Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors
[2023] QPEC 26
•20 June 2023
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26 PARTIES: CLEANAWAY SOLID WASTE PTY LTD (appellant) v IPSWICH CITY COUNCIL (respondent) And QUEENSLAND ELECTRICITY TRANSMISSION
CORPORATION LIMITED TRADING AS
POWERLINK QUEENSLAND(first co-respondent by election) And CHIEF EXECUTIVE, DEPARTMENT OF STATE
DEVELOPMENT, MANUFACTURING,
INFRASTRUCTURE AND PLANNING(second co-respondent by election) And DR CORNELIA TURNI (third co-respondent by election) And ROSEMAREE THOMASSON (fourth co-respondent by election) FILE NO: 4101 of 2019 DIVISION: Planning and Environment Court PROCEEDING: Applicant appeal against refusal ORIGINATING Planning and Environment Court of Queensland, Brisbane COURT: DELIVERED ON: 20 June 2023 DELIVERED AT: Brisbane HEARING 10, 12, 13, 14, 17, 18, 19 & 31 May 2021 DATES: 1, 2, 3, 4, 7, 8, 9, 10 & 11 June 2021
26, 27, 29 & 30 July 2021
Further written submissions provided on 5, 6 and 18 August
and 12 October 2021JUDGE: Williamson KC DCJ ORDER:
1. The appeal is dismissed. 2.
The respondent’s decision to refuse the appellant’s development application, communicated by way of amended decision notice dated 4 November 2019, is confirmed.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application seeking approval to expand an existing landfill and resource recovery facility – whether the proposed development will have an unacceptable environmental impact – whether the proposed development will have unacceptable amenity impacts – whether the proposed development complies with the respondent’s planning scheme – whether the proposed development complies with a Temporary Local Planning Instrument - whether there is a need for the proposed development – whether an approval would act as a disincentive for investment in resource recovery – whether there are additional matters favouring approval – whether the development application should be approved or refused in the exercise of the discretion under ss 60(2) and (3) 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, 8, 23, 45, 59 & 60
Planning & Environment Court Act 2016, ss 43 & 45CASES: 48 Stuart Pty Ltd (atf 48 Stuart Unit Trust) v Brisbane City
Council [2017] QPELR 133
Abeleda v Brisbane City Council (2020) 6 QR 441
Austin BMI Pty Ltd v Ipswich City Council & Ors [2023]QPEC 27 Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 Broad v Brisbane City Council [1986] 2 Qd R 317
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
IB Town Planning Pty Ltd v Sunshine Coast Regional Council[2022] QPELR 791 Lane v Gatton Shire Council & Anor [1988] QPLR 49
Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City
Council & Ors [2023] QPEC 25
Trinity Park Investments Pty Ltd v Cairns Regional Council &
Ors; Dexus Funds Management v Fabcot Pty Ltd & Ors [2022]QPELR 309 Wilhelm v Logan City Council & Ors [2021] QPELR 1321 COUNSEL:
Mr G Gibson KC and Mr J Houston 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 second co-
respondent by election
Dr C Turni self -represented
Ms R Thomasson self-representedSOLICITORS: Allens for the appellant
McInnes Wilson for the respondent
Hopgood Ganim for the second co-respondent by election
Table of Contents
Introduction .......................................................................................................................... 4
The land and surrounding locality ........................................................................................ 5
Existing approvals .............................................................................................................. 10
Operational difficulties and non-compliance with approvals ............................................. 15
The proposed development ................................................................................................ 21
The statutory assessment and decision making framework ............................................... 23
Planning context ................................................................................................................. 24
The properly made submissions ......................................................................................... 40
The disputed issues ............................................................................................................. 41
Environmental impacts and risk ......................................................................................... 42
Liner integrity and differential settlement ................................................................ 52
Landfill cap ............................................................................................................... 63
Inability to comply with conditions .......................................................................... 64
Groundwater ............................................................................................................. 67Environmental risk: conclusion ................................................................................ 68
Amenity impacts ................................................................................................................. 68
Non-compliance with focal provisions ............................................................................... 78
Matters favouring approval ................................................................................................ 83
Exercise of the discretion ................................................................................................... 87
Conclusion .......................................................................................................................... 90
ANNEXURE A – LIST OF ISSUES ................................................................................. 91
Introduction
The appellant (Cleanaway) owns and operates an existing waste management facility at Chum Street and Rhondda Road, New Chum.1 The facility, which commenced operation under the control of a different entity in the mid to late 1990s,2 comprises a non-putrescible landfill, a resource recovery area and ancillary uses. The use is authorised by a number of planning approvals and an Environmental Authority issued under the Environmental Protection Act 1994. A planning approval issued in 1998 limits, inter alia, the lateral and vertical extent of the landfill. In order to comply with these limits, it was anticipated at the time of the hearing that the deposition of waste in the landfill would cease sometime in 2023. Once this occurs, approvals require the waste to be capped and the resulting landform rehabilitated.
In June 2018, Cleanaway made a development application to Ipswich City Council (Council) seeking a suite of approvals that authorise an increase to the lateral and vertical extent of the landfill. The application comprised impact assessable and code assessable components. The public notification process for the impact assessable component attracted 320 properly made submissions.3 On 28 October 2019, Council resolved to refuse Cleanaway’s development application.4
This is an applicant appeal against Council’s refusal.
The appeal is one of the three against separate decisions by Council to refuse an application seeking approval for a use involving the receipt and disposal of non- putrescible waste. Each of the applications relate to land in Council’s local government area.5 Save for common issues with respect to need and the waste industry, I heard each of the appeals consecutively. As to the common issues, they were the subject of a joint hearing. Agreement was reached as to the evidence that was cross-admissible for each appeal.6 This body of evidence, in conjunction with common submissions, has been considered in determining this appeal.
Council and a number of submitters who elected to co-respond to this appeal (co-
respondents) oppose an approval. They each notified extensive reasons for refusal.
By the end of the hearing, the reasons for refusal advanced by Council and the Co- respondents were in lock step.
The second co-respondent by election (Chief executive) was also active in the appeal, supporting the referral agency response given for the development application. The referral jurisdiction arises in relation to Environmentally Relevant Activities for which approval is sought. The Chief executive’s response is supportive of an approval. It assumes conditions are imposed on any approval granted.
The appeal is by way of a hearing anew.7
Ex.9.006, paras 4 and 13.
Ex.9.006, para 15(a).
Ex.6.002, p.7.
Communicated by way of an amended decision notice, dated 4 November 2019; Ex.6.002, p.3.
The other appeals are Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27 and Lantrak
Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25.
Ex.14.025.
s 43, Planning and Environment Court Act 2016.
It is for Cleanaway to establish the appeal should be upheld.8
The land and surrounding locality
The land the subject of the development application9 comprises two (2) lots. It is formally described as Lots 268 and 227 on SP103913 and is irregular in shape (the
land). The common boundary between Lot 268 and 227 divides the site into two
unequal portions along a north-south axis. Lot 268 is to the west of this axis and is the larger of the two lots at 79.28 hectares. Lot 227 is to the east of this axis and is 55.43 hectares in size. The total site area is 134.71 hectares.
A review of a Smart Map contained in a book of maps, plans and drawings reveals:10
(a) the western boundary of Lot 268 adjoins Chum Street; (b) the southern boundaries of Lot 268 and 227 adjoin Child Street and Rhondda Road; (c) the eastern boundary of Lot 227 adjoins a reserve, which varies in width and sleeves the western side of Six Mile Creek; and (d) there are three locations11 on the eastern boundary of Lot 227 (two in the north- east and one in the south-east) where the width of the reserve is narrow such that the land appears to almost adjoin Six Mile Creek.
The principal access to the land is via Chum Street.
The land is part of a broader area subject to extensive open cut and underground coal mining activities.12 The land, prior to its current use, was subject to underground mining and then open cut mining. 13 Underground mining ceased in 1997 and open cut mining ceased in 2009.14 This activity has left a legacy of voids and underground mine workings. Remnants of this activity include a former mining pit, known as Void 10, which is located in the north-eastern corner of Lot 227. Its location is co-incident with one of the pinch points in the reserve between the boundary of the land and Six Mile Creek.15 The remnants also include underground mine workings, which have been identified and mapped.16
Lot 268 has been cleared, with modest and disturbed areas of regrowth now evident.17
The natural profile of the land, pre-mining, can be extrapolated from a 1972 aerial photograph overlaid with a 2013 cadastral map.18 This document suggests the land had a natural hill profile, with a high point of approximately RL70m AHD in the north-western corner of Lot 268. From this point, there was a gradual fall to the east
s 45(1)(a), Planning and Environment Court Act 2016.
Ex.8.016, p.6 paras 13 and 14.
Ex.1.036, pp.8 and 9.
Ex.1.036, p.8.
Ex.8.016, p.6, para 15.
Ex.9.006, p.2, para 15(b).
Ex.8.016, p.6, para 15.
Ex.8.016, p.7.
For example, at Ex.8.013, pp.367-374 and Ex.8.010, pp.77-79.
Ex.8.006, pp.8-9, para 32.
Ex.8.016, p.107.
towards Six Mile Creek (RL35-40m AHD) and to the western boundary (RL50-55m AHD). The fall from the high point of the land to the south was less gradual and irregular. The low point occurs at the south-eastern end of the land, which adjoins the reserve (RL30-35m AHD). Mining activity has removed, in large part, the high point of the land and created a number of voids, which were backfilled (in part) in an uncontrolled manner with mine spoil.19 This is a matter of import for the geotechnical and landfill design experts called to assist the Court in this appeal.
The land has been used for a landfill facility since 1996. Cleanaway’s involvement with the use commenced in 2007 after it purchased Lot 268.20 Aerial photography21 confirms waste management activities occupy about 50% of the land area and, save for modest intrusions into Lot 227, are located on Lot 268. The balance of the land comprises artificial waterbodies, ponds and areas of vegetation.
The area providing a buffer to Six Mile Creek is a modified landscape,22 but supports pockets of Category C and B regulated vegetation known to be habitat for koala and echidna. It is also suitable habitat for ‘conservation significant’ species.23 The wooded areas surrounding Six Mile Creek, which form a corridor connecting the Brisbane River (to the north) with broad habitat areas around White Rock Conservation Reserve (to the south), provide physical habitat connectivity within, and external to, the land.24
A highly modified tributary of Six Mile Creek runs through Lot 227 via a perched dam and Void 10.25 It was common ground that Void 10 is hydraulically connected to Six Mile Creek. Water levels in the void are consistent with Six Mile Creek, typically at RL16m AHD.26
An extant Environmental Authority authorises the receipt of three streams of waste, namely general waste (including inert construction and demolition waste), limited regulated waste and contaminated soil.27 The facilities and infrastructure to receive, undertake recovery, and dispose of residual waste on the land are as follows:28 (1) a landfill and associated infrastructure; (2) a resource recovery area and associated infrastructure; (3) leachate extraction and landfill gas (LFG) extraction infrastructure; and (4) ancillary land uses such as a weighbridge, administration offices and amenities. The landfill occupies an area of 61 hectares.29 It has been developed in stages through the construction and filling of cells.
The landfill comprises 11 cells, which are not uniform in size.30 They are numbered 1, 2, 2B, 3B (described as 3B west and 3B east), 3A, 4B, 4A, 5B, 5A, 5A1 and 5. Cell 1 is located in the north-eastern corner of Lot 268. The cells then continue in a clockwise direction around the land, finishing at Cell 5 in the north-western corner.
Ex.8.016, p.6, para 15 and p.108.
Ex.9.006, p.2, para 15.
Ex.8.016, p.7 and p.8, para 21.
Ex.1.036, p.34.
Ex.8.006, p.9, para 37.
Ex.8.006, p.9, para 38.
Ex.8.006, p.9, para 38.
Ex.10.003, p.8, L50-51.
Ex.18.012, p.11, Condition W1.
Ex.9.006, p.3, para 22.
Ex.9.006, p.4, para 33.
Ex.9.006, p.3, para 24.
At the time of the hearing, Cells 4A, 4B and 3B (west) were receiving waste and Cell
3B (east) was under construction. The remaining cells were inactive.31The highest point of the landfill is approximately RL68m AHD. This occurs along the western boundary of Cell 4A.32 This can be compared to the 1972 aerial photograph overlaid with the 2013 cadastral map. The comparison reveals that the land, coincident with the location of the western boundary of Cell 4A, was about RL55m AHD in 1972.33 As a matter of basic arithmetic, the land elevation at this location has increased by 13 metres.
The landfill is supported by a number of engineering measures and controls to manage leachate and landfill gas. Leachate is essentially clean water that has come into contact with waste or leachate. It is managed as contaminated water and is tested prior to release.
The engineering measures and controls include existing stormwater infrastructure. This comprises34 a High Efficiency Sediment basin (referred to as Chum Pond) located in the north-west corner of Lot 268, two sediment basins, and a perched pond. Groundwater from Cell 3B, and stormwater from the two sediment basins just referred to, are pumped into the perched pond.35
The leachate collection system includes36 sumps and a riser pipe in Cells 2, 3A, 3B (west), 4A, 5B, 4B and 5A. A telemetry system has been installed to monitor leachate levels in Cells 2, 3A, 4A, 5B and 5A. A ring main delivers leachate from the top of each riser to a pond located in the south-eastern corner of Lot 268.
The landfill involves the placement of waste in a former mining void, which cannot gravity drain. This means, in general terms, leachate accumulating at the base of a landfill cell has to be collected and pumped out to avoid two things. First, the saturation of waste at the bottom of the cell. If the waste is saturated it has the potential to create anerobic conditions that lead to the release of contaminants. Second, it is necessary to prevent the level of leachate rising at the bottom of any cell. This is to prevent the creation of a hydraulic gradient, which has the potential to force leachate out of the cell and into the surrounding groundwater. Cell liners are used to protect groundwater from leachate. The evidence reveals, like many things, the effectiveness of liners has improved markedly since 1996 when the landfill commenced.
With respect to the use of liners:37
(a) Cell 1 is not lined; (b) Cells 2, 3A, 3B, 4A, 4B and 5B have a composite lining system comprising compacted clay fill, a geosynthetic clay liner (GCL) and a high polyethylene (HDPE) liner on the base and side walls;
Ex.9.006, p.4, para 25.
Ex.9.006, p.4, para 32.
Ex.8.016, p.107.
Depicted on Ex.1.036, p.15.
Ex.9.006, p.4, para 34.
Ex.9.006, pp.4-5, para 36.
Ex.9.006, p.4, paras 27-29. See also Ex.8.010, pp.73-75.
(c)
Cell 2B has a composite piggyback liner over the top of asbestos waste, which has no base liner;
(d) Cell 5 has a clay liner; (e) Cell 5A has a clay and GCL liner; and (f) Cell 5A1 has a clay and GCL liner, save where it joins Cells 1 and 5.
To prevent the ingress of water into inactive cells, an interim cover of soil has been placed over the waste.38 The batters of Cells 1 and 5 have also been capped with soil and vegetation, or a geomembrane.
To monitor for impacts on groundwater,39 18 monitoring wells have been installed. In Cell 3B, a groundwater depressurisation system has also been installed. This system allows for groundwater to be pumped to the perched pond discussed above.
The landfill gas management system includes40 15 perimeter monitoring wells. It also includes a network of 68 extraction wells with associated ring main piping and flares.
The resource recovery component commenced on 1 July 2019. It occupies about 10 hectares.41 It is situated on an engineered pad above former landfill cells and is serviced by mobile machinery.42 Cleanaway has invested in the order of $6 million in this part43 of the facility. The investment allows a number of materials to be recovered and diverted from landfill, including fines, concrete, timber and metal.44
Photomontages prepared for the appeal confirm the land is visible, in part, from residential development to the east and south-east. This is because the residential land, like the subject, is elevated above the intervening land that separates them. The intervening land is the vegetated waterway corridor for Six Mile Creek, which can be seen in the foreground to middle of the photomontages prepared for the appeal. It screens a large part of the development. That part of the land which can be identified in the photomontages is undoubtedly impacted by anthropogenic interference.45
A local topographical feature, known as Claypave Hill, is also prominent in the photomontages. It is a stockpile of overburden located to the west of the land. It is, in effect, the backdrop for the photomontages, with its highest point at RL118m AHD.46 It is proposed by Cleanaway to use fill from Claypave Hill as cover in the landfill. As a consequence, the height of Claypave Hill is expected to reduce in the future.
Mr Ovenden and Mr Perkins helpfully identified surrounding features that inform an assessment of character. Those features are identified at paragraph 30 of their joint expert report. In summary terms, the features can be identified as follows:
(a) industrial uses to the north, including clay mining and a fertilizer plant;47
Ex.9.006, p.4, para 30.
Ex.9.006, p.5, para 39.
Ex.9.006, p.5, para 40.
Ex.9.006, p.5, para 43.
Ex.9.006, p.6, para 48.
Ex.9.006, p.6, para 47.
Ex.9.006, p.6, para 46.
Ex.8.008, p.2-5, 2-15, 2-25, 2-35.
Ex.8.016, p.9, para 31.
Ex.8.016, p.10.
(b) Six Mile Creek and adjoining reserves to the east; (c) a former Council landfill site to the south-east; (d) an electricity easement to the south; and (e)
Chum Street, overburden stockpiles (including Claypave Hill) and former Claypave business premises to the west.
With these features in mind, the character of the area was described by Mr Ovenden and Mr Perkins as an ‘industrial and greenspace’ context. Their joint description is an accurate one, made good having regard to the visual aids before the Court. With the benefit of those aids, I readily accept the following point of agreement between Mr Ovenden and Mr Perkins:48
“In terms of describing the land use and character of the area, at a macro level the subject site sits in a corridor containing former mining areas that starts just north of the site (with the clay mining site) and runs in a south west direction between the Cunningham Highway to the west and environmental corridor of Six Mile Creek to the east. There is no access across Six Mile Creek or the Cunningham Highway (except for Whitwood Road crossing noted earlier) so the corridor is isolated from uses to the east and west…”
Mr Ovenden and Mr Perkins identified the location of established residential areas on Figure 2 in their joint expert report.49 Figure 2 reveals: (1) Riverview is located to the north and, at its southern tip, is about 1 kilometre from the land; (2) Collingwood Park is located to the east and south-east, with its western tip located some 750 metres from the land; and (3) residential development is located to the west and north-west of the Cunningham Highway, with the eastern tip of each area located in the order of 750 metres from the land. The residential area of primary concern in this appeal is identified in item (2).
The character of the ‘area’ was also examined by Dr Chenoweth and Mr Curtis. They were called to deal with visual amenity and character issues. At paragraph 5.13 of their second joint expert report, it was agreed the local area can be broadly categorised by reference to five character types. They are depicted in Figure 4 of the same joint expert report.50 By reference to Figure 4, the local area examined by Dr Chenoweth and Mr Curtis is more extensive than that considered by Mr Ovenden and Mr Perkins. The area is consistent with the Swanbank New Chum area depicted in Figure 6-7-1 of the planning scheme. I accept the area examined by Dr Chenoweth and Mr Curtis is an appropriate one to examine visual and character impacts. I also accept the character types within that area were accurately identified by Dr Chenoweth and Mr Curtis as: (1) mined, excavated and landfill areas (which includes the land); (2) natural bushland and parkland green space; (3) urban residential and commercial; (4) industrial, HV transmission lines and major roads; and (5) vacant/undeveloped land.
Ex.8.016, p.11, para 35.
Ex.8.016, p.10.
Ex.8.015, pp.16 and 47.
Existing approvals
The existing use of the land is authorised by a suite of planning approvals and an Environmental Authority. It is unnecessary to identify each and every approval in turn. It is sufficient for present purposes to say the suite of approvals and authority relied upon to conduct the waste management facility were marked exhibits 18.001 to 18.016 inclusive.
The history of approvals commences in about 1998, when Council approved an application for town planning consent.51 A number of changes have been made to this approval. The most recent change was approved by Council on 8 December 2016.52
The town planning consent approval, and the conditions attached to it, are somewhat rudimentary, despite the complexity of the use approved and its potential to adversely impact on the environment. The conditions are rudimentary in the sense they have the tenor of broadly stated objectives, which are to be met, in due course, to the satisfaction of a nominated Council officer. This can be illustrated by reference to two conditions.
Condition 31 states:53
“Water table
The landfill shall be designed and constructed so that the water table is below the base level of the landfill, to the satisfaction of the Health, Environmental Protection and Waste Manager and Senior Development Engineer.”
Condition 35 states:54
“Site rehabilitation
(a) Site rehabilitation is to be carried out generally in accordance with the document entitled "Rehabilitation Plan for Queensland Trade Waste Pty Ltd. Waste Disposal Facility: 21 Rhondda Rd, New Chum" prepared by Ison Environmental Planners dated August 1996. Additionally, details of the progressive rehabilitation of the site are to be submitted to the satisfaction of and for approval by Council's Conservation and Parks Manager as follows:
(i) For each individual landfill cell, details are to be submitted eighteen months prior to the expected final receipt of wastes in that individual landfill cell; and (ii) For all other areas of the site requiring rehabilitation not the subject of a landfill cell, details are to be submitted
Ex.8.016, p.11, para 38.
Ex.18.001.
Ex.18.001, p.10.
Ex.18.001, pp.12-13.
eighteen months prior to the expected final receipt of
wastes in the final landfill cell.
(b) Further, each progressive rehabilitation plan required by item (a) above is to be generally in accordance with the following:
(i) The landform as generally indicated in the “Proposed Final Surface Contours (Pre Settlement)” Plan, F002, Rev 0, dated 28 November 2014, prepared by Golder Associates & “Proposed Final Surface Contours (Post Settlement)” Plan, F003, Rev 0, dated 28 November 2014, prepared by Golder Associates, or any other plan which may be approved by the assessment manger; and (ii) Any rehabilitation requirements set down under the Department of Environment and Heritage environmental authority Licence No SR611 or any subsequent document replacing or amending that authority; and (iii) Any rehabilitation requirements of the Department of Mines and Energy in respect to the previous relinquishment of the Mining Leases. …
(e) Progressive and post closure rehabilitation of the site shall be in accordance with the rehabilitation plan and any requirements of the Department of Environment and Heritage environmental authority and is to be completed to the satisfaction of the Conservation & Landscape Manager and Senior Development Engineer.”
Condition 35(a) requires rehabilitation to be carried out generally in accordance with a report published in August 1996. Section 9 of the report identifies, again in rudimentary terms, the requirements for revegetating the land. This involves: (1) a minimum of 50 mm and an average depth of 100mm of topsoil; (2) the application of fertilizer; (3) planting of a mix of seeds/grasses, and trees and shrubs, all of which are to be appropriate to the circumstances of the land; and (4) planting of selected native trees and shrubs where required.55
Condition 35(b)(i) requires a progressive rehabilitation plan to be prepared. The plan is to be generally in accordance with, inter alia, two approved plans, FOO2 and FOO3.56 From these plans, the vertical extent of the landfill approval on Lot 268 can be identified. The maximum pre-settlement height approved is RL72m AHD in the south-western corner. An area in the north-western corner of Lot 268 has a maximum pre-settlement height of RL65m AHD. The finished landform depicted in the approved plans gradually slopes west to east. The lowest part of the landform is in the south-eastern corner, which sits at an elevation of about RL33m AHD.
Ex.8.016, p.12, para 42.
Ex.18.002, pp.1 and 2.
The current Environmental Authority (the current EA) for the use is EPPR00445713, dated 31 January 2020.57
The current EA conditions are grouped under one of six headings.
Conditions W1 to W3 are included under a heading of ’Waste Management’ and identify the waste streams that may be received.
The following conditions are also grouped under a heading of ‘General’. They limit the release of contaminants from the land and impose requirements for the management of leachate:
“G3 Other than as permitted by this environmental authority, the release of a contaminant into the environment must not occur.”
And:
“G10 A leachate collection system must be designed, installed and maintained by an appropriately qualified person to:
1. collect leachate generated in the landfill unit;
2. convey the collected leachate out of the landfill unit to an appropriate leachate storage facility;
3. restrict the height of the leachate above the liner system to a maximum level of 300mm or another value with equivalent leachate minimisation performance as agreed with the
administering authority;
4. measure and record the height of leachate above the liner system on a daily basis where this level is greater than 300mm, or at least weekly at other times.”
Leachate is a defined term for the current EA:
“Leachate means a liquid that has passed through or emerged from, or is likely to have passed through or emerged from, a material stored, processed or disposed of at the licensed place that contains soluble, suspended or miscible contaminants likely to have been derived from the said material.”
Condition WT1 is included under a heading of ‘Water’ and provides that ‘The only
contaminants to be released to surface waters are settled treated water of a quality and from release points stated in Table - Surface water release limits’. The table
following condition WT1 sets outs a range of water quality characteristics, (such as suspended solids and pH), release limits and identifies release points. ‘Release points’ are defined in the current EA for condition WT1 as follows:
“Release points for the purpose of condition (WT1), Table – Surface
water release limits are as follows:Ex.18.012.
- Final sedimentation basin to Void 10 defined (GDA94) as: S 270
37’ 0.3.5” E 1520 50’ 24.7”- High efficiency sediment pond onto Chum Street defined (GDA94)
as S 270 36’ 36.1” E1520 49’ 50.1””
[49] Conditions H5, H6 and H7 prescribe the requirements for the installation and maintenance of a groundwater monitoring regime. One of the parameters to be monitored in the groundwater is ammonia (as N). Mr Sutherland, an expert called by Council with respect to groundwater and leachate management, explained that ammonia is a key landfill indicator of leachate.58
Conditions W6, W7 and W8 go to matters of rehabilitation and post-closure care. The conditions are in the following terms:
“W6 When the deposition of waste to the landfill unit ceases, a final capping system to the landfill unit must be designed by an appropriately qualified person and installed to minimise:
1. infiltration of water into the landfill unit and water ponding on the surface; and
2. the likelihood of any erosion occurring to either the final capping system or the landfilled materials.
A final capping system is not required where the deposition of waste to a landfill unit ceases temporarily for the purpose of using an alternative working face.
W7 Land that has been disturbed for activities conducted under this environmental authority must be rehabilitated in a manner such that:
1. suitable species of vegetation for the location are established and sustained for earthen surfaces 2. potential for erosion is minimised 3. the quality of water, including seepage, released from the site does not cause environmental harm 4. potential for environmental nuisance caused by dust is minimised 5. the water quality of any residual water body does not have potential to cause environmental harm 6. the final landform is stable and protects public safety 7. the contaminant concentrations within the final capping layer are appropriate for the final land use and in accordance with
T21-36, L38-45.
the ‘National Environmental Protection (Assessment of Soil
Contamination) Measure 1999.’
W8 Following cessation of deposition of waste in the landfill facility, post-closure care of the landfill facility must be conducted for a period of 30 years or until the administering authority determines, on the basis of correct information, that the landfill facility 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.”
Condition W10 requires a site management plan to be prepared at least 12 months prior to the expected final receipt of waste. That plan must include, inter alia, the actions to be taken to achieve compliance with the closure, and post-closure care requirements of the approval.
Condition G13 secures compliance with the current EA by way of prescribed financial assurance.
Condition G2 imposes a reporting obligation on the holder of the authority. It is in the following terms:
“G2 Any breach of a condition of this environmental authority must be reported to the administering authority as soon as practicable with 24 hours of becoming aware of the breach. Records must be kept including full details of the breach and any subsequent action.”
[54] In anticipation of an approval being granted for the expanded landfill facility, Cleanaway applied for, and obtained, a new Environmental Authority identified as EA0001935 (the new EA).59 The new EA does not take effect unless, and until, an approval is granted for the development application the subject of this appeal.
A review of the new EA reveals it bears the following points of similarity with the current EA, namely both documents:
(a) identify the waste streams that may be received;60 (b) contain a reporting obligation in the event of a breach of condition;61 (c) restrict the height of leachate to a maximum of 300mm above a cell liner;62 (d) preclude the release of contaminants otherwise than as expressly permitted;63 (e) require a groundwater monitoring regime to be implemented and maintained;64 (f) require the landfill unit to be sealed with a capping system and the resulting landform subject to post-closure care;65 and
Ex.18.013.
Ex.18.013, pp.21-36, Conditions W1-W7.
Ex.18.013, p.5, Condition G3 and p.12, Condition WT1.
Ex.18.013, p.36, Condition W9.
Ex.18.013, p.5, Condition G5.
Ex.18.013, p.6, Condition G11 and pp.15-19, Conditions WT8-WT16.
Ex.18.013, pp.19-20, Conditions L3-L6.
(g) seek to secure performance of conditions by way of financial assurance.66
Operational difficulties and non-compliance with approvals
The successful management of a landfill that cannot gravity drain requires an operator to do three things. First, an operator must ensure the integrity of any liner system is not compromised. Liner integrity is critical to the maintenance of groundwater and prevention of contamination. Second, an operator is required to divert and separate surface water from waste. Third, an operator is required, to the extent practicable, to divert and separate clean water from leachate. The second and third points go hand in hand. They go to ensuring the generation of leachate is minimised.
The evidence revealed that Cleanaway’s management of the existing facility is poor. More particularly, it revealed the three matters stated above have not been met at all times. Monitoring data reveals that surface water and groundwater has come into contact with leachate. The work undertaken by Dr Bennetts suggests it has manifested, in part, as elevated levels of PFAS (per and polyfluoroalkyl substances) in onsite water bodies, Void 10 and downstream of a discharge point to Six Mile Creek.67 The evidence also establishes that leachate has mixed with groundwater. The extent to which contaminated groundwater has migrated beyond the boundary of the land is unknown.
That elevated levels of PFAS were detected in surface and groundwater is, in my view, the product of poor onsite management of leachate. It is also symptomatic of a bigger issue facing Cleanaway in this appeal: that a known operational constraint (leachate in a void that cannot gravity drain) is difficult to successfully manage on the land, even for an operator the size of Cleanaway.
Poor leachate management was not assisted by the events of June/July 2020.
[60] In June/July 2020, a side liner in Cells 4A and 5B was breached during the construction of seven (7) LFG extraction wells.68 The liner comprises (from the bottom up) a 1 metre thick compacted clay/engineered fill layer, a GCL layer, a HDPE geomembrane and a protection geotextile.69 Cleanaway became aware the liner was breached on 27 October 2020, one day after the newly installed LFG wells were balanced and commissioned.70 On 29 October 2020, Cleanaway notified the Department of Environment and Science (DES) of, inter alia, the liner breach.71 They were required to do so having regard to condition G2 of the current EA.
[61] After notifying DES, Cleanaway took steps to remedy the liner breach. This involved:72 (1) undertaking a review of geological information to understand the lithology below the liner; (2) the implementation of a well monitoring program, which was ongoing at the time of the appeal; and (3) the carrying out of works to remediate
Ex.18.013, p.7, Condition G16.
Ex.8.010, pp.157-160.
Ex.9.006, pp.10-11, paras 82, 85 and 89.
Ex.9.006, p.11, para 90.
Ex.9.006, p.11, paras 88 and 89.
Ex.9.006, p.10, para 82.
Ex.9.006, p.11-12, paras 94-95.
liner breaches.73 A construction quality assurance report (CQA) was produced for the remediation works,74 which were paid for by the contractor responsible for piercing the liner.75
The breach of the side liner in Cells 4A and 5B was not without consequence. At the time the liner was pierced, Cells 4A and 5B had only an intermediate cover and were relatively flat in grade. Under these circumstances, rainfall is expected to have migrated through the intermediate cover and into the waste below, generating leachate. The rainfall recorded for the five month period the liner was breached (July 2020 to December 2020) was 127mm.76
Ammonia (NH4) concentrations recorded in bore hole monitoring data suggests leachate from the waste mass in Cell 5B mobilised and migrated into the groundwater. Bore hole BH07A is located to the west of Cell 5B77 and some 60 to 100 metres from where the liner was pierced.78 Ammonia measured in samples taken from this bore hole indicate the contaminant was present in the groundwater for an extended period. The concentration level spiked after the liner was remediated but reduced over time.
Mr Ife, who is a hydrogeologist, helpfully explained the impact of the liner breach on groundwater in this way:79
“In summary, the liner breach was caused by drilling penetrating the liner in seven locations close to the margins of the cells. This created a pathway for migration of fugitive emissions of leachate from the waste to the water table and this was detected as a significant rise in NH4 concentration in the groundwater monitoring bore NH07A. Rectification of the liner breaches appear to have stopped the release of leachate into the substrate but monitoring in BH07A indicates that desorption of NH4 from the clay-rich material in the unsaturated zone has influenced concentrations in the bore although the most recent monitoring records indicate the concentrations are significantly reducing over time.”
In circumstances where it is well understood that the integrity of the liner system is critical to the management of this landfill, 80 and it is not difficult to foresee that the operation of a drill near the surface of the liner could pierce it, one might be forgiven for asking this question: how does it come to pass that a cell liner could be pierced not once, but seven times, without Cleanaway knowing for a period of about four months? The answer is to be found in the evidence of Cleanaway’s engineering manager for the facility, Ms Barnes.81
Ms Barnes was the team leader responsible for supervising the contractor who drilled the seven LFG wells. She explained how the process should have proceeded. Ms
The scope of remediation works carried out were discussed by Mr Ife at Ex.9.011, pp. 13-14, paras 46 and 47.
Ex.9.006, p.12, para 96.
T20-20, L19-29.
Ex.9.011, p.15, para 49.
Ex.9.011, p.13, Figure 2.
Ex.9.011, p.16, 55 e).
Ex.9.011, pp.16-17, para 57.
T19-77, L11-14.
T19-76, L1 to T19-77, L29.
Barnes said it involves setting out a grid across the landfill and fixing locations for new wells within the grid. Once the location for each new well is fixed, they are surveyed. That survey is then compared to the level of the liner and base of the cell below. This comparison is repeated after each drill hole is completed.
The comparative exercises described by Ms Barnes did not occur on a drill by drill basis, or at all, in June/July 2020. What did occur was a campaign of drilling, which proceeded absent the two critical comparative exercises providing a necessary check and balance. The reason for this was not explained. Rather, Ms Barnes, despite accepting without qualification her team was responsible for supervision of the drilling campaign, refused to accept responsibility for the error. This was clear from the following passage of her oral evidence:82
“…yesterday, you answered to the effect that you – and it’s not clear whether it was referenced to you personally or you the company – accept responsibility for that. Do you remember saying that?---No, I don’t remember accepting - - -
Well, do you…accept responsibility for that?---…we engaged the drillers, we engaged Run Energy, they drilled the wells by use of a contractor. And, yes, they’ve been too deep. In terms of …doing the actual drilling, no.
HIS HONOUR: …– sorry…I don’t quite understand your answer… I think the question is; does Cleanaway take responsibility for the breach of the liner? Whether it physically did the drilling or not…?---No, we don’t.”
I found Ms Barnes’ explanation for the drilling error, combined with her demeanour and unwillingness to accept responsibility for the liner breaches, devoid of the perspicacity expected of an experienced landfill operator. In any event, the evidence comfortably establishes the side liners in Cells 4A and 5B were pierced on seven occasions due to poor supervision of a drilling campaign. Cleanaway proceeded with that campaign in circumstances where: (1) the integrity of the liners are critical to the successful management of the existing facility; (2) the campaign, on any objective view, posed a risk to the integrity of cell liners; and (3) necessary checks and balances were either not in place, or not executed, to protect cell liners. Data collected from groundwater monitoring bore hole BH07A indicates Cleanaway’s poor supervision was not without consequence.
Shortcomings in Cleanaway’s management of the existing landfill are not limited to the circumstances of June/July 2020.
In July 2019, whilst preparing a response to a request for information in connection with the development application before the Court, Cleanaway became aware that concentrations of PFAS in surface water, on-site water bodies and groundwater exceeded the toxicant trigger level of 99% identified in the PFAS National Environmental Management Plan dated January 2018.83 This is indicative of
T20-19, L39 to T20-20, L13.
Ex.9.006, p.10, para 76 and Ex.8.010, pp.158-159, paras 271-280.
bioaccumulation risk84 but not a direct toxicity risk. Monitoring in Six Mile Creek indicates the concentration of PFAS appreciably increases downstream of the land.85
At the time of the hearing, the evidence did not suggest this operational issue had been resolved, nor resolved quickly. Ms Barnes did however indicate that PFAS was the subject of ongoing monitoring. A new stormwater and site water management strategy was also said to be under development to proactively manage PFAS.86
Further, the height of leachate within a number of cells has proven to be a difficult constraint for Cleanaway to manage successfully, and in compliance with the current EA.
A telemetry system in Cells 3A, 3B (west), 4A, 5B and 5A monitors the height of leachate above the liner.87 On 29 October 2020, Cleanaway notified the DES of non- compliance with conditions G10(3) and (4) of the current EA, which are set out at paragraph [46]. The notification given to the DES recorded:88 (1) leachate levels were higher than 300mm above the base of the liner; and (2) the telemetry system was offline, with the consequence that the height of leachate above the liner was not measured and recorded daily.
[74] The evidence reveals non-compliance with condition G10(3) of the current EA commenced in 2018 and was ongoing at the time of the hearing.89 The exceedance has been significant and protracted. At one time, the level of leachate was estimated to be about 7.6 metres above the base of the liner in Cells 4A and 5B.90 Measurements set out in a note dated 1 June 202191 reveal the height and volume of leachate above cell liners during the hearing of the appeal were as follows:92
Cell 2 3A 3B 4B 5A 5B TOTAL …
Leachate 1.09 3.21 0.25 1.63 0.86 3.77 N/A
level (m above cell base liner)
…
Total 61326 23303.1 2018.7 2817.3 8293.7 26118.3 123877.1 Volume
(cum)Volume in
32701.2 23148.5 0.0 2692.7 3835.4 26047.0 88424.9 excess of
300mm
above liner
(cum)
Ex.8.010, p.159, para 279.
Ex.8.010, p.157, para 269 and Figure 5.
Ex.9.006, p.10, para 81.
Ex.9.006, p.12, paras 101 and 102.
Ex.9.006, para 104.
T19-77, L46 to T19-78, L8 and Ex.9.025, pp.14-15, para 4.5 read with Figure 1.
T21-51, L30-42.
Ex.9.025. The relevant attachment is a memorandum dated 27 May 2021.
Ex.9.025, pp.14-15, para 4.5 read with Figure 1.
There are a number of reasons, taken in combination, that explain why leachate has built to significant levels above the base of cell liners. The reasons can be identified in summary as: (1) the size of individual landfill stages have created large expanses of working face that allow for the infiltration of rain and surface water into cells; (2) inappropriate cover material has been placed over waste at a relatively flat grade and for extended periods – this allows rainfall to infiltrate the waste below;93 (3) it appears landfill cells were used as basins to hold leachate while a treatment solution was fixed upon, including one permitting discharge of the leachate from an approved release point; and (4) poor landfill management has allowed excess leachate to be generated in already difficult circumstances. Poor landfill management practices have included Cleanaway leaving large areas of waste exposed to the elements (rain), which generates additional leachate requiring treatment and disposal.
At the time of the hearing, Cleanaway had investigated a range of options to resolve the leachate issue but had not fixed upon a final solution.94 The preferred option involved the use of a water treatment plant and disposal of the treated leachate. Assuming a treatment rate of 1 megalitre per day, it would take in the order of 6 to 12 months to reduce leachate in the cells to a level less than 300mm above the liner.95
The use of a water treatment plant was well advanced at the time of the hearing. A trial plant for Cell 5 was installed in November 2020 and became operational in February 2021.96 The plant was partly successful in achieving its objective. It was:97
(a) successful in removing PFAS contamination to a release limit that is equivalent to the 99% ecological protection criteria referred to in paragraph [70]; (b) unsuccessful in removing ammonia to comply with Queensland Urban Utilities Sewer Discharge Criteria; and (c) was unsuccessful in removing Biological Oxygen Demand, Chemical Oxygen Demand, Total Organic Carbon and Total Dissolved Solids, ammonia and the majority of heavy metals to comply with the water release limits in the new EA.
The treatment plant can be augmented with ‘off the shelf’ components to deal with the contaminants identified in (b) and (c) above.98 Whilst the treatment plant may be capable of augmentation in this way, at the time of the appeal there was no plant capable of treating the leachate in the base of the landfill to a level that was suitable for release under the terms of the current EA, let alone capable of treating leachate at a rate of 1 megalitre per day.
Cleanaway’s preferred leachate management system also includes a lined leachate pond. This was under construction at the time of the appeal. It is elevated 50 metres above the groundwater level and will have a capacity of 12.6 megalitres.99 The pond will be used to dispose of leachate, either by evaporation or recirculation through the landfill mass.100
T16-14, L42 to T16-15, L3.
Ex.9.006, p.13, paras 110-111.
Ex.9.025, p.2, para 24.
Ex.9.004, p.2, paras 11 and 13.
Ex.9.004, pp.8-9, para 46.
T17-5, L43 to T17-6, L4 and T17-17, L35-37.
Ex.9.022, pp.8-9, paras 96 and 101.
Ex.9.006, p.13 and para 117.
Condition WT1 of the current EA authorises discharge from Chum Pond, provided the water meets defined water quality parameters. On 15 January 2021, Cleanaway gave notice to DES that 150,000 litres was released from Chum Pond following a storm event where 84.2mm of rain fell in a two hour window. The water released was sampled and tested. The results revealed the presence of PFAS. It also revealed there was 480 milligrams/litre of total suspended solids in the sample. This is about nine times greater than the limit prescribed in the current EA, which is 50 milligrams/litre.101
On 19 January 2021, Cleanaway again gave notice to the DES about a release of water from Chum Pond following a storm event. The release was estimated to be equivalent to 120,000 litres. Tests conducted on sampled water indicated the release exceeded the prescribed limit for total suspended solids by a factor of three and also included PFAS.102
A statement prepared by Ms Barnes indicates that Cleanaway was fined in excess of $26,000 for releasing water from Chum Pond. It also records that a number of active steps have been taken to address releases from Chum Pond.103 This included undertaking preventative maintenance and removing residual sediment.
Following the storm events in March and April 2021, water104 was released from Chum Pond and Basin 1 to Void 10. Limited detail was provided about these events. The evidence did however reveal that on 17 May 2021, Cleanaway informed DES of monitoring results, which indicated concentrations of total suspended solids in Chum Pond, and the perched pond, had exceeded the surface water release limits prescribed in the current EA.
A significant proportion of the material sent to landfill is combustible. Fires therefore are not uncommon. They need to be managed to avoid, inter alia, damage to cell liners. In the 10 year period prior to the hearing, Cleanaway’s internal records reveal there have been 82 fires at the New Chum facility.105 One event was particularly serious. It required about 2.6 hectares of the Cell 2 liner to be repaired.106
With the above evidence in mind, all of the technical experts called to assist the Court were examined by Mr Hughes KC about Cleanaway’s management of the existing landfill facility. The response by all, when pressed, was uniform in substance; Cleanaway’s management of the existing facility, particularly leachate, was poor and required significant improvement. Improvement is required to achieve compliance with, inter alia, the current EA.
That the standard of management for the existing facility is poor was a matter firmly pressed by the refusing parties. It was pressed in two ways. First, to advance the proposition there is little confidence Cleanaway can successfully manage the existing facility, let alone an expanded version of that facility. Second, it was advanced as being symptomatic of a fundamental issue, namely this: the land is unsuitable for landfill, and any expanded version of it. These matters are considered later in these
Ex.9.006, p.14, paras 118 and 119.
Ex.9.006, p.14, paras 120 and 121.
Ex.9.006, pp.14 to 15, paras 124-129.
Ex.9.006, p.15, para 130 and Ex.9.022, p.10, para 113.
Ex.9.018, p.3, s 2; T17-37, L1-4.
T17-39, L43 to T17-42, L14.
reasons dealing with environmental impacts and risk. It can however be observed at
this stage that the two points pressed are not without force.
The proposed development
The development application seeks approval to increase the capacity of the existing landfill facility by 7.5 million m3, delivered in a number of stages. No change is proposed to the type, or annual rate, of waste material received by Cleanaway under its existing approvals.
The life of the extended facility is a function of the rate at which waste is received. The best estimate at the time of the appeal was that an approval would extend the life of the landfill somewhere between 5 to 10 years.
The proposed expansion involves a number of elements, which are depicted in a set of proposed plans107 and described in the town planning joint expert report at paragraph 44.108 In summary terms, the elements are: (1) a lateral extension (up to 142m) from the eastern side of Cell 2 towards Void 10, which creates a new Cell 6 with an area of 2.34 ha; (2) a vertical extension of the existing landfill footprint up to a maximum pre-settlement height of RL85m AHD; (3) modifications to landform grades to, inter alia, improve surface water management, and to reduce leachate generation and differential settlement; (4) the provision of a resource recovery area for sorting, removing and stockpiling waste suitable for recovery; (5) the provision of new water management infrastructure; (6) the provision of vegetated screening bunds along the southern and eastern edges of the landfill; (7) the construction of a new internal road; (8) rehabilitation of the land south of Void 10 and to the east of the landfill; and (9) maintenance and enhancement of the buffer area to the north of Void 10.
The proposed resource recovery area is approximately 1 hectare in size and has a stockpile capacity of approximately 20,000 tonnes.109 The materials to be targeted for recovery are concrete, timber and metal. Fines (soils) will also be targeted for utilisation as cover in the landfill.110 Plant and equipment used in this part of the facility has already been secured. It is mobile.111
Notable features of the development are as follows.
The crest (or peak) of the final landform is located towards the south-western corner of the landfill. Within that area, the landform comprises new waste placed upon existing waste. A composite ‘piggyback’ liner is proposed to be placed between existing and new waste. This aspect of the development represents the vertical extension discussed in item (2) above. The piggyback liner provides an opportunity to cap existing waste to prevent water infiltration into the waste mass below.
Waste material is to be placed in stages, and visually screened by a 12 metre high perimeter bund and screening bund. In the early stages of development, a bund will be located towards the south-western end of the landfill adjacent to, and sitting above,
Ex.1.036, pp.14-35.
Ex.8.016, p.13, para 44.
Ex.9.022, p.9, para 103.
Ex.9.022, p.9, para 105.
Ex.9.022, p.9, paras 108 and 109.
the peak height of the final landform. The bund will progressively extend towards the north-eastern corner as stages are completed, and the final landform is achieved. Portable screening barriers between 6 and 8 metres in height are also proposed. It is intended these barriers will move with the progression of filling activities to provide supplementary screening.
Typical cross-sections indicate the final landform is achieved adopting two capping methods, namely a phytocap and geosynthetic liner cap. A phytocap can be landscaped with trees, shrubs and grasses. The geosynthetic liner cap can be landscaped but is suited to shrubs and grasses. The extent of the phytocap is depicted on an updated rehabilitation strategy plan. It appears to coincide, to varying degrees, with Cells 1, 2, 2B, 3B, 3A, 4B, 4A and 5.112 The western, southern and eastern edges of the phytocap are sleeved by a perimeter bund. The extent of the geosynthetic cap is also depicted on the same rehabilitation plan. It covers the balance of the landfill footprint. It comprises (from the bottom up) an earthen fill layer, geosynthetic clay liner, geosynthetic liner, geocomposite drain layer, soil cover and topsoil.
The plans of development depict a leachate pond in the south-western corner of the fill area. This is the pond discussed at paragraph [79], which will collect leachate conveyed by pipes around the perimeter of the landfill. The pond replaces two existing leachate ponds located in the south-eastern part of the land. The existing ponds are to be decommissioned. A new road is proposed around the northern, eastern and southern sides of the leachate pond.
The plans of development identify an existing sediment basin in the south-eastern corner of the land. This basin is to be decommissioned. The proposed plans also provide for three new sediment basins, namely ‘Sediment Basin 1’, ‘Sediment Basin 2’ and a ‘High Efficiency Sediment Basin’. Basin 1 and 2 are located on the eastern side of the fill area. The plans indicate they receive stormwater conveyed by pipes and vegetated channels located around the perimeter of the fill area. A new road is proposed to the west of Basin 1. The High Efficiency Sediment Basin is located at the north-western edge of the landfill.
In support of approval, the development application includes a rehabilitation strategy, which is articulated in pictorial form. The most up to date version of the strategy is Attachment D to the terrestrial ecology joint expert report.113 Having regard to this report, and the oral evidence of Mr Francis, the total area of land to be restored (from an ecological perspective) is in the order of 71 hectares.114 This comprises the phytocap, perimeter bund and two specific areas targeted for rehabilitation, namely: (1) an area to the east of the landfill footprint and west of the buffer area to Six Mile Creek; and (2) an area to the south-west of the landfill footprint.
I accept an approval granted subject to conditions recommended by Mr Francis and Mr Clowes will, from an ecological perspective:115
(a) maintain vegetation providing habitat and movement opportunities for koalas; (b) manage adverse impacts on biodiversity and the natural environment;
Ex.8.017, p.43.
Ex.8.017.
Ex.8.006, p.20, para 100.
Ex.8.006, p.20, para 101.
(c) provide a buffer to Six Mile Creek; (d) repair the riparian ecology of Six Mile Creek; and (e) enhance the function of habitat corridors.
The statutory assessment and decision making framework
The development application was lodged on 7 June 2018.116
[100] In terms of the statutory assessment framework and levels of assessment, the development application comprises two parts. To the extent the application seeks planning approval for a material change of use, it is impact assessable. The balance of the application, which seeks approval for a number of ERAs under the Environmental
Ex.14.022, p.3.
The ‘others’ being the circumstances traversed in these reasons with respect to environmental risk and associated legacy issues.
Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors [2020]
QPELR 534.
For the reasons given in Austin (paragraph [740] to the end of the second sentence in paragraph [751], [817] to [831]):
(a)
I do not accept the findings made in HPC about landfill airspace supply in South East Queensland should be applied to determine the need point in this appeal;
(b)
I do not accept a critical assumption underpinning Council’s need case - namely it can be assumed, for the life of the proposed development, that putrescible airspace capacity serving South East Queensland is a substitute for private non- putrescible airspace capacity. To assume it is in the public interest that the former is substitute for the latter, in the short term, requires a number of adverse consequences flowing from such substitution to be ignored. The consequences are identified in paragraph [831] of Austin as follows:
“To allow the exhaustion of non-putrescible waste facilities to
occur in South East Queensland would lead to the following:
(a) it would result in the loss of a service – not all landfills are the same; (b) it would reduce competition for the disposal of non- putrescible waste; (c) it would expose non-putrescible waste to higher dumping fees in comparison to those charged at putrescible landfill waste facilities; and (d) would result in the consumption of a valuable community asset - putrescible landfill airspace would be consumed more rapidly than it could be replaced by viable alternatives, such as energy for waste.”
Once it is appreciated: (1) landfill represents important infrastructure; (2) private non- putrescible landfill airspace capacity serving South East Queensland is near exhaustion; (3) the demand to dispose non-putrescible waste will continue for the life of the extended landfill; and (4) it cannot be assumed non-putrescible waste can be diverted to putrescible waste facilities absent adverse economic consequences for the life of the extended landfill; it is not difficult to conclude there is a need for additional private non-putrescible landfill airspace capacity to serve South East Queensland. This need exists, in my view, today and will persist for the life of the proposed development.
I am satisfied the proposed development can meet the identified need, in part, in an economically efficient way (as an extension of an existing landfill facility). Given the need exists today, and relates to a piece of community infrastructure, this is a matter attracting significant weight in support of approval.
I accept subparagraph (d) has been established. It is supportive of approval but does not attract significant weight. It is a point that is bound up in the assessment of need.
I accept subparagraph (e) has been established. It is supportive of approval but does not attract significant weight in, and of, itself. The locational characteristics of the land explain, in part, its inclusion in the RSBEIAL and Investigation zone under the planning scheme.
[430] I do not accept subparagraphs (f) and (g) have been established for reasons given above.
[431] I accept subparagraph (h) has been established but to a more limited extent than advanced on behalf of Cleanaway. I do not accept the point has been established in so far as it assumes compliance in environmental and amenity terms.
[432] Whilst I accept the new EA is a relevant matter for the purposes of assessing the impact assessable component of Cleanaway’s development application, I do not accept its very existence is a factor that advances the exercise of the discretion very far in favour of approval. For the document to provide meaningful support for approval, it was necessary to go further than its mere existence. For example, it might have been said the document demonstrates how the proposed development can be conditioned to address, inter alia, its environmental impacts.331 It has not however been established that compliance can be achieved with particular conditions imposed on the new EA.
[433] Central to subparagraphs (j), (k) and (l) is the proposition that the proposed development can be conditioned to ensure its design, construction, operation and completion can occur in a manner that is acceptable in environmental and amenity terms. For reasons given above:
(a) I am not satisfied this has been demonstrated in amenity terms; and (b)
whilst, in theory, conditions could be imposed to address the environmental impacts of the proposed development, it has not been demonstrated, in reality, an operator of the expanded landfill can implement and maintain the controls required by particular conditions to successfully (and acceptably) manage environmental risk – this is due to existing and well known site constraints that cannot be removed by an approval.
Exercise of the discretion
Cleanaway’s case in support of approval was founded on the following propositions, namely:
(a) an approval, granted subject to conditions, would comply with the planning scheme, SEQRP 2017 and State Planning Policy 2017; (b) an approval, granted subject to conditions, substantially complies with the 2018 and 2020 TLPIs; (c) the proposed development will not have any unacceptable ecological, environmental or amenity impacts; (d) the proposed development will rehabilitate the landfill and surrounding areas; (e) the proposed development will deliver improved environmental outcomes for the land;
Austin, [846].
(f)
the proposed development is well located and, if approved, would deliver identifiable public benefits, namely:
(i)
the development would meet an existing town planning, community and economic need; and
(ii)
the development is consistent with contemporary waste management planning in that it will reduce the volume of waste going to landfill by operation of its resource recovery area;
Subparagraph (a) has not been established in so far as it involves compliance with the planning scheme.
Subparagraph (b) has not been established to the extent Cleanaway’s case assumed non-compliances with the Activity Code in the TLPIs were limited in number, and without planning consequence.
[437] Subparagraph (c) has been established in part only. The evidence demonstrates the proposed development will not give rise to unacceptable ecological impacts. The evidence does not however demonstrate what is asserted in relation to amenity and environmental impacts.
Subparagraph (d) can be accepted to the point it involves ecological improvements. Beyond this, there is an unacceptable risk the proposed development will lead to the site becoming a legacy use that requires leachate and groundwater pumping systems to operate, and be maintained, in perpetuity.
[439] Subparagraph (e) has been established to the extent in relates to ecological improvements of the kind discussed in paragraphs [98] and [420].
Subparagraph (f) has been established.
[441] To the above matters can be added the following considerations relevant to, and favouring, approval, namely: (1) the substance of the properly made submissions supporting approval (discussed at paragraphs [199] and [201]); (2) the matters traversed in paragraphs [423] to [427], to the extent they are not otherwise reflected above; and (3) that hard amenity impacts, in terms of noise, dust and odour emissions, can be successfully managed by conditions.
[442] Council alleged the development application should be refused because there is no need for the landfill component of the development; the proposed development will not sufficiently promote resource recovery; the proposed development is not sustainable development; the proposed development would be contrary to contemporary waste planning principles; the proposed development will delay the rehabilitation of the land and is contrary to general planning principles. Save for the issue raised with respect to rehabilitation, the exercise of the discretion will proceed on the footing these matters have been resolved favourably to Cleanaway. It is appropriate to do so having regard to:
(a) paragraphs [423] to [427] above; (b)
paragraphs [783] to [839] of Austin, which, I am satisfied, has application (by parity of reasoning) to issues in this appeal about resource recovery, sustainable development and consistency with contemporary waste planning principles; and
(c)
paragraphs [543] to [548] of Austin in relation to the importance, if anything, to be attributed to asserted departures from broadly stated planning principles.
As to the rehabilitation of the land and its redevelopment for uses anticipated by the planning scheme, I am satisfied rehabilitation and reuse of the land would be delayed by an approval. However, in isolation, this does not materially enhance the strength of the refusal case. The strength of the case is derived from three matters, namely: (1) the proposed development will have unacceptable impacts on amenity; (2) the proposed development has an unacceptable level of environmental risk; and (3) the proposed development is non-compliant with the planning scheme in a number of material respects (by reason of (1) and (2)).
The critical question is this: has it been demonstrated an approval should be granted, subject to conditions?
This question is resolved in the negative.
[446] The evidence establishes the land is constrained. It has not been demonstrated the proposed landfill extension can be undertaken in a manner that appropriately co-exists with those constraints. This manifests in three ways: (1) as an unacceptable risk of environmental impact; (2) in the form of adverse amenity impacts; and (3) material non-compliance with the planning scheme and State Code 22. These are compelling reasons for refusal. Indeed, items (1) and (3) are sufficient to warrant refusal of the development application in their own right.
There are reasons supportive of approval that are to be balanced against these matters. They are not without significant force and include partial compliance with the planning scheme, improved environmental outcomes, and the meeting of a town planning and community need for critical community infrastructure. All of the matters that could be said to favour approval do not carry the day because:
(a) the grounds supportive of approval, taken individually or collectively, do not render the risk of adverse environmental impact acceptable; (b) meeting the identified need will not render the adverse amenity impacts acceptable; (c) the need for non-putrescible landfill facilities can be met, in part, by the development approved in Austin; and (d) the grounds supportive of approval do not, taken individually or collectively, provide a sound town planning basis to approve development that is inconsistent with the planning scheme and has the potential to give rise to adverse environmental and amenity impacts.
Cleanaway has not discharged its onus. The development application is refused.
Conclusion
[449] It is adjudged that:
1. The appeal is dismissed.
2.
The respondent’s decision to refuse the appellant’s development application, communicated by way of amended decision notice dated 4 November 2019, is confirmed.
ANNEXURE A – LIST OF ISSUES
5
2
3