Walfertan Processors Pty Limited v Upper Hunter Shire Council & ors

Walfertan Processors Pty Limited v Upper Hunter Shire Council & ors - [2009] NSWLEC 1260 - NSWLEC 2009 case summary — Zoe

[110]

87 As a consequence of all this development application and related material, we are of the view that a number of factual observations should be made. These are as follows: o With respect to all of the development consents relating to on-site disposal of effluent, there is no specific condition of consent that incorporates conditions relating to the composition of the waste whether solid or liquid; o With respect to all of the development consents relating to on-site disposal of effluent, there is no specific condition of consent that incorporates conditions relating to dilutions rates of whatever might be within the waste; o With respect to all of the development consents relating to on-site disposal of effluent, there is no specific condition of consent that incorporates conditions precluding on-site disposal of solid waste and such on-site disposal of solids is, in fact, specifically diagrammatically depicted in the flow chart appended to the 1992 Statement of Environmental Effects; o The document entitled Volumes Requiring Irrigation in appendix 2 to the Statement of Environmental Effects accompanying the 1992 development application does not propose any limit on the volume of liquid effluent to be disposed of but, if it were read to be proposing a limit, postulates that the volume of liquid effluent capable of being disposed of safely on the site under then average rainfall conditions would be 2.75 times the volume proposed to be permitted under the present application. 88 As a consequence of these factual observations and what we have earlier discussed concerning the present operation of the tannery's effluent disposal process (ignoring Mantons), we are of the view that a number of conclusions can be drawn. These are: o First, the disposal of waste, solid and liquid, other than discharge of effluent to the sewer (at its most restrictive for the applicant and expressing no view as to whether this restriction actually applies or not) is unregulated by any relevant condition of development consent except for requirements contained in: v condition 2 of the 1983 consent concerning the amenity of the neighbourhood; v condition 3 of the 1983 consent requiring compliance with Department of Industrial Relations and Technology conditions (if imposed); v conditions 4 of the 1983 consent requiring a Clean Air Act licence and that any conditions of such a licence would form part of the consent; v condition 2 of the 1992 consent requiring submission of quarterly review statements on the operation of the effluent treatment system; and v condition 4 the 1992 consent requiring, in effect, a pollution reduction program acceptable to the EPA to be aimed at prevention of further degeneration of the irrigation area. EPA approval of this pollution reduction program was to be obtained prior to the release of the building application arising from this development consent. o Second, as a consequence of what is set out above, it is not possible to determine what would be the permitted environmental impacts of the existing or approved development except that the comparatively unrestricted nature of these conditions, to the extent that they might be valid, means that those environmental impacts are potentially significantly high as the degree of regulation and control provided by the conditions of development consent is very permissive. o Third, the absence of any certain relevant concentration, composition or volumetric restriction coupled with the limited present monitoring regime required by the EPA licence reinforces the second conclusion we have drawn above. o Fourth, if there is some volumetric restriction to be imputed from the 1992 development consent, this volumetric limit is at least 2.75 times the limit proposed to be conditioned for this application. o Fifth, the regime proposed by the conditions of consent as agreed to by the parties and as determined by us as discussed below is a significantly restrictive regime. o Sixth, the present effluent disposal activities of the applicant (ignoring Mantons) are unsatisfactory both in their impact on the surrounding community and their likely impact on the tannery's own land to the extent that this impact can be assumed given the unsatisfactory monitoring regime currently applying. o Finally, the regime proposed by the conditions to attach to a development consent arising from this application, although applying to different land areas to those subject of the presently approved effluent disposal activities of the applicant, is one that inevitably lead to a position where the development together with the additions or alterations will not only not significantly increase the environmental impacts of the total development that is presently approved but must, in our view, in fact, decrease the maximum potential environmental impacts necessarily inherent from the present approved development. 89 As a consequence, we have concluded that the applicant has the benefit of the exception in cl 35 without the need to rely on any development consent or entitlement of the abattoir. It therefore follows that an environmental impact statement is not required.

[131]

1.3 Approval by the council See earlier discussion 1A(a) Applicant Given the decision immediately below concerning the responsibilities of the audit team, the team leader does not need to be an accredited site auditor as no amendment is to be approved by the audit team. This arises because of the position we have determined that the Irrigation Management Plan should form part of the Environmental Management Plan and thus any amendments to it will need to be approved by the council. 1A(c) Neither position is adopted This provision is to read "review and make recommendations to the Council for approval of any amendment to the Irrigation Management Plan (IMP)." 1A Tannery land remains Unless there are some reason that the portions identified in this definition do not form part of the applicant's landholdings (if there be an error, this can be corrected pursuant to the slip rule), it is appropriate to identify, specifically, all possible land which could be the subject of effluent disposal and that would be the totality of the applicant's landholdings. 2.3 Respondents We understand that the purpose of this application is to provide a complete regime for the disposal of effluent on the Tannery land and thus the strict regime proposed by the respondents is appropriate. 4.1 Respondents This consent is intended to deal not only with effluent irrigation on the eastern irrigation area but also with the operation of the Rouchel Road dams. The applicant's alternative would permit different forms of effluent to be disposed of through the dams and we have no evidentiary basis to permit this to occur. 4.2 Respondents No reason is given for the removal of dealing with chemicals for which no material safety data sheet is available. There is no evidence that the proposed provision would breach any commercial confidentiality. 7.1 Respondents The measures proposed by the applicant are more appropriate to be dealt with through a modification application rather than an imprecise approval process specified in this condition of consent. 7.2 Applicant This provision is to be removed - we are also not aware of any evidence to support its inclusion and the respondents have not provided any reference to such evidence. 8.1(f) Applicant This provision is to be removed - we are also not aware of any evidence to support its inclusion and the respondents have not provided any reference to such evidence. 8.3(a) Respondents The applicant's proposed words are to be removed - we are also not aware of any evidence to support its inclusion and the applicant has not provided any reference to such evidence. 8.3(c) Applicant This provision is to be removed - we are also not aware of any evidence to support its inclusion and the respondents have not provided any reference to such evidence. 8.4 Respondents For the reasons given by the respondents. 11 Respondents We are satisfied that buffer areas are appropriate taking a precautionary approach to the consequences of failure of any of the provisions in the Environmental Management Plan. As we consider that buffer areas are appropriate and the applicant has not proposed any alternative to the conditions proposed by the respondents, the respondents' conditions are adopted. 12.4 Respondents The insertion of the words to establish the meteorological conditions under which spray drift must cease is the additional insertion from the joint expert report. However, the purpose of the experiments is to ensure that spray drift must be contained within the site boundary. It seems to us logical that, if this aspiration is to be met, the circumstances under which spray must cease must also be determined. That is clearly the intention of the respondents proposed condition 12.4 and it is to remain. 13 Respondents The applicant has given no reason why the requirements prohibiting off-site surface of groundwater flow of tannery effluent should be removed. It is appropriate to incorporate such a prohibition in conditions of consent so that there can be regulatory enforcement rather than leaving legal remedies for such failure to contain effluent on the site to affected private landholders. 16.3 Respondents The Irrigation Management Plan, as earlier made clear, is to be a subset of the Environmental Management Plan. As a consequence, amendments seeking to draw some distinction between them are ill founded. 18.6 Respondents The position proposed by the applicant is more appropriate to be dealt with through a modification application rather than an imprecise approval process specified in this condition of consent. The establishment and charter of the Committee should remain a function of the Council. These conditions should only prescribe the responsibilities of the applicant in its participation in the committee. There is no need for Schedule D as it potentially may lead to conflict if the council wishes to expand or otherwise modify the membership or role. Changes in the future should not require the agreement of the applicant but may be appropriate that the applicant should be consulted - however that is a matter properly for the council. 19.1 is to read:

[135]

1.1 Respondents If there is some valid reason why the Department of Environment and Climate Change proposes alternative monitoring locations to those agreed by the experts in these proceedings, it would be open to the applicant to lodge a modification application with the council to resolve that. For now, monitoring locations have been identified by the experts in these proceedings and, absent some good reason to do so, changing those locations should not be delegated to another body (no matter how expert it might be). Table 1 Respondents The precautionary approach is preferable. There will always be the opportunity for the applicant to seek to have a more permissive monitoring regime, by modification, if significant experience demonstrates that this might be appropriate. However, in the first instance, a precautionary approach dictates that more frequent monitoring is preferable until the appropriateness of some alteration to this frequency is demonstrated to be sufficient. 2.1 Respondents No reason has been demonstrated by the applicant why an automated system is neither appropriate nor possible. Automatic monitoring is preferable to some form of human inspection which will always be subject to the various vagaries of human frailty. 3.5(a) Respondents The words proposed to be omitted appear to be self-evidently the purpose for which the modelling is undertaken. The Environmental Management Plan is intended to be a comprehensive document and incorporate management of the eastern irrigation area. 3.5(d) Applicant and First respondent The proposal is contrary to the joint expert opinion, as we understand it. The purpose of the monitoring was specifically to enable the model to be developed as part of the preparation of the Environmental Management Plan. Other ongoing monitoring specified provides an appropriate operational regime. 5.3 Respondents The requirements of quality testing to be undertaken if groundwater is present during the monthly monitoring was agreed by the experts, on our reading of the relevant extracts from the joint expert reports. In particular, the trigger for testing in Condition 5(d) of Exhibit F, Tab 19, is the presence of water during the monthly monitoring. Court amendment:

[137]

9.1 (a) Chloride - monthly For clarity (b) Sodium - monthly (c) EC - weekly (d) pH - weekly (e) SAR - monthly (f) ANZECC criteria for irrigation H20 - monthly Court condition: 9.2 Reworded for clarity of intent - so that it is clear that the 90 % minimum performance criteria is meaningful and provides for an element of flexibility to allow for some inherent variations in effluent quality, while maintaining reasonable and obtainable standards. Each of the individual tannery effluent concentration values for the parameters listed in para 9.1 (a) to (f) above is to comply with the stated criteria for a minimum of 90 % of all tests for that value within a 12 month period. The 90 % minimum performance level relates to all the collated individual criteria values and not average values. Applicant plus Court amendment 9.3 For clarity and also because annual monitoring of the pH and N is consistent with the requirements of Table 2 - Soil Monitoring. Purpose is to allow for a testing regime that evaluates the whether or not the nutrient application is sustainable. In addition to the above, annual monitoring of total phosphorous and nitrogen will be undertaken to allow mean annual calculations to be made to evaluate and ensure that all nutrients applied to the growing crops in the EIA are of a sustainable volume and in a steady state with respect to soil conditions and the related vegetation.

[139]

1.3 Respondents Consistent with an earlier decision set out above. 1.4 Respondents No reason is given by the applicant for the removal of the requirement to address the Joint Expert Statement: Water & Soil For Site Sustainability. Absent any cogent reason for the deletion of this provision, it should remain. 1.6 Applicant During the course the hearing, we adopted the position that regulation at "end of pipe" was appropriate rather than seeking to become involved in operational decisions of the tannery. We also accepted that there were likely to be process matters that were "commercial-in-confidence" and that nothing needed to be revealed which would enable commercially sensitive identification relating to the tannery's processes unless this were essential for environmental management reasons. We do not consider, absent some reason being advanced (and we are unable to hypothesise one), why the source of a chemical should be identified if its presence is sufficient for the purposes of dealing with matters arising from its possible impacts. 2.2 Respondents See earlier comments concerning the Irrigation Management Plan forming part of the Environmental Management Plan. This also applies, relevantly, throughout the clauses in this schedule. 2.2(d)(2) Respondents See our earlier decision on Schedule A clause 11. 2.7 (a) The ECe values used are trigger values as well as being in accordance with the Conditions in Schedule A 8.1 (a), whereas the Applicant proposes a slightly less restrictive cessation value applied to the undefined root zone (Schedule A, 8.3 (b)). The Court considers this is a lower standard. It would be better management practice to apply trigger values/criteria to the development of the salt balance model since these are the minimum standards that are required to be achieved as part of the conditions of consent.

[141]

2.7 ( c) The ECe values used are trigger values as well as being in accordance with the Conditions in Schedule A 8.1 (a) and thus should form the basis of the condition. The Applicant in effect proposes a lower standard by proposing levels listed in Condition 8.3, Schedule A. 2.8(b) Applicant Consistency with condition in Sched. B - Monitoring 9.3 Respondents with Court amendments 2.8(c) Need to ensure no deleteriously off-site impacts arising from irrigation activities. If deliberate leaching of effluent is required to ensure that soil salinity does not rise to unacceptable levels, then the IMP must demonstrate how excess nitrogen leaving the plant root zone will be managed and that it will not be sufficient to deleteriously affect adjoining environmental and ecological systems. 2.9(g) Applicant The requirement by the Respondents is too prescriptive and does not allow for sufficient flexibility for the Applicant to respond to variations in rainfall and evaporative conditions over the seasons. Nevertheless, sufficient protections remain built into the Conditions to protect the soil systems to allow this flexibility. 3.2 Applicant As discussed earlier in the principal body of our decision, we are of the view that it is appropriate for the Council to be the approval body for the Environmental Management Plan. We do not consider it appropriate to derogate from that in this provision. Although the audit team and the Department of Environment and Climate Change are to be consulted, for the reasons we have earlier set out, we are satisfied that this approval process can be appropriately left to the council.

At a glance

Court

Decision date

Before

Source

Judgment (151 paragraphs)

Parties

Cases Cited (4)