Botany Bay City Council v Minister for Planning - [2006] NSWLEC 194

No judgment structure available for this case.

Reported Decision: (2006) 148 LGERA 251

Land and Environment Court

of New South Wales

CITATION: Botany Bay City Council v Minister for Planning & Anor [2006] NSWLEC 194

PARTIES:
APPLICANT:
Botany Bay City Council
FIRST RESPONDENT:
Minister for Planning
SECOND RESPONDENT:
Sydney Ports Corporation

FILE NUMBER(S): 41280 of 2005

CORAM: Lloyd J

KEY ISSUES:
Judicial Review :- validity of development application – validity of environmental impact statement – validity of supplementary material to environmental impact statement – validity of development consent – alleged failure to consider relevant matters – substantial compliance sufficient

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 76A(9), 78A(8),119(1), 102, 123
Environmental Planning Regulation 2000 cll 71(f), 72, 73, Schs 2 and 3
Interpretation Act 1987 s 80(1)
Land and Environment Court Act 1979 s 25B

CASES CITED: Association for Berowra Creek Inc v Minister for Planning (2003) 124 LGERA 99;
Belize Alliance of Conservation Non-Governmental Organisations v The Department of the Environment [2004] Env LR 38, [2004] UKPC 6 PC ;
Botany Bay City Council v Remath Investments (No. 6) Pty Ltd, NSWCA, 23 December 1998, unreported;
Botany Bay City Council v Remath Investments (No. 6) Pty Ltd (2000) 50 NSWLR 312 ;
Cameron v Lake Macquarie City Council (2000) 107 LGERA 308;
Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257;
CIC Insurance v Bankstown Football Club Inc (1997) 187 CLR 355;
Cranky Rock Road Action Group Inc v Cowra Shire Council [2005] NSWLEC 674;
Currey v Sutherland Shire Council (2003) 129 LGERA 223;
Evans v Marmont (1997) 42 NSWLR 70 ;
Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275;
Helman v Byron Shire Council (1995) 87 LGERA 349;
King v Great Lakes Shire Council (1986) 58 LGRA 366;
Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270;
Marnal Pty Ltd v Cessnock City Council (1989) LGRA 135;
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;
Minister for Immigration & Multicultural Affairs v Thiyagarjal (2000) 74 ALJR 549;
Parramatta City Council v Hale (1982) 47 LGRA 319;
Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402;
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615;
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322;
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327;
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57;
Schroders Australia Property Management Ltd v Shoalhaven City Council (1999) 110 LGERA 130;
Wade v Burns (1966) 115 CLR 537;
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 ;
Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86;
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 08/03/2006; 09/03/2006; 10/03/2006; 13/03/2006; 14/03/2006 and 15/03/2006

DATE OF JUDGMENT:
05/03/2006

LEGAL REPRESENTATIVES:
APPLICANT:
T S Hale SC and D P Wilson (barrister)
SOLICITORS:
Houston Dearn O'Connor
FIRST RESPONDENT:
J E Griffiths SC and P R Clay (barrister)
SOLICITOR:
Christine Hanson
Department of Planning
SECOND RESPONDENT:
B R McClintock SC and M L Wright (barrister)
SOLICITORS:
Minter Ellison

JUDGMENT:

- 40 -

Contents

Section Paragraph Number

Background ....................................................................................................... 1 to 8

The present proceedings ........................................................................................ 9

The proposed development ......................................................................... 10 to 13

The statutory requirements ......................................................................... 14 to 20

The Director-General’s requirements ......................................................... 21 to 24

Conclusions .................................................................................................. 25 to 33

Can the supplementary information form part of the EIS and the development application? ................................................................................................... 34 to 44

The Evidence ................................................................................................. 45 to 85

Noise and vibration .............................................................................. 47 to 54

Vibration from road and rail ....................................................... 48 to 53

Noise from road – 40/60 split ............................................................. 54

Hazard analysis ................................................................................... 55 to 85

Findings on the evidence ............................................................................ 86 to 89

The alleged invalidity of the consent .......................................................... 90 to 94

Discretionary considerations ...................................................................... 95 to 97

Orders ..................................................................................................................... 98

ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Wednesday, 3 May 2006

LEC No. 41280 of 2005

BOTANY BAY CITY COUNCIL v MINISTER FOR PLANNING & ANOR [2006] NSWLEC 194

JUDGMENT

Background

1 HIS HONOUR: The second respondent, Sydney Ports Corporation, made a development application on 26 November 2003 for the construction and operation of a new container terminal and associated infrastructure at Port Botany. The development will effectively double the present capacity of the port and will cost an estimated $576 million. The development is State significant development for which the consent authority is the Minister for Planning: s 76A(9) of the Environmental Planning and Assessment Act 1979 (“the EPA Act”).

2 The development is designated development within the meaning of Sch 3 of the Environmental Planning Regulation 2000 (“the Regulation”), thus requiring an Environmental Impact Statement (“EIS”) to accompany the development application. An EIS of 10 volumes accompanied the application.

3 On 27 January 2004 the Minister directed that a Commission of Inquiry (“COI”) be held into all environmental aspects of the proposal pursuant to s 119(1) of the EPA Act.

4 The development application and the accompanying EIS were publicly exhibited for a period of eight weeks from 28 January 2004.

5 The COI commenced on 11 May 2004 when the applicant was requested to provide certain additional information. On 28 May 2004 the Minister extended the terms of reference of the COI to include a review of alternative options to the proposal and the COI was then adjourned.

6 In August 2004, in response to the request for additional information and the additional terms of reference, Sydney Ports Corporation lodged with the Minister’s Department and with the office of the COI the additional information sought, including a supplementary submission to the EIS, comprising two volumes.

7 The original development application, the EIS and the additional information were publicly exhibited from 26 August 2004 for one month. In October 2004 the COI resumed.

8 In May 2005, the report of the COI was produced and it recommended that the proposed development be not approved, but that a smaller expansion of the port be approved. In October 2005 the Department of Planning prepared a report for consideration of the Minister to which was annexed all documents before the Minister when the Minister determined the development application on 13 October 2005. The Minister did not accept the recommendation of the COI, but instead granted consent to the development application as sought, subject to conditions.

The present proceedings

9 On 31 October 2005, Botany Bay City Council (“the council”) commenced these proceedings. The council claims a declaration that the development consent is invalid. The council does not have a right of appeal against the Minister’s consent. It brings the proceedings under s 123 of the EP&A Act, alleging that the Minister’s consent was unlawful. It is said that the consent was unlawful for the following reasons:

EP&A Act

(i) there was a failure to comply with the requirements of the Director-General of the Department of Planning relating to the inclusion in the EIS of an assessment of hazard and risk, as required by cl 73 of the Regulation .

(ii) there was a failure to address noise from truck movements and to address vibrations by road and rail traffic, as required by cl 72(1)(b) and Sch 2 of the Regulation ;

Regulation

(b) In the absence of a valid development application there was nothing to which the Minister could grant his consent.

The proposed development

10 An internationally recognised measurement for containers is twenty-foot equivalent units (“TEUs”). A standard twenty-foot container equals one TEU. A forty-foot container equals 2 TEUs. More than 90 percent of containerised cargo which enters or leaves Sydney’s ports each year is handled at Port Botany, with approximately 80 per cent of these containers packed or unpacked within the greater metropolitan area of Sydney.

11 The proposed development would create an additional five container ship berths, with approximately 63 hectares of land and a capacity of about 1.6 million TEUs per year. This would result in a total capacity at Port Botany of more than 3 million TEUs per year.

12 At present rail freight accounts for approximately 25 per cent of land-based container transport to and from Port Botany. Sydney Ports Corporation has an existing aim of increasing the rail mode share to at least 40 per cent. Sydney Ports Corporation is specifically promoting the development of a new intermodal freight terminal at Enfield which would be linked to Port Botany by the existing dedicated freight rail line, and would assist in increasing the volume of freight transported by rail.

13 It is self-evident that there will be thus an increase in the impact of the additional rail traffic trough the Botany Bay City Council area. And even with 40 per cent of containers transported by rail there will be a considerable increase in the number of containers being transported by road through the Botany Bay City Council area. It can be expected that some of the containers would contain hazardous material. It is the alleged failure of the EIS to properly assess these impacts and the alleged failure on the part of the Minister to properly consider the vibration from road and rail transport and the noise from road transport which give rise to the council’s concerns. In a case such as this, however, which is limited to a challenge to the lawfulness of what was done, the Court must be mindful to not exceed its role by impermissibly reviewing the merits: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42.

The statutory requirements

14 Section 78A(8) of the EP&A Act requires an application for designated development to be accompanied by an EIS “in the form prescribed by the regulations”.

15 Clause 71 of the Regulation states:

For the purposes of section 78A(8) of the Act, the prescribed form for an environmental impact statement to accompany a development application is a form that contains the following information:

(a) the name, address and professional qualifications of the person by whom the statement is prepared,

(b) the name and address of the person by whom the development application was made,

(c) the address of the land in respect of which the development application was made,

(d) a description of the development to which the statement relates,

(e) an assessment by the person by whom the statement is prepared of the environmental impact of the development to which the statement relates, dealing with the matters referred to in clause 72,

(i) the statement has been prepared in accordance with clauses 72 and 73, and

(ii) the statement contains all available information that is relevant to the environmental assessment of the development to which the statement relates, and

16 Clause 72(1) states that the contents of an EIS must include:

(a) for development of a kind for which specific guidelines are in force under this clause, the matters referred to in those guidelines, or

(b) for any other kind of development:

(i) the matters referred to in the general guidelines in force under this clause, or

(ii) if no such guidelines are in force, the matters referred to in Schedule 2.

17 In the present case sub-cll (a) and (b)(i) of cl 72(1) are not relevant, so that the matters referred to in Sch 2 apply.

18 Schedule 2 of the Regulation relevantly includes the following:

Environmental assessment

An analysis of the development or activity, including:

(a) a full description of the development or activity, and

(b) a general description of the environment likely to be affected by the development or activity, together with a detailed description of those aspects of the environment that are likely to be significantly affected, and

(c) the likely impact on the environment of the development or activity, and

(d) a full description of the measures proposed to mitigate any adverse effects of the development or activity on the environment, and

19 Clause 73(1) of the Regulation states:

(a) as to the form and content of the statement, and

20 Finally, s 102 of the EP&A Act states:

(1) This section applies to a development consent granted, or purporting to be granted, by the Minister, before or after the commencement of this section.

(2) The only requirements of this Act that are mandatory in connection with the validity of a development consent to which subsection (1) applies are as follows:

The Director-General’s requirements

21 By letter dated 9 April 2002 addressed to Mr Matt Coetzee, Principal of URS Australia Pty Ltd, the Director-General set out his requirements for the EIS for the present project. The letter relevantly states:

…

Key Issues

Ø Include a Preliminary Hazard Analysis of the proposal that has been prepared in accordance with Planning NSW’s Hazardous Industry Planning Advisory Paper No. 6: Guidelines for Hazard Analysis and Multilevel Risk Assessment Guidelines;

Ø Consider the potential impacts associated with storing and handling dangerous goods on-site, and transporting dangerous goods to and from the site; and

Ø Demonstrate that the proposal is consistent with the Port Botany Land Use Safety Study (DUAP, 1996);

22 The EIS was then prepared by URS Australia Pty Ltd on behalf of Sydney Ports Corporation. The ten volume EIS was completed in November 2003 and it includes the declaration required by cl 71(f) of the Regulation. That declaration states that the EIS was prepared by Michael Young and Matt Coetzee of URS Australia Pty Ltd and it is signed by them.

23 It is common ground that the two-volume supplementary submission to the EIS prepared by URS Australia Pty Ltd did not contain the declaration required by cl 71(f).

24 Mr T S Hale SC, appearing with Mr D P Wilson for the council, made the following submissions as I understand them:

(1) A development application for designated development that is not accompanied by an EIS which complies with s 78A(8) of the EP&A Act is not a valid application and cannot provide a foundation for the grant of development consent: Botany Bay City Council v Remath Investments (No. 6) Pty Ltd , NSWCA, 23 December 1998, unreported; Botany Bay City Council v Remath Investments (No. 6) Pty Ltd (2000) 50 NSWLR 312; Helman v Byron Shire Council (1995) 87 LGERA 349; Association for Berowra Creek Inc v Minister for Planning (2003) 124 LGERA 99.

(2) There was no valid EIS because there was a failure to comply with cll 72 and 73 of the Regulation . The EIS did not adequately address the matters referred to in Sch 2 to the Regulation , contrary to cl 72(1)(b), relating to noise and vibration from road and rail movements and noise from trucks; and the EIS failed to have proper regard to the Director-General’s requirements under cl 73 regarding the assessment of hazard and risks.

(3) In particular, the words “must have regard to the Director-General’s requirements” in cl 73 are imperative rather than directory and are tantamount to an obligation to comply: Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402; Botany Bay City Council v Remath Investments (No. 6) Pty Ltd , NSWCA, 23 December 1998, unreported. In this respect, the EIS failed to properly comply with the Director-General’s requirements relating to hazard and risks assessment.

(4) The two-volume supplement to the EIS, including the supplementary Preliminary Hazard Analysis (“PHA”), could not cure the defects in the original EIS, because none of that material was certified by the persons who prepared it, as required by cl 71(f) of the Regulation and because the notice of public exhibition of that material was misleading.

(5) The Court should exercise its discretion by granting the relief now sought because the deficiencies in the EIS are substantial, there is no valid development application which is capable of being the subject of consent; and no work has been commenced in reliance upon the consent.

Conclusions

25 I now set out my conclusions and examine the evidence which is said to support the council’s submissions.

26 As the authorities on which the council relies show, if there is no valid development application then there is nothing that can provide a foundation for a valid development consent: Botany Bay City Council v Remath Investments (No. 6) Pty Ltd, NSWCA, 23 December 1998, unreported; Botany Bay City Council v Remath Investments No. 6 Pty Ltd (2000) 50 NSWLR 312; Helman v Byron Shire Council (1995) 87 LGERA 349; Association for Berowra Creek Inc v Minister for Planning (2003) 124 LGERA 99. Moreover, in the absence of a valid development application there is no room for the operation of s 102 of the EP&A Act, which specifies the only requirements of the Act which are mandatory relating to the validity of a development consent granted or purporting to be granted by the Minister: Association for Berowra Creek at 114-115 at [51]. The focus is thus on the validity of the EIS, upon which the validity of the development consent itself in turn depends.

27 Substantial – as opposed to strict – compliance with the form and content of a development application and an EIS is sufficient: Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 at 419; Scurr v Brisbane City Council (1973) 133 CLR 242, Helman v Byron Shire Council (1995) 87 LGERA 349; Botany Bay City Council v Remath Investments No. 6 Pty Ltd (2000) 50 NSWLR 312; Cameron v Lake Macquarie City Council (2000) 107 LGERA 308; Cranky Rock Road Action Group Inc v Cowra Shire Council [2005] NSWLEC 674; and Belize Alliance of Conservation Non-Governmental Organisations v The Department of the Environment [2004] Env LR 38, [2004] UKPC 6 PC.

28 Similarly, substantial – not strict – compliance with cll 72 and 73 of the Regulation is sufficient. Clause 72(1) requires the content of an EIS to include, relevantly in the present case, the matters referred to in Sch 2 to the Regulation. As noted above, the provisions of Sch 2 which are of relevance in the present case are sub-cll 4(b) and (c). The relevant question thus becomes whether there was substantial compliance with those provisions.

29 Clause 73(1) requires the applicant responsible for the preparing an EIS to “have regard to” the Director-General’s requirements. The language of “have regard to” itself is all short of imposing an obligation of absolute or strict compliance.

30 As pointed out by Dr J E Griffiths SC, who with Mr P R Clay appears for the Minister, the phrase “must have regard to” is generally construed as imposing an obligation to take the relevant matter into account and give it weight as a fundamental element in making a decision, or as identifying the focal points by reference to which a judgment or decision is to be made: Prineas at 413, Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [70] – [73], R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; Evans v Marmont (1997) 42 NSWLR 70 at 79-80; Queensland Medical Laboratoryv Blewett (1988) 84 ALR 615 at 623; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333 and 388; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [125].

31 The context within which a phrase such as “have regard to” appears also governs the nature of the obligation: CIC Insurance v Bankstown Football ClubInc (1997) 187 CLR 355. In Botany Bay City Council v Remath Investments (No. 6) Pty Ltd, NSWCA, 23 December 1998, unreported, Fitzgerald AJA (Meagher and Stein JJA concurring) said:

The nature of an obligation to “have regard” to some other matter must be determined by reference to the subject matter and context.

“tantamount to an obligation”

32 In the present case, the Director-General’s requirements are expressed in broad subjective language, such as the requirements to “address” and to “assess” the specified matters. Specifically, in relation to hazard and risks the requirement is that the assessment “should” include the specified matters. The specified matters that “should” be addressed include a Preliminary Hazard Analysis prepared in accordance with the Hazardous Industry Planning Advisory Paper No. 6; consideration of potential impacts associated with the storing, handling and transporting of dangerous goods; and demonstration that the proposal is consistent with the Port Botany Land Use Safety Study. The Hazardous Industry Planning Advisory Paper No. 6 is itself described as a document that “provides guidance on the general approach recommended for hazard analysis”, and section 3 of that document “details the suggested form and content of reports to present the results of the hazard analysis process”. All of this suggests that judgment and subjective evaluation is involved and that some degree of flexibility must be allowed to the person preparing the EIS. The nature of these requirements in the present case must be contrasted with the very specific and finite requirement in Remath. Moreover, it is language which is entirely consistent with the requirement of substantial compliance.

33 It follows that substantial compliance – not strict compliance – with the Director-General’s requirements is sufficient, which requirements in turn include substantial compliance – not strict compliance – with the documents to which the Director-General has referred.

Can the supplementary information form part of the EIS and the development application?

34 I now turn to the council’s assertion that the EIS and the development application comprised only the material lodged when the development application was submitted.

35 There is no doubt, however, that an EIS and a development application can be supplemented by further or additional information: Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 at 279, Botany Bay City Council v Remath Investments (No. 6) Pty Ltd (2000) 50 NSWLR 342 at [14]; [41]-[48]; Currey v Sutherland Shire Council (2003) 129 LGERA 223 at 230-231.

36 Mr Hale SC seeks to draw a distinction, however, with the present case where the development application is for designated development. In particular, the supplementary information was not accompanied by the declaration required by cl 71(f) of the Regulation. Mr Hale thus submits that the supplementary information cannot form part of the EIS.

37 I reject the submission. Clause 71 of the Regulation refers to the form for an EIS. The opening words are: “For the purposes of s 78A of the Act, the prescribed form for an environmental impact statement to accompany a development application is a form that contains the following information: ….” Section 80(1) of the Interpretation Act 1987 provides that if a form is prescribed by an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient.

38 The supplementary information was clearly intended to supplement the EIS and was so understood by both the COI and by the Minister, who incorporated the supplementary information into that to which he was granting consent: see condition A1.1 of the consent. Moreover, an EIS is not a decision; rather it is to aid the decision-maker in his or her task: Leatch v National Parks and Wildlife Service at 279. The supplementary information was publicly exhibited, was the subject of submissions to the COI, was the subject of consideration and assessment by the Commissioner, and was the subject of consideration by the Minister. The furnishing of the supplementary information clearly fulfils the objective of aiding the decision-maker in his task in this case.

39 Clause 71 is part of a procedural scheme. In Currey v Sutherland Shire Council (2003) 129 LGERA 223 it was held that any defect or irregularity in a development application may be cured if, during the course of its consideration, the suggested invalidity is cured before it is determined. In the same case Spigelman CJ (Sheller JA and Foster AJA concurring) held that Div 2 of Pt 4 of the EP&A Act (which includes s 78A) “is entirely permissive and procedural”, and went on to say at [34], that there is no basis for inferring a prohibition from a permissive and procedural scheme.

40 For these reasons I reject the submission that the absence of the declaration required by s 71(f) in relation to the supplementary information means that the supplementary information cannot be regarded as part of the EIS and as part of the development application, or that the absence of the declaration leads to invalidity of either the EIS or the development application.

41 Mr Hale SC also relies upon the form of public notice of the re-exhibition of the development proposal. The public notice of the re-exhibition states that the Minister directed that a COI held into the proposal and that the Inquiry was adjourned on 31 May 2004 to allow the applicant to address an amended terms of reference which requires analysis of any potential feasible alternatives at Port Botany. The public notice then goes on to state:

Exhibition of Additional Information

The original development application, EIS and additional information will be on public exhibition from 26 August 2004 until 27 September 2004, during regular business hours, at the locations listed below: You may also purchase a copy of the EIS from the Information Centre (9762 8044) for $27.50 or $11.00 for a CD copy (including GST), or view a copy of the executive summary of the EIS at

42 Mr Hale SC submits that, since only a copy of the EIS was able to be purchased (and not the additional information), any potential objector would be misled into thinking that the original EIS was the complete document and in purchasing a copy of the EIS would not have access to the additional information.

43 I reject the submission. The public notice is not misleading. It states that three things will be on public exhibition: (i) the original development application; (ii) the EIS; and (iii) additional information. Of the three things, the notice states that a copy of the EIS is available for purchase. Anyone wanting to look at the original development application or the additional information would have been able to do so, but would not have been able to take a copy away. The fact that only one of the three things placed on public exhibition was able to be purchased and taken away does not mean that anyone was likely to have been misled. The notice made it perfectly clear that there was additional information which was on public exhibition.

44 Moreover, the additional information was before the public hearing of the COI and was the subject of extensive evidence, argument and submissions during those public hearings. Having regard to the fact that all the information is a tool to aid the decision-maker in his or her task the process that was adopted clearly fulfils that objective.

The evidence

45 I now turn to the evidence that is said by the council to support its submission that there has been failure to comply with Sch 2 of the Regulation and a failure to comply with the Director-General’s requirements.

46 The Director-General’s requirements for the EIS are set out at par [21] above. Evidence in the case has been led in relation to the Director-General’s requirements that noise and vibration (requirement (d)) and hazards and risks (requirement (h)) be addressed by the EIS and the extent to which those requirements have been assessed. The applicant claims the EIS has not appropriately addressed these requirements. The evidence in relation to each of these requirements will be considered in turn to determine whether substantial compliance with the requirements of Sch 2 of the Regulation and the requirements of the Director-General has been achieved.

a. Noise and vibration

47 The Applicant contends that the EIS assessment of noise and vibration was inadequate as it failed to appropriately consider:

i. Vibration from road and rail; and

ii. The noise generated by road traffic if a 40/60 split of rail/road container transport is not achieved.

The relevant section of the EIS dealing with these matters is Appendix Q. The issue of the 40/60 split is also dealt with in Sydney Ports Corporation’s supplementary submission to the EIS and its supplementary submission to the COI.

i. Vibration from road and rail

48 The evidence on this issue included not only the EIS itself, but also the evidence of two acoustical engineers – Mr Barry James Murray, of Wilkinson Murray Pty Ltd, who prepared Appendix Q to the EIS (the Noise and Vibration Assessment), and Mr Graham Francis Atkins, who was called by the council. Such expert evidence is admissible to show what the decision-maker ought reasonably to have done in the course of the decision-making process and what investigations would have revealed as to the possible environmental consequences of the proposal: King v Great Lakes Shire Council (1986) 58 LGRA 366 at 371.

49 The EIS deals with noise from onsite and offsite operations but deals with vibration only from onsite activities, there is no assessment of offsite vibration, nor was vibration dealt with by Sydney Ports Corporation’s submissions to the COI. The arguments for and against this assessment are enumerated below.

50 The EIS assesses vibration impacts from construction activities but it does not address ground borne vibration from loading/unloading/handling activities. The reason given by Mr Murray for this fact is that the site is approximately 400 metres from the nearest residential locations; therefore, he felt the EIS did not need to address the effect of vibration from such operations. Mr Atkins agrees, in his second affidavit, that unloading and handling would not impact residential receivers. In terms of construction vibrations, Mr Atkins contends that, whilst ground vibration is unlikely to cause structural damage, he looks at a site with similar land conditions and predicts that the resulting vibration could cause complaints from some surrounding residences. Mr Atkins contends that simply assessing vibration impacts in terms of structural damage does not properly comply with vibration comfort criteria and more rigorous testing should occur. In cross-examination, however, Mr Atkins admitted that he was not aware of the conditions imposed by the Minister in granting consent to the development. Indeed, to ensure that relevant noise and vibration criteria are not exceeded, the Minister’s consent imposes strict timeframes within which construction activities can occur (Appendix B2.19). Moreover, (at B2.20) Sydney Ports Corporation is required to prepare a Construction Noise Management Plan, which, amongst other things, is required to identify “…all feasible and reasonable measures to minimise noise and vibration”.

51 The EIS does not deal with vibration from the increase in truck transportation that will result from expanded terminal operations. Mr Murray admits this in his affidavit. However, Mr Murray contends that the reason for this is that vibration from trucks is generally insignificant due to their pneumatic tyres and will only be felt on roads in poor condition. Mr Atkins argues that Botany Road, Stephen Road, Dennison Street and Wentworth Avenue have poorer surfaces and many residences are within 10 metres of the road, therefore vibration is likely to be felt. Indeed, Mr Atkins contends that complaints have already been made to the council regarding vibration impacts from trucks on Botany Road. Such complaints may in fact be a result of low frequency noise capable of rattling windows, and such noise was addressed when noise was dealt with in the EIS, as argued by Mr Murray. It is notable that in cross-examination Mr Atkins admitted he did not himself deal with the impacts of road traffic generated vibration in his written submission to the COI. In Schedule C2.12 of the Minister’s consent, the Sydney Ports Corporation is required to prepare and submit, for approval by the Director-General, an Operational Traffic Management Plan, a main purpose of which is to provide mitigation measures to minimise noise impacts on the surrounding community. At B2.27, Sydney Ports Corporation is required within two years of commencing terminal operations to prepare a Port Traffic and Rail Noise Management Plan, which should “…include consideration for traffic re-routing, traffic clustering and traffic rescheduling.” Moreover, at B2.14 the impacts of increased truck transportation during construction are dealt with by requiring the Sydney Ports Corporation to prepare a Construction Traffic Management Plan to be approved by the Director-General before commencing construction.

52 The Noise report prepared for the EIS by Wilkinson Murray did not address at all the issues of noise and vibration from rail transport. To address the issue of noise from rail the Port Botany Freight Rail Project Stage 4 Marrickville Junction to Port Botany Noise Impact Assessment (Rail Noise Report), prepared for Rail Infrastructure Corporation (now RailCorp) was included in Appendix Q to the EIS. However, this report did not deal with ground or airborne low frequency vibration associated with the planned duplication of the existing rail lines. Mr Atkins contends that some residences in Bay and Banksia Streets are as close as 10 metres to the railway track and would feel vibration impacts. Other residences in Morgan Street are around 20 metres from the tracks and in McBurney Street they are 15 to 20 metres from the tracks. Mr Atkins criticises the EIS for failing to identify which properties would be subject to ground vibration, thus making it unable to address how to control these impacts. Mr Murray claims that the reason vibration was not dealt with is because noise is of greater impact than vibrations and is thus a surrogate measure of vibration. He contends that the impacts of noise extend further and thereby include the zone affected by vibration. It must be noted that the COI’s Comments on container transport by rail indicated a more comprehensive approach to potential noise and vibration impacts of trains using the Botany Freight Line needs to be undertaken. Indeed, the Minister’s consent requires (at B2.27) that Sydney Ports Corporation prepare a Port Traffic and Rail Noise Management Plan, as noted at par [51] above. The consent further requires (at B2.28) that the Sydney Ports Corporation establish a Rail Noise Working Group, as suggested in the COI’s report, prior to the commencement of operations to address all associated rail noise issues and conduct a Rail Noise Assessment prior to duplication of the rail line.

53 Notably the issue of vibration from both road and rail was not raised as a deficiency in the EIS by either the Department of Infrastructure, Planning and Natural Resources’ (“DIPNRs’”) Primary Submission to the COI of May 2004 or its Revised Primary Submission to the COI of October 2004. Moreover, the problems raised by Mr Atkins would appear to have been dealt with sufficiently in the conditions of the Minister’s grant of consent. My overall impression of the evidence relating to vibration from road and rail transport is that there has been substantial compliance with Sch 2 of the Regulation and substantial compliance with the Director-General’s requirements. This was sufficient to enable an informed recommendation to be made by the COI and an informed determination by the Minister, as demonstrated by the conditions which the Minister imposed as part of the consent. The EIS thus fulfils its intended purpose.

ii. Noise from road – 40/60 split

54 Mr Hale SC claims that the EIS is deficient in its failure to deal with the noise generated by road traffic if the 40/60 rail/road container transport split is not achieved. The EIS only looks at the impacts if 40 per cent of the transportation to the port is by rail. DIPNR’s Primary Submission to the COI of May 2004 criticises this deficiency. The supplementary submission to the EIS of August 2004, however, deals with the scenario where the rail share of container transport achieved is only 20 per cent. DIPNR approves of this assessment in its Revised Primary Submission to the COI of October 2004 noting that the current rail mode share is above 20 per cent. Further, the COI’s comments on “Landside Container Freight Movement” find that meeting the target for 40 per cent of TEUs to be railed from and to the port is feasible. Therefore, when the EIS is considered with the supplementary submission to the EIS, it is apparent that there has been substantial compliance with the Director-General’s requirement that the impacts of noise and vibration are assessed, as assessment has been conducted in the event that the 40/60 split is not achieved.

b. Hazard analysis

55 The Director-General’s requirements for the assessment of hazard and risks require a number of matters to be taken into consideration as listed at par [21] above. The question whether there has been compliance with each will be considered in turn looking at the PHA included as Appendix W to the EIS and the supplementary PHA. Evidence led at the hearing relating to these issues were the affidavits of Dr Robert Bruce Hutchison, 6 February 2006, who carried out the hazard and risk assessment for Sydney Ports Corporation and co-authored the PHA of November 2003 and the supplementary PHA of August 2004; and Mr Peter Stuart Dryden, 21 December 2005 and 27 February 2006, who co-authored the Hazardous Industry Planning Advisory Paper (“HIPAP”) series, including HIPAPs No. 4 and No. 6; combined with their oral testimony during this hearing.

56 Firstly, the Director-General required that the EIS include a PHA prepared in accordance with Planning NSW’s Hazardous Industry Planning Advisory Paper No. 6: Guidelines for Hazard Analysis and Multilevel Risk Assessment Guidelines (“HIPAP No. 6”). The purpose of the guidelines is detailed on page viii of the paper, being to provide:

… guidance on the general approach recommended for hazard analysis and details the requirements for reports to be submitted to government authorities.

This purpose is argued by Mr Dryden in his oral evidence to be stronger than just the provision of guidance. He concedes, however, that it is not entirely prescriptive. Dr Hutchison contends in his affidavit that HIPAP No. 6 is guidance for hazard analyses rather than prescriptive, in accordance with the purpose of the guidelines as quoted above. In light of the preliminary nature of the hazard analysis and the subsequent steps to provide and clarify information that were highlighted in the cross-examination of Mr Dryden, use of HIPAP No. 6 as a guide rather than prescriptive would appear to amount to substantial compliance with the Director-General’s requirement. The fact that the purpose of the document is expressed to provide “ guidance ” on “ the general approach ” is confirmation that this must be so.

57 The section of the HIPAP No. 6 most relevant here is s 3, which details the requirements as to form and contents of hazard analysis reports. The underlying principle for hazard analysis reports can be found therein:

The underlying principle for the hazard analysis report is that it should provide a reasonable basis for an informed judgment to be made on the acceptability of a facility. It should provide people with relevant expertise with sufficient information to be able to reconstruct and verify the analysis. It is a recognised and important feature of hazard analysis that follow-up contact between the analyst and the regulatory authority may be necessary. This should not, however, be used as a justification for providing insufficient detail – expert judgment is required in this regard.

58 Mr Dryden contends in his first affidavit, that the PHA is inconsistent with this underlying principle as neither he nor the ordinary practitioner in the field would in fact be able to perform such a reconstruction and verification process upon the initial PHA. In his second affidavit Mr Dryden contends further that the supplementary PHA does not comply with HIPAP No. 6. He believes it to be essentially the same document as the initial PHA, the changes made not making any material difference to the problems he has determined from the initial PHA. It must be noted here that Mr Dryden’s second affidavit is somewhat contradictory in this respect. He first comments that the PHA and supplementary PHA are essentially the same document. He then goes on to criticise the analysis in the supplementary PHA as being different to that in the PHA thereby producing significantly different risk results listing numerous differences which, prima facie, appear to remedy many problems highlighted in the original PHA (as will be discussed further below).

59 Dr Hutchison claims that the PHA is consistent with the underlying principle of HIPAP No. 6, enabling the reader to come to a comprehensive understanding of the associated hazards and risks and the adequacy of proposed safeguards. He contends that the PHA identifies all significant hazards and that it has demonstrated the extent to which the proposal complies with the qualitative risk criteria of HIPAP No. 4. In his oral evidence he highlights his belief that it is not necessary to provide sufficient information to exactly reproduce the analysis conducted in the PHA. Rather he contends that it is sufficient to provide enough information so that someone with relevant expertise could confirm that the analysis is correct. In Appendix E to his affidavit Dr Hutchison highlights the key elements of a hazard analysis as identified in s 3 of HIPAP No. 6 and prima facie demonstrates that the PHA has substantially complied with these requirements. He further claims that the supplementary PHA meets the requirements of HIPAP No. 6 and demonstrates that the risk criteria for the assessment of the proposal have been met. He points out that compliance with HIPAP No. 6 should not be assessed solely upon the original PHA. For reasons which appear earlier in this judgment (at pars [34] – [44] above), I accept that the EIS should be considered in combination with the material submitted in supplement to it, in which event, compliance with HIPAP No. 6 is to be decided upon consideration of both the PHA and the supplementary PHA.

60 HIPAP No. 6 requires a description of the site and system being analysed. Such a description is set out in s 3 of HIPAP No. 6 requiring:

Ø …a description and evaluation of the site location and layout, and any inherent hazards, including off-site and natural hazards.

Ø A brief process description should summarise all the processing steps and operations being carried out, and

Ø This section should include a list of all materials being handled, stored or processed at the facility, with maximum and average quantities shown.

61 The major problem Mr Dryden finds with the PHA is its failure to include such a description, leaving the reviewer to rely on the description in the EIS. He contends that, as differences between the system analysed in the PHA and that described in the EIS can be significant in terms of risk results, the case studied in the PHA should be unambiguously stated. Mr Dryden points out the example of the figure adopted in the PHA for the container movements through the port of 1.5 million TEUs per year, while the figure used in the EIS is 1.6 million TEUs. He contends that is an important figure as it affects the entire analysis; and further, without a detailed site description it is unclear if other significant differences may exist between the EIS and PHA. Mr Dryden also contends that the system description in the supplementary PHA is deficient with some elements and assumptions still not adequately explained. He points to the example of a failure to enumerate the number of lifts necessary to reorganise containers not being unloaded to gain access to other containers.

62 Dr Hutchison answers this contention in his oral evidence by contending that this problem was dealt with using a different approach: rather than estimating the number of container lifts; historical information from other Australian ports was used to deal with the associated risk. He further points out that in Appendix 3 of the supplementary PHA this analysis is compared with that of DIPNR, which was quite different but arrived at similar results. DIPNR, in its Primary Submission to the COI of May 2004, also found insufficient detail in the initial PHA. However, Dr Hutchison maintains in his affidavit that the analysis undertaken is reconstructible. He contends that because the PHA was prepared at the same time as the EIS it can rely on the site description contained therein and that this is consistent with the intent of HIPAP No. 6. He acknowledges the different figure used in relation to container movements and the impact this will have upon the subsequent analysis, but considering the contour plots, the change to contours would not be noticeable. Moreover, Dr Hutchison contends that those elements of the site description that are relevant to the analysis undertaken in the PHA have been detailed. Indeed, Mr Dryden, whilst maintaining it is insufficient, admitted that Appendix I to the PHA provides some system description. Dr Hutchison stated that section 5 of the PHA describes the operation of the proposal that would contribute to hazards and that other parts of the EIS, being Chapters 6, 21, 32 and 33, contain detailed site description. He argues that these considered in combination amount to adequate site description. Arguably they constitute substantial compliance with this requirement, and I so find.

63 Under HIPAP No. 6 comprehensive hazard identification should be conducted. At page 25 it stipulates:

The various methods of hazard identification used and some justification of their appropriateness in each case should be provided. The results of the hazard identification should be listed for each major process or storage unit or area with a brief description of possible incident initiating events, possible consequences and proposed or existing safeguards.

Mr Dryden lists, in his first affidavit, numerous hazardous events which have been omitted from the hazard identification. He contends that their lack of identification means the likelihood and consequences of such events are given no consideration. In his second affidavit he claims the supplementary PHA has not rectified this problem. In DIPNR’s Primary Submission to the COI of May 2004 the hazard identification process is criticised as not including sufficient detail to demonstrate it has been completed adequately. DIPNR suggested some significant incidents might not have been identified and charged the applicant with providing a more appropriate hazard identification with details of the scenarios considered and justification for any scenarios screened out.

64 Dr Hutchison maintains that the PHA focuses upon those aspects of the operation of the port that generate the dominant risk to the off site locations. Less detail is provided on hazards that are minor contributors to the off site risk. Dr Hutchison draws attention to HIPAP No. 6, page 9, as supporting such a focus on off-site risk:

This process [of selection of representative initiating events] will involve a certain degree of screening, in that decisions may have to be made to omit certain events, on the basis that they ultimately will prove to be insignificant contributors to risk.

DIPNR has not considered the requirement of hazard identification in its Revised Primary Submission to the COI of October 2004. In light of that report’s conclusion that the revised PHA has adequately addressed the hazards related issues I assume DIPNR was satisfied with the hazard identification finally conducted. Such an analysis would appear then to be in line with the requirements of HIPAP No. 6 and amount to substantial compliance with the Director-General’s requirement.

65 HIPAP No. 6, states, at page 26:

Consequence analysis results should be presented in sufficient detail to provide a good appreciation of the consequences of the hazardous incidents identified for further analysis.

Mr Dryden claims that as the hazard identification has not been adequate, the analysis of the consequences is not adequate either. Mr Dryden cites examples of the inclusion in the PHA of hazardous events where the basis for selection and the underlying assumptions have not been spelled out. He contends as a result that the analysis cannot be reconstructed and its sensitivity tested. Mr Dryden also criticises the consequence modelling in the supplementary PHA for failing to show worst-case consequence results and making no real attempt to deal with the sensitivity of the analysis to changes in the cases selected for consequence modelling.

66 DIPNR’s Primary Submission to the COI of May 2004 also highlights numerous incidents which have been screened out or not given full consideration. DIPNR required Sydney Ports Corporation to clarify the basis of the consequence modelling issues.

67 Dr Hutchison answers this with the contention that the PHA does indeed contain details of the hazardous scenarios considered credible and reasons for screening other potentially hazardous scenarios from consideration. He claims that a competent practitioner reviewing either the PHA or the supplementary PHA should be able to ascertain the hazard identification process through examination of the hazardous scenarios identified for modelling and the screening of some hazardous scenarios.

68 Mr Dryden further claims that in order for studies to be verifiable the consequence modelling must be transparent. He criticises the SAFETI software used in the consequence analysis, as it does not make the calculation methodology clear, thereby making verification review difficult. Dr Hutchison counters that the computer modelling systems used are recognised. The overall methodologies used in the computer calculation suite have been verified and published but some aspects of the computer model are kept confidential. He points to page 26 of HIPAP No. 6 which states:

…for large facilities a complete presentation may be unduly onerous and a summary of representative results may suffice. All relevant calculations should, however, be available to the regulatory bodies upon request.

Moreover, Dr Hutchison notes that DIPNR did request additional information from Sydney Ports Corporation to support the analysis, which was duly furnished. DIPNR has not considered the requirement of consequence analysis in its Revised Primary Submission to the COI of October 2004. In light of that report’s conclusion that the revised PHA has adequately addressed the hazards related issues I can assume DIPNR was satisfied with the consequence analysis conducted. Such an analysis would appear then to be in line with the requirements of HIPAP No. 6 and, I find, amounts to substantial compliance with the Director-General’s requirement.

69 HIPAP No. 6, at page 26, requires an estimation of the likelihood of hazardous events which:

…should present the results of the analysis of the likelihood of hazardous incidents and their final outcomes. Sufficient information on assumptions relevant to the calculations and analysis should be provided to facilitate an understanding and enable reproducibility if required.

Again Mr Dryden contends that as the hazard identification has not been adequate the estimation of the likelihood of hazardous events is not adequate either. He points out that particular care needs to be taken in the selection of likelihood numbers as, due to the low numbers of the risk criteria but large number of movements through the port the analysis is particularly sensitive and small differences in the values used and can affect whether a criterion is exceeded or complied with. He lists a few cases where likelihood analysis would encounter difficulties. He also lists cases where there would be difficulties in establishing the likelihood values used in road transport analysis and further that rail transport risk analysis is even more difficult. Mr Dryden contends in his second affidavit that the transport analysis of the supplementary PHA is based upon non-conservative likelihood numbers without any explanation or justification of the figures.

70 DIPNR’s Primary Submission to the COI of May 2004 also questions the estimation of incident frequencies requiring Sydney Ports Corporation to provide an appropriate level of detail to clarify the frequency estimation. In his second affidavit Mr Dryden criticises both the PHA and supplementary PHA for basing the likelihood analysis almost entirely upon the dropped container frequency.

71 Dr Hutchison contends that the PHA and supplementary PHA contain estimates of the dropped container likelihood which is double that provided by DIPNR and, while no other causes of incidents was included, it is seen as sufficiently conservative to address also the likelihood of other less likely causes of incidents. Again, DIPNR has not considered the requirement of the estimation of the likelihood of hazardous events in its Revised Primary Submission to the COI of October 2004. In light of that report’s conclusion that the revised PHA has adequately addressed the hazards related issues I assume that DIPNR was satisfied with the estimation of the likelihood of hazardous events conducted. Considering Dr Hutchison’s contentions and DIPNR’s apparent satisfaction with the supplementary PHA, I am not persuaded that Mr Dryden’s criticisms are valid. Such an analysis would appear then to be in line with the requirements of HIPAP No. 6 and amount to substantial compliance with the Director-General’s requirement.

72 The final requirements of a PHA report stipulated by HIPAP No. 6 are those of the Presentation of Risk Results which, as stated at page 27:

…should be presented so as to enable assessment against all relevant qualitative and quantitative criteria for risk to people, property and the biophysical environment. Both individual and societal risk results should be included.

Related to this is the requirement of Risk Assessment which requires comparison of the risk results obtained with the qualitative and quantitative risk criteria, taking into account the comments in Hazardous Industry Planning Advisory Paper No 4: Risk Criteria for Land Use Safety Planning (HIPAP No. 4). I note that these requirements are ostensibly the same as the Director-General’s requirement that the proposal be consistent with the Port Botany Land Use Safety Study and will therefore be considered below (pars [75] - [85]).

73 The second requirement of the Director-General is that the assessment of hazard and risks should consider the potential impacts associated with storing and handling dangerous goods on-site, and transporting dangerous goods to and from the site. Mr Dryden criticises the analysis of dangerous goods trade as there has been no description of the basis upon which representative materials were selected and no system description in the analysis of the risk associated with the transportation of dangerous goods by road and rail to and from the port. Mr Dryden criticises a number of instances of the apparently arbitrary attribution of volumes to dangerous goods for modelling. DIPNR’s Primary Submission to the COI also raises this as an issue with the PHA.

74 The hazard identification undertaken in the PHA is claimed by Dr Hutchison to be appropriate as there are no long-term storage or processing facilities. The analysis focused on the activities that occur on the port and potential accidents that could happen on-site. The hazard identification selected representative materials for relevant dangerous goods classes. It is claimed this was necessary due to the very large number of materials passing through the port; to assess each material individually it is claimed would be too detailed. Dr Hutchison’s explanation of the volume attribution assumptions made in modelling is not entirely satisfactory. However, he claims the PHA adequately considered the potential impacts associated with storing and handling dangerous goods onsite in ss 5.1, 5.3, 9 and 10 and the potential impacts associated with transporting dangerous goods on site in sections 5.1, 9, 10 and Appendix IV. This combined with DIPNR’s conclusion in its Revised Primary Submission to the COI of October 2004 that the hazards related issues raised in its Primary Submission to the COI of May 2004 were adequately addressed by the supplementary PHA leads me to the conclusion that substantial compliance with this requirement has been achieved. Moreover, conditions C2.16-2.19 of the Minister’s consent, measures to monitor and manage the storage and handling of dangerous goods requiring periodic reporting to the Director-General regarding the throughput and unit size of relevant goods, ensure that the levels indicated in the PHA are complied with. This shows that the information was sufficient to evoke an informed determination by the Minister, again thus fulfilling the intended purpose of the PHA and the supplementary PHA.

75 The third requirement of the Director-General stipulated that the assessment of hazard and risks must demonstrate the proposal is consistent with the Port Botany Land Use Safety Study. That study was conducted by the then Department of Urban Affairs and Planning. The study was to update the comprehensive cumulative risk assessment study of the Port, which was conducted in 1985, and to formulate a land use safety strategy for the Port and it’s surrounding uses. The strategy takes into account the assessment of risks and the level of safety management. Recommendation 1 of the Study provides that:

Future developments in the Port area should undergo early risk assessment and comprehensive environmental impact processes to conclusively demonstrate that they will not contribute to any increase in cumulative risk as shown in figure 2. Developments should also conclusively demonstrate that, consistent with the Department of Urban Affairs and Planning risk criteria, there will not be any propagation of risks to neighbouring facilities.

The standards for risk assessment are set out in HIPAP 4. The cumulative individual risk contour at Figure 2 of the Port Botany Land Use Safety Study is based upon the figures for individual fatality risk levels established in HIPAP No. 4, which describes ‘individual fatality risk’ at page 4 as “… the risk of death to a person at a particular point”. Of particular salience to this case is the limit of risk acceptability for residential area exposure being a fatality level of one in a million per year (1x10-6 per year).

76 Mr Dryden contends that the risk assessment is fundamentally flawed as the results presented rely upon the preceding elements of the analysis which cannot be tested and verified due to the problems highlighted by him, as already discussed. DIPNR’s Primary Submission to the COI in May 2004 also criticised the PHA for lack of compliance with this requirement, as it does not meet the injury risk criterion, exceeding requirements in the residential area north of the site. DIPNR required the proposal be modified to reduce this risk or that the analysis be improved to demonstrate that the proposal will indeed meet the criterion. DIPNR’s Revised Primary Submission to the COI of October 2004 viewed the analysis conducted in the supplementary PHA to be more appropriate, excluding historical data, which dealt with the now ceased export of the Class 2.3 dangerous good, chlorine. This analysis demonstrated that the injury risk criterion had not in fact been exceeded.

77 Notably Dr Hutchison does not appear to address this recommendation in his affidavit. In fact, he erroneously dealt with it as recommendation 1.1. He points to s 10.5 of the supplementary PHA, which contains a fatality risk contour in Figure 10.2. The figure shows the cumulative individual risk contours for the Patrick terminal and proposed ports; and comparison with the cumulative individual risk contour provided at Figure 2 of the Port Botany Land Use Safety Study demonstrates that the 1 in a million fatality risks are contained within that risk contour. DIPNR comes to the same conclusion in its Revised Primary Submission to the COI of October 2004 and it thus considered that this recommendation had been met. The absence of any critique by Mr Dryden of the supplementary PHA’s demonstration of adherence to this requirement appears to confirm there has been substantial compliance with Recommendation 1 of the Port Botany Land Use Safety Study.

78 Recommendation 1.1 of the Study provides:

In particular, there should not be any significant increase in toxic compressed or liquefied gases stored or handled at the Port.

Mr Dryden contends that the PHA appears to breach this recommendation through an increase in the toxic compressed or liquefied gases handled at the Port. He contends that this increase should be regarded as significant in terms of the numbers of movements involved and in the apparent impact evident in the fatality and injury risk criteria contours. DIPNR’s Primary Submission to the COI of May 2004 also expresses a concern that the PHA did not comply with Recommendation 1.1, suggesting the proposal be modified to give realistic toxic movements and recalculation of the risks, and that whole of port totals should be used to make compliance clear.

79 Dr Hutchison failed to deal with this recommendation, erroneously addressing Recommendation 1 in the guise of Recommendation 1.1. However, DIPNR’s assessment in the Revised Submission provides that, subject to the carrying out of regular updating of the cumulative risk contours using actual data to facilitate the monitoring of increases in Class 2.3 Dangerous Goods and to ensure controls are applied to avoid significant increases, the intent of this recommendation is met by the Proposal. This is also dealt with at conditions C2.16-C2.19 of the Minister’s consent, as noted at par [74] above. Since the concerns expressed by DIPNR about the PHA were met, it also seems to me that the concerns expressed by Mr Dryden were met when the proponent as requested by DIPNR, revisited the question. I am satisfied that there has been substantial compliance with this recommendation.

80 Recommendation 1.2 of the Study provides:

Proposals for expansion of Port facilities should be subjected to the seven-stage assessment process under the Environmental Planning and Assessment Act 1979 and demonstrate compliance with relevant risk criteria. There should be no increase in cumulative risk, including both individual and societal risk, beyond that shown in figure 2 and figure 9.

81 The basis for figure 2 of the Study has been discussed above at par [75]. Figure 9 is also based upon criteria laid down in HIPAP No. 4. HIPAP No. 4 establishes societal risk criteria, which takes into account the number of people that could be affected by the various events. It is designed to address the intensity of use and density of people, the nature and scale of incidents contributing to the particular risk levels at particular points, and the outcomes of those incidents in terms of fatality and injury. As described on page 6 of HIPAP No. 4:

Societal risk analysis combines the consequences and likelihood information with population information. It is usually presented in the form of an ‘F-N curve’, which is a graph indicating the cumulative frequency (F) of killing ‘n’ or more people ‘N’.

Such a curve is seen at Figure 9 of the Study. While the Study points out there is currently no specific criteria set for societal risk in New South Wales it provides a recommendation which is gaining increasing recognition. This is an ALARP (“As Low As Reasonably Possible”) approach which identifies three societal risk bands: negligible, ALARP and intolerable.

82 Mr Dryden contends that the criteria lines presented for the societal risk results are not those of the Port Botany Land Use Safety Study, they are less conservative, and had the Study been used the fatalities level would have been far less trivial. He criticises the PHA, and the supplementary PHA in his second affidavit, for failing to undertake societal risk analysis for the transportation of goods to and from the port, meaning that judgment cannot be formed based upon the total set of risk impacts associated with the development. Mr Dryden argues in this second affidavit that there has been no evidence to show the identification of any measures to ensure the ALARP level is not exceeded. He further contends that the PHA does not consider the risks on a cumulative basis, looking only at the risk from the extension to the port in isolation. This makes the assessment of compliance with the Port Botany Land Use Safety Study difficult. He contends that if a cumulative risk assessment were conducted the residential risk criterion would likely be exceeded in residential areas, certainly if the assessment were more conservative and rigorous. Indeed, he compares figure 2 of the Study with figure 28.1 of the EIS to conclude the 1x10-6 contour for the new facility alone falls outside the same risk value contour in the Study.

83 DIPNR’s Primary Submission to the COI of May 2004 also criticises the PHA for failing to develop cumulative risk curves for “whole of port” cargo figures. In his second affidavit Mr Dryden criticises the supplementary PHA for making no significant effort to deal with cumulative risk, with the cumulative risk contours shown including only the Patrick development.

84 Dr Hutchison contends that this restricted assessment is due to the lack of public availability of the operations of some of the facilities and postulated facilities in Port Botany. Indeed, Dr Hutchison’s oral evidence indicates that efforts were made to obtain this information from DIPNR but they could not provide it due to its commercial nature. In DIPNR’s Revised Primary Submission to the COI of October 2004 the cumulative risk assessment is approved. It finds the supplementary PHA to have demonstrated that the cumulative individual risk will not increase in comparison with the Study. DIPNR finds the transport risk will increase but not significantly, being generally within the 1x10-6 per year risk contour. It looks at the cumulative societal risk F-N Curve at figure 9.5 of the revised PHA and compares it to the F-N Curve at figure 9 of the Port Botany Land Use Safety Study to determine that societal risk does not increase significantly, although the curve does encroach slightly further in to the ALARP region. DIPNR is satisfied with the supplementary PHA in this respect, so long as additional risk reduction measures, to be dealt with in a Final Hazard Analysis by Sydney Ports Corporation, are implemented. From all this I am satisfied that, subject to satisfaction of DIPNR’s requirements, the supplementary PHA cures the risk assessment errors in the PHA and ensures substantial compliance with Recommendation 1.2 of the Port Botany Land Use Safety Study.

85 At this point it would seem appropriate to quote the COI’s comments in relation to the PHA, being an important document before the Minister when granting approval to the proposed development:

The Commission is satisfied that the hazard analysis for the proposed development provides sufficient information for an informed understanding of the likely levels of risk in the vicinity of Port Botany. The Commission considers that the PHA documentation gives a comprehensive assessment of risks and has used adequately conservative assumptions. The Commission finds that the risk levels of the proposed development are generally consistent with the relevant criteria and would not compromise the recommendations of the Port Botany Land Use Safety Study. Important matters which Botany Bay City Council raised are addressed in the recommended measures.

Findings on the evidence

86 I accept the applicant’s contention that the PHA does contain a number of deficiencies. However, none of these deficiencies can reasonably seen to constitute a material error in the assessments undertaken. It is settled law that an error or omission which will attract judicial review will not lead to invalidity unless it is a material error: Parramatta City Council v Hale (1982) 47 LGRA 319 at 355; Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275. Moreover, the error must be more than an error at some stage of the process – it must be an error which affects the ultimate decision: Minister for Immigration & Multicultural Affairs v Thiyagarjal (2000) 74 ALJR 549.

87 I have stated in pars [53] - [54] above my finding that there has been substantial compliance with the Director-General’s requirement that the impact of noise and vibration be assessed. In particular, I reject Mr Hale’s criticism that there was no such assessment if the 40/60 rail/road transport split is not achieved – the evidence noted above shows that the impact in such an event was in fact specifically considered.

88 In the assessment of hazard and risks, again, for the various reasons outlined above, I reject the criticisms of the council’s expert witness, Mr Dryden. The evidence outlined above shows that there has been substantial compliance with Sch 2 of the Regulation and with the Director-General’s requirements by the combined effect of the EIS and the supplementary EIS of August 2004 and, to a lesser extent, the supplementary submission to the EIS. I refer, in particular, to my findings on the evidence in pars [62], [64], [68], [71], [74], [77], [79] and [84] above, which deal with each of Mr Dryden’s contentions. Again, for reasons given in pars [34] – [44], the supplementary material may be regarded as part of the EIS and as part of the development application.

89 It must be remembered that the onus is always on the challenger, in this case the Council, to demonstrate that the assessment does not comply with either Sch 2 of the Regulation or with the Director-General’s requirements. The evidence does not persuade me that the onus has been discharged. On the contrary, the evidence shows that there has been substantial compliance therewith.

The alleged invalidity of the consent

90 The council’s primary submission is that the development application (including the EIS) was void, so that a condition precedent to the granting of development consent, namely the existence of a valid development application was absent. I have found, however, that the development application (including the EIS and the supplementary information) was valid. The council nevertheless submits that there was a failure by the Minister as consent authority to properly consider the impact of noise from truck movements and vibrations caused by both road and rail traffic.

91 The material before the Minister included the report of the COI. It is plain that the Minister considered that report – there is an express reference to it on the second page of the development consent which he granted. The report was the culmination of a lengthy and comprehensive process which provided numerous opportunities for public participation, including submissions by the council about the very matters of which it now complains.

92 Where, as in the present case, there is no doubt as to what material was before the Minister, the scope for an assertion that the Minister failed to give proper, genuine and realistic consideration to the relevant impacts must be limited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 at 31, 66. The applicant bears the onus of satisfying the Court that the Minister failed to do so and that the relevant discretion miscarried: Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 at [37]. Where there is no direct evidence of a consent authority’s consideration of a matter and the Court is confined to drawing an inference, that inference should only be drawn after anxious consideration: Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 373, Centro Properties at [37].

93 In other words, a party seeking to strike down a development consent must establish the facts from which an appropriate inference can be safely drawn: Schroders Australia Property Management Ltd v Shoalhaven CityCouncil (1999) 110 LGERA 130 at [27]; Parramatta City Council v Hale (1982) 47 LGRA 319 at 345. Those facts are not established and the necessary inference is not drawn in the absence of proper evidence. Moffit P in Hale recognised (at 345) the difficulty of discharging the onus of proof and warned that the onus, however difficult, must be discharged in accordance with proper legal requirements and by inference not suspicion. Moreover, a decision-maker is not under a duty to set out in writing all the matters that were taken into account: Marnal Pty Ltd v Cessnock City Council (1989) LGRA 135 at 139.

94 In the present case, in the light of the material that was before the Minister, including the consideration and assessment by the COI of the matters of which the council complains, I am unable to draw the inference that the council submits should be made. Moreover, the fact that the Minister disagreed with the recommendations of the COI does not establish that he failed to consider the report, its findings and recommendations. The weight attributed to the findings and recommendations of the COI cannot amount to a reviewable error, unless there is a challenge based on Wednesbury unreasonabless. That test is stringent. It would require a finding that the decision of the Minister amounted to an abuse of power or be devoid of plausible justification: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [91], per Spigelman CJ; Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86 at [79]. No challenge based on Wednesbury unreasonableness is raised in this case.

Discretionary considerations

95 The fact that the council has failed to demonstrate that neither the development application and the EIS, nor the determination by the Minister, are legally defective or invalid, has the consequence that the exercise of the Court’s general discretion to grant or withhold relief does not arise. Moreover, any expression of opinion by me as to how the discretion would have been exercised is of no consequence: Wade v Burns (1966) 115 CLR 537 at 535, 562 and 568.

96 I observe, however, that if there were no valid development application or EIS, then there would be nothing which could be the subject of a development consent, in which event there would seem to be little room for the exercise of the Court’s discretion in favour of the respondents: Association of Berowra Creek v Minister for Planning at [51]. I note, however, the countervailing argument that the re-exhibition of the original EIS, together with the additional information (including the supplementary submission to the EIS) would suggest that the objective to be achieved by the process was nevertheless satisfied, namely, to provide a tool for the decision-making process so that the ultimate determination is made in the full knowledge of all the relevant impacts.

97 On the other hand, if the development application is valid (as I have found), but the determination of the Minister was found to be legally defective and invalid, a question would arise as to whether the Court should exercise its power under s 25B of the Land and Environment Court Act 1979 by suspending the operation of the consent whilst affording an opportunity for the ground of invalidity to be rectified.

Orders

98 It is appropriate that an order be made that the application be dismissed. It also seems appropriate that the council should pay the respondents’ costs, but as the parties have not made submissions on costs, I should afford them the opportunity to do so. The orders are:

I hereby certify that the preceding 98 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

**********

Citations

Botany Bay City Council v Minister for Planning [2006] NSWLEC 194

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CITATION:	Botany Bay City Council v Minister for Planning & Anor [2006] NSWLEC 194
PARTIES:	APPLICANT: Botany Bay City Council FIRST RESPONDENT: Minister for Planning SECOND RESPONDENT: Sydney Ports Corporation
FILE NUMBER(S):	41280 of 2005
CORAM:	Lloyd J
KEY ISSUES:	Judicial Review :- validity of development application – validity of environmental impact statement – validity of supplementary material to environmental impact statement – validity of development consent – alleged failure to consider relevant matters – substantial compliance sufficient
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 76A(9), 78A(8),119(1), 102, 123 Environmental Planning Regulation 2000 cll 71(f), 72, 73, Schs 2 and 3 Interpretation Act 1987 s 80(1) Land and Environment Court Act 1979 s 25B
CASES CITED:	Association for Berowra Creek Inc v Minister for Planning (2003) 124 LGERA 99; Belize Alliance of Conservation Non-Governmental Organisations v The Department of the Environment [2004] Env LR 38, [2004] UKPC 6 PC ; Botany Bay City Council v Remath Investments (No. 6) Pty Ltd, NSWCA, 23 December 1998, unreported; Botany Bay City Council v Remath Investments (No. 6) Pty Ltd (2000) 50 NSWLR 312 ; Cameron v Lake Macquarie City Council (2000) 107 LGERA 308; Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; CIC Insurance v Bankstown Football Club Inc (1997) 187 CLR 355; Cranky Rock Road Action Group Inc v Cowra Shire Council [2005] NSWLEC 674; Currey v Sutherland Shire Council (2003) 129 LGERA 223; Evans v Marmont (1997) 42 NSWLR 70 ; Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275; Helman v Byron Shire Council (1995) 87 LGERA 349; King v Great Lakes Shire Council (1986) 58 LGRA 366; Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270; Marnal Pty Ltd v Cessnock City Council (1989) LGRA 135; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration & Multicultural Affairs v Thiyagarjal (2000) 74 ALJR 549; Parramatta City Council v Hale (1982) 47 LGRA 319; Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615; R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Schroders Australia Property Management Ltd v Shoalhaven City Council (1999) 110 LGERA 130; Wade v Burns (1966) 115 CLR 537; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 ; Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86; Zhang v Canterbury City Council (2001) 51 NSWLR 589
DATES OF HEARING:	08/03/2006; 09/03/2006; 10/03/2006; 13/03/2006; 14/03/2006 and 15/03/2006
DATE OF JUDGMENT:	05/03/2006
LEGAL REPRESENTATIVES:	APPLICANT: T S Hale SC and D P Wilson (barrister) SOLICITORS: Houston Dearn O'Connor FIRST RESPONDENT: J E Griffiths SC and P R Clay (barrister) SOLICITOR: Christine Hanson Department of Planning SECOND RESPONDENT: B R McClintock SC and M L Wright (barrister) SOLICITORS: Minter Ellison