Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 2)

[2017] NSWLEC 53

Land and Environment Court

New South Wales

Medium Neutral Citation:	Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 2) [2017] NSWLEC 53
Hearing dates:	10 to 14 October, 17 to 20 October, 25 to 26 October and 11 and 18 November 2016 (written submissions)
Date of orders:	08 May 2017
Decision date:	08 May 2017
Jurisdiction:	Class 1
Before:	Robson J
Decision:	See [216]
Catchwords:	APPEAL – objector appeal under s 75L against approval of a material recycling facility – whether development is compatible with existing and future uses of the locality – whether impacts of the development can be adequately managed – consideration of conditions of consent
Legislation Cited:	Conveyancing Act 1919 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Land and Environment Court Act 1979 (NSW) Liverpool Development Control Plan 2008 (NSW) Liverpool Local Environmental Plan 2008 (NSW) Liverpool Local Environmental Plan 1997 (NSW) Waste Avoidance and Resource Recovery Act 2001 (NSW)
Cases Cited:	Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33; (2011) 182 LGERA 370 Benedict Industries Pty Ltd v Minister for Planning; Liverpool City Council v Moorebank Recyclers Pty Ltd [2016] NSWLEC 122 Bulga Milbrodale Progress Association Inc v Minister for Planning [2013] NSWLEC 48; (2013) 194 LGERA 347 Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 Ironstone Community Action Group Inc v NSW Minister for Planning [2011] NSWLEC 195 Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 Mirvac Homes Pty Ltd v Parramatta City Council (2000) 111 LGERA 233 Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Powell v Langdon (1944) 45 SR(NSW) Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 Tomlinson v Ramsey Food Processing (2015) 256 CLR 507 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 Young v King [2016] NSWCA 282
Category:	Principal judgment
Parties:	Proceedings 00159652 of 2016 Liverpool City Council (Applicant) Moorebank Recyclers Pty Ltd (First Respondent) Minister for Planning (Second Respondent)   Proceedings 00157848 of 2016 Benedict Industries Pty Ltd (First Applicant) Tanlane Pty Ltd (Second Applicant) Minister for Planning (First Respondent) Moorebank Recyclers Pty Ltd (Second Respondent)
Representation:	Counsel:     C J Leggat SC (Applicant in 2016/00159652) T S Hale SC with D Robertson (Applicants in 2016/00157848) T F Robertson SC with J E Lazarus (First Respondent in 2016/00159652 and Second Respondent in 2016/00157848) S Duggan SC with D Beaufils (First Respondent in 2016/00157848 and Second Respondent in 2016/00159652)   Solicitors:    Swaab Attorneys (Applicant in 2016/00159652) Minter Ellison (Applicant in 2016/00157848) Mark McDonald & Associates (First Respondent in 2016/00159652 and Second Respondent in 2016/00157848) Department of Planning and Environment (First Respondent in 2016/00157848 and Second Respondent in 2016/00159652)
File Number(s):	2016/00159652; 2016/00157848

Contents

Background

The site

Planning history

Development history

The proposed development

Merits review – generally

Statutory framework

Legal principles

Merits review – relevant considerations

Merits review – preliminary matter – issue estoppel – earlier undertaking

Consideration

Merits review – planning and community context

Planning instruments

Other development controls and policies

The existing and future locality

Conclusions on planning and community context

Merits review – traffic management impacts

Existing traffic

Modelling

Increased traffic

The intersection

Conclusions on traffic

Merits review – acoustic impacts

The R3 land

Consideration

Merits review – visual impact/urban design impacts

Review of air quality, geotechnical, contamination and waste management, aquatic ecology, water (sewage, stormwater and flooding) management and impacts of proposed development

Air quality

Geotechnical

Contamination and waste management

Aquatic ecology

Water (sewage, stormwater and flooding) management

Consideration

Consideration of disputed conditions

Conclusion

Determination

Judgment

1. Before the Court are two appeals brought pursuant to (now repealed) s 75L of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) against the decision of the Planning Assessment Commission (‘PAC’) on 11 September 2015, as delegate of the Minister for Planning (‘Minister’) to approve the project application by Moorebank Recyclers Pty Ltd (‘Moorebank’) for the construction and operation of a materials recycling facility (‘MRF’). The MRF is to process up to 500,000 tonnes per year of masonry construction and demolition waste such as sand, bricks, asphalt and concrete for reuse in the construction industry.

2. Moorebank is the owner of a rectangular, undeveloped 20.5ha block of land in the suburb of Moorebank on the western bank of the Georges River known as Lot 6 DP1065574 (‘site’). The site is surrounded by a residential area to the west, a proposed residential and commercial marina to the north, and a golf course to the south. It is also located within the Liverpool Local Government Area.

3. The proposed development was declared a major development under s 75B of the EPA Act, and a formal development application was submitted in May 2006. After various delays and the usual Pt 3A processes, the application was referred to the PAC in May 2015, who in turn granted approval for the proposal pursuant to conditions on 11 September 2015.

4. Subsequent to approval being granted, the two objector appeals presently before the Court were brought pursuant to the former s 75L of the EPA Act. The first of these, filed on 8 October 2015, was initiated by Liverpool City Council (‘Council’). The second, which was commenced on 23 October 2015, was brought by Tanlane Pty Ltd (‘Tanlane’) and Benedict Industries Pty Ltd (together ‘Benedict’), which respectively own and occupy the land to the north of the site and are related companies. Both proceedings name the Minister and Moorebank as respondents (albeit in a different order). The proceedings have been heard together and the Court previously directed that evidence in each proceeding be evidence in the other. This is the latest case in a long running series of proceedings between Moorebank, Benedict, Tanlane and, on occasions Council, regarding the development of both the site and the surrounding land some of which are referred to by Biscoe J in Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93 (‘Moorebank 88K Proceedings’) at [22]-[59].

5. While there were numerous issues raised in the various Statements of Facts and Contentions in each matter, the issues in dispute were narrowed during the hearing. In summary, Council contended:

1. that the proposed development was incompatible with the existing and future use of the locality and inconsistent with various objects, aims and goals outlined in the relevant planning instruments;

2. that sewage management was inadequate given its proximity to the Georges River; and

3. that there was insufficient information regarding ecology, noise, urban design, air quality, traffic management, flooding, stormwater collection, contamination, waste management and various geotechnical issues.

6. Conversely, Benedict contended:

1. that the proposed development was generally inconsistent with the future use of the surrounding land and applicable zoning objectives;

2. that the noise, visual and traffic impacts would be unacceptable; and

3. that there was insufficient information available regarding the urban design and traffic impacts of the development.

7. The Minister’s position in relation to each of the appeals is best summarised by his contentions filed in each matter as follows:

The Minister disagrees with all of the contentions raised by [Council] and [Benedict] and relies upon the Secretary’s Environment Assessment Report dated April 2015, the Planning Assessment Commission’s Determination Report dated 11 September 2015, and the Project Approval dated 11 September 2015.

The Minister contended that approval should be forthcoming (albeit subject to appropriate conditions) and made submissions primarily in relation to proposed conditions.

8. For the reasons below, I consider the proposal can be supported primarily on the basis that the proposed land use is consistent with the Liverpool Local Environmental Plan 2008 (NSW) (‘LLEP 2008’) (and other NSW Government strategic and planning documents) and that, taking into account all relevant issues, the environmental and amenity impacts can be adequately managed by stringent conditions of consent. The conditions, which I intend to impose, provide for consistent and ongoing monitoring, go further than those which were imposed by the PAC and are based upon extensive further evidence marshalled in these appeals, and will ensure a tightly controlled development.

9. I have been assisted in the hearing of these appeals by Commissioner Chilcott under s 37(1) of the Land and Environment Court Act 1979 (NSW) (‘Court Act’).

10. Given the complex subject matter of these appeals, I adopt the following structure in this judgment:

1. first, an outline of the background facts;

2. second, consideration of the task of the Court when undertaking a merits review;

3. third, consideration of Moorebank’s preliminary argument regarding issue estoppel and possible abuse of process;

4. fourth, consideration of each of the planning, traffic, acoustic and visual/urban design impacts of the proposed development;

5. fifth, consideration of the air quality, geotechnical, contamination, waste management, aquatic ecology and water management impacts of the proposed development; and

6. sixth, consideration of the disputed conditions of consent.

Background

The site

11. The site is approximately 20.5ha and is roughly rectangular in shape, with a thin, 810 metre access route (known as and referred to in these reasons as the ‘panhandle’) travelling north comprising a dirt road linking the northwest corner of the site to Newbridge Road, and a small appendage extending from the northeast corner to the bank of the Georges River. Whilst approximately two-thirds of the site to the west has been cleared, the eastern third and the appendage remain forested. The site forms part of the Georges River floodplain, and is substantially lower than the land to its west.

12. The cleared portion of the site is the proposed location for the MRF, and was previously used as landfill by an organisation then known as Collex (now Veolia) from around 1972 to 1979, when it was capped. Whilst only non-putrescible waste was intended for the landfill, investigations have shown that at least some organic waste was deposited in the landfill prior to 1979.

13. The site is situated at the eastern edge of the suburb of Moorebank. It is surrounded by:

1. to the east, the Georges River;

2. to the north, a former sand mine and gravel premises operated by Benedict (referred to as ‘Benedict land’ in these reasons and sometimes referred to as ‘Tanlane land’ in the evidence before the Court). For ease of understanding these reasons, the Benedict land comprises, first, land immediately to the north of the site which is zoned “RE2 – Private Recreational” and is referred to below as the ‘RE2 land’ which has recently received development consent for use as a marina and, second, land further to the north of the RE2 land which is mostly zoned “R3 – Medium Density Residential”, which is referred to below as the ‘R3 land’, is approximately 22.5ha;

3. to the west, further forested land which, upon reaching Brickmakers Drive, becomes a newly built residential development known as “Georges Fair” (formerly an industrial area known as the “Boral Brickworks”); and

4. to the south, the New Brighton Golf Course, which has been partially redeveloped as a residential development.

14. Whilst the site is zoned “E2 – Environmental Protection” under LLEP 2008, due to the unique planning history outlined below, the construction of a MRF is permissible with consent.

15. Before it acquired the land in 1996, Moorebank made clear its intention to seek approval for the construction and operation of a MRF on the site, which required access to Brickmakers Drive across land owned by Council known as Lots 308, 309 and 310 DP111048.

16. The site does not have any road frontage. As noted above, it is presently accessed by way of the panhandle, which runs from Newbridge Road. It is proposed that an access ramp be constructed which will allow access to the unmade road from Brickmakers Drive, approximately 300 metres south from Newbridge Road.

17. It is relevant to note that Benedict (or more particularly Tanlane) has development consent from Council (granted in 2007) to construct a road bridge passing approximately six metres above Council land and the adjoining panhandle of Moorebank's battleaxe land. The Benedict land is approximately six metres higher than the panhandle in some sections. When constructed, the road bridge will run between the Benedict land and Brickmakers Drive, a public road owned by Council. Brickmakers Drive runs north-south and connects on the north to Newbridge Road, the major east-west trunk road in the locality. The road bridge will comprise two sections, in the west a solid embankment adjoining Brickmakers Drive and in the east a structure suspended on pylons to join the Benedict land.

18. Consistent with Council's vision over the past decade and as required by Roads and Maritime Services (‘RMS’), the only road access for future developments on the lands in the precinct east of Brickmakers Drive, including the Moorebank and Benedict lands, is via the future road bridge in this location.

Planning history

19. As at July 1995, the site was zoned “1(c) – Non Urban” under Interim Development Order No. 75 – City of Liverpool.

20. During the process of drafting the Liverpool Local Environmental Plan 1997 (NSW) (‘LLEP 1997’), a submission was received from Nexus Environmental Planning Pty Ltd (‘Nexus’) on behalf of an undisclosed client, to have the site rezoned so that a material recycling facility could be developed and operated on the site. Council resolved that LLEP 1997 would allow a MRF to be developed as an additional permitted use on the land, so long as such a provision had a “sunset clause”.

21. Despite the above resolution, the site was rezoned “1(a) – Rural” under LLEP 1997. Operations defined as “Material recycling yards” under cl 6(1) of LLEP 1997 (which would include a MRF) were prohibited on such land pursuant to cl 9 of LLEP 1997.

22. Nexus, on behalf of Moorebank, who purchased the site in 1996, continued to seek that the land be rezoned. On 25 February 2002, Council formally adopted the non-statutory “Moorebank Structure Plan”, which recommended that the site (and part of the land to the north of the site) be used as a MRF with open space, whilst the then Boral sand quarry (‘brick pit’) being the northern part of the Benedict land (now known as Georges Fair) be used as a residential zone. It provided that the land east of Brickmakers Drive, including the site, the Benedict land, and other land is to be accessed not via Newbridge Road but via a “link road” dedicated to Council as part of the redevelopment of the former Boral brick pit. As a result, Nexus (on behalf of Moorebank) prepared a “Pre-Rezoning Submission” for the site dated 20 May 2002, where it stated Moorebank would agree to the inclusion of a sunset clause in the development consent should it be granted consent for a MRF.

23. LLEP 1997 was amended on 23 September 2005, rezoning the site as partly 1(a) – Rural and partly “7(c) – Environmental Protection – Conservation”, and included a new cl 29 in Sch 4, which stated:

So much of Lot 6, DP 1065574, as is within the 1(a) zone and shown edged heavy black with diagonal cross hatching on the map marked “Liverpool Local Environmental Plan 1997 (Amendment No 76)” [be able to be used as a] materials recycling yard, provided that arrangements have been made, to the satisfaction of the Council, for the level of contribution for the provision or upgrading (or both) of arterial roads to service the land.

24. As part of the standardisation process for Local Environmental Plans (‘LEPs’) across NSW, LLEP 1997 was repealed and replaced by LLEP 2008. The draft LLEP 2008 sought to rezone the site as partly “SP2 – Drainage”, partly “RE1 – Public Recreation” and partly “E3 – Environmental Management”. Nexus (again on behalf of Moorebank) submitted to Council on 12 March 2008 that the site be instead rezoned to a rural zoning, with an enabling clause similar to cl 29 of Sch 4 in LLEP 1997 to allow for the development of a MRF.

25. Council resolved on 5 May 2008 to rezone the site to E2 – Environmental Conservation and to include within Sch 1 of LLEP 2008 a provision which enabled the development of a MRF, on the condition that the effect of the provision was limited to two years. As such, LLEP 2008 which presently applies to the site, zoned the site as E2 – Environmental Conservation, and included the following clause in Sch 1:

11 Use of certain land at Moorebank in Zone E2

(1)   This clause applies to Lot 6, DP 1065574 in Zone E2 Environmental Conservation at Newbridge Road, Moorebank.

(2)   Development for the purposes of a resource recovery facility is permitted with consent.

(3)   This clause is repealed on 1 September 2018.

26. On the same date as LLEP 2008 was gazetted, Council adopted the Liverpool Development Control Plan 2008 (NSW) (‘LDCP 2008’) which provided for residential subdivision for a maximum of 216 dwellings on Benedict land. It also provided for flood free access via a road bridge to Brickmakers Drive prior to any such subdivision. Benedict is progressing the residential subdivision of the R3 land and has consent for a marina on its RE2 land.

27. Whilst Council resolved on 29 May 2013 both to remove cl 11 from Sch 1 of LLEP 2008 and rezone the site from E2 – Environmental Conservation to RE2 – Private Recreation, no such amendments have been made.

Development history

28. On 24 March 2005, prior to the amendments to LLEP 1997, Moorebank lodged an application with Council in relation to bulk earthworks at the site. Whilst the purpose for the earthworks was to facilitate the later construction of a MRF, this did not form part of the application. On 29 June 2006, Council granted consent to the earthworks subject to conditions (‘earthworks consent’). Whilst the bulk of the works required under the earthworks consent have not been undertaken, it was found in Benedict Industries Pty Ltd v Minister for Planning; Liverpool City Council v Moorebank Recyclers Pty Ltd [2016] NSWLEC 122 that engineering and construction works had commenced on the site, and that the earthworks consent has not lapsed pursuant to s 95 of the EPA Act (as it existed at that time) which provides for the lapsing of development consents which are not physically commenced within five years after consent is granted.

29. On 19 December 2005, approximately two months after cl 29 was added to Sch 4 of LLEP 1997, the Director-General of the Department declared that the development of a MRF on the site was a major project to which Pt 3A of the EPA Act applied. Approximately a month later, on 26 January 2006, Moorebank submitted a “Preliminary Environmental Assessment” to the Department, which was followed on 2 May 2006 with a “Major Developments Application” that sought approval for a MRF with an annual capacity of 500,000 tonnes.

28. Pursuant to s 75F(2) of the EPA Act, the Director-General’s requirements (‘DGRs’) were issued on 8 July 2006. No formal response to the DGRs was received, and amended DGRs were issued on 7 July 2008.

29. One of the key issues in the DGRs was access to the site. As noted above, the site may presently only be accessed by way of the panhandle from Newbridge Road. However, on 29 January 2009, Council consented to the lodgement of an application under Pt 3A of the EPA Act for the construction of a ramp from Brickmakers Drive to the unmade road over Lots 308 and 309 in DP 1118048, which were owned by Council.

30. On 19 February 2013, Moorebank submitted its “Environmental Assessment” of the proposed development (‘original EA’) to the Department, which was put on public exhibition pursuant to s 75H(3) of the EPA Act between 28 February 2013 and 5 April 2013. As a result, Moorebank submitted its “Preferred Project Report” on 15 August 2013, pursuant to s 75H(6) of the EPA Act, which was again put on public exhibition between 9 October 2013 to 8 November 2013.

31. In April 2015, the Secretary’s “Environmental Assessment Report” was published pursuant to s 75I of the EPA Act (‘Secretary’s EAR’), and the proposed development was referred by the Minister to the PAC on 1 May 2015. After a series of meetings and site visits, the PAC granted consent subject to detailed conditions to the development on 11 September 2015 that forms the subject of these appeals.

The proposed development

34. The proposed MRF, as described in the Secretary’s EAR and shown on the plans for which Moorebank now seeks approval, occupies the northern half of the cleared portion of the site. It is proposed that uncrushed building waste will be deposited in stockpiles up to seven metres high in the southern half of the development area, which will be put through both a primary and secondary crusher located in the northern half of the proposed development. The crushed waste would then be separated into its component parts, and placed in finished product stockpiles up to four metres high in the northernmost part of the proposed development. The facility will process up to 500,000 tonnes per year of construction waste.

35. Given that the site forms part of the Georges River floodplain, it is proposed that mounds be raised in a roughly rectangular shape around the proposed MRF to six metres Australian Height Datum, or “AHD” (i.e. six metres above sea level). It is proposed that the northwest corner will not require such a mound, given that it is already six metres AHD, and will act as an access point for vehicles.

36. Given that the proposed MRF will create a substantial amount of noise, it is proposed that this be mitigated by the inclusion of six metre high noise walls for the northern third of the proposed development, and four metre high walls for the southern two-thirds of the development. The walls travel along the mounds, and are designed so that they protrude from the peak of the mounds. No noise walls are proposed for the mound traversing the southern end of the development, nor the northwest entrance.

37. With regard to access, trucks will enter the proposed development through the northwest entrance through gates, go over a weighbridge and travel within the mounds to deposit their loads at the stockpiles towards the south of the proposed MRF. They will then go through a “wheel wash”, over an exit weighbridge, and leave through the same entrance as they entered.

38. The trucks will arrive and leave the proposed development via part of the unmade road. However, given that RMS advised in a letter dated 19 April 2013 that access should be restricted to Brickmakers Drive rather than Newbridge Road, it is proposed that ramps be constructed at the location of the proposed bridge (referred to in [17] above) from Brickmakers Drive to the Benedict land, approximately 300 metres south of Newbridge Road. This bridge will be connected to Brickmakers Drive by an as yet unnamed road (‘unnamed road’). The ramps (and the bridge) are to be built on an easement over Council held land zoned R3 – Medium Density Residential, being Lot 309 of DP 1118048.

39. Given that it is proposed that all traffic entering the property will be coming south along Brickmakers Drive from Newbridge Road, and all exiting traffic will head north along Brickmakers Drive towards Newbridge Road, Moorebank proposes that two ramps be built on either side of the proposed bridge (and the unnamed road). To the north of the bridge, it is proposed that a ramp be built entirely separate to the bridge, which allows trucks to veer off Brickmakers Drive, head down the ramp, and under the bridge onto the panhandle. However, with regard to the exiting traffic, it is proposed that:

1. the traffic travels up a ramp from the panhandle, which curves towards the east;

2. this ramp, which travels upwards, plateaus and then slopes slightly downwards as it intersects with the unnamed road, approximately 60 metres from the intersection with Brickmakers Drive;

3. there will be a gate on the ramp (approximately 30 metres from the intersection with the unnamed road) that may be used to prevent trucks from going up the ramp, and a stop sign at the intersection with the unnamed road giving priority to traffic coming from the bridge; and

4. if clear, the trucks enter the unnamed road heading west, and then must turn right (being north) onto Brickmakers Drive at either a ‘stop’ or ‘give way’ sign.

40. Given that these trucks will make a considerable amount of noise, it is proposed that two further noise walls be constructed. The first noise wall is proposed to be constructed on the southern side of the entrance ramp, and continue along the centre of the panhandle (between the southbound and northbound lanes) for approximately 150 metres from the bridge. The second noise wall is proposed to be constructed on the southern side of the exit ramp, and continue southbound on the western edge of the panhandle for approximately 390 metres from the bridge. Both proposed noise walls start approximately four metres from Brickmakers Drive (to allow for visibility), and begin at one point five metres, gradually increasing to four metres as the AHD of the ramps (and panhandle) drops. No noise wall is proposed for the eastern side of the panhandle.

Merits review – generally

Statutory framework

41. Whilst Pt 3A of the EPA Act was repealed on 1 October 2011, it still applies to the present development pursuant to cl 2(1)(d) of Sch 6A of the EPA Act, as environmental assessment documents were duly submitted prior to its repeal. As such, the relevant version of the EPA Act for the purpose of these proceedings is that which existed immediately prior to its repeal pursuant to cl 3 of Sch 6A of the EPA Act.

42. Approval was granted by the Minister (through the PAC) on 11 September 2015 pursuant to s 75J of the EPA Act, which relevantly provides:

75J   Giving of approval by Minister to carry out project

(1)   If:

(a)   the proponent makes an application for the approval of the Minister under this Part to carry out a project, and

(b)   the Director-General has given his or her report on the project to the Minister,

the Minister may approve or disapprove of the carrying out of the project.

(2) The Minister, when deciding whether or not to approve the carrying out of a project, is to consider:

(a)   the Director-General’s report on the project and the reports, advice and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and

(b)   if the proponent is a public authority—any advice provided by the Minister having portfolio responsibility for the proponent, and

(c)   any findings or recommendations of the Planning Assessment Commission following a review in respect of the project.

(3)   In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.

(4)   A project may be approved under this Part with such modifications of the project or on such conditions as the Minister may determine.

(5)   The conditions of approval for the carrying out of a project may require the proponent to comply with any obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).

43. As outlined above, I find that Moorebank has made an application for approval of the project, and that the Secretary of the Department (in lieu of the Director-General) has provided an assessment report to the Minister, meaning that both the preconditions in s 75J(1) of the EPA Act have been met.

44. The present appeals have been brought pursuant to s 75L of the EPA Act, which states:

75L Appeals by an objector

(1)   This section applies to a project if:

(a)   it is not a critical infrastructure project, and

(b)   there has been no approval of a concept plan for the project under Division 3, and

(c)   the project has not been the subject of a review by the Planning Assessment Commission, and

(d)   but for this Part, the project would be designated development to which the provisions of Part 4 would apply.

(2)   For the purposes of this section, an objector is a person who has made a submission under section 75H by way of objection to an application for approval under this Division to carry out a project.

(3)   An objector who is dissatisfied with the determination of the Minister under this Division to give approval to carry out a project may appeal to the Court within 28 days after the date on which notice of the determination was given in accordance with the regulations.

(4)   If such an appeal is made, the proponent and the Minister are to be given notice of the appeal, in accordance with rules of court, and are entitled to be heard at the hearing of the appeal as parties to the appeal.

45. It is clear on the evidence that the proposed development is not a critical infrastructure project and is not the subject of or related to a concept plan. Further, were it not for Pt 3A of the EPA Act, I find the proposal would have been classified as a “designated development” pursuant to s 77A of the EPA Act and cl 16 of Sch 3 of the Environmental Planning and Assessment Regulation 2000 (NSW). I also find that the development has not been the subject of a review by the PAC. Under s 23D of the EPA Act, the function of reviewing a development is a separate function to the delegation of authority to approve or disapprove a development, as was done in these proceedings. Finally, I find that both Council and Benedict are objectors, as they independently made submissions against the proposed development on 5 April 2013 (although Benedict Industries Pty Ltd made an application on behalf of Tanlane Pty Ltd, I consider this to be sufficient).

46. The powers of the Court on a merits appeal are outlined in s 39 of the Court Act, which relevantly states:

39 Powers of Court on appeals

(1)   In this section, "appeal" means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)   In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)   An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4)   In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5)   The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

…

(7)   The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

…

Legal principles

47. When undertaking a merits review, the Court has regard to the following principles:

1. the Court has all the functions and discretions that were held by the consent authority that originally approved or disapproved the proposed development, including any restrictions on those functions and discretions: s 39(2) of the Court Act and ss 75J(2) and 75R(3) of the EPA Act;

2. a merits review is a rehearing, and the Court makes its decision based on the evidence that is before it, rather than solely the evidence that was before the consent authority: s 39(3) of the Court Act;

3. the Court must have regard to relevant legislation, regulations, planning instruments, the circumstances of the matter before it and the public interest (including community responses and the principles of ecologically sustainable development (‘ESD’)): s 39(4) of the Court Act, Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [39], [56] (Hodgson JA, with Campbell JA agreeing) and Bulga Milbrodale Progress Association Inc v Minister for Planning [2013] NSWLEC 48; (2013) 194 LGERA 347 at [63] (Preston CJ of LEC) (‘Bulga’);

4. the Minister (and therefore the Court) must also have regard to the Secretary’s EAR, and any findings or recommendations from the PAC: s 75J(2) of the EPA Act;

5. the effect of s 75R(2) and (3) is that State Environmental Planning Policies (‘SEPPs’) and LEPs do not apply at the determination stage of a Part 3A project: Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 at [76]-[112]; Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33 at [215]; (2011) 182 LGERA 370; Ironstone Community Action Group Inc v NSW Minister for Planning [2011] NSWLEC 195 at [25];

6. nevertheless, the Court may take into account the provisions of SEPPs and LEPs that would otherwise apply, pursuant to s 75J(3) of the EPA Act. Taking those instruments into account does not require the Court to apply their provisions by their strict terms, even if it were persuaded that it would otherwise be appropriate to take them into account: Ironstone at [29];

7. the Court is to look at whether the preferable decision, based on the evidence, is to approve or disapprove the proposed development: Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [172] (Bathurst CJ, Beazley P and Tobias AJA) (‘Warkworth’);

8. the Court has the power to impose conditions on a development if the preferable decision is to approve the project: s 75J(4) of the EPA Act.

Merits review – relevant considerations

48. The amended DGRs dated 7 July 2008 identified a number of “Key Issues”, including site access, traffic and transport, waste management, air quality, noise, soil and water issues, visual impact, impact on flora and fauna, hazards associated with handling potentially hazardous materials, fire management, and Aboriginal and non-Aboriginal heritage.

49. I have considered the Secretary’s EAR dated April 2015, the PAC’s “Determination Report” dated 11 September 2015 as well as the “Project Approval” dated 11 September 2015 in addressing the parties’ contentions.

50. The Secretary’s EAR outlined and addressed five key issues, being traffic impacts, noise impacts, air quality, flooding and visual amenity impacts. Whilst it also considered stormwater, contamination, ecology, property values, sewerage, heritage, streetscape and geotechnical issues, it determined that each of these was not a key issue, and as such only undertook a brief assessment of each.

51. The PAC, who provided a Determination Report dated 11 September 2015 when it approved the project, considered that the use of the site was permissible under the existing planning instruments and stated that the four key issues were road access and traffic, noise impacts, air quality and health concerns, and flooding. Whilst it also considered the sufficiency of onsite parking, the visual impacts of the proposed development, the height of stockpiles, access of construction vehicles from Newbridge Road and possible alternative sites for the project, these were not of key concern.

52. As noted at [5] above, Council contends that the key issues are consistency with relevant planning instruments, sewage management, ecology, noise, urban design, air quality, traffic management, flooding, stormwater collection, contamination, flooding, waste management and various geotechnical issues. Benedict’s list of relevant matters is substantially shorter, contending that the Court should consider consistency with the surrounding land use, noise impacts, visual impacts and traffic impacts.

53. However, as the hearing (which occupied 11 hearing days) progressed, it became clear that subject to the proposal being otherwise acceptable, a number of the issues raised by Council and Moorebank could be resolved by granting approval subject to certain conditions. In particular, the parties accepted that the extensive expert evidence from the air quality, geotechnical, contamination and waste management, aquatic ecology and water (sewage, stormwater and flooding) experts meant that, should the proposal be otherwise acceptable, each of these issues could be adequately addressed by the imposition of certain conditions.

54. There was considerable community interest and opposition to the proposal. Detailed written and oral evidence was received from local objectors during the hearing. Most of the objectors’ concerns fell within the discrete issues identified by the parties.

55. Accordingly, having regard to these issues, and the concerns raised by the community, I consider that the four primary issues that require detailed consideration are:

1. first, the planning and community context of the proposed development;

2. second, the traffic management impacts;

3. third, the acoustic impacts; and

4. fourth, the visual/urban design aspects.

56. Whilst it was accepted that if these issues could be appropriately dealt with, the other contentions could be addressed by way of the conditions ultimately agreed to by the relevant experts, because of the level of community concern and the fact that these issues raised legitimate concerns, I also consider it relevant to consider the evidence relating to those issues and in the context of what I consider to be the four primary issues.

Merits review – preliminary matter – issue estoppel – earlier undertaking

57. Before proceeding, it is important to deal with a preliminary matter that was raised by Moorebank regarding issue estoppel and an earlier undertaking given by Tanlane, (and for present purposes Benedict).

58. In opening submissions Moorebank submitted that a number of the planning issues now sought to be agitated by Council and Benedict were addressed and determined in Moorebank’s favour in Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93 in a manner that should influence this Court. Further, it was submitted that Benedict should not be permitted to raise certain contentions (primarily in relation to traffic matters) because of an undertaking given in the Moorebank 88K Proceedings.

59. Moorebank submits:

1. that “most” of the planning issues raised by the Council and Benedict were addressed by Biscoe J and that his Honour’s findings in relation to three distinct matters bind the parties to these proceedings by way of issue estoppel (as per Mirvac Homes Pty Ltd v Parramatta City Council (2000) 111 LGERA 233 at [23]). These three distinct matters are:

1. first, whether a MRF is still “appropriate for the area”;

2. second, whether cl 11 “has anything to say about restricting the period of the use”; and

3. third, whether the approach of the EPA suggesting that, if a residential development is not approved (for the Benedict land), it would be unreasonable not to support the proposed facility because approval for residential development is not guaranteed and that noise mitigation measures could be incorporated in any residential development approval.

2. as a separate matter, as a result of earlier proceedings brought by Tanlane against Moorebank seeking imposition of easements under s 88K of the Conveyancing Act 1919, Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445, the Supreme Court imposed easements (over part of the panhandle for the construction and use of the bridge) on particular terms and conditions (‘Tanlane Easement’) which included:

The owner of the lot benefited [Tanlane] may not interfere with the use of the road, bridge abutment and ramps the subject of the Moorebank Easement without obtaining the written prior consent of the owner of the burdened land [Moorebank], such consent not be unreasonably withheld.

3. further, in Moorebank 88K Proceedings, an undertaking (‘Tanlane Undertaking’) was given by Tanlane, as noted by Biscoe J in orders made in 8 July 2013, as follows:

The Court notes that Tanlane undertakes to the Court and to Moorebank that it will not;

(a)   interfere with the construction, maintenance and use by Moorebank of the bridge, road, bridge abutment and ramps in accordance with the easement imposed pursuant to order 1 above (including for the avoidance of doubt, it will not engage in any activity that would interfere with the future construction, maintenance and use of the bridge, road, bridge abutment and ramps by Moorebank) without the prior written consent of the Council, such consent not to be unreasonably withheld…

4. based upon the above, Benedict is not only prevented from interfering with Moorebank’s use of the road bridge, but from engaging in any activity that would interfere with the “future… use… by Moorebank… of the bridge, road, bridge abutment…”;

5. accordingly, Moorebank submits that the effect of the above, is to impose an obligation on Benedict not to raise issues concerning traffic. By raising those contentions, Moorebank submits that Benedict is adopting a position inconsistent with that taken by it in the earlier Moorebank 88K Proceedings, and it is therefore not open to Benedict to advance a different position in respect of the same matters (that is the proper traffic management of the road bridge); and

6. additionally, it was submitted that Benedict’s contention in these proceedings, that there will be an irreconcilable conflict between Moorebank’s trucks travelling to and from the MRF and the likely traffic from Benedict’s proposed marina and residential development traffic, raises “interferences” with Moorebank’s rights at two levels – first, the proposed marina and residential developments will themselves amount to an interference with Moorebank’s use of the bridge and, second, the conduct of these appeals deprives Moorebank of “the benefit of the bridge” for its intended purpose of operating the facility.

60. Finally, Moorebank submitted that even if the findings (in [59(1)] above) do not “bind” the parties, judicial comity dictates that this Court should follow Biscoe J’s decision unless “convinced that it is wrong” (in accordance with the principles enunciated in Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 at [90]).

61. In response to Moorebank’s position regarding the issue estoppel, Benedict submitted:

1. Moorebank should not be allowed to raise these complaints (and objections) as late as it did – during opening submissions. There have been several iterations of the contentions filed by the parties and several directions and interlocutory hearings when the question of issue estoppel or any other constraint was never raised or, more relevantly, pleaded. Expert evidence (specifically in relation to planning and traffic) has been prepared and exchanged on behalf of all parties and the experts have all produced joint reports without any suggestion there was a concern regarding issue estoppel. In the circumstances, Moorebank should be bound by its conduct and the Court should not entertain any arguments at this late stage;

2. it is clear that Moorebank had brought the Moorebank 88K Proceedings against Council, seeking orders pursuant to s 88K for the grant of an easement over Council’s land to allow the construction of access ramps to the road bridge and were concerned specifically with s 88K and not the matters the subject of these proceedings; the reasons of Biscoe J demonstrated that much of the extensive expert evidence marshalled in those proceedings (including structural engineers, hydrologists, ecologists, traffic experts, acoustic experts, air quality experts, planners and valuers) went beyond “anything that has to be determined in these proceedings”; and

3. it is “plainly apparent” that his Honour did not “conclusively determine” any of the planning issues that are relevant to this Court’s decision in these s 75L objector proceedings. Benedict further submitted that his Honour “went out of his way” to expressly state in the judgment that he was not required to decide such planning issues.

62. In response to Moorebank’s reliance upon the Tanlane Undertaking and the Tanlane Easement, Benedict submits:

1. the Tanlane Undertaking is significantly different to the matters sought to be raised before this Court. There is no breach. It gives the example that Benedict’s contention 5 (as it then was) that there had been “inadequate resolution of the conflict between heavy industrial traffic and future residential/marina traffic” and the matters before Biscoe J where Moorebank was seeking to obtain physical means of ingress and egress to the Moorebank land via the road bridge pursuant to the terms of an easement;

2. it is clear from Biscoe J’s reasoning that the grant of the easement did not restrict the right of the present applicants to object to the MRF in respect of the use of the road and the bridge and the like;

3. Moorebank’s submissions mischaracterise Benedict’s contentions which do not “interfere” with Moorebank’s use of the road and the bridge (even considering that none of the infrastructure has been built). Neither Moorebank nor Benedict can “interfere” with the others “use” of the road and bridge etc. because no such road or bridge exists;

4. further, Moorebank’s submission that the prohibited “interference” goes beyond physical interference and extends to the applicants “interfering” with Moorebank’s future or potential use of the road, should be rejected because in the earlier proceedings, the parties contemplated that both Benedict and Moorebank would be entitled to use the road and bridge and the use was subject to Moorebank obtaining the necessary consent for its MRF; and

5. the use of the word “interfere” in both the easement and the undertaking was to be interpreted in accordance with the concept of interference with an easement, namely, that, to constitute an actionable interference, it must be a substantial interference with the enjoyment of the rights created by the easement.

Consideration

63. The “place” of issue estoppel in Australian law has been relatively recently considered by the High Court in Tomlinson v Ramsey Food Processing (2015) 256 CLR 507 at [20]-[22] (Tomlinson) where the following was stated:

[22] Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. …The second form of estoppel is almost always now referred to as “issue estoppel“. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies“. The third form of estoppel is now most often referred to as “Anshun estoppel“, although it is still sometimes referred to as the “extended principle” in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. … The extended form has been treated in Australia as a “true estoppel“ and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument. [Footnotes omitted and emphasis added.]

64. I find that both Benedict and Council are entitled to advance contentions and call evidence relating to traffic and other impacts. The words of the Tanlane Easement and the Tanlane Undertaking (referred to at [59] above), and the conduct of the Moorebank 88K Proceedings, do not prevent the issues being raised by the applicants in these proceedings for the following reasons:

1. the “interfere” constraint on Benedict in the undertaking should be considered to refer to the concept of interference with an easement, namely, that to constitute an actionable interference, it must be the result of a substantial interference with the enjoyment of the rights created by the easement. The manner in which the Court has dealt with such an interference is clear (see Powell v Langdon (1944) 45 SR (NSW) 136-139 per Roper J; Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 at [25] per Brereton J). Exercising a right to appeal pursuant to s 75L of the EPA Act is a right specifically granted to an objector (being a person who has made a submission under s 75H by way of objection to an application for approval under Pt 3A);

2. the findings of Biscoe J do not bind the parties to these proceedings by way of issue estoppel because his Honour did not, in my view, make findings on any town planning issue in any sense other than that which was required to deal with the required considerations pursuant to s 88K;

3. I do not accept Moorebank’s submissions that his Honour was “required to decide and in fact decided” the three matters noted at [59] above as, again I find that, on a considered reading of the decision of Biscoe J, it is clear that his Honour was primarily focused upon the consideration of the matters required pursuant to s 88K;

4. I do not accept the position that the concept of judicial comity arises because, as I have found above, his Honour was not considering the three matters (nor necessarily resolving similar issues) as a “step in reaching the determination” (Tomlinson at [22]) in a planning sense but rather was looking at the matters for the purpose of s 88K;

5. finally, although Moorebank raised the fact of the Moorebank 88K Proceedings in its Statement of Facts and Contentions in Reply (filed 11 January 2016), it was not suggested (nor pleaded) that those proceedings raised any concern regarding issue estoppel or a potential restraint flowing from the Tanlane Easement or the Tanlane Undertaking. In circumstances where expert traffic (and other) evidence, including conclaves and joint reports had been marshalled by all parties, the failure of Moorebank to raise the question of issue estoppel until the first day of the proceedings and then attempt to exclude expert evidence leads me to the view that Moorebank should be bound by its conduct and the Court should not entertain the issue estoppel argument at such a late stage.

65. After the conclusion of the hearing, Moorebank and Benedict each provided further submissions in relation to whether this Court or the Supreme Court is the appropriate forum to determine the suggested breach of the Tanlane Undertaking, bringing to my attention the very recent decision of the Court of Appeal in Young v King [2016] NSWCA 282. In light of my findings above, it is not necessary to determine this issue.

Merits review – planning and community context

66. As noted at [5] and [6] above, the primary planning issue relates to the incompatibility of the proposal and the existing and future land use of the locality and with the objectives of the E2 – Environmental Conservation zone under LLEP 2008.

67. Expert town planning evidence was adduced by Benedict, who retained Paul Mitchell, Council who retained Deborah Laidlaw, and Moorebank who retained Neil Kennan. Each expert provided an individual report, and together produced a joint report and gave oral evidence. Mr Kennan also provided an addendum to his individual report. Although the planning experts dealt with some aspects outside the identified contentions, I shall consider their broader evidence.

Planning instruments

Legislative objects

68. Ms Laidlaw and Mr Mitchell variously took the position that the development was contrary to the legislative objects of the EPA Act, and also contrary to both the aims of LLEP 2008 and the objects of the E2 – Environmental Conservation zone. Mr Kennan did not agree.

69. With regard to the relevant legislative objects of the EPA Act, s 5 provides:

5 Objects

The objects of this Act are:

(a)   to encourage:

(i)   the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii)   the promotion and co-ordination of the orderly and economic use and development of land,

…

(vi)   the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and

(vii)   ecologically sustainable development.

70. Mr Mitchell stated that the proposed development does not represent the proper management, development or conservation of natural and artificial resources, and as such fails to promote the social and economic welfare of the community, given its social impacts on the surrounding areas.

71. Both Ms Laidlaw and Mr Mitchell stated that the proposed development did not promote or coordinate the orderly and economic use and development of the site, as it is incompatible with the surrounding, existing and proposed land uses. Ms Laidlaw also opined that the proposed development was so inappropriate that the costs of resolving the conflict between land uses would not be outweighed by the benefits of developing the MRF. Mr Kennan, however, stated that there were significant economic benefits of developing a MRF, and that orderly and acceptable use could be achieved by the imposition of adequate conditions.

72. Mr Mitchell further stated that the proposed development failed to protect the environment, and raised a number of issues which had not been addressed in prior ecological studies of the site.

73. Mr Mitchell finally stated that the development did not abide by any of the four principles of ecologically sustainable development. However, Mr Kennan was of the opinion that the proposed development was consistent with the principles of ecologically sustainable development.

74. Having regard to their opinions in relation to these matters and having considered the statutory and non-statutory policies referred to further below, I find that:

1. with regard to intergenerational equity, which requires that the present generation ensures that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations, I find that whilst there may be some impacts, the proposed development would provide an environmental benefit through the recovery of concrete, brick, asphalt, sandstone and sand from the waste stream for the building and construction industry in the Sydney metropolitan area. I also find that the proposed development would divert building and construction waste from the waste stream which might otherwise have been directed to landfill, thus reducing environmental impacts to existing landfill operations, assisting in extending the lifespan of such landfill operations and assisting in stalling the need for the creation of new landfill sites;

2. with regard to orderly and economic use of development of land and improved valuation, pricing and incentive mechanisms, I do not accept Mr Mitchell’s opinion that environmental factors “particularly amenity impacts for future residents” have not been properly considered in the costs and benefits of the facility and I accept the opinion of Mr Kennan that the proposal would provide incentives to recycle waste rather than dispose of that waste to landfill and this itself will provide an economic incentive to recycle waste;

3. with regard to the precautionary principle, which requires that if there are threats of serious or irreversible environmental damage, a lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation, the proposed conditions of development (dealt with below) represent adequate measures to meet any threats of serious or irreversible environmental damage, and address Mr Mitchell’s concerns regarding the “serious environmental damage to the amenity of the surrounding residential area”; and

4. with regard to the conservation of biological diversity and ecological integrity, I accept, on the detailed evidence reviewed below, that while there may be some potential impacts to biological diversity and ecological integrity which are unknown, the potential for operational indirect impacts has been appropriately addressed in the expert material.

75. With regard to LLEP 2008, the relevant legislative aims are:

1.2 Aims of Plan

…

(2)   The particular aims of this Plan are as follows:

(a)   to encourage a range of housing, employment, recreation and services to meet the needs of existing and future residents of Liverpool,

(b)   to foster economic, environmental and social well-being so that Liverpool continues to develop as a sustainable and prosperous place to live, work and visit,

(c)   to provide community and recreation facilities, maintain suitable amenity and offer a variety of quality lifestyle opportunities to a diverse population,

…

(e)   to concentrate intensive land uses and trip-generating activities in locations most accessible to transport and centres,

(f)    to promote the efficient and equitable provision of public services, infrastructure and amenities,

(g)   to conserve, protect and enhance the environmental and cultural heritage of Liverpool,

(h)   to protect and enhance the natural environment in Liverpool, incorporating ecologically sustainable development,

(i)    to minimise risk to the community in areas subject to environmental hazards, particularly flooding and bush fires,

(j)    to promote a high standard of urban design that responds appropriately to the existing or desired future character of areas.

76. Ms Laidlaw took the position that the proposed development was contrary to each of these aims and the zone objectives noted below, primarily due to the impact that the MRF would have on the surrounding community. In particular she opined that the proposal was contrary to the social wellbeing of future residents, by reason of the increased isolation likely to arise by interposing a regular flow of heavy vehicle movements along the northern section of Brickmakers Drive and along the main gateway to the area immediately north of the site. Further, she stated that the proposal is likely to discourage use by Georges Fair and Moorebank residents of existing and new recreational facilities along the Georges River, and to that extent, the use is inconsistent with efficient and equitable provision of public amenities.

77. Whilst accepting that the proposal had benefits in terms of ecologically sustainable development objectives, she maintained that the proposal had significant disbenefits by entrenching a high impact industrial use that “…effectively precludes any realistic prospect that this [site] will ever be restored as part of the riparian zone of the Georges River”. Finally, she opined that through both on and off site impacts, the proposed MRF presented a land use that is fundamentally inconsistent with the aim of achieving a higher standard of urban design that responds appropriately to the existing and desired future character of the area. She opines that this aim would not be such a problem if the MRF was to be located in a remote non-urban area or within an industrial area, however, it is a significant problem given the “higher amenity expectations” raised through the underlying zoning and desired future character both at the site and the surrounding residential, recreational and public reserve land uses.

76. Mr Mitchell generally agrees with Ms Laidlaw and opines, more generally that the proposal was “fundamentally at odds with the planning for the area”.

77. Conversely, Mr Kennan considered that only subcls (h) and (i) were of some direct relevance. In particular, in regard to the sustainability of the proposed development, Mr Kennan referred to various policies such as the NSW Waste Avoidance and Resource Recovery Strategy 2014-21, the “objectives and targets” of which include the avoidance and reduction of waste regeneration, the increase in recycling, the diversion of waste from landfill, the better management of problem wastes and the reduction in litter and reduction in illegal dumping. Mr Kennan opines that the proposed MRF would provide an effective means of achieving those policy objectives. Mr Kennan also stated that the proposal would reduce haulage distance and time for recycled products, reduce the number of trucks on some metropolitan roads and provide cost savings to the industry. He further supports his opinion by reference to Sch 2 of the Environmental Planning and Assessment Regulation 2000 (NSW), which provides parameters for assessment with regard to the principles of ecological sustainable development.

78. Mr Kennan also opined that there are significant economic benefits to be had by the establishment of the proposal and, with appropriate conditions in place, the proposed use would encourage the orderly and economic use of the site.

79. The planning experts also considered the zone objectives, noting that the site is zoned E2 – Environmental Conservation. Under LLEP 2008, the objects of the E2 zoning are:

To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

To enable the recreational enjoyment, cultural interpretation or scientific study of the natural environment.

82. There was controversy as to the weight to be attributed to these objectives considering the fact that a MRF is permissible with consent pursuant to cl 11 of Sch 1 of LLEP 2008 and the operation of s 75R(3) of the EPA Act.

83. Mr Kennan opined that the proposed development was consistent with these objectives as it would at the least not prevent those objects from being realised. Conversely, Ms Laidlaw and Mr Mitchell adopting their positions summarised above, took the position that the proposed development was incompatible with the E2 zoning, as whilst the present site, a capped landfill, does not have high ecological, scientific, cultural or aesthetic value, the proposal does not seek to develop the site in a way that restores those values. Further, Ms Laidlaw stated that the proponent has not reconciled the fact that the development of a MRF would effectively prevent recreational enjoyment, cultural interpretation or scientific study of the natural environment.

84. I find that the proposed development does not fit comfortably within the objects of the E2 zoning under LLEP 2008 and with a number of the aims of LLEP 2008. It is clear that any MRF with the capacity to process 500,000 tonnes of construction waste per year that involves up to 324 truck movements per day does not necessarily enable the use of the land for an environmental purpose, and does not seek to protect, manage or importantly restore the environmental value of the land. I do note however that there will be benefit flowing from the proposed remediation measures to be adopted.

85. However, I also consider this to be of limited weight. Whilst the Court must have regard to planning instruments pursuant to s 39(4) of the Court Act, as I have noted at [47] above, it is not bound by local environmental plans pursuant to s 75R(3) of the EPA Act (Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 at [77]-[85]; Bulga at [48]-[49]; Ironside at [25]).

86. Even if the aims of LLEP 2008 and objectives of the E2 – Environmental Conservation zone are taken into account it would not necessarily lead to the conclusion contended for by Mr Mitchell and Ms Laidlaw. No part of the land proposed for development could be said to be in an area of “high ecological, scientific, cultural or aesthetic” values nor could it be said that the proposed MRF might adversely impact upon those values. As noted below in relation to the evidence of the various ecological and contamination experts, it is clear that there is agreement amongst those experts that the proposal would not have adverse environmental outcomes subject to the imposition of the extensive conditions agreed between those experts. This is particularly so in relation to the extensive conditions that require ongoing monitoring and validation.

87. In relation to Ms Laidlaw’s concerns regarding the impact of the MRF on the surrounding community and in particular the social wellbeing of present and future residents and the use of existing and “new recreation facilities along the Georges River” as well as the on and off site impacts, I find that with appropriate conditions and environmental safeguards including ongoing monitoring, the MRF is not fundamentally inconsistent with the aims of the plan.

88. Furthermore, the various waste policies, such as the NSW Waste Avoidance and Resource Recovery Strategy 2014-21 and the legislation such as, initially, the Waste Minimisation and Management Act 1995 (NSW) and later the Waste Avoidance and Resource Recovery Act 2001 (NSW) have improved awareness of waste management, and seek to encourage the avoidance of unnecessary resource consumption. Further, the Waste Avoidance and Resource Recovery Act 2001 (NSW) has as its policy objectives, the encouragement of the most efficient use of resources and the reduction of environmental harm in accordance with the principles of ecological sustainable development and, inter alia, the minimisation of the consumption of natural resources and the final disposal of waste by encouraging the avoidance of waste and the reuse and recycling of waste. I accept Mr Kennan’s evidence that the proposed MRF will provide an effective means of assisting in reduction of the total waste stream to landfill through recovery and recycling. I also note, and accept, the analysis of NSW Waste and Avoidance and Resource Recovery Strategy 2014-21 under the heading “Strategic and Statutory Context” in the Secretary’s EAR.

89. I note Ms Laidlaw’s evidence that these “macro” benefits could be achieved by locating the MRF in a more appropriate environment (such as designated industrial areas). However, first, this does not reduce the proposal’s likely contribution to the waste hierarchy and second, while there may be more appropriate locations, this does not suggest that the current location is inappropriate if, as I have found, appropriate safeguards as to environmental and amenity concerns can be addressed.

90. In any case, apart from s 75R(3) of the EPA Act, it is clear when the objects of the E2 zone are read in the context of cl 11 of LLEP 2008 that Council, the drafter of the instrument, (then) intended that a MRF could be developed on the land regardless of the zoning of that land. As such, I find that the fact that the proposed development may contravene one or more of the objects of its zoning to be of marginal weight.

91. In addition, I accept Moorebank’s submission that there are substantial remediation works to be undertaken on the site as part of the Remedial Action Plan prepared by Dr Sophie Wood (and accepted by the contamination and waste management experts – see [194]-[201] below). Further, I accept that the remediation of the site is unlikely to occur but for this proposal.

Permissible uses

92. The proposed MRF is permissible with consent as a result of the operation of cl 11 of Sch 1 of LLEP 2008. At hearing there was no suggestion that a MRF was not permissible.

93. I note that submissions were earlier made that this is not the case, and that cl 11 is (for want of a better phrase) a “sunset clause” restricting the operation of any MRF on the site. This is an incorrect interpretation of the provision. Where the language of a provision has a clear natural and ordinary meaning, there is no need to look beyond the text of the instrument: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161-162; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.

94. To the extent that cl 11 only prohibits approvals being granted after 1 September 2018, Ms Laidlaw relying on the planning history was of the opinion that this still “raises a flag” for any consent authority regarding whether the proposed development would be appropriate after this date. Mr Kennan disputed this, and stated that the planning history of the site was of “virtually zero” value, and that the “sunset” date on the granting of the consent did not have any implications for the appropriateness of developing a MRF at the site.

95. Benedict and Council submitted that it is not how cl 11 is interpreted that is relevant, but how it is applied and submitted that the effect of cl 11(3) (generally in accordance with the evidence of Ms Laidlaw) was to rezone the site, therefore the Court should accept that from September 2018 a MRF is not only impermissible but that such use after that date is incompatible with residential development in the locality. They further submit that this was a deliberate intention of the drafter (and Council) to restrict such use given the residential and other land uses on the land to the north of the site, and that cl 11 was drafted to give “maximum flexibility” to a consent authority such that the present proposal should not be permitted and, in the alternate, the use of the site as a MRF should be subject to a sunset clause.

96. There was extensive evidence called in relation to planning history. Given my findings above, specifically in relation to cl 11, I have not placed weight upon the planning history. My reasons may be briefly stated.

97. First, because I consider it clear that cl 11 expressly permits development for the purposes of a “resource recovery facility” other aspects of LLEP 2008 must be regarded with some caution (irrespective of s 75R(3) of the EPA Act). As such I do not consider it appropriate to give significant weight to the objectives of the E2 – Environmental Conservation zone.

98. Second, the land is in effect zoned specifically for the development now proposed. Moorebank submits that the proposal should not be considered an “industrial development within a residential area”. This is because it says the proposal will be separated from recreational uses, either by distance, landscaping or acoustic amelioration and it is a question to be determined whether that which is proposed would avoid (or appropriately manage) the very conflicts which the applicants’ planners say demonstrates incompatibility. Moorebank submits that those matters require examination of the technical evidence to be considered in the light of the design of both the proposed plant and the access arrangements, and are not addressed by the suggestion that the zoning of the land was some form of “historical mistake”.

99. I also do not consider it necessary to consider in detail the planning history nor to consider the reasoning of Biscoe J (Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93) where his Honour rejected an argument that cl 11 should be considered as restricting the use of a MRF on the subject site to a limited period.

Other development controls and policies

100. The planning experts raised other policies and plans. I have considered these including LDCP 2008 however it does not relate directly to the site itself, aside from the panhandle. Rather, Pt 2.3 relates to Georges Fair (up to the western boundary of the site), whilst Pt 2.10 relates to “Moorebank East”, being the Benedict land and the panhandle to the north of the site. Pt 2.15 applies to the New Brighton Golf Course, to the south of the site.

101. As noted at [87] above, the Secretary’s EAR and Mr Kennan also raised the “NSW Waste Avoidance and Resource Recovery Strategy 2014-21”, which has the general target of increasing the amount of waste, including construction and demolition waste that is recycled. The Secretary’s EAR also recognised that the project is “in line” with the NSW Government’s Waste Avoidance and Resource Recovery Strategy 2014-21, which aims to improve resource recovery in all waste sectors including construction and demolition waste as well as the Government’s A Plan for Growing Sydney.

102. I note the following extracts from the Secretary’s EAR:

The supply of aggregates faces significant challenges in Sydney with the depletion of natural extractive materials from existing sites such as Penrith Lakes Scheme, and the conflicts and constraints associated with development of new resources within the metropolitan region. The recovery of aggregates and sand from demolition waste and its use as a substitute to reduce the demand for natural resources is an important outcome for growth under the NSW Government’s A Plan for Growing Sydney.

The site is strategically well located for a construction material recycling facility. By road it is about 4.5 km from the M5 Motorway and roughly mid-way between central Sydney, which is a major source of demolition waste, and the South West growth centre, which is identified as a future growth area in A Plan for Growing Sydney, and is a significant potential future market for the recycled product. Recycling facilities of this kind will become increasingly important as natural material quarries in the metropolitan area close without being replaced. Further, proposed development is fully permissible under the Liverpool Local Environmental Plan 2008 and it is compatible with the site’s previous use as a landfill site.

…

103. Further,

The [Waste Avoidance and Resource Recovery Strategy] identifies waste and resource recovery facilities as an essential service in the community. It states that opportunities to improve recycling in the construction and demolition sector are linked to the cause of contamination in many construction site soils. Facilities that recover and recycle building and demolition waste such as concrete, sand and aggregate are an important component of improving recovery performance in the sector.

…

The proposed project at Moorebank has the potential to supply [the south west growth centre] with recycled aggregates and sand. As it is well located close to both the source and destination of the material, the facility would also reduce reliance on transport of natural materials from more distant sources or sources outside of the metropolitan region.

104. Mr Kennan stated, and I find, that the development of the MRF will generally assist to achieve these goals.

The existing and future locality

105. The planning experts raised other policies and plans. I have considered those, including the agreed that the desired future character of the locality was one characterised by residential, environmental protection and recreational land uses. As noted above, Ms Laidlaw and Mr Mitchell opined that whilst there would have been a sound planning rationale in allowing a MRF to operate whilst the surrounding locality transitioned away from its previous industrial uses (as illustrated by the time limitation until 1 September 2018), this has now ceased given that the area is largely characterised by residential, conservation and recreational land uses. Mr Kennan, however, took the position that the time restriction was put in place only so that issues relating to site access could be adequately resolved, and that the MRF with appropriate controls in place, was compatible with the existing and future surrounding locality. I now consider the surrounding areas in more detail.

The Georges River

106. To the east of the site is some woodland on the western bank of the Georges River. There is also open, unused land to the east of the River. Whilst the eastern shore of the Georges River is slated for residential redevelopment, this has not yet occurred. In relation to the areas east of the site, the environmental concerns have been dealt with by the various experts, I consider that to the extent that these can be managed by the imposition of conditions dealt with below, there is no inconsistency between the proposed MRF and the existing or future uses to the east of the site.

Benedict land

107. To the north of the site is the Benedict land (in which definition I have combined the RE2 land immediately to the north of the site and the R3 land further to the north). Whilst it still has the character of a sand extraction quarry, its use for a considerable period of time, it has been rezoned to RE2 – Private Recreation in the south and a strip heading to the northeast, and R3 – Medium Density Residential further to the north and northwest.

108. Benedict received approval on 29 September 2016, less than a fortnight before the hearing commenced, to develop a marina (and associated development) in the southern portion of the land zoned RE2, which includes a large, manmade lake on which boats could be moored. Importantly, this rectangular building is designed so that it fronts onto the manmade lake to the east, and generally backs onto the panhandle. Whilst a development application has been lodged to amend this consent to allow some residences to be constructed as part of the marina complex, this is not a permissible use under LLEP 2008, and has not been approved or disapproved. Benedict also intends to develop a subdivided housing complex on its R3 land – a proposal for which it does not yet have approval.

109. Whilst there is no evidence other than commentary from Mr Mitchell that would allow a finding that the industrial use of the Benedict land has ceased, the planning and acoustic experts agree, and I find, that some weight needs to be given to the zoning of the Benedict land. However, the amount of weight was disputed by the experts.

110. With regard to the RE2 land immediately to the north of the site, the experts agree that the fact that a consent to develop a commercial marina has been granted, should be taken into account. However, there is dispute as to whether the proposed amendments to the consent to allow residential development should be considered in the proceedings. Mr Mitchell stated that on the balance of probabilities (and given its consistency with strategic planning objectives) it was “much more likely than not” that Council would rezone the RE2 land to allow such (residential) development. Conversely, Ms Laidlaw and Mr Kennan stated that limited weight should be given to the proposed residential development on the marina, as such a use is presently prohibited on land zoned RE2, and there is no confirmation that the land is to be rezoned. In particular, Ms Laidlaw stated during cross examination that whilst residential development at the marina was “on the face of it a suitable use, and to some extent a likely use”, it could only be given limited weight until a draft amendment to LLEP 2008 had been exhibited.

111. With regard to the R3 land further to the north of the site, Ms Laidlaw and Mr Mitchell opined that considerable weight should be given to this zoning, and that the development of a MRF would be inconsistent with the residential use of this land if such a residential use was to be realised. In particular, Mr Mitchell stated that a development application for a retaining wall, which was the first step in the development process for this land, had earlier been approved (although it is noted that this consent has subsequently been the subject of legal proceedings and surrendered), and that a further development application was likely to be lodged in the near future. All experts also accepted that residential development within the Benedict land was consistent with Pt 2.4 of LDCP 2008. As discussed below the primary issue with regard to the impact of the MRF on the R3 land concerns the likely noise impact from the truck movements.

b)   refer to the requirements in relation to inspection of capping materials for asbestos (section 6.3.1.1);

c)   amend Table 8.1 to identify the supervision/inspection requirements for identification of Unsuitable Waste Material with reference to the Unexpected Finds Procedure (section 6.3.13);

d)   include requirements for characterisation of existing soil stockpiles (section 6.3);

e)   include validation soil sampling frequency for capping materials located beneath existing soil stockpiles that do not comply with the chemical criteria for Suitable Capping Material (section 6.4.2); and

f)   the draft Operations EMP should be amended to include an increased monitoring frequency on leachate head for a short period of time following development, for example 1 year.

C32B.   The Proponent shall carry out the Project in accordance with the Remedial Action Plan (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary.

Construction Environment Management Plan

D1.   Prior to commencement of construction of the Project, the Proponent shall prepare a Construction Environmental Management Plan for the construction of the Project to the satisfaction of the Secretary. The plan must:

a)   be prepared by a suitably qualified and experienced expert or team of experts;

b)   be submitted to the Secretary for approval no later than 4 weeks prior to the commencement of construction of the Project, or within an alternative timeframe agreed to in writing by the Secretary (see Condition D3 for management plan requirements);

c)   identify the statutory licences, permits and approvals that apply to the Project;

d)   include a copy of all relevant management plans and monitoring programs relevant under this approval;

e)   incorporate all relevant management and mitigation measures outlined in Appendix C of this approval;

f)   outline all environmental management practices and procedures to be followed during construction and demolition works associated with the Project;

f)   describe all activities to be undertaken on the site during construction of the Project, including a clear indication of construction stages;

h)   detail how the environmental performance of the construction of the Project will be monitored, and what actions will be taken to address identified adverse environmental impacts and issues, including (but not limited to):

•   air quality (see conditions C3 to C8A);

•   noise and vibration (see conditions C9 to C16);

•   traffic and transport (see conditions C17 to C24A);

•   soil and water (see conditions C25 to C32B);

•   visual amenity (see conditions C34 to C36);

•   flora and fauna (see conditions C37 and C38);

•   heritage (see condition C39);

•   fire, flood and emergency response (see conditions C40 to C42A); and

•   earthworks environmental management plan in accordance with the Remedial Action Plan (as revised and approved by the Secretary from time to time).

i)   describe the roles and responsibilities for all relevant employees involved in construction and demolition works associated with the Project;

j)   include arrangements for community consultation at key stages of the Project;

k)   include a complaints handling procedure during construction, demolition and operation; and,

l)   include appropriate procedures to allow the regular review of the requirements of each plan to ensure that they are effective and allow for adaptive management to address contingencies that may arise over the life of the Project.

The approval of a Construction Environmental Management Plan does not relieve the Proponent of any requirement associated with this approval. If there is an inconsistency with an approved Construction Environmental Management Plan and the conditions of this approval, the requirements of this approval prevail.

D1A.   The Proponent shall carry out the Project in accordance with the Construction Environmental Management Plan approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary.

Management Plan Requirements

D3.   The Proponent shall ensure that the management plans required under this approval are prepared in accordance with any relevant guidelines, and include:

a)   detailed baseline data;

b)   a description of:

•   the relevant statutory requirements (including any relevant approval, licence or lease conditions);

•   any relevant limits or performance measures/criteria; and

•   the specific performance indicators that are proposed to be used to judge the performance of, or guide the implementation of, the Project or any management measures;

c)   a description of the measures that will be implemented to comply with the relevant statutory requirements, limits, or performance measures/criteria;

d)   a program to monitor and report on the:

•   impacts and environmental performance of the Project; and

•   effectiveness of any management measures (see (c) above);

e)   a contingency plan to manage any unpredicted impacts and their consequences;

f)   a program to investigate and implement ways to improve the environmental performance of the Project over time;

g)   a protocol for managing and reporting any:

•   incidents;

•   complaints;

•   non-compliances with statutory requirements; and

•   exceedences of the impact assessment criteria and/or performance criteria; and

h)   a protocol for periodic review of the plan; and

i)   an Operations Environmental Management Plan in accordance with the Remedial Action Plan (as revised and approved by the Secretary from time to time).

Aquatic ecology

203. Expert ecological evidence was adduced by Council, who retained Dr Paul Anink, and Moorebank who retained Dr David Robertson.

204. Dr Anink was concerned that the proposed potential impacts with respect to aquatic ecology had not been adequately addressed prior to the granting of approval for the proposal in September 2015 and that the following matters were inadequately addressed in the environmental assessment and supplementary reports produced in support of the application:

1. description of the existing aquatic environment, including groundwater dependent ecosystems;

2. assessment of the potential impacts in relation to surface and groundwater flows, particularly in relation to impacts of the Georges River; and

3. management and mitigation of potential stormwater and flood impacts, including potential drainage impacts on the aquatic environment both on-site and off-site.

205. Dr Robertson had agreed that additional investigation was required in relation to the extent of aquatic ecology habitats on the site and the potential for discharges of surface and groundwater to impact on these habitats, and had prepared further material addressing these matters.

206. In the joint expert report, Dr Anink acknowledged that Dr Robertson’s report addressed his concerns. They further agreed that any potential impacts on aquatic habitats, including in groundwater dependent ecosystems, could be mitigated through the development and implementation of management plans and their associated control measures.

207. Dr Robertson and Dr Anink therefore proposed conditions of consent and agreed that, should the development be approved, it should be subject to the following conditions of consent to mitigate potential impacts of the development on aquatic habits:

Aquatic Ecology Construction Environment Management Plan

C37B.   Prior to commencement of construction of the Project, the Proponent is to prepare an Aquatic Ecology Construction Environment Management Plan (CEMP) that details how potential construction impacts on aquatic habitats and associated biota are to be avoided, minimised or mitigated, to the satisfaction of the Secretary. The Aquatic Ecology CEMP is to include a water quality monitoring program and a Trigger Action Response Plan (TARP) to achieve the aim of minimising aquatic ecology impact. Within the CEMP the Proponent is to provide the following additional base-line aquatic ecological and water quality data against which potential construction impacts and potential operational impacts or improvements can be assessed:

a)   mapping of sub-catchments and the interrelationship of drainage lines, and mapping of all ponded water bodies surrounding the development site and the panhandle easement, bounded by Newbridge Road and the Benedicts site to the north, Brickmakers Drive to the west, Georges River to the east and New Brighton Golf Club to the south;

b)   accurate mapping of surface expressed aquatic habitats of the receiving waters as defined in (a) including reed beds, freshwater and tidal bogs, fresh or brackish ponded waters and estuarine intertidal habitats (mangroves and saltmarsh);

c)   mapping of the surface water interconnections of the identified habitats with each other, with the Development Site, the Northern Creek, Georges River and Brickmakers Drive Urban development discharges to the ponded waters west of the Site, including a discussion of impediments to flow and potential fish passage between habitats;

d)   mapping to include sufficient survey (height and location) data to determine:

i.   basic dimensions of the water bodies or bogs that support the identified aquatic habitats;

ii   depth in relation to surrounding surveyed land heights;

iii   the uppermost limits of tidal inundation during dry-weather king times and under minor flood conditions in the lands between the Site and the Georges River;

iv   the permanence of water bodies including their overall response to varying weather conditions (wet, prolonged-dry and flood) and varying groundwater levels;

v   the ability of ponded and interconnecting waters to support fish and/or provide fish passage between each habitat and the river; and

vi   their overall relationship to groundwater levels; and

e)   assessment of the range of water quality of the identified receiving surface-expressed water bodies identified and mapped for (a) and (b) under dry (stressed and possibly disconnected) conditions and under wet (well connected) conditions, to include physical parameters, nutrients and selected heavy metals as identified in groundwater studies.

C37C.   The Proponent shall carry out the construction of the Project in accordance with the Aquatic Ecology CEMP approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary

Aquatic Ecology Operational Environment Management Plan

C37D.   Prior to commencement of operation of the Project, the Proponent is to prepare an Aquatic Ecology Operational Environment Management Plan (OEMP) that details how potential operational impacts on aquatic habitats and associated biota are to be avoided, minimised or mitigated, to the satisfaction of the Secretary. The Plan is to include a Trigger Action Response Plan (TARP) to achieve the aim of minimising aquatic ecology impact. Mitigation is to include management measures to improve water quality and interconnection of the identified habitats, and management options to protect and enhance the aquatic ecology of the surrounding aquatic habitats and associated biota. The Aquatic Ecology OEMP is to include a water quality and aquatic ecology monitoring program that will be able to demonstrate no operational impact and that can demonstrate net improvements in aquatic habitat water quality following implementation of management options.

C37E.   The Proponent shall carry out the Project in accordance with the Aquatic Ecology OEMP approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary

Water (sewage, stormwater and flooding) management

208. Expert water management evidence was adduced by Council, who retained Dr Daniel Martens, and Moorebank who retained Dr Steve Perrens.

209. Dr Martens opined that the proposal’s potential impacts with respect to sewage, stormwater and flooding had not been adequately addressed prior to the granting of approval in September 2015. In particular, the following matters were inadequately addressed:

1. sewage: the specifications of the proposed sewage storage tank for the site. This included the adequacy of calculations and information relied upon to determine the tank’s size, configuration, location and installation, as well as the assessment of risk associated with the tank’s operation and management via a pump-out system;

2. stormwater management: the generation of stormwater flows from the proposed access driveway, the management and treatment of stormwater flows to receiving waters, and the adequacy of the proposed stormwater management plan in relation to the identification and management of pollution events should these occur; and

3. flooding: the requirement for a flood impact assessment, consideration of potential impacts arising from climate change, the adequacy of the previously approved bund walls for the site, and the assessment of risks within the evacuation plan prepared for the proposed development.

210. In their joint report, Dr Martens and Dr Perrens agreed that, having jointly conferred and having considered further detailed material prepared on behalf of Moorebank;

1. the proposal for a pump-out sewage management system on-site could be made to work safely for the development as proposed;

2. a stormwater management system could be designed to mitigate the potential stormwater impacts of the proposal, and to maintain the water quality in receiving environments surrounding the site;

3. “significant further” information had been provided in respect of flood risk and flood risk management;

4. the proposed land filling activities on site would not give rise to potential adverse impacts from flooding on surrounding environments or neighbouring properties; and

5. potential impacts associated with climate change were unlikely to result in material differences in modelled flood scenarios for the site.

211. The experts agreed that, should the project be approved, the following conditions of consent should be included to mitigate potential impacts of the proposal in relation to sewage, stormwater and flood management:

Sewage Management

C29.   Prior to the commencement of operation of the Project, the Proponent shall prepare an on-site sewage management system design for the Project to the satisfaction of the Secretary. The design must be prepared in accordance with the following requirements:

a)   wastewater collection tank(s) should have a minimum total capacity of 20KL;

b)   ideally, the wastewater tank(s) should include a baffle to assist with solids separation;

c)   all wastewater tank infrastructure should be founded on driven pile footings in order that they will not impact the integrity of the landfill liner system;

d)   wastewater from the collection tanks should be pumped out on a minimum weekly basis;

e)   the collection tank should be fitted with the following alarms which, when actuated, deliver a visible and audible alarm to the site office:

•   first stage high water alarm, which is actuated when the collection tank(s) reaches a capacity of 14KL. When this alarm is actuated, a pump-out service should be ordered within the next day; and

•   second stage high water alarm, which is actuated when the collection tank(s) reach a total capacity of 18KL.

C29A.   The Proponent shall carry out the Project in accordance with the on-site sewage management system design approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary.

Stormwater Management Plan

C31.   Prior to the commencement of construction of the Project, the Proponent shall prepare a Stormwater Management Plan for the Project to the satisfaction of the Secretary. The plan must:

a)   be prepared in consultation with Council and the EPA, and be approved by the Secretary prior to the commencement of construction;

b)   include measures to manage stormwater impacts including, but not limited to:

•   clean water diversion and site separation into clean and dirty surface water areas;

•   sediment detention, water quality control and rainwater harvesting;

•   erosion and sediment control in accordance with Managing Urban Stormwater – Soils and Construction Volume 1 (Landcom, 2004);

•   stabilisation and revegetation of areas of exposed earth; and

•   volume and quality control for any stormwater discharges.

c)   include a detailed Stormwater Management System design consisting of the following key elements:

•   grading within the operational area which provides a minimum grade of 2% to the stormwater collection sumps;

•   four stormwater sumps with a minimum volume of 200 kL each to collect stormwater runoff within the area enclosed by the flood protection bund;

•   a stormwater collection and re-use system comprising of pump-sets in the stormwater sumps and a delivery pipework to the on-site 1,000 kL stormwater storage / re-use tanks;

•   outlets from the stormwater collection sumps to be provided with an oil retention cap and a non-return valve to prevent backflow in the event of a flood;

•   outlets from the stormwater collection sumps to discharge into the perimeter drainage swales to be reconstructed at the outer toe of the perimeter earthworks. These swales are to be constructed as bio-retention swales to provide further treatment of any overflow from stormwater collection sumps;

•   a bio-retention system is to be installed to treat runoff water generated from the carpark located external to the flood protection bund; and

•   in accordance with Councils engineering specifications, incorporating at a minimum:

•   final design levels;

•   locations and specifications for all pit and pipework, pumps and transfer mains, and any ancillary stormwater related infrastructure;

•   engineering drawings and design calculations for all drainage related works.

d)   describe the measures that would be implement to ensure:

•   management of stormwater impacts; and compliance

•   with the relevant condition of this approval and the EPL;

e)   include a Stormwater Monitoring Program to:

•   evaluate the performance of the Project; and

•   support the Stormwater Management System.

C31A.   The Proponent shall carry out the Project in accordance with the Stormwater Management Plan approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary.

Flood Management

C41.   Prior to commencement of construction of the Project, the Proponent shall:

a)   ensure the finished floor level of:

•   the office building is at least RL 6m AHD; and

•   any other building is at least RL 5.5m AHD;

b)   only use building materials that can tolerate repeated immersion in floodwater below RL 6m AHD;

c)   ensure any power point, control panel or other electrical item is installed above RL 6.5m AHD;

d)   implement suitable measures to ensure mobile plant, other equipment, oils, fuels and other consumables are protected and/or secured during flooding; and

e)   implement an early warning flood readiness and evacuation plan for the site.

C41A.   The finished flood protection bund shall be designed such that it is no lower than 6m AHD at the crest.

C41B.   The entry ramp into the bunded area, at its highest point, should not be lower than 6m AHD.

C41C   Prior to commencement of construction of the Project, the Proponent shall prepare to the satisfaction of the Secretary:

a)   a flood risk and evacuation management plan that provides further details for the implementation of the plan that forms Annexure D to Appendix 14 of the Preferred Project Report. This should include details of the driver warning process, location of flood warning signage, site evacuation process, clean-up process, etc; and

b)   certification from an appropriately qualified engineer that the flood protection bunds are capable of withstanding any hydrostatic pressures.

C41D.    The Proponent shall carry out the Project in accordance with the flood risk and evacuation management plan approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary.

Consideration

212. Having considered the detailed evidence and submissions made in respect of air quality, geotechnical, contamination and waste management, aquatic, ecology, water (sewage, stormwater and flooding) management and the impacts of the proposed development, to the extent these issues have been raised as concerns, I am satisfied that they can adequately be addressed by the imposition of conditions of consent.

Consideration of disputed conditions

213. Shortly after the hearing a further document, being an update of Ex 2R3 (“draft without prejudice conditions of approval”) styled “Minister’s Combined Version – 28.10.16” was provided to the Court. This document noted conditions that were agreed, marked up (in various colours) a number of conditions which were not agreed. The document contained short notes as to the parties’ positions.

214. Subject to the parties agreement, I shall substitute that document for Ex 2R3 and note the following:

1. in relation to “Appendix D” (Noise Barrier Plan), the plan references marked in blue on p 3 which provide updated plans for noise barriers in accordance with the evidence, should be adopted;

2. in relation to “Appendix A” (Project Plans), to the extent that the list of drawings and plans on p 3 of the document reflect Ex R58 (“full set of plans for which approval is sought”), that change should be made;

3. in relation to the “Schedule B” (Deferred Commencement Conditions):

1. for the reasons stated above, condition BA is not imposed; and

2. in relation to condition BB, this condition is not imposed as I find that it would have the effect of inappropriately postponing the development and is unnecessary in the light of the noise mitigation measures now proposed by Moorebank.

4. in relation to the “Administrative Conditions”:

1. each of the coloured amendments in B2 should be made;

2. in relation to B4A, this condition is not imposed. There is no proper evidentiary basis for the imposition of any time limitation;

3. in relation to B17, the amendment should be made; and

4. in relation to C9, given the respective responses from Moorebank and Council, the parties are directed to confer in relation to this condition and condition C23.

5. in relation to C11, to the extent that the proposed condition reflects agreement between the noise experts (Ex R41), the amended condition is imposed with the exception of the final two entries in Table 6 being “R3 Zone Tanlane Development” and “Marina Development – Residential areas”. My reasons are:

1. as noted above, the RE2 land (where the marina consent has been granted) is zoned for non-residential uses. It should be assessed on the basis that it is proposed to be used as a mixed commercial/industrial retail use. This position was agreed between Dr Tonin and Ms Greer (and accepted by each of the EPA, the Secretary and the PAC) and assessed on this basis, the appropriate noise goals for those uses are met;

2. as found above, any proposal to incorporate residential uses is presently prohibited, and it is unreasonable to impose upon the current proponent a requirement to design for a use that at the time of determination is not permissible;

3. as noted above, in the event that there were some residential uses to be incorporated in the future, such uses would need to incorporate designs and controls to meet residential goals;

4. in relation to the R3 Zone Tanlane Development, although the present zoning permits residential uses, it is clear from observations during the view of the site, and the evidence, that there is much work required to make it suitable for residential use. As found above, the imminence of the use as residential is not certain;

5. further, as the Minister submitted, “an almost coincident portion of the R3 land will need to be acoustically protected from the marina use as it will need acoustic protection from the Moorebank road use.”; and

6. I accept the further submission of the Minister stating “…consistent with the INP it is not unreasonable to require a later use to accommodate the road noise from the earlier industrial use”.

6. in relation to C13, the condition as proposed by Moorebank should be imposed. Condition 13(f) proposed by Benedict is not imposed as it is not the agreed position of Dr Tonin and Dr Greer and the increase at this receiver is below the 2dBA increase allowed for in the EPA’s Road Noise Policy (‘RNP’) as per evidence of Dr Tonin;

7. in relation to C14, the proposed condition is imposed;

8. in relation to C18, the parties are directed to confer and clarify the condition;

9. in relation to C20A, the condition is not imposed on the basis that there is no compelling evidence to justify the imposition of the condition. The project has been assessed on the basis of 324 truck movements per day;

10. in relation to C20B, this condition is not imposed for the reasons noted above in relation to Deferred Commencement condition BA;

11. in relation to C23(b) the amendment proposed by Moorebank is imposed;

12. in relation to C23(e) the alternative wording proposed by Moorebank (and supported by the Minister) is imposed;

13. in relation to amendments to C24, the amendments proposed by Council and Moorebank are imposed; and

14. in relation to C35A, parties are directed to confer in relation to specific plans the subject of the condition, noting that the plans referred to in C35A(a) and (e) are not reflective of plans presently the subject of evidence (Ex R58).

Conclusion

215. The matters before me have been the subject of significant evidence and debate, and have occupied extensive time and resources on the part of the parties and the Court. The parties have a long history of litigation, and I am cognisant that the objections to the proposed development have been extensive and strongly felt by a number of parties. While I understand and appreciate the legitimate concerns of the objectors, I am required to weigh these concerns against the various benefits arising from the construction and operation of the proposed development, and the fact that a MRF is expressly envisaged in the planning legislation. The result of this careful balancing exercise is that I am satisfied that the proposed MRF should be allowed to proceed provided that its development and operation is subject to strict conditions. I am satisfied the conditions will address the legitimate concerns raised in opposition to the MRF.

Determination

216. I propose to grant approval to the project subject to conditions in accordance with my findings above. The parties are directed to confer and finalise conditions of consent reflecting my findings and provide final conditions to the Registrar by 22 May 2017. In the event that they are unable to agree on all matters I grant liberty to restore the matter for further short hearing in respect of any contested conditions. In the event of agreement and upon receipt of final conditions, I will make final orders in Chambers.

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Decision last updated: 19 May 2017