Residents Against Intermodal Developments Moorebank Incorporated v Independent Planning Commission (No 2)

[2021] NSWLEC 1501

Land and Environment Court

New South Wales

Medium Neutral Citation:

Residents Against Intermodal Developments Moorebank Incorporated v Independent Planning Commission (No 2) [2021] NSWLEC 1501

Hearing dates:

21-29 June and 1 July 2021; mention on 17 December 2021

Date of orders:

24 December 2021

Decision date:

24 December 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to State Significant Development Application No. 7709, for the Moorebank Precinct West Stage 2 (MPW Stage 2) at Moorebank Avenue, Moorebank (Lot 1 DP 1197707, Lot 2 DP 1197707, Lot 100 DP 1049508, Lot 101 DP 1049508, Part Lot 3 DP 1197707 and Part Anzac Road and Moorebank Avenue public road reserves), subject to the conditions in Annexure A.

(3) The exhibits are returned except for A, R1-1 and R2-2.

Catchwords:

APPEAL – objector appeal under s 8.8 of the Environmental Planning and Assessment Act 1979 – State significant development – intermodal facility and rail link – development consent continues to operate during the course of the proceedings – whether development impacts can be adequately mitigated or managed – modifications to approved development consent – power under s 4.55(2) not relevant to present application – whether the consent in its current modified form is a consent that the Court should grant

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.5, 4.10, 4.12, 4.15, 4.17, 4.22, 4.24, 4.36, 4.55, 7.4, 7.8, 8.8, 8.13

Environmental Planning and Assessment Regulation 2000, cl 97, Sch 2 cll 6, 7, Sch 3

Interpretation Act 1987, s 80

Land and Environment Court Act 1979, s 39

Liverpool Local Environmental Plan 2008, cl 7.36

State Environmental Planning Policy (State and Regional Development) 2011, cl 18A, Sch 1 cl 19

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85

Australian International Academy of Education Inc v The Hills Shire Council (2013) 196 LGERA 1

Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85

Blacktown City Council v Satmell [2019] NSWLEC 93

Botany Bay City Council v Minister for Planning (2006) 148 LGERA 251; [2006] NSWLEC 194

Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; [2000] NSWCA 364

Charara v Ku-ring-gai Council [2019] NSWLEC 183

Greentree v Director-General of the Department of Land and Water Conservation [2002] NSWLEC 53

Helman v Byron Shire Council (1995) 87 LGERA 349

Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16

Houlton v Woollahra Municipal Council (1997) 95 LGRA 201

Mison v Randwick Municipal Council (1991) 23 NSWLR 734; (1991) 73 LGERA 349

Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280

North Sydney Council v Michael Stanley and Associates Pty Ltd (1998) 43 NSWLR 468

Prineas v Forestry Commission of NSW (1983) 49 LGRA 402

Scurr v Brisbane City Council (1973) 133 CLR 242

Sydney City Council v llenace Pty Ltd (1984) 3 NSWLR 414

Vacik Pty Ltd V Penrith City Council (unreported) [1992] NSWLEC 8

Wolgan Action Group Inc v Lithgow City Council (2001) 116 LGERA 378; [2001] NSWLEC 199

Texts Cited:

Environment Protection Authority, Noise Policy for Industry (2017)

Category:

Principal judgment

Parties:

Residents Against Intermodal Developments Moorebank Incorporated (Applicant)
Independent Planning Commission (First Respondent)
Qube Holdings Limited (Second Respondent)

Representation:

E Rakowski (Agent) (Applicant)

Counsel:
T Robertson SC (Applicant)
R Beasley SC with J Reid (First Respondent)
A Galasso SC (Second Respondent)

Solicitors:
NSW Department of Planning, Industry & Environment (First Respondent)
Allens (Second Respondent)

File Number(s):

2020/4407

Publication restriction:

Nil

Judgment

Introduction

1. These Class 1 proceedings concern an objector appeal commenced by Residents Against Intermodal Developments Moorebank Incorporated (“RAID”, the applicant) on 6 January 2020 pursuant to s 8.8(2) of the Environmental Planning and Assessment Act 1979 (NSW) (“EPA Act”).

2. They relate to the Independent Planning Commission’s (“IPC”, the first respondent) grant of development consent to development application SSD-7709 on 11 November 2019 (Tab 7, Court Book (“CB”)), as modified by the Minister of Planning and Public Spaces (“Minister”), by its delegate, on 24 December 2020 (Tab 11 CB) and in July and September 2021 (“MPW Stage 2 Consent”).

3. The IPC was the consent authority for the original grant of consent by dint of the operation of s 4.5(a) of the EPA Act and cl 18A of State Environmental Planning Policy (State and Regional Development) 2011 (“SEPP State Development”) because Liverpool City Council had objected to the proposal and in excess of 25 submissions indicating objection were received. The subsequent amendments were granted by the Minister for Planning and Public Spaces.

4. As the application was for State significant development (“SSD”) for the purposes of Pt 4 Dv 4.7, s 4.36 of the EPA Act, being a development with a capital investment value in excess of $30 million ($533,000,000) and comprising railway freight terminals and associated railway infrastructure for the purposes of container packing, storage or examining, which is identified as SSD under cl 19 of Sch 1 of SEPP State Development, the operation of the consent has not been suspended by the lodgement of this appeal: s 8.13(1) of the EPA Act.

5. This has allowed the second respondent, Qube Holdings Limited (“Qube”) to act upon the development consent and pursue modifications of it.

Modification of the development after my reservation of judgment

6. The fact that the consent continues to operate is relevant because the development was modified twice after I reserved judgment. I was informed of this in an email from the IPC’s lawyer on 30 November 2021, sent with the consent of all parties. The email stated that each modification had been duly accepted, assessed, and approved by the relevant consent authority and that “…all parties agree that the modifications do not change the merit considerations review by the Court but will need to be reflected in the draft conditions of consent”. An amended version of the draft conditions of consent which replaced the earlier version dated 1 July 2021 (Ex R1-3) was provided to me on 7 December 2021 together with a comparison table comparing the conditions in the form contained within Ex R1-3 and as against the further amended conditions.

7. For the reasons outlined later in this judgment, I accept the respondents’ submission that consequent upon the operation of s 4.55(4) of the EPA Act, the development now proposed, and the subject of this judgment is the MPW Stage 2 Consent, as modified since judgment was reserved.

8. Accepting that the modifications did not raise merit issues, I sent an email to the parties asking if the legal issues were impacted by the changes. RAID indicated that it was unsure about its position in respect of the respondents’ changed conditions, so I listed the matter for mention via Microsoft Teams, as requested by Mr Rakowski, on 17 December 2021 at 4.15pm. At that time, Mr Rakowski told me that he had sought advice about the impacts of the changes from RAID’s air quality, traffic and acoustic experts. Each of them, he said, had advised him that they were unavailable to review the matter until sometime in February 2022. Mr Rakowski sought an adjournment to allow RAID to consider whether to seek to reopen the case as a consequence of the modifications.

9. The respondents opposed the adjournment and any further delay in my judgment. They jointly submitted that the changed conditions were in part generated by the grant of another approval. After fully explaining the effect of the relevant conditions by reference to the comparison table that had been prepared and provided to Mr Rakowski, they submitted that the changes did not raise any acoustic or air quality impacts. In respect to traffic, the terms of condition A9 were said to reduce traffic impacts by reducing the volume of fill. The IPC also reiterated its position that there is no appeal right available to RAID in respect of the modifications, a circumstance that should not be lost on the Court when considering RAID’s present application to adjourn the proceedings to allow opportunity to consider a reopening of the hearing directed to the recent modifications.

10. Ultimately, I was not satisfied that RAID had provided any satisfactory reason to delay my determination of this State significant development application. The respondents had submitted that the modifications did not change the merit considerations and evidence before the Court and RAID had initially agreed that this was the case, as was stated in the email of 30 November 2021 from the IPC’s lawyer. There was no submission by Mr Rakowski that he had insufficient time to address the modifications. Although seeking an adjournment, Mr Rakowski was not able to state that he would necessarily seek to call evidence from any one or more of the experts to whom he had referred the changed conditions.

11. At its highest, RAID’s case for the adjournment was that it required time to receive and consider advice from its nominated consultants upon the additional conditions, advice that would not be available until sometime in February 2022. That said, there was no evidence provided to support this assertion nor any evidence produced explaining RAID’s efforts in seeking advice from its experts about these conditions, save for the statement by Mr Rakowski in the course of making his application that in speaking with the traffic expert by telephone, he understood the expert to indicate that the amendment of condition A9 may result in additional traffic generation “when considered with other consents”. I have already addressed that contention, assuming that Mr Rakowski correctly understood the traffic expert’s statement to him.

12. With no satisfactory evidence to support the delay generated by an adjournment, in the interests of justice and the need to finally dispose of this application, I refused the adjournment sought on behalf of RAID.

Decision

13. For the reasons that follow, I have determined to grant development consent to the application subject to the consolidated conditions received by Court on 7 December 2021. In order to facilitate the imposition of the respondents’ agreed consolidated conditions, it is necessary to uphold the appeal.

Overview of the contentions

14. For the duration of the 7-day hearing including the site view, RAID was represented by its Secretary, Mr Rakowski, with Mr T Robertson SC retained to present final legal submissions via Microsoft Teams on the last day. Mr Rakowski is not a lawyer; however, he has an intimate understanding of the development, as modified, and the evidence before the Court. He also had access to legal advice and procedural assistance during the hearing, as required. Mr Rakowski gave the final address in respect of the merit issues.

15. As it transpired, the merit contentions ultimately raised by RAID covered four disciplines – traffic, air, noise and visual impact.

16. The 12 contentions as particularised in RAID’s Amended Statement of Facts and Contentions (“ASOFAC”) in these proceedings, filed on 15 April 2021 (Ex A) are summarised below:

Traffic and traffic modelling contentions

• Contention 1: the proposal exceeds the capacity of the traffic network with or without mitigation measures and upgrades

• Contentions 2, 6 & 8: involved a criticism of the modelling results and traffic modelling impacts including a failure to disclose traffic models and modelling results, no adequate traffic modelling of impacts undertaken, consequential impacts of errors in modelling is significant

• Contention 3: use of the RMS model – it is asserted that the Environmental Impact Statement (“EIS”) did not use the RMS model or, if it did, it did not disclose the results of its use

• Contention 4: the assessment failed to consider cumulative impacts

• Contention 5: the modelling is out of date

• Contention 7: the mitigation measures for model impacts are inadequate, untimely, and uncertain

Air quality

• Contentions 10, 15 and 16: air quality conditions, the modifications underestimate potential air quality impacts

Visual impact

• Contention 13: relevant to MOD 1 – the visual impact of warehouses JR and JN

Acoustics

• Contention 14: relevant to MOD 1 – no change to condition B131 should be made

17. RAID also raised legal issues in the following contentions:

• Contention 9: in breach of former s 78A(8A) of the EPA Act, the DA was not accompanied by an EIS prepared on behalf of RAID in the form prescribed by the regulations, and consent must accordingly be refused - validity of the EIS

• Contention 11: relevant to MOD 1 – in breach of s 4.55(2) the development to which the consent as modified relates is not substantially the same development as the development for which consent was originally granted

• Contention 12: relevant to MOD 1 – inconsistent with the Concept Plan Approval

18. Mr R Beasley SC appeared for the IPC with Ms J Reid of counsel. In opening he informed me that his client’s role in the proceedings was directed to assisting the Court – and that the IPC had little to say in relation to the merits. However, it did wish to address RAID’s complaint that there was a breach of s 4.55(2) of the EPA Act which relates to a modification (Contention 11), and also say something about the Court’s power to interrogate the validity of the voluntary planning agreement (“VPA”) entered into with Transport for NSW (“TfNSW”) who were not a party to the appeal (contention 12) (Tcpt, 21 June 2021, pp 21 (20-50) - 22(1-25)). The IPC’s Statement of Facts and Contentions (SOFAC) in Reply was filed on 7 May 2021 (Ex R1-1).

19. Qube was represented by Mr A Galasso SC. In opening, Mr Galasso said that Qube relied on its SOFAC in Reply (Ex R2-2) which responds ad idem to each of the points raised by RAID and does not engage with the IPC’s point in respect of power raised by Contention 11. Instead, his client seeks to assist the Court in terms of the assessment that has been undertaken by the IPC and others by providing expert evidence which specifically engaged with the specific contentions raised by RAID.

20. That said, Mr Galasso confirmed that Qube did join with the IPC in submitting that the Court should not deal with Contention 12 - relating to the VPA. He submitted, for the purposes of cl 7.36 of the Liverpool Local Environmental Plan 2008 (“Liverpool LEP”), the Secretary’s certificate has been issued and in that circumstance, I could be satisfied as required by cl 7.36(4) that “satisfactory arrangements had been made to contribute to the provision of relevant State public infrastructure in relation to the land”. Furthermore, to the extent that the relevant State public infrastructure picks up matters of State and regional roads, which it does for the purpose of cl 7.36, the Secretary’s certification is the beginning and the end of the inquiry. Therefore, RAID’s criticism of the VPA, being the mechanism by which the Secretary reached satisfaction, as ratified by Roads and Maritime Services NSW (“RMS”) (now TfNSW), and not being a party to these proceedings, cannot and should not be reviewed in these Class 1 proceedings. Rather, the Court should proceed on the basis that the negotiation and implementation of the VPA is a matter for the relevant State instrumentality – the RMS/TfNSW. Despite its position in respect of my power to deal with the VPA, as it happened Qube’s experts did in fact address RAID’s contentions on this matter to the extent that the VPA was considered. Qubes’ ASOFAC in Reply was filed with the Court on 30 April 2021 (Ex R2-2).

Expert evidence

21. At the hearing, the Court had the benefit of evidence from the following experts:

Discipline	Applicant	Second Respondent	Exhibit Reference
Acoustic	Mr M Harrison	Mr R Tonin	R2-11 (JER) R2-6 (Tonin) D (Harrison)
Air Quality	Mr S Wong	Mr R Kellaghan	R2-8 (JER) R2-5 (Kellaghan) C (Wong)
Traffic	Mr D Bitzios	Mr T Rogers & Mr A Krljic	R2-9 (JER) R2-4 (Krljic) R2-3 (Rogers) B (Bitzios)
Visual Impact	Dr R Lamb	R2-7 (Lamb)

22. In addition to the voluminous written material and evidence filed with the Court, I also received comprehensive written submissions from the Respondents’ Counsel.

23. Mr Robertson’s submissions on legal matters were recorded in the reported transcription of the proceedings over two days and were relied upon in formulating these reasons. Mr Robertson referred to the arguments particularised in RAID’s ASOFAC, which he drafted. RAID’s ASOFAC is lengthy and has not been reproduced however, I have identified the essential arguments by reference to each contention that I have addressed.

24. After review of the transcripts and the written and oral evidence, I am satisfied in respect of the merits issues that the evidence is the accurately recorded in written submissions prepared by Qube which I have directly quoted where relevant.

Lay evidence

25. At the hearing, Mr Michael Byrne, the President of the East Liverpool Progress Association, gave oral evidence against the proposal. He read from a written submission which is included with his earlier submissions in the Court book (Tabs 22, 25, 27 of CB Vol 3). In giving his oral evidence, Mr Byrne emphasised the members’ concerns about increased traffic congestion and poor air quality and visual impact consequent of the proposed use. He was also particularly critical of the approval process (Tcpt, 21 June 2021, p 5(35)).

26. The other written submissions received in response to the application were tendered by IPC on a UBS stick (Ex R1-2). The submissions opposing the development also raised concerns about unacceptable traffic, acoustic and air quality impacts, and the approval and consultation process more generally. The submissions in support of the proposal identified the importance of this State infrastructure to reduce road haulage and address problems at Port Botany. The submitters’ submissions expressed orally or in writing have been considered and weighted in my assessment of the application.

The IMT Precinct

27. Qube’s description of the Moorebank Intermodal Precinct (“IMT Precinct”), as comprising “an interstate, intrastate and port shuttle freight and logistics handling facility for the Sydney Metropolitan Area” is apt (Qube’s Written Submissions (“WS”) par 2.1). The site is extensive and covers an area of approximately 303 hectares, extending from the M5 South Western Motorway and the Defence Joint Logistics Unit site in the north and north-east, to the East Hills Rail Line in the south.

28. The IMT Precinct is divided by Moorebank Avenue into two distinct areas referred to as: Moorebank Precinct West (“MPW”) and Moorebank Precinct East (“MPE”).

29. Although these proceedings concern MPW, there are a number of related approvals which set the context of the appeal. A flow-chart summarising the various planning approvals in place (at the date of the conclusion of the hearing) for the IMT Precinct is annexed to my judgment and marked Schedule 1.

The MPW Stage 2 development the subject of this appeal

30. The MPW Stage 2 Consent relates to the MPW site on the western side of Moorebank Avenue (“MPW Site”) which forms the western section of the IMT Precinct.

31. The MPW Site has an irregular shape and is approximately 3km from north to south and 960m from east to west at its widest point and covers an area of approximately 220 ha. The area surrounding the MPW Site has mixed land uses including industrial, freight and logistics, heavy and light manufacturing and office and business park developments. The nearest residential properties are in Casula approximately 200m to the west, in Wattle Grove North approximately 650m to the northeast of the site, and approximately 800m to the southwest in Glenfield and in Wattle Grove to the east, beyond the MPE component of the IMT Precinct (approximately 1km).

30. To better understand the presentation of the warehouses in the relevant landscape, and the development’s visual impact more generally, the Court took a view of the site from Carroll Park and Marsh Street, Casula during Day 4 of the hearing, observing the restrictions imposed by the Court’s COVID-19 Policy. The parties’ legal representatives and Mr Rakowski together with Qube’s visual expert Dr Lamb attended the view and examined the photomontages prepared by Dr Lamb and from the Hatch Roberts Day documentation whilst standing at various viewing points.

31. A description of the development is in the development consent SSD 7709, as modified; however, the key components include:

1. an intermodal terminal (“IMT”) facility operating 24/7 with a capacity to handle up to 500,000 twenty-foot equivalent container units (“TEUs”) per annum, including:

1. a rail terminal with nine rail sidings and associated locomotive shifter;

2. a rail link connection from the sidings to the rail link constructed under MPE Stage 1 (SSD 6766) to the SSFL;

3. rail and truck container loading and unloading and container storage areas;

4. truck waiting area and emergency truck storage area;

5. container wash-down facilities and degassing area;

6. mobile locomotive refuelling station;

7. engineer's workshop, administration facility and associated car parking;

2. a warehousing estate on the northern part of the site operating 24/7 and servicing the IMT facility, including:

1. six warehouses with a total gross floor area (“GFA”) of 215,000 m² and, for each warehouse, associated offices, staff amenities, hardstands and truck and light vehicle parking;

2. 800m² freight village (operating from 7am to 6pm, 7 days per week) including staff/visitor amenities;

3. internal roads, noise wall, landscaping, lighting and signage;

3. intersection upgrades on Moorebank Avenue at:

1. Anzac Road providing site access; and

2. Bapaume Road for left turn only out of the site;

4. construction and operation of on-site detention basins, bioretention/ biofiltration systems and trunk stormwater drainage for the entire site; and

5. construction works and temporary ancillary facilities, including:

1. vegetation clearing, top soil stripping and stockpiling and site earthworks and temporary on site detention;

2. importation of up to 1,600,000m³ of uncompacted fill, temporary stockpiling and placement over the entire site to raise existing ground levels by up to 3m;

3. materials screening, crushing and washing facilities;

4. importation and placement of engineering fill and rail line ballast;

5. installation and use of a concrete batching plant; and

6. utilities installation/connection.

MPW Stage 2 MOD 1

34. On 24 December 2020, a delegate of the Minister approved an application to modify the MPW Stage 2 Consent (“MOD 1”) under s 4.55(2) of the EPA Act.

35. Qube submits that MOD 1 had the effect of modifying the MPW Stage 2 Consent as follows:

1. adjusting the southern operational boundary by extension into an area that was previously deferred for warehouse development as part of a future Stage 3;

2. authorising the construction and operation of the 'JR' and 'JN' warehouses (also referred to as warehouses 5 and 6), two high-bay warehouses to be located in the (adjusted) southern part of the MPW Stage 2 warehouse area;

3. amending the maximum building height established across warehouse areas 5 and 6 from approximately 21m up to and including 41m;

4. amending the operational noise limits for the MPW Stage 2 development established under condition B131 of the MPW Stage 2 Consent; and

5. amending condition B176 to allow for dangerous goods to be stored on-site at relevant portions of the MPW Site pertaining to warehouse areas 5 and 6.

36. The two high-bay warehouses approved by MOD 1 are proposed to house automated retrieval systems to deposit and retrieve goods within high racking within the warehouses. In the MOD 1 application, the following benefits of high-bay warehousing were identified:

1. greater flexibility for end-users;

2. cost efficiencies of higher volume storage, noting that land values in Sydney are at a premium compared to other centres;

3. minimisation of footprint while maintaining pallet numbers, noting that if the same number of pallets had been stored in a standardised 13.7m high warehouse, the footprint of the buildings would almost triple; and

4. improved pallet retrieval times, leading to increased operational efficiencies and lower operating costs.

37. The two high-bay warehouses will be occupied by Woolworths Group as its National Distribution Centre, and construction has commenced.

MPW Stage 2 MOD 2 and MOD 3

38. As explained, there were two further modifications to the Development Consent SSD 7709 which were made subsequent to the conclusion of the hearing. A copy of the instrument of modification was provided to the Court and discussed at the mention on 17 December 2021. As indicated at the outset of this judgment, I accept that these further modifications to the development are effected pursuant to s 4.55(4) of the EPA Act and do not change the merit considerations before the Court in this appeal. The modifications are reflected in the consolidated conditions filed 7 December 2021 and explained in the summary comparison table below prepared by the IPC which was discussed at the mention.

MOD 2 on 19 July 2021

39. MPW Stage 2 MOD 2 had the effect of modifying the MPW Stage 2 Consent in the following ways:

1. The modification made to Condition A9 of the Development Consent (being a modification required by a condition of SSD-10431) effected by Notice of Modification under cl 97 of the Environmental Planning and Assessment Regulation 2000 (“EPA Regulations 2000”) in July 2021 (“MOD 2”). The relevant condition of SSD-10431 required as follows:

A9. Prior to physical commencement of work under this consent, the Applicant is required to modify the following development consents by replacing “22,000m³” wherever occurring with “13,000m³” in:

(a)    condition A9 of SSD 7709; and

(b)    condition B56(a) of SSD 7628.

40. The table below sets out the changes.

Condition	Draft condition as provided to Court on 1 July 2021	Modified condition
A9	Importation of imported fill must not exceed a total of 22,000m3 of material per day across this development and MPE Stage 2 (SSD 7628) on the same day.	Importation of imported fill must not exceed a total of 22,000m3 13,000m3 of material per day across this development and MPE Stage 2 (SSD 7628) on the same day.

MOD 3 on 30 September 2021

41. MOD 3 had the effect of modifying the MPW Stage 2 Consent in the following ways:

1. Modifications made to the following conditions pursuant to the grant of approval to Modification Application No. 2 (“MOD 3”) on 30 September 2021:

1. Condition B2(g);

2. Condition B43;

3. Condition B87;

4. Condition B88;

5. Condition B127; and

6. Condition B135(g).

42. The table below sets out the changes.

Condition	Draft condition as provided to Court on 1 July 2021	Modified condition
B2(g)	Prior to commencement of construction, the Applicant must submit revised Development Layout Drawings to the Planning Secretary for approval. The revised Development Layout Drawings must be at a scale of approximately 1:2000 at A1 showing the key development elements including but not limited to estate infrastructure, internal roads, warehouse and associated carpark footprints, the freight village, intermodal terminal facility including the truck waiting area and emergency truck storage area, rail line and rail line vehicle access roads. The revised Development Layout Drawings must show the site, construction and operational boundaries and demonstrate: … (g) a minimum 3 m wide maintenance access has been provided between the fill slopes and the riparian corridor, the ABB site and at the southern end of the development area, for ongoing maintenance works;	Prior to commencement of construction, the Applicant must submit revised Development Layout Drawings to the Planning Secretary for approval. The revised Development Layout Drawings must be at a scale of approximately 1:2000 at A1 showing the key development elements including but not limited to estate infrastructure, internal roads, warehouse and associated carpark footprints, the freight village, intermodal terminal facility including the truck waiting area and emergency truck storage area, rail line and rail line vehicle access roads. The revised Development Layout Drawings must show the site, construction and operational boundaries and demonstrate: … (g) a minimum 3 m wide maintenance access has been provided between the fill slopes and the riparian corridor, the ABB site and at the southern end of the development area, for ongoing maintenance works where necessary to ensure ongoing maintenance works can be carried out without impacting on the riparian corridor or adjoining sites;
B43	Stockpiles must: a. not exceed 10m in height; b. be benched over 4m in height; c. have maximum of 1V:3H slopes; and d. be stabilised if not worked on for more than 10 days.	Stockpiles must: a. not exceed 10m in height; b. be benched over 4m in height; c. have maximum of 1V:3H slopes or a steeper slope where certified by a suitably qualified geotechnical specialist; and d. be stabilised if not worked on for more than 10 days.
B87	Existing and future utility and service infrastructure must be located outside the roadway being upgraded. The Applicant is to locate any drainage infrastructure to support the Stage 2 development entirely within the development site and not within the roadway, unless agreed by RMS.	Existing and future utility and service infrastructure must be located outside the roadway being upgraded. The Applicant is to locate any drainage infrastructure to support the Stage 2 development entirely within the development site and not within the roadway, unless agreed by RMS. The Applicant is to locate any drainage infrastructure to support the Stage 2 development entirely within the development site and not within the roadway, unless agreed by TfNSW and/or Liverpool City Council. The location of other existing and future utility and service infrastructure must be located outside the roadway being upgraded unless provision within the roadway is agreed by TfNSW and/or Liverpool City Council with relevant Roads Act 1993 approval.
B88	Road design must incorporate structures for fauna movement between the Georges River riparian corridor and the Boot Land, either under or below the road. Note: See also Condition B2(i) and B152(d)	Road design must incorporate any structures for fauna movement between the Georges River riparian corridor and the Boot Land, either under or below the road, that have been identified by the Management Plan as required under Condition B152. Note: See also Condition B2(i) and B152(d)
B127	Construction outside of the hours identified in Condition B125 may be undertaken in any of the following circumstances: a. works that are inaudible at the nearest sensitive receivers; b. where a negotiated agreement has been arranged with affected receivers; c. works agreed to in writing by the Planning Secretary; d. for the delivery of materials required outside these hours by the NSW Police Force or other authorities for safety reasons; e. where it is required in an emergency to avoid the loss of lives, property or to prevent environmental harm; or f. where they are undertaken in accordance with an Out-of-Hours Work Protocol under Condition B135.	Construction outside of the hours identified in Condition B125 may be undertaken in any of the following circumstances: a. works that are inaudible at the nearest sensitive receivers; b. where a negotiated agreement has been arranged with affected receivers; works agreed to in writing by the Planning Secretary; c. for the delivery of materials required outside these hours by the NSW Police Force or other authorities for safety reasons; d. where it is required in an emergency to avoid the loss of lives, property or to prevent environmental harm; or e. works associated with: i. the Moorebank Avenue/Anzac Road upgrade, the delivery of the rail link connection, and works required to be undertaken during rail corridor possession where they are undertaken in accordance with an Out-of-Hours Work Protocol under Condition B135; or ii. any other construction works on the site where they are undertaken Out-of-Hours must be in accordance with the approved Out-of-Hours Work Protocol (OOWP) required under condition B135.
B135(g)	The CNVMP must form part of the CEMP required by Condition C2 and, in addition to the general management plan requirements listed in Condition C1, the CNVMP must include: … (g) an Out-of-hours Work Protocol for the assessment, management and approval of works associated with the Moorebank Avenue/Anzac Road upgrade, the delivery of the rail link connection, and works required to be undertaken during rail corridor possessions, outside of the hours identified in Condition B125. The Out-of-hours Work Protocol must: (i) detail an assessment of out-of-hours works against the relevant NMLs and vibration criteria, (ii) provide detailed mitigation measures for any residual impacts (that is, additional to general mitigation measures), including extent of at-receiver treatments, and (iii) include proposed notification arrangements.	The CNVMP must form part of the CEMP required by Condition C2 and, in addition to the general management plan requirements listed in Condition C1, the CNVMP must include: … (g) an Out-of-hours Work Protocol for the assessment, management and approval of works, associated with the Moorebank Avenue/Anzac Road upgrade, the delivery of the rail link connection, and works required to be undertaken during rail corridor possessions,, outside of the hours identified in Condition B125. The Out-of-hours Work Protocol must: (i) detail an assessment of out-of-hours works against the relevant NMLs and vibration criteria, (ii) provide detailed mitigation measures for any residual impacts (that is, additional to general mitigation measures) including extent of at-receiver treatments, and (iii) include proposed notification arrangements.

Related approvals

Moorebank Precinct West Approvals

43. In addition to the MPW Stage 2 Consent, the MPW site has the following approvals.

MPW Concept Plan and Stage 1 Approval (SSD 5066)

44. On 3 June 2016, development consent was granted by the then Planning Assessment Commission for Development Application No. SSD 5066 (“MPW Concept Plan and Stage 1 Approval”) (SSD 5066) which included:

1. Concept Proposal: involving the use of the MPW Site as an intermodal facility, including rail link to the SSFL, warehouse and distribution facilities, and associated works; and

2. Early Works (Stage 1): involving the demolition of buildings, including services termination and diversion; rehabilitation of the excavation/ earthmoving training area; remediation of contaminated land; removal of underground storage tanks; heritage impact remediation works; and the establishment and construction of facilities and access, including site security.

45. While it is accepted that the MPW Concept Plan and Stage 1 Approval is not within the scope of these proceedings, this approval is relevant insofar as the relationship of MPW Stage 2 Consent with the Concept Plan Approval is concerned with s 4.24(2) of the EPA Act.

46. The MPW Concept Plan and Stage 1 Approval has been modified to ensure consistency between it and the MPW Stage 2 Consent as was proposed by MOD 1 (Ex R2-1 (CB Vol 1 Tab 1)).

Moorebank Precinct East Approvals

47. The planning approvals related to the MPE Site, on the eastern side of Moorebank Avenue, comprise:

1. MPE Concept Plan Approval (MP10_0193) granted on 29 September 2014 approves use of the MPE Site as an intermodal facility, which includes:

1. IMEX terminal 250,000 TEU per annum (with potential for an additional 250,000 TEU per annum if the increase will not exceed the capacity of the transport network);

2. a rail link to the SSFL;

3. warehouse and distribution facilities – 300,000m²; and

4. freight village.

2. MPE Stage 1 Consent (SSD 6766) which was granted by the Land and Environment Court on 6 May 2018 approves construction and operation of:

1. intermodal facility (250,000 TEU per annum); and

2. rail link connecting to the SSFL.

3. MPE Stage 2 Consent (SSD 7628) which was granted on 31 January 2018 approves:

1. warehousing – 300,000m²;

2. freight village – 8,000m²; and

3. road upgrades.

Jurisdiction

48. Before I deal with the merit contentions, it is necessary to deal with the contentions which challenge my jurisdiction.

Contention 11: MOD 1 – Not substantially the same

(RAID’s ASOFAC “Contentions” par 11)

49. Contention 11 of RAID’s ASOFAC filed on 15 April 2021 alleges a “breach” of s 4.55(2), that the development to which the consent as modified would relate is not substantially the same development as the development for which consent was originally granted (Ex A p 22).

50. Mr Robertson submitted:

“I have a duty to determine whether the modification was validly made, and if I reached the view that the jurisdictional question substantially the same, that a consent authority could not answer that question other than one way, that it was not, that therefore the modification is a nullity, has no effect and should be ignored”.

In framing the question as a double negative, he submitted that the jurisdictional precondition to modification is a subjective jurisdictional fact. In short, he said I must be satisfied that the fact exists, and this is a precondition to the exercise of the power to modify. Mr Robertson submitted that the effect of making such a finding is not to set aside that decision because there is no merit appeal from it (Tcpt, 28 June 2021).

51. It was further submitted that while the state of satisfaction required under s 4.55(2) before a consent can be modified can be attacked on in a variety of ways; in this instance, only one is relevant. That is, that it was not open to the consent authority to form the state of satisfaction that the development originally consented to is the same as the development for which the modification is purported to be made (Tcpt, 25 June 2021, pp 260-264).

52. Mr Robertson said that RAID contends that the decision was not reasonably open to the decision maker to be satisfied of that fact and for that reason, I must treat the development as not having been modified. In that circumstance, a decision that is not reasonably open can only be decided one way. He said that the Stage 2 development application which sits under the concept plan is not consistent; there is conflict as evidenced by the conditions. He explained that the concept approval was granted under s 4.22 for State significant development and s 4.24(2) requires any further development consent for the development of the site to be consistent and that it cannot be inconsistent with the concept approval (Tcpt, 25 June 2021, p 266).

53. In respect to s 4.55(4), Mr Robertson submitted that this section is definitional. There are two structural features of the provision, the first is that the reference is to the modification of a consent in accordance with this section, which makes it clear that subs (2) requires “the satisfaction opinion that it is substantially the same development is obligatory” (Tcpt, 25 June 2021, p 267(30-45)). He submitted:

“Once the modification is legally effective, that is what we call the consent by changing the consent to the consenting fact, then it’s deemed not to be the granting of consent, but - and that provision is important because it means that the modification process does not have to comply with Part 4 and that’s the basis in which the Court of Appeal in Standley and Associates of the Sydney Council (sic) decided that modification was a [law] unto itself, it was self-contained within the then section 96, … but in this case is self-contained in [s] 4.55, and there are many provisions of the [A]ct and [EPIs] that refer to the granting of consent to which the modification process doesn’t engage at all.”

(Tcpt, 25 June 2021, p 267(25-45))

54. The second structural feature of subs (4) is the definition of “provision”, that where development consent is used, it means the consent as modified, and that is the way that the Court gets to decide the merit issues. Mr Robertson observed that modifications do not often come this quickly and that he had been unable to find a case where the Court is actually hearing the appeal where the consent had been modified before the appeal is heard. Nonetheless, he submitted the language was clear. As a matter of general principle, rather than the definitional provision, Mr Robertson submitted that “…this is a rehearing appeal under s 39(3) of the Court Act, and in rehearing appeals of this character, the Court must consider the facts and the law in existence at the date of its decision” (Tcpt, 25 June 2021, p 269).

55. Mr Robertson submitted that the question posed by RAID is that the modifications or the consents as modified, now authorise warehouse development that is not ancillary to the intermodal in breach of s 4.22(2) and the Concept DA (Tcpt, 25 June 2021, p 269(13-40)). He contended that the warehouses are stand-alone developments that were never contemplated as part of the intermodal when the development was first consented to. Therefore, this is not substantially the same development – it is significantly increased in height and “don’t nestle in the vegetation” and generates traffic and acoustic impacts (ASOFAC Contention 11 particulars d, e, f and g) (Tcpt, 25 June 2021, p 270(30-34)). For those reasons, Mr Robertson submitted that I could not form the opinion of satisfaction that the development as modified is substantially the same the development originally approved. In support of his argument, he relied on the reasoning in Arrage v Inner West Council [2019] NSWLEC 85 at [24] and [43] per Preston CJ and submitted that the relevant comparative exercise required by s 4.55(2) is between two developments – the development as modified and the development as originally approved.

56. Mr Robertson relied on the Court of Appeal decision in Helman v Byron Shire Council (1995) 87 LGERA 349 (“Helman”) and a number of other authorities to support his case as reflected in the transcript of the 25^th and 28^th of June. He identified that there was a conflict of authority in the Court where it suggested that if an issue could be decided in Class 4, it cannot be decided in Class 1. Or it is more appropriate to decide it in Class 1 – suggesting there is some discretion on the part of the Court to decline to decide an issue that is properly before it.

57. There is authority against the proposition – Pepper J and Pain J on the one hand and Craig J on the other. Mr Robertson submitted:

“however, the Court of Appeal has spoken, as has the High Court, and there is a wealth of authority in other administrative tribunals … exercising a kind of hybrid judicial/administrative power that the tribunal body is not just authorised, but has a duty to determine its jurisdiction and to decide questions of law that arise in the proceedings, including questions such as the validity of the decision under appeal.”

(Tcpt, 28 June 2021)

58. The IPC’s position is identified in its reply to Contention 11 in its SOFAC in Reply filed on 7 May 2021.

59. Mr Beasley submitted on behalf of the IPC that contention 11 is “styled as a judicial review application” – by using the word “breach”, and that I have no power in this Class 1 objector appeal to deal with this contention. As pleaded, the submission is that I should find that the decision maker, the Minister in this case, for the modification, had no power to grant the modification. The moment you are at point of saying that a decision power has no power, which is what Contention 11 does, the application needs to be Class 4 as required by s 20(2) of the Court Act: Greentree v Director-General of the Department of Land and Water Conservation [2002] NSWLEC 53 (“Greentree”) per Pain J; Blacktown City Council v Satmell [2019] NSWLEC 93 (“Satmell”) per Pepper J (Tcpt 29 June 2021, p 344(21-35), p 346(5).

60. Mr Beasley also submitted on behalf of his client that this application concerns SSD (Pt 4, Div 4.7, s 4.36 of the EPA Act), and if not so identified it would be designated development for the purposes of s 4.10(2)of the EPA Act, and Sch 3 (Pt 1, Item 28) of the EPA Regulations 2000. As such, the appeal right under s 8.8 of the EPA Act to the applicant only arises in relation to the determination to the grant of development consent. The section specifically does not provide a right of appeal to objectors to an application to modify a SSD or a designated development consent. Furthermore, as s 8.13(1) does not apply to the development consent, the operation of the consent is not suspended whilst the appeal is pending. Qube can act upon it and modify the consent as it has and the effect of approval of a modification is that the consent is immediately modified: s 4.55 and by operation of s 4.55(4) the modification of a development consent is taken not to be the granting of development consent.

61. Mr Beasley submitted that the Court must determine whether the development consent, as modified should be granted or refused consent. There is no right of appeal in relation to the modification power, in relation to which the only relief that is sought in this Court is recission and vacation of SSD 7709, there is no declaratory relief sought. In that circumstance the jurisdictional precondition in s 4.55(2) is not engaged. Mr Beasley submitted that the decision of Helmen (Handley JA at 356) concerning an appeal against a decision is not the statutory and factual circumstances of this s 8.8 objector appeal.

62. (For the same reason, the IPC submits that Contention 12(e) of the ASOFAC cannot be maintained – I will deal with this later).

63. In the alterative, the IPC submits that the development consent as modified was substantially the same development as the original grant of consent pursuant to s 4.55(2) of the EPA Act. on the basis of the assessment report in Tab 9 CB and the conclusion as to the scope of the modification at p 16 (IPC’s WS 4-16).

64. Mr Galasso submitted on behalf of Qube that if the Court does not accept that Contention 11 is beyond the scope of the jurisdiction of this Court in this appeal and the jurisdictional position of the IPC, then the Court would be satisfied that the development to which the consent as modified would relate remains substantially the same development as the development for which consent was originally granted, for the following reasons.

65. Section 4.55(2) of the EPA Act allows a consent authority to modify a development consent, provided that:

it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all). (emphasis added)

66. Relying on relevant decisions which considered the meaning of 'substantially the same', for the purposes of this threshold test Qube submits that the principles emerging from those cases are:

1. the Court will have regard to what is proposed and has been approved, by comparing the 'before and after' situations. This involves a comparison of both qualitative and quantitative aspects of the developments: Vacik Pty Ltd V Penrith City Council (unreported) [1992] NSWLEC 8 (“Vacik”) per Stein J;

2. it is the specific elements and impacts of the two developments which must be compared, to determine this question: Vacik;

3. the question is essentially one of fact: Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16;

4. it is necessary to consider whether the modified development will be 'essentially or materially the same as the currently approved development', or 'have the same essence': Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (“Moto”):

5. the comparison between the original development and the modified development 'involves an appreciation, qualitative, as well as quantitative, of the developments being compared' Moto at [56];

6. a distinction can be drawn between a matter of substance as compared to a matter of mere detail: Sydney City Council v llenace Pty Ltd (1984) 3 NSWLR 414;

7. that in the context of s 4.55(2), to 'modify' means to 'alter without radical transformation'. An application to modify which alters an essential characteristic of a development will generally not be permitted by s 4.55(2): North Sydney Council v Michael Stanley and Associates Pty Ltd (1998) 43 NSWLR 468;

8. the modification power is 'beneficial' and 'facultative' Houlton v Woollahra Municipal Council (1997) 95 LGRA 201; and

9. additional environmental impacts associated with a modification application do not necessarily preclude a conclusion that the development is substantially the same, but rather these are a matter to be considered as part of the deliberation on the merits: Wolgan Action Group Inc v Lithgow City Council (2001) 116 LGERA 378; [2001] NSWLEC 199.

67. On the basis of a quantitative and qualitative analysis, Qube submits that the Court would conclude that the development as modified is substantially the same development as the development for which consent was originally granted.

68. A quantitative analysis of the development as modified compared to the development as originally approved indicates that:

1. the total gross floor area for warehousing remains at 215,000m²;

2. the total number of warehouses remains at six;

3. there is an increase in the maximum building height from approximately 21m to 41m, but only in respect of the areas where the proposed warehouses JN and JR are to be located;

4. the southern operational boundary of MPW is reconfigured to accommodate the construction of warehouses JN and JR in an area previously deferred for warehouse development at a future stage of the Precinct; and

5. the level of traffic generation sought remains below the threshold established under SSD 7709.

69. Accepting some quantitative differences between the development for which consent was originally granted and the development as modified, Qube submits that those differences are not of a sufficient scale and extent that the development is no longer substantially the same.

70. Notably, the most numerical difference is the change in the maximum building height of 2 of 6 warehouse buildings. However, Qube submits that it is important to view this change in the context of the approved development as a whole, as is required by s 4.55 of the EPA Act. The change in maximum building height only applies to warehouses JN and JR (condition 16 and 16A of MPW Concept Plan Approval).

71. It is submitted that when considering the 'substantially the same' question, the Court must consider the development as a whole prior to modification, and the development as a whole subsequently. RAID’s contention incorrectly focuses only on the elements of the overall MPW Stage 2 development which were the subject of the MOD 1 application. Nonetheless:

1. the development (as modified) remains as described in the Modified Consent, namely 'Construction and 24/7 operation of a warehousing estate on the northern part of the site servicing the IMT facility…'; and

2. condition A17 of the Modified Consent maintains the requirement that:

'The warehousing and distribution facilities must only be used for activities associated with freight using the [sic] either the MPE or MPW rail intermodal terminal.'

72. RAID points to the visual impact of warehouses 'JN' and 'JR' as a basis for its contention, yet Dr Lamb provides expert evidence to the contrary. In his Individual Expert Report, Dr Lamb relevantly concludes that:

"The modification does increase the visibility of the warehouses by virtue of the increased heights, as I have noted in my assessment. The increased heights and the limits to which future landscape in the setbacks from the western boundaries would screen the upper parts of the buildings cause medium visual impact. The higher warehouses in my opinion are nevertheless compatible with the adjacent setting and with warehouse buildings generally.

…

I don't agree that the visual impact of the modification are highly significant, as set out in my assessment, which also shows that the visibility of the modification is limited to a small number of vantage points."

73. RAID raises the increase in noise limits as a basis for asserting that the development as modified is not substantially the same development, however, this is satisfactorily addressed in the evidence of the acoustic experts (as set out in response to Contention 14) and Qube's proposed additional conditions of consent.

74. Furthermore, RAID’s particular (g) in Ex A is wholly addressed by existing A15A of the MPW Stage 2 Consent which places a cap on the number of light and heavy vehicle movements.

75. It is submitted that a qualitative analysis of the development as modified compared to the development as originally approved indicates that the nature and purpose of the MPW Stage 2 development remains unchanged.

76. In that respect, the Modification Assessment Report prepared by DPIE for MOD 1 confirms the changes introduced with the approval of the modification application "do not substantially change the nature of the development or use of the site".

Finding – The power under s 4.55(2) of the Environmental Planning and Assessment Act 1979 is not relevant to the application before the Court

77. I am dealing with a development consent that has been modified. I am determining whether the consent in its current modified form is a consent that the Court should grant. The IPC submits that Contention 11 is styled as a judicial review application and ought to be entertained in Class 4 proceedings. In short, RAID is asking me to find that the Minister, the decision maker for the modification, had no power to grant the modification. The moment there is a contention that a decision maker has no power to do something I accept that we should be in Class 4. In that regard, I accept the IPC’s interpretation of the case law relied upon by Mr Robertson on behalf of RAID. As Mr Beasley submitted, the decision in Helman (concerning an appeal against the grant of development consent and a defective EIS process) does not authorise me to deal with Contention 11 as framed in this objector appeal. In short, Helman does not respond to the statutory or factual circumstances of this appeal. The decision of Pain J in Greentree at [29] and Pepper J in Satmell at [42] make this plain.

78. Accordingly, I find that it is not within my jurisdiction in a Class 1 appeal to review a “breach” of s 4.55(2) of the EPA Act for the reasons articulated by the IPC as summarised.

79. Importantly, I also find that the jurisdictional precondition required by s 4.55(2)(a) is not engaged because s 4.55(2) is not relevant to the application before the Court. As the IPC explained, due to the ongoing operation of development consent SSD 7709 during the course of the proceedings, and the immediate effect of an approval of a modification application under s 4.55(2), the development under consideration incorporates the three modifications.

80. These proceedings brought pursuant to s 8.8 of the EPA Act relate to RAID’s appeal against the IPC’s grant of development consent to development application SSD 7709 on 11 November 2019, as modified. The appeal right under s 8.8 arises only in relation to the determination of a consent for designated development or SSD by a determination to grant development consent. The section is specific in its terms and does not provide an objector appeal to an application to modify a designated development (or SSD) consent. Section 8.13 deals with the effect of appeals on the operation of consents and relevantly provides:

If the granting of development consent for development (other than State significant development) is subject of an appeal made under this Division, the development consent ceases to have effect.

81. Therefore, as this appeal relates to an SSD consent, the operation of the consent continues whilst the proceedings are on foot; the effect of the continued operation is that it permitted the proponent to act upon it, including the modifications of it. The effect of s 4.55 is that the modification is immediately effected and s 4.55(4) specifically provides that the modification of a development consent is not the granting of a development consent.

82. As such, RAID (an objector to a SSD) has no appeal right against a modification under s 8.8 and s 4.55 is not engaged.

83. In the alternative, if I do have jurisdiction and s 4.55(2) is engaged, I have undertaken the comparative exercise between the development as modified and the development as originally approved: Arrage v Inner West Council at [24] and [43] per Preston CJ.

84. In reaching that state of satisfaction, my focus has been on a comparison of the developments as a whole, not aspects of the developments. From both a quantitative and qualitative perspective, I accept that the developments have not materially changed. The essence of the development before and after modification remains the same. It is my considered opinion that RAID’s submission that “the structural nature of the two developments are too different - the first consent is for an intermodal and the second is a modification for warehousing that is not warehousing assistive or ancillary to the intermodal” (Tcpt, 28 June 2021, p 284(8-45)) cannot be sustained on the evidence.

85. The evidence is that the total floor area warehousing remains at 215,000 m². The total number of warehouses is six. There is an increase in height from 21m to 41m for only two warehouses. The southern operational area is reconfigured to accommodate, in particular JN. The level traffic generation remains below the threshold established under the State significant development. There are quantitative differences, but those differences are not of a sufficient scale and extent that the development is no longer the same. I accept that if you are looking at the changes themselves you do get a different answer to the test than if you look at the whole development. However, the case law is clear. I must compare and consider the whole of the developments – before and as modified. Whereas RAID focuses on the elements of the overall MPW Stage 2 development that was the subject of the modification. This is apparent from RAID’s reliance on the visual impact of warehouses 'JN' and 'JR' as evidence to support this contention in circumstances where Dr Lamb provides uncontradicted expert evidence to the contrary in the context of a consideration of the whole development before and after modification (Ex R2-7 pp 33-34).

86. Furthermore, from a qualitative perspective the acoustic evidence (discussed in Contention 14) establishes acceptability in relation to the development on that basis. Finally, I accept the assessment report at Tab 9 CB and the conclusion as to the scope of the modification at p 16 which supports a finding that the consent as modified was substantially the same.

87. I note that RAID did not raise this jurisdictional issue or any legal issue for that matter at the mention on 17 December 2021 despite my invitation by email in respect of the modifications of the development made since reservation of my judgment. Therefore, I do not need to address those changes and s 4.55(2) save to say that I accept the respondents’ agreed position that they do not materially change the developments or the merit issues in this case.

88. For all of those reasons, I am satisfied on the totality of the evidence before me that I have jurisdiction under the heads of consideration in s 4.55 to deal with this application.

Contention 12: Inconsistent with the Concept Plan Approval

(RAID’s ASOFAC “Contentions” par 12)

89. RAID contends that as a result of the approval of MOD 1, the MPW Stage 2 Consent is inconsistent with the MPW Concept Plan Approval and is therefore in breach of s 4.24(2) of the EPA Act. Mr Robertson outlined the argument by reference to p 4 of the ASOFAC and in oral submissions (Tcpt, 29 June 2021, pp 337-343).

89. The inconsistency with the MPW Concept Plan Approval is contended on two bases:

1. the warehouses "JR" and "JN" approved by MOD 1 are for a 'warehousing and distribution centre' and therefore are inconsistent with condition 15 of the MPW Concept Plan Approval; and

2. the development will not be carried out in accordance with the mitigation strategies required by condition 4(b) of the MPW Concept Plan Approval because the choice of finishes and materials for warehouses "JR" and "JN" do not limit the amount of contrast with the surrounding landscape with the preferred use of muted colours.

91. Qube submits in respect to the first basis that conditions A17- A19 of the MPW Stage 2 Consent (i.e. the determination of the consent – see s 4.24(2) of the EPA Act) are a complete response to the contention and demonstrate consistency with the MPW Concept Plan Approval.

92. Condition 15 of the MPW Concept Plan Approval provides as follows:

"The warehousing and distribution facilities must only be used for activities associated with freight using the intermodal terminal facility unless otherwise approved in a subsequent Development Application."

93. The MPW Stage 2 Consent is entirely consistent with this condition. Conditions A17-A19 of the MPW Stage 2 Consent provides as follows:

"A17   The warehousing and distribution facilities must only be used for activities associated with freight using the (sic) either the MPE or MPW rail intermodal terminal.

A18   Notwithstanding Condition [A17], movements of containers between a rail intermodal terminal on either MPE and MPW site, and a warehouse on either the MPE or MPW site, are permitted where those movements are also approved for MPE.

A19   For the avoidance of doubt, nothing in this consent permits:

(a) the occupation or use of a warehouse and/or distribution facility on the site before the commencement of operation of either the MPE or MPW rail intermodal terminal; or

(b) truck-to-truck movements."

94. Qube submits in respect to the second basis that the MPW Stage 2 Consent is consistent with condition 4(b) of the MPW Concept Plan Approval for the reasons provided by the Qube's visual impact expert (Dr Richard Lamb) in his Individual Expert Report, as follows:

"I don't find the colours proposed overall to be either excessively bright or discordant and I have given this matter close consideration in my assessment. As the first buildings that are to the level of detail where colours are specified in the adjacent setting, the colours would contrast with existing buildings most of which have minimal colouration, however what is approved has a more contemporary approach to colour than is commonly seen in industrial development. Distinct colour is different from discordant colour in my opinion.

…The colour scheme assists in braking down perception of large expanses of wall and it also relates appropriately to the naturally vegetated character of landscape in the setbacks and in the adjacent river environmental protection land,

…

In terms of overall colour, the light hues as proposed and the Surf Mist base colour are preferable, for reasons set out in my assessment. Use of dark, earthy, natural tones would accentuate the bulk and scale of the buildings more than the colours proposed, in my opinion. I therefore disagree that colours derived from the horizon and natural features (which are predominantly saturated, dark blue or blue/purple hues), or saturated and dark green/grey (natural vegetation hues) would be preferable. They would on the contrary tend to accentuate rather than mitigate the impact of bulk of the buildings.”

Finding – The Stage 2 Consent is consistent with the MPW Concept Plan Approval

95. For the reasons submitted by the IPC as summarised earlier, I do not believe I have jurisdiction to consider a contention framed as a “breach” of s 4.24(2) of the EPA Act in this Class 1 objector appeal under s 8.8 of the EPA Act.

96. In the alternative, if I do have jurisdiction, I am satisfied that the development, as modified is consistent with the MPW Concept Plan Approval for the reasons submitted by Qube on the evidence as summarised and reproduced above. As Mr Galasso submitted, the matter to note is the nature of the consistency requirement. It is the determination of the further development application which cannot be inconsistent with the concept for the concept approval and the legislative source for that is s 4.24(2). However, the concept of inconsistency is not absolute, because the legislative scheme contemplates a modification of the concept approval: s 4.24(3).

97. The allegation is that as a result of the approval of MOD 1, the MPW Stage 2 Consent is inconsistent with the MPW Concept Plan Approval and is therefore in breach of s 4.24(2). The inconsistency is contended on two bases. One is the warehouses, JR and JN as approved in MOD 1 are for warehousing and distribution centres and are therefore inconsistent with condition 15 of the MPW Concept Plan Approval. Secondly, the development will not be carried out in accordance with the mitigation strategy required by the MPW Concept Plan Approval because of the choices of finishes etc. In respect to the first basis, Qube submits that conditions A17 and A19 of the Stage 2 Consent are a complete response to the contention and demonstrate consistency with the MPW Concept Plan. I accept Qube’s written submissions par 13.6 in that regard. Condition A17 is consistent throughout. In relation to the second basis for mitigation measures in relation to colours (Qube’s WR par 13.7) I accept the evidence of Dr Lamb about colour evidences consistency to the extent it is sought to be impugned by RAID.

State public infrastructure satisfactory arrangements

98. As identified earlier, cl 7.36(4) of the Liverpool LEP provides:

Development consent must not be granted to development for the purposes of an IMT on land in the IMT Area unless the Secretary has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of relevant State public infrastructure in relation to that land.

99. The MPW Stage 2 Consent authorises development for the purposes of an IMT and the MPW Site is within the IMT Area.

100. To address cl 7.36, on 21 March 2019, RMS (now TfNSW) and Qube entered into a VPA pursuant to s 7.4 of the EPA Act.

101. Recitals G and H to the VPA provide that:

“G The Developer has offered to enter into this deed to provide Development Contributions to satisfy the Relevant State Public Infrastructure needs that will arise from the Moorebank Precinct West Development – Stage 2 Development to enable Satisfactory Arrangements Certificate to be issued for the Moorebank Intermodal Precinct West Development – Stage 2 Application.

H The parties agree that the Development Contributions offered by the Developer under this deed are also being provided to address the regional road infrastructure needs arising from the Moorebank Intermodal Precinct West Development as a whole.”

102. The VPA requires Qube to:

1. pay a monetary contribution of $48 million towards regional road upgrades;

2. carry out certain road works, namely either:

1. the realignment of Moorebank Avenue to the east of the MPE Site (“the Moorebank Avenue Realignment”). The realigned Moorebank Avenue must be constructed to the standard prescribed by the VPA (which is higher than the standard of Moorebank Avenue in its current alignment); or

2. if Qube does not obtain all approvals required for the Moorebank Avenue Realignment by 31 December 2021, it must upgrade the southern section of Moorebank Avenue (in its existing alignment) to the standard prescribed by the VPA (the Moorebank Avenue South Upgrade); and

3. procure (from the Commonwealth of Australia, which is the registered proprietor) the dedication of certain land for road purposes.

103. On 23 April 2019, a delegate of the Secretary certified that pursuant to cl 7.36(4) of the Liverpool LEP satisfactory arrangements have been made to contribute to the provision of relevant State public infrastructure in relation to the MPW Stage 2 development on the MPW Site.

104. RAID contends that the mitigation measures are inadequate, untimely, and uncertain. The particulars, as they relate to the VPA entered into on 21 March 2019 (Tab 4, CB) assert:

“d. On 2 July 2019, the RMS explained to the IPC the general methodology used to calculate the State infrastructure contribution of $48 million for “the broader regional network” upgrades under the VPA. The RMS advised “There is no obligation of time in (sic) to be spent or which works will be delivered as part of that” contribution.

e. If the contribution is in fact spent on works within Liverpool/Moorebank, then:

i. the works have not been identified;

ii. it is unknown whether the works relate to the development;

iii. the time for completing the works is unknown;

iv. whether funding is available for those works has not been explained;

v. there is no certainty that the works will ever be carried out.

f. The IPC accepted the RMS apportionment modelling results without reviewing it.

g. The RMS refer to the model in which apportionments for the contribution of the developments at Moorebank to the overall traffic growth were drawn as the RMS Static Model. It appears that it modelled the base case, and there is no evidence that future year 2036 “with development, do minimum” and 2036 “with development, with upgrades” models were undertaken or independently reviewed. Without disclosure of information concerning the use of the model, no one could be confident that the apportionment is sufficient to mitigate the proportionate impacts generated by MPW in total or MPW stage 2 specifically.

h. The VPA imposes no obligation on the RMS to carry out the works or to fund the balance of the costs needed to construct the mitigatory works. The RMS may choose to spend the funds on other works unrelated to the project within the region.

i. Unlike conditions for direct works to mitigate development impacts, the VPA provides no certainty that the impacts will be mitigated at the times that they are generated. The outcomes of the VPA condition are uncertain.

j. As an already constrained network, if operation of the development precedes the works required to deliver the capacity upgrades, the consequences will be significant because parts of the surrounding network are at or near capacity. There is limited or no spare capacity to be used to mitigate the time difference between the creation of the impacts and the delivery by the RMS of the required upgrades.”

105. While not addressing the merit matters raised in Contention 7 of the ASOFAC – (accepting that Qube will address those aspects of the contention relevant to its role in the proceedings), the IPC submits that cl 7.36 of the Liverpool LEP (Tab 20, CB) applies to the development and provides:

7.36 Arrangements for infrastructure arising out of development of intermodal terminal at Casula and Moorebank

(1) The object of this clause is to require satisfactory arrangements to be made for the provision of relevant State public infrastructure, before the carrying out of development on the land in the IMT Area, to satisfy needs that arise from development on the land, but only if that land is developed intensively for an IMT.

(2) This clause applies to the IMT Area.

(3) This clause does not apply to land if the whole or any part of it is in a special contributions area (as defined by section 7.1 of the Act).

(4) Development consent must not be granted to development for the purposes of an IMT on land in the IMT Area unless the Secretary has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of relevant State public infrastructure in relation to that land.

(5) Subclause (4) does not apply in relation to development if the consent authority is satisfied that—

(a) the development will not result in a significant net increase in traffic to or from the IMT Area, or

(b) the development is of a minor nature or is a precursor to development for an IMT.

(6) In this clause—

IMT means an intermodal terminal for the connection of rail and road freight services, and includes road and rail works and associated commercial infrastructure.

IMT Area means the area identified as “IMT Area” on the Key Sites Map. relevant State public infrastructure means public facilities or services that are provided or financed by the State (or if provided or financed by the private sector, to the extent of any financial or in-kind contribution by the State) of the following kinds—

(a) State and regional roads,

(b) bus interchanges and bus lanes,

(c) rail infrastructure and land.

106. Furthermore, that cl 7.36(4) operates as a statutory precondition to the grant of development consent as it requires certification (in writing) from the Secretary to the consent authority that satisfactory arrangements have been made to contribute to the provision of relevant State public infrastructure in relation to that land. The relevant State public infrastructure includes State and regional roads.

107. Importantly, Mr Beasley submitted cl 7.36(4) does not impose a requirement on the consent authority to consider or make any assessment as to the certification nor does it require the concurrence or ‘approval’ of another body. It merely requires that the consent authority receive certification that meets the required description. It is a gateway to permissibility rather than a mandatory consideration.

108. Accordingly, the IPC submits that the Court as consent authority on appeal does not ‘step into the shoes’ of the concurrence or approval body pursuant to s 39(6) of the Land and Environment Court Act 1979 (“Court Act”).

109. The Court has the benefit of the certificate issued by the Secretary pursuant to cl 7.36(4) of the Liverpool LEP at Tab 15 of the Electronic Court Book (“ECB”). The certificate relates to the subject application and certifies:

“In accordance with the provisions of clause 7.36 of the Liverpool Local Environmental Plan 2006, I Brett Whitworth, Acting Deputy Secretary, Planning + Design, as delegate for the Secretary of the Department of Planning and Environment, certify that satisfactory arrangements have been made to contribute to the provision of State public infrastructure.”

110. The VPA offer was made in the context of the requirement to obtain certification pursuant to cl 7.36 of the Liverpool LEP (see Tab 4, CB, pp 1-2) specifically to:

“satisfy the Relevant State Public Infrastructure needs that will arise from the Relevant State Public Infrastructure needs that will arise from the Moorebank Precinct West Development – Stage 2 Development to enable a Satisfactory Arrangements Certificate to be issued for the Moorebank Intermodal Precinct West Development – Stage 2 Application.”

The VPA provides a commitment to undertake road upgrade works to Moorebank Avenue and to pay a monetary contribution in the sum of $48 million to the RMS for the purpose of road upgrade works. There is no obligation in the VPA for when or where the RMS ought to apply the monetary contribution funds.

111. The VPA is a planning agreement for the purpose of s 7.4 of the EPA Act, being a ‘voluntary agreement’ under which the developer is required to pay a monetary contribution and provide other material public benefits (road works) to be used for and applied towards a public purpose, being the provision and recoupment of the cost of providing road infrastructure (s 7.4(2)I).

112. There is no dispute that the VPA complies with the requirements of s 7.4(3) of the EPA Act and that there is no requirement for the RMS to apply the monetary contribution in any particular way.

113. The effect of the VPA, read with the Secretary’s certificate, is that the Court must be satisfied, without undertaking further assessment that there are satisfactory arrangements in place to contribute to the impacts of the IMT on State public infrastructure, in this case the State and regional road network. Absent the requirement of cl 7.36 of the Liverpool LEP and certification from the Secretary, the Court would be required to undertake further assessment of the impacts on the State infrastructure arising from the proposal. However, the obligation to consider the impacts of the proposal under s 4.15(1)(b) of the EPA Act are discharged by receipt of the certification.

114. As these proceedings are a merit review of the development application and not judicial review, an argument is not available to RAID that the Court should ‘look behind’ the certification, such an inquiry needs to be commenced in the Class 4 jurisdiction of the Court.

115. The IPC submits that VPA should of course also be seen in the context of the various other road infrastructure upgrades conditioned in SSD 7709 (condition B84) and SSD 7628 (condition B13). As Mr Beasley pointed the VPA references s 7.36 of the LEP and it is a certification from the Secretary for relevant State public infrastructure in relation to the land MPW Stage 2 development. The developer has offered to enter into the deed to provide development contributions to satisfy relevant State public needs that will arise from the MPW Stage 2 development. That said, the parties to the deed are agreed that the development contributions offered by the developer under the deed are also being provided to address regional road infrastructure needs arising from MPW. Mr Beasley emphasised the fact that the $48 million does not have to be applied to anything specific, a specific intersection or disclosed works – but refuted the suggestion by Mr Robertson that they might go the Byron Bay as plainly wrong noting that at p 9 of the Deed, it identifies what the deed applies to in (a) and (b). The global purpose under the deed being for regional road upgrade works together with actual physical works to Moorebank Avenue Realignment or Moorebank Avenue south upgrade (Schedule 1 at p 21 of the VPA; Schedule 3 at p 26 of the VPA) (Tcpt, 29 June 2021, p 348(26-50)).

116. That said, Mr Beasley acknowledged that Qube advanced the position that, even if the above is not accepted or decided, the traffic impacts of this development (MPW Stage 2) are not such that would warrant refusal of consent, and that the objective of not exceeding the capacity of the traffic network will be achieved.

117. After endorsing the IPC’s submissions Qube emphasised that in these proceedings it is not open to the Court to consider the acceptability of the VPA nor look behind the certification issued under cl 7.36(4) of the Liverpool LEP. Rather, the Court must proceed on the basis that the negotiation and implementation of the VPA is a matter for the relevant State instrumentality – namely, RMS/TfNSW. However, irrespective of this legal position, Qube's experts have addressed RAID's contentions on this matter to the extent that the VPA is considered in certain contentions.

Finding - State public infrastructure satisfactory arrangements (VPA)

118. For the reasons outlined by the IPC and Qube, as summarised, I do not believe the Court in this Class 1 appeal has power to interrogate the acceptability or legality of the certification behind the VPA issued under cl 7.36(4).

119. Leaving aside the absence TfNSW in the appeal, which is clearly an issue, I simply do not have the power to do so under s 39(6) of the Court Act.

120. As it stands, the Court has the benefit of the certificate issued by the delegate of the Secretary pursuant to cl 7.36(4) of the Liverpool LEP (at Tab 15 of the CB) that satisfactory arrangements have been made in relation to the MPW Stage 2 development on the MPW Site to contribute to the provision of relevant State public infrastructure. The certification is sufficient and that is the end of the matter. Upon the Secretary having issued certification, the jurisdictional prerequisite is satisfied for the purposes of cl 7.36(4).

121. While s 4.15 of the EPA Act requires the Court to take into account the VPA that has been entered into, in the circumstances of this case, whilst that is undoubtedly the case, the VPA has been certified and in my assessment for the reasons as outlined above that satisfies the inquiry under s 4.15.

185. For all those reasons, I am satisfied that appropriate traffic modelling was undertaken in compliance with SEARs and that there was no legal requirement for the modelling to be otherwise disclosed as part of public notification.

Contention 3: Use of the RMS model

(RAID’s ASOFAC “Contentions” par 3)

194. I accept the agreed position of the experts and find that this contention has been resolved by the traffic experts (Ex R2-9 at 5).

Contention 4: Assessment of cumulative impact

(RAID’s ASOFAC “Contentions” par 4)

195. RAID contends that the MPW Stage 2 assessment failed to consider cumulative traffic impacts.

196. Qube submits that the Court would be satisfied that an appropriate assessment of cumulative traffic impacts was undertaken.

197. A cumulative traffic assessment of MPW, MPE and background traffic growth to 2029 was undertaken for the Operational Traffic and Transport Impact Assessment dated October 2016 and Response to Submissions Operational Traffic and Transport Impact Assessment dated June 2017 (Ex R2-10, CB Tab 48).

198. The MPW Stage 2 Consolidated Assessment Clarification Responses dated 20 December 2018 – Appendix B, Attachment E (Ex R2-1, CB Tab 49) provides:

“The cumulative assessment identified that the change in operational traffic impacts when comparing MPW Stage 2 to the combined proposals would be negligible (when considering the implementation of assumed network upgrades). In addition to this, the MPW Stage 2 Proposal (as amended) includes a proposal upgrade to the Anzac Road/Moorebank Avenue intersection which would accommodate both MPE Stage 1, MPE Stage 2 and MPW Stage 2 operational traffic and background traffic growth until 2029.”

199. As noted above, the IPC in its Statement of Reasons records that:

“Commissioners also sought clarification from RMS about the traffic modelling. In response, RMS noted:

That the development of the model was led by RMS, with support from the Applicant and MIC (Moorebank Intermodal Company), as the model needed to examine [the] impacts of the whole Moorebank Intermodal Precinct and produce traffic generation forecasts for both MPE and MPW, and

That it had therefore been peer reviewed by three separate organisations.

…The Commission considers that the modelling provides a representative assessment of the expected construction and operational traffic-related impacts and accepts the conclusions of RMS, as set out in paragraph 86 regarding the applicability of the traffic modelling.”

200. Qube submits that there is no legal requirement for the modelling to have been made publicly available during the notification of the MPW Stage 2 Application.

201. Qube also submits that the RMS was the appropriate entity to review and determine the appropriateness of the modelling and modelling results given its responsibility for the road network and its specialised expertise.

202. This position was accepted by Mr Bitzios in his oral evidence. In particular, Mr Bitzios accepted that:

1. the modelling for MPW Stage 2 was undertaken in consultation with RMS;

2. the RMS indicated to the IPC that the modelling was done appropriately;

3. the traffic upgrades that are condition to be undertaken for MPE were conditioned with the assent of RMS;

4. the traffic upgrades conditioned as part of MPW Stage 2 were conditioned with the assent of RMS;

5. to the extent that the actual prescribed upgrades were required to be added to by a contribution from the developer for regional road infrastructure, the RMS was a party to a VPA that collected an amount of money;

6. the MPW Stage 2 Consent was issued, so far as traffic and transport matters were concerned, with the concurrence and assent of the RMS;

7. the RMS was the appropriate public sector instrumentality for consideration of the appropriateness of the modelling;

8. the RMS was the appropriate public sector instrumentality to advise the IPC of the appropriateness of the mitigation measures, both in MPE and via the VPA;

9. you could not find a State government department more qualified to deal with the matter of modelling or deal with the matter of the impact of this development on the regional network than RMS; and

10. in relation to the VPA:

1. $48 million for a development with a similar traffic generation of MPW Stage 2 would be sufficient applying a benchmark or rule of thumb contribution per trip generated; and

2. it is completely within the RMS’ remit to structure their requirements however they wish.

Finding - Contention 4: Assessment of cumulative impact

203. I find on the evidence as summarised above that the assessment considered the cumulative impacts. A cumulative traffic assessment of MPW, MPE and the background traffic growth was undertaken for the Operational Traffic and Transport Impact Assessment report dated October 2016 (CB Tab 47). It was also undertaken in response to submissions of Operational Traffic and Transport Impact Assessment. The MPW Stage 2 consolidated assessment clarification responses (Attachment E) provided that the cumulative assessment identified that the change in operational traffic impacts when comparing MPW Stage 2 to the combined proposal (MPW and MPE) – would be negligible. In addition, the MPW Stage 2 proposal includes a proposed upgrade of Anzac Road/Moorebank Avenue intersection – which would accommodate both MPE1, MPE2 and MPW2 operational traffic. The IPC considered the modelling provides a representative assessment of the expected construction operation or traffic related impacts and accept the conclusions of the RMS. I accept that the RMS was the appropriate authority to review and determine the appropriateness of the modelling and modelling results given its responsibility for the road network and its specialised expertise as Qube submits.

204. In respect to the VPA, it is to be noted that Mr Bitzios in the joint report and in oral evidence conceded that $48 million, as a sum of money to deal with traffic and regional issues, is an acceptable amount of money. He was cynical as to whether the money would be spent by RMS – in the same way as a condition of consent or in the same way if the VPA prescribed a certain thing to be done by the private sector, or certain works. However, there was no foundation to suggest that if the State government instrumentality such as the RMS collects an amount of $48 million for regional upgrade that it is not going to spend it for what it was collected for.

Contention 5: Currency of the modelling

(RAID’s ASOFAC “Contentions” par 5)

205. RAID contends that the traffic modelling for MPW Stage 2 is out of date.

206. Qube submits that the Court would be satisfied that the traffic modelling was appropriately based on the best available information at the time and, in any event, traffic conditions did not change significantly between 2015 and 2019.

207. In the Traffic JER, Mr Rogers provides his opinion that:

1. the traffic modelling was based on the best available information at the time and has assessed 2019 and 2029 traffic conditions which are considered appropriate; and

2. a review of the closest TfNSW traffic data in the area (Hume Highway north of the M5) found low traffic growth between 2015 and 2019 (some 0.6% per year). This would indicate that traffic conditions did not change significantly between 2015 and 2019.

Finding - Contention 5: Currency of the modelling

208. For the reasons outlined above, I am satisfied on the evidence as noted in the joint report, the traffic modelling was based on the best available information at the time and has assessed 2019 and 2029 traffic conditions which are considered appropriate.

209. Furthermore, I accept Mr Rogers’ expert evidence which included a review of the closest transport for NSW traffic data comparing 2015 and 2019 scenarios noting that 2015 was used because operational transport impact assessment was a 2016 document – as the application was lodged some time ago - that there is in fact no significant change in the background, there was only a 0.6% change per year in that period. Therefore, no evidence of change to satisfy an allegation that there is a defect in the currency of the modelling.

Contention 7: Mitigation measures

(RAID’s ASOFAC “Contentions” par 7)

210. This contention deals with a complaint about mitigation measures.

211. RAID contends that the mitigation measures for model impacts are inadequate, untimely and uncertain.

212. Qube submits that the Court would be satisfied that the mitigation measures are adequate for the following reasons.

213. The MPW Stage 2 Operational Traffic and Transport Impact Assessment dated October 2016 identified improvements to six intersections to cater for the cumulative impact of traffic in 2029. These intersection upgrades are as follows:

1. M5 weave between Hume Highway and Moorebank Avenue (currently under investigation by TfNSW and agreed by the traffic experts that there is a high probability it will progress through to construction). The VPA between Qube and RMS contributes $48 million towards regional road network improvements;

2. M5/Moorebank Avenue (required by condition B13 of the MPE Stage 2 Consent);

3. Moorebank Avenue/Newbridge Road (required by condition B13 of the MPE Stage 2 Consent);

4. Moorebank Avenue/Heathcote Road (required by condition B13 of the MPE Stage 2 Consent);

5. Northern section of Moorebank Avenue (required by condition B13 of the MPE Stage 2 Consent);

6. Moorebank Avenue/Anzac Road intersection (required by condition B84 of the MPW Stage 2 Consent).

214. Mr Rogers records the status of the intersection upgrades at Items 2, 3, 4 and 5 in the Traffic JER, noting that some of these improvements would be required irrespective of the MPW Stage 2 development given the existing capacity constraints in the network. On this basis, Qube submits that the Court would be satisfied that these upgrade works are progressing, and in any event are required to be undertaken pursuant to Condition B13 of the MPE Stage 2 Consent which has been physically commenced.

215. In relation to those mitigation measures proposed as part of the development (which are required by condition B13 of the MPE Stage 2 Consent), Mr Bitzios accepted in oral evidence that the fact that those upgrades had commenced construction gives more confidence that they will be implemented.

216. In relation to the M5 weave, Mr Rogers identifies that TfNSW are currently investigating that project (as identified on the TfNSW website – community update December 2019) and project notification (March 2021), and that through the VPA, Qube has made a $48 million contribution to regional road network improvements.

217. RAID’s traffic expert, Mr Bitzios, accepts in the Traffic JER that “it is probable that the $48 million contribution [required by the VPA] would be sufficient to mitigate the broader network impacts of the MPW Stage 2 development but there is no evidence available to me to draw a form conclusion on this.” In his oral evidence, Mr Bitzios expressed his view that in relation to the VPA, $48 million for a development with a similar traffic generation of MPW Stage 2 would be sufficient applying a benchmark or rule of thumb per trip generated.

218. Finally, to the extent that RAID seeks to cavil with the terms of the VPA, the Court's power to entertain such submissions is constrained by s 7.8 of the EPA Act which limits the Court's jurisdiction with respect to planning agreements. Specifically, s 7.8(1) provides that a person cannot appeal to the Court against the terms of the planning agreement. To the extent that RAID's contentions seek to review the terms of the VPA, the Court has no jurisdiction to entertain those contentions. In addition, to the extent that cl 7.36 of the Liverpool LEP provides for a jurisdictional precondition, that precondition is effected by the Secretary’s certification, which in this appeal is absolute.

Finding – Contention 7: Mitigation measures

219. The evidence establishes that there were mitigation measures, that were conditioned in two approvals, both of which needed to be considered cumulatively. There is also the VPA of $48 million.

220. The upgrades have already been discussed earlier by Mr Rogers (and are described in Qube’s WS at par 7.41). Mr Bitzios accepted in oral evidence that the upgrades had commenced which he said gave him more confidence that they will be implemented. Mr Rogers drew attention to the TfNSW community update in December 2019 and the project notification in March 2021 about the M5 weave, in particular. It appears that it is being investigated to the point of rollout and there is the $48 million able to be used to procure that M5 weave. Mr Bitzios said in Court that the $48 million was sufficient for development with a traffic generation to MPW – applying a benchmark per trip generated.

221. Section 7.8 of the EPA Act provides that the terms of the VPA cannot be appealed to the Court and there is no warrant to go behind it and to the extent that the VPA is a backstop to the Secretary’s certification pursuant to cl 7.36 of the Liverpool LEP, then that is sufficient as a jurisdictional matter for the purposes of my consideration.

222. For the reasons submitted by Qube, as summarised above, I am satisfied that the mitigation measures are adequate.

Contentions 10, 15 & 16: Air quality

(RAID’s ASOFAC “Contentions” pars 15-16)

Contention 10: Conditions

223. RAID contends that an additional condition should be imposed requiring all diesel locomotives that will access the MPW Site to comply with Tier 4 or higher and for all trucks to comply with Euro 5 standards or higher.

224. Qube submits that this contention is satisfactorily addressed through the following measures:

1. the commitments in the Best Practice Review that formed part of the Response to Submissions package for MPW Stage 2;

2. the limits for new locomotives prescribed in condition L4 of Environment Protection Licence 21361 for rolling stock operated by Qube;

3. condition B132 of the conditions of consent for MPW Stage 2 as modified; and

4. the fact that on-road trucks are not under operational control of the facility and will be required to meet the relevant Australian Government Australian Design Rules.

225. The Air Quality JER confirms that Contention 10 is resolved as between the experts.

Finding – Contention 10: Conditions

226. I accept the agreed expert evidence of the air quality experts Mr Wong for RAID and Mr Kellaghan for Qube in respect to this contention (Air Quality JER at pars 21-22, Ex R2-8).

Contention 15: Air quality impacts

227. RAID contends that air quality assessment undertaken for MOD 1 underestimates potential air quality impacts.

228. Qube submits that the air quality impacts have been adequately assessed.

229. Mr Kellaghan, provides the following responses to each of the particulars to Contention 15 in his Individual Expert Report:

1. the MPW Stage 2 Air Quality Impact Assessment did not assess a cumulative scenario with MPE Stage 2 because the MPE Stage 2 application had not yet been finalised. The MPE Stage 2 Air Quality Impact Assessment did assess a cumulative scenario with both MPW Stage 2 and MPE Stage 2;

2. the background air quality data from 2016 to 2020 for PM₁₀ and PM_2.5 was not used in the MPW Stage 2 Air Quality Impact Assessment because those years are not considered representative of longer term averages due to bushfires, drought conditions and associated dust storms and COVD-19 lockdown which affected the air quality data. Further, the use of the ambient monitoring data for 2013 in the MPW Stage 2 Air Quality Impact Assessment was appropriate; and

3. the conditions of consent for MPW Stage 2, as modified, provide for a limit on the number of heavy and light vehicle movements generated by the subject development so increased traffic movements are not permitted. In addition, the emission rates for train movements in the MPW Stage 2 Air Quality Impact Assessment are based on conservative (or potential worst-case) assumptions including six trains per day, with each train operating with four locomotives and an assumed pre-Tier 0 emissions performance. In reality, it is more likely for each train to have two to three locomotives and there is a commitment to restrict locomotives from entering the site that do not meet emissions standards.

230. The air quality experts in their Air Quality JER confirm that each of the particulars to Contention 15 are resolved as between them based on the measures identified in the above paragraph.

Finding - Contention 15: Air quality impacts

231. I accept the agreed expert evidence of the Air Quality JER which confirms that each of the particulars to Contention 15 are resolved as between the experts (Ex R2-8 at pars 6-8, 15 and 19C).

Contention 16: Air quality conditions

232. RAID contends that air quality conditions should apply to the proposed development, including the implementation of reach stackers with US EPA Tier 4 from commencement of operation and the imposition of an Operational Air Quality Management Plan (“AQMP”) to the satisfaction of the Secretary.

233. Qube submits that its proposed condition B47A is an appropriate form of condition to address this contention.

Tier 4 Reach Stackers

234. In his Individual Expert Report, Mr Kellaghan explains that the Best Practice Review report in the Response to Submissions package for MPW Stage 2 requires all new reach stackers to be certified to achieve emissions performance equivalent to US EPA Tier 3.

235. Further it is important when identifying best management practices to consider technical, logistical and financial considerations, or alternatively, whether a practice is 'reasonable and feasible'.

236. Further, in his oral evidence Mr Kellaghan stated that "a commitment to future improvement and enhancement" by way of a "phased implementation" would be an appropriate way of resolving the dispute with respect to reach stackers.

237. RAID's air quality expert, Mr Wong, agreed in his oral evidence that a staged implementation of Tier 4 reach stackers was a "reasonable approach" and that an appropriate way of introducing the staged implementation is through the imposition of a condition of consent requiring a precinct-wide operational AQMP.

Operational AQMP

238. Mr Kellaghan acknowledges in his Individual Expert Report that it would be appropriate for a condition to be imposed on the MPW Stage 2 Consent to require a precinct-wide operational AQMP to be prepared, in a similar fashion to the requirement for the same plan under condition B59 in the consent for MPE Stage 2.

239. Qube's proposed condition B47A gives effect to the position of the experts outlined above, including the requirement for a gradual (10 year) evolution of reach stackers to Tier 4 standards.

Finding - Contention 16: Air quality conditions

240. For the reasons outlined above, I am satisfied that appropriate conditions have been imposed for the development, noting that particular (b) is resolved subject to condition (Ex R2-8 at par 35).

Contention 13: Visual impact

(RAID’s ASOFAC “Contentions” par 13)

241. In relation to the warehouses 'JN' and 'JR' approved by MOD 1, RAID contends that:

1. the buildings will be visible from a large catchment of public and private places;

2. the buildings are designed to advertise corporate logos;

3. the buildings use colours designed to advertise occupation by a commercial operator;

4. the colours are not recessive and do not reflect the colours of the local landscape;

5. the materials used accentuate the contrast with natural landscapes; and

6. there is no articulation in the design to reduce the appearance of bulk and scale.

242. RAID relied on a submission entitled “Visual Impact – LEC 2020/4407” containing texts and photographs and other graphics to address visual impact. The document is not an expert report. As Mr Rakowski explained and noted in the foreword to the document, it is a collation of SSDA documentation that was prepared to brief an expert which he said “was triaged and then collated” into the submissions. It was accepted by the Court over objection on the basis that it would be given appropriate weight as lay evidence.

242. Qube submits that on the basis of the expert evidence given by Dr Richard Lamb, being the only visual impact expert evidence before the Court in these proceedings, the Court would be satisfied that the visual impact of warehouses 'JN' and 'JR' are acceptable.

243. In Dr Lamb's Individual Expert Report, he disagrees with all of the particulars of RAID's Contention 13. Dr Lamb's expert opinion is that:

1. The buildings will not be visible from a large visual catchment. The visual catchment is small and confined. There are few public viewing places. The private viewing places are likewise confined to a small area.

2. The buildings are designed as high-bay warehouses, not for display of corporate logos. To the extent that these are proposed, they include restrained building or business identification signage which is reasonable and unremarkable in the visual context. The building identification function is appropriate, and it also has a secondary way-finding function.

3. The overall colours proposed do not appear to be dominated by brand advertising. The base colour is generic and the distribution of darker green hues toward the bases of the buildings is appropriate, regardless of the fact that the colour is a part of the contemporary Woolworths corporate livery. The darker and green hue areas of colour have a visual impact mitigation function as well as creating a contemporary appearance.

4. The Surf Mist colour proposed for the upper parts and the majority of the buildings and other light green areas are preferable. Use of dark, earthy, natural tones would accentuate the bulk and scale of the buildings more than the colours proposed.

5. The materials used for the building are common and typical materials for industrial development, neither unusual not out of character with the intended use of the sites or the character of the buildings. The natural landscape character of the vegetated buffers responds appropriately to the natural attributes of the landscape and the darker green tones in the lower levels of the buildings assist with mitigation of visual impacts responding to the adjacent natural materials, as appropriate.

6. The extent to which the buildings can be articulated or modulated with height is limited and this is acknowledged as causing medium visual impacts.

245. In considering the visual impacts of warehouses 'JN' and 'JR', Dr Lamb used his own methodology and also considered the findings of Hatch Roberts Day as documented in the visual impact assessments lodged as part of the MOD 1 application. Dr Lamb relevantly forms the following opinion in relation to the significance of residual visual impacts of the buildings:

"…the overall visual impacts of the approved buildings are medium. This is a conservative assessment, acknowledging a restricted visual catchment, low exposure to the public domain and the high sensitivity of private domain views from an isolated area of Casula.

Medium visual impacts are typical consequences of large-scale industrial developments.

…

In the context of an environment intended to be transformed into an industrial precinct of a character and scenic quality significantly different from the existing environment and dominated by large, utilitarian built forms, high degrees of mitigation of visual impacts, for example hiding or disguising the building forms, are unreasonable to expect and impractical to achieve. Some residual evidence of the scale and form of the buildings is inevitable and does not constitute an unacceptable visual impact.

The colours, materials and landscape design are factors that increase impact mitigation, to the extent that is practical. In my opinion, these are satisfactory…."

246. In Dr Lamb's oral evidence before the Court, he stated that a "medium [visual] impact is a common outcome in greenfield developments".

Finding - Contention 13: Visual impact

247. I am satisfied on the uncontradicted expert evidence of Dr Lamb and based on my own observation at the site view that the development, as modified, is acceptable and is designed to minimise the visual impact subject to the proposed conditions.

248. Dr Lamb was the only visual impact expert before the Court, and I am satisfied the visual impact of warehouses JN and JR are acceptable. Dr Lamb disagrees with all of the particulars raised by RAID and it is his opinion that the buildings would not be visible from the large catchment. The catchment is small and confined, there are few public viewing places, and the private viewing places are also confined to a small area essentially localised where the Court took its view. The buildings are designed as high bay warehouses – not to display corporate logos and to the extent that they are proposed they are to be confined to Australian building or business identification signage which I accept is reasonable in the visual context.

249. The overall colours proposed do not appear to be dominated by brand advertising the base colour is generic distribution of darker green hues toward the bases of the buildings is considered appropriate by Dr Lamb regardless of the fact that the colour is part of the contemporary Woolworths corporate identity. Darker and green hues have a visual impact mitigation function as well as creating a contemporary appearance. As I observed at the site view the Target building had some accentuated components which I accept mitigated the effect of otherwise unrelieved buildings in terms of colour. “Surf Mist” - the base colour - was said to be important for the upper parts of the building and the use of dark earthy natural tones would accentuate the bulk and scale of the buildings more than the colours proposed. The materials used are typical for industrial buildings but intended to integrate with vegetated buffers. Based on his own method and the Hatch Roberts Day document, Dr Lamb concluded that the overall visual impact was satisfactory. As I said I accept his expert assessment.

Contention 14: Acoustics

(RAID’s ASOFAC “Contentions” par 14)

250. RAID’s Contention 14 raises a number of issues in relation to noise quotas and assessments of noise reflectivity.

251. Qube submits that on the basis of Dr Renzo Tonin's evidence, the Court would conclude that the assessment of noise impacts undertaken for MPW Stage 2 is adequate and that impacts are satisfactorily addressed by the proposed conditions of consent.

252. In his Individual Expert Report, Dr Tonin provides the following responses to particulars (b)-(e) of Contention 14:

1. RAID's interpretation of the night background noise is unsubstantiated by the noise measurements;

2. RAID's proposed changes to condition B131 are substantiated by the noise measurements;

3. RAID's suggestions to redesign the western access road, prohibit diesel trucks, limit vehicle movements and change hours of operation are not feasible in the context of the development (or necessary, noting the limit on vehicle movements in condition A15A); and

4. an assessment of the new warehouse heights, including reflections, was incorporated in the noise model.

253. In the Acoustic Joint Expert Report (“JER”), the experts confirm that particulars (b)-(e) of Contention 14 are unsupported or otherwise resolved.

254. In respect of particular (a), Dr Tonin concludes that the residential noise impacts that may result from the subject development can be appropriately mitigated through the imposition of a draft condition similar to that which appears as Appendix D to the Acoustic JER.

255. Mr Harrison was generally supportive of the receiver-based treatments proposed by Dr Tonin. In oral evidence, Mr Harrison proposed that the draft condition which appears as Appendix D to the Acoustic JER be updated to incorporate an option for the proponent of the development to provide funds to an owner of a residential property affected by the residual noise impacts as an alternative to receiver-based treatments funded by the proponent.

256. Qube’s proposed condition B140A gives effect to the evidence of the experts outlined above.

257. Dr Tonin and Mr Harrison agree in the Acoustic JER that the heading of the last column in Table 4 of condition B131 in the conditions of consent for MPW Stage 2 as modified should be amended. The experts provided further clarification in oral evidence before the Court on this subject which confirmed the heading should read: 'Night LAFmax Sleep Arousal Screening Level'.

258. In Qube’s draft conditions of consent, Table 4 in condition B131 has been amended to reflect the position of the experts.

Finding - Contention 14: Acoustics

259. For the reasons outlined, I am satisfied that condition B13, as modified, is appropriate. The increased operational noise limits approved by the modified consent create a precinct-based noise management level consistent with the current Noise Policy for Industry (Environment Protection Authority, 2017), and appropriate acoustic mitigation measures from conditions of the modified consent. It is to be noted that particular (a) is resolved subject to condition (Acoustic JER at pars 70-71); particulars (b)-(e) are resolved (Acoustic JER at pars 72-75); particular (f) is resolved (Acoustic JER at pars 77-79) (Ex R2-11).

260. I accept Dr Tonin’s evidence that the assessment of noise impacts was adequate, and the impact is satisfactorily addressed by the conditions. The experts confirmed that particulars (b) to (e) of Contention 14 are unsupported and otherwise resolved. In relation to particular (a), Dr Tonin concluded that the residential noise impacts that may result from the development can be mitigated and he formulated the condition which became Appendix Z to the joint report (B140A). This condition has been included in the consolidated conditions and to the extent that there has been a benefit in the appeal process, there are now further acoustic protective measures in place. Relevantly, Mr Harrison was generally supportive of the receiver-based treatment proposed by Dr Tonin in relation to Appendix Z.

Conditions of Consent

261. Qube submits that all of RAID’s proposed conditions of consent should be disregarded on the basis that they:

1. are either unnecessary (as existing conditions of approval accommodate the matters addressed in those conditions);

2. are not relevant to the proceedings; or

3. are beyond power under s 4.17 of the EPA Act.

262. The IPC has prepared a table addressing each of RAID’s proposed conditions. It is attached to the judgement as Schedule 2.

263. After review, I accept the criticisms of RAID’s proposed conditions as identified by the IPC in the table on the grounds nominated being either beyond power, uncertain (Mison v Randwick Municipal Council (1991) 23 NSWLR 734; (1991) 73 LGERA 349) or without evidentiary foundation.

264. In the circumstances, the evidence supports the imposition of the consolidated conditions as agreed by the respondents which also incorporate the recommendations of the experts in this case as referred to in the evidence.

Conclusion

265. For the above reasons, I have decided to grant consent to the MPW Stage 2 development application, subject to the consolidated conditions.

Orders

266. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to State Significant Development Application No. 7709, for the Moorebank Precinct West Stage 2 (MPW Stage 2) at Moorebank Avenue, Moorebank (Lot 1 DP 1197707, Lot 2 DP 1197707, Lot 100 DP 1049508, Lot 101 DP 1049508, Part Lot 3 DP 1197707 and Part Anzac Road and Moorebank Avenue public road reserves), subject to the conditions in Annexure A.

3. The exhibits are returned except for A, R1-1 and R2-2.

……………………

S Dixon

Senior Commissioner of the Court

Annexure A (4558156, pdf)

Schedule 1 (193993, pdf)

Schedule 2 (4266772, pdf)

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Decision last updated: 24 December 2021