in the HHRA (HHRA p 34).
(ccc) In addition a number of deposition rate changes, to Exposure Point Concentrations have changed to include dust deposit rates for HHRA (HHRA pp 57-58):
(i) beryllium;
(ii) molybdenum;
(iii) manganese;
(iv) silver;
(v) tin; and
(vi) TVOC (assessed as benzene).
(ddd) The conclusion in relation to scenario 2 has changed (HHRA pp 80).
The Traffic Impact Statement Amendments;
(eee) The traffic modelling has changed as per the Amended Traffic Impact Statement dated 20 December 2019 (Amended TIS). Changes include:
(i) 80 truck movements per day; and
(ii) 86 car movements per day.
(fff) The parking demand created by the proposed amendment has changed so that peak demand of 37 spaces will be required.
(ggg) With the changed internal road layout, the Amended TIS contains new swept path plans which do not resemble the swept paths before the Court.
(hhh) The SIDRA Data in the Amended TIS has changed and also includes phasing summaries and site layout diagrams which were not included in the application before the Court.
Toward the end of the hearing, I extended an invitation to Mr Hemmings to respond to the factual matters that were contained in pages 6 to 8 of Mr Tomasetti's submissions and I indicated that I was prepared to adjourn the matter until this morning to permit that to occur. Mr Hemmings did not accept my invitation.
In this context, it is appropriate to note that the terms of the Amended Notice of Motion expressly seek leave to rely on the amended plans and documents listed in the attached index. Those documents include, in at least the second part of Vol 2 and in Vols 3, 4, 5, 6 and 7, amended supporting documents. They were the subject of the matters that Mr Tomasetti pressed on pages 6 to 8 of his written submissions.
For abundant caution, for the present purposes, I propose to confine myself to considering the terms of the plans in the context of what was said by Talbot J in Ebsworth v Sutherland Shire Council [2005] NSWLEC 603, at [41], where his Honour discussed the necessity to deal with an underlying concept or idea and a comparison of the components that were the subject of that proposed development. That is consistent with the approach taken by Jagot J, in Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292, at [17], where her Honour reflected on the nature of the proposed development and what she considered to be its essence in those circumstances.
It is also appropriate to note, and a matter to which I will return later, that the broad scope of the amendment power in reg 55 has recently been addressed by Robson J in Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90 (Orico).
I now turn to matters that arise out of the plans. First, I observe that Mr Tomasetti took me to the landscape plans as presently before the Court, an extract of which was tendered and became Exhibit 23, and to an extract from the plans upon which it is sought to rely for the purposes of this amendment application, which became Exhibit 24.
I have closely examined the nature of the landscaping. Whilst there may be some minor differences in layout, particularly as a consequence of the proposed further extension of the road along the boundary of the site, I am satisfied that there are no changes to the proposed landscaping to warrant further commentary or consideration.
The same cannot be said with respect to the architectural plans to which I now turn.
There are three matters to which it is necessary to turn in the context of the architectural plans. The first arises out of the nature of what is shown on the plans filed with the Court and that which is expressly omitted from the plans that are now proposed, that constituting a conveyor underpass and an underpass and road link to the Genesis site that are adverted to in the present plans that are before the Court and which are entirely absent from the plans for which leave to amend is sought.
Whilst I have not had time, given the imperative of delivering this decision today, to go through the original of the EIS, which forms part of the Class 1 appeal papers (except to a limited extent to which I will later return) and the EIS upon which the revised plans are proposed to be founded, it is a reasonable interpretation that portion of the proposed fuel stock to be used under the present application before the Court was to be at least in part derived from properties to the west of the present proposed development that is before the Court. That, it seems to me, although not in itself a matter warranting refusal in any sense, is a matter which should be regarded by me as contributing to whether I should regard the matter as warranting refusal or not.
The second matter is the list of excluded materials that were proposed to be dealt with in the facility but which are now no longer proposed to be included. They are set out at 14 of Ms Cowper's affidavit of 13 January 2020:
b. Exclude the following materials from the RDF proposed to be accepted at the proposed EFW facility:
i. Asbestos;
ii. Contaminated soils;
iii. Chemicals and lead paint;
iv. Poly vinyl chloride (PVC) fittings;
v. Copper chrome arsenate (CCA) treated timber or lead painted timber;
vi. Metals, batteries and floc waste; and
vii. Medical waste
Of potentially greater significance than merely that which is excluded is the fact that the nature of the waste which is proposed to be dealt with in the facility varies in at least one significant respect from the waste stream proposed in the application that is currently before the Court. That can be seen from consideration of folios 58 and 59 of the Class 1 application, Vol 1 of 9 at Tab 4. That makes it clear, as is acknowledged in Ms Cowper's affidavit, that municipal organic waste is not proposed to be dealt with in the development that is presently before the Court.
However, in the amended EIS that forms part of the material upon which the Applicant now relies, which is Exhibit K, Tab 1; being a document which had been exhibited to Ms Cowper's affidavit of 16 January 2020, at folios 47 and 48, the revised EIS sets out both the nature of the waste that is proposed to be used, including, now, municipal organic outputs and what that might contribute to the fuel flow of the proposed development. On folio 48 of the amended EIS in Exhibit K (Appendix J) there appears the following:
Based upon the fuel availability listed above, a design fuel composition has been developed. This is based on typical values for each of the proposed fuels and an estimated fuel mix. Input fuel will always be mixed as part of the normal operational process to produce as homogenous an input as possible. The design fuel will be sourced from external license facilities as detailed in the TNG feedstock review.
Refer to appendix J.
Based on the design fuel compositions, NCV of the nominal design fuel mix is calculated to be 9.8 megajoules per kilogram. However, as the NCV of waste fuels varies depending on type, the facility will operate within a range of NCVs to support operational flexibility. Tables 8 and 9 illustrate two out of the many scenarios in which various percentage compositions are inputs to the refuse derived fuel produce the same energy output, but with different annual tonnages.
Refer to the project definition brief at Appendix Z.
It is unnecessary for these purposes for me to go to that document. However, Table 8 makes it clear that Stream 3 Municipal Organic Waste would comprise 29.29% of the fuel stream of the proposed development at 70,218 tonnes per annum. Under Table 9, the second composition of fuel scenario, Municipal Organic Waste would comprise 48.65% or 122,151 tonnes.
In no fashion could that be regarded as being insignificant or, in my assessment, consistent with the present essence of the application that is before the Court.
I now turn to the question of the physical design of the premises.
First, in the plans that are presently before the Court there is no building in the south‑eastern quadrant of the site. In the proposed plan, there is a very large covered building, many tens of metres long, that is proposed to be built at that point for purposes that are ones which involve, on my immediate reading of the plans, a transfer of functions out of what had been the primary proposed building into the new proposed building. It is more than a minor matter of amendment.
The next matter to which I turn is the question of the comparison with the built form. In the plans that are currently before the Court, I have plans ARKTA 1604 issue 3; ARKTA 1602 issue 3; ARKTA 1603 issue 3; and ARKTA 1601 revision 3, depictions of the external elevations of each side of the buildings. In the plans that are proposed to be relied upon, plans A201A; A202A; A203A; and A204A, I have the comparable elevations in the present proposed amended development.
It is not necessary for me to deal with them in detail. It is sufficient to note that the quite radical visual presentation changes between the two proposed developments cannot be explained merely by the change of scale of the present application. The presentation on each of the elevations is quite distinctly different and cannot, in any architectural typological sense, be said to be of the same essence as the present plans that are before the Court.
The next matter to which I turn is the question of flue ash handling. The present area in the plans that are before the Court for flue ash handling is set out on plan ARKTA1011 issue 5. It shows, on the eastern edge of the main building, an area that is perhaps 20 metres by 16 metres for ash handling. On the plans that are proposed to be relied upon, there are significant differences in what is proposed for ash handling.
Drawing A104 issue A shows that there is to be an extensively larger building at the southern end of the main building for flue ash processing. There was adverted to during the course of the submissions that it was at least, on my understanding, the position that cementation might take place of flue ash for its transport off site and disposal of in landfill.
The fact that that might occur is not a matter to which I pay heed in these circumstances, because I have been unable to find the precise references. However, I do note that there is a provision for a large cement silo in close proximity to the flue ash processing building and I have regard to it as a fact that is not represented on the present plans that are before the Court and therefore constitutes a change - one that is potentially of significance but to which I do not give significant weight in the circumstances.
In Orico Properties to which I have earlier referred, Robson J sets out, at 27, his reasons for reaching the conclusion with respect to that proposed development as to why he should not grant leave to it. It is appropriate to quote some of what his Honour wrote in that context and then to reflect on how it is applicable in this context. His Honour said:
I find that, in the circumstances, the changes are significant. Reliance upon descriptive nomenclature such as "essence", "overall concept", and/or "characterisation" whilst of some assistance, does not substitute for close consideration of the detail involved. I acknowledge that the manner in which the Court has approached applications for leave in similar circumstances, has relied upon such descriptors and I accept that the application of cl 55 must be undertaken in a manner that is both beneficial and facultative. However, the nature and extent of the changes now proposed are such that even adopting the well-understood principles frequently stated in earlier cases, I cannot find this new material, even in the context of the "characterisation of the overall concept", is such as to invite a grant of leave.
His Honour then considers, in 27, a number of matters relating to the particular "mixed use development" that is proposed and with which his Honour was dealing.
However, his Honour then says, relevant to the present context, that whilst those general descriptors:
are still able to be described as such in a general sense, in my view, comparison of the present plans and proposed plans shows that most of the essential elements, including the actual configuration of the buildings and relevantly to this process, associated internal and external changes are not insignificant (at 27).
I am satisfied that that reasoning, by analogy, is equally applicable in this matter.
As a consequence, I am satisfied that the proposed amendments are, as a matter of fact, so different as to constitute a development for which a fresh development application is required. There is, therefore, no need to consider the jurisdictional issues posed by the Council or whether substantial discretionary matters are engaged. The consequence ultimately is that the application must be refused.
The orders to the Court are:
1. Application for leave to amend the State Significant Development Application is refused;
2. The Notice of Motion is dismissed;
3. Costs are reserved; and
4. The exhibits are returned.
[2]
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Decision last updated: 27 February 2020