Drake and Ors; Auburn Council v Minister For Planning And Anor; Collex Pty Ltd

[2003] NSWLEC 270

>

Pending Appeal: holding appeal filed 28/11/03

Land and Environment Court

of New South Wales

CITATION:

Drake & Ors; Auburn Council v Minister For Planning And Anor; Collex Pty Ltd [2003] NSWLEC 270

PARTIES:

APPLICANTS:
Drake and Ors; Auburn Council

RESPONDENTS
Minister For Planning and Anor; Collex Pty Ltd

FILE NUMBER(S):

10714; 10682 of 2002

CORAM:

Bignold J

KEY ISSUES:

Designated Development :- waste management facility-whether development permissible in terms of LEP zoning-characterisation of development for purpose of LEP-whether proposal consistent with zone objectives-whether development is part of staged development-adverse environmental impacts of proposal especially odours

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 98

CASES CITED:

Bell v The Minister for Urban Affairs and Planning (1997) 95 LGERA 104;
C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270;
Chambers v Maclean Shire Council (2003) 126 LGERA 7;
Chisholm v Pittwater Council (2001) NSWCA 104;
Crosland v North Sydney Council (2000) 109 LGERA 244;
Doyle v Newcastle City Council (1990) 71 LGERA 55;
Friends of Pryor Park Inc v Ryde Council (Unreported 25 September 1995;
Gilderthorpe Investment v Sutherland Shire Council (2000) 109 LGERA 275;
Gillespies v Warringah Council (2002) 124 LGERA 147;
House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440 at 447 per Mason P;
Leatch v Director General National Parks and Wildlife Service (1993) 81 LGERA 270;
Prineas v Forrestry Commission of NSW (1984) 53 LGRA 160;
Provincial Insurance Australia Pty Ltd v Consolidated Wool Products Pty Ltd (1991) 25 NSWLR 541;
Westpoint Corporation Pty Ltd v Rockdale City Council (2000) 109 LGERA 398 at 403

DATES OF HEARING:

20,21,24-28/02/03, 03-04/03/03, 07-11/04/03, 24/04/03, 23-25/06/03, 21/0703

DATE OF JUDGMENT:

11/07/2003

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr J Drake and A Brzoson in person; Mr C Leggatt, Barrister

SOLICITORS
N/A; Maddocks

FIRST RESPONDENT:
Ms J Jagot/Ms A Pearman, Barrister
SECOND RESPONDENT:
Mr S Austin QC and A Galasso, Barrister

SOLICITORS
FIRST RESPONDENT
Department of Planning NSW
SECOND RESPONDENT
Freehills

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter Nos

. 10714 and 10682 of 2002

Coram:

Bignold J

7 November 2003

JOHN LESLEY DRAKE AND ALLAN B BRZOSON

Applicants

v

THE MINISTER FOR PLANNING

First Respondent

COLLEX PTY LIMITED

Second Respondent

AUBURN COUNCIL

Applicant

v

THE MINISTER FOR PLANNING

First Respondent

COLLEX PTY LIMITED

Second Respondent

JUDGMENT

A. INTRODUCTION

1. These are two objector appeals brought pursuant to the Environmental Planning and Assessment Act 1979, s 98 against the determination of the first Respondent (the Minister) dated 29 August 2002 granting development consent (subject to conditions) to the development application made by the second Respondent (Collex) on 2 August 2001 supported by an Environmental Impact Statement (EIS) dated August 2001 and a supplementary Environmental Impact Statement (SEIS) dated December 2001 for the establishment of a waste transfer terminal on land being part lot 201 Deposited Plan 10076683 situate at the Clyde Rail Marshalling Yards.

2. The appeals were, by consent, listed to be heard together conformably to the EP&A Act, s 99(2).

3. However, at the commencement of the hearing, Counsel for the Auburn Council informed the Court that the Council had settled its appeal with the Respondents and sought and obtained the Court’s leave for limited participation in the proceedings eg to tender joint expert reports and to make submissions as to the imposition of appropriate conditions upon the grant of development consent in the event of the Court dismissing the s 98 appeal brought by Messrs Drake and Brzoson (the Applicants).

4. This meant that the hearing was principally concerned with the issues raised by the appeal brought by Messrs Drake and Brzoson who jointly conducted their own case without the benefit of legal representation. Each of the Applicants is a local resident and they conducted their case not only on their own behalf but on behalf of many local residents who claimed to be adversely affected by the proposed development. Notice of the proposed development had been publicly exhibited at the end of 2001 and early 2002. A total of 1652 written submissions were received in respect of the proposal, including 1613 submissions from individuals.

5. That hearing occupied some 19 sitting days over a discontinuous period commencing on 20 February 2003. Following the conclusion of the hearing on 25 June 2003, the Applicants and the Minister each filed, by leave of the Court, additional written submissions and that process came to an end on 21 July 2003.

6. In the course of the hearing, I have received into evidence an immense amount of documentary materials—both evidentiary and in the nature of submissions made by the Applicants.

7. The Respondents adopted an open and generous approach to the Applicants’ participation, as litigants in person, in the conduct of the proceedings not raising objection to the hybrid nature of much of the documentary materials presented by the Applicants (ie a combination of evidence and submissions). Moreover, the Respondents did not cross-examine the Applicants, and at the request of the Applicants called for cross-examination all of the expert witnesses.

8. In the case of Collex’s expert witnesses, these generally were persons who had been involved on behalf of Collex in the EIS and SEIS processes.

9. The Minister called Mr John Court, whom the Department of Planning had commissioned to provide an independent assessment on technical aspects of the proposed development. The Department had itself utilised Mr Court’s independent assessment in making its own evaluation of the development application on behalf of the Minister, who was the relevant consent authority for determining the development application by virtue of his declaration published in the Gazette on 16 May 2001 pursuant to the EP&A Act, s 76A(7)(b) that “development of a container packing Station at the Clyde Marshalling Yard area” was “State significant development” for the purposes of the EP&A Act.

10. The Applicants’ appeal has raised a substantial number of wide ranging issues—some legal and some merit—in opposition to the proposed development. A copy of their “Consolidated Statement of Issues” (Exhibit A/2) is annexed hereto and marked “A”.

11. Most, if not all of these wide ranging issues had been raised in the course of the processing of Collex’s development application supported by the EIS and SEIS and are extensively discussed and evaluated in the Assessment Report undertaken by the Department of Planning on behalf of the Minister to assist him in his consent authority role. (That Assessment Report which recommended that development consent be granted subject to conditions is included in Exhibit 2 comprising all of the documents in the possession of the Department that had been generated by the processing of the Collex development application.)

12. The Applicants in prosecuting their present appeal have, in effect, re-marshalled the important issues that had been raised in the processing of the Collex development application and re-presented them as part of their case, in the light of the fact that the function of the Court in the present proceedings is to determine, for itself, the Collex development application, upon the basis of the evidence adduced at the hearing. As I have earlier noted, that evidence includes all of the documentary materials generated by the Department’s processing of the Collex development application.

13. In addition to the massive quantity of documentary materials, Collex adduced a considerable body of expert evidence covering multiple expert disciplines. As I have earlier noted generally, these several experts had been involved in the preparation of the contents of the EIS and SEIS.

14. The Minister did not call any Departmental Officer who had been involved in the processing of the Collex development application. However, the Minister called the independent assessor, Mr John Court, to assist the Court.

15. Auburn Council called two expert witnesses in the disciplines of acoustical assessment and odour and dust assessment.

16. The Applicant’s case did not involve the calling of any independent expert witnesses in rebuttal of the expert testimony relied upon by Collex. Rather, their case was confined to what they achieved in their cross-examination of the experts called by Collex, together with their own documentary materials and submissions. Both Applicants presented as highly intelligent and well informed persons who had prepared their case with considerable dedication and zeal. They demonstrated a quite extraordinary mastery, as essentially lay persons, of the complex issues raised by the proposal in all of its dimensions (ie scientific, technical, social, environmental and political).

17. As a result of some of the expert witnesses conferring, Auburn Council tendered at the outset of the hearing the joint statements of the respective acoustical and odour experts and because that expert conferring had not involved anyone representing the Applicants, Auburn Council called its two experts so that the Applicants had the opportunity to cross-examine them (which opportunity was exercised).

18. As a result of the comprehensive and helpful manner in which the parties presented their respective cases, the Court, in determining these two appeals, has had the considerable assistance provided by the extensive documentary materials, the extensive written opinions of multiple experts including their further evidence given under cross-examination. I have also been assisted by the extensive written and oral submissions advanced by the parties.

19. Additionally, during the hearing the Court accompanied by the parties and their expert representatives had the benefit of an all day view of the development site, the Clyde Rail Marshalling Yards and the immediate environs of the development site comprising existing industrial, commercial and residential developments.

20. It is neither practicable nor necessary that these reasons attempt to summarise the wide ranging matters raised at the hearing. In coming to my determinations on the appeals, I have considered all of the material that has been presented. My reasons supporting my determinations have been necessarily abbreviated. The manner in which they will be unfolded will be by addressing what I have considered to be most important issues raised at the hearing, in the exercise of the discretionary planning judgment that I am required to make in accordance with the EP&A Act, s 79C.

21. In so proceeding, I shall address the issues raised by the Applicants which I have re-arranged (and paraphrased) under the headings “A Legal Issues”; and “B Merit Issues” as follows:

A. Legal Issues

1. Is the proposed development permissible development?

(a) Is it a permissible purpose of development in terms of the Auburn Local Environmental Plan 2000 (LEP)?
(b) Would the grant of development consent to the proposal be contrary to:

(i) cl 9(5) of the LEP;

(ii) cl 22 of the LEP; or

(iii) cl 64 of the LEP.

2. Are the EIS and SEIS legally sufficient?
In particular, are they legally deficient by virtue of—

(a) failure to comply with Director-General’s requirements?

(b) failure to assess environmental impact of the relevant rail freight operations?

(c) inadequate investigation and analysis of alternative sites?

(d) inconsistencies between EIS and SEIS?

(e) contrary to the Woodlawn contract between Collex and the North Sydney Waste Board?

B. Merit Issues

1. Adverse environmental impacts of proposal in terms of—

(a) public health and amenity; and

(b) socio/economic impacts;

(c) do conditions sufficiently mitigate adverse environmental impacts?

2. Is development site contaminated land?

3. Public Interest considerations—

(a) contrary to Waste Avoidance Policy?

(b) contrary to principles of ecologically sustainable development?

(c) inadequate assessment of economic and environmental impacts?
(d) contrary to principles of environmental equity?
(e) concerns raised by objectors?

22. Before considering these issues, I must describe the propose develo9pment in some detail.

B. THE PROPOSED DEVELOPMENT

23. The EIS (Exhibit XII) described the proposed development in the following terms:

Collex intends to lease part of the existing Intermodal Facility from FreightCorp for the purpose of erecting a building for waste packing, weighbridge, administrative facilities and parking.

The main activity to be conducted by Collex at the Transfer Terminal is compacting of putrescible waste for containerisation.

Up to 500, 000 tonnes of waste per annum would be accepted at the Transfer Terminal and disposed of at the Woodlawn Bioreactor. It is anticipated that in that in the first year of operation a minimum of 150 000 tonnes of waste would be received by the Transfer Terminal and disposed of to Woodlawn. In the future additional volumes of waste may be accepted at the Transfer Terminal and disposal at other locations within NSW.

It is proposed that waste would be delivered to the Terminal 24 hours a day. Trucks would enter the Transfer Terminal from Parramatta Road. The trucks would access the Transfer Terminal via a ramp on the eastern side of the building and then into the building.

The waste would be pushed from the trucks onto the internal concrete tipping floor of the transfer building. The tipping floor would be cleaned and swept as required depending on the nature of the waste delivered. Dust sprays would by used to control dust in the building. Leachate would be directed into a separate holding tank and treated onsite separately in accordance with Sydney Water Corporation's requirements or sent off site to Collex's Liquid Waste Treatment at Camellia.

Two SSI Model 4500 single compactors would be used to compact the waste prior to placement into purpose built 40 foot containers. The units are stationary machines which compact solid waste within the compression chamber into a slug of waste to a predetermined weight and size. A 40 foot container on a container trolley is then connected to the compression chamber and the compactor's access door is opened. The compacted waste 'Slug' is pushed into the 40 foot container using the compactors hydraulic ram.

Waste would be collected from the tipping floor, fed to the slug compactor, compacted \and loaded into 40 foot containers. A CAT 966 or Volvo L50 front end loader or similar would be used on the tipping floor to load the slug compactor via a chute.

After loading, the compactor's access door is closed and the container is either transported to the adjacent FreightCorp Intermodal siding or stored temporarily at the loading manoeuvring area. FreightCorp would be responsible for the movement and loading of the containers.

If stacked, the empty containers could be up to three high and filled containers up to two high. The container rows would be served by two 15 metre wide aisles required for the safe operation of the forklift.

Full containers would only be stored at the FreightCorp Intermodal until the next train, or for periods of up to 18 hours. All loading and unloading operations would be done I by an Omega Forklift or similar.

Initially, one train each day would arrive at the Transfer Terminal between 10.30pm and leave the site around 3.00am. The train would carry up to 50 waste containers from the Terminal to the Crisps Creek Intermodal Facility.

Once the train arrives at the Crisps Creek Intermodal, the laden containers would be unloaded from the train and transferred to semi-trailers for road transportation to the Woodlawn Bioreactor.

Other destinations for disposal of the waste may be sought at a later date. A similar procedure would be followed at any other of these locations.

The incoming containers would also be fully enclosed with sealing on doors to control inbound odour and dust potential. In accordance with the Condition of Consent Number 29 issued for the Woodlawn Bioreactor all containers would be air and water tight. Pressure venting valves are provided with carbon filters to contain odour during venting.

In the future waste may also be transferred off site to other disposal locations by 1 truck. Materials may also include recyclable products including concrete, rubber, timber and organics that would be transferred to a materials recovery facility.

5.3.2 Description of the Site Facilities

A site layout plan of the proposed development is shown in Figure 5.3.1. The components of the design shown on Figure 5.3.1 include:

· transfer building with a large tipping floor and basement compactors;

· Office and amenities building;

· Entrance and exit road sharing a gatehouse and weighbridge;

· Entry and exit by-pass lane for other site facilities;

· Weighbridge and gatehouse;

· Car parking area;

· Landscaping; and

· Rail sidings (not subject to this DA).

Each of these components is described in detail below.

Transfer Building

A photomontage, plan and elevation for the transfer building are shown in Figure 5.3.2a, 5.3.2b, 5.3.2c, 5.3.2d and 5.3.2e. The transfer building would consist of a tipping floor 64 metres long by 35 metres wide with an annexe of 32 metres by 12 metres housing the compacting equipment at basement level. The size of the tipping floor has been determined by the average week day loadings which could be held on the tipping floor during a breakdown or an emergency. At the initial planned throughput of 150 000 to possibly in excess of 500 000 tonnes per annum, the typical quantity of waste on-site at any time would be up to 1400 tonnes in the transfer building and 1400 tonnes held in containers awaiting shipment.

The transfer building would be constructed using a steel frame to support the zinc coated or colorbond steel roof sheeting and wall cladding. The use of two different colours (off white and river gum green) would be used to help improve the appearance of the building.

Three metre high precast concrete external walls at tipping floor level would be provided to help protect the structure.

The building would be ventilated through openings on all sides. A longitudinal ridge ventilator would be used to vent the roof. There would also be ventilation gaps between the roof and walls. The areas of openings would be minimised consistent with requirements for safe operation of the Transfer Terminal. Combined with a fully opened entrance and exit doors, the proposed arrangement would provide a well ventilated interior.

The compactor locations would be diagonally offset, 4.5 metres below the tipping surface, along the southern wall of the transfer building.

Metal dust hoods would be located at the top of the waste chute to minimise the potential for movement of dust throughout the building.

Office and Amenities

A two storey annexe located along the northern wall of the transfer building would house administration offices and staff amenities and allow supervision of activities within the transfer building.

Entrance/Exit Road

The entrance to the site would continue to be directly off Parramatta Road via a new signalised intersection which would be constructed as part of the works. The entry and exit road to the Transfer Terminal would be upgraded in include an entry and exit either side of the new gatehouse and weighbridges and an entry and exit bypass lane. Traffic would continue to use the existing roads once within the site. New entry and exit roads would be provided to and from the transfer building. Traffic would enter the transfer building on the eastern side via a ramp and exit from the northern side. Figure 5.3.3 shows the proposed traffic flow within the site.

All roads within the Terminal would be sealed.

Weighbridge and Gatehouse

A new gatehouse and dual weighbridge would be located at the entrance to the FreightCorp Intermodal which is approximately 160m from the site entrance off Parramatta Road. All vehicles entering and leaving the Transfer Terminal would be weighed unless already weighed at another facility. An entry by-pass lane would be located to the east of the weighbridge. Vehicles wishing to use other facilities on the site would use this lane.

24. In the SEIS the proposed development was modified in two respects—(i) it was physically relocated on the site; and (ii) it was planned and designed to be developed in two stages—initially to cater for an annual solid waste throughput of 400,000 tonnes and ultimately to cater for 500,000 tonnes per annum.

25. The revised layout compared with the original layout was shown in Figure 1.1 of the SEIS a copy of which Figure is annexed hereto and marked “B”.

26. However, the SEIS did not propose any modification to the manner in which the development would operate (vide Section 5.5.1) as explained in the EIS extract that I have quoted.

27. Both the EIS and SEIS focussed attention upon what they refer to as the activities to be undertaken by Collex in contradistinction to the activities to be conducted by FreightCorp (now known as “Pacific National”). Neither the EIS nor the SEIS attempted any environmental impact assessment of the activities relating to the proposed development that are intended to be undertaken by FreightCorp. The legal significance of this aspect of the environmental impact assessment undertaken in the EIS and SEIS will need to be considered, but for present purposes (ie in order to gain a proper understanding of the proposed development and to come to a proper classification of the proposed development for planning purposes) it is necessary to note what the EIS states about the operations to be conducted by FreightCorp.

28. For example in the “Executive Summary” to the EIS the following statement is made under the heading “Rail Operations”.

Rail Operations

FreightCorp, a NSW Government owned rail organisation, owns and operates a rail freight intermodal terminal on Lot 201 of DP10076683.

The Clyde Intermodal Facility has been owned and operated by FreightCorp since 1 July 1996 and was previously owned and utilised by the State Rail Authority as a goods yard and other rail related purposes.

For at least the past 15 years the Intermodal Facility has been used for the transfer of containerised freight between road and rail. Vehicle movements are estimated to have been as high as 350 container trucks per day.

FreightCorp has advised Collex that, in anticipation of the container transport contract, the Clyde Intermodal Facility has not been operated to its potential capacity. After factoring in the Collex proposal container movements would not exceed previous operational movements.

FreightCorp intends to carry out works at the Clyde Intermodal Facility to improve overall container management for Collex and other customers requiring the removal of tracks and the construction of a hardstand area. Accordingly, these changes would require the transfer of some train handling activities from the Clyde Intermodal Facility to the Enfield Marshalling Yards. After allowing for train movements for the Collex proposal it is expected that there would be an overall reduction in train movement in the Clyde Rail Yard.

Collex intends to lease part of the existing Intermodal Facility from FreightCorp for the purpose of erecting a building for waste packing, weighbridge, administrative facilities and parking.

FreightCorp would have responsibility for movement, storage, loading and overall logistical management of containers used for waste transport and currently hold a licence issued by the Environment Protection Authority for the storage, transfer, separating or processing of waste on land comprising the Clyde Intermodal Facility.

Collex has been advised that FreightCorp intends to amend the geographical boundaries of its existing licence within Lot 201 DP 1007683 to accommodate revised site arrangements required for the Collex proposal.

C. IS THE PROPOSED DEVELOPMENT PERMISSIBLE DEVELOPMENT?

29. If the description of the proposed development is a relatively straightforward matter, the proper classification of the proposal for planning purposes is far more difficult and contentious.

30. The EIS and SEIS proceed upon the basis that the proposal is “designated development” within the meaning of the EP&A Act, s 77A being declared to be “designated development” by the Environmental Planning and Assessment Regulation 2000, cl 4 (the EP&A Regulation) by falling within the category “waste management facilities or works” appearing in Schedule 3 to the Regulation.

31. Additionally, the EIS and SIS proceed upon the basis that the proposal is “State Significant Development” within the meaning of the EP&A Act, s 76A(7)(b) by virtue of the Minister’s declaration in respect of “development of a container parking station at the Clyde Marshalling yards”.

32. Additionally, the EIS and SEIS proceed upon the basis that the proposed development is “Integrated development’ within the meaning of the EP&A Act, s 91.

33. Finally, the EIS and SEIS proceed upon the basis that the proposed development is a “freight transport terminal” for the purposes of the Auburn Local Environmental Plan 2000 (the LEP) being a permissible purpose of development within the “Industrial Enterprise 4(c)” Zone created by that LEP in which zone the development site is included. It is only this classification of the development that is in contention.

34. The Department of Planning in its Assessment Report to the Minister on the proposed development, adopted the approach to planning classifications of the proposal that had been advanced in the EIS and SEIS.

35. The Applicants contend that the proposed development is not properly classified as a “freight transport terminal” for the purposes of the LEP.

36. The proper planning classification to be given to the proposed development is of course fundamental to the determination of the question whether the proposed development is for a permissible purpose of development in terms of the LEP.

37. However, it should be noted that even if the proper classification be for a permissible purpose, there are other relevant provisions contained in the LEP which qualify the power for consent to be granted to an application to carry out development for a permissible purpose, namely cll 9(5), 22 and 64. The Applicants also contend that these provisions operate in the present case to preclude the granting of development consent to the proposed development.

38. The only dispute between the parties as to classification of the proposed development concerns classification for the purpose of the LEP. The relevant structure of the LEP is to create specific zones (cl 10)—it being common ground that the development site is relevantly included in the “Industrial Enterprise 4(c)” Zone—and to create “zoning control tables” setting out the controls on the carrying out of development in the various zones (cl 9)—in the case of all zones, the controls are uniformly framed by specifying (i) the purposes of development that do not require development consent; (ii) the purposes of development that require development consent; and (iii) development that is prohibited.

39. In the case of every Zone, the controls specifying “prohibited development” are formulated in a uniform manner, namely “Development not included in subclause (2) or (3)” where subclause (2) specifies development that may be carried out without development consent and subclause (3) specifies development that may be carried out only with development consent. Thus, prohibited developments comprise the innominate purposes of development and permissible developments comprise nominated purposes.

40. In the case of the Industrial Enterprise Zone No 4(c), the development that may be carried out without development consent is specified as follows:

Exempt development, being development of minimal environmental impact that is listed and satisfies the criteria for exempt development relevant to land zoned 4(c) in the Auburn Development Control Plan identified in Schedule 5.

and the development that may be carried out only with development consent is specified as follows:

Development for the purpose of:

banks
bulky goods retailing
car repair stations
child care centres
community facilities
depots
dwellings used in conjunction with another land use that is permissible in this zone
educational establishments
equipment hire centres
exhibition homes
freight transport terminals
general advertising signs
high technology industries
hotels
industries
light industries motels
motor showrooms
multiple dwellings
passenger transport terminals
places of public worship
public buildings
recreation areas
recreation facilities
refreshment rooms
restaurants
service support industries
serviced apartments
showrooms
site identification signs
training facilities
utility undertakings
warehouses or distribution centres

41. The Respondents contend that the proposal is properly categorised as a “freight transport terminal” being a nominated, and therefore, a permissible purpose of development within Zone No 4(c).

42. Clause 5 and Schedule 1 to the LEP contain several definitions of “terms used in the plan” which include definitions of most, if not all, of the terms which are nominated to be the purposes of development that may be carried out in Zone No 4(c) and which require development consent.

43. The term “freight transport terminal” is defined as follows:

Freight transport terminal means a building or place used for the principal purpose of the bulk handling of goods for transport by road or rail, including facilities for the loading and unloading of vehicles used to transport those goods and for the parking, servicing and repair of those vehicles, trains or carriages.

44. The LEP contains definitions of other terms used in the LEP which are potentially relevant to the classification of the proposed development. These are the following:

Junkyard means land used for the collection, storage, abandonment or sale of scrap metals, waste paper, rags, bottles or other scrap materials or goods or for the collecting, dismantling, storage, salvaging or abandonment of automobiles or other vehicles or machinery or for the sale of any parts of such automobiles, vehicles or machinery.

Materials recycling depot means land used for the collection, storage, abandonment or sale of scrap metals, waste paper, rags, bottles or other scrap materials, or for the collection, dismantling, storage, salvaging, or abandonment of vehicles or machinery or the sale of their parts.

Offensive industry means an industry which, when in operation and when all measures proposed to reduce or minimise its impact on the locality have been employed (including, for example, measures to isolate it from existing or likely future development on other land in the locality), would emit a polluting discharge (for example, noise) in a manner which would have a significant adverse impact on the locality or on existing or likely future development on other land in the locality, but does not include any form of development defined elsewhere in this Schedule.

Offensive storage establishment means any establishment where goods, material or products are stores which, when in operation and when all measures proposed to reduce or minimise its impact on the locality have been employed (including, for example, measures to isolate the establishment from existing or likely future development on other land in the locality) would emit a polluting discharge (including, for example, noise) in a manner which would have a significant adverse impact on the locality or on the existing or likely future development of other land in the locality, but does not include any form of storage establishment or warehouse or distribution centre defined elsewhere in this Schedule.

45. It is at once to be noted that these terms are not expressly employed as nominated purposes in the case of the controls imposed on the carrying out of development within Zone No 4(c).

46. Their express employment in the LEP is confined to the nominated purposes of development that may be carried out with development consent within the General Industrial 4(a) Zone.

47. In these circumstances, a question of construction may arise as to whether these defined terms (which are only expressly employed in the case of nominating permissible purposes of development within the General Industrial 4(a) Zone) have any work to do in respect of the controls imposed upon the carrying out of development in Zones other than the General Industrial Zone (including the development controls imposed in the case of Zone 4(c). For example does the employment of these terms by the LEP imply their application in the case of the innominate purposes prescribing prohibited developments in the various zones.

48. Collex and the Minister both submit that the proper classification or categorisation of the proposed development for the purposes of the LEP is as a “freight transport terminal”.

49. The Applicants challenge this classification and contend that the proposal is properly classified as a “waste transfer station” (not defined by the LEP) or as an “offensive waste storage establishment” or an “offensive industry” (each of which terms is defined by the LEP).

50. Collex advanced the following written argument in support of its contention:

1. The land proposed to be developed is zoned Industrial Enterprise Zone. In that zone the only development allowed without consent is exempt development: see sub-clause 20(2) to the Auburn LEP. Development that requires consent is a list of nominated developments which includes, relevantly, freight transport terminals : see subclause 20(3).

2. Freight transport terminal is defined in Schedule 1 to mean a building or place used for the principal purpose of the bulk handling of goods for transport by road or rail, including facilities for the loading and unloading of vehicles used to transport those goods and for the parking, servicing and repair of those vehicles, trains or carriages.

3. Development which is prohibited in Zone No 4(c) is development not included in subclause (2) or (3): see subclause 20(4) to the zoning table for Zone No 4(c).

4. Development will only fall within subclause (4), and hence be prohibited, if the development does not fall within a development described in subclauses (2) or (3). If development does fall within either subclauses (2) or (3), there never would be a need to go to the question of whether a development could also be characterised as a development that is prohibited. The structure of the table to Zone No 4(c) is therefore similar to the zoning tables in Friends of Prior Park Inc v Ryde Council [1995] NSWLEC 160 (25 September 1995) Bignold J and Pilley v Maitland City Council, unreported, LEC Nos 20058 of 1996 and 20088 of 1996, 21 October, 1996, Pearlman J, and is to be contrasted with the zoning table in Egan v Hawkesbury CC (1993) 79 LGERA 321.

5. The development is not exempt development, hence does not fall within subclause (2).

6. Accordingly, the question is simply whether the development falls within one or more of the nominate developments in subclauses 2 or 3 of the zoning table for Zone No 4(c).

7. The proposed use involves the following factual elements:

(a) the delivery of goods to the site, in bulk. The garbage is in bulk form from the time the householder consigns a particular item to the bin. The bulk containers simply get larger. Garbage is delivered to the site in a manner of bulk handling, being an aggregation of (already bulk) consignments in a compactor garbage truck;

(b) the unloading of that consignment in a bulk way, namely, the tipping of the consignment (hydraulically) without manual handling;

(c) the trucks bringing the bulk waste terminate there in the sense that the delivery goes no further. The bulk goods they have collected and delivered are handled there as follows;

(d) the aggregation of those goods with other goods of a similar nature (but not the sorting of those goods);

(e) the movement of those goods in a bulk way, namely, by front-end loader;

(f) that movement being for the placement into a process (the compacting) which serves the sole purpose of preparing the goods for rail transport (in a bulk manner which is enlarged from the manner of handling when originally delivered to site, i.e. the compacted slug comprising a collection of the goods far in excess of the collection when arriving on site)

(g) the actual compacting of those goods, (for rail transport to Woodlawn, whereat the containers are emptied).

8. In the factual circumstances set out in paragraph 7 above, it is clear that the development falls within the definition of freight transport terminal
(a) Bulk: The development, involves waste arriving in bulk. Bulk is defined in the Macquarie Dictionary to be 3. goods or cargo not in packages, boxes, bags, etc .

(b) Handling: When the waste arrives at the terminal, it will be handled. Handling is defined in the Macquarie Dictionary to involve 3. the process of packing, moving, carrying or transporting something. The development application proposes the moving, carrying and packing of the waste into containers, which containers are to be loaded onto rail carriages for transportation to Woodlawn. This process falls within the concept of handling.

(c) Goods: The waste can be described as goods. The plural of "good" is defined in the Macquarie Dictionary to be 43. possessions, esp. moveable effects or personal chattels. 44. articles of trade; wares; merchandise; esp. that which is transported by land. Goods and chattels is defined to be all movable properties.


Furthermore, the Concise Oxford Dictionary defines goods as things for transmission by rail etc. (opp. passengers)

(d) Principal purpose: The principal purpose of the bulk handling of the waste is enable the change in transport from truck to rail.

(e) Facilities: The waste will be unloaded from vehicles, namely waste trucks, terminating at the Clyde terminal. These vehicles are used to transport the waste from various and often numerous collection points to the terminal for the bulk handling of the waste described.

9. Accordingly, the proper characterisation of the development is as falling within the statutory description of a freight transport terminal. So categorised, the development is permissible with development consent, falling within the list of nominate permissible purposes in subclause 20(3) (zoning table 4(c)).

10. Once established, as a conclusion of fact, that the activity falls within that definition, then the activity is permissible with consent pursuant to the LEP. It would then not be appropriate to attempt to re-extend that purpose to a prohibited purpose: Argyropoulos -v- Canterbury Council 66 LGRA 202 at 207/208

11. Additionally, the fact that the purpose may be characterised differently for the purposes of other environmental controls or definitions is irrelevant to the question of permissibility. So, for example, if, contrary to our view, the purpose may be characterised as Waste Transfer Terminal for the purposes of Schedule 3 of the EP&A Regulation (i.e. designated development), that characterisation has consequences in terms of the public participation aspects of the consideration of the development application, but that characterisation does not then serve to re-characterise the purpose for the in terms of the LEP. As far as concerns permissibility, relevantly, the LEP is the controlling instrument, and it is to the LEP to which regard should be had. The proposed development is designated development as it comes within the term Transport Terminal... in Schedule 3 of the Regulation.

51. The Minister’s argument advances an abbreviated version of Collex’s argument.

52. The Applicants’ competing classification emphasises the fact that it is solid putrescible municipal waste (that is destined for ultimate disposal to the landfill situate at Woodlawn) that is being received, handled and/or processed, containerised and temporarily stored at the proposed development pending being despatched by rail freight to the Woodlawn landfill.

53. It is to be noted that the Applicants’ contention was supported by a number of submissions received by the Department during the processing of the Collex development proposal. In particular, Auburn Council’s submission had stated:

Secondly, it is argued by Council that the definition of a freight transport terminal does not define the proposal due to the significant component of the operation that actually processes the waste. The existing intermodal operation on the site would be defined as a freight transport terminal as its principal purpose is the bulk handling of goofs from trucks to transport these goods by rail. However the proposed development does more than load containers from trucks, marshalled and loaded onto the trains then the operation would be defined as freight transport terminal.

Therefore if the proposed development does not fit the definitions of depot and freight transport terminal then the development is not permissible with development consent on the site.

The development is considered to be designated development on account of the development being defined as a waste management facility. Waste Management Facilities are not included as permissible uses in the zone.

54. Another submission made by Planning Consultants (BBC Consulting Planners) on behalf of land owners of property situate in the adjacent street (Berry Street, Granville) had argued that the proposal was not a “freight transport terminal” as defined by the LEP because the proposal involved the bulk handling of “wastes” in contradistinction to “goods” where the former was not comprehended by the latter.

55. The question of the proper classification of the proposal was sufficiently alive to cause the Department to obtain Senior Counsel’s opinion. That advice was not included in the documentary materials tendered by the Department but the Department’s Assessment Report summarises the advice (or relevant parts of it). The advice appears to adopt a very similar approach to the essential argument advanced by Collex in these proceedings.

56. In the event, the Department accepted Senior Counsel’s opinion that the proposed development fell within the definition of “freight transport terminal” contained in the LEP and hence was a permissible purpose of development for the Industrial Enterprise 4(c) Zone.

57. It is important to note that in adopting this position, the Department also concluded that the proposal fell within the definition of “waste management facilities or works” contained in Schedule 3 to the EPA Regulation and hence was a “designated development”. However, in this respect it appears that the Department also accepted the advice of Senior Counsel that the classification of the proposal as designated development (being “waste management facilities or works”) was distinct from the process of characterising the proposal as development that may be carried out in terms of the LEP.

58. The task of characterising or classifying a development for planning purposes is a familiar, yet often difficult task. As I noted in Westpoint Corporation Pty Ltd v Rockdale City Council (2000) 109 LGERA 398 at 403:

Categorisation of a proposed development conventionally is undertaken by reference to defined terms or purposes in the relevant environmental planning instrument principally to determine whether the proposed development is for a permissible purpose. Unless a proposed development is shown to be for a permissible purpose of development, it is axiomatic that a valid development consent cannot in law be granted to that application.

59. This is the approach that appears to have been adopted in the present case, where the only possible permissible purpose of development for which the proposal may be characterised is “freight transport terminal” (The other possible permissible purpose suggested by the EIS was “depot” but that definition clearly does not encompass the proposal).

60. Thus, the crucial question is whether the proposal “truly” falls within the ambit of the permissible purpose “freight transport depot”. If it does, it is wholly irrelevant to go further to enquire whether it is also properly categorised as some other purpose of development: cf Doyle v Newcastle City Council (1990) 71 LGERA 55; Crosland v North Sydney Council (2000) 109 LGERA 244 and Gilderthorpe Investment v Sutherland Shire Council (2000) 109 LGERA 275.

61. This last-mentioned conclusion directly flows from the manner in which the LEP imposes controls on the carrying out of development in the various zones. To that extent, the conclusion is founded upon the statutory construction of the relevant provisions which does not accommodate or countenance the proposition that a proposed development may have a “double characterisation” (one for a permissible purpose and the other for a prohibited purpose) such as was suggested in the judgment of Hope JA in C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 at 271/272.

62. That was the result, achieved as a matter of statutory construction in Friends of Pryor Park Inc v Ryde Council (Unreported 25 September 1995). However, it is important to emphasise that that case did not involve, because of mutual concessions made by the parties, the question of the proper classification or categorisation of a development.

63. That task of the proper characterisation or categorisation of the proposed development fairly and squarely arises in this case even though the applicant (Collex) and the consent authority (the Minister) both accept that the proposal is properly classified, for the purposes of the LEP, as a “freight transport terminal” and hence is a permissible purpose within the Industrial Enterprise 4C Zone.

64. Nevertheless, the Respondents properly accept that it is open to the Applicants, as objector appellants in terms of the EP&A Act, s 98, to put in issue the question whether the proposed development is for a permissible purpose. Indeed, the recent decision of the Court of Appeal in Chambers v Maclean Shire Council (2003) 126 LGERA 7 has held that the classification of a development as being for a permissible or prohibited purpose of development is a jurisdictional fact.

65. Turning now to Collex’s argument in support of its contention that the proposal is properly characterised as a “freight transport depot” within the meaning of the LEP, it is apparent that the crucial premise is that the “wastes” (to be received, handled or processed, containerised and stored at the development pending their despatch by rail freight) are relevantly “goods”.

66. Although Collex’s argument that the word “goods” is sufficiently wide to include putrescible wastes (destined for ultimate landfill disposal) gains some support from dictionary meanings of “goods” I do not think that support (which I would regard as necessarily tenuous and inconclusive) captures the ordinary usage or understanding of the word in contemporary society. In this respect, the true meaning of the term “goods” is one of statutory construction in which dictionary meanings have a legitimate role but not a determinative role: see Provincial Insurance Australia Pty Ltd v Consolidated Wool Products Pty Ltd (1991) 25 NSWLR 541 at 560/561 per Mahoney JA and House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440 at 447 per Mason P.

67. In the interests of economy, I would confine quotation from the illuminating judgment of Mahoney JA in Provincial Insurance to the first two paragraphs of the extended passage cited, where his Honour states:

Dictionaries are not a substitute for the judicial determination of the interpretation and then construction of statutes and other documents: Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78 per Isaacs J. The meaning of the words used in a statute or document is not merely the sum of the individual meanings of the words used, ascertained from dictionaries. To adapt the much cited comment of Holmes J, a word is the skin of a living thought, and it is the thought which the court must ascertain and apply.

In doing this, it is, of course, necessary first to determine what is the ordinary or natural meaning of the words used because primarily it is from that that the intention of the legislator or of the parties is to be ascertained: see M P Metals Pty Ltd v Commissioner of Taxation (1968) 117 CLR 631 at 634; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-305; Tullamore Bowling & Citizens Club Ltd v Lander [1984] 2 NSWLR 32 at 53. But that meaning is the ordinary usage of society: Shore v Wilson (1842) 9 Cl & Fin 355 at 527; 8 ER 450 at 518 per Coleridge J and R v Peters (1886) LR 16 QBD 636 at 641. And it is to be taken from the judge’s understanding of the sense in which words are used: see, eg, NSW Associated Blue Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 514 per Kitto J. In Midland Railway Co v Robinson (1889) LR 15 App Cas 19, Lord Macnaghten (albeit in dissent) said (at 35) that, in considering the meaning of a term such as mines and minerals, the opinion of particular judges may be a safer guide than any definitions or illustrations to be found in dictionaries.

68. In my opinion, the ordinary usage and meaning of the terms “goods” in our contemporary society would not accommodate or include the concepts of “waste”, “garbage”, “rubbish” etc.

69. This conclusion, is I think, strongly reinforced by contextual considerations. I am here referring to the context of the LEP and its effect in creating various zones and imposing controls on the carrying out of various developments within those zones, (especially by reference to various defined purposes of development) and statements of zone objectives etc.

70. In referring to the several definitions of purposes of development adopted and employed by the LEP, I would refer in particular to the definitions I have earlier recited of other potentially relevant terms, namely “junk yards”, “materials recycling depot”, “offensive industry” and “offensive storage establishment”.

71. In referring to these definitions as relevant contextual considerations, I am not to be taken as infringing the interpretive principle that I have earlier referred to (that if the conclusion is reached that a proposal is truly for a permissible purpose of development, it is irrelevant to enquire whether it is also capable of being characterized for another, but prohibited, purpose of development). Rather, I am referring to the fact that these other terms co-exist with the term “freight transport terminal” in the context of the LEP in a manner that impliedly shed some light on the meaning of the defined term “freight transport terminal” in circumstances where it is a nominated permissible purpose of development and they are innominate prohibited purposes of development in the controls of the carrying out of development within Zone No 4(c).

72. A particular feature of this co-existence is the far wider scope of words employed by the other terms eg “goods, materials, products” employed in the defined term “offensive storage establishment” compared with the term “freight transport terminal” confining its scope to “goods”. Another feature of the co-existence is the element of environmental offensiveness (or potential offensiveness) inherent in the other terms which is not apparent in the definition of “freight transport terminal”.

73. Moreover, the relevant context of the LEP may for present purposes legitimately be extended to include the EPA&Act and the EPA Regulation and in particular, the fact that the declared categories of “designated development’ include “waste management facilities or works” which was accepted by all parties as being the appropriate categorization of the proposed development.

74. These several contextual considerations give support to my understanding of contemporary meaning and usage of the word “goods” as not comprehending domestic garbage wastes.

75. In the light of this commonly accepted fact throughout the history of the processing of the Collex development application and of this litigation, the ultimate submission advanced by Collex that the proposed development was “designated development”, not because it was relevantly characterized as a ‘waste management facility” but because it was relevantly a “railway freight terminal” must be regarded as a belated re-interpretation of the previously settled facts of the case, presumably in a vain attempt to distance the proposal from its characterization as a “waste transfer terminal” (which interestingly enough is the term employed by the Minister in his Instrument of Determination granting development consent to the proposal).

76. For all of the foregoing reasons, I would hold that the proposed development is not properly characterized as a “freight transport terminal” within the meaning of the LEP, and that in consequence of that category being the only possible permissible purpose of development for which the proposal might have been so characterized, it follows that the development is development that is prohibited by the LEP and is incapable of being granted development consent in these proceedings: see Chambers v Maclean Shire Council.

77. In so concluding, it is to be noted that the Minister’s relevant declaration of “State significant development” was made pursuant to the EP&A Act, s 76A(7)(b) and that there is no evidence of any relevant direction having been made by the Minister pursuant to s 89 of that Act.

78. The result of this conclusion is that the Applicants’ appeal must be upheld and development consent must be refused upon the ground that the proposed development is relevantly prohibited by the LEP and hence is prohibited by the EP&A Act, s 76B.

79. Although this conclusion means that it is strictly unnecessary to make any further determinations upon the other disputed issues, in deference to the parties in presenting their competing cases and lest I be wrong in concluding that the proposal is not for a permissible purpose of development, I shall proceed to adjudicate upon the other principal issues in dispute, but shall do so by giving only relatively abbreviated reasons for my adjudications.

80. The remainder of these reasons are accordingly to be understood upon the assumption (contrary to my holding) that the proposed development is for a permissible purpose of development in terms of the LEP. But this assumption does not require an assumption that the proposal is some generic kind of freight transport terminal—rather, it is to be taken for what it is, namely a terminal that receives, handles and processes, containerises and temporarily stores solid putrescible wastes.
D. WOULD THE GRANT OF CONSENT BE CONTRARY TO THE Zone No 4(c) Objectives?

81. Clause 9(5) of the LEP provides as follows:

The consent authority must not grant consent to the carrying out of development on land to which this plan applies unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

82. The relevant objectives are stated in cl 20(1) of the LEP as follows

(a) to recognize the special character of Parramatta Road frontages and surrounding areas,

(b) to ensure that development in this zone does not reduce the economic viability of businesses in the business zones,

(c) to provide the flexibility required to encourage innovative and high technology industrial uses in the zone,

(a) to prohibit shops in this zone generally but permit minor retail development only where it is providing for the daily convenience needs of the local work force, is ancillary or incidental to other permissible development or is in the form of bulky goods retail outlets or motor showrooms.

83. At least one submission (that made by BBC Consultant Planners that I have earlier mentioned) contended that the proposal was inconsistent with the stated objectives (a) and (c) for the Industrial Enterprise Zone No 4(c).

84. The submission alluded to the fact that there were current initiatives being undertaken to improve the character, amenity and environmental qualities of the Parramatta Road corridor as reflected in the “Parramatta Road 2000 and Beyond” Project or Program.

85. It was submitted that the proposal to establish a waste transfer station some 200 metres from the Parramatta Road frontage generating up to 400 garbage truck movements daily would be wholly inimical to the stated objective of promoting recognition of the special character of Parramatta Road and properties fronting it.

86. The question of the consistency of the proposal with the stated zone objectives does not appear to have been considered, either in the EIS or SEIS or in the Department’s Assessment Report.

87. However, having been raised by the Applicants it must be determined, despite the sparse attention accorded it in the processing of the Collex development application.

88. In my opinion, the carrying out of the proposed development is self-evidently not consistent with the stated objectives for Zone No 4(c). In particular, it is not consistent with stated objective (a). In so concluding, I interpret cl 9(5) of the LEP in the manner expounded in Gillespies v Warringah Council (2002) 124 LGERA 147 at 163 to 166 in respect of a similar planning provision contained in the Warringah Local Environmental Plan 2000.

89. Accordingly I hold that cl 9(5) of the LEP precludes the granting of development consent to the Collex development application.
E. WOULD THE GRANT OF CONSENT BE CONTRARY TO Clause 22 of the LEP?

90. Clause 22 is in the following terms:

General restrictions on development in industrial zones

Consent may be granted for development on land zoned 4(a), 4(b), 4(c) or 4(d) only if it would be compatible with the existing and likely future character and amenity of the surrounding area in terms of:

(a) its scale, bulk, design, height, siting and landscaping, and
(b) its operation, and
(c) traffic generation and car parking, and
(d) noise, light, dust and odour nuisance, and
(e) privacy, and
(f) stormwater drainage, and
(g) hours of operation, and
(h) overshadowing.

91. Again, very little attention appears to have been directed specifically to cl 22 in the course of processing the Collex development application.

92. The same submission made by BBC Consultant Planners contended that neither the EIS nor SEIS had assessed the proposal specifically by reference to the requirements of cl 22 and submitted a reasoned opinion that the proposal was not compatible with a number of new developments emerging in Zone No 4(c) and was incompatible with the potential future character of the surrounding area and was apt to adversely inhibit the development of surrounding lands according to the permissible purposes of development within the respective zones

93. Auburn Council’s written submission also raised concerns about the impacts of the proposal on the immediately surrounding area, including Parramatta Road.

94. The Department’s Assessment Report concluded as follows:

The Department is satisfied the proposed development would be compatible with the existing and likely future character and amenity of the surrounding industrial uses in terms of the above criteria, with appropriate approval conditions to address the issues of traffic, noise, dust, odour and stormwater drainage.

95. The interpretation of cl 22 presents some difficulties. For example, the reference to “it” may be referring to (i) the grant of consent; or (ii) the development consented to.

96. If it is a reference to the latter, the question arises whether the reference is to the development per se or the development, as constrained or mitigated, by conditions of consent. The Department’s conclusion assumes the latter is the true meaning.

97. Yet another difficulty of construction is whether the test or criterion of “compatibility with the existing and likely future character and amenity of the surrounding area”, is to be determined by reference to each and every integer or factor enumerated in pars (a) to (h) inclusive or by reference to those enumerated matters evaluated globally.

98. In my judgment, and however these points of construction be resolved, it is self-evidently the case that the proposal is not compatible with the existing and likely future character and amenity of the surrounding area by virtue of the proposal’s “(b) operation” (as a waste management facility), “(c) traffic generation (200 garbage collection trucks attending the premises daily—both coming and going) its “(d) noise, dust and odour nuisance” (odours and noises); and “(j) its hours of operation (24 hours each day).

99. Notwithstanding the conditions that the parties have proposed to mitigate many of the adverse environmental impacts flowing from those features of the proposal, even assuming effective implementation and strict compliance with such mitigating conditions will not eliminate the essential character of the proposal as a waste management facility.

100. Accordingly, I find that the proposal, even if strictly regulated by the proposed conditions of consent, would not be compatible with the existing and likely future character and amenity of the surrounding area in the relevant sense by reason of the features of the development that I have noted.

101. Accordingly, I hold that cl 22 of the LEP precludes grant of development consent to the proposal.

102. In so concluding, I should note that my findings in relation to the Collex proposal are based upon its essential character and nature as a waste management facility, being designated development in terms of the EP&A Act, notwithstanding its assumed characterization as a “freight transport terminal” for the purposes of the LEP.

103. This approach to the proper understanding of the true nature of the proposal is, in my view, justified, notwithstanding the assumption that I have made that the proposal is a freight transport terminal for the purposes of the LEP. In this respect, it may be necessary that the provisions of the LEP are to be applied to the proposed development upon the basis of its double characterisation ie as a “freight transport terminal” for the purposes of the LEP and as a “waste management facility” being a form of designated development in terms of the EP&A Act.

104. But even if, as a matter of construction one were driven to construe the various relevant provisions of the LEP (such as cl 22) as strictly applying to the proposal regarded as a “freight transport terminal” (a result that would inflict considerable violence and inconvenience to the concept and function of “designated development” under the EP&A Act operating in concert with the LEP) it would nonetheless be legitimate to regard the proposal as I have earlier mentioned as a particular type of freight transport terminal, namely one that receives, handles and processes, containerises, and temporarily stores putrescible municipal wastes.

105. On either view of the true nature of the proposal, I hold that cl 22 of the LEP precludes the grant of consent.
F. WOULD THE GRANT OF CONSENT BE CONTRARY TO CL 64 of the LEP?

106. Clause 64(1) and (2) and the relevant provisions of Schedule 7 provide as follows:

64 Staged development

(1) The consent authority must not grant consent for development of the whole or any part of a parcel of land described in Part 1 of Schedule 7 unless the consent authority is satisfied that the proposed development will form part of staged development in which:


(a) the first stage, to the greatest extent practicable, has regard to all of the matters required by Part 2 of Schedule 7 to be taken into account in staged development proposals and such additional matters as the consent authority may require in relation to the parcel, and

(b) each subsequent stage has regard to the first stage.


(2) Subclause (1) does not apply if:

(a) the development concerned is for the purpose of landscaping servicing, remediation or demolition, or

(b) the development is, in the opinion of the consent authority, of a minor nature, or

(c) in the opinion of the consent authority, consent has been granted for all development of the parcel that will be carried out as staged development


Schedule 7 Staged development

Part 1 Land to which this Schedule applies

This Schedule applies to the following parcels of land each of which is shown by distinctive colouring and edged black on the map:

(a) Lidcombe Hospital Site, (b) Clyde Marshalling Yards, (c) Royal Australian Air Force (RAAF) Site.

Part 2 Staged development requirements

1 The following matters are to be taken into account in all staged development proposals:


(a) details of all proposed stages of development,

(b) distribution of land uses,

(c) general building envelopes, building heights and built form requirements

(d) pedestrian, cycle and vehicular access, and circulation networks, including whether there is adequate provision for wheelchairs,

(e) parking provision,

(f) a heritage impact statement prepared by an appropriately qualified heritage adviser supported by evidence of consultation with the Heritage Office,

(g) infrastructure and design principles,

(h) guidelines for the location, maintenance, ownership and other requirements for open space and landscaping, and for access to open space,

(i) ecologically sustainable development principles,

(j) managing the total water cycle, including effluent and stormwater treatment and re-use,

(k) passive and active energy conservation,

(1) integration of land use and transport planning by satisfactory parking provision,

(m) optimising public transport accessibility,

(n) reducing greenhouse gas emissions,

(o) implementing the waste management hierarchy specified in section 3 of the Waste Minimisation and Management Act 1995,

(p) preventing or mitigating all adverse environmental impacts,

(q) mitigating noise impacts from sources both internal and external to the site,

(r) appropriate levels of access and amenity for existing uses on the site, including the issues of vehicular access, security, fencing and location of open space,

(s) effective erosion and sedimentation controls,

(t) requirements relating to remediation of land made by State Environmental Planning Policy No 55 Remediation of Land,

(u) any other matters stipulated as general considerations by the Council.


3 The following additional matter is to be taken into account in the staged development of the Clyde Marshalling Yards site: the desirability for a railway overbridge to provide a vehicular and pedestrian link between Manchester Road and Parramatta Road.

107. The EIS at p 30 made the following comment on cl 64:

It is emphasised that section 64 does not require the first development consent to apply to all of the Clyde Marshalling Yard. In this regard, it provides that development consent may be for the whole or part of the Clyde Marshalling Yard.

It is anticipated that the first stage of this development may encompass the construction of the container manoeuvring area including the removal of the rail sidings

This EIS deals with each of the matters referred to in Part 2 of Schedule 7 of the LEP. Details are provided in the following table.

108. Auburn Council’s written submission included the following comments on cl 64:

5.2 Clause 64 Staged Development Provisions

Clause 64 Staged development is a provision contained within the Auburn Local Environmental Plan 2000 which aims to provide a coordinated planning outcome to the three large redevelopment sites within the Auburn Local Government Area. These sites are identified in Schedule 7 Part 1 as;

a) Lidcombe Hospital Site
b) Clyde Marshalling Yards and
c) Royal Australian Air Force Site (R.AAF)

Each of these sites have been earmarked for redevelopment by the relevant state and federal governments and are each in excess of 35 hectares in area.

The Clyde Marshalling Yard was included in the provision as during the LEP preparation process Rail Estate advised Council that it sought to rezone surplus land within the Clyde Marshalling Yards Site. At the time (mid 1998) the rail authorities did not have a redevelopment plan for the site. In the draft Local Environmental Plan that was adopted by Council and forwarded to parliamentary counsel, these three sites were included in a masterplan provision ie the dLEP required a masterplan to be adopted on each of these sites prior to them being redeveloped.

Parliamentary Counsel substituted the masterplan clause with a staged development provision.

Clause 64 has the effect of requiring a staged development application for the Clyde Marshalling Yards which is shown distinctly on the LEP map as encompassing the entire Clyde Marshalling Yards Site.

The comprehensiveness of the Schedule 7 ensures that all matters relating to development of the Marshalling Yards are considered in the first staged development application. Each subsequent application then must consider the first stage to ensure that it is consistent with the first stage.

5.3 Collex's Interpretation of Clause 64

Collex are arguing that each of the provisions contained in Schedule 7 should only relate to the site to which their operation is located. The EIS states it is emphasised that Section 64 does not require the first development consent to apply to all of the Clyde Marshalling Yard. In this regard it provides that development consent may be granted for the whole or any part of the Clyde Marshalling Yard.

The Dec EIS refers to the Aug EIS on this matter,

5.4 Council's Response

The basis of Collex's argument is on the strength of the words the whole or any part. If the words any part were not included in the clause the entire staged development process would not work as it would not be permissible to lodge a stage 2 development application that related to a part of the site by virtue that consent could only be granted for the whole site.

It is Council's position that the consent authority can not grant consent to this development as it does not form part of a staged development application and that it has not adequately addressed schedule 7.

Collex have chosen to deal with Clause 7 as if it applies to the subject site only and if the application was approved the opportunity for the subsequent stage development applications to be consistent with the first would be lost leading to uncoordinated development pattern. The isolationist approach to dealing with the site as taken by Collex was exactly what Clause 64 was designed to prevent.

109. The Department in its Assessment Report noted that “in order to satisfy the staged development requirement” the SEIS proposed that the development proceed in two stages.

110. The Assessment Report continues:

For the staged development provisions of the ALEP 2000 to be invoked at the Clyde Marshalling Yards, the Department considers there is a need for a master plan that includes Council's general considerations for the Yards as a whole. Indeed, Auburn Council, in its input to Director-General's Requirements for the EIS, stated that by virtue of Clause 64(1) of the ALEP 2000 it is necessary for development applications to form part of an overall redevelopment plan for the Yards. In the absence of such a plan, there is limited scope for this development to address, in the context of the Yards as a whole, the matters listed in Part 2 of Schedule 7. The Department considers the need for the development to be staged becomes redundant in the absence of a master plan.

The EIS lists the regard that has been taken to all of the matters listed in Part 2 of Schedule 7. Auburn Council comments on the EIS indicated that Collex should check other reports that have been prepared for the site and check future plans for the site with the land owner. On these matters the SETS indicated that the future plans involved areas of the site that are remote from the proposed development, and the development would not be out of character with the industrial environment.

The Department is of the opinion that the Applicant has addressed the matters listed in Part 2 of Schedule 7 to the greatest extent practicable. Matters under this part that could be further explored by the Applicant should approval be granted can be identified in appropriate conditions of consent, for example as community enhancement programs. These include the Applicant's participation in the preparation of a master plan for the Clyde Marshalling Yards, and in the provision of a cycleway and riparian zone protection adjacent to the Duck River. The Department considers any notion that the Applicant develop a master plan for the Clyde Marshalling Yards site,, or participate in development of a master plan before the proposed development is determined, to be unreasonable given the small part of the site to be covered by the proposed development, ie. approximately 3% of the total Marshalling Yards site. The Department also considers it unreasonable to force an Applicant into a master plan development process after submitting a DA, which may potentially disadvantage or preclude its development proposal.

111. At the hearing, Counsel for the Minister submitted that the Department’s views on the meaning and application of cl 64 were erroneous.

112. There are obvious interpretive difficulties with cl 64 which is reflected in the Department’s attempt to understand the intended effect as recorded in its Assessment Report. They probably derive from the manner in which it came into existence, as explained in Auburn Council’s written submission that I have quoted.

113. Collex’s argument that its development application(as modified by the SEIS to create two progressive stages for the carrying out of the development) is founded on the fact that the clause expressly recognizes that there may be development of the whole or any part of the three parcels of land described in Part 1 of Schedule 7.

114. As the Council’s submission makes clear, each of those three separate parcels has an area in excess of 35 hectares. The development site for the Collex development comprises 0.94 hectares—or as the Department’s Assessment Report notes, approximately 3 per cent of the total area of the Clyde Marshalling Yards.

115. In my judgment, the proper meaning of cl 64 of the LEP is not yielded by a literal construction of it, which is the foundation for Collex’s argument.

116. Rather, the true meaning is yielded by adopting a purposive construction. I accept the Respondents’ rebuttal of the Applicants’ argument that a purposive construction yields the result that development of the land is predicated upon there being in existence a “Master Plan” within the meaning of cl 92A of the EPA Regulation.

117. However, purposively construed, I am of the opinion that the provision means more than simply requiring Collex to “stage” its development into the two separate stages outlined in the SEIS.

118. In my opinion, the clear purpose or object of cl 64 is to achieve the result that any development of any part of the three discrete parcels of land is related in an overall planning sense to the development of the whole of the parcel.

119. An important feature of the relationship between the development of part and development of the whole (where that result is to be achieved by “staged development’) is the importance of the first stage to the subsequent stages by in effect establishing the planning standards and parameters for the subsequent stages to follow.

120. This clear purpose requires the reference to “staged development” referred to in subclause (1) to be interpreted as referring to the staged development of the whole of the parcel.

121. Thus, the fundamental requirements of cl 64 to emerge in respect of the first stage of the development is that (i) it “form part of the staged development of the whole” and (ii) it establish the planning standards and parameters for the subsequent stages of development of the whole by addressing “to the greatest extent practicable” the matters referred to in Part 2 of Schedule 7 to the LEP.

122. The italicized phrase obviously creates some sensible flexibility in complying with requirement (ii), but it would defeat or frustrate the clear purpose of the provision if it could be said that, as in the present case, because the first stage is only of a small portion of the parcel carried out in isolation and ignorance of the future subsequent stages of development, its need to address the matters enumerated in Part 2 of Schedule 7 is necessarily limited or curtailed.

123. In the light of the purposive construction of cl 64 that I have adopted, there is nothing in the Collex application or in the evidence adduced in this case, that enables me to be satisfied of the matters that I am required to be satisfied of, in relation to the Collex development application.

124. Accordingly, I hold that cl 64 of the LEP precludes the granting of development consent in this case.
G. ARE the EIS AND SEIS LEGALLY SUFFICIENT?

125. The Applicant’s contention that the EIS and SEIS were (and are) legally deficient is based upon a number of discrete allegations that I have earlier noted.

126. Before considering these allegations, I should note Collex’s submission that the alleged inadequacies were not of such a nature or extent as to lead to the conclusion that “there was no EIS at all”.

127. Moreover, Collex submitted that if there had been inadequacies in the EIS they had been addressed by the SEIS and most importantly, by the evidence given in these proceedings, including the conditions of consent devised by the Respondents.

128. Both Respondents contended that there was a distinction to be drawn concerning the EIS and the SEIS where the content and processing of the former was mandated by the EP&A Act and the EPA Regulation but the content and processing of the latter was not so mandated. However, both Respondents submitted that there was nothing to preclude the preparation and processing of the SEIS and indeed that it was a helpful addition to the statutory process.

129. This submission advanced by both Respondents, but more especially by Collex, concerning the different legal bases and framework for the EIS and SEIS, seems to have arisen in response to the Applicants’ allegation that the SEIS had not complied with the Director General’s requirements.

130. The Respondents’ submissions create some significant doubt as to the status and function of a supplementary environmental impact statement, unanchored in or separate from, the legal foundations for an environmental impact statement.

131. The fundamental problem created by the Respondents’ submission that an SEIS is in effect, supererogatory, is the extent to which it can be relied upon in fulfilment of the legal duty imposed by s 78A(8)(a) that a development application, in respect of designated development, must be accompanied by an environmental impact statement in the form prescribed by the regulations.

132. If it cannot be relied upon in fulfilment of that duty, an applicant may find itself unable to establish that its development proposal is supported by the requisite environmental impact statement, with the legal result that the development application is void.

133. Moreover, if it cannot be so relied upon, what is its function and purpose in the development application process.

134. It may be accepted that the fact that the express power conferred by the EPA Regulation, cl 55 for an applicant, with the agreement of the consent authority, to amend or vary the application, but does not impose a requirement, that in the case of designated development, the amendment or variation must be supported by a supplementary environmental impact statement, itself gives rise to some doubt concerning the status and function of a supplementary environmental impact statement.

135. But in a case such as the present, where Collex has itself supported its proposed modifications to the development application, by the preparation of the SEIS, the preferable and more workable view is that the SEIS is part and parcel of the EIS.

136. This approach accords with the Minister’s alternative submission that an EIS does not have to be contained in a single document. Reliance was placed upon the decision of Stein J in Leatch v Director General National Parks and Wildlife Service (1993) 81 LGERA 270 and the decision of the Court of Appeal in Chisholm v Pittwater Council (2001) NSWCA 104.

137. Having established that the SEIS forms part of the EIS (and is itself subject to the same statutory regime as applies to EIS) I shall now briefly consider each of the deficiencies alleged by the Applicants—

(a) failure of the SEIS to comply with the Director General’s requirements

138. What is in contention here is the effect of the letter dated 15 November 2001 from the Executive Director of the Department.

139. A copy of that letter is included in Appendix D to the SEIS which is titled “Government Authority Submissions and Responses”.

140. The Department’s letter, read in context (which includes Collex’s Consultant’s letter to the Director-General dated 17 October 2001 advising of Collex’s decision to amend the development application to relocate the proposed waste transfer building and enclosing a written request seeking the Director-General’s requirements in respect of the preparation of the SEIS) in my opinion relevantly communicated Director-General’s requirements within the meaning of the EPA Regulation, cl 73.

141. That understanding of the Department’s letter, I think, is to be preferred to the Minister’s submission that the Department’s letter was seeking additional information such as is provided for in the EP&A Regulation, cl 54.

142. One of the requirements contained in the Department’s letter was the following requirement in relation to the discussion of “alternatives”:

The original EIS considered only three alternatives, apparently mainly using commercial considerations.

A greater range of alternatives should be canvassed, considering, in particular, the use of new or existing waste transfer facilities closer to source of waste generation. The reasons for disregarding such alternatives should be clearly articulated and justified.

143. Although the Minister submitted that the SEIS had complied with the requirements contained in the Department’s letter, he also submitted that the fact that the SEIS was subsequently publicly exhibited (from 31 January 2001 to 1 March 2002) meant that the Director-General must be taken to have been satisfied with the adequacy of the SEIS. Reliance was placed upon the decision of the Court of Appeal in Prineas v Forrestry Commission of NSW (1984) 53 LGRA 160 and my decision in Bell v The Minister for Urban Affairs and Planning (1997) 95 LGERA 104.

144. In my judgment the SEIS must be held to have complied with the requirements contained in the Department’s letter in the sense that the matters raised were canvassed in the SEIS. The Applicants’ real complaint is that the manner in which the SEIS canvassed the relevant matters was inadequate. But this is entirely different from saying that the relevant requirements were not complied with (there being no foundation for holding that the manner in which the SEIS canvassed the matters was merely toleristic or a sham).

145. Accordingly, I reject this allegation.

(b) Failure of the EIS or SEIS to assess the environmental impact of the relevant rail freight operations.

146. It is common ground that neither the EIS nor the SEIS undertook any environmental impact assessment of the activities of FreightCorp relevant to the proposed development ie handling the containerized wastes at the Intermodal facility from the moment that they emerge via the process conducted at the development until they are loaded onto the train trucks and despatched to the Woodlawn landfill. (I have earlier recited the relevant content of the EIS outlining the activities to be undertaken by FreightCorp in relation to the proposed development).

147. Neither the EIS nor the SEIS explains precisely why there was no environmental impact assessment undertaken in respect of FreightCorp’s relevant activities other than for the following reference at p 29:

Under Schedule 1 of the Environmental Planning and Assessment Model Provisions, 1980 the activities undertaken by FreightCorp at their site do not require development approval in accordance with Clause 35
Nothing in the local environmental plan shall be construed as restricting or prohibiting or enabling the consent authority to restrict or prohibit:

(a)the carrying out of development of any description specified in Schedule 1

Schedule 1 states the following
1. The carrying out by persons carrying on railway undertakings on land comprised in their undertaking of:

(a) any development required in connection with the movement of traffic by rail, including the construction, reconstruction, alteration, maintenance a repair of ways, works and plant

148. The Department’s Assessment Report deals with the matter in the following passage at p 49:

Activities of Pacific National

A number of submissions stated that the EIS should have analysed the environmental impacts of the FreightCorp activities associated with the development. The EIS indicated that under Schedule 1 of the Environmental Planning and Assessment Model Provisions 1980, the activities undertaken by FreightCorp do not require development consent in accordance with clause 35.

The Department is of the opinion that whilst the development of the waste transfer terminal requires development consent, activities proposed to be undertaken by Pacific National associated with the transfer terminal, provided those activities are limited to the activities described in Schedule 1 of the Environmental Planning and Assessment Model Provisions 1980, would not require development consent. The activities described in the EIS that would be carried out by Pacific National are "improvements to overall container management for Collex and other customers requiring the removal of tracks and construction of hardstand". The other Pacific National activities associated with the proposed development would be the movement of laden and unladen waste containers at the Yards, the loading and unloading of waste containers onto and from train cars, and shunting operations. The Department considers that the Pacific National activities would fall within the activities described in Schedule 1 of the Environmental Planning and Assessment Model Provisions 1980, and therefore do not require development consent.

149. Both the EIS and the Department’s Assessment Report are mistaken in stating that cl 35 of the Environmental Planning and Assessment Model Provisions 1980 is applicable. In fact, the LEP in cl 63 only adopts two provisions of the Model Provisions and they do not include cl 35.

150. However, the LEP contains cl 58 which states:

58 Development by public authorities

(1) Nothing in this plan is to be construed as restricting or prohibiting, or enabling the consent authority to restrict or prohibit, the carrying out of an activity of any description specified in Schedule 3 by a public authority or a corporation that was a public authority but has been privatised
(2) Nothing in this plan is to be construed as removing the requirement of determining authorities to consider the impact on the environment of an activity in accordance with Part 5 of the

Environmental Planning and Assessment Act 1979.

151. The relevant provision of Schedule 3 is cl 1 which states:

1 The carrying out by persons carrying on railway undertakings on land comprised in their undertakings of-.

(a) any development required in connection with movement of traffic by rail, including the construction, reconstruction, alteration, maintenance and repair of ways, works and plant, or

(b) the erection within the limits of a railway station of buildings for any purpose,

but excluding:

(c) the construction of new railways, railway stations and bridges over roads, and

(d) the erection, reconstruction and alteration of buildings for purposes other than railway purposes outside the limits of a railway station and the reconstruction or alteration, so as materially to affect their design, of railway stations or bridges, and

(e) the formation or alteration of any means of access to a road, and

(f) the erection, reconstruction and alteration of buildings for purposes other than railway purposes where such buildings have direct access to a public place.

152. Accepting that the effect of cl 58(1) of the LEP is relevantly the same as cl 35 of the Model Provisions and assuming that that is a sufficient source of authority for the undertaking by FreightCorp of its activities in relation to the proposed development, the question to arise is whether that assumed fact is sufficient to exclude any necessity for environmental impact assessment of those activities undertaken by FreightCorp.

153. In my judgment, the activities to be undertaken by FreightCorp in relation to the proposed development relevantly fell within the requirements for environmental assessment as specified in cl 4(b) and (c) of Schedule 2 to the EPA Regulation and hence formed part of the required contents of the EIS in terms of the EPA Regulation, cl 72.

154. In so concluding, I would apply the reasoning and approach taken in Bell v The Minister for Urban Affairs and Planning.

155. That reasoning is supported by the evidence of Mr Court (the independent assessor) and Mr Challis (the Council’s acoustical consultant) concerning their opinions that the related activities to be undertaken by FreightCorp formed part of the cumulative environmental impact of the proposed development and should have been assessed.

156. The Department, in the following passage from its Assessment Report accepted that such activities were included in the cumulative environmental impact:

(a) Rail and loading operations within Clyde Marshalling Yards

Whilst the activities conducted by Pacific National associated with the packed containers after they have left the Collex operation are outside the scope of this development, the Department accepts that they represent a possible cumulative impact arising from the proposed development. In addition, the movement of a freight train each night between the Clyde Marshalling Yards and the Crisps Creek Intermodal may also represent a cumulative impact.

The activities of Pacific National at the Clyde Marshalling Yards are regulated by an environment protection licence under the Protection of the Environment Operations Act 1997, administered by the EPA. The licence places no restrictions on operating hours or noise emissions. The Department has taken into consideration the statement in the EIS that some train handling activities would be transferred from the site if the development proceeds and the expectation that there would be a consequent overall reduction in train movement at the Yard. Overall, the Department believes the operations associated with the loading and unloading of containers and the shunting and movement of rail cars would be a typical operation at rail marshalling yards, and unlikely to create significant cumulative impacts.

157. What is the legal consequence of the failure of the EIS or SEIS to assess the environmental impact of the activities to be undertaken by FreightCorp related to the proposed development? Does it invalidate or vitiate the EIS and SEIS?

158. This is a difficult question, but for similar reasons that led me to conclude in Bell that the material omission from the EIS for the development of the Newcastle Coal Loader Extension to assess the environmental impact of increased rail freight of coal being delivered to the extended Coal loader facility, did not invalidate or vitiate the EIS or SEIS, I would hold that the EIS and SEIS are not vitiated by this material omission.

159. However, as will hereafter appear, I regard the omission as exposing a fundamental deficiency in the environmental assessment of the proposed development which is highly relevant to the required evaluation of the merits of the proposal. Moreover, when considering the merits, it may be necessary to consider the effect of the EP&A Act, s 76A(8) which was relied upon by the NSW Waste Service in its written submissions opposing the development with the support of legal opinion the Service had obtained.

(c) Inadequate investigation and analysis of alternative sites

160. It will be recalled that the Department’s letter dated 15 November 2001 to Collex required the SEIS to canvass a greater range of alternatives than had been undertaken in the EIS.

161. The SEIS considered this subject matter at pp 43 to 60.

162. The Department’s Assessment Report deals with this issue in the following passages at pp 46-47:

The Department considered some of the reasons cited in the SETS for rejecting sites lacked substance and were comparable to difficulties also associated with the preferred option.

In order to fully develop its position, the Department carried out a desktop assessment of possible options for providing a linkage between waste generation in the northern Sydney region and rail transport to Woodlawn. The Department's assessment identified eight options and within some of the options a range of alternatives sites for waste compaction and/or waste transfer onto trains. The text of the Department's assessment is provided at Attachment A.

The conclusions that may be drawn from the Department's assessment are as follows:

· There is a range of configurations for waste compaction, containerisation and transfer to rail transport that could provide a linkage between the generation of waste in the Sydney region and the rail transport of waste from Sydney to Woodlawn. The, Clyde proposal is therefore not essential to provide such a linkage; it is only an option that happens to be preferred by the Applicant.

· There are possible arrangements that may offer important environmental benefits over the proposed Clyde alternative. These arrangements. principally involve the containerisation of waste at existing waste transfer infrastructure within or in proximity to its locality of origin with subsequent road transport of the packed containers to a railhead for loading onto a train. The 1999 contract between the Applicant and the former Northern Sydney Waste Board appears to address such an option.

· There are other possible locations for a new combined containerisation and transfer facility such as Camellia, however these were dismissed by the SEIS in some cases with inadequate justification

Waste Service owns waste transfer stations at Belrose, Artarmon and Ryde in the northern Sydney region, and at Seven Hills, Auburn, Chullora and Rockdale. At the time of drafting the EIS and SEIS, the Applicant had been unable to come to an agreement with Waste Service NSW on the use of its waste transfer stations.

Subsequent to the issue of the SEIS, Waste Service revised its policy on competitor access to its transfer stations, making them available subject to certain conditions.

The Department considered a number of proposals involving the use of existing Waste Service transfer stations for containerising the waste prior to its acceptance at the Clyde site. One such proposal involved the following arrangements:

· The waste is contracted to the Applicant

· The Applicant pays for the installation of specialist compaction equipment in the Waste Service transfer station(s)

· The Applicant pays Waste Service for the use of its transfer station(s)

· The Applicant receives the pre-containerised waste at the Clyde facility for transfer onto trains for Woodlawn.

Another proposal involves:

· The waste is contracted to Waste Service

· Waste service pays for the installation of specialist compaction equipment in the Waste Service transfer station(s)

· Waste Service pay the Applicant to dispose of the waste by receiving the pre-containerised waste at the Clyde facility for transfer onto trains for Woodlawn.

In both the above scenarios, the cost of disposing the waste (at Woodlawn) would be greater than the current cost of disposing the waste directly to a Waste Service landfill in Sydney (ie. Belrose, Eastern Creek, Lucas Heights or Jacks Gully), principally because of the margin associated with the additional transfer step at Clyde. The cost differential can be substantial to either the Applicant or Waste Service.

The Applicant advised the Department it has no current arrangement or viable basis for participating in the changed policy of Waste Service, and in any case it has fundamental difficulties with the anti-competitive nature of the conditions. The Department also has concerns about these conditions under the competition provisions of the Trade Practices Act 1974, and over broader issues of competition policy outside that Act. The overall effect of such a proposal could be to remove Collex as a potential competitor with Waste Service for the management of MSW from the Sydney region, with Waste Service reverting to its previous position of a virtual monopoly.

In any case, the Department is not in a lawful position to force an Applicant to enter into a commercial agreement with another entity, even if such an agreement is believed to achieve enhanced environmental outcomes over the proposed development. The responsibility is with the Applicant and the other party to make such business decisions. Since the Applicant has chosen not to pursue an alternative strategy, the Department must assess the development application as submitted, and make recommendations to the Minister for his determination having regard to the matters listed for consideration in the legislation. Further, the Department is mindful of the competition provisions of various legislative regimes and policy requirements. These are outside the scope of this development application.

163. Whereas the Department’s Assessment Report supports the Applicant’s allegation that the SEIS investigation and analysis of alternative sites was to some extent inadequate, I am satisfied that those inadequacies do not invalidate or vitiate the SEIS.

164. However, it will be necessary to return to the question of alternative sites when I come to consider the merits of the proposal.

(d) inconsistencies between the EIS and the SEIS

165. In my judgment, a fair reading of the EIS and the SEIS (both documents were publicly exhibited concurrently in early 2002) produces the legal result that the documents in combination are legally sufficient to satisfy the requirements of an EIS. The relationship between the two documents is tolerably clear and it is also clear that the SEIS was created to support the modifications proposed by Collex to the development proposal made in response to the submissions received to the original public exhibition of the EIS.

(e) Contrary to the Woodlawn contract

166. In my judgment, the Applicant’s allegation, even if it had been substantiated (and it depends upon a proper understanding of the complex contract between Collex and the former North Sydney Waste Board), would not invalidate or vitiate the EIS or the SEIS. That contract was but a background fact to the EIS.
H. EVALUATION OF THE PLANNING MERITS

167. Having regard to my earlier conclusions (i) that the proposal is prohibited development; (ii) that even if it were development for a permissible purpose (ie a “freight transport terminal”) development consent is precluded by the operation of cll 9(5), 22 and 64 of the LEP; and (iii) that although the EIS and SEIS are legally sufficient, they contain a material omission (no environmental impact assessment of FreightCorp activities relating to the development) and are inadequate in their analysis of alternative sites—it seems to be appropriate that I express my evaluation of the planning merits of the proposal only in summary fashion. I again emphasise that this evaluation is based upon the assumption that the proposal is for a permissible development that may legally be approved.

168. My evaluation, conformably to the requirements of EP&A Act, s 79C, is that development consent should be refused for the following reasons—

(i) the inadequacy of the assessment of environmental impacts by virtue of (i) there being no assessment of the cumulative environmental impact of the activities to be undertaken by FreightCorp; and (ii) the inadequacy of the investigation and analysis of alternative sites;

(ii) the likely adverse environmental impacts of the proposal in terms of odour and dust and noise emissions;

(iii) the impracticability of all of those adverse impacts being effectively mitigated by the suggested regime of conditions of consent;

(iv) the likely adverse social and economic impacts on the local community of the proposal;

(v) the adverse planning precedent created for the planned and orderly development of Industrial Enterprise 4C Zone and of the Clyde Rail Marshalling Yards, by the proposed development, because of its inherently environmentally inimical nature and the propensity for it to attract similar environmentally offensive developments in a clustering and escalating effect; and
(vi) the unsuitability of the development site to accommodate a waste transfer station because of its adverse environmental, economic and social impacts and its adverse precedental planning effect, notwithstanding its obvgious convenience as an existing intermodal transport facility.

169. The foregoing reasons are supported by the expert opinions of Mr John Court (environmental expert) and Mr Challis (acoustical expert) and my assessment of all of the evidence. They are also supported by many of the conclusions expressed in the Department’s Assessment Report.

170. Whereas these experts and the Department proffered opinions that a very strict regime of conditions of consent might satisfactorily mitigate adverse environmental impacts, I do not consider the prospect of such a regime involving some 138 conditions (Exhibit 5)) to be a satisfactory solution for what I regard to be an unsuitable location for the proposed development which is an inherently unsuitable development for its environment.

171. In view of my planning evaluation, I do not think it necessary to consider the impact of s 76A(8)(a) in this case insofar as it may apply to FreightCorp’s activities relating to the development (and bring them within the required regime for environmental impact assessment of the overall Collex project).
I. CONCLUSIONS AND ORDERS

172. For all of the foregoing reasons, I would uphold the Applicants’ appeal and refuse development consent.

173. That outcome also must govern the outcome of the Council’s appeal.

174. Accordingly I make the following orders in both proceedings:

1. Appeal be upheld.

2. Development consent be refused.

3. Exhibits be returned.

4. No order as to costs.