Austin BMI Pty Ltd v Ipswich City Council & Ors

[2023] QPEC 27

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Austin BMI Pty Ltd v Ipswich City Council & Ors [2023]
QPEC 27
PARTIES:	AUSTIN BMI PTY LTD (ACN 164 204 308)
(appellant)
v
IPSWICH CITY COUNCIL
(respondent)
And
CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING
(first co-respondent by election)
And
CLEANAWAY SOLID WASTE PTY LTD (ABN 55 120 175 635)
(second co-respondent by election)
And
HAENKE NO.3 PTY LTD
(third co-respondent by election)
FILE NO/S:	912 of 2020
DIVISION:	Planning and Environment Court
PROCEEDING:	Applicant appeal against deemed refusal
ORIGINATING	Planning and Environment Court of Queensland, Brisbane
COURT:
DELIVERED ON:	20 June 2023
DELIVERED AT:	Brisbane
HEARING DATE:	11, 12, 13, 14, 17, 18 & 19 May 2021 14, 15, 16, 17 & 18 June 2021 19, 20, 21, 26 & 27 July 2021 12 & 13 August 2021
Written submissions received on 18 August 2021 and 12 October 2021
JUDGE:	Williamson KC DCJ
ORDER:	I will hear from the parties about a date for a review.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – appeal against deemed refusal of a development application for an integrated waste facility – whether the development application complies with the respondent’s planning scheme – whether the development application complies with two Temporary Local Planning Instruments – whether there is a need for additional landfill airspace capacity – whether the development would operate as a disincentive for recycling and resource recovery – whether the development is contrary to contemporary waste management planning – whether the development application should be approved or refused in the exercise of the discretion under s 60 of the Planning Act 2016.
LEGISLATION:	Integrated Planning Act 1997, ss 1.2.1, 1.3.3 & 2.1.3 Planning Act 2016, ss 3, 4, 5, 8, 23, 45, 59, 60, 229, sch 1 &
sch 2
Planning & Environment Court Act 2016, ss 43 and 45 Planning Regulation 2017, Schedule 10
CASES:	Abeleda v Brisbane City Council (2020) 6 QR 441
Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R
347
Ashvan Investments Unit Trust v Brisbane City Council & Ors
[2019] QPELR 793
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR
987
Broad v Brisbane City Council [1986] 2 Qd R 317 Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors
[2023] QPEC 26
Clermont Quarries Pty Ltd v Isaac Regional Council & Ors
[2021] QPELR 65
GFW Gelatine International Ltd v Beaudesert Shire Council & Ors [1993] QPLR 342 HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors [2020] QPELR 534 Indooroopilly Golf Club v Brisbane City Council [1982]
QPLR 13
Isgro v Gold Coast City Council [2003] QPELR 414 Lane v Gatton Shire Council & Anor [1988] QPLR 49 Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25 Mackay v Brisbane City Council [1992] QPLR 65 Nerinda Pty Ltd v Redland City Council [2019] 1 Qd R 523 Sincere International Group Pty Ltd v Council of the City of Gold Coast [2019] QPELR 247 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council
(2003) 129 LGERA 195
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors
[2022] QPELR 309
William McEwans Pty Ltd v Brisbane City Council [1981]
QPLR 33
Wilhelm v Logan City Council & Ors [2021] QPELR 1321 Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022]
QCA 168
COUNSEL:	Mr S Holt KC and Mr M Batty for the appellant Mr C Hughes KC, Mr J Lyons and Mr B Rix for the respondent Mr D O’Brien KC and Mr J Ware for the first co-respondent by election Mr J Rivett (Solicitor) for the third co-respondent by election
SOLICITORS:	McCullough Robertson for the appellant McInnes Wilson for the respondent Hopgood Ganim for the first co-respondent by election Second co-respondent by election excused from participation in the trial Coast to Coast Legal for the third co-respondent by election

Overview

1. This is an appeal against Council’s deemed refusal of a non-putrescible landfill and resource recovery facility on a former mining site at New Chum. The site is degraded. A prominent feature is a large open cut void. It is proposed to rehabilitate the void by filling it with a combination of mine spoil and non-putrescible waste. The non-putrescible landfill component has an airspace capacity in the order of 8.9 million cubic metres and an estimated operating life of 14 to 18 years.

2. Council, supported by the third co-respondent by election, contends the development application should be refused. The refusal case is based on alleged non-compliance with a number of planning documents. Central to this allegation is a contention that the proposed development is inappropriate in terms of its environmental and amenity performance. The extent to which there can be confidence in the environmental performance, and associated risk, of the proposed development was approached by the refusing parties with the optimism of ‘Henny

   Penny’. This optimism was reflected in the broad range of topics advanced under

the heading of ‘poor environmental performance and risk’, which was said to be a
reason warranting refusal of the development application in its own right.

1. It was further contended that non-compliance with relevant planning controls was reinforced by:

(a)	an absence of need for additional landfill airspace to accommodate non- putrescible waste for the foreseeable future;
(b)	contemporary planning policy, which encourages recycling and resource recovery with landfill as a last resort;
(c)	reason that the proposed development, if approved, would act as a disincentive for recycling and resource recovery; and
(d)	reason that the subject land will, in the event of a refusal, be rehabilitated pursuant to existing obligations associated with former mining activities.

1. Austin has discharged its onus. The development application will be approved in due course, subject to conditions.

2. It has been demonstrated the proposed development can be conditioned to manage its environmental and amenity impacts to a high standard. Compliance has, as a consequence, been demonstrated with Council’s 2006 planning scheme and State Code 22, which forms part of the State Development Assessment Provisions.

3. Council alleged non-compliance with Temporary Local Planning Instrument No.1 of 2018 (and as amended in August 2018) and No.1 of 2020. For the purpose of this appeal, these documents are, for all intents and purposes, identical. At the date these reasons were published, both TLPIs had been repealed. Despite their repeal, an assessment was undertaken against the Activity Code forming part of each TLPI. The assessment established that development of the kind proposed is anticipated on the land, subject to compliance with specific development controls. Compliance has been demonstrated with the development controls specified in the Activity Code for each TLPI.

4. If an alternative view is adopted, non-compliance with each Activity Code is limited to Specific Outcome 4(5)(a). Non-compliance with this provision is technical in nature and does not sound in any adverse town planning consequences.

5. Compliance with the planning scheme is a matter that attracts significant weight in the exercise of the planning discretion under s 60 of the Planning Act 2016. It is a compelling ground in favour of approval and lends strong support to the conclusion that an approval should be granted, subject to conditions.

6. An approval should be granted, provided there are no valid town planning reasons to suggest otherwise in the circumstances. I am persuaded there are no planning reasons advanced by the refusing parties that attract such weight as to call for refusal of the development application in the face of compliance with Council’s planning scheme. The development application will be approved in due course. The parties will now be given an opportunity to prepare and agree upon conditions of

   approval.

Table of Contents

Overview .............................................................................................................................. 4
Introduction .......................................................................................................................... 7
The land and surrounding locality ........................................................................................ 9
The proposed development ................................................................................................ 13
The statutory assessment and decision-making framework ............................................... 27
Planning context ................................................................................................................. 30
The properly made submissions ......................................................................................... 49
The disputed issues ............................................................................................................. 50
A first principles assessment .............................................................................................. 53
Landfill design .................................................................................................................... 64

Environmental performance ............................................................................................... 85

Surface water and stormwater ................................................................................... 86
Groundwater ........................................................................................................... 102
Rehabilitation: trees v grass .................................................................................... 107
Rehabilitation: potential for future industry uses .................................................... 110
Rehabilitation: inconsistency with mining EA ....................................................... 112

General environmental risk ..................................................................................... 115

Amenity ............................................................................................................................ 120
Compliance with the planning scheme ............................................................................. 129

Overall Outcomes for the Regionally Significant Business and Industry Areas .... 130 Specific Outcomes for the Regionally Significant Business and Industry Areas ... 131 Swanbank New Chum – Preferred development outcomes .................................... 133

Swanbank New Chum – Preferred pattern of development .................................... 136
Investigation zone, Overall Outcomes .................................................................... 138
Investigation zone, Effects of development ............................................................ 139
Effects of development within Sub Areas............................................................... 140
Consistent and inconsistent uses ............................................................................. 142
Commercial and Industrial Code, Overall Outcomes ............................................. 143
Commercial and Industrial Code, Effects of development ..................................... 144
Commercial and Industrial Code, Specific industrial uses ..................................... 145

Conclusion: alleged non-compliance with the planning scheme ............................ 145

Compliance with the 2018 and 2020 TLPIs ..................................................................... 146

Activity Code, Specific Outcomes .......................................................................... 146
Activity Code, Overall Outcomes ........................................................................... 149

Conclusion: Activity Code ...................................................................................... 150

Compliance with State Code 22 ....................................................................................... 150
Town planning need ......................................................................................................... 151
Resource recovery and sustainability ............................................................................... 160
Relevant matters said to be supportive of approval ......................................................... 170
Exercise of the discretion ................................................................................................. 172
Conclusion ........................................................................................................................ 177
ANNEXURE A - LIST OF ISSUES ................................................................................ 178
Introduction

1. All communities, irrespective of their size and composition, generate waste. Waste can take many forms, including putrescible or non-putrescible. There has been an appreciable shift in community attitudes towards the responsible management of waste, including its reuse and final disposal. Whilst this shift is undoubtedly a positive thing, it will still be necessary to direct a proportion of the waste generated by a community to landfill for disposal; not all waste is suitable for recycling, recovery, reuse or repurposing. In such circumstances, it can be said with confidence that landfill facilities are, and will remain, necessary pieces of community infrastructure.

2. Existing landfill infrastructure servicing South East Queensland is owned and operated by both private and public entities. It is anticipated the capacity of private non-putrescible landfill facilities serving this region will be exhausted sometime between now and 2031.1 This has been a driver for three development applications under the Planning Act 2016 (PA). Each development application seeks approval for a material change of use that involves receiving, and disposing, non-putrescible waste on land located in the Ipswich City Council (Council) local government area. Each development application is the subject of an appeal to this Court.2

3. I heard each of the appeals. Save for common issues with respect to need and the waste industry, they were heard consecutively, essentially in the order filed. As to the common issues, they were the subject of a joint hearing (the common need and

   waste hearing). Agreement was reached between all parties as to the evidence that

   was cross-admissible to facilitate this hearing.3 The agreed body of evidence, in conjunction with the submissions made on behalf of each party, have been considered in these reasons for judgment.

4. This appeal is brought by Austin BMI Pty Ltd (Austin). Austin forms part of the BMI Group, an experienced operator of resource recovery facilities in South East Queensland. Across its network of facilities, the BMI Group provides recycling, waste transfer, landfill and land rehabilitation services.4

5. In February 2018, Austin made a development application to Council. The application sought approval to start a new integrated waste management facility at a former open cut coal mine located at Whitwood Road and Barclay Street, New Chum (the land).5 The proposed facility comprises a non-putrescible landfill and resource recovery area. The landfill component has an airspace capacity of approximately 8.9 million cubic metres and an estimated operating life of 14 to 18 years. The development is intended to complement the BMI Group’s existing network of resource recovery facilities.

6. Ex.8.001, Figure 8.40, para 627; Figure 8.36, para 628.

7. The other appeals are Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26 and Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25.

8. Ex.14.022.

9. Ex.9.002, paras 3 to 8.

10. Ex.8.011, paras 62 and 66.

11. The development application comprises essentially three parts.6 First, an impact assessable application seeking approval for a material change of use under Council’s 2006 planning scheme (the planning scheme). Second, a code assessable application for Environmentally Relevant Activities (ERAs) associated with the proposed material change of use. Third, a code assessable application for operational works (vegetation clearing).

12. Council did not decide the development application within the prescribed decision making period. This gave rise to a right of appeal against a deemed refusal.7 Austin elected to exercise that right and commenced this appeal in late March 2020.8 Austin bears the onus and must establish the appeal should be upheld.9 The appeal is a hearing anew.10

13. In keeping with a long-standing practice of the Court, the hearing before me was limited to the determination of this threshold question: whether Austin’s development application should be approved, or refused? Austin contends for approval on the footing the proposed development complies with the applicable planning controls, or alternatively, any non-compliance does not call for refusal having regard to a number of favourable planning considerations.11 Here, an important planning control is the planning scheme.

14. It is fair to observe from the outset that the case in favour of approval starts on a sound footing. This flows from the following matters:

(a)	the land is degraded and highly modified due to extensive former mining activities;12
(b)	the proposed development is intended to rehabilitate the land13 for future industrial purposes in circumstances where the planning scheme recognises the need to rehabilitate land impacted by former mining activities, along with the need for the same land to be used in an ‘appropriate manner’;14
(c)	as to an appropriate use, the land is included in a Sub Area of the planning scheme that, subject to the management of environmental and amenity impacts, supports ‘difficult to locate uses’, including those involving waste recycling, reprocessing and disposal; 15
(d)	the planning scheme recognises that the proposed development is consistent with the outcomes sought for the zones in which it is included, subject to

1. Ex.8.011, p.23, para 62.

2. s 229(1)(a)(iii); Schedule 1, Table 1, item 1(b); and definition of ‘deemed refusal’ Schedule 2 of the Planning Act 2016 (PA).

3. Ex.5.001, p.3, Notice of Appeal.

4. s 45(1)(a), Planning and Environment Court Act 2016 (PECA).

5. s 43, PECA.

6. Ex.13.022, para 6(d).

7. Ex.8.010, para 7.

8. It was agreed by the geotechnical, landfill design and environmental management experts that the ‘opportunistic landfilling of sites can represent a valid and appropriate method of site rehabilitation’ (Ex.8.002, p.12, para 1). Mr Perkins was of a similar view, provided it was demonstrated that the filling method was acceptable (T33-39, L18-29).

9. Ex.3.001, p.1-67, s 6.14(2)(j); p.1-85, s 6.19(2)(e).

10. Ex.3.001, p.1-74, s 6.16(2)(a)(iv)(F) and definition for ‘special industry’, p.1-134, (f).

    meeting a stated test, namely the development is of a type and scale appropriate for the area and circumstances of the site and surrounds16 - the land is in an area dominated by industrial land uses, including waste facilities and landfills;17 and

(e) there is no dispute the proposed development can be conditioned to deal with issues associated with ecology, aquatic ecology, koalas, air quality, noise and traffic.18

1. As against this, Council contends for refusal. The risk associated with, and the management of, environmental impacts is at the forefront of its case.

2. The refusal case is founded on the proposition that the development is inappropriate in terms of environmental performance, landfill design and amenity impacts.19 The issues are interrelated and are relied upon to establish non-compliance with a suite of planning controls, including the planning scheme. Further, and to reinforce its refusal case, Council contends there are relevant planning considerations that militate against approval.20

1. The third co-respondent by election (Haenke) has an interest in adjoining land. It made an adverse submission to Council about the development application. Haenke’s position aligns with Council. It supports Council’s refusal case.

2. The first co-respondent by election (Chief executive) actively participated in the appeal and, to the extent of its prescribed referral jurisdiction, agitated for conditions to be attached to an approval, assuming one was granted.21

3. The second co-respondent by election (Cleanaway), who made an adverse submission about the development application, did not press for refusal. It was excused from participating in this part of the appeal.22

4. I will now deal with some background and the statutory assessment and decision- making regime applicable to the appeal.

The land and surrounding locality

1. The land comprises seven (7) contiguous lots; is irregular in shape; and has a total area of 108.66 hectares.

2. At present, there are two industrial uses conducted on the land, namely a tyre recycling facility and a business that manufactures and supplies bulk explosives and related chemicals.23

3. Ex.3.001, p.1-77, s 6.17(2)(t); p.1-89, s 6.22(2)(t).

4. T32-92, L10-11.

5. T40-19, L1-16, referring to Ex.13.022, para 4. Further, Mr Rivett who appeared for Haenke did not submit to the contrary.

6. Ex.14.024, para 6.

7. Ex.14.024, para 12(c) and (d).

8. Ex.15.001, para 5.

9. Cleanaway wishes to be heard in relation to conditions attaching to an approval.

10. Ex.8.011, paras 53, 54 and Figure 1.

11. The land is subject to a Mining Lease (ML50115) and an Environmental Authority (EMPL02454414) for clay pit mining.24 There are no active mining areas within the mining lease. Existing activities on the land are limited to rehabilitation and preparation for future development.25

12. It is uncontroversial the land is highly modified, degraded and in need of rehabilitation.

[29]     The extent of modification and degradation is the direct product of past underground and open cut coal mining activities. As would be expected, activities of this kind have caused extensive disturbance. The activity has altered the surface and subsurface of the land.26 It can be readily seen in the form of steep walls and benches, stockpiles of overburden and haul roads.27 Steep and unvegetated benches and stockpiles of overburden are prominent features of the land. Photomontages reveal the benches and stockpiles of overburden are visible28 at a residential community located approximately 1.2 kilometres to the east.29 The benches are an unattractive feature of the skyline and appear as a ‘scar’ on the landscape.30

1. A prominent man-made feature is a void, which is in direct connection with the groundwater regime.31 It was created by open cut mining and located on the eastern side of the land, having a footprint of 21 hectares.32 The deepest point is at RL - 61.9m AHD.33 It is partially filled with 6,500 megalitres of water.34 Water enters the void by a combination of surface water runoff and groundwater infiltration.35 Whilst there is uncertainty as to the percentage mix,36 surface water is likely to account for the largest proportion of water in the void.37 It was uncontroversial the void is acting as a ‘sink’38 in the landscape collecting surface water. This has resulted in significant reductions in discharge from the land to the receiving environment.39 The evidence indicates the water level in the void is likely to continue to rise, with a 5 to 10% risk of uncontrolled spill from the void to the receiving environment.40

2. The quality of the water in the void was sampled from October 2017 to November 2020. It is similar in quality to that of the receiving environment41 and is suitable for discharge42. The receiving environment comprises an unnamed drainage channel

3. Ex.13.018 and Ex.6.001, p.3.

4. Ex.13.018, s 4.1.

5. Demonstrated by a comparison of 1972 pre-mining contours with the contours of the disturbed surface (Ex.9.017, pp.17-20 and Ex.14.021).

6. Ex.8.011, para 46(e).

7. T33-5, L36.

8. T33-25, L12-22.

9. Ex.8.010, para 9; Ex.10.001, pp. 19, 36 and 52; T32-99, L17-19.

10. Ex.8.006, para 46 and Ex.8.011, p. 21, Figure 1.

11. Ex.8.011, para 46(e).

12. Ex.1.002, p.1, Section A.

13. Ex.9.001, para 9.

14. Ex.9.001, para 9.

15. T25-31, L3-8.

16. T25-28, L1-7.

17. T25-19, L1-4.

18. Ex.8.006, p.14, para 42.

19. Ex.9.013, para 14.

20. Ex.9.003, p.12, para 27 and 30.

21. Ex.8.006, p.15, para 56.

    flowing east and connecting to Six Mile Creek.43 Outflow of water in the void is towards Six Mile Creek via a preferential pathway, made up of alluvium, under the unnamed drainage channel.44 The outflow expresses as discharge, and baseflow, within the creek.45

22. Mining activities have adversely impacted the ecological features of the land.46 Save for isolated patches of remnant vegetation/koala habitat, the land is cleared and offers limited opportunities for fauna refuge and fodder. It is largely impermeable for terrestrial fauna.47

23. An Environmental Authority for clay pit mining applies to the land.48 The Authority was granted subject to conditions, including F1-1. This condition does not require the land, either in whole or part, to be rehabilitated for environmental purposes. Rather, it calls for ‘All areas significantly disturbed by mining activities’ to be rehabilitated in accordance with Schedule F – Table 1. This table provides, in part:

Disturbance Type Projected surface area Rehabilitation outcomes

(ha)

Mine void	31	Industrial
Spoil stockpiles	13	Industrial
Roads	3	No rehabilitation required - retain
Water storages	1.5	No rehabilitation required - retain

1. Disturbed land nominated for an ‘Industrial’ outcome is considered rehabilitated under the Environmental Authority when it is stabilised and does not, or will not, have potential to cause environmental harm.49 The Environmental Authority does not prescribe when rehabilitation is to commence. Nor does it prescribe when rehabilitation, in the sense described by the document, is to be completed.

2. The rehabilitation of the land will need to include the treatment of an area of combustible and heated material. It is located in the western portion of the land,50 which I visited during the site inspection. Treatment is required to ensure the material does not re-heat and combust spontaneously.

3. The obligations imposed by the Environmental Authority, including those with respect to rehabilitation, are secured by way of financial assurance.51

4. Looking beyond the boundaries of the land, the surrounding locality has a highly modified landscape. Like the land, it has been impacted by mining activities.52 The

5. Ex.9.013, paras 14 and 15; Ex.9.001, paras 9 and 10.

6. T25-19, L3-25 and T25-29; and Ex.14.011.

7. Ex.8.006, p.15, para 51.

8. Ex.9.016, para 26 and Ex.8.009. p.8 to 10, Table 2.

9. Ex.8.009, para 17, 18 and Ex.9.016, para 4, 5 and 6.

10. Ex.6.001, p.12.

11. Ex.6.001, p.12, condition F2-1.

12. The location of the material is identified in Ex.1.001, p.23 and discussed in Ex.8.002 at para 7.

13. Ex.6.001, p.6, conditions A2-1 and A2-2.

14. Ex.8.011, paras 57 and 58 and Ex.8.010, para 12.

    extent of the impact can be seen in Figure 1 to the visual amenity joint expert report53 and Attachment C to the town planning joint expert report.54 The latter, in particular, reveals the extent to which the land, and surrounding area, have been subject to significant and appreciable anthropogenic interference. The resulting landform is in many parts scarred and, where elevated, is as an unattractive feature of the skyline.

15. Attachment C to the town planning joint expert report and Figure 1 to the visual amenity joint expert report greatly assist in understanding the surrounding land use context in New Chum.55 The surrounding area is dominated by industrial land uses, including landfills.56

16. Surrounding land uses include:57 (1) to the north, a former landfill operated by Council58 and an existing landfill operated by Cleanaway;59 (2) to the east, there is pit mining for clay to facilitate the production of bricks and pavers;60 (3) existing waste related activities are located to the east and south;61 and (4) an existing coal mine is located to the south.62 The modified landform and waste activities on the Cleanaway site can, like the land, be seen from the residential community to the east.63

17. The extent of industrial development in the locality is a reflection of a number of well-recognised locational advantages. The land, and surrounding locality, enjoy good access to major road and transport infrastructure. This infrastructure includes the Cunningham Highway, Warrego Highway and Ipswich Motorway.64 The Cunningham Highway adjoins the western boundary of the land, co-incident with a band of vegetation providing a buffer to the impacts of the Highway. In addition to major road infrastructure, the land and surrounding locality are proximate to, and supported by, a substantial employment catchment. The locality provides employment growth opportunities to support the population of Ipswich, which, like many parts of South East Queensland, is forecast to increase substantially in the coming decades.65

18. Whilst there is a band of vegetation along the western boundary of the land,66 limited greenspace connectivity is achieved with the surrounding greenspace network. The greenspace areas are located: (1) in a band parallel to the eastern side of the Cunningham Highway; (2) on the western side of the Cunningham Highway, north and south of the land; and (3) to the east of the land as a buffer to Six Mile

19. Ex.8.010, p.5.

20. Ex.8.011, p.166.

21. Ex.8.011, p.166 and Ex.8.010, p.5.

22. T32-92, L10-11 and Ex.8.011, paras 57 and 58.

23. Ex.8.011, para 59.

24. Ex.8.011, p.166, Attachment C, site 10.

25. Ex.8.011, p.166, Attachment C, site 12.

26. Ex.8.011, p.166, Attachment C, sites 6, 7 and 9.

27. Ex.8.011, p.166, Attachment C, sites 8 and 5.

28. Ex.8.011, p.166, Attachment C, site 3.

29. T33-25, L10-22.

30. Ex.3.001, p.1-30, Note 6.7C, item (1).

31. Ex.3.001, p.1-193, ‘Introduction to the Study Area’.

32. Ex.4.001, p.193.

    Creek.67 The area between the land and Six Mile Creek is a mixture of vegetated, cleared, and disturbed land. Aerial photography suggests the extent, and degree of intactness of the existing vegetation increases as one moves from the land in an easterly direction towards Six Mile Creek.68 The creek is approximately 900 metres from the mining void.69

33. The aquatic habitat in Six Mile Creek is characterised as ‘moderately disturbed waters’.70 This is consistent with it being typical of a creek flowing through land that has been modified for a range of uses, including urban development, mining/quarrying, landfill and industrial uses. In that setting, riparian vegetation has been cleared resulting in some erosion. There has also been artificial channelisation. Despite this, Six Mile Creek supports a diversity of native aquatic flora and fauna.71

34. The aquatic condition of Six Mile Creek can be contrasted with the unnamed drainage channel connecting to the void. The channel was assessed as having poor to fair aquatic habitat condition. It was fairly described as ‘a drainage feature lacking stable aquatic habitat and with very little riparian vegetation’. 72

The proposed development

1. Austin’s development application seeks approval to start two new uses, namely ‘special industry’ (landfill, waste transfer station, resource recovery and ancillary activities) and ‘caretaker residential’, both of which are defined in the planning scheme.73 Associated approvals for operational works and ERAs are also sought.

2. There is a substantial body of material describing the development and measures to be planned, implemented and executed to manage its impacts.74 The material reveals that an integrated waste facility is proposed, comprising two components; a landfill, and a resource recovery facility.75 The latter provides an opportunity for a final pass through material destined for landfill to ensure everything that can viably be recovered, or recycled, will be.

3. Before discussing the proposed development in detail, it is relevant to observe that an Environmental Authority (EA) for an integrated waste facility was also applied for, and obtained, under the Environmental Protection Act 1994. The EA was issued by the administering authority on 22 November 201976 and granted subject to conditions. The EA is for an integrated waste facility on the land. Central to the authority is a requirement that contaminants not be released from the land, other than as permitted by conditions of the EA.77 The decision to grant the EA is not the

4. Ex.8.011, p.226 – see Green spaces identified as ‘RBB1’, ‘CON’ and ‘REC’.

5. Ex.8.010, para 16 c.

6. T26-43, L44 to T26-44, L2.

7. Ex.9.001, p.38, para 96.

8. Ex.9.001, p.38, para 95.

9. Ex.9.001, p.12, para 22.

10. Ex.6.001, pp.54 and 77.

11. A helpful description of the development is to be found in Ex.8.011, pp.23 to 29.

12. General arrangement plan, Ex.1.002, p.2.

13. Ex.6.001, pp.17-51..

14. Ex.6.001, p.33, Condition L1, p.34 Condition WT1.

subject of an appeal to this Court. It will take effect if, and when, a development
approval is granted by this Court.

1. The EA, and conditions attaching to it, are relied upon by Austin in support of approval. Austin invited the Court to approach the exercise of the discretion on the footing the conditions attaching to the EA are part of a large body of evidence demonstrating the proposed development can be conditioned to successfully mitigate its impacts. The conditions of the EA, when considered in this way, are relied upon as being responsive to the reasons for refusal.78 I accept the EA can be relied upon for this purpose. I will, as a consequence, discuss some conditions of the EA while describing the development for which approval is sought.

2. The landfill operation involves the progressive filling and rehabilitation of the void created by open cut mining. The void is to be filled with non-putrescible waste, namely construction and demolition waste (C&D), commercial and industrial waste (C&I) and contaminated soils.79 The air space capacity of the void is approximately 8,900,000 m3.80 Filling will occur in stages. It is estimated that 700,000 tonnes of waste per annum will be received, rising at a rate of 3% per annum over the life of the landfill.81 Based on assumed acceptance rates for waste,82 the landfill will have an operating life in the order of 14 to 18 years.83

3. Upon completion, the landfill is to be capped and monitored for a period of 30 years.84 The final landform will reach a maximum height of RL86m AHD and will be vegetated, in part. The intention is that the land, in the long term, will be suitable for industrial uses of the kind anticipated for a Regionally Significant Business and Industry Area.85

4. The resource recovery facility will receive about 275,000 tonnes86 of waste per annum to extract suitable material for reprocessing, crushing and/or recycling. Material falling into this category, once processed, will be removed from the land. Any residual waste that cannot be recycled or processed will be deposited in the void. It is intended the resource recovery facility will continue to operate after the mining void is filled, capped and rehabilitated.87 The continuation of this part of the development is consistent with long term planning for the Swanbank New Chum Sub Area.88 This is a Sub Area identified by the planning scheme.

5. Mr Dekker, who is the General Manager of the BMI Group, explained that the co- location of the resource recovery infrastructure with a landfill is an efficient

6. Austin’s Written Reply for the Austin Specific Hearing dated 18 August 2021, para 11.

7. Ex.8.011, p.25, para 73.

8. Ex.8.011, para 75.

9. Ex.9.002, para 42 and 43.

10. Ex.8.011, p.25, para 75 – 369,000 to 660,000 t/pa for C&D and C&I waste and 100,000 to 179,000 t/pa for contaminated soil.

11. Ex.8.011, p.25, para 76.

12. Ex.8.002, p.15, para 7.

13. Ex.8.011, p.27, para 97.

14. Ex.8.005, p.8, para 7; comprising 220,000 tonnes of C&D waste, 42,500 tonnes of separated concrete and 12,500 tonnes of timber and green waste.

15. Ex.8.011, p.24, para 70.

16. Ex.3.001, p.1-74, s 6.16(2)(a)(iv)(F).

resource recovery model. This evidence, which was not challenged, was supported
by the following reasons given by Mr Dekker:89

“(a) the co-location of the two activities ensures the efficient utilisation of buffer areas with such areas with appropriate distances from sensitive receptors difficult to find in an urban setting.

(b) Logistical costs and impacts on [the] traffic network is reduced. The processing of recovered material from sorting operation to crushing or shredding process as well as the carting of residuals to landfill all on the one site removes a significant number of truck movements off the local roads.

(c) It promotes purchase of recycled products as trucks servicing the construction industry may dispose of waste and then return to the construction site with recycled construction materials.”

1. I accept Mr Dekker’s evidence.

2. The physical layout of the development is depicted in a number of plans.90 They reveal the development comprises four distinct parts, with the development footprint concentrated towards the centre and eastern side of the land. Moving left to right (west to east) on the ‘General Arrangement Plan’,91 the four parts of the development are: (1) a buffer area; (2) a site infrastructure area; (3) a sorting, processing and recycling area; and (4) the landfill. Access is obtained to parts (2), (3) and (4) via an internal road connecting to Austin Street. The development is proposed to proceed in two stages.92 Stage 1 comprises parts (1), (2), (3), and the southern end of (4). Stage 2 involves the final stages of filling the void.

3. The buffer area is parallel to the Cunningham Highway. A comparison between a number of maps included in the town planning joint expert report and book of plans, indicates it is included in the Regional Business and Industry Buffer Zone of the planning scheme.

4. The purpose of the proposed buffer area is two-fold. First, it provides a physical separation distance between the development footprint, Cunningham Highway and residential areas further to the west. Separation distances are measured at two points on the proposed plans. Both measurements demonstrate a meaningful separation distance is provided. The distances measure 103 metres and 221 metres.93 Second, the buffer area, as the name suggests, is intended to perform the function of a vegetated buffer between the development, Cunningham Highway and residential development to the west. To achieve this, the area will be rehabilitated.94 It will not be used as part of the integrated waste facility. It is an area free from built form and

5. Ex.9.002, para 28. See also para 31 of the same statement.

6. Ex.1.001 and Ex.1.002.

7. Ex.1.001, p.11.

8. Ex.1.001, p.13.

9. Ex.1.001, p.11.

10. Ex.1.001, p.28 read with Ex.9.015, pp.5 to 6.

hard infrastructure. The vegetation, in combination with the separation distances,
will screen the development from viewing points located to the west of the land.

1. A proposed rehabilitation strategy for all of the land was agreed between three terrestrial ecology experts. The strategy involves: (1) the retention of existing vegetation, including regulated vegetation in the south-western corner of the buffer area; (2) the relocation of a patch of threatened regrowth vegetation (Marsdenia

   coronata); (3) the creation of replanting and revegetation zones; (4) maintenance

   and weed control measures for the life of the development; and (5) the planting of vegetation that is suitable for koalas.95 The execution of the rehabilitation strategy is anticipated to create connections and linkages to permit fauna movement through the land and beyond. Whilst a 1.8 to 1.9 ha patch of remnant vegetation is to be cleared to make way for the proposed development,96 it was agreed that the overall rehabilitation strategy, which provides for a rehabilitated area of about 7.67 ha,97 will improve the ecological function of the land and beyond.98 I accept this represents a positive outcome for the ecological values of the land and surrounding area.99

1. The site infrastructure area adjoins the eastern edge of the buffer area. It is through this area that the integrated waste facility is accessed from Austin Street. In this location there is100 an administration office, carpark, weighbridge, wheel wash, water tanks, ‘untarping areas’ for B-Double trucks, caretaker’s accommodation and a workshop/fuel storage. The proposed concept rehabilitation plan indicates this area, and the access to it, will be landscaped.101 The footprint of the infrastructure area sits predominantly, if not entirely, within the Regional Business and Industry Investigation Zone of the planning scheme.

2. The sorting, processing and recycling area adjoins the eastern edge of the infrastructure area. It is about 10 ha in size (approximately 300m long x 350m wide).102 The plans of development reveal it will contain recycled product storage bays, three recovery and processing sheds and a bin storage shed. The sheds will be constructed generally in accordance with a concept building design,103 which contemplates the sheds being 15 metres in height and finished with a dark subdued colour palette. This, in combination with a 30 to 40 metre vegetated buffer that surrounds the edge of the sorting, processing and recycling area, is to ensure the built form merges into the landform and vegetation.104 The sheds have also been positioned to screen activities from viewing points to the east. Processing of material will occur within the sheds. This will assist in the mitigation of amenity impacts, such as those related to dust, odour and noise emissions.

3. Ex.8.009, p.7, paras 17 to 24; Ex.8.011, pp.45-46, para 163.

4. Ex.8.009, p.7, para 19 and Ex.8.011, pp.26-27, para 89.

5. Ex.8.011, p.26, para 88.

6. Ex.8.009, p.8, DC comments and p.21, para 44.

7. Ex.8.009, p.7 para 24 and Ex.8.011, p.27, paras 90 and 91.

8. Ex.1.001, p.20.

9. Ex.1.001, p.28.

10. Measured on Fig 02 at A3 size and by reference to the scale in bottom right hand corner (Ex.1.001, p.11).

11. Ex.5.001, p.73, Visual Amenity condition 1 and Attachment A at pp.75 to 81.

12. Ex.9.014, p.6. para 13 and T32-93, L38 to T32-94, L7.

13. Beneath the sorting, processing and recycling area is carbonaceous material susceptible to spontaneous combustion.105 This material is to be removed and placed in the flooded part of the void. This will occur after the void is partially dewatered and then filled to create a base for a composite liner discussed below.106

14. The landfill adjoins the eastern edge of the sorting, processing and recycling area. It is included in the Regional Business and Industry Investigation Zone of the planning scheme.

15. Four steps need to occur before waste can be received and deposited in the void.

16. First, overland flow intercepted by the void is to be diverted. This involves re- instating the unnamed drainage channel around the southern boundary of the void.107 To achieve this, earthworks are proposed. This involves forming an embankment and reconstructed channel.108 These works will divert surface flow away from the void and, instead, direct flow into the unnamed drainage channel around the eastern and north-eastern perimeter of the land. The surface water and stormwater experts agreed this would return surface water discharges from the land to pre-mining levels. The same experts agreed that such an outcome would be a ‘major improvement’.109 I accept this evidence.

17. Second, the void is to be partially dewatered by progressive pumping to the unnamed drainage channel. The water in the void would be lowered from RL27.6m AHD110 to RL18m AHD for Stage 1, and RL15m AHD for Stage 2.111 The purpose for dewatering the void is to create a dry space for the construction of the base for the composite landfill liner.

18. The dewatering of the void will occur concurrently with the backfilling described below.112 It is planned to occur at a rate of 70 litres per second. A water balance model suggests the process will take in the order of 12 to 18 months.113 There is, however, a dispute about this. Mr Collins, a very experienced hydraulic engineer called by Council, estimated the time for the engineering works and dewatering to be in the order of 30 months.114

19. Water drawn from the void will be pumped to the unnamed drainage channel. Whilst it is thought to be acceptable for release,115 before doing so, the void water will be subject to ‘in-line testing’116 by a containerised monitoring system for real time water quality assessment. This system will monitor whether the water meets limits prescribed in the conditions of the EA discussed above, in particular,

20. Ex.1.001, p.23.

21. Ex.8.002, p.27-28, paras 43 to 45.

22. Ex.9.013, para 17.

23. Ex.9.013, para 17 and p.25 Appendix B.

24. Ex.8.006, p.14, para 42.

25. Ex.9.013, para 18.

26. Ex.8.002, p.30, para 52.

27. T25-55, L14-22.

28. Ex.9.013, para 18.

29. Ex.8.006, para 23. Mr Marszalek, disagreed - T25-54, L6-9 and T25-68, L24-27.

30. T26-48, L14 -18.

31. T25-55, L39.

    conditions WT2 and WT3.117 Where water to be discharged from the void to the unnamed drainage channel does not meet one or more of the prescribed limits, pumping will cease, and the water will be treated.

32. Not all of the limits prescribed in the EA can be tested ‘in-line’.118 The limits that cannot be tested in line will be subject to manual sampling and laboratory analysis.119 Real time monitoring samples will also be collected and analysed monthly for a range of parameters in accordance with a draft receiving environment monitoring program (REMP). This program is required by condition G15 of the EA and is the subject of a specific recommendation made by Austin’s aquatic ecologist, Ms Thorburn.120 Her evidence, which I accept, was unchallenged.

33. Complete dewatering of the void is impractical.121 This is due, in part, to an expectation that a high rate of inflow of recharged groundwater would flow into the lower levels of the void, along with drainage from exposed overburden backfill material and former mine workings.122 Construction safety issues also arise. Carrying out earthworks at the depths required, coupled with the potential for unstable internal batters, creates an unsafe workplace.123

34. Third, the void will be backfilled in two zones, namely: (1) a general backfill zone; and (2) an engineered backfill zone.124 The total depth of backfill will be 77 metres at the deepest part of the void.125

35. The void will be backfilled to a level that is 5 metres below the base of the liner system. This filling was described as the ‘general backfill zone’. The backfill material is to be of a maximum particle size of 300mm. It will comprise a combination of former mine overburden stockpiled on the land, material blasted from the perimeter eastern open cut high wall and, if required, imported clean fill.126 This material will be pushed from a tip edge, or tip head, into the void and placed loose under water. Filling will advance laterally across the backfill area and127 be compacted by way of proof rolling to ensure there is a competent surface on which to place the next fill layer.128 Prior to the placement of the next layer of fill, the general backfill zone will be surveyed and certified by a CQA Engineer.129 The need for certification is bound up in demonstrating compliance with conditions of the EA (W9).130

36. The engineered backfill zone is 5 metres deep and forms the underside of the landfill liner. The surface of the zone will be dry as it will be elevated above the

37. Ex.6.001, pp.34 to 35.

38. T25-79, L40.

39. T25-80, L4-9.

40. Ex.9.003, pp.23-24, paras 53-54.

41. Ex.8.002, paras 49 and 50 and Ex.9.009, p.19, s 3.5.

42. Ex.8.002, p.29, para 49.

43. Ex.9.009, p.19, s3.5.

44. Ex.8.002, para 61.

45. T25-70, L29-41 and T27-43, L1-4.

46. Ex.9.013, para 19 and T27-35, L25 to T27-36, L2.

47. Ex.8.002, para 63.

48. T27-36, L9-13.

49. Ex.13.014.

50. T27-36, L20-44.

    water remaining within the void. It is the same fill material as that utilised in the general backfill zone.131 Mr Watson, who is a civil engineer specialising in landfill design,132 helpfully explained the process for placing and certifying133 this fill:134

    “…material would…be brought in, dumped. If it was brought in by truck, it would be spread in a thin layer, about 150 or 200 millimetres thick. It would be moisture conditioned as required, because that’s necessary to achieve optimal compaction, and then would be rolled using a roller compactor…those layers would be continually placed up until the five-metre thickness was achieved. But at each layer, there would be quality assurance, density testing, moisture content testing of that material as it’s raised. So you get this continuous…quality control activity…being undertaken.

    And what about ultimate certification of that. How does that occur, and by whom? …we call it a GITA, and that’s in relation to…the Australian Standard 3798. And the GITA is a geotechnical inspection and testing authority…that’s in conjunction with…an engineer that we would have onsite, and…it’s a testing authority. Someone would come along…compile the data that they produce. It would be compiled into a report and certified by…[a]…registered professional engineer.

    And that certification occurs, do I take it, by necessary implication, before those next layers of the composite…liner that we talked about are done?---Definitely….We have to be confident in terms of the integrity of …that layer before we put the liner on.”

51. The last part of Mr Watson’s evidence above refers to the need for confidence in the integrity of the backfill before a liner is placed. Confidence is required to ensure the overall objective for the backfilling process is achieved. The objective is to form a geotechnically competent fill profile over which the landfill liner can be placed. The base needs to provide a smooth, firm and unyielding surface.135 This is to ensure the liner: (1) can be graded to drain leachate; and (2) is not compromised by excessive strain.136

52. The final step is the placement of a liner system in the void to prevent the migration of contaminants (leachate and subsurface landfill gas) from the landfill into the receiving environment. It also prevents the migration of groundwater into the void, which generates leachate.

53. Conditions G1 and W8 of the EA require the installation of a landfill liner system.137 A ‘Landfill liner (single)’ is defined in the EA as follows:138

54. Ex.8.002, pp.46-47, para 106.

55. T27-34, L1-7.

56. In the manner provided in Ex.13.014.

57. T27-37, L4-29.

58. T31-53, L37-47.

59. Ex.8.002, para 59.

60. Ex.6.001, pp.21 and 31.

61. Ex.6.001, p.43.

    “Landfill liner (single) means a compacted clay barrier at least 600 mm thickness achieving a maximum permeability of 1 x 10-9 metres per second or an alternative barrier such as an engineered geosynthetic liner equivalent in performance and agreed in writing by the administering authority.”

62. The liner proposed for the proposal development is composite in nature. It was uncontroversial that it exceeds the standard required by the above definition. The composite liner, which will sit on the engineered backfill discussed above, comprises more than a compacted clay liner of 600 mm thickness. A typical detail of the liner reveals it comprises (from the bottom up):139

(a)	a 500mm thick low permeability earthen fill layer;
(b)	a geosynthetic clay layer (GCL), which is a pure layer of clay placed between two geotextiles;
(c)	a 2mm thick high density polyethylene (HDPE) geomembrane, protected by a geotextile;
(d)	a 300mm (minimum) thick aggregate leachate drainage layer; and
(e)	a separation geotextile.

1. Condition W9 of the EA requires the installation of the liner be certified by a qualified person.140 The process for certification in accordance with this condition is set out in a schedule marked exhibit 13.014.

2. The liner is not impervious. However, if operating in accordance with the specifications, the flow of groundwater or leachate through the HDPE component would be ‘insignificant’.141 Mr Tomlin explained what this meant in his oral evidence:142

   “…you disagreed with our learned friend that your assumption was that the liner was impervious. You agreed that it had some permeability to it, in effect?---Yes. I agreed; very low.

   …And in terms of the way scientists and hydrogeologists talk about very low, can you give us an order of magnitude or a sense of just how low the permeability of the liner in its undamaged state might be, in some way that we might understand it?---Well, if we consider the ability to transmute water …its ability was, essentially, zero. So it’s as close to impermeable as we could get whilst not being impermeable.”

3. I accept Mr Tomlin’s evidence.

4. This is complemented by the evidence of Mr Hornsey. He said:143

5. Ex.1.002, p.1, Typical Detail 1; Ex.8.002, para 40 and T31-53, L22-31.

6. Ex.6.001, p.31.

7. T25-25, L33.

8. T25-50, L4-27.

9. T31-62, L26-27.

   “if…you have an intact liner, there is no leakage through that liner. The leakage rates are so small that you’re talking about thimblefuls per hectare per year…”

10. I accept Mr Hornsey’s evidence.

11. The rates of permeability discussed above relate to the HDPE liner. The GCL and compacted clay layer beneath the HDPE liner are also of low permeability. They provide a significant factor of safety that further limits the ability for contaminants to be transported from the void to surrounding groundwater.144

12. Four experts retained by Austin participated in a geotechnical, landfill design and environmental management joint expert report. They agreed:145

    “The design of the lower liner (above the backfill and beneath the waste) exceeds best practice in that it includes both a high-density polyethylene (HDPE) liner and geosynthetic clay liner (GCL), with a 2.0mm HDPE specified, rather than the conventional 1.5 mm thickness.”

13. Council’s experts participating in the same joint expert report agreed the lower liner exceeds best practice.146

14. Mr Hornsey has extensive experience and knowledge of liners, including how they are manufactured, tested, certified and perform once placed.147 The extent of his knowledge is reflected in an industry recognised testing method to examine strain on liners. It is the ‘Hornsey and Winshaw’ test, based on a paper co-written by Mr Hornsey. In his joint expert report, Mr Hornsey explained what it means for the liner here to be better than best practice:148

    “The revised liner design…goes well beyond the world’s best practice for a C&D landfill, by incorporating a composite liner system. This is essentially a fail-safe system as it has a secondary liner which ensures ongoing performance of the liner system should a portion of the liner be damaged if for some reason it does not perform adequately. The combination of a protection geotextile, HDP Geomembrane, Geosynthetic Clay Liner and Low Permeability earthen fill in effect therefore creates a fail-safe liner system.”

15. I accept Mr Hornsey’s evidence.

16. The construction of the landfill base includes a groundwater depressurisation system. It is to be installed in the basal liner. The system is intended to avoid hydrostatic heaving of the liner. There is a potential for this to occur before there is sufficient waste placed on the liner to resist upward pressure.149 Once sufficient

17. Ex.8.002, p.26, para 39.

18. Ex.8.002, p.2, para 1.

19. Ex.8.002, p.12, para 12.

20. T31-52, L21 to T31-53, L11.

21. Ex.8.002, p.27, para 42.

22. T25-22, L14-20.

    waste has been placed to prevent hydrostatic heaving, dewatering of the void, and the operation of the groundwater depressurisation system, can cease.150 It is expected that groundwater levels will rebound. The final level it will achieve is difficult to forecast. That said, the evidence suggests there are at least two potential outcomes: (1) the water will rebound to a level that is permanently below the liner (RL22m AHD);151 or (2) the water will rise above the level of the landfill liner to a maximum of RL26m AHD.152 The transportation of the groundwater into the void will be prevented by the composite liner.

23. Prior to the deposition of waste, a groundwater monitoring programme will be implemented as required by conditions of the EA.153 The programme is to include the installation of monitoring bores. Water within the bores is to be sampled and examined against stated parameters.154 Mr Tomlin, a hydrogeologist, indicated that monitoring would be complex given underlying geological conditions, which include mine workings. He was however of the view that a satisfactory monitoring programme was achievable.155 I accept Mr Tomlin’s evidence.

[87]     Non-putrescible waste, comprising either residual material from the processing/recycling area or waste going straight to landfill, will be placed on top of the composite liner and compacted. 156 This will occur in two stages.157 A staging plan indicates the void will be filled from the shallowest end to the deepest. More particularly, one third of the void will be filled via a series of cells starting at its southern end, heading in an east to west direction (Stages 1A to 1C). After these stages have been completed, the balance of the void will be filled with cells moving from south to north (Stages 2A, 2B and 2C). Stages 2B and 2C are co-incident with the deepest part of the void.158

1. The waste deposited in the void will be covered by an interim, or final cap.159 The purpose of a cap is to:160 (1) minimise infiltration of surface water into the underlying fill; (2) assist in the management of stormwater runoff; (3) minimise the release of gas from the waste mass; (4) reduce oxygen ingress during gas extraction; and (5) provide a growing medium for vegetation to stabilise the surface.

2. The evidence establishes that successful management of landfill gas and water are critical to the environmental performance of the proposed development.

3. Landfill gas will be managed through the progressive installation of a collection and monitoring system. The collection system will enable gas to be channelled to the surface of the landfill where it is destroyed by high temperature flaring.161 A leachate and landfill gas management area is to be located below the south-western

4. Ex.8.006, p.15, para 58.

5. T25-15, L39 to T25-16, L11.

6. Ex.8.006, p.16, para 59.

7. Ex. 6.001 pp. 23, 38-40, Conditions G15, WT9 And WT10.

8. Ex.6.001 pp. 40-41, Condition WT14, Table 9 identifies groundwater monitoring parameters.

9. T25-17, L28-34.

10. T23-14, L34-42.

11. Ex.1.001, p.12.

12. Ex.8.002, p.36, para 73.

13. Ex.8.002, p.38, para 80.

14. Ex.6.001, p.203, s 9.1.

15. Ex.8.011, p.25, para 77(a) and as envisaged by condition W6 of the EA (Ex.6.001, p.25).

corner of the landfill. A gas collection and monitoring system is required by
conditions A4 and A5 of the EA.162

1. Gravity dictates that some water falling on the surface of the proposed landfill, or contained within the waste itself, will eventually be transported to the liner at the base of the void. This water is known as leachate. A significant part of the technical evidence was directed to the collection and treatment of leachate, and the separation of surface/groundwater from waste to minimise the generation of leachate. Leachate is, in short, water (groundwater/surface water/rainwater) that has come into contact with waste material.163 That contact creates a risk of contamination. The risk is not insignificant. Water that comes into contact with waste is unlikely to be suitable for direct discharge from the land to the unnamed drainage channel.164

2. To collect leachate within the landfill, the base of the void is graded from west to east, allowing leachate to drain to, and be collected in, leachate wells along its eastern edge.165 The collected leachate will be pumped to the surface via riser pipes installed in the basal liner.166 A number of options are then available to manage the pumped leachate. It can be: (1) recirculated over landfill areas that remain active; (2) transported (by tanker) offsite for treatment; (3) treated via an on-site system and discharged to the unnamed drainage channel; and (4) subject to enhanced evaporation.167 Mr Dekker’s third statement dated 16 July 2021,168 in conjunction with correspondence dated 11 August 2021,169 confirm it is accepted that an approval, if granted, should include the following conditions:

“(a)	the leachate storage for the site be provided by way of tanks of a suitable size and designed to manage Mr Tony Marszalek’s modelled leachate generation in an extreme weather event;
(b)	the leachate pumps and associated piping infrastructure be of a suitable size and designed to manage Mr Tony Marszalek’s modelled leachate generation in an extreme weather event; and
(c)	a suitably sized and designed leachate treatment system is to be installed on site which is able to treat waters contaminated with PFAS/PFOS.”

1. The ‘extreme weather event’ referred to in the above conditions was not defined in Mr Dekker’s statement. Based on a proposition put by Mr Holt KC to Mr Collins, Council’s stormwater and surface water expert, I have assumed it is a reference to an event akin to that recorded in January 1974.170

2. Ex.6.001, p.32.

3. Ex.10.004, p.10, L93 and T25-72, L15-17.

4. Ex.9.013, para 31.

5. Ex.1.001, p.12.

6. Ex.1.002, p.1, Typical detail 2.

7. Ex.9.013, para 31.

8. Ex.9.019, para 6.

9. Ex.13.023.

10. T26-42, L3-6.

11. Condition W10 of the EA requires a leachate management system be installed and maintained to collect leachate and convey it out of the landfill to an appropriate storage facility. The EA also requires the height of leachate during the operational phase to not exceed 300mm above the liner system.171 This depth is equivalent to the drainage layer in the composite liner. This will ensure leachate remains separated from the waste sitting above.172

12. To manage leachate, a proactive approach is to be taken to the management of surface water to minimise the prospect it mixes with waste. Central to that plan is a proposal to divert upslope clean water around the land to avoid contact with waste material.173 The water, which does not come into contact with waste, will be directed to purpose built stormwater basins for quality testing and controlled release in accordance with the EA. There will inevitably be rainwater falling on the landfill, and surface water that flows into the landfill. This is to be treated as leachate and managed accordingly. To minimise rainwater falling onto the landfill, the area of the working face is to be limited to 100 metres x 100 metres.174 The working face will also, where practicable, be covered during wet weather conditions.175

13. Condition WT8 of the EA requires the implementation of a surface water monitoring programme. The purpose of the programme is to monitor potential impacts on surface waters, including water in Six Mile Creek.176

14. The final capping system and associated rehabilitation are dealt with in conditions L2 and L3 of the EA.177 Condition L2 requires the cap to be designed by an appropriately qualified person and installed to: (1) minimise the infiltration of water into the underlying waste mass; (2) minimise water ponding on the surface; and (3) minimise the likelihood of erosion.178

15. The proposed plans reveal a landfill cap has been designed for the development. In short, it is a graded landform that will be vegetated and includes platforms for future land uses. The landform is graded to direct overland flow to the east.179 The steepest parts of the cap are the northern, eastern and southern edges of the former mining void, having a slope of 4:1.

16. The detail associated with cap design and rehabilitation can be found in a landform concept rehabilitation plan, read together with the evidence of Dr Rhode. He is an expert in the rehabilitation of landfill sites.

17. The concept rehabilitation plan divides the land into one of four zones.180 Zone 1 is the buffer area described above. Zone 2 is an area that wraps around each of the resource recovery and landfill areas. It varies in width (30 metres to 140 metres) and

18. Ex.6.001, p.31.

19. T26-75, L46 to T26-76, L3.

20. Ex.8.006, p.9, para 15.

21. Ex.9.013, p.14, g (ii).

22. Ex.9.013, p.14, g (ii).

23. Ex.6.001, p.38.

24. Ex.6.001, p.33.

25. Ex.6.001, p.33.

26. Ex.1.001, p.25.

27. Ex.1.001, p.28.

    will be vegetated with koala habitat trees. Zone 3 and 4 are located on top of the landfill. Zone 3 is proposed to be vegetated with shrub lines, including koala habitat. Zone 4 comprises 10 metre thick vegetated buffers that screen the eastern edge of three platforms. The platforms are intended to accommodate future light industry uses.

28. The cap design comprises the following components (from top to bottom):181

(a)	300mm thick layer of topsoil;
(b)	2.8m thick layer of subsoil;
(c)	a drainage geocomposite;
(d)	a Linear Low Density Polyethylene (LLDPE) geomembrane; and
(e)	a 500mm thick clay rich layer.

1. The LLDPE liner will not be included in those parts of the cap where the land has a 4:1 slope.182

2. It was agreed the depth of soil above the liner, and inclusion of the LLDPE liner exceeds best practice.183 Dr Rhode helpfully explained the reason for this in his oral evidence:184

   “In a general sense, can you explain to his Honour, please, in what way it exceeds best practice?---Yes. So if we look at each state’s guidelines around landfill capping design, here in Queensland it is purely a risk-based approach. So it is up to the proponent to make decisions around what layers should be included within that cap. … In this case, what has been put forward is that you’ll have a liner underneath the cover, plus that compacted layer beneath that again. So it exceeds best practice in that way.

   …And I think the point you were making before was that Mr Sutherland, in his evidence, seemed to indicate only that clay liner would be sufficient or appropriate in the design he was proposing?--- That’s correct.

   So what, then, does the geoliner above achieve in that sense? Give us a sense of it in terms of capacity to prevent moisture from going through?---Sure. So the compacted clay might have a saturated permeability, which is the …most amount of water than can start flowing through it of about one by 10 to the minus eight metres per second. The LLDPE liner, the plastic layer, is between three and six orders of magnitude lower again. So it’s somewhere between one by 10 to the minus 11 to perhaps one by 10 to the minus 15 metres per second…So in that way, it is a very robust design because it has two

3. Ex.9.011, para 17.

4. T31-87, L34-38.

5. Ex.8.002, p.13, paras 13 and 14.

6. T31-86, L25 to T31-87, L7.

   layers that can help reduce or if not stop the amount of infiltration into
   the underlying waste.”

7. Dr Rhode’s assessment of the proposed cap, and its ability to achieve the design objective was as follows:185

   “…what’s your assessment of this design in terms of its capacity to restrict…rainfall infiltration of water into the waste mass below?-- Based…on my experience in the industry designing covers, I consider the cover design to be good, if not excellent. If I draw upon my experience within mining, we never, in my experience, have used LLDPE liners, we always rely upon compacted fill material. I would describe to you that that material by comparison and in contrast to what is being proposed here is suboptimal. The proponent has allowed for the risk of having larger vegetation on that cover by increasing the thickness. They have allowed for plant available water by increasing the thickness of that cover.”

8. I accept Dr Rhode’s evidence.

9. Condition L4 of the EA requires the land to be subject to post-closure care. The condition states:186

   “Following cessation of deposition of waste in the landfill unit, post closure care of the landfill unit must be conducted for a period of 30 years or until such time that the operator demonstrates, on the basis of correct information, that the landfill unit and surrounding site are stable and that no release of waste materials,

   leachate, landfill gas or other contaminants that may cause

   environmental harm is likely.

   Note: This condition continues to apply after the environmental

   authority has ended or ceased to have effect pursuant to section
   207(3) of the Environmental Protection Act 1994.”

10. Condition L5 gives more definition to the post-closure care programme. It states:187

    “The program of post-closure implemented must be effective in preventing and/or minimising the likelihood of environmental

    harm being caused and must achieve the final rehabilitation

    criteria stated in condition L3. The program must include measures
    to:

    1.        maintain the structural integrity and effectiveness of the final capping system;

    2.        maintain and operate the leachate collection system;

11. T31-88, L7-17.

12. Ex.6.001, p.33.

13. Ex.6.001, pp.33-34.

    3.        maintain the groundwater monitoring program and monitor quality of groundwater at a frequency sufficient to detect any release of contaminants to groundwater;

    4.        monitor long term subsidence and instability using routine GPS survey monitoring, Lidar or equivalent monitoring methods, to provide a means to quantify the occurrence of subsidence and link the results to the groundwater monitoring program;

    5.        maintain and operate the landfill gas monitoring system; and

    6.        maintain and operate the landfill gas collection system.

    Note: This condition continues to apply after the environmental

    authority has ended or ceased to have effect pursuant to section
    207(3) of the Environmental Protection Act 1994.”

14. Whilst operational, the proposed land use will see 37 staff employed, of which 20 will be associated with the reprocessing and recycling component.188

15. The proposed operating hours will be 6am to 6pm, Monday to Saturday, and 9am to 4pm Sunday, but by appointment only.189

The statutory assessment and decision-making framework

1. It is common ground that the statutory assessment and decision-making framework for the appeal is prescribed by the PA.190 This Act requires, inter alia, the development application be assessed in accordance with s 45 and decided in accordance with ss 59(3) and 60.

[111] The clear words of ss 45(3)(a) and 45(5)(a)(i) mandate an assessment of the development application against assessment benchmarks in a categorising instrument. Section 45(7) confirms the reference to an assessment benchmark is to one in effect when the development application was properly made. Here, that captures, inter alia, the planning scheme.

1. The statutory framework for the impact assessable component of the development application is to be approached consistently with recent Court of Appeal authority, which includes Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987,

   Abeleda v Brisbane City Council (2020) 6 QR 441, Wilhelm v Logan City Council & Ors [2021] QPELR 1321 and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022]

   QPELR 309. Having regard to these authorities, it can be observed that:

(a) the ultimate decision called for when making an impact assessment under ss 45 and 60 of the PA is a ‘broad evaluative judgment’;191

1. Ex.8.011, p.27, para 94.

2. Ex.8.011, p.27, para 93.

3. Ex.13.001, para 10; Ex.13.022, para 5; Ex.14.024, para 9(b); Ex.15.001, para 23 to 35.

4. YQ Property, per Henry J at [59].

(b)	in contrast to its statutory predecessor, the discretion conferred by s 60(3) of the PA admits of more flexibility to approve an application in the face of non- compliance with a planning scheme;
(c)	the exercise of the discretion under s 60(3) of the PA is subject to three requirements, including that it be based on the assessment carried out under s 45;192 and
(d)	the PA does not alter the characterisation of a planning scheme – it remains a reflection of the public interest.193

[113]    In this case, Council submits the planning scheme is a reflection of the public interest, but contends time and circumstances mean it does not paint a complete and contemporary picture. Council, in this context, invites the Court to look at contemporary forward planning and policy. In particular, the Court is invited to have regard to policy promulgated by the State Government in relation to waste management. This policy came into existence well after the planning scheme was adopted in 2006.

[114]    It is, as Council submits, correct to say a planning scheme embodies the public interest. It is, in my view, also correct to say a planning scheme is not the only source of information about the public interest. Appellate authority referred to above does not suggest otherwise. In the context of an impact assessable development application, the proposition can be accepted given three matters of statutory context, namely:

(a)	the PA, unlike its predecessor, does not mandate refusal of an impact assessable application where there is conflict with a planning scheme – the planning scheme no longer has assumed primacy in the assessment process;194
(b)	no provision in the PA suggests assessment benchmarks are the only source for discerning the public interest for an impact assessment; and
(c)	the assessment and decision-making framework permits the assessment manager to consider a broad range of ‘relevant matters’ (s 45(5)(b)) in the exercise of the planning discretion, including matters from which the public interest or planning policy may be discerned – it is an examination of the assessment benchmarks and, where appropriate, relevant matters, that permit the decision maker to reach a balanced decision in the public interest.

1. I would also add there is appellate support for the proposition advanced by Council. Mason P (with whom Spigelman CJ and Ipp JA agreed) observed in Terrace Tower

   Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 at 209-210,

   [81]:

   “In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great weight and at times

2. Abeleda, per Mullins JA (as her Honour then was) at [53] and [58].

3. Abeleda, per Mullins JA at [42] and [54].

4. Abeleda, per Mullins JA at [53].

   determinative weight, but they are not the only source of information concerning the public interest in planning matters….Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the “public interest”. For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest…”

5. Whilst Mason P was considering a different legislative regime to the one applying here, his Honour’s observations are, in my view, apposite given the statutory context referred to in paragraph [114](c).

6. Whilst a particular case may call for the public interest to be examined by reference to an adopted planning scheme and other relevant matters, the extent to which the latter informs the outcome of that examination involves matters of fact and degree. The outcome will of course be informed by, inter alia, the knowledge that a planning scheme is a statutory instrument with the force of law. Decision making that maintains confidence in such a document is itself a matter of public interest. For reasons that follow, the facts and circumstances here do not suggest the planning scheme is inconsistent with contemporary expressions of waste management policy or the public interest.

7. The issues for determination also call for consideration to be given to matters that were the subject of the exercise of referral agency jurisdiction by the Chief executive under the PA. In particular, non-compliance is alleged with State Code 22: Environmentally relevant activities.195 Version 2.1 of the document was in force when the development application was properly made.196

8. It was submitted on behalf of the Chief executive that State Code 22, which forms part of the State Development Assessment Provisions, is prescribed by the Planning Regulation 2017 (Regulation) as a matter which the Court must assess the application against.197 It was submitted this follows as a consequence of two things:198 (1) because the Chief executive, when exercising the referral jurisdiction, must assess the application against State Code 22; and (2) the Court in deciding the appeal anew steps into the shoes of the assessment manager and, where relevant, the Chief executive.

[120]    I have some misgivings about the submissions made on behalf of the Chief executive in relation to this issue. The schedule and provisions of the Regulation upon which reliance was placed apply to the Chief executive’s exercise of the referral jurisdiction, and not the assessment manager. That is important because the appeal before the Court is against a deemed decision of the assessment manager and not that of the referral agency. In this context, I was not taken to any provisions of the PA that directs the assessment manager (or this Court on appeal) to treat the

1. Ex.15.001, paras 30 and 31.

2. Ex.15.001, para 32.

3. Ex.15.002, para 10; relying upon Planning Regulation 2017, Schedule 10, Part 5, Division 4, Table 2, Item 4, which calls up State Development Assessment Provisions for an ERA.

4. Ex.15.022, para 11.

   State Development Assessment Provisions as assessment benchmarks or mandatory considerations under s 45(5) of the PA.

5. It is unnecessary to express any concluded view about this point. This is because the list of issues agreed between the parties identify alleged non-compliances with State Code 22. No party contended this document, or any assessment against it, was irrelevant. The issue for Court was whether an assessment against the document establishes a basis for refusal. To consider the reasons for refusal fully, I have therefore undertaken an assessment of the development against the parts of State Code 22 put in issue. That assessment demonstrates compliance, which has been given weight in the exercise of the discretion. It favours approval.

Planning context

[122]   The planning scheme is an assessment benchmark against which the development application must be assessed.

[123]   The planning scheme was prepared, and took effect, when the Integrated Planning

Act 1997 (IPA) was in force. It ‘provides a framework for managing development in

a way that advances the purpose’ of that Act.199 For the purposes of this appeal, nothing turns on the differences between the purpose of the IPA and the PA. A review of each purpose statement reveals at the heart of both Acts is an express intention to achieve ‘ecological sustainability’.200

1. The planning scheme is divided into 9 localities.201 Planning scheme maps reveal the land is included in the Regionally Significant Business Enterprise and Industry Areas locality (RSBEIAL). This locality is divided into six zones.202 The land is included in two of the six zones; partly in the Regional Business and Industry Investigation Zone (Investigation zone) and partly in the Regional Business and Industry Buffer Zone (Buffer zone).203 That part of the land included in the Investigation zone is separated from adjoining land by a broken line on the zoning map. This indicates the land is part of an area ‘subject to further detailed

   assessment’. A note in the planning scheme suggests assessment of this kind occurs

   as part of the development application process.204

2. Some zones in the planning scheme incorporate Sub Areas and Precincts.205 A note to the planning scheme indicates the division of zones in this way has a particular purpose. It is to reflect that certain areas have features affecting the application of, inter alia, assessment criteria.206 That part of the land included in the Investigation zone forms part of Sub Area RBIA2 – Swanbank New Chum (RBIA2).

3. Ex.3.001, p.1-3, s 1.1.

4. s 1.2.1, IPA; s 3(1) and (2), PA. It is a ‘balance that integrates’ identical considerations in each Act (s 1.3.3, IPA and s 3(2), PA).

5. Ex.3.001, p.1-11, s 1.11.

6. Ex.3.001, p.1-12, s 1.12(1)(c).

“In each of those cases the effect on amenity and need were considered and in each a detrimental effect on amenity together with an absence of need was decisive. It is difficult to see how it could be said that their Honours proceeded upon a wrong principle in treating the absence of need as a relevant consideration. In such a case, if it is decided that the proposed development would have a detrimental effect on the amenity of the area in question, the judge must then

1. Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347, [13].

   decide whether, notwithstanding the detrimental effect on the amenity of the area, there has been shown to be a need for the proposed use which would render the effect on the amenity of the area justifiable.”796

2. Whilst this observation relates to a now repealed statutory assessment and decision making framework, there is no reason to suggest it has no application to the exercise of the planning discretion under s 60(3) of the PA. It has in mind this Court will closely consider need where it is found a proposal would have a detrimental effect on the amenity of the area in question. In that circumstance, the question to be asked and answered is as follows: whether there has been shown to be a need for the proposed development that would render the effect on amenity justifiable?

[873]    This question does not arise here because the proposed development can be conditioned to manage its impacts on amenity. It will not, to use the language of

Arksmead, have a detrimental effect on the amenity of the area in question.

1. In this appeal, everything that could be said in support of refusal was said on behalf of the refusing parties. This is not intended as a criticism. The complex nature of the proposal, and the risk it poses to the environment if not properly planned and executed, called for nothing less. This meant the proposal was subject to rigorous assessment by a number of highly qualified and experienced experts. That this is so is evident from the large body of evidence before the Court. The evidence, which I accept, led me to conclude that the proposed development is a meritorious one, which complies with the planning scheme.

[875]    The highest the refusal case could be put at the end of these reasons is that compliance with the planning scheme should not prevail given: (1) there is a technical non-compliance with Specific Outcome 4(5)(a) of the Activity Code; and (2) there is an absence of need for the landfill component of the development. These considerations, taken individually or collectively, do not persuade me the development application should be refused in the face of compliance with the planning scheme. In my view, to refuse the development application in the face of compliance with the planning scheme would not represent a balanced decision in the public interest.

Conclusion

1. The development application is meritorious one. It will be approved in due course, subject to conditions.

2. The appeal will be adjourned to allow the parties to prepare a conditions package consistent with these reasons for judgment.

3. I will hear from the parties as to a suitable review date.

4. Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347, [13].

ANNEXURE A - LIST OF ISSUES

The Court, in exercising its discretion under sections 60(2) and 60(3) of the Planning Act

2016 (Qld) in the Appeal, will need to determine the following matters remaining in

dispute:

Planning Framework

1.          Whether the “Statement of Proposals including the draft Strategic Framework for the New Ipswich Planning Scheme” (Statement of Proposals) is a relevant matter for the Court to consider in the decision-making process.

2.          Whether TLPI 1 of 2020 (TLPI) has relevance to the decision-making process as:

(a)	an assessment benchmark; or
(b)	a relevant matter.

Weight

3.          If the Statement of Proposals should be considered by the Court, whether any weight should be given to the Statement of Proposals in the decision-making process.

4.          The extent to which the TLPI should be given weight in the decision-making process.

5.          The extent to which weight should be given (in support of approval) to the fact that an Environmental Authority has been issued.

6.          Whether compliance with the conditions in the Environmental Authority are in issue, and if so, whether these conditions cannot be complied with.

Resource recovery and sustainability

7.          Whether the proposed development promotes resource recovery or will act as a disincentive for resource recovery.

8.          Whether:

(a)	approval of the landfill component of the proposed development would facilitate, or cut across, the achievement of waste reduction targets; and
(b)	the resource recovery component justifies the landfill component of the development.

9.          Whether the landfill component constitutes sustainable development.

10.        Whether there is a “planning principle” that ‘resource recovery should be

promoted (with landfill used as a last resort)’, and if so, whether the proposed

development is contrary to that planning principle, having regard to the planning provisions and other State policy documents or is otherwise unacceptable having regard to the matters set out in the following table:

Assessment	Matters prescribed	Other relevant
benchmarks PA,	by regulation PA,	matters PA, section
section 45(5)(a)(i)	section 45(5)(a)(ii)	45(5)(b)

Focal Ipswich Planning SEQ Regional Planning Act 2016

Scheme 2006	Plan 2017	s.5(2)(c)
s.6.7(4)(a)(i)(A)	Theme 4 – Sustain, as it refers to achieving ‘zero net
waste’

Contextual	Ipswich Planning	Planning Act 2016
Scheme 2006	s.5(2)(a)(i)
s.6.7(4)(a)(iv)(A)	s.5(2)(a)(iii)
s.6.7(4)(a)(iv)(D)	s.5(2)(j)
Statement of Proposals
s.3.2.1(23)
s.3.5.4.2(6)(j)(iii)
s.3.5.4.4(1)(a), (b), (c),
(d)
Figure 3 – Waste Management Hierarchy s.3.7.8.4(8)
Other relevant State policy documents
Queensland Resource Recovery Industries 10 Year Roadmap and Action Plan: Strategy 2 – Market and supply chain development
State Infrastructure Plan: Part B: Resource recovery (page 40), as it refers to ‘maximising the recovery of construction materials used in building and infrastructure projects is pivotal to conserving resources’
Waste Management and Resource Recovery Strategy (Note: relevant sections listed in RFR)
Queensland Energy from Waste Policy
Need

11.        Whether there is an economic, community or planning need for the proposed development, including:

(a)	whether ‘supply’ of landfill airspace should be determined by reference to private non-putrescible landfill airspace, or total landfill airspace;
(b)	whether approval of the proposed development would support increased convenience and competition for users of waste recovery and landfill facilities in the local area and South East Queensland;
(c)	whether there is an adequate supply of landfill airspace for the waste sought to be accepted by the landfill in Ipswich and in South East Queensland;
(d)	whether the estimated time for development and completion of the landfill (14-18 years) is:

(i)         accurate; and

(ii)        appropriate, having regard to the nature and extent of need determined.

12.        Whether approval of the proposed development will act as a disincentive, or an incentive, for resource recovery.

13.        Whether approval of the proposed development will have economic benefits, including by meaningfully contributing to:

(a)	building economic opportunities through the circular economy;
(b)	diversity of industry in Ipswich and South East Queensland;
(c)	employment; and
(d)	economic resilience.

14.        Whether the Ipswich community will benefit from approval of the proposed development in any material respect.

15.        Whether the proposed development satisfies the test for need which is in the Statement of Proposals, having regard to the following provisions:

(a)	focal provision: s.3.5.4.4(5)(a)(i); and
(b)	contextual provisions: ss.3.2.1(23), 3.5.4.2(6)(j)(iii), 3.5.4.4(1)(a), (b),

(c), (d), and 3.5.4.4(5)(a)(ii).

Environmental Outcomes

Geotechnical and landfill design

16.        Whether the design of the landfill component of the proposed development appropriately addresses the risk of total and differential settlement.

17.        Whether the lower liner systems proposed will be able to provide an appropriate level of protection to the environment, including groundwaters, from the waste received to the landfill.

18.        Whether the risk of underground fires, and fires within the waste mass caused by spontaneous combustion, is able to be acceptably managed by the proposal.

19.        Whether the landfill component of the proposed development will produce a final landform able to be used for industrial purposes.

20.        Whether a source of suitable clay soil to construct the liners could be obtained.

21.        Whether sources for suitable daily, final and intermediate cover could be obtained.

Surface water and stormwater

22.        Whether the partial dewatering of the void as part of the backfill construction methodology will have any unacceptable impacts on the Six Mile Creek and the Six Mile Creek greenspace corridor (Receiving Environment), including on:

(a)	flow rates, and any consequential erosion; and
(b)	water quality.

23.        Whether the proposed development will result in unacceptable surface water and stormwater impacts to the Receiving Environment.

24.        Whether the stormwater management regime proposed is appropriate to manage the changes to the stormwater and surface water flows which currently occur on the site (primarily into the void).

Groundwater

25.        Whether the proposed development will result in unacceptable impacts or risks to groundwaters, now and in the future.

Rehabilitation

26.        Whether:

(a)	there will be unacceptable risks to the natural environment post-closure of the landfill component; and
(b)	landfilling is consistent with the existing mining rehabilitation requirements for the site under Environmental Authority EPML02454414.

27.        Whether there is an unacceptable environmental risk arising from the potential that the landfill component of the proposed development will be commenced but not completed, or appropriately rehabilitated and maintained into the future.

28.        Whether the inclusion of trees and shrubs on the final landfill landform is appropriate.

29.        Whether any benefits will accrue from rehabilitation of the mining void by landfilling being carried out as a condition of approval of the proposed development, as opposed to under any existing rehabilitation obligations.

30.        Whether the following conservation outcomes (to the extent they are established) support approval of the development application:

(a)	greater conservation outcomes for the locality generally;
(b)	increased koala habitat and movement corridors;
(c)	restored natural drainage channels; and
(d)	the preparation and implementation of a rehabilitation Strategy for Six Mile Creek.

General environmental risk

31.        Whether there is a planning principle that development should not ‘cause (or

have the potential to cause) contamination or other adverse environmental impacts’, and if so whether the proposed development is contrary to that

planning principle.

32.        Whether approval of the proposed development would be contrary to any planning principle found at matter 31 above, or otherwise have an unacceptable impact on the environment, having regard to the following planning provisions:

Assessment benchmarks	Matters	Other relevant
PA, section 45(5)(a)(i)	prescribed by	matters PA, section
regulation PA,	45(5)(b)
section 45(5)(a)(ii)

Focal	Ipswich Planning	TLPI
Scheme 2006	Waste Activity Code
s.6.7(2)(a)
s.6.7(2)(b)(ii)	OO3(2)(a)
s.6.15(15)(c)	OO3(2)(b)(iii)
s.12.7.3(2)(b)	SO4(5)(a) SO4(6)(c)
TLPI	SO4(6)(d)
Waste Activity Code
OO3(2)(a) OO3(2)(b)(iii)
SO4(5)(a) SO4(6)(c) SO4(6)(d)
In relation to the

code	assessable
application	for

concurrence ERAs:

State Code 22

PO4 and PO5
only insofar as they
go to satisfying the
standard criteria
identified in Schedule

4 of the

Environmental

Protection Act 1994

(Qld)

Contextual Ipswich Planning State Interest – Planning Act 2016

Scheme 2006	Water Quality	s.5(2)(a)(i)
s.3.1(3)(b)	Policy (1), (3)(a),	s.5(2)(a)(ii)
s.3.1(3)(i)	3(b), 3(d), (4), (5)	s.5(2)(a)(iii)
s.3.2(1)(b)	s.5(2)(a)(j)
s.3.2(1)(i)	State Interest –
s.6.7(2)(c)	Emissions and	Statement of
s.6.7(4)(a)(i)(D)	Hazardous Activities	Proposals
s.6.7(4)(a)(iv)(G)(I)	Policy (4)(a)	s.3.4.3.1(4)(c)
s.6.7(4)(a)(vi)(D)(II)	s.3.5.4.3(2)(b)
s.6.15(15)(i),	s.3.5.4.4(3)(c)
s.12.7.3(2)(a)(xii)	s.3.5.4.4(3)(d)
s.12.7.3(2)(a)(xiii)	s.3.5.4.4(3)(g)
s.12.7.4(5)(c)(iii)	s.3.5.4.4(5)(a)(iii)(C)
In relation to the	s.3.7.8.4(8)(c)(iii)
code assessable	s.3.7.8.4(8)(c)(iv)
application for
concurrence ERAs:	State Code 22
Purpose statement 1
Environmental	PO4
Protection
Regulation 2008	PO5
(Qld)
Environmental

objectives and

performance
outcomes for site
suitability, location

and critical design

requirements in

Schedule 5, Part 3,

Table 2

Environmental

Protection Act 1994

Schedule 4

Standard criteria

State Code 22

Purpose statement 1

Planning outcomes

Land use

33.        Whether the proposed development can accommodate future land use consistent with the planning intention in the Ipswich Planning Scheme 2006.

34.        Whether the proposed development is well-located having regard to:

(a)	the intent and requirements of the Ipswich Planning Scheme 2006 and the TLPI;
(b)	the constrained nature of the land the subject of the proposed development as a result of former mining activities;
(c)	similar uses in the locality;
(d)	its proximity to:

(i)         waste sources;

(ii)        appropriate road infrastructure; and

(iii)       a planned terminal for the inland rail project;

(e) community expectations, based on the Ipswich Planning Scheme

2006, the TLPI and the Statement of Proposals (to the extent it is

relevant);

(f)	the landfill component of the Proposed Development being a difficult to locate activity; and
(g)	any environmental risks and impacts, and any amenity (visual amenity, the community’s perception and sense of place) impacts.

35.        With respect to the Queensland Department of Environment and Science document Guideline - Landfill siting, design, operation and rehabilitation (ESR/2015/1627, Version 4.01, effective 23 November 2018):

(a)	is the Guideline a relevant matter; and
(b)	does the Guideline militate against approval or refusal of the proposed development.

Rehabilitation

36.        Whether the proposed development will achieve positive rehabilitation outcomes for the land after the landfill use has ceased.

37.        Whether the following rehabilitation outcomes (to the extent they are established) support its approval:

(a)	achieving greater conservation outcomes for the Six Mile Creek greenspace corridor;
(b)	retaining all extensive, treed green space areas and retention of remnant vegetation where possible; and
(c)	increasing koala habitat by providing linkages to surrounding bushland.

38.        Were the land not to be developed for the proposed development, whether it is likely (having regard to the existing rehabilitation obligations in Environmental Authority EPML02454414) that the land will remain in its present state for longer than if an approval were granted, and remain in its current state with respect to:

(a)	its visual appearance to sensitive receptors;
(b)	hydrological and hydraulic outcomes for the Land and surrounding catchment, including Six Mile Creek;
(c)	ecological outcomes for the Land and surrounding catchment;
(d)	rehabilitation outcomes for the Land and surrounding catchment; and
(e)	land use planning outcomes for the Land.

39.        Whether the proposed development (Special industry) is inconsistent with rehabilitation obligations under Environmental Authority EPML02454414 (and in particular Schedule F – Land) which requires the land be made suitable for industrial uses.

40.        Whether the proposed development is contrary to the planning principle that development should not compromise the future capacity of land to be re-used in a way that is compatible with the surrounding area or the uses promoted in planning documents, or is otherwise unacceptable, having regard to the following planning provisions:

Assessment benchmarks	Matters	Other relevant
PA, section 45(5)(a)(i)	prescribed by	matters PA, section
regulation PA,	45(5)(b)
section 45(5)(a)(ii)

Focal	Ipswich Planning	TLPI Waste Activity
Scheme 2006	Code
s.6.6(2)(g)	OO3(2)(a)
s.6.7(4)(a)(i)(G)	OO3(2)(b)(v)
s.6.7(5)(e)(x)	SO4(4)(a)
s.6.14(2)(a)	SO4(4)(b)
s.6.14(2)(j)	SO4(4)(c)
s.6.15(15)(d)	SO4(5)(a)
s.6.16(2)(a)(iv) s.6.17(2)(t)
TLPI Waste Activity Code
OO3(2)(a) OO3(2)(b)(v) SO4(4)(a) SO4(4)(b) SO4(4)(c) SO4(5)(a)

Contextual	Ipswich Planning	SEQ Regional	Statement of
Scheme 2006	Plan	Proposals
s.6.6(2)(a)	2017	s.3.2.1(14)
s.6.6(2)(b)	Theme 2 – Prosper	s.3.2.1(16)
s.6.6(2)(c)	Theme 4 – Sustain	s.3.3.2.1(1)
s.6.6(2)(d)	s.3.5.4.2(5)(b)(iii)
s.6.6(2)(e)	s.3.5.4.2(6)(d)
s.6.6(2)(p)
s.6.6(2)(u)	s.3.5.4.2(6)(f)
s.6.7(4)(a)(i)(A)	s.3.5.4.3(1)(a)(iv)
s.6.7(4)(a)(i)(B)	s.3.5.4.3(1)(d) Map
s.6.7(4)(a)(i)(C)	SFM2
s.6.7(4)(a)(i)(D)	s.3.5.4.3(2)(a)
s.6.7(4)(a)(i)(F)	s.3.5.4.3(2)(b)
s.6.7(4)(a)(i)(H)	s.3.5.4.3(2)(c)
s.6.7(4)(a)(i)(I)	s.3.5.4.3(2)(d)
s.6.7(4)(a)(ii)(A)	s.3.5.4.3(2)(g)
s.6.7(4)(a)(ii)(B)	s.3.5.4.4(3)(g)
s.6.7(4)(a)(ii)(C)	s.3.5.4.4(5)(a)(ii)
s.6.7(4)(a)(ii)(D)(I)	s.3.5.4.4(5)(a)(iii)(B)
s.6.7(4)(a)(iv)(A)	s.3.7.8.4(1)
s.6.7(4)(a)(iv)(D)	s.3.7.8.4(2)
s.6.7(4)(a)(v)(A)	s.3.7.8.4(5)
s.6.7(4)(a)(v)(C)	s.3.7.8.4(7)(c)(i)
s.6.7(4)(a)(v)(D)(I)	s.3.7.8.4(7)(c)(ii)
s.6.7(4)(a)(v)(D)(IV)	Map LFM7
s.6.7(4)(a)(v)(D)(V)	s.3.7.8.4(8)(a)
s.6.7(4)(a)(vi)(A)	s.3.7.8.4(8)(b)
s.6.7(4)(a)(vi)(C)
s.6.7(4)(a)(vi)(D)(VII)	Environmental
s.6.7(4)(a)(vii)(A)	Authority
s.6.7(4)(a)(vii)(B)(III)	EPML02454414
s.6.7(5)(a)(i)(A)	TLPI
s.6.7(5)(a)(i)(B)	s.3.1
s.6.7(5)(a)(i)(C)	s.3.2.1(ii)
s.6.7(5)(a)(i)(D)
s.6.7(5)(a)(i)(E)	Waste Activity Code
s.6.7(5)(a)(i)(F)	SO4(2)
s.6.7(5)(a)(i)(G) s.6.7(5)(a)(i)(H) s.6.7(5)(a)(ii)(A) s.6.7(5)(a)(ii)(B) s.6.7(5)(g)(i)
Note 6.7J(a) s.6.14(2)(b) s.6.14(2)(c) s.6.14(2)(d) s.6.14(2)(e) s.6.14(2)(f)(i)
s.6.14(2)(f)(iii) s.6.14(2)(h) s.6.14(2)(r) s.6.15(15)(a) s.6.15(15)(b) s.6.15(15)(e) s.6.15(15)(g) s.6.15(15)(h) s.6.15(15)(i) s.6.16(2)(a)(iii) s.6.17(1) s.12.7.3(2)(a)(iii) s.12.7.3(2)(a)(viii) s.12.7.7(2)(a)(iii) s.12.7.8(2)(a)
SEQ Regional Plan 2017:
Chapter 3, Goal 2: Prosper Element 2 and Strategies 1 and 2, Element 5 and Strategies 1, 2 and 4,
Chapter 3, Western Sub-region
Outcomes for Prosper 6(d)
TLPI s.3.1 s.3.2.1(ii)
Waste Activity Code
SO4(2)
Amenity

41.        Whether the proposed development involves filling ‘beyond the top of former

mining voids’.

42.        Whether the following matters are relevant to the visual amenity issues in dispute:

(a)	the natural topography of the site and surrounding area has been significantly disturbed by open cut mining activities;
(b)	the land (in its current unrehabilitated state) has been stripped of its original character and visual amenity by previous land uses; and
(c)	the land (in its current unrehabilitated state) is currently visible to sensitive visual receptors.

43.        Whether the proposed development presents an opportunity to significantly improve long-term amenity outcomes for surrounding sensitive uses, and the wider community generally, than would be the case if the existing rehabilitation obligations in Environmental Authority EPML02454414 were carried out, as required.

44.        Whether, as a result of being visible to sensitive receptors during the operational phase and following completion, the proposed development will have unacceptable impacts on visual amenity, the community’s perception and sense of place.

45.        Whether the proposed development is of a type or scale appropriate for the prevailing nature of the area and particular circumstances of the site and its surrounds.

46.        Whether the proposed development will have unacceptable impacts on the general amenity of the area.

47.        Whether the proposed development will have unacceptable impacts on the community’s perception and sense of place.

48.        Whether the development complies with the following planning provisions:

Assessment	Matters prescribed	Other relevant
benchmarks PA,	by regulation PA,	matters PA, section
section 45(5)(a)(i)	section 45(5)(a)(ii)	45(5)(b)

Focal	Ipswich Planning	TLPI
Scheme 2006	Waste Activity Code
s.6.7(4)(a)(i)(A)	OO3(2)(a)
s.6.7(4)(a)(i)(G)	OO3(2)(b)(i)
s.6.7(4)(a)(v)(C)	OO3(2)(b)(ii)
s.6.7(4)(a)(v)(D)(II)	OO3(2)(b)(iv)
s.6.7(5)(a)(ii)(C)	OO3(2)(b)(v)
s.6.7(5)(e)(v)(A)	SO4(5)(a)
s.6.7(5)(e)(v)(B)	SO4(5)(b)
s.6.14(2)(a)	SO4(7)(a)
s.6.14(2)(f)(ii) s.6.14(2)(j) s.6.16(2)(a)(iv)(F) s.6.16(2)(b)(i) s.6.16(2)(b)(ii) s.6.17(2)(t) s.12.7.3(2)(a)(i) s.12.7.3(2)(a)(ii) s.12.7.4(1) s.12.7.8(2)(a)
TLPI Waste Activity Code
OO3(2)(a) OO3(2)(b)(i) OO3(2)(b)(ii) OO3(2)(b)(iv) OO3(2)(b)(v) SO4(5)(a) SO4(5)(b) SO4(7)(a)

Contextual	Ipswich Planning	SEQ Regional Plan	Planning Act 2016
Scheme 2006	2017	s.5(2)(i)
s.3.1(3)(j)	Theme 4 – Sustain
s.3.2(1)(j)	Theme 5 – Live	Statement of
s.6.6(2)(c)	Proposals
s.6.6(2)(d)	s.3.3.4(4)
s.6.6(2)(h)	s.3.3.4(5)(d)
s.6.6(2)(i)	s.3.3.4(5)(f)
s.6.7(3)(a)	s.3.5.4.4(3)(e)
s.6.7(3)(b)	s.3.5.4.4(5)(a)(iii)(B)
s.6.7(4)(a)(i)(H)	s.3.5.4.4(5)(e)
s.6.7(4)(a)(i)(I)	s.3.7.8.4(9)(a)
s.6.7(4)(a)(ii)(D)(II)	s.3.7.8.4(10)(a)
s.6.7(4)(a)(v)(A)	s.3.7.8.4(10)(b)
s.6.7(4)(a)(v)(D)(I)	s.3.7.8.4(12)(a)
s.6.7(4)(a)(v)(D)(IV)
s.6.7(4)(a)(v)(D)(V)	TLPI
s.6.7(4)(a)(vi)(A)	Waste Activity Code
s.6.7(4)(a)(vi)(D)(VII)	SO4(4)(a)
s.6.7(5)(a)(i)(C)	SO4(4)(b)
s.6.7(5)(e)(ix)	SO4(4)(c)
s.6.14(2)(c) s.6.14(2)(d) s.6.14(2)(h) s.6.14(2)(k) s.6.15(2)(c)(ii)
s.6.15(2)(c)(iv) s.6.15(15)(i)(i) s.6.15(15)(i)(iv)
s.12.7.3(2)(a)(iv) s.12.7.3(2)(a)(v) s.12.7.2(2)(a)(vii)
s.12.7.7(1)(g) s.12.7.7(2)(b)(ii) s.12.7.7(2)(b)(iv) s.12.7.8(2)(e)
TLPI Waste Activity Code
SO4(4)(a) SO4(4)(b) SO4(4)(c)