Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources (No. 2) - [2005] NSWLEC 412

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources (No. 2) [2005] NSWLEC 412

PARTIES:
APPLICANT:
Patrick Autocare Pty Limited
ACN 004 497 607
RESPONDENT
The Minister for Infrastructure, Planning and Natural Resources

FILE NUMBER(S):
11609 of 2004

CORAM:
Lloyd J

KEY ISSUES:
Development Application :- intermodal cargo facility - State significant development - weight to be given to government policy

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 (NSW), sub-ss 5(a)(i) and (ii), 76A(7) and (9), 79C(1)(c), 80 (1), (4) and (5); ss 79A, 82, 91, 97
Land and Environment Court Act 1979 (NSW), s 39(4)
Rivers and Foreshores Improvement Act 1948 (NSW), Pt 3A

CASES CITED:
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577;
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24;
Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 277;
Stockland Development Limited v Many Council (2004) 136 LGERA 254;
Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195;
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1

DATES OF HEARING: 03/06/2005 and 06/06/2005

DATE OF JUDGMENT:

08/03/2005

LEGAL REPRESENTATIVES:
APPLICANT:
J E Robson SC
SOLICITORS:
Deacons
RESPONDENT:
S A Duggan (barrister)
SOLICITOR:
Christine Hanson

JUDGMENT:

- 60 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

LLOYD J

Wednesday, 3 August 2005

LEC No. 11609 of 2004

PATRICK AUTOCARE PTY LIMITED v THE MINISTER FOR INFRASTRUCTURE, PLANNING AND NATURAL RESOURCES (No. 2) [2005] NSWLEC 412

JUDGMENT (No. 2)

Introduction

1 LLOYD J: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (NSW) (the “EP&A Act”) by the applicant, Patrick Autocare Pty Limited (Patrick Autocare), against the deemed refusal by the respondent, the Minister of the Department of Infrastructure, Planning and Natural Resources (DIPNR) (the “Minister”) of its development application for the construction and operation of an intermodal cargo facility.

2 As the proposed development involves a capital investment of approximately $26 million, the development is State significant development, and the Minister is the consent authority: EP&A Act, sub-ss 76A(7) and (9). The Minister did not determine the development application within 60 days and Patrick Autocare now appeals against this deemed refusal: EP&A Act, s 82; Environmental Planning and Assessment Regulation 2000 (NSW), sub-cl 113(1)(b)(ii) (the “EP&A Regulation”).

The Site

3 The proposed development would be located at lots 132-145 in deposited plan 804256, lot 113 in deposited plan 800543 and lot 205 in deposited plan 787308, Broadhurst Road, Ingleburn (the “site”). The site is cleared, undeveloped and highly modified, being devoid of natural topography and vegetation other than weeds and exotic grasses with some scattered trees. Stockpiles for soil are located along the railway boundary.

4 The site covers an area of approximately 5.7 hectares. It is located in Campbelltown local government area and forms part of the existing Ingleburn Industrial area, which flanks the site to the north and west. The site lies immediately west of the Main Southern Railway, south of Ingleburn Station. On the eastern side of the railway, there are residential areas forming part of the suburb of Ingleburn.

5 Bow Bowing Creek lies to the south of the site and separates the site from Patrick Autocare’s existing car processing, storage and distribution facility at No. 45 Stennett Road, Ingleburn. In the vicinity of Ingleburn Industrial area, including adjoining the subject site, the creek has been extensively modified and realigned and no natural features remain.

6 The area surrounding the site has been developed as industrial factories, warehouses and industrial units which tend to have a high proportion of manufacturing and warehouse/distribution activities.

The Applicant

7 Patrick Autocare is a subsidiary of Patrick Corporation an Australian public company that provides vehicle processing and distribution services to major national and international vehicle manufacturers. It is a national operation and has facilities in all states.

8 Patrick Corporation is embarking on a nationwide strategy to increase the amount of cargo transported by rail. This strategy includes the establishment of strategically located intermodal rail facilities where cargo can be transferred between trains and trucks for local delivery, such as the proposed development. Patrick Corporation intends that this strategy will also result in an increase in the number of privately operated freight rail services, increasing competition and efficiency in the transport sector.

The Proposed Development

9 The proposed development is to construct and operate an intermodal cargo facility. Cargo will be transported to and from the site via rail from Port Botany and Melbourne for distribution to and from the site via truck.

10 The proposed development would involve two operations, a vehicle transfer operation and a container operation, and would be developed in three stages over a three-year period.

Stage 1 Vehicle Transfer Operation

11 The vehicle transfer operation is intended to provide for the transportation by rail of locally manufactured vehicles from the Toyota Manufacturing plant in Melbourne, Victoria to Patrick Autocare’s existing facility at Ingleburn. More specifically, Stage 1 includes those parts of the development comprising the construction and operation of two 400-metre long rail sidings for the vehicle transfer operation; installation of acoustic walls, landscaping and a security fence; relocation of existing power lines; construction and use of temporary site facilities; and installation of lighting, drainage, tarmac and parking.

12 The facility would be designed to receive a 700-metre long train with a carrying capacity of 280 vehicles per trip on 2 x 400-metre long sidings. The three trains per week initially proposed (Monday, Wednesday and Friday, arriving from Melbourne before 6.00am and departing at approximately 1.00pm), could deliver approximately 42,000 cars to the facility per annum.

13 At present the demand is for about 32,000 cars to be delivered from Melbourne per annum and therefore, initially, the actual train length will be set to meet the volume requirements (being a train 500-metres long with a carrying capacity of 200 cars). When demand exceeds 42,000 per annum, a high level crossing over Bow Bowing Creek must be constructed and car train services would be required to increase to one 700-metre long train per day, six days a week.

14 On arrival the train would be moved into the siding in two halves and would then be unloaded by driving the cars from the southern end of the train and stored at the facility. These cars would then be distributed to retailers by trucks directly from the site. The train returning to Melbourne would be utilised to transport a limited number of specially ordered imported cars and used local cars.

Stage 2 Container Operation

15 The container operation is intended to provide for container consolidation and distribution, and for the rail transport of international import and export shipping containers between the Campbelltown district and Port Botany. More specifically, Stage 2 includes those parts of the development comprising the construction and operation of an additional two 400-metre long rails sidings for the container operation; installation of heavy duty pavement for cargo storage and truck bays; installation of two gantry cranes for the loading/unloading of cargo containers; and construction and use of internal access road.

16 The two 400-metre long sidings for container trains would be constructed to accept 700-metre long trains, which have a carrying capacity of 90 TEU (Twenty-foot Equivalent Unit). As such, a train entering and leaving the site would have a total carrying capacity of 180 TEU. The container train is expected to arrive at the facility from Port Botany at 10.00am and depart at 2.00pm, Monday to Saturday. As such, on the basis of one train per day, six days a week and fifty weeks a year, the total rail capacity is approximately 54,000 TEU per annum, although allowing for an 80 per cent utilisation, the actual capacity is likely to be about 43,200 TEU per annum.

17 When demand exceeds the capacity of one train per day, a second train will be introduced into the operation. However, until the dedicated freight line from Macarthur to Port Botany is operational, the operation will be limited to one per day as the Rail Infrastructure Corporation (RIC) has advised that at present it could only schedule a second container train at night.

18 In addition, a maximum of 12 container train movements may occur outside the normal hours of operation within any 12 month period.

19 When on the siding, containers would be lifted from the train by one of the two gantry cranes and placed in the container storage stacks, up to three containers (7.5 metres) high and eight containers deep. Containers would then be collected from the site by road trucks and transported to their final destination.

20 Containers destined for Port Botany would be delivered to the site by trucks and stored on site before being loaded onto a train for transport to the Port.

Stage 3 Ancillary Works

21 Stage 3 includes those parts of the development comprising ancillary works, including installation of a rail siding, and construction and use of a permanent site office, maintenance workshop, landscaping and car park.

Hours of Operation

22 The normal working hours of the proposed development will be from 5.00am until 6.00pm from Monday to Saturday. The activities undertaken at the facility would include gantry crane loading and unloading of containers; forklifts and reachstackers moving containers between container stacks; trucks entering, idling and leaving; cars entering and leaving and being unloaded from the train; and trains entering and leaving the sidings.

23 Notwithstanding the proposed normal working hours, the proposed development is for limited 24-hour operation of the facility as trains may arrive/depart outside the scheduled times to meet the requirements of the RIC. The proposed facility requires that where a train arrives/departs:

· between 6.00pm and 10.00pm, on-site activities during this period would be similar to those occurring during “normal working hours”.
· between 10.00pm to 12.00 midnight, the train would be loaded/unloaded by the gantry cranes but cargo would not be dispatched by trucks;
· after midnight, an arriving train would be brought into the siding and shutdown over about 15 minutes. A train would take less than 15 minutes to depart. Thus, the only activity that would occur between 12.00 midnight and 5.00am would be the arrival or departure of trains. No cargo handling would occur during this time.
Impact on Rail Movements

24 There are 375 rail movements past the intermodal site every working day. The proposed rail schedule for the operation will increase the number of movements by 4, to 379 movements. This represents an increase of less than 1.5 per cent over the existing rail movements.

Impact on Truck Movements

25 At present, approximately 32,000 locally manufactured cars are transported by truck from Melbourne to Patrick Autocare’s Ingleburn existing facility for local distribution. The proposed development would eliminate this activity and the associated generation of approximately 8,000 truck movements (14.4 million truck kilometres) per year between Melbourne and Sydney, specifically on the Hume Highway, M5 and road networks within Campbelltown City. In addition, the proposed facility would also remove 42,000 container truck movements (3 million truck kilometres) per year between Port Botany and the Macarthur region.

26 As a consequence of the reduced truck movements, fuel consumption would be reduced by approximately 1.71 million litres and subsequently greenhouse gas emissions would also decrease by an estimated 4,500 tonnes per annum resulting in less photochemical smog in the Sydney Basin.

27 Under the proposed development, the distribution centre for the Melbourne manufactured cars would be relocated from the existing facility to the new site and car carrier trucks would have to travel an extra 200-metres. However, this would only be temporary as a high level crossing over Bow Bowing Creek is proposed to link the existing facility to the new site.

28 The facility has the capacity to accommodate up to 40 trucks on the site. However, it is proposed to schedule a maximum of 20 truck onsite at any given time. The proposed maximum of three trains per 24-hour period would generate a maximum of 250 truck movements per day.

29 The proposal includes the preparation of traffic management plans and a contribution pursuant to a s 94 Contribution Plan.

Landscaping and Acoustic Wall

30 The proposed development includes a landscaped berm comprising crib walls and sloping garden beds in a 10 metre zone along the eastern boundary of the site to address the potential impacts from noise and visual amenity concerns. A low wall about 1metre high would be positioned at the crest of the berm to serve as a safety balustrade, as well as an acoustic barrier. The overall height of the berm and low wall would be 6 metres from the level of the proposed track within the facility. A landscaped buffer incorporating a wetland system is also proposed along the western side boundary on Broadhurst Road and Stennett Road.

31 The distance from the landscaped wall to the stacks of containers, taking into account the slope of the site (which would fall away from Ingleburn Road), means the containers would likely be concealed from sight and only the top of the gantry cranes, which would be painted in visually recessive colours, would be seen.

32 The proposed landscaping would maintain the streetscape vista through the site to the Bow Bowing Creek reserve and would eliminate some of the existing less appealing attributes of the industrial precinct when viewed from the residential zone. The acoustic wall and associated landscape berm would appear as a vegetated relief, consistent with the rural views further to the west.

Security and Night Lighting

33 The proposed development would be policed by 24 hour security and security fencing would be installed around the perimeter of the site.

34 Floodlighting would be installed at various points around the site perimeter for visibility during the night works and security. Night lighting would be designed such that the lighting would be contained within the facility. The lighting on the eastern side of the site would be mounted inside the noise screen to minimise the light spill.

Employment

35 The proposed facility would provide 15 permanent site positions and 20 locally based truck driving positions. In addition, further employment benefits would arise from the potential to attract labour intensive depot and warehousing operations, as well as the packing of international shipping containers, to adjacent sites.

The Development Application Process

36 A development application (DA-357-10-2002-i) for the proposed development was lodged with the Minister on 15 May 2002. That is not the development application which is the subject of this appeal. However, it does not differ in any material respect from the development application the subject of this appeal. The application was the subject of a Commission of Inquiry (the “COI”) into all environmental aspects of the development.

37 Commissioner Kevin Cleland’s COI report to the Minister dated December 2003 (Exhibit B(2), Tab 8), concluded that:

the environmental aspects of the proposed development do not preclude its approval subject to the recommendations to minimise and control residual environmental impacts and to restrict night-time operation.

38 Commissioner Cleland made the following findings regarding the proposed development:

Environmental Impacts of Operation
· The facility would remove 8,400 car-carrying truck movements per year between Melbourne and Sydney and would also remove 42,000 container truck movements per year between Port Botany and the Macarthur region, when one train is operating per day between Port Botany and Ingleburn.

· The proposed replacement of road transport with rail will reduce greenhouse gas emissions, improve air quality generally and reduce the traffic burden on major arterial road in the Sydney region.

· Truck traffic on the roads close to Sydney would be reduced and any new train and truck movements would be centred on Patrick Autocare’s site with truck movements limited to a maximum of 250 per day.

· Heavy vehicles servicing the site would add to traffic on local roads including Campbelltown Road. However, other than some mid-block congestion on Campbelltown Road and minor delays at the intersection of Campbelltown Road and Williamson Road in peak periods, the local road network can accommodate the predicted increases while generally maintaining good levels of service.

· The facility can comply with the relevant noise level criteria provided the confirmed acoustic barrier is constructed.

· The acoustic barrier and site can be effectively landscaped to a high standard to ensure the visual amenity of the locality is maintained. Further, floodlighting can be designed and directed so that light spill is minimised.
· The noise of the arrival, placing of wagons on Patrick Autocare’s sidings or the departure of trains cannot be directly compared with the noise from normal operations on the main Southern Railway line.

Strategic Planning Impacts of the Operation

· The industrial areas of Ingleburn, Minot, Campbelltown and Narellan in Sydney’s southwest generated 16.8 per cent of export cargo (25,000 TEU) and 6.2 per cent of import cargo (32,000 TEU) through Port Botany in 2000, according to a study conducted by the Sydney Ports Corporation. The annual growth rate of containerised cargo has been 7 per cent for the past 3 decades. It is clear that significant containerised cargo passing through Port Botany is either destined for or originates from the Macarthur region.

· State and Commonwealth governments have recognised the need for infrastructure such as the proposed development and the overall environmental benefits of using rail transport instead of road in developing this infrastructure.

· In the Independent Review of Proposed Enfield Intermodal Terminal (February 2003) (the “ Morris Report ”) (Exhibit B(1), Tab 11), the Honourable Milton Morris AO concluded there is a need for additional intermodal terminal capacity in Sydney over the coming decade which needs to be well planned. The planning must take into account recent developments at all three NSW commercial ports; in road construction; and issues around construction of freight only rail tracks in and through Sydney. The principle of intermodal terminals demands that there should be numerous small facilities strategically spread across the metropolitan areas in order to maximise the distance containers travel by rail and minimise the distance travelled by road.

· The Ingleburn site has been identified by two Rail Access Corporation (RAC) (the predecessor of the RIC) studies as the preferred location for an intermodal facility.
· Based on the requirements of RAC, the Sydney Metropolitan Rail Sites Study (July 1998) (Exhibit B(1), Tab 2) identified part of the Ingleburn site (Ingleburn SW, Stennett Road, Ingleburn) as a potential site for a new rail operation. The study found that the site was suitable for freight operations as it is adjacent to the main southern line and has direct access, provided new connections are installed, to the north-south rail corridor, to Enfield Yard and to Sydney ports.

· The Metropolitan Land Bridging Concept Study (December 1998) (also commissioned by RAC) concluded that a number of terminals would be required to satisfy both the volume and geographic distribution of industrial zones across Sydney. The study preferred a “network” of terminals rather than a single or limited number of terminals. The study identified the same site in Ingleburn as the Sydney Metropolitan Rail Sites Study.

· The Government has committed to construct a dedicated freight line between Macarthur and Chullora, which would link with the Enfield to Port Botany freight line to provide a dedicated freight line through Metropolitan Sydney as part of an upgraded Melbourne-Sydney-Brisbane corridor. The dedicated freight line would adjoin the proposed development, hence the movement of freight trains generally, as well as trains entering the site, would not be constrained by commuter trains on the main railway line.

39 Commissioner Cleland conclusively found that “[t]here is an established need for the proposed development, it is on land zoned to permit such development, and its operation could be managed to minimise the environmental impacts on residents”.

40 On 24 September 2004, the Minister, as consent authority for the development application, determined the application pursuant to sub-ss 80(4) and 80(5) of the EP&A Act by granting consent to Stage 1 (the vehicle transfer operation) and requiring Stages 2 and 3 (the container operation and ancillary works) to be the subject of a further consent. A further consent was issued on 23 November 2004 for Stage 1A of the proposed development being the access driveways, internal access roads and car parks, and the construction and operation of the site office.

41 On 20 October 2004, Patrick Autocare lodged a second development application with the Minister for Stages 2 and 3 of the proposal, being the container operation and ancillary works. The Minister did not determine this second application within 60 days and, consequently, that deemed refusal is the subject of this appeal.

Relevant Statutory Planning Controls

42 The following statutory planning controls apply to the proposed development:

· Campbelltown (Urban Area) Local Environmental Plan 2002
· Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment
· State Environmental Planning Policy No 11 – Traffic Generating Developments
· State Environmental Planning Policy No 33 – Hazardous and Offensive Development;
· State Environment Planning Policy No 34 – Major Employment Generating Industrial Development.
· Draft State Environmental Planning Policy No 66 – Integration of Land Use and Transport.
· Campbelltown City Council Development Control Plan No 52 – Off Street Car Parking Policy No 5.2.18
· Campbelltown City Council Industrial Development Policy No 5.2.13

43 Relevantly, under the Campbelltown (Urban Area) Local Environmental Plan 2002 (the “LEP”), the development is proposed on land specified as Zone 4(a) - General Industry Zone. Development for the purpose of an intermodal cargo facility is an innominate permissible use within that zone and is permissible with development consent: LEP, sub-cl 12(4).

44 The proposed development also constitutes integrated development under s 91 of the EP&A Act as it requires a permit from the Department of Infrastructure, Planning and Natural Resources under Pt 3A of the Rivers and Foreshores Improvement Act 1948 (NSW). The Department has issued General Terms of Approval in relation to the issue of that permit.

45 In addition, as noted above in par [2], the proposed development is State significant development (s 76A(7)(b) of the EP&A Act), and thus, it is also advertised development within the meaning of cl 5 of the EP&A Regulation.

46 Pursuant to s 79A of the EP&A Act and the EP&A Regulation, nearby landowners and occupiers were notified of the development application and the application was publicly exhibited and advertised.

47 The Minister received 54 submissions during the public exhibition period. The following submissions were received:

Issues

48 Principally, the issue to be decided is whether the Court, as consent authority, should grant or refuse consent to the development application: EP&A Act, sub-s 80(1).

49 More specifically, the Minister’s Statement of Issue identifies the issue as being:

Whether it is appropriate, having regard to the proper and integrated future planning of the Sydney Region, to determine Phases 2 and 3 of the proposed development prior to finalisation of the Sydney Metropolitan Freight Strategy and determination of the Government’s preferred options for container movements and intermodal terminal locations in the Sydney Metropolitan Area, having regard to:

EP&A Act

Land and Environment Court Act 1979

Court Act

50 Relevantly, sub-ss 5(a)(i) and 5(a)(ii) of the EP&A Act provide, in particular, that the objects of the 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,

….

51 Finally, sub-s 39(4) of the Court Act provides that:

….

(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.
….

52 In Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 277, I held that the matters identified in par [49] above were relevant considerations to the determination of the development consent. I also held that it was a question for the determining authority to decide what weight should be given to those considerations. The identified issue became the principle or essential issue in this appeal, together with the submissions on the development application noted in par [47] above. In this respect three objectors also gave evidence expanding upon their grounds of objection, referred to below.

The Evidence

53 The respondent called three objectors to give evidence during the proceedings: Ms Noelene Holliday (resident), Mr Ian Campbell (Macarthur Intermodal Shipping Terminal), Mr Scott Phillip (Campbelltown City Council); and also called Ms Leisbet Spanjaard (Department of Infrastructure, Planning and Natural Resources).

Ms Noelene Holliday

54 Ms Noelene Holliday has been a resident of Ingleburn for 43 years and resides at 82 Ingleburn Road. Ms Holliday had written to the Minister after being notified of the proposed development to express her concerns. In particular, Ms Holliday expressed the following particular objections to the proposal:

Mr Ian Hinde Campbell

55 Mr Ian Campbell is a consultant engaged by Macarthur Intermodal Shipping Terminal (MIST) and assisted MIST in the preparation of written submissions in relation to the proposed development. MIST is a direct trade competitor of Patrick Autocare as conducts an intermodal operation transporting containers from Port Botany by rail to its site at Minto. Mr Campbell conceded that his evidence was biased as a result of his consultancy for MIST - he said “I am not unbiased” - as MIST has a vested interest in ensuring that the proposed development is not approved.

56 In examination in chief, Mr Campbell claimed that as MIST already operates as an intermodal cargo facility in the Macarthur area, the contention of Patrick’s that the proposed development will reduce truck movements and greenhouse gas emission is incorrect. Also, although Mr Campbell expressed concern regarding the future capacity of the site, the use of gantry cranes, rail noise, operating hours, truck traffic and queuing, and consequent greenhouse gas emissions, night lighting and employment opportunities, in cross-examination he conceded that the conditions recommended by Commissioner Cleland would address the objections previously raised by MIST in its written submissions to the Minister and the to COI.

57 In cross-examination Mr Campbell also accepted that the summary of MIST’s submission in the COI report was accurate. Commissioner Cleland’s summary of MIST’s submission (Exhibit B(2), Tab 8, p 17) principally concluded that MIST objected to the proposed development as it did not consider the use and expansion of the MIST operation as a genuine alternative and the “Patrick Use Only” operation would reduce the choice of rail operators even further and thus also the fair competitive trade arena which is necessary for Australia’s future. The MIST submission also noted that Patrick Autocare, through its 50 per cent ownership of Pacific National, owns half of the rail infrastructure of MIST. In relation to this, Mr Campbell strongly denied any knowledge of the fact that MIST and Patrick Autocare were currently involved in a legal and commercial dispute as MIST was not permitting Patrick Autocare to access to a siding which was owned by Patrick Autocare. Further, Mr Campbell did not admit that approval of the proposed development would cause MIST to suffer commercially, though claimed that MIST would benefit through increases in industrial land values.

Mr Scott Phillips

58 Mr Scott Phillips is the manager of Development Services of the Campbelltown Council and assisted in the preparation of the Council’s submission in relation to the proposed development. On behalf of the Council, Mr Phillips amplified the objections of the Council (including those submitted to the COI) and the public. In particular, Mr Phillips stated the following objections:

· The Council supports the Ports Freight Plan and the need to remove transport from the road into rail, though recognises the proposed development is the right development in the wrong location.

· Although the proposed development has many strategic benefits, the development does not adequately or appropriately address a number of issues including visual amenity, noise, light spill, traffic and transport, and infrastructure and these impacts on local amenity are too great.

59 In cross-examination, Mr Phillips stated that the proposed application does not differ significantly from the development considered by Commissioner Cleland. Mr Phillips further claimed that although he had not read any of the expert reports in relation to the local impacts of the development before Commissioner Cleland, including noise, traffic, air quality and visual amenity, he was aware of the recommendations suggested by the Commissioner and did not believe that these recommendations addressed the impacts sufficiently. In particular, Mr Phillips conceded that he knew of the Commissioner’s finding in relation to the abatement of the noise impact by the acoustic wall, being that the acoustic wall would be more effective if it was located on the Council’s land to the east of the railway line rather than Patrick Autocare’s land to the west. Moreover, he stated that he knew that Patrick Autocare had amended the development application as the Council had refused to give owner’s consent to allow the acoustic wall to be built to the east of the railway line. He noted that the Council is not prepared to change its mind in relation to owner’s consent. Despite these admissions, Mr Phillips reiterated the concern of the Council concerning the acoustic impact of the facility associated with train movements before they enter the proposed site.

60 Mr Phillips also conceded that the Council, as a member, had made a $50,000 contribution to the Chain of Intermodal Shared Services Hubs for the Eastern Seaboard of Australia (CISSES) to help CICCES establish a public/private partnership with stakeholders from business and all tiers of Government to develop an effective alternative distribution path for business in the main freight corridors on the eastern seaboard, through an efficient mix of road and rail infrastructure supported by appropriate technologies. He stated that he did not take this issue into account when providing evidence to the court.

Ms Leisbet Spanjaard

61 Ms Liesbet Spanjaard provided both oral evidence and a written statement of evidence dated 19 May 2005 (Exhibit 3). Ms Spanjaard has been employed as the Director of Freight Strategy and Planning within the Transport Planning Division of DIPNR since January 2004 to work on the development of an intermodal freight strategy for the Sydney metropolitan area.

62 Ms Spanjaard’s written statement of evidence dated 19 May 2005 (Exhibit 3) outlines the following submissions on behalf of the Minister in relation to the proposed development:

· An intermodal terminal is a facility which enables the exchange of freight (usually by container) between modes of transport. Imported containers are often transported by rail to an intermodal facility where they are unloaded from the train and either loaded onto a truck for delivery to the consignee or taken to a warehouse on site where they are unpacked and distributed to the customer in smaller lots. Most exporters pack their cargo into a container at their site and deliver it by road to an intermodal facility or alternatively, truck their cargo to a packing facility and then to an intermodal terminal where it is transported by rail to the port.

The Ports Freight Plan

· The Ports Freight Plan is a major strategic policy initiative, which will address the required transport network infrastructure and the future of the metropolitan intermodal terminal network.

Sydney Futures Forum II

i An identified target of 40% rail mode share of containers moving to and from the Port, a significant increase on the current level of 21%;

- An intermodal terminal network to improve freight distribution;

- Transport infrastructure required to support such a metropolitan intermodal terminal network;

- The structure, amount, means of collection and economic impacts of a possible port freight charge on containers moved by road to and from Port Botany;

- Potential changes to work practices including “truck tracking” to minimise queuing at the port gate; “container in/container out” to maximise the efficiency of truck haulage; and other strategies to minimise unnecessary movements of containers across the city;

- How to maximise Federal funding support for the implementation of the freight strategy;

- They will need to be significantly larger than any existing terminals being capable of accommodating at least 300,000 TEU per annum.

- They will need to provide for fully integrated facilities incorporating on site warehousing, empty container storage, consolidation and de-consolidation of product.

- They should have the ability to consolidate sufficient cargo to enable the operation of block trains and accommodate potentially longer trains than those currently operating in order to maximise the use of existing infrastructure.

- They should have sufficient size and capability to ensure capital investment is worthwhile and they are commercially viable in terms of volume throughput.

- They should offer competitive neutrality and provide access for all rail operators.

- They should be closely located to key road arterial routes to industrial areas throughout Sydney as well as being located on freight only rail lines wherever possible.

Greater Western Economic Freight Forum

The relationship between the Proposed Port Botany Expansion and the Proposed Development

· Port Botany handles the majority of all containers in New South Wales and the number of containers is steadily growing with trade growth. Moreover, 85% of all containers through the port are handled within 40km of the port, although currently only approximately 21% of the containers are transported to and from the port by rail.

· Sydney Port’s Corporation development application for the proposed expansion of Port Botany is currently the subject of a Commission of Inquiry. A decision on the proposed expansion will set a clear indication of the future container volumes through the port. Application of the 40% rail mode share target to this forecast number will determine how many containers are to be transported by rail within the metropolitan area. This number, in turn, will determine what intermodal terminal capacity is required in Sydney over and above current terminal capacity.

The Significance of the Ports Freight Plan to the Determination of the Proposed Development

· The approval of any development application for a new intermodal terminal prior to the release of the Ports Freight Plan has the capacity to undermine the work of DIPNR and the FIAB, and ultimately, the integrity of the outcomes of the strategic planning process. In addition, it would also have the capacity to undermine the orderly and economic development of land, which is an objective of the EP&A Act : EP&A Act , s 5(a)(ii).

· The development of the Ports Freight Plan is well advanced. However, it is unreasonable to expect DIPNR, as developers of the strategy, to finalise and release the strategy until a decision on the future of Port Botany is made. Until this is resolved, it is inappropriate to recommend approval of any new intermodal terminals as it may be surplus to requirements and represent poor economic use of the land.

63 In addition, Ms Spanjaard expressed the following personal views about the proposed development in her statement of evidence:

· The site may not be large enough to cope with neither the projected increased volume of container movements nor the integrated operations and empty container storage of the necessary number of TEU to generate the likelihood of longer, single load trains to and from port terminals.

· The close proximity of the site to residential areas may preclude consent for a 24 hour 7 day a week operation which is desirable to maximise the efficiency of infrastructure i.e. utilisation of the rail network to and from the port.

· It is premature to grant a consent which would permit the development of a new intermodal facility at Ingleburn, until the potential role of the proposed Ingleburn site within a broader metropolitan intermodal network design is made clear.

64 During evidence in chief, Ms Spanjaard reiterated the objections contained in her statement of evidence and stated that the proposed development did not further the Government’s Ports Freight Plan due to the following reasons:

· The proposed development cannot be considered in isolation, though rather as part of the broader strategic network of intermodal cargo facilities and the supporting road and rail network.

· The train movements part of the proposed development would place a “footprint” on the rail network, which would preclude the ability of future planning to maximise the network to achieve the Government’s policy of 40 per cent rail mode share by 2011.

· To achieve the Government’s target of 40 per cent rail mode share, optimal intermodal cargo facilities should have a sufficient buffer and not be located near residential areas to enable them to operate 24 hours seven days a week and should have a turnover of approximately 300,000 TEU per year to satisfy the growing demand for the transportation of containerised cargo. If they cannot reach this threshold capacity to deliver volume, they may be commercially unviable. Commissioner Cleland clearly recommended that the facility should not operate as such due to its proximity to residential areas. Therefore, approval of the facility on the basis of the Commissioner’s recommendations would limit the capacity of the facility to a turnover of approximately 50,000 TEU per year. The facility would not satisfy the demands for cargo transportation and would limit the capacity of the Government to achieve the 40 per cent rail mode target share.

· Current investigations by the FIAB into the optimal strategic freight network are modelling potential networks and approval of the development may frustrate and delay the finalisation of the investigations and the formulation of the Strategy from three to six months. Similarly, the proposed storage (three containers (7.5 metres) high and eight containers deep) would be operationally inefficient, as it would slow down loading time considerably.

· The storage of the containers and the requirement for 700 metre trains to be split in two for processing under the proposed development is operationally inefficient. The need to split the trains in two and waits in a place reduces the number of cycles rail operators can achieve and thus, increases the capital costs of rail transport making it less attractive to the market.

· To maximise the efficiency and reduce congestion on the network, there should be a smaller number of larger trains rather than a greater number of smaller trains. Also, to reduce the overall amount of heavy, container trucks on the whole road network intermodal cargo facilities should have integrated facilities with site warehousing distribution, empty container storage, container cleaning and repairs.

· The findings of the RAC in the Sydney Metropolitan Rail Sites Study (July 1998) (Exhibit B(1), Tab 2) are irrelevant as the study identified only part of the site of the proposed development as being suitable for a rail operator not an intermodal cargo facility within a strategic network and the site identified by the report (site 10) was capable of receiving 1200 metre long trains.
· The Morris Report (February 2003) (Exhibit B(1), Tab 11) recommended that no approval should be given to any site until a comprehensive study is conducted to determine a strategy for a network of intermodal facilities and further that a comprehensive Commission of Inquiry should be conducted for all rail operations prior to approval.

65 During cross-examination, Ms Spanjaard conceded that she had not read any of the expert reports prepared in relation to the impacts of the proposed development and tendered during the COI. She noted, however, that the Commissioner’s findings and recommendations as well as the Morris Report, were made prior to the development of the government’s policy, the establishment of the FIAB and the commencement of the Inquiry into the Port Botany expansion. Ms Spanjaard stated that DIPNR’s submission to the commission that it considered the proposal to be strategically located and beneficial to encouraging the substitution of road transport by rail transport consistent with the state policy should be accepted by the Court and given significant weight.

66 Ms Spanjaard also conceded that she knew that the Minister had identified Ingleburn, the suburb, as a suitable location for an intermodal cargo facility in his address to the Sydney Futures Forum on 13 December 2004 (Exhibit 2, Tab 37) when he announced of Stage One of the Ports Freight Plan. Further, she conceded that as the Government has committed to, albeit not provided full approval for, the construction of a dedicated freight line between Macarthur and Chullora through metropolitan Sydney which would adjoin the proposed development (the proposal requires an EIS, review and funding), the development would be even more suitable as freight train movements generally, as well as trains entering the proposed site, would not be constrained by commuter trains on the main railway line.

67 Ms Spanjaard told the court that the Government’s policy in relation to intermodal cargo facilities could be found in the Minister’s speech to the Greater Western Sydney Freight Forum on 13 April 2005 (Exhibit 2, Tab 34). She indicated that within 3-4 months, this document containing guidelines for the development of future intermodal facilities in terms of the criteria they should meet in order to support the achievement of the rail mode target of 40 per cent would be produced and then may be legislated and may become a State environmental planning policy. She said that the primary desire of the Government is to move more containers by rail. In doing so, she conceded that as the proposed development does this and the development may well be consistent with the Government’s policy. Finally, she conceded, however, that the Minister wanted to delay the determination of the proposed development until the determination of the Commission of Inquiry into the Proposal of Sydney Ports Corporation to construct and operate a new container terminal and associated infrastructure at Port Botany in the City of Botany Bay local government area (the “COI into the Port Botany Expansion”) and the Minister’s subsequent determination of the Port Botany proposal. Ms Spanjaard further stated that it would be impossible to give any indication whatsoever of when the COI into the Port Botany Expansion will be determined and thus when the Ports Freight Plan would be finalised. In addition, however, she conceded that the proposed development does not depend for its viability, existence or justification on what may or may not happen in relation to the Port Botany proposal.

Agreed Facts

68 The Minister concedes that the objections to the development application cannot be a basis on which this Court should refuse the consent pursuant to s 80(1)(b) of the EP&A Act.

69 Importantly, Ms SA Duggan, appearing for the Minister, concedes that the proposed development application complies with all the requirements of the relevant statutory planning controls. Moreover, she concedes that the development is consistent with the zone objectives provided in sub-cl 12(2) of the LEP. Sub-clause 12(2) of the LEP relevantly provides:

12 Zone 4 (a)—General Industry Zone

What are the zone objectives and what effect do they have?

Except as otherwise provided by this plan, consent must not be granted for development on land within this zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone.

….

General Submissions

70 Patrick Autocare submits that the Court, as consent authority, should grant consent to the proposed development (s 80(1)(a)) of the EP&A Act) prior to finalisation of the Sydney Metropolitan Intermodal Freight Strategy (now known as the Ports Freight Plan) and determination of the Government’s preferred options for container movements and intermodal terminal locations in the Sydney Metropolitan Area.

71 Patrick Autocare submits that the subject site is highly suitable for the proposed development (s 79C(1)(c) of the EP&A Act) for the following reasons:

72 Patrick Autocare’s Statement of Environmental Effects (Exhibit A(1), pp 8-10) states that the proposed development is in accordance with both national and state policies which recognise the need for and the environmental benefits of intermodal cargo terminals. The Commonwealth Government’s 1998 National Greenhouse Strategy recommends the establishment of new intermodal freight terminals with a view to substituting freight journeys using rail/road modes in place of road transport alone as well as facilitating road and rail links to improve intermodal container movements. The Auslink Program, the Commonwealth’s new framework for funding infrastructure, also supports the development of intermodal container movements aimed at increasing the percentage of freight moved by rail. The program includes “development of new intermodal facilities and industrial zones on the outskirts of cities to contain urban road transport trips and enhance rails’ efficiency”.

73 In addition, under the New South Wales Government’s 25 year Air Quality Management Plan, Action for Air, an integrated freight management strategy across road, rail and other transport modes, supporting the establishment of new intermodal freight terminals, is being prepared to assist in achieving targets for reducing pollution by reducing the per capita growth in vehicle kilometres travelled.

74 Fundamentally, the Statement of Environmental Effects states that to develop the most economic and environmentally efficient transport system capable of dealing with the steady growth in containerised trade, strategically located intermodal facilities, such as the proposed development, are required to enable the transfer of cargo from rail to road for transport from manufacture to market and to, subsequently, ensure economic prosperity.

75 In addition, both the written submissions of Mr J E Robson SC, appearing for Patrick Autocare, and the Statement of Environmental Effects (Exhibit A(1), p 41) state that the proposed development is consistent with the findings of the Morris Report (Exhibit B(1), Tab 11, pp 13 and 15) conducted by the Honourable Milton Morris AO. The Morris Report concluded that there is a need for additional intermodal terminal capacity in Sydney over the coming decade and the planning for such capacity needs to be comprehensive and must take into account recent developments at all three NSW commercial ports; in road construction; and issues around construction of freight only rail tracks in and through Sydney. Further, the report stated the preferred strategic approach to the development of intermodal facilities “demands that there should be numerous small facilities spread across the metropolitan areas in order to maximise the distance containers travel by rail and minimise the distance travelled by road”.

76 In particular, the Statement of Environmental Effects states that the proposal meets and satisfies all of the key criteria for a successful intermodal terminal established in the Sydney Ports Corporation’s submission to the Morris Report. That is, the proposed development has the following characteristics:

77 In particular, the facility is located in close proximity to cargo and will have a vital and continuing role as part of Sydney’s growth corridor. The facility has access to the rail network and the proposed construction of a dedicated freight line will increase the facility’s capacity and suitability as the movement of freight trains generally, as well as trains entering the site, would not be constrained by commuter trains on the main railway line. Although the facility will actually reduce the number of existing truck movements, the site is in close proximity to the South Western Freeway (M5) which enhances the suitability of the site. The site is located in Ingleburn Industrial Area, which forms part of a significant industrial area within the southwest corridor, which is likely to become the most important and productive area in Sydney. Further, the suitability of the site is enhanced by its proximity to the existing Patrick Autocare site at Stennett Street. The proposed development will be both socially and environmentally beneficial. Detailed noise, traffic and visual studies confirm that the proposed site is one of the most suitable sites for an intermodal cargo facility. The Morris Report identified seventeen existing or potential sites, and the proposed site was short listed as one of six of these sites, which was noted as having the least potential impact on the community.

78 Furthermore, Mr Robson SC submits that subject site is highly suitable for the proposed development as it has also been identified by two RAC studies as the preferred location for an intermodal facility.

79 The Sydney Metropolitan Rail Sites Study (July 1998) (Exhibit B(1), Tab 2), pp 21-22) identified part of the proposed site (“Site 10 Ingleburn”: SW, Stennett Road, Ingleburn) as a potential site for a new rail operation. The study found that the site was suitable for freight operations as it is adjacent to the main southern line and has direct access, provided new connections are installed, to the north-south rail corridor, to Enfield Yard and to Sydney Ports.

80 Similarly, the Metropolitan Land Bridging Concept Study (December 1998) concluded that a “network” of a number of terminals would be required to satisfy both the volume and geographic distribution of industrial zones across Sydney. Significantly, the study identified the same site in Ingleburn as the Sydney Metropolitan Rail Sites Study.

81 Further, Mr Robson SC submits that DIPNR itself also consistently endorsed the strategic appropriateness of the site before the COI (Exhibit B(2), Tab 4, p 27; Tab 5, p 8). Ultimately, Mr Smith’s Statement of Evidence dated 31 May 2005 (Exhibit C) shows that only difference between the proposed development and that which was before the COI is that the current proposal adopted the recommendations of Commissioner Cleland. He therefore urges the Court to adopt the findings and recommendations of the Commissioner.

Specific Submissions

82 Mr Robson SC submits that the specific areas for consideration in this appeal are:

i. The current position of any Ports Freight Plan; and

ii. The weight to be accorded to the evidence of Ms Spanjaard.

i The Current Position of Any Ports Freight Plan

83 Ms S A Duggan, appearing for the Minister, adduced evidence to identify the process and development of the proposed Ports Freight Plan. The Minister relies on this evidence to urge the Court to exercise its jurisdiction to refuse consent pursuant to sub-s 80(1)(b) of the EP&A Act.

84 In relation to this issue, Mr Robson SC asks the Court to consider the judgment in Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 277 on the preliminary point of law, and in particular the following statement:

Minister for Aboriginal Affairs v Peko-Wallsend Limited

Stockland Development Limited v Manly Council

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs

85 Mr Robson SC submits that neither Ms Spanjaard’s statement of evidence nor the “speeches” of the Minister, to which Ms Spanjaard referred in her oral evidence, contain evidence which amounts to a policy, a draft policy or an otherwise identifiable government policy: Terrace Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195 at 209-219 [81] (per Mason P, Spigelman CJ and Ipp JA Agreeing); Stockland Development Limited v Many Council (2004) 136 LGERA 254 at [88] – [92] per McClellan J. The evidence of Ms Spanjaard establishes only that DIPNR is in the process of developing a Ports Freight Plan.

86 Mr Robson SC submits that Ms Spanjaard’s statement of evidence dated 19 May 2005 merely states:

i. in October 2003 the Ports Growth Plan was announced: [7], [20];
ii. Cabinet directed the Minister to investigate the opportunity for increasing rail mode share: [7], [20];
iii. in December 2004, the first element of the strategy, that the Government would target a 40% rail mode share of containing moving to and from the port, an increase on the current level of 21% was announced.
iv. the Freight Infrastructure Advisory Board has been established, its terms of reference including intermodal terminal network design, and will provide a report to the Minister by July 2005: [29].

87 Mr Robson SC further submits that in any event, there is simply no compelling evidence that would suggest (directly or indirectly) that the proposed development would be contrary to any such policy, especially in light of the plethora of material supporting the application (particularly by various government departments and indeed DIPNR itself). In support of this, he notes that in her oral evidence Ms Spanjaard agreed that there is no evidence to suggest that the earlier views of DIPNR have changed, though rather she sought to differentiate that DIPNR’s view (as previously expressed to Commissioner Cleland) relate to “land use”.

88 Mr Robson SC also submits that there is nothing in the provisions of the legislation, or in the subject-matter scope and purpose of the EP&A Act or the Court Act, which would require or allow the Court to give determinative weight to the consideration of the Minister’s assertion that a relevant strategy is being developed. Moreover, he argues that it is not in the public interest for the Court, as consent authority, to have regard to (or give any weight to) the assertions of Ms Spanjaard that a policy or strategy is being developed. Mr Robson SC submits that the public interest is served by determining the application in accordance with the law and the actual existing policies or draft policies referred to in s 79C of the EP&A Act.

ii The Weight to be Accorded to Ms Spanjaard’s Evidence

89 Mr Robson SC submits that the evidence of Ms Spanjaard’s personal views of the likely content of the Ports Freight Plan (pars [9], [30] – [36] statement of evidence) and of the suitability of the Ingleburn site (par [40] statement of evidence) is speculative and can have little or no weight.

90 Mr Robson SC submits that without the Ports Freight Plan itself, or at least a draft Plan prepared, for example, for public discussion, the evidence of Ms Spanjaard’s personal view of the likely content of the Ports Freight Plan can have little or no weight. He argues that such a finding is consistent with the relevant authorities.

91 Specifically, Mr Robson invites the Court to consider Stockland Development (at [90] –[92]) where McClellan J set out the matters to be considered when determining the weight to be accorded Urban Design Control or a planning policy. His Honour said (at par [90]-[92]):

EP&A Act

In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on them being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of the affected land, and reflects the outcomes which are within the range of sensible planning options.

To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows:

· The extent, if any, of research and public consultation undertaken when creating the policy;

· The time during which the policy has been in force and the extent of any review of its effectiveness;

· The extent to which the policy has been departed from in prior decisions;

· The compatibility of the policy with the objectives of and provisions of relevant environmental planning instruments and development control plans;

· The compatibility of the policy with other policies adopted by a council or by any other relevant government agency;

92 Mr Robson SC submits that is impossible to apply the principles in Stockland Development in the current proceedings as there is no policy to evaluate because the Ports Freight Plan cannot be shown to exist. He further submits that although the Court, in exercising its jurisdiction under s 80 of the EP&A Act, is required to have regard to the most current material available to it, the evidence presented in Ms Spanjaard’s statement of evidence amounts to little more than an indication of the likely content of a policy and is too incomplete, inaccurate and misleading to form a basis for the Court to exercise its jurisdiction to refuse consent: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 45 per Mason J; see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 591 per Bowen CJ and Deane J and at 607 per Smithers J. He also submits that the matters put forward amount to no more than the Government’s wish or advice, contrary to the obligation of the Court to independently determine the appeal: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18. Mr Robson SC conclusively submits that the evidence of Ms Spanjaard’s personal views of the likely content of the Ports Freight Plan should be rejected as having any evidential value in the determination by this Court of this appeal.

93 Consistently, Mr Robson SC argues that the evidence of Ms Spanjaard’s personal views of the suitability of the Ingleburn site (at par [40] of her statement of evidence) is also speculative and irrelevant to the Court’s determination of the development application. He further argues that in any event Ms Spanjaard’s personal views are contrary to earlier studies, recommendations and comments (including the Minister’s submission to the COI (Exhibit B(2), Tab 4, p 27) and the recommendation of Commissioner Cleland in his Report to the Minister (Exhibit B(2), Tab 8, pp 56-57)) which merely illustrates that information changes as a policy develops.

94 Ultimately, Mr Robson SC concludes that the evidence of Ms Spanjaard in relation to the proposed development, being the most current material available to it, is too incomplete and uncertain to have determinative weight in relation to Patrick Autocare’s appeal.

95 However, to the extent that Ms Spanjaard’s opinion that the approval of the proposed development may be inconsistent with any yet to be formulated Ports Freight Plan can be accepted, Mr Robson SC submits that his general submissions (as set out above pars [73] –[82]) as to the suitability of the site should be preferred and accepted. In particular, he argues that the location of the proposed development is consistent with the earlier identification of suitable locations (for example, in the Morris Report and the two RAC studies) and subject to micro planning issues (technical merit issues about which Ms Spanjaard expresses no opinion) is not inconsistent with the broad strategy to create a policy that may, if it ever materialises, give further direction to the evolution of freight strategy in New South Wales.

96 Mr Robson SC contends that independent of the whims of government, the Court has before it unequivocal evidence that supports a conclusion that the subject site is eminently suitable for the purposes of an intermodal cargo facility as proposed to be operated by Patrick Autocare. Furthermore, he argues that, to the extent that the desire of the executive government is reflected in the genesis of the Ports Freight Plan, the current proposal (which does not depend upon Port Botany in any event) still is in accordance with the proper desire to increase the transport of freight by rail.

Submissions in Conclusion

97 In conclusion, Mr Robson SC submits that the Minister’s evidence in relation to the Ports Freight Plan (specifically Ms Spanjaard’s evidence) either does not establish the policy or, to any extent it may establish the policy, cannot be given determinative weight for the Court to refuse consent and, therefore, consent should be granted to the development application. The following submissions are said to support this finding:

a) The operation of the prescribed time limits imposed by s 82 of the EP&A Act and cl 113 of the EP&A Reg evinces a legislative policy of promptitude in decision-making under the EP&A Act in respect of development applications. Had Parliament sought to enable determinations to be put on hold until a Minister got around to formulating policy or strategy on a particular matter it could have said so in the EP&A Act .

b) The proposed development complies with the strategies and policies that have certainty and are known in relation to intermodal facilities and rail freight strategies: see for example the Minister’s submission to the COI (Exhibit B2, Tab 4).

c) The content and detail of any future policy or Ports Growth Plan is unknown. The timing of the policy is unknown and, to the extent that it is dependent upon the Port Botany expansion (and the COI into the Port Botany Expansion ) the content and effect are entirely unknown.

d) This Court cannot refuse consent on the basis that a policy may be forthcoming. There is no legislative warrant to defer making a decision about a proposed development while a policy may or may not be formulated. In any event, the current proposal does not depend upon the expansion of Port Botany.

e) There is no foundation for the Minister’s suggestion (if it is put so high) that to determine this application prior to the formulation of any relevant policy will have dire or serious or even material detrimental consequences for the transportation of containerised cargo to and from Port Botany. The evidence is, with respect, all the other way. The serious consequences of not approving the development (accepting that there is no technical merit issue left unresolved) is to shut ones eyes to the obvious material benefits to the environment namely, the massive reduction in truck traffic between Port Botany and the Macarthur region and is to ignore the undisputed reality of the need and, indeed, the Government’s own commitment to increasing, the amount of cargo to be transported by rail.

The Minister’s Submissions

98 The Minister’s principal submission is that the Court, as consent authority, should refuse consent to the proposed development (s 80(1)(b) of the EP&A Act) since consent should not be granted prior to finalisation of the Ports Freight Plan and determination of the Government’s preferred options for container movements and intermodal terminal locations in the Sydney Metropolitan Area. I have reformulated and now set out the detailed submissions, as I understand them, advanced in support of this contention.

The State Government’s Policy on Intermodal Cargo Facilities: The Ports Freight Plan

99 Ms Duggan, appearing for the Minister, submits that there is a final state government policy regarding the development of a network of intermodal cargo facilities called the Ports Freight Plan; that the plan is currently progressing towards a detailed strategic document that reflects the policy and allows the policy to be implemented; that policy does not have to be written, it does not have to be an environmental planning instrument and it does not have to be a piece of legislation. Ms Duggan relies upon the Court of Appeal decision of Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195, where Mason P said (at [81]):

Environmental Planning and Assessment Act

100 Ms Duggan submits that although Terrace Tower Holdings concerned the weight to be given to a draft state environmental policy under s 79C of the EP&A Act, it is clear from that case that policies do not need to be in the form of draft or final environmental planning instruments. She submits that policy evolves through government pronouncements from the necessary Minister, and as such, there is no necessity for public consultation or a draft policy.

101 Contrary to the submissions of Mr Robson SC, Ms Duggan asks the Court to distinguish Stockland Development. She submits that the case is not applicable as in that case the Court was considering a development control plan which is a policy generated in the context of a council’s powers and those powers are different and constrained when compared to those of the State government, as in this case. She notes that in Stockland Development McClellan J did, however, recognise that a policy which is based on research and consultation is to be given considerable weight and need not be a written document but reflective of outcomes which are within the range of sensible planning options (at [91]).

102 Ms Duggan submits that the Ports Freight Plan has been clearly stated by the State government and acted upon. She notes the Minister announced the plan in October 2003 (Exhibit 2, Tab 42) as the means to achieve the State government’s target of increasing the rail modal share in freight transport moving to and from Port Botany to 40 per cent by 2011, an increase above the present 21 per cent. She submits that the plan is being developed by the Minister to provide for a comprehensive and coordinated network of strategically located intermodal cargo facilities and associated infrastructure to address the continuing increases in container trade. The plan forms part of the NSW Metropolitan Strategy, which is currently being implemented through many other policies.

103 Ms Duggan argues that the fact that this policy is a target does not make it any less of a policy. In opposition to Mr Robson SC, she submits that the policy amounts to much more than a mere wish, desire or dictation of the State government (Wilson) as the Minister has committed to investigate and implement whatever mechanisms are required in order to ensure that the target is achieved.

104 Ms Duggan submits that there is substantial and significant evidence in relation to the existence and formulation of the state government’s policy of a 40 per cent rail mode share and the Ports Freight Plan as well as the extensive progress towards development and implementation of the plan to achieve the target. She relies on the following submissions to support this contention:

a) In February 2004, the NSW Government made a submission to the Legislative Council Standing Committee on State Development - Inquiry into Port Infrastructure in New South Wales (Exhibit 2, Tab 40, p 8) which noted the development of the Ports Growth Plan to address the important strategic issues in relation to the future of port development in NSW in the coming 20 years. It recognised that the plan will provide strategic direction to allow the private sector to commence planning for the next tranche of major container growth throughout NSW, and it also will allow the public sector providers of road and rail infrastructure to settle on their long-term development plans. The submission further noted that an Intermodal Freight Planning Group had been convened for the purposes of providing advice to the Minister.

Revised Primary Submission to the COI into the Port Botany Expansion

· Constrained ability to accommodate longer trains either at the port, on the metropolitan rail network or at the intermodal terminals in the metropolitan area; and

· Whether sufficient intermodal terminal capacity exists in Sydney and, in fact, whether it is capable of being delivered within timeframes consistent with the forecast growth of container traffic;

2.5 The Applicant shall meet the requirements of the Director-General in respect of the implementation of any measure necessary to ensure compliance with the conditions of this consent, and general consistency with the documents listed under condition 1.1 of this consent. The Director-General may direct that such a measure be implemented in response to the information contained within any report, plan, correspondence or other document submitted in accordance with the conditions of this consent, within such time as the Director-General may agree.

3. ENVIRONMENTAL PERFORMANCE
Air Quality Impacts

3.1 The Applicant shall not permit any offensive odour to be emitted beyond the boundary of the site, as defined under section 129 of the Protection of the Environment Operations Act 1997.

3.2 The Applicant shall undertake the development in a manner that minimises or prevents dust emissions from the site, including wind-blown and traffic-generated dust. All activities on the site shall be undertaken with the objective of preventing visible emissions of dust from the site. Should such visible dust emissions occur at any time, the Applicant shall identify and implement all practicable dust mitigation measures, including cessation of relevant works, as appropriate, such that emissions of visible dust cease.

3.3 The Applicant shall ensure that section 120 of the Protection of the Environment Operations Act 1997 (prohibition of pollution of waters) is complied with in and in connection with the carrying out of the development.

Erosion and Sedimentation

3.4 All soil and/or vegetation disturbed or removed from the site shall be disposed of to, or stored at, an appropriate location where it cannot be washed off the site.

3.5 All construction vehicles exiting the site, having had access to unpaved areas, shall depart via a wheel wash facility.

3.6 The Applicant shall install appropriate erosion controls (eg haybales) to prevent soil or sediment loss from the site. The Applicant shall ensure that sediment laden run-off from the site does not enter Bow Bowing Canal Bay during any stage of the development.

3.7 The Applicant shall install all erosion, sedimentation and pollution control infrastructure prior to the commencement of any soil-disturbing activities on the site. This infrastructure is to be maintained at or above design capacity for the duration of soil-disturbing works and until such time as all disturbed areas have been stabilised and rehabilitated so as not to act as an on-going source of sediment.

Stormwater and Drainage

3.8 All stormwater runoff collected from hardstand areas, carparks and roadways shall be collected and treated prior to discharge.

3.9 All stormwater runoff naturally draining to the site shall be collected and discharged through the site's stormwater system.

3.10 The Applicant shall design, implement and maintain a stormwater management system for the site capable of collecting, containing and treating all stormwater for at least a one-in-three month ARI storm peak flow.

Riparian Protection and Enhancement

3.11 The Applicant shall undertake the development in a manner that does not cause damage to, or increase erosion of banks associated with Bow Bowing Canal.

3.12 The Applicant shall design, construct and maintain any stormwater outlet structure located within 40 metres of Bow Bowing Canal to ensure that the structure does not compromise the stability or function of the riparian zone. The design of any outlet structure within the riparian zone, including pipelines and spillways, shall be in accordance with the Department’s guideline Stormwater Outlet Structures to Streams and shall be approved by the Director-General prior to the commencement of any construction works within the riparian zone

3.13 The Applicant shall establish and maintain a riparian zone, consisting of local native plant species, in the area between the development and Bow Bowing Canal, within the property boundary. The zone shall be designed to ensure bed and bank stability of this area, and to prevent any sedimentation and water quality impacts on the Canal as a result of the development. The riparian zone shall be designed and constructed to meet the requirements of the Department and shall be addressed as part of the Landscape Management Plan required under condition 6.5d) of this consent.

3.14 The Applicant shall maintain the riparian zone, as required by condition 3.13, for a period of at least two years after final planting. Every six months during that period the Applicant shall submit to the satisfaction of the Director-General, a status report detailing the progress of implementation of the Landscape Management Plan.

3.15 The Applicant shall minimise noise emissions from plant and equipment operated on the site in relation to the development by installing and maintaining, wherever practicable, efficient silencers, low-noise mufflers (residential standard) and replacement of reversing alarms with alternative silent measures, such as flashing lights.

Restriction to Hours

3.16 Car trains arriving at the site before 6.00am shall not enter the site and shall be shut down on the approach line. The engine shall not be restarted, nor any uncoupling or placement of wagons on the site’s sidings, until after 6.00am.

3.17 The Applicant shall only undertake construction activities associated with the development, including the delivery of material to and from the site, between the following hours:

a) 7:00 am to 6:00 pm, Mondays to Fridays, inclusive;

b) 8:00 am to 1:00 pm on Saturdays; and

c) at no time on Sundays or public holidays.

3.18 The Applicant shall only operate the development between the following hours:

a) 5:00 am to 6:00 pm, Mondays to Fridays, inclusive;

b) 5:00 am to 6:00 pm on Saturdays; and

c) at no time on Sundays or public holidays.

3.19 Notwithstanding condition 3.18 of this consent, the Applicant may undertake rail operations (being the loading or unloading of trains) outside the hours indicated in condition 3.18 on up to 12 occasions in any 12 month period.

3.20 The time restrictions specified under conditions 3.16 and 3.18 of this consent may be varied with the Director-General's agreement with the proposed variation in times, including the results of any community consultation that the Director-General may require the Applicant to undertake, and after providing any information necessary for the Director-General to reasonably determine that activities undertaken during the varied hours will not adversely impact on the acoustic amenity of receptors in the vicinity of the site.

Noise Limits

3.21 The Applicant shall design, construct, operate and maintain the development to ensure that the noise contributions from the development to the background acoustic environment do not exceed the maximum allowable noise contributions specified in Table 1, at the residence most affected by noise from the development. The maximum allowable noise contributions apply under:

a) wind speeds up to 3 ms-1 (measured at 10 metres above ground level); or

b) temperature inversion conditions up to 3oC per 100 metres and wind speeds up to 2 ms-1 (measured at 10 metres above ground level).

Table 1 - Maximum Allowable Noise Contribution

Day
7:00am to 6:00pm Mondays to Saturdays
8:00am to 6:00pm Sundays and public holidays

Shoulder
5:00am to 7:00am Mondays to Saturdays

Evening
6:00pm to 10:00pm on any day

Night
10:00pm to 5:00am Mondays to Saturdays
10:00pm to 8:00am Sundays and public holidays

LAeq(15 minute)

LAeq(15 minute)

LA1(1 minute)

LAeq(15 minute)LAeq(15 minute)LA1(1 minute)

49

49

59

45

45
55

3.22 For the purpose of assessment of noise contributions specified under condition 3.21 of this consent, noise from the development shall be:

a) at any point within the residential boundary; and

b) subject to the modification factors provided in Section 4 of the New South Wales Industrial Noise Policy (EPA, 2000), where applicable.

New South Wales Industrial Noise Policy

Waste Generation and Management

3.23 The Applicant shall ensure that all liquid and/ or non-liquid wastes generated and/ or stored on the site, including contaminated soils, are assessed and classified in accordance with the EPA’s Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-Liquid Wastes (Waste Guidelines) as in force as at 1 July 1999.

3.24 Wastes removed from the site for treatment and/ or disposal shall only be sent to a waste management facility able to lawfully accept those wastes.

Visual Impacts

3.25 The Applicant shall ensure that all external lighting associated with the development is mounted, screened, and directed in such a manner so as not to create a nuisance to surrounding properties or roadways. The lighting shall be the minimum level of illumination necessary and shall comply with AS 4282 1997 - Control of Obtrusive Effects of Outdoor Lighting.

3.26 Nothing in this consent permits the Applicant to erect or display any advertising structure(s) or advertisements associated with the development.

Traffic and Transport Impacts

3.27 All heavy vehicles entering the site shall be wholly contained within the site before being required to stop.

3.28 The Applicant shall ensure that all landscaping is established and maintained so as not to affect driver sight distance for vehicles entering and exiting the site.

3.29 Vehicles associated with the development shall not to park or stand on Broadhurst Road, Slater Road or Stennett Road at any time.

3.30 The Applicant shall design and construct all internal road works, including associated parking and loading facilities:

a) in accordance with the relevant Roads and Traffic Authority and Council standards and codes, and Australian Standards, including AS 2890.1-1993 Parking Facilities - Off-Street Car Parking and AS 2890.2-2002 Parking Facilities - Off-Street Commercial Vehicle Facilities;

b) with clearly marked visitor, disabled, ambulance and service vehicle parking areas; and

c) with signage to demarcate all vehicle movements within the site.

Community Enhancement Program

3.31 Prior to the issue of a construction certificate for the development the Applicant shall pay to Council $88,106 to compensate for the cumulative social and/or community impacts as the result of the proposed development

4.1 Within 90 days of the commencement of operation of the development, or as may be agreed by the Director-General, and during a period in which the development is operating under design loads and normal operating conditions, the Applicant shall undertake a program to confirm the noise emission performance of the development. The program shall include, but not necessarily be limited to:

a) noise monitoring, consistent with the guidelines provided in the New South Wales Industrial Noise Policy (EPA, 2000), to assess compliance with condition 3.21 of this consent;

b) methodologies for noise monitoring;

c) location of noise monitoring;

d) frequency of noise monitoring;

e) identification of monitoring sites at which pre- and post-development noise levels can be ascertained; and

f) details of any entries in the Complaints Register (condition 5.2 of this consent) relating to noise impacts.

4.2 In the event that the program undertaken to satisfy condition 4.1 of the consent indicates that the operation of the development, under design loads and normal operating conditions, will lead to greater noise impacts than permitted under condition 3.21 of this consent, then the Applicant shall provide details of remedial measures to be implemented to reduce noise impacts to levels required by that condition. Details of the remedial measures and a timetable for implementation shall be submitted to the Director-General for approval within such period as the Director-General may require.

Transport Auditing

4.3 Within 90 days of the commencement of operation of the development, and then as may be required by the Director-General, the Applicant shall commission an independent Transport Audit of the development. This Audit shall:

a) be undertaken by a suitability qualified and experienced person, approved by the Director-General prior to the commencement of the Audit;

b) assess whether the heavy vehicles associated with the development are complying with the predictions and mitigation measures detailed in the documents referred to under condition 1.1 of this consent; and,

c) if any non-compliance is detected, identify what additional measures will be implemented to ensure compliance.

The Applicant may, with the prior approval of the Director-General, utilise Global Positioning System technology as an alternative to the monitoring requirements set out above. In gaining this approval, the Applicant shall demonstrate to the Director-General the suitability of this technology and subsequent data analysis in fulfilling the requirements of this condition.

4.4 Within 28 days of conducting the Audit referred to under condition 4.3 of this consent, the Applicant shall provide the Director-General and Council with a copy of the Transport Audit report. If the Audit identifies any non-compliance in relation to traffic movements and impacts, the Applicant shall detail what additional measures would be implemented to ensure compliance, clearly indicating who would implement these measures, when these measures would be implemented, and how the effectiveness of these measures would be measured and reported to the Director-General.

4.5 Twelve months after the commencement of operation of the development, and every three years thereafter, or as otherwise agreed or required by the Director-General, the Applicant shall commission an independent, qualified person or team to undertake an Environmental Audit of the development. The independent person or team shall be approved by the Director-General prior to the commencement of the Audit. An Environmental Audit Report shall be submitted for the approval of the Director-General within one month of the completion of the Audit. The Audit shall:

a) be carried out in accordance with ISO 19011:2002 - Guidelines for Quality and/ or Environmental Management Systems Auditing;

b) assess compliance with the requirements of this consent, and other licences and approvals that apply to the development;

c) assess the environmental performance of the development against the predictions made and conclusions drawn in the documents referred to under condition 1.1 of this consent; and

d) review the effectiveness of the environmental management of the development, including any environmental impact mitigation works.

5. COMMUNITY INFORMATION, CONSULTATION AND INVOLVEMENT

5.1 Subject to confidentiality, the Applicant shall make all documents required under this consent available for public inspection on request. This shall include provision of all documents at the site for inspection by visitors, and in an appropriate electronic format on the Applicant's internet site, should one exist.

5.2 Prior to the commencement of construction of the development, the Applicant shall ensure that the following are available for community complaints:

a) a 24-hour, toll-free telephone number on which complaints about the development may be registered;

b) a postal address to which written complaints may be sent; and

c) an email address to which electronic complaints may be transmitted.

5.3 The Applicant shall record details of all complaints received through the means listed under condition 5.2 of this consent in an up-to-date Complaints Register. The Register shall record, but not necessarily be limited to:

a) the date and time, where relevant, of the complaint;

b) the means by which the complaint was made (telephone, mail or email);

c) any personal details of the complainant that were provided, or if no details were provided, a note to that effect;

d) the nature of the complaint;

e) any action(s) taken by the Applicant in relation to the complaint, including any follow-up contact with the complainant; and

f) if no action was taken by the Applicant in relation to the complaint, the reason(s) why no action was taken.

5.4 Prior to the commencement of construction of the development, the Applicant shall develop and submit for the approval of the Director-General, a Complaints Handling and Response Protocol, detailing how public complaints will be managed and addressed in an appropriate and timely manner. Once approved, the Applicant shall implement the Protocol for the duration of the development.

6.1 Prior to the commencement of construction of the development, the Applicant shall nominate a suitably qualified and experienced Environmental Representative(s), approved by the Director-General. The Applicant shall employ the Environmental Representative(s) on a full-time basis for the duration of the development. The Environmental Representative shall be:

a) the primary contact point in relation to the environmental performance of the development;

b) responsible for all Management Plans and Monitoring Programs required under this consent;

c) responsible for considering and advising on matters specified in the conditions of this consent, and all other licences and approvals related to the environmental performance and impacts of the development;

d) responsible for receiving and responding to complaints in accordance with condition 5.2 of this consent; and

e) given the authority and independence to require reasonable steps be taken to avoid or minimise unintended or adverse environmental impacts, and failing the effectiveness of such steps, to direct that relevant actions be ceased immediately should an adverse impact on the environment be likely to occur.

6.2 The Applicant shall prepare and implement a Construction Environmental Management Plan to outline environmental management practices and procedures to be followed during construction of the development. The Plan shall include, but not necessarily be limited to:

a) a description of all activities to be undertaken on the site during construction including an indication of stages of construction, where relevant;

b) statutory and other obligations that the Applicant is required to fulfil during construction including all approvals, consultations and agreements required from authorities and other stakeholders, and key legislation and policies;

c) details of how the environmental performance of the construction works will be monitored, and what actions will be taken to address identified adverse environmental impacts. In particular, the following environmental performance issues shall be addressed in the Plan:

i) measures to monitor and manage dust emissions;

ii) measures to monitor and minimise soil erosion and the discharge of sediment and other pollutants to lands and/ or waters during construction activities;

iii) measures to monitor and control noise emissions during construction works;

iv) measures to monitor and control air emissions during construction to ensure that air emissions are both minimised and in compliance with the requirements of this consent and the Environment Protection Licence for the site;

d) a description of the roles and responsibilities for all relevant employees involved in the construction of the development;

e) the Management Plans listed under condition 6.3 of this consent; and

f) complaints handling procedures during construction.

6.3 As part of the Construction Environmental Management Plan for the development, required under condition 6.2 of this consent, the Applicant shall prepare and implement the following Management Plans:

a) an Erosion and Sedimentation Management Protocol to ensure that all erosion and sediment controls associated with the development are consistent with Managing Urban Stormwater: Soils and Construction (Landcom, 2004).. The Plan shall address the requirements of the Department shall include, but not necessarily be limited to:

i) results of investigations into soils associated with the site, in particular the stability of the soil and its susceptibility to erosion;

ii) details of erosion, sediment and pollution control measures and practices to be implemented during construction of the development;

iii) design specifications for diversionary works, banks and sediment basins;

iv) an erosion monitoring program during construction works associated with the development; and

v) measures to address erosion, should it occur, and to rehabilitate/ stabilise disturbed areas of the site.

b) a Noise Management Protocol to detail measures to mitigate and manage noise during construction works. The Protocol shall include, but not necessarily be limited to:

i) procedures to ensure that all reasonable noise mitigation measures are applied during construction works;

ii) construction noise objectives for each relevant receiver commensurate with the noise limits and noise goals specified under this consent;

iii) identification of the associated noise sources and activities that will be carried out during construction;

iv) assessment of construction noise impacts against the noise limits and noise limits and goals at all relevant receivers;

v) details of overall management methods and procedures that will be implemented to control noise from during construction;

vi) a pro-active and reactive strategy for dealing with complaints, with particular regard to verbal and written responses;

vii) noise monitoring, reporting and response procedures;

viii) internal compliance audits of all plant and equipment;

ix) construction timetabling to minimise noise impacts; and

x) procedures for notifying residents of construction activities likely to affect their acoustic amenity.

c) a Traffic Management Protocol to outline management of traffic conflicts that may be generated during construction of the development. The Protocol shall address the requirements of Council and the Roads and Traffic Authority and shall include, but not necessarily be limited to:

i) details of traffic routes for heavy vehicles, including any necessary route or timing restriction for oversized loads;

ii) detailed consideration of measures to be employed to ensure traffic volume, acoustic and amenity impacts along the heavy vehicle routes are minimised;

iii) detailed consideration of alternative routes (where necessary); and

iv) demonstration that all statutory responsibilities with regard to road traffic impacts have been complied with.

6.4 The Applicant shall prepare and implement an Operation Environmental Management Plan to detail an environmental management framework, practices and procedures to be followed during operation of the development. The Plan shall include, but not necessarily be limited to:

a) identification of all statutory and other obligations that the Applicant is required to fulfil in relation to operation of the development, including all consents, licences, approvals and consultations;

b) a description of the roles and responsibilities for all relevant employees involved in the operation of the development;

c) overall environmental policies and principles to be applied to the operation of the development;

d) standards and performance measures to be applied to the development, and a means by which environmental performance can be periodically reviewed and improved, where appropriate;

e) management policies to ensure that environmental performance goals are met and to comply with the conditions of this consent; and

f) the Management Plans listed under condition 6.5 of this consent.

6.5 As part of the Operation Environmental Management Plan for the development, required under condition 6.4 of this consent, the Applicant shall prepare and implement the following Management Plans:

a) a Water Management Plan to outline measures that will be employed to manage water on the site, to minimise soil erosion and the discharge of sediments and other pollutants to lands and/ or waters throughout the life of the development. The Plan shall be based on best environmental practice and shall address the requirements of the Department. The Plan shall include, but not necessarily be limited to:

i) detailed plans showing the design of the stormwater control infrastructure;

ii) demonstration that the stormwater control infrastructure will conform with, or exceed all relevant Council requirements and guidelines;

iii) description of the procedures for the installation, inspection and maintenance of the stormwater control infrastructure, including stormwater pollution control devices;

iv) consideration of all reasonable and feasible options to avoid discharge to ground and/or ambient waters including methods to minimise the volume of contaminated water and effluent generated, recycling and reusing water and effluent;

v) identification of clean and dirty water areas on site maps for different stages of the development;

vi) identification of criteria for nomination of areas as clean or dirty;

vii) details of water management measures to be implemented for clean and dirty waters;

viii) calculations for a water balance for all waters generated on the site including potential volumes of groundwater, stormwater and process water for treatment on-site or off-site, proposed discharges, recycling or reuse;

ix) details of the remedial actions to be taken by the Applicant and site operators in response to an exceedance of concentration limits or other performance criteria for the on-site or ambient water management controls;

x) characterisation of wastewater qualities and quantities for reuse on-site shall be characterised and irrigation management practices specified;

xi) specification of wastewater reuse areas shall be specified on site maps for different stages of the development; and

xii) specific details shall be provided in relation to the times, locations, volumes and qualities of the water to be irrigated, including how the quality of water to be used for irrigation will be assessed.

b) a Noise Management Plan to detail measures to mitigate and manage noise during operation of the development. The Protocol shall include, but not necessarily be limited to:

i) procedures to ensure that all reasonable and feasible noise mitigation measures are applied during operation of the development;

ii) procedures to generate suitable documentation for annual environmental auditing, that demonstrates that the noise limits and noise goals specified under this consent, or best practice noise control operations, are being met;

iii) identification of all relevant receivers and the applicable criteria at those receivers commensurate with the noise limits and noise goals specified under this consent;

iv) identification of activities that will be carried out in relation to the development and the associated noise sources;

v) procedures for periodic consideration of noise impacts at the relevant receivers against the noise limits and noise goals specified under this consent;

vi) details of all management methods and procedures that will be implemented to control individual and overall noise emissions from the site during operation;

vii) development of reactive and pro-active strategies for dealing promptly with any noise complaints, including documentation of a fast response (eg within one hour), the completed action on a complaint and feedback from the complainant (eg within 24 hours); and

viii) noise monitoring and reporting procedures.

c) a Transport Code of Conduct to outline minimum requirements for the movement of heavy vehicles to and from the site. The Code shall meet the requirements of Council and the RTA, should there be any. The Code shall include, but not necessarily be limited to:

i) restrictions to routes;

ii) speed limits to be observed along routes to and from the site;

iii) restrictions to the hours of transport operations to avoid travelling through built-up areas late at night or at times of high traffic flows in those areas;

iv) minimum requirements for vehicle maintenance to address noise and exhaust emissions;

v) behavioural requirements for drivers; and

vi) load coverage requirements.

d) a Landscape Management Plan to outline measures to ensure appropriate development and maintenance of landscaping on the site. The Plan shall include, but not necessarily be limited to:

i) details of all landscaping to be undertaken on the site with specific reference to screening structural elements of the development from lines of sight with surrounding visual receptors;

ii) maximisation of flora species endemic to the locality in landscaping the site;

iii) provision for the removal of all noxious weeds, as listed under the NSW Noxious Weed Act 1993, from the site, and prevention of reinfestation of the site with those species;

iv) results of consultation with Council and the Department to determine appropriate species for landscaping on the site;

v) details of car parking and measures to prevent vehicle encroachment onto landscaped areas;

vi) details of an irrigation system to be installed throughout all landscaped areas to provide full coverage to those areas with no overspray onto hard surfaces; and

vii) a program to ensure that all landscaped areas on the site are maintained in a tidy, healthy state.

7. ENVIRONMENTAL REPORTING
Incident Reporting

7.1 The Applicant shall notify the Director-General of any incident with actual or potential significant off-site impacts on people or the biophysical environment within 12 hours of becoming aware of the incident. The Applicant shall provide full written details of the incident to the Director-General within seven days of the date on which the incident occurred.

7.2 The Applicant shall meet the requirements of the Director-General to address the cause or impact of any incident, as it relates to this consent, reported in accordance with condition 7.1 of this consent, within such period as the Director-General may require.

7.3 The Applicant shall, throughout the life of the development, prepare and submit for the approval of the Director-General, an Annual Environmental Management Report (AEMR). The AEMR shall review the performance of the development against the Operation Environmental Management Plan (refer to condition 6.4 of this consent), the conditions of this consent and other licences and approvals relating to the development. The AEMR shall include, but not necessarily be limited to:

a) details of compliance with the conditions of this consent;

b) a copy of the Complaints Register (refer to condition 5.2 of this consent) for the preceding twelve-month period (exclusive of personal details), and details of how theses complaints were address and resolved;

c) identification of any circumstances in which the environmental impacts and performance of the development during the year have not been generally consistent with the environmental impacts and performance predicted in the documents listed under condition 1.1 of this consent, with details of additional mitigation measures applied to the development to address recurrence of these circumstances ;

d) results of all environmental monitoring required under this consent and other approvals, including interpretations and discussion by a suitably qualified person; and

e) a list of all occasions in the preceding twelve-month period when environmental performance goals for the development have not been achieved, indicating the reason for failure to meet the goals and the action taken to prevent recurrence of that type of incident.

**********

Citations

Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources (No. 2) [2005] NSWLEC 412

Most Recent Citation

Cases Citing This Decision

1

SJ Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151

Cases Cited

6

Statutory Material Cited

3

Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 277

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41

Kioa v West [1985] HCA 81

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CITATION:	Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources (No. 2) [2005] NSWLEC 412
PARTIES:	APPLICANT: Patrick Autocare Pty Limited ACN 004 497 607 RESPONDENT The Minister for Infrastructure, Planning and Natural Resources
FILE NUMBER(S):	11609 of 2004
CORAM:	Lloyd J
KEY ISSUES:	Development Application :- intermodal cargo facility - State significant development - weight to be given to government policy
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 (NSW), sub-ss 5(a)(i) and (ii), 76A(7) and (9), 79C(1)(c), 80 (1), (4) and (5); ss 79A, 82, 91, 97 Land and Environment Court Act 1979 (NSW), s 39(4) Rivers and Foreshores Improvement Act 1948 (NSW), Pt 3A
CASES CITED:	Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 277; Stockland Development Limited v Many Council (2004) 136 LGERA 254; Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1
DATES OF HEARING:	03/06/2005 and 06/06/2005
DATE OF JUDGMENT:	08/03/2005
LEGAL REPRESENTATIVES:	APPLICANT: J E Robson SC SOLICITORS: Deacons RESPONDENT: S A Duggan (barrister) SOLICITOR: Christine Hanson

Day 7:00am to 6:00pm Mondays to Saturdays 8:00am to 6:00pm Sundays and public holidays	Shoulder 5:00am to 7:00am Mondays to Saturdays	Evening 6:00pm to 10:00pm on any day	Night 10:00pm to 5:00am Mondays to Saturdays 10:00pm to 8:00am Sundays and public holidays
LAeq(15 minute)	LAeq(15 minute)	LA1(1 minute)	LAeq(15 minute)LAeq(15 minute)LA1(1 minute)
49	49	59	45 45 55