Multus Pty Ltd as Trustee for the Multus Trust Trading as Maxime v Rockhampton Regional Council
[2016] QPEC 22
•6 May 2016
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Multus Pty Ltd as Trustee for the Multus Trust Trading as Maxime v Rockhampton Regional Council & Ors [2016] QPEC 22
PARTIES:
MULTUS PTY LTD AS TRUSTEE FOR THE MULTUS TRUST TRADING AS MAXIME
(Appellant)
v
ROCKHAMPTON REGIONAL COUNCIL
(Respondent)
&
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS
(First Co-Respondent by Election)
&
CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(Second Co-Respondent by Election)
&
SALLY-ANNE KIRK
(Third Co-Respondent by Election)
&
BAJOOL, MARMOR & DISTRICT RATEPAYERS ASSOCIATION
(Fourth Co-Respondent by Election)
&
EVAN MILES AND MARILYN MURIEL IRELAND
(Fifth Co-Respondent by Election)
&
BRUCE JOHN AND FAY MCCAMLEY
(Sixth Co-Respondent by Election)
&
GEOFF BESCH
(Seventh Co-Respondent by Election)
&
EWEN DAVID BESCH
(Eighth Co-Respondent by Election)
&
COLIN FRANCIS WEEKS
(Ninth Co-Respondent by Election)
&
TREVOR GEORGE OFFORD
(Tenth Co-Respondent by Election)
&
MICHAEL STEPHAN DAHLER
(Eleventh Co-Respondent by Election)
&
CAROLYN JOANNE DAHLER
(Twelfth Co-Respondent by Election)
&
QUEENSLAND ELECTRICITY TRANSMISSION CORPORATION LTD
(Thirteenth Co-Respondent by Election)
FILE NO/S:
178/11
DIVISION:
Planning and Environment Court
PROCEEDING:
Application
DELIVERED ON:
6 May 2016
DELIVERED AT:
Brisbane
HEARING DATE:
28 and 29 April 2016
JUDGE:
Bowskill QC DCJ
ORDER:
The application is dismissed
CATCHWORDS:
PLANNING AND ENVIRONMENT – application to change a development application which is subject of an appeal, to enable the manufacture of ammonium nitrate emulsion, suspensions and gels within part of a proposed explosives storage facility – whether the proposed change is a minor change – whether the change is one that does not result in a substantially different development
Integrated Planning Act1997 (Qld), s 4.1.52(2)(b)
Sustainable Planning Act 2009 (Qld), s 350(1)(d)(i)
Broad v Brisbane City Council and the Baptist Union of Queensland [1986] 2 Qd R 317
Dickson Properties Pty Ltd v Brisbane City Council [2015] QPELR 595
Emaas Pty Ltd v Brisbane City Council [2014] QPELR 579
Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510
Parcel One Pty Ltd v Ipswich City Council [2007] QPELR 474
COUNSEL:
B Job for the Appellant
S Ure for the Respondent
HF McCamley (self-represented) for the Third, Fifth, Sixth, Seventh, Eight, Tenth, Eleventh and Twelfth Co-Respondents by Election
CF Weeks (self-represented) for the Fourth and Ninth Co-Respondents by Election
SOLICITORS:
Anderssen Lawyers for the Appellant
King & Company Solicitors for the Respondent
Introduction
In August 2009 Multus Pty Ltd applied to the Rockhampton Regional Council for a development permit for a material change of use, for the purposes of a proposed “explosives storage facility”, being a “high impact industry”, together with a caretaker’s residence, on land at South Ulam Road, Bajool (the land). The Council refused the application.
In August 2011 Multus lodged an appeal to this court from the Council’s refusal, which is due to be heard in July this year. It is not entirely clear why it has taken so long. Multus has previously sought to make changes to the proposed plans of development, on the basis that they are “minor changes”. Two such changes have already been allowed by the Court, on 19 March 2014 and 5 February 2015, and an order made that the appeal proceed on the basis of the most recent plans (the 2015 plans[1]).
[1] Exhibit 2.
Multus now seeks to make a further “minor change” to its development application, which is the application I am concerned with.[2] The change Multus wants to make is to include, as a component of the use the subject of its development application, the preparation (manufacture) of ammonium nitrate emulsions, suspensions and gels of United Nations Classification 3375 (referred to in the material as ANE), within the parts of the plan of layout depicted as “solutions plants” (that is, areas G and H) on the 2015 plans.
[2] Application filed 17 August 2015.
The current use of the land is for cattle grazing. The surrounding properties are also used for grazing purposes, with a number of the co-respondents being the owners of, and residents of, adjoining or nearby properties,[3] including Mr Weeks (the 9th co-respondent), who appeared for himself, and for the 4th co-respondent at the hearing, and Mrs McCamley (one of the 6th co-respondents), who appeared for herself and the 3rd, 5th, 6th, 7th, 8th, 10th, 11th and 12th co-respondents.
[3] See attachment 1 to Mr Weeks’ statement, exhibit 10.
The land has an overall area of about 230 hectares. The land is roughly rectangular in shape, with a boundary running east-west of about 2 km, and north-south of about 1 km, adjacent to South Ulam Road. The part of the proposed facility most directly affected by the proposed change (areas G and H on the 2015 plans) is about 1 km from the road (to the east); about 1.7 km from the nearest house (which is to the north east); about 758 m from the western boundary, adjacent to Mr Weeks’ property; and only about 40 m from the boundary with the adjacent property to the south, which is owned by the Besch family (which I presume is represented by the 7th and 8th co-respondents).[4]
[4] Affidavit of Mr Cann filed by leave on 28 April 2016; and Mr Cann at T 1-42.
There is already an existing Queensland Government explosives reserve at Bajool, located about 2 km north of the land.
There was no appearance by the 1st, 2nd and 13th co-respondents (various government departments and entities), although I am satisfied they had full knowledge of the application.
The application is opposed by the Council, and the co-respondents who appeared.
A “minor change” – relevant principles
Since the development application was made prior to the commencement of the Sustainable Planning Act 2009, the appeal will be heard and determined under the repealed Integrated Planning Act 1997.[5]However, for the purposes of this application,[6] it is the meaning of “minor change” in s 350 of the SPA that applies.[7]
[5] See s 819(5) and (6) of the SPA.
[6] As to which, see s 4.1.52(2)(b) of the IPA.
[7] See s 821(2)(b) of the SPA.
Relevantly, under s 350(1)(d)(i) a minor change in relation to an application is a change that does not result in a “substantially different development”.[8] There is no definition of that concept in the SPA. It is to be given its ordinary common sense meaning,[9] although there is assistance to be gained from statutory guideline 06/09, made under s 759(1) of the SPA. Changes that are identified in the guideline as some that may result in a substantially different development include changes that:
(a)involve a new use with different or additional impacts;
(b)dramatically change the built form in terms of scale, bulk and appearance;
(c)significantly impact on traffic flow and the transport network, such as increasing traffic on the site; or
(d)introduce new impacts or increase the severity of known impacts.
[8] It was agreed that none of the other sub-sections of s 350(1)(d) are relevant in this case.
[9] Explanatory notes to the Sustainable Planning Bill 2009, p 185.
The guideline is no more than that. The examples given are not exhaustive, nor are they determinative – they are simply some examples of changes that may result in substantially different development, depending on the individual circumstances of the case.[10] The assessment of whether a proposed change would, or would not, result in a substantially different development involves matters of fact and degree, to be considered broadly and fairly, having regard to the overall development application.[11] It is relevant to consider the changes from a qualitative as well as a quantitative perspective;[12] and to consider both tangible and intangible impacts.[13] It has been observed that the court will scrutinise more critically those changes which have the potential to raise new or additional impacts, not dealt with at the development application stage.[14]
[10]Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 at 512C-D; Dickson Properties Pty Ltd v Brisbane City Council [2015] QPELR 595 at [22].
[11]Heritage Properties at 512E; Emaas Pty Ltd v Brisbane City Council [2014] QPELR 579 at [18].
[12] Emaas at [15].
[13]Broad v Brisbane City Council and the Baptist Union of Queensland [1986] 2 Qd R 317 at 320 per Thomas J, at 325 and 326 per de Jersey J, Connolly J agreeing with both. See also Dickson at [21].
[14] Emaas at [15].
As Judge Rackemann observed, in Emaas at [17]:
“The consequence of finding that proposed changes are not minor, in the relevant sense, is not to prohibit the changed proposal. Rather, the changed proposal must, if it is to proceed, be the subject of a new development application, rather than considered, for the first time, in the context of an appeal from the decision on the original application. The utility of insisting on a new development application for a changed proposal is obviously greater where the new proposal has different or increased impacts not previously considered, than where changes merely address impacts that have already been considered, without fundamental change to the subject matter of the application.”
It is uncontroversial that, in considering whether the proposed change is a minor change, it is appropriate to consider the original development application, having regard to the 2015 plans, on the basis of which the appeal will be determined.
Although the question whether the change would be likely to cause a person to make a properly made submission objecting to the proposal is not a part of the statutory meaning of “minor change” under s 350 of the SPA,[15] there was no dispute that the concerns of the surrounding residents, expressed in particular by Mr Weeks and Mrs McCamley, are relevant matters for the Court to have regard to.
[15]Cf the definition of “minor change” in schedule 10 to the IPA; and the definition of “permissible change” in s 367 of the SPA.
What was proposed by the original development application?
As described in the planning report accompanying the original application, the facility was originally intended to include, once fully completed:
(a)a security sensitive ammonium nitrate (SSAN) storage facility, being open air storage in tarpaulin covered stacks;
(b)a short term “hi-explosive” container storage facility;
(c)an ammonium nitrate bagging plant; and
(d)an ammonium nitrate fertilizer (solution) blending plant.
In so far as (a) is concerned, having regard to the 2015 plans, the proposal is for the storage of approximately 45,000 tonnes of ammonium nitrate, across two tenancies (areas E and F), to service the import and export of ammonium nitrate through Port Alma.[16] This is a dry product. In the environmental management plan, it is said that it is the storage capacity of ammonium nitrate that resulted in this being classified as a security sensitive ammonium nitrate facility.[17] Mr Cann and Mr Mandl seemed to indicate the security sensitive descriptor is applied on the basis of the percentage of ammonium nitrate in the product – being greater than 45%.[18]
[16]Environmental management plan dated 29 January 2010, submitted to the Council in response to an information request (see affidavit of Mr Ovenden filed 18 November 2015, exhibit GJO-4) at p 34.
[17] Ovenden, exhibit GJO-4, at p 34.
[18]See the affidavit of Mr Cann filed 17 August 2015 (Cann 3) at [17]; see also Mr Mandl at T 1-56.35 – 1-57.7.
As to (c), provision is made for a bagging area (area L on the 2015 plans) on one of the tenancies (where the ammonium nitrate, arriving at the land on trucks in bulk, could be bagged, before being stored).
The short-term explosives container storage referred to in (b) (area I on the 2015 plans) is proposed for storage of explosives in sea containers for short periods of 5 days on 12 occasions per annum.
In relation to (d), the fertilizer solution proposed to be blended on the site is low concentration ammonium nitrate based liquid fertilizer (referred to in the material as AN). In the environmental management report, it was said that the intention was to formulate small quantities of this fertiliser, supply this material to agricultural markets in Central Queensland, and that manufacture of this liquid fertiliser would provide a use for any product not meeting the strict quality standards required for use in explosives.[19] This was proposed to take place at the solution plants (areas G and H on the 2015 plans), again across two tenancies.
[19] Ovenden, exhibit GJO-4, at p 35.
It was expressly noted, in the planning report, that “the tenants do not intent (sic) to manufacture explosive precursor products as this is more appropriately undertaken at the end user’s mine”.[20]
[20] Affidavit of Mr Buckley filed 13 March 2014 at p 40 of the exhibits.
AN is not classified as a dangerous good under the Australian Code for the Transport of Dangerous Goods by Road & Rail (due to its low concentration of ammonium nitrate[21]). It is not an explosive, and has no explosive capabilities – it has a zero TNT equivalent net explosive quantity.
[21] See extract from the Code, exhibit 5.
The SSAN (dry, to be stored) was said to have a 32% TNT equivalent net explosive quantity.[22] The explosives, proposed for short term storage, are actual explosives. Both SSAN, and these explosives, are dangerous goods under the Code.
[22] Affidavit of Mr Mandl filed 18 November 2015 at [21].
What is now proposed?
The change proposed by Multus is to enable it to produce / manufacture ANE at the proposed facility on the land.
ANE is an explosive precursor products.[23] ANE is “unsensitised”, so before it can be used as a blasting agent, further processing is required.[24] However, as Mr Mandl made clear, ANE “can explode” and “carries a significant risk of explosion”.[25] In this regard, the material indicates the risk of an explosion of ANE is low, provided it is managed and handled appropriately. However, the consequences should an explosion occur could be “severe and significant”.[26] ANE is classified as a class 5.1 dangerous good under the Code, and it has a TNT equivalent net explosive quantity significantly higher than that of AN, being typically around 80% - 100%.
[23] Mandl at [19].
[24] Cann 3 at [25].
[25] Mandl at [54], [55] and [57].
[26]See, eg, exhibit 8 (Code of Practice for the Storage and Handling of [ANE]) at p 20; see also Mr Cann at T 1-37.46 and Mr Mandl at T 1-85.27.
The manufacture of ANE is proposed to take place on the areas identified as G and H on the 2015 plans (that is, the solutions plants, where currently it is proposed the low concentration AN fertilizer would be blended). Although no detailed designs have yet been prepared, it was submitted the addition of ANE manufacture would not require any change to the overall layout of the 2015 plans.
There are two aspects to this. The first concerns the prescribed “separation distances” between particular explosive storage sites, and classes of protected works,[27] which were said to already be appropriately catered for in the 2015 plans. The second concerns the additional infrastructure required for the manufacture of ANE, which was said to be capable of being accommodated within areas G and H. These matters are further addressed below.
Will the change result in a substantially different development?
[27] See extracts from Australian Standard 2187 (exhibits 7 and 9).
Increased risk of explosion
On this application, the primary focus was on the impact of what the Council described as the increased risk of explosion from the manufacture of ANE, additional to the risks which already exist from the short term storage of explosives, and storage of dry ammonium nitrate.
In opposing the application, the Council submitted that the manufacture of ANE constituted the addition of a new use, with different and additional impacts. Multus submitted that there was no new use; that the use applied for already included a solutions plant, which was to provide for the manufacture of a product on site,[28] and that the proposed change is merely operational. I prefer the Council’s analysis on this issue, since what was originally proposed was a “high impact industry (explosives storage facility)”, with the blending of small amounts of liquid fertiliser seemingly (from the environmental management report at least) proposed as a secondary aspect of the primary proposal for storage of ammonium nitrate. Given the fairly significant differences, on the evidence, in the process involved in blending low concentration fertiliser, compared with manufacturing ANE (referred to below), it is fair to say, as the Council does, that the proposed change involves a new use (or at least a material expansion of the originally proposed use).[29] I do not accept that the change can be described as merely operational, at least in the way that term is used, for example, in Parcel One Pty Ltd v Ipswich City Council [2007] QPELR 474 at [10] (that is, as relating to the manner in which the material change of use would be brought into effect). What is proposed – the manufacture of ANE – is something new, and additional, to what was previously proposed.
[28]Relying upon the evidence of Mr Buckley, town planner, to this effect: affidavit of Mr Buckley filed 28 August 2015 at [16]. Reference was also made to Mr Ovenden’s evidence that the proposed manufacture of ANE would likely fall within the definition of “high impact industry” under the planning scheme: Ovenden at [16].
[29]Cf and cn the definition of “use” in schedule 3 to the SPA, as including any use incidental to and necessarily associated with the use of the premises, and the definition of “material change of use” in s 10, as including a material increase in the intensity or scale of the use of premises.
But in either case, the relevant focus for present purposes is on whether the change introduces new or additional impacts, such as to lead to the conclusion that the change results in a substantially different development.
On this issue, for Multus, Mr Cann, an engineer who specialises in risk management particularly for hazardous industries, expressed the opinion that “[f]rom an explosive risk management viewpoint, the use of the solutions plants to make ANE as opposed to liquid fertiliser or other AN solutions would not… increase the risk associated with the proposal in any material way because:
(a)although ANE is a more hazardous substance than either AN prill[30] or AN solutions due to the presence of oil in the product, unsensitised ANE complying with UN category 3375 is a low risk material, suitable for transport which is extremely unlikely to result in explosion;
(b)the production of ANE is also heavily regulated and controlled, and strict conditions are imposed for manufacturing and handling the product safely as it is for SSAN;
(c)with proper conditions and procedures in place the preparation and handling of ANE presents negligible increased risk;
(d)the plant has been designed to a nominated level of explosive potential irrespective of whether fertiliser, AN Solution or ANE is produced and stored”.[31]
[30] The dry form of ammonium nitrate.
[31] Cann 3 at [51].
Mr Cann noted that the 2015 plans were prepared on the basis that each solutions plant (areas G and H) had sufficient separation distance from all other relevant internal and external points of relevance, to ensure that an explosion of up to 118t NEQ (a measure of explosive potential based on TNT equivalence) could not impact on them.[32]
[32] Cann 3 at [52].
The 2015 plans were the product of a joint expert process, involving Mr Cann, Mr Mandl and a third risk expert, Mr Price.[33] Those experts agreed that the layout of the 2015 plans provided sufficient separation distances that it would be possible to seek licences for a production facility to produce and store ANE.[34] The effect of that is that ANE could, in principle, be manufactured at the facility on the land – at least in so far as those separation distances are concerned. But that does not provide an answer to the issue in dispute on this application, which is whether to do so is a substantially different development from that which was originally proposed.
[33] JER dated 11 May 2015, Cann 3, exhibits at p 13 ff.
[34] JER at [22] and [46b] (Cann 3 at pp 20 and 24).
Mr Mandl, who is a consultant specialising in explosives safety and risk, gave evidence for the Council. His opinion, in direct contrast to that of Mr Cann, is that the use of the solutions plants to manufacture ANE, as opposed to producing liquid fertiliser or any other AN solutions, “would result in a new and increased set of explosive risks and would significantly increase the overall explosive risk associated with the proposed development”.[35] Mr Mandl noted that:
(a)AN solution used for producing liquid fertiliser is not an explosive and has no explosive capabilities;
(b)ammonium nitrate (which I take to be a reference to the dry SSAN proposed to be stored on the site at areas E and F) is considered to have a 32% TNT equivalent net explosive quantity in the event of an explosion; and
(c)ANE is considered to have a TNT equivalent net explosive quantity significantly higher than that of AN, being typically around 80%, or taken as 100% if no supplier figure is available.[36]
[35] Mandl at [20] and [45].
[36]Mandl at [21]. Mr Cann agreed with (a) and (c), and did not express a view about (b) – T 1-35 to 1-36 and 1-37.
Mr Mandl explained the process involved in the production of AN solution (for use in producing a liquid fertiliser), compared with the manufacture of ANE products. Although the preparation of AN solution is the first step in manufacturing ANE, there are two additional steps involved in manufacturing ANE. These are the “fuel blend preparation” process (which Mr Mandl described as posing a new set of transport, storage and manufacturing hazards, not envisaged by the original development application material) and the “ANE manufacturing” process (where the AN solution and the blended fuel are combined to produce the final ANE product).[37]
[37] Mandl at [23]-[24] and [32]-[35] (re fuel blend preparation).
In so far as the ANE manufacturing process is concerned, Mr Mandl identified in particular the risk of an explosion during the process of mixing the fuel blend with the AN solution, being a risk that he says is not present in the production of low concentration AN solution.[38] Mr Mandl described the ANE manufacturing process as more complex and involving more hazardous interactions, than those involved in the production of low concentration AN solutions. He described the likelihood of an explosion arising in the facility due to the manufacture of ANE as “far greater” and the consequences of an explosion as “far greater” as well, because of the much higher TNT equivalent net explosive quantity of ANE (80-100%), and because the construction of the manufacturing and storage arrangements for ANE would be likely to produce significant blast induced debris and projections in the event of an accidental explosion.[39]
[38] Mandl at [38].
[39] Mandl at [43].
Mr Mandl noted that there is a significant difference between the concentration of the AN solution used for producing liquid fertiliser (typically, below 45% concentration), and that for use in the ANE manufacturing process (around 90%).[40] Mr Mandl expressed the opinion that there are significant additional ignition, combustion, personnel injury and explosion risks associated with the production of AN solution of the higher level of concentration suitable for use in ANE manufacture.[41]
[40] Mandl at [27].
[41] Mandl at [30]-[31].
The manufacture of ANE would also constitute a new environmentally relevant activity, namely ERA7 (Chemical Manufacturing), and therefore require an additional environmental authority, as well as other licences, in particular a manufacturing licence.[42]
[42] Mandl at [63-[64] and [67]-[68]; Mr Cann at 1-38 and 1-39.
Mr Cann acknowledged that many of the risks that Mr Mandl identified, as a result of the operations and processes involved in the preparation of ANE, do exist in the working and operation of an ANE preparation facility.[43] Mr Cann said, however, that those risks are catered for by the separation distances prescribed by the applicable Australian Standard, which cater for the worst case explosive event.[44] As exhibit 11[45] shows, there is not much difference between the separation distances required for the 1.1D explosives (proposed for short term storage), the SSAN to be stored, and ANE.[46]
[43]Affidavit of Mr Cann, filed 14 March 2016 (Cann 4), annexure NKC1 (report dated 11 March 2016), at [11].
[44] NKC1 at [10]-[12]; see also Mr Mandl at T 1-71.
[45]The plans, showing the respective separation distances, overlayed onto exhibit 6, prepared subsequent to the hearing, but admitted into evidence without objection.
[46]See also Mr Mandl at T 1-71.15, acknowledging the significant overlap between the separation distances applicable to the other parts of the proposed facility.
Mr Cann acknowledged that ANE can explode, whereas AN solution (liquid fertiliser) cannot. In explaining why he considered there was no material increase in risk, in going from producing a chemical that has no explosive capacity, to one that has an explosive capacity of 80% of TNT, Mr Cann said he was considering this from a “larger community perspective”, “looking at the benefits across a whole societal infrastructure with regards to jobs, economy being produced”, and in circumstances “where there is no one inside that area currently residing or impacted by that potential zone and the impact” (the area being the area covered by the separation distances).[47]
[47] T 1-44.
For Multus, emphasis was also placed on the fact that the risks associated with the manufacture of ANE can be reduced, or mitigated, if proper conditions and procedures (which would be required by the various licensing regimes) are put in place; as well as by the adoption of the prescribed separation distances. Mr Mandl agreed that this was the case.
Multus also emphasised that there already exists a risk of explosion, from the presence of (dry) SSAN to be stored on the site, as well as the actual explosives. But the point being made by Mr Mandl, and which I accept, is that the introduction of manufacture of ANE significantly increases that risk of explosion, ANE having a net equivalent explosive quality of 80% of TNT.
I accept, as Multus submitted, that it is fair to assume that, if approved, the change would be appropriately introduced – that is, that it would be done properly, in accordance with the relevant laws, regulations, standards etcetera. But I also accept the Council’s submission that whether or not the identified risks can be managed is not the point on this application. The issue on this application is whether the proposed change involves the introduction of new or additional or increased impacts, such as to result in a substantially different development.
I am persuaded by the evidence of Mr Mandl to this effect. Although it is correct to say, as Multus does, that the impact is the risk of an unplanned event (in contrast perhaps to an immediate, known impact); nevertheless, on the evidence I am satisfied that the additional risk posed by the manufacture of ANE, over and above that which already exists, is an additional impact, and something that increases the severity of existing impacts, from the present proposal.
Mr Cann’s contrary opinion, of no material increase in risk, is based on there already being a risk of explosion at the facility; the separation distances being essentially the same; and the new and additional risks of manufacture of ANE being capable of appropriate management. Despite those things, I accept on the evidence of Mr Mandl that the effect of the proposed change is to add a significant, additional, risk of explosion to the original development proposal.
It is also appropriate to take into account the additional impact of the proposed change, which is described by Mr Weeks and Mrs McCamley.
Mr Weeks expressed his concern about the new and additional explosive risks associated with the proposed change to manufacture ANE identified by Mr Mandl, which he says have added to the existing safety concerns he holds, as a consequence of living near the Queensland Government’s Bajool explosives reserve. Mr Weeks said that “the proposed change to manufacture explosives precursor products in the ‘Solutions Plants’ poses yet more new and increased explosives safety risks which I am deeply concerned about. I am fearful of the effects that a materialisation of these risks (e.g. an explosion at the subject site and resulting blast effects) could have for residents, adjoining properties and the Bajool township”.[48]
[48] Exhibit 10 at [22].
Mrs McCamley, in her submissions, also described the proposed change, to add the manufacture of ANE, as giving residents “added cause for concern”, in circumstances where they have already shown their strong objection to the proposed development because “of our concerns of any unforeseen or manmade accidents that could happen and affect our pristine land”.[49]
[49] Mrs McCamley at T 2-4.
Although perhaps intangible, these additional concerns associated with the potential introduction of an additional element to the proposal – manufacture of ANE – are real, and may properly be taken into account in considering whether this is a minor change.
Traffic
In his affidavit, Mr Cann said he thought the additional number of increased traffic movements would be low,[50] but in his oral evidence he acknowledged that he could not say what volume of ANE would be produced, and therefore was not able to assist the Court in terms of what the increase in traffic might be as a consequence of ANE production.[51] Mr Mandl suggested traffic could be considerably increased, due to demand for ANE from mine sites, and the limited ability to stockpile ANE onsite.[52]
[50] Cann 3 at [60(c)].
[51] Mr Cann at T 1-40.
[52] Mandl at [83].
Mr Weeks also expressed his concerns about the transport safety risks associated with trucks transporting manufactured ANE. Mr Weeks said that he considers there will be an increase in the number of trucks, some of which would be carrying ANE, entering and leaving the site along South Ulam Road, and using the intersection which adjoins a 100 km speed limit section of the Bruce Highway. He expressed concern having regard to the explosive safety risks of transporting ANE identified by Mr Mandl.[53]
[53] Exhibit 10 at [23]-[28].
On the basis of Mr Mandl’s evidence, in my view it is reasonable to infer that the addition of ANE manufacturing will impact on the traffic flow, and the transport network, by increasing traffic to and from the site, in comparison to the proposal originally applied for. The degree to which that is the case will depend on the amount of ANE produced. But that there will be an impact seems clear.
Physical changes to the facility / layout
There would be a significant change to the infrastructure required to manufacture ANE, compared with AN. The difference is highlighted by Mr Mandl, in a Google Earth image of an ANE manufacturing plant at Blackwater.[54] Although, on the evidence, the additional infrastructure required to manufacture ANE would be able to be accommodated within areas G and H on the 2015 plans.[55]
[54] Mandl at [60] and AHM-7 (p 56).
[55] Mr Cann at T 1-33.24 – 1-34.4; Mr Mandl at T 1-71.41.
Mr Cann’s opinion was that there would be little discernible difference in appearance to an outside observer, with the overall site requiring buildings that will look little different to large farm sheds.[56] But Mr Cann did agree, when pressed by Mr Weeks, that you would be able to see some parts of the sheds from the front gate of the property.[57] Mr Mandl, in his affidavit, considered the additional infrastructure would be readily apparent to a person observing the facility from a public place; however, in cross-examination he acknowledged that given the distance of over 1 km from the road, and with the intervening vegetation (either existing, or proposed), there would not be any dramatic change to the structures in terms of their scale or appearance.[58]
[56] NKC at [35].
[57] T 1-49.12.
[58] T 1-75.26.
Mr Weeks raised concerns about this, on the basis of his experience of watching the expansion of the nearby government explosives reserve, from storage to manufacture. In his submissions, Mr Weeks also said that the proposed change would “result in a vastly different landscape”, but that submission needs to be considered in the light of the other evidence, just referred to.
Conclusion – substantially different development
Overall, having regard to the different process involved in manufacturing ANE, compared with the low concentration AN liquid fertiliser; that the manufacture of ANE would introduce new and increased explosive risks, and significantly increase the overall explosive risk associated with the proposed development (both in terms of the existing storage proposal, and the existing proposal to produce low concentration liquid fertiliser); the potential additional impact on traffic flow; and the additional impact of the proposed change described by Mr Weeks and Mrs McCamley, I am not satisfied that the proposed change can appropriately be described as one that does not result in a substantially different development. It is not a minor change. If it is to be added to the development proposal, it ought to be subject to the rigours of the development application process.
The application filed 17 August 2015 is, therefore, dismissed.
I will hear the parties as to costs.
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