Sell & Parker Pty Ltd v Minister for Planning

[2023] NSWLEC 1523

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sell & Parker Pty Ltd v Minister for Planning [2023] NSWLEC 1523

Hearing dates:

29-31 May 2023, final written submissions 30 June 2023

Date of orders:

13 September 2023

Decision date:

13 September 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court directs that:

(1) By 05 October 2023, the parties are to confer and, if possible, agree on the particulars of conditions of consent, which are to reflect the findings of this judgment, and file the agreed conditions.

(2) If the parties are not able to agree on the interpretation of my findings and particulars of conditions of consent by 05 October 2023, each party is to file in Court and serve the party’s version of the appropriate conditions with brief notes in support.

(3) Liberty to restore is available in the normal manner, and online Court submissions can be made should there be agreed modifications to the timetable above.

Catchwords:

DEVELOPMENT APPLICATION – State significant development – increased throughput for metal recovery and recycling facility – acoustic walls – noise impacts on residential and non-residential receivers – project noise trigger levels – operational hours – operational noise limits – noise performance monitoring – need for real time monitoring – flooding implications of noise walls – air quality monitoring –ongoing function of Secretary of the Department of Planning and Environment – structural aspects of consent document – extensive disagreement on consent conditions

Legislation Cited:

Blacktown Local Environmental Plan 2015, cll 5.21, 7.3, 7.5

Environmental Planning and Assessment Act 1979 ss 4.12, 4.15, 4.17, 4.36, 4.38, 4.40, 4.5

Land and Environment Court Act 1979, s 39

Protection of the Environment Operations Act 1997, Ch 3

State Environmental Planning Policy (Planning Systems) 2021, ss 2.6, 2.7, Sch 1, s 23

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 3, ss 3.11, 3.12, 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.153, 2.122

Cases Cited:

Ulan Coal Mines Limited v Minister for Planning and Moolarben Coal Mines Pty Limited (2008) 160 LGERA 20; [2008] NSWLEC 185

Texts Cited:

Department of Environment and Climate Change, Storing and Handling of Liquids: Environmental Protection – Participants Manual, 2007

Marsh C and Downey C, Determining the Noise Policy for Industry Noise Amenity Category for Residential Receivers, Acoustics Australia, Vol 50 No 3, September 2022

NSW Environment Protection Authority, Noise Policy for Industry, October 2017

Category:

Principal judgment

Parties:

Sell & Parker Pty Ltd (Applicant)
Minister for Planning (First respondent)
Independent Planning Commission (Second respondent)

Representation:

Counsel:
T Howard SC (Applicant)
L Sims (First and Second respondent)

Solicitors:
Norton Rose Fulbright Australia (Applicant)
Department of Planning and Environment (First and Second Respondent)

File Number(s):

2022/265917

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Sell & Parker Pty Ltd (the applicant) operates a large scale metal recovery and recycling facility (MRRF) at 23-43 and 45 Tattersall Road, Kings Park (the site). The applicant is seeking to increase the throughput of the MRRF.

2. On 17 September 2020, the applicant lodged a State significant development application (reference number: SSD-10396) with the Minister for Planning (the first respondent) under s 4.12 of the Environmental Planning and Assessment Act 1979 (EPA Act). SSD-10396 seeks the grant of consent for the expansion of scrap metal throughput of the MRRF from the currently approved level of 350,000 tonnes per annum (tpa) (approved under SSD-5041, as modified) to 600,000 tpa (the proposed development).

3. SSD-10396 has not yet been determined, it is the deemed refusal of SSD-10396 which is the subject of these proceedings.

Statutory framework

4. Here, I reference my appreciation of an agreed jurisdictional statement provided by the parties and filed on 31 May 2023, which I cite extensively in this section and at other points.

State significant development

5. The proposed development falls within s 23(3) of Sch 1 of the State Environmental Planning Policy (Planning Systems) 2021 (Planning Systems SEPP) being ‘development for the purpose of resource recovery or recycling facilities that handle more than 100,000 tonnes per year of waste’. Therefore, the proposal is declared to be State significant development pursuant to s 4.36(2) of the EPA Act and s 2.6(1)(b) of the Planning Systems SEPP.

6. The consent authority for the proposal is the Minister for Planning under s 4.5(a) of the EPA Act. While there were more than 50 submissions made by way of objection during the public exhibition period, a number of those submissions were “the same or substantially the same” as other submissions and are to be “counted as 1 submission” (s 2.7(6) of the Planning Systems SEPP). Accordingly, the parties agree that less than 50 (“counted”) submissions were made by way of objection during the public exhibition period. I accept this position of the parties, and as such the proposed development is not of a kind for which the Independent Planning Commission (the second respondent) has been declared as the consent authority (under cl 2.7(1) of the Planning Systems SEPP).

7. The power to determine a development application in respect of State significant development is at s 4.38(1) of the EPA Act, which provides:

The consent authority is to determine a development application in respect of State significant development by:

(a) granting consent to the application with such modifications of the proposed development or on such conditions as the consent authority may determine, or

(b) refusing consent to the application.

8. The Court hears the appeal de novo (s 39(2) of the Land and Environment Court Act 1979). Of note is the requirement, under s 4.40 of the EPA Act that, for State significant development, s 4.15 of the EPA Act applies (prescribing evaluation requirements in determining development applications).

9. However, for State significant development there is no parallel provision to s 4.17 of the EPA Act, which establishes the prescription for the imposition of conditions on development consents, generally. It will become relevant that s 4.38 of the EPA Act, applying to State significant development, is relatively open-ended in that respect.

Permissibility of development on the site

10. The site is zoned E4 General Industrial under the Blacktown Local Environmental Plan 2015 (BLEP). The E4 zone objectives are:

• To provide a range of industrial, warehouse, logistics and related land uses.

• To ensure the efficient and viable use of land for industrial uses.

• To minimise any adverse effect of industry on other land uses.

• To encourage employment opportunities.

• To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers.

• To minimise adverse impacts on the natural environment.

11. The proposal is permissible with development consent at the site pursuant to s 2.153(1) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) which makes development for the purpose of waste or resource management facilities permissible within, relevant here, the E4 zone.

12. Further consideration of relevant environmental planning instruments occurs later in the judgment.

Proposal in context

13. The applicant is in the business of recycling and selling scrap metal (including motor vehicle bodies and the like), at scale. The applicant supplies processed scrap metal for major Australian steel production and is licensed to export scrap metal to China (the proposal is argued to support achievement of the, now, higher quality recycling standards of this market). I generally acknowledge that the form of resource recovery and productive re-use involved in the existing MRRF, and proposed expanded proposal, bring significant environmental benefits; including through reduction of more energy intensive steel making (through coal and electricity). It follows that increased throughput for the MRRF can assist in boosting the region’s performance in that regard. The environmental impact statement prepared for the proposal provides some particulars and links the proposal to “circular economy” related government policy (Exhibit A Tab 3, Section 3 pp 45-51).

14. As might be expected, the proposal also brings environmental disbenefits. While not the only issue of relevance to this case, particularly noteworthy is the high levels of noise the processes involved can bring about. Certainly, noise annoyance was the main issue raised during related public consultation (First respondent’s bundle Ex 2 Tabs 21, 24, 25 and 26).

15. Apart from the aforementioned development consent (SSD-5041), the site is subject to environment protection licence 11555 (the EPL) issued under Ch 3 of the Protection of the Environment Operations Act 1997 (POEO Act) which is concerned with pollution management. Among many other controls, the EPL prescribes scrap metal throughput limits (currently 350,000 tpa), noise limits and operating hours.

16. While the on-site process flow for waste metal supply and recycling follows a number of paths, during a site visit on the first day of the hearing, the Court had the opportunity to observe scrap metal arrive at the site and be added to stockpiles from cranes; and see cranes lift metals onto and move up a conveyor belt to a large metal shredder (which processes the majority of the scrap metal arriving at the site). There was also the opportunity to see a metal shear which processes metals that are unsuitable for the shredder. The observed shredder and shear were located in the western area of the site (henceforth the western compound). There is also a shear in the eastern area of the site (east shear) which was not operational during the site inspection. Other equipment, not observed during the site inspection, includes an oxy-cutting device to cut oversized items (an operational aspect subject to particular noise controls). There are various pre and post processing steps involved before end-product transport from the site. It is not in dispute that the site’s existing processing infrastructure has capacity to accommodate the increased throughput from 350,000 to 600,000 tpa. That is, no additional processing-related equipment is needed.

17. The proposal, as amended, provides for a series of noise attenuation measures, including the construction of 16m high acoustic walls on three sides of the relocated east shear. Acoustic walls of heights between 6m and 10m would also be installed in the western compound. A depiction of the proposed acoustic walls is shown on the site plan at Figure 1.

Figure 1 – Site plan highlighting proposed acoustic walls

Site and setting

18. The site is located within the midst of a large area of employment land sitting between Sunnyholt Road to the east and the Richmond Railway Line to the west. The site backs onto Breakfast Creek which separates the site, which sits within the more general industrial uses in Kings Park, from land zoned E3 Productivity Support under BLEP to the south of Breakfast Creek, which is a lighter industrial or business support area.

19. The closest residential properties are to the east, over 300m away and across Sunnyholt Road and a bus line known as the North-West Transitway. Residential properties located to the north and west of the site are more than 650m and 1km, respectively. As indicated earlier, there were significant objections raised during the public consultation exercise relating to the proposal, particularly in regard to noise.

Issues for evaluation and judgement structure in response

20. It is noteworthy that both parties adopt the position that the proposal warrants the grant of consent. It is the particulars of the conditions of consent proposed by either party which are in dispute. However, the applicant submits that conditions of consent, as proposed by the first respondent, would make the project unviable; whereas the first respondent’s acoustic expert, at least, argues that unless its conditions are adopted, the site may not be suitable for the proposed increased throughput.

21. There are three main “evaluative” sections to this judgment. The first section addresses noise, the main point of dispute between the parties. There are two noise-related considerations which require extensive analysis and commentary. These are in relation to: (1) operational noise limits, and (2) hours of operation. Consideration of these noise-related issues makes up the majority of this judgment and provides something of a foundation for various noise-related contested consent conditions.

22. The second evaluative section of this judgment deals more directly with individual contested consent conditions. Disputed conditions relate to noise performance along with air quality, traffic and access, hazards and risk, water management, flood management and further community consultation requirements. There are also disputes in regard to some administrative and structural aspects of any consent. The second evaluative section moves through each disputed condition in turn.

23. The third evaluative section returns to the application of s 4.15(1) of the EPA Act and the consideration of jurisdictional and other relevant matters not already raised in the dispute between the parties and otherwise addressed.

Noise issues

24. This section of the judgment deals with two inter-related topics:

1. Operational noise limits – as a measurable limit over different time periods at critical receptor locations (residential and non-residential).

2. Hours of operation – including provisions for practical differentiation of various elements of the MRRF in order to meet noise limits while also mindful of operational needs.

25. It will be seen that there is a need for some “circling” of issues, and progressive interpretive and outline findings, before ultimate conclusions can be drawn in regard to noise related consent conditions.

Selected glossary

26. Below is a list of common terms arising in the acoustic evidence, with a basic and simplified explanation. The explanatory source is NPfI [27] and the Tonin Report (Ex B Tab 9 p 9). There were various shorthand (and longer hand) versions of the terms used in reports and submissions. Due apologies are made for the simplified explanations I reference below and adopt generally in this judgment.

• dBA = Unit used to measure ‘A-weighted’ sound pressure levels. A-weighting is an adjustment made to sound-level measurement to approximate the response of the human ear.

• L_Aeq,15min = The time-averaged sound pressure level over 15 minutes. According to the NPfI (p 8), the L_Aeq level:

“… takes account of peak noise levels as well as the degree of noise fluctuation. This descriptor is most widely correlated with the subjective effect of noise.”

• L_AF90,15min dB (or L_{A90, 15min} dB) = The A-weighted sound pressure level measured using fast time weighting that is exceeded for 90% of the time over a 15-minute assessment period. This is a measure of background noise.

• L_AFmax = The maximum sound pressure level of an event.

• Rating Background Level (RBL) = a derived single figure measure for assessment purposes, calculated from individual samples of background noise level measurements (L_A90,15min).

27. I can note here that the key policy document considered by experts in relation to this case is: NSW Environment Protection Authority, Noise Policy for Industry, October 2017 (henceforth the NPfI).

Operational noise limits

Introduction

28. In this section of the judgment, I commence with some further background material including information on the existing noise limits applying to the MRRF and an explanation of the noise receiver areas (areas where noise impacts critical to noise limit findings are located). It is necessary for me to then turn to the concept of project noise trigger level (PNTL), a measure explained in the NPfI. The establishment of appropriate PNTLs was a subject of considerable examination during the course of the hearing’s consideration of evidence and, due to its technical nature, its analysis occupies a considerable part of the judgment. After covering PNTLs, the two (considerably different) sets of operational noise limits proposed by the parties are introduced. A brief explanation of the different conceptual approaches adopted by the parties is provided. It will be seen that I need to integrate conclusions on the two-related major noise topics ((1) operational noise limits and (2) hours of operation) before findings can be made in regard to consent conditions [63].

Operational noise limits under current licence

29. The imposed noise limits under the EPL are indicated in Table 1 and relate to received noise levels at residential properties at 189 Sunnyholt Road and 27 Charles Street (Ex 4 par 14).

Table 1- Current operational noise limits for the existing MRRF (Ex C Tab 1 and 2)

30. There is agreement that exceedances of these limits by up to 7dBA were identified in recent noise monitoring under current noise attenuation conditions (Ex 4 par 15). The applicant argues that these noise limits should continue to apply with the expanded throughput to the MRRF. The first respondent is seeking stricter noise level controls.

Noise receiver areas

31. The receiver areas of concern (in regard to imposing noise limits to protect against potential noise impact) have to date been considered as comprising five areas:

1. The nearest residential area located to the east of Sunnyholt Road. The most affected receivers are in the vicinity of Anthony Street and Charles Street (Ex 4 par 2.3). Charles Street runs parallel to Sunnyholt Road, setback 140m or so, and is elevated above to the extent that there is a line of sight to some of the taller machinery on the site. 27 Charles Street (at the intersection of Charles and Anthony Street) has become the key measurement point for acoustic assessment. Pertinent to section 2.6 of NPfI, it can be assumed to be the “reasonably most affected point” in regard to residential noise assessment. Although I note that 29 Charles Street directly across the Anthony Street, is almost interchangeable in that respect.

2. An employment area immediately across Breakfast Creek from the site within the E3 Productivity Support (within which a place of public worship is also located).

3. E4 General IndustriaI zoned land in the immediate site vicinity.

4. More distant residential area to the north of the site (over 650m).

5. Again, more distant residential area to the west of the site (over 1km).

Project noise trigger levels

32. Under the NPfI, a central question in the analysis of noise impacts is the determination of project noise trigger levels (PNTLs) for a project in its context (NPfI section 2.1):

“The project noise trigger level provides a benchmark or objective for assessing a proposal or site. It is not intended for use as a mandatory requirement. The project noise trigger level is a level that, if exceeded, would indicate a potential noise impact on the community, and so ‘trigger’ a management response; for example, further investigation of mitigation measures.

The project noise trigger level, feasible and reasonable mitigation, and consideration of residual noise impacts are used together to assess noise impact and manage the noise from a proposal or site. It is the combination of these elements that is designed to ensure that acceptable noise outcomes are determined by decision makers.

…”

33. The NPfI outlines two different paths for the determination of an appropriate PNTL. One path examines what is termed the “intrusiveness noise level”. It relates project noise to background noise levels. In simple terms the intrusiveness noise trigger level is background plus 5dBA. The other path examines what is termed the “amenity noise level”. It relates to the absolute level of noise and has an interest in protecting against cumulative noise impact from industry. The NPfI identifies amenity noise levels for different contextual settings.

33. Drawing these two paths together, the NPfI notes that it is the lowest of the two levels which forms the PNTL. I note that there needs to be an adjustment when comparing intrusiveness noise levels (taken over a 15 minute period) and amenity noise levels (taken over an assessment period ie day/evening/night). There was no dispute in regard to the Tonin Report’s findings that in relation to this single industrial use the NpfI (based on two separate adjustments) adopts a position where “Project amenity noise level (L_Aeq,15min) = Recommended amenity noise level (L_Aeq,period ) – 2dB (Tonin Report par 91).

Background noise levels and intrusiveness noise trigger levels

35. As indicated above, 27 Charles Street (located at the intersection with Anthony Street) comes under particular scrutiny in the evidence and I use it below as a marker for the wider assessment considerations.

36. Two separate sets of background noise level measurements, separated by some 12 months, were undertaken in the Charles Street environs, near the intersection with Anthony Street. Measurements were undertaken during November and December 2021, intentionally it would seem, in a quite shielded area in the rear yard of 29 Charles Street. According to the first respondent these were the most apposite measurements (Minister’s Closing Submissions filed 27 June 2023 (MCS) par 14):

“Dr Peng’s view is that the background noise levels measured at 29 Charles Street during November and December 2021 should be used. Noise monitoring conducted by the Applicant has occurred while the site is operating. The noise monitor at 29 Charles Street in November and December 2021 was in a location shielded from site noise and therefore is more representative of the background noise levels without noise from the site.”

37. The reason for locating the loggers in the shielded location seemed to be an effort to address the challenge of identifying background noise levels, exclusive of the noise of the project itself. This being the test identified in Fact Sheet A of the NPfI (section A1).

38. I preferred the applicant’s position on this point. Background noise level measurements were undertaken over a sequential five week period from Friday 18^th November to Thursday 22^nd December 2022 by Dr Tonin, the acoustic expert engaged by the applicant, and documented in the Tonin Report. I understood the work documented in the Tonin Report to comprise a more intricate attempt at getting an understanding of local receiver background noise levels, exclusive of the noise of the project. This work involved loggers located in the front yard area of each of three residential properties (noise data collected over identified periods at both ground and first floor levels) while at the same time noise and vision loggers were located at the site and identifying (noisy) activity in both the western and eastern compounds. Synchronisation of on-site audio and visual information with noise logged at residential receivers allowed the interrogation of receiver noise levels with respect to, relevantly, excluding on-site noise events in the determination of background noise levels at receiver locations. The process for the derivation of RBLs from the November and December 2022 data is explained at Section 3.3 of the Tonin Report, and referenced in Dr Tonin’s commentary in Ex 4. For example (Ex 4 par 43):

“…(the process for deriving background levels) involves listening to the entire recorded audio for the sample interval, “tagging” data that is potentially attributable to the Site and confirming whether or not the tagged data originates from the Site by correlating with the microphones installed on the Site. Examples are shown in Figures 5 and 6 of the Acoustic Report. By reference to those figures, in respect of noise that was audible in between tagged samples, I confirmed that the audible sound was predominantly from traffic and that noise from the Site was inaudible.”

39. The noise measurements from November and December 2021 provide only for a coarse assessment of RBL. The intention to shield site noise by locating the loggers in the rear yard of at 29 Charles Street would also have the effect of shielding traffic noise from Sunnyholt Road along with other industrial noise-generating land use from the Kings Park industrial precinct (Tonin Report par 39).

40. Dr Peng, the acoustic expert engaged by the first respondent, raised some concerns in regard to the November and December 2022 data, including: (1) that the approach required “extensive post-processing of recorded unattended noise monitoring data”, (2) whether data processing had excluded the site’s “steady noise contributions” to background levels (eg engine, exhaust and fan noise from stationary and mobile mechanical plant (Ex 4 par 50)), and (3) the accounting for variance in measurements.

41. Generally, it seemed to me clear that the Tonin Report accounted for this “extensive post-processing” (as evident from Section 3.3 which outlines the assessment methodology including the noise tagging process and explaining how, say, infrequent, short period, high noise level events were excluded from background levels). Section 3.3 also seemed to explicitly account for Dr Peng’s second query and the site’s steady noise contribution, mostly inaudible at the receptor level, but still warranting exclusion for calculation purposes. Generally, I found the Tonin Report’s explanation of the quite technical analysis undertaken in regard to what I describe above as Dr Peng’s first two points as cogent and persuasive.

42. In regard to the question of variability in background noise level monitoring data, I note the analytical material provided by Dr Peng in support (Ex 3 Appendix D.1). As put by Dr Peng, it demonstrates:

“… a narrow variation in assessment background noise levels at 187 Sunnyholt Road (no more than a range of 3 dB) compared to a large variability in assessment background noise levels at 27 Charles Street (up to a range of 13 dB) and 22 Anthony Street (up to a range of 12 dB). “

43. Dr Peng believes this demonstrates “it is unlikely that traffic noise from Sunnyholt Road is the dominant source of background noise at locations in the vicinity of Charles and Anthony Street” (Ex 4 par 52 (i)). Dr Peng’s view, as expressed in Ex 4, is that the cause of the large variability is unexplained. I accept this view, given Dr Tonin only indicating, in response, as follows (Ex 4 par 53):

“In respect of the data in Appendix D.1 of this Joint Report, the variations in the background noise level from location to location as claimed fail to demonstrate anything other than the fact that background noise level varies from location to location which is what I would expect where there is a major traffic noise source in the study area.”

44. This response seems to miss the point, this particular concern raised by Dr Peng is not variation in background noise levels from location to location but variation at individual single locations in settings with a relatively constant “major traffic noise source”.

45. While I accept that Dr Peng has raised some unanswered concerns with respect to variability, I am not convinced that they throw determinative weight against the otherwise findings of the Tonin Report. Important to me here is that there is no evidence that the assessment background noise level data as gathered is “contaminated” rather than merely characteristic of real variability. Here I found the applicant’s cross-examination of Dr Peng with regard to the quite consistent instances of background levels for Sunday periods (a day of low noise operations only at the site) as falling within the range of background levels throughout the rest of the week, as persuasive (Tcpt, 31 May 2023, pp 12-17).

46. I generally accept the calculated background noise levels for the most sensitive receivers as documented in the Tonin Report (Table 3). This would establish “intrusiveness” noise trigger levels (RBL plus 5dB), again as documented in Table 3 of the Tonin Report. I will reproduce the relevant numerics after considering the amenity noise trigger levels, the second aspect of the consideration of PNTLs (see [61]).

Amenity noise trigger levels

47. The use of amenity noise levels is concerned with limiting increases in noise levels over time which might otherwise occur through application of noise intrusiveness levels alone (NPfI Section 2.4).

48. Table 2.3 of the NPfI guides the determination of amenity noise levels, indicating different levels for different land use types and settings. While there is no dispute that, insofar as the Charles Street environs is concerned, the land use receiver type is “residential”, there is a difference as to whether the Charles Street environs is best described as “urban” or “suburban”, with urban amenity trigger levels higher than suburban (Table 2).

Table 2 – Residential amenity noise levels (adapted from Table 2.2 of Noise Policy for Industry)

49. The NPfI provides further guidance on how to differentiate receiver land use categories and which receiver category should be selected. Provisions from Table 2.3 are selectively reproduced below. Notably, calculated RBLs can be a consideration in the determination of amenity levels.

Table 3 – Residential receiver category table (adapted from Table 2.3 of Noise Policy for Industry)

Receiver category	Typical zoning Includes-	Typical existing background noise levels	Description
Suburban residential	R2 – low density residential R3 – medium density residential E2 – environmental conservation E3 – environmental management	Daytime RBL<45 dB(A) Evening RBL<40 dB(A)	Suburban-An area that has local traffic with characteristically intermittent traffic flows or with some limited commerce or industry. This area often has the following characteristic: evening ambient noise levels defined by the natural environment and human activity.
Urban residential	R1 – general residential R4 – high density residential B1 – neighbourhood centre (boarding houses and shop-top housing) B2 – local centre (boarding houses) B4 – mixed use	Daytime RBL> 45 dB(A) Evening RBL> 40 dB(A) Night RBL >35 dB(A)	Urban-An area with an acoustical environment that: • is dominated by ‘urban hum’ or industrial source noise, where urban hum means the aggregate sound of many unidentifiable, mostly traffic and/or industrial related sound sources • has through-traffic with characteristically heavy and continuous traffic flows during peak periods • is near commercial districts or industrial districts • has any combination of the above.

50. I note the NPfI’s explanatory statement with respect to NPfI Table 2.3:

“Table 2.3 provides guidance on assigning residential receiver noise categories; however, careful judgement based on site-specific circumstances and consultation with the relevant planning/licensing authority may be required in some circumstances.”

51. The zoning of the area in question is R2 low density residential under BLEP. Dr Peng gives a heavy weight to this fact, which, according to the second column, suggests the receiver sites as suburban rather than urban. He references a journal article produced by EPA specialists which seems to be directly concerned with the topic at hand. The reference is: Marsh C and Downey C, “Determining the Noise Policy for Industry Noise Amenity Category for Residential Receivers”, Acoustics Australia, Vol 50 No 3 pp 278-281, September 2022, reproduced at Appendix D2 of Ex 4, which also included some related critical commentary from Dr Peng. I will henceforth reference this paper as the Marsh and Downey article.

52. The Marsh and Downey article suggests itself to represent an EPA guidance note aimed at “(clarifying) how to determine and apply noise amenity categories for residential receivers when assessing noise under the (NPfI)” and seeking to “provide information to increase consistency in the application of amenity categories and to enable outcomes that align with the principles and intent of the NPfl” (p 278). Dr Peng went to a series of points raised in the Marsh and Downey article which he believed argued against categorisation of receiver sites such as 27 Charles Street and further west as urban receiver category. Points from the Marsh and Downey article raised by Dr Peng included (Ex 4 App D2):

“Justifications for changing the amenity category must consider the principles and intended outcomes of the NPfI and not contradict them.

Marginal situations should side on the more conservative category. If there is reasonably doubt or ambiguity in the amenity category based on a single or combination of factors, the more conservative category should generally be selected.

Where a change in receiver category would affect a group or catchment of residential receivers, the justification should extend to a demonstration that the matters influencing the change would apply across the whole catchment.

Where elevated levels of existing industrial noise, or other ambient noise sources and/or other noise environment characteristics are used to justify variance from the land use zoning categorisation, evidence must be presented which should include attended noise measurements.

Where the amenity level is proposed to be varied from the land use zoning categorisation based on differences with the description in NPfI Table 2.3 column 4, evidence should be presented which can demonstrate the difference in character and should generally be supported with noise measurements that identify the causes of the difference in “description”.

The presence of characteristics which vary from the typical existing background noise levels and description (NPfI Table 2.3 columns 3 and 4) in one day, evening or night time period does not necessarily outweigh the characteristics of the other relevant periods. Strong justification should be provided that it is reasonable and in keeping with the principles and intent of the NPfI to change an amenity category based on not all relevant time periods qualifying for consideration of a variance from the zoning-based categorisation.”

53. Dr Tonin relied on the arguments in section 4.3 in the Tonin Report to justify inclusion of 27 Charles Street, and further west, as urban receiver category, albeit within the R2 Low Density Residential zoning. I understood the main supportive points relating to the analysis of site-specific circumstances raised in the Tonin Report to be as follows:

1. The acoustic environment (including at 27 Charles Street) is dominated by noise from traffic on Sunnyholt Road which is an arterial road. Sunnyholt Road has an annual average daily traffic volume of more than 20,000 vehicles.

2. There is an observable inconsistency (including at 27 Charles Street) with the Column 4 description for suburban areas as “an area that has local traffic with characteristically intermittent traffic flows”

3. RBLs (including at 27 Charles Street) exceed or meet the numerical values in Column 3 for suburban receiver category (ie “45 day / 40 evening / 35 night”).

54. A conclusion was drawn in the Tonin Report that the threshold for urban and suburban receiver category is somewhere near 22 Anthony Street (Tonin Report par 110), which would fall into the suburban category located, as it is, over 100m east of Charles Street.

55. The key disagreement I have with Dr Tonin’s conclusion is with respect to his findings on Column 4 of the Residential Receiver Category Table. Factually, the residential area in the Charles Street / Anthony Street / Eggleton Street environs is “an area that has local traffic with characteristically intermittent traffic flows or with some limited commerce or industry”. This particular test is not of itself in any way associated with noise, say, from Sunnyholt Road. The test is, essentially, whether these are local traffic streets. It seems to me indisputable that they are. Local traffic management systems ensure this is the case. Here I note the limited access points to Sunnyholt Road, seemingly to ensure the limitation of through traffic use. I reject the Tonin Report’s observation that these areas “are consistent with the description attributed to an urban residential category as ‘has through-traffic with characteristically heavy and continuous traffic flows during peak periods’” (Ex B Tab 9 par 106).

56. A different point of interest under the Residential Receiver Category Table is in regard to background noise setting. Numerical guidelines are at Column 3 and noise-related descriptive commentary is at Column 4. I note the Column 4 descriptive material in regard to the suburban receiver category is qualified (“often has”). Whereas it is the foundational point (“… area with an acoustical environment that: …”) with respect to the urban receiver category. I have already indicated I prefer and have accepted the findings of the Tonin Report, relying on November and December 2022 data, in regard to RBLs. In turn, I agree with Dr Tonin’s conclusions insofar as Column 3 Residential Receiver Category Table is concerned and disagree with Dr Peng.

57. But this does not relieve me from my conclusions in regard to Column 4 of the Residential Receiver Category Table. Why it is significant to focus on things other than noise (and specifically local traffic levels), in considering amenity trigger levels, is in part explained in the NPfI itself (section 2.4):

“…

The recommended amenity noise levels have been selected on the basis of studies that relate industrial noise to annoyance in communities (Miedema and Voss, 2004). They have been subjectively scaled to reflect the perceived differential expectations and ambient noise environments of rural, suburban and urban communities for residential receivers. They are based on protecting the majority of the community (90%) from being highly annoyed by industrial noise.

…”

58. I take this NPfI commentary to be highlighting the potential for a higher degree of annoyance for those residing in a low-traffic local street than for those living in a higher traffic street, even under equal background noise settings. That is to say, the compounding of the two factors of background noise and traffic levels brings a degree of acceptance that it not evident in areas where there may be higher background noise but still a sense of amenity due to the otherwise character of the street (ie a “quiet” local street, traffic-wise). It also seems to me there is a common sense to this.

59. Were I to adopt the position indicated in the Marsh and Downey article, this would bring the properties at, and east of, Charles Street into a “marginal situation” under the Residential Receiver Category Table, warranting adoption of “the more conservative category” at [52], placing 27 Charles Street and properties to the east within the suburban receiver category

60. It seems fair to give some weight to the (albeit self-described) guidance provided in Marsh and Downey article. This is in part related to the reference in the NPfI to “… consultation with the relevant planning/licensing authority” at [50]. However, if the Marsh and Downey article is suggesting adoption of a conservative approach in all so-defined “marginal situations” (emphasis added) to the extent that they become noise control elements, this seems to me at odds with some other principles in the NPfI. I need to look to the objectives of the NPfI itself which emphasise “feasible and reasonable noise management” (NPfI p iii). There is the reference to “careful judgement based on site-specific circumstances” in the explanatory statement to NPfI’s Table 2.3 at [50]. Then there is the identified need for care in adopting amenity noise levels as a control (NPfI p 11):

“Amenity noise levels are not used directly as regulatory limits. They are used in combination with the project intrusiveness noise level to assess the potential impact of noise, assess reasonable and feasible mitigation options, and subsequently determine achievable noise requirements.”

Conclusion on PNTL interpretation

61. Table 4, below indicates RBLs and both intrusiveness and amenity trigger levels for 27 Charles Street at ground floor level (NPfI Section 2.6), taking account of adjustments. Here I base the RBLs on my conclusion to prefer the use of the November December 2022 data (see [38]). In regard to the morning shoulder period (6am-7am), I accept the Tonin Report’s argument that the project amenity noise level should accord with that for day periods (Tonin Report par 92). Noise impact during this (morning shoulder) period is to an extent academic given the applicant’s acceptance of the position that the noisy activities of shears and shredders would only commence from 7am. The high existing RBLs during the morning shoulder period is also relevant.

Table 4 – Comparing relevant noise trigger levels at 27 Charles Street (adapted from Ex B Tab 9 Table 3 and Ex 4 Table 2-1)

62. Noteworthy from Table 4, is that ambiguity in the determination of the appropriate PNTL (as the lowest of the relevant intrusiveness and amenity trigger levels) comes into play during the evening and night periods. That is, it is clear that intrusiveness is the relevant project noise trigger for day and morning shoulder, no matter whether suburban or urban amenity noise levels are selected. However, for evening and night periods, the application of the suburban amenity level as the PNTL provides for a significantly different result than the urban amenity level, which in this instance is more or less equivalent to the intrusiveness trigger level.

63. Here is the point where it is important to note that taking a fixed position on a PNTL is not the end of it when a conclusion is sought on operational noise limits. PNTL’s are helpful in assessing potential impact. But before drawing conclusions and assigning operational noise limits it is necessary to also factor in hours of operation, and broader questions of feasible and reasonable noise management measures, including in consideration of the current operating conditions of the MRRF and potential comparable improvements to operational noise management into the future.

64. At this point, I can also note that, on the topic of PNTLs, the NPfI also has regard to non-residential noise receptors (NPfI Table 2.2). Of relevance are the industrial lands in the immediate site vicinity (zoned E4 General Industrial under BLEP) and the land across Breakfast Creek to the south of the site within the E3 Productivity Support zone. The NPfI differentiates amenity noise levels for industrial receivers and commercial premises receivers. In this instance, it is reasonable to consider the E3 Productivity Support zoned land as commercial and the E4 zoned land as industrial with amenity project trigger levels of 63 and 68 L_Aeq,15min dB(A), respectively (having regard to the adjustment indicated at [34]). The relevant trigger levels are included in Table 4.

Operational noise limits as presented empirically in consent conditions by the parties

First respondent’s position

65. The first respondent argues that best achievable noise limits should be applied. The first respondent essentially adopts the figures calculated as such in the Tonin Report (Table 8). The first respondent’s position in regard to operational noise limits is reproduced below (first respondent’s proposed Condition C4 and Table 2).

Table 5 – First respondent’s operational noise limits (first respondent’s proposed Condition C4 and Table2)

Location	Day 7am-6pm LAeq,15min	Evening 6pm-10pm LAeq,15min	Night 10pm-6am LAeq,15min	Morning shoulder 6am-7am LAeq,15min
Residential Receivers
27 Charles Street, Blacktown 29 Charles Street, Blacktown	44	44	38	44
11 Anthony Street, Blacktown 2 Eggleton Street, Blacktown	43	43	38	43
15 Anthony Street, Blacktown 17 Anthony Street, Blacktown 17 Charles Street, Blacktown 29 Camorta Close, Kings Park	42	42	38	42
Commercial receivers (when in use)
11/27 Forge Street, Kings Park 32 Forge Street, Kings Park	55
50 Forge Street, Kings Park 1/44 Bessemer Street, Blacktown	54
34 Forge Street, Kings Park 38 Forge Street, Kings Park	59
Industrial receivers (when in use)
21 Tattersall Rd, Kings Park	56
38 Tattersall Rd, Kings Park	58
57-69 Tattersall Rd, Kings Park	55

66. Notable is that the first respondent adopts, in the case of the evening period, the applicant’s best achievable noise limits in instances when they might exceed the first respondent’s calculation of PNTL. I also note that the first respondent indicates “noise limits are to be measured at the most-affected point within the relevant property at a height of 1.5 metres above ground level” (MCS par 21). This is relevant to measurements at 27 Charles Street (and 11/27 Forge Street) as data was available based on both ground and first floor levels.

Applicant’s position

67. The applicant’s position on operational noise limits reflects the presently applicable conditions (Condition C4 in the EPL), as reproduced below.

Table 6 – Applicant’s operational noise limits (applicant’s proposed Condition C4 and Table2)

Location	Day 7am-6pm LAeq,15min	Evening 6pm-10pm LAeq,15min	Night 10pm-6am LAeq,15min	Morning shoulder 6-7am LAeq,15min	Morning shoulder 6-7am LAFmax
Residential Receivers
27 Charles Street, Blacktown 15 Anthony Street, Blacktown 29 Camorta Close, Kings Park	46	46	38	46	58
Commercial receivers (when in use)
1/44 Bessemer Street, Blacktown 34 Forge Street, Kings Park	63
Industrial receivers (when in use)
21 Tattersall Rd, Kings Park	68

68. I interpret the applicant’s adoption of 63 and 68 dBA L_Aeq,15min for sites in the E3 Productivity Support and E4 General Industrial zones, respectively, would reflect the amenity levels for commercial and industrial premises (again respectively) as reproduced in NPfI (Table 2.2 but allowing for the adjustment outlined at [34]). The applicant notes that the current EPL does not include any L_Aeq,15min noise limits with respect to commercial or residential receivers.

Outline findings on operational noise limits and link to other disputed consent conditions

Conceptual approach

69. The first respondent argued that application of best achievable noise levels (Table 8 to the Tonin Report) as conditions of consent was required under a fair reading of the NPfI. Various points of commentary in the NPfI were nominated (MCS par 19). I note reference was made to Figure 2 of the NPfI which shows a flow chart. The flow chart was read by the first respondent as indicating that (even) in instances when PNTLs were not exceeded it was nevertheless necessary to apply conditions requiring best achievable noise levels. Section 1.6 of the NPfI (“overview of the policy”) also suggests the following as one of the “main steps” for industrial noise management:

“…

5. Setting statutory compliance levels that reflect the best achievable and agreed noise limits for the development (Section 5)

…”

70. I cannot agree with the first respondent that the application of best achievable noise levels, as conditions of consent, is required under the NPfI. It is clear to me from its commentary, in particular having regard to Section 1.6, that the determination of PNTLs is the more foundational standard or, as put, “benchmark” under the NPfI. It is in instances of noise circumstances above the PNTL where “management measures are required to be considered” (NPfI p 5). The NPfI is also quite considerably attentive to circumstances where noise levels exceed PNTLs and the sometimes appropriateness of balancing out various areas of public interest in coming to the appropriate solution. This balancing out is explained in Section 5.1 itself:

“A planning approval or licence condition arrived at through the process described in this policy will have taken a number of matters into account, in accordance with the requirements of the relevant legislation. These can include:

• the assessed noise impact, which includes the impact of the noise source and any additional impact caused by meteorological conditions

• mitigation measures required to achieve the project noise trigger level

• identification of a practical (achievable) noise level after adopting all feasible and reasonable mitigation measures

• the significance of any residual noise impacts and the number of receivers affected

• consideration of trade-offs

• whether the final noise level proposed is acceptable.

It is important to note that the agreed limits in the planning approval or licence apply under the meteorological conditions outlined in the policy to be relevant to the assessment site.

Compliance with noise limits will not always safeguard against complaints because it is not possible to protect the whole range of individual sensitivities in a community to noise.”

71. The first respondent refers to commentary in the NPfI (p 6) establishing a step concerned with setting “statutory compliance levels that reflect the best achievable and agreed noise limits for the development”. However, this reference in the NPfI is less concerned with adopting the best modelled noise outcome at receiver sites and more concerned with what might be able to be brought about in practice in instances were a PNTL is exceeded. On this point, I agree with Dr Tonin that Figure 2 does not properly represent the intention of the NPfI on this point.

72. I am not sure that I understood the reasoning behind the applicant’s adoption of, for more critical periods at least, the existing operational noise limits. One, perhaps, rational view would be that a concern about assessing impact should acknowledge the existing lawful noise output settings as the benchmark (emphasis added). The applicant argued that its approach provided a reasonable and conservative approach as, in each instance, PNTL as calculated by Dr Tonin exceeded the existing license conditions. My immediate concern with this approach is my finding that 27 Charles Street (and points west) are not readily categorised as an urban residential receiver area. The implications of this point of difference are centred on the evening period, where the suburban residential receiver category would provide for a project trigger level of 43dBA L_{Aeq, 15min}, whereas existing EPL license conditions apply a figure of 46dBA L_{Aeq, 15min}. On this point, the applicant’s approach cannot be seen as conservative in regard to the evening period, in my view.

73. The NPfI again provides the guide in referencing the need for a balancing of economic, social and environmental costs and benefits against the noise impacts. There is also a need to factor in the first respondent’s concerns that a cautious approach be adopted (eg MCS pars 8, 34). Together, conceptually, this requires a search for what might be practical (or feasible) and reasonable, and in particular, if some improvements over the current lawful noise limits can be feasibly and reasonably achieved. There is a responsive to this potential, on the part of the applicant, with its nomination of reductions in operating hours, as considered below [82]-[83].

Outline findings on empirical noise limits as codified in consent conditions.

74. What is clear is that for the marker residential site of 27 Charles Street:

• The applicant’s position on the day period (7am-6pm) noise limit of 46 dBA L_Aeq,15min is conservative and acceptable given the PNTL for the daytime period (based on project intrusiveness level) is 51 dBA L_Aeq,15min.

• The applicant’s position on the night period (10pm-6am) noise limit of 38 dBA L_Aeq,15min is generally acceptable in that it aligns with the PNTL (based on the conservative suburban amenity noise level).

• The applicant’s position on the commercial and industrial receivers is acceptable as they align with the associated amenity noise trigger levels.

• The applicant’s position on the morning shoulder period is acceptable (at [61]).

• During the evening period, the determination of noise limits moves into a questionable non-compliance with PNTL levels (at [72]).

75. I need to note here that there are strong arguments to suggest that, for residential receivers, PNTLs should be other than vehemently applied in this instance with respect to the evening period. These arguments include:

• The fact that current EPL and consent conditions exceed suburban amenity trigger levels (at 46 dBA L_Aeq,15min for both evening and morning shoulder periods, they are more aligned with urban amenity trigger levels).

• The fact that the more noise generating operations would operate for considerably reduced hours generally (commencing at 7am and ceasing at 8pm compared to current EPL and consent conditions allowing operations from 6am to 9pm).

• The fact that existing RBLs for evening and morning shoulder periods at the marker site (27 Charles Street) are higher than those nominated as “typical” for suburban areas in Table 2.3 of the NPfI.

76. On the other hand, I interpret the first respondent’s key concern to be that with the increased scale of throughput, there remains a risk of serious noise annoyance. And further, that this risk, evident particularly in the evening period, may be able to be better managed. The first respondent gives considerable emphasis to various serious objections which were received, notably from the residential areas in some proximity to the site. Copies of these submissions were provided to me (Ex 2 behind Tabs 21, 24, 25 and 26). Dr Peng also referred to the substance of these objecting submissions (Ex 4 Appendix C). Here I am mindful of the need for the Court to give direct consideration to such objecting submissions under s 4.15(1)d) of the EPA Act, which I have done. I also note the applicant observes that the notification period for the proposed development coincided with COVID-19 restrictions in Sydney and lower background traffic noise levels than normal (Applicant’s Reply Submissions, filed 30 June 2023 par 30).

77. It seems clear enough that the key point of dispute in regard to operational noise limits is narrow. It essentially relates to evening operations in my opinion. There are related topics which need to be linked in to the evaluative exercise before substantive findings on operational noise limits can be made. Among other things, these topics include current operational conditions, the particulars of hours of operation, operational noise management measures and performance management procedures over time. I get to these topics below. But here it does make sense to give attention to the somewhat more isolated operational noise limit-related topic of the first respondent’s conditions relating to L_AFmax noise limits.

First respondent’s proposed L_AFmax noise limits and related conditions

78. The first respondent proposed two additional related conditions. Condition C6 and C8 proposed that noise generated by the development not exceed the following L_AFmax noise limits at residential receivers:

“(a) between 7am and 10pm – L_AFmax 72 dB(A)

(b) between 7am and 10pm – no more than 5 occurrences of maximum noise event greater than or equal to L_AFmax 64 dB(A) within any given 15-minute sampling period; or

(c) between 10pm and 7am - L_AFmax 52 dB(A).”

79. With respect to these proposed conditions, I accept the position which can be taken from Section 2.5 of NPfI that while the potential for sleep disturbance from maximum noise level events from premises during the night-time period needs to be considered, through other periods of the day, maximum noise level events are to be considered as factored into L_Aeq limits. This means the first respondent’s Conditions C6(a) and (b) (and C8, relevantly) should not apply. The Tonin Report makes findings that “potential for sleep disturbance from maximum noise level events from premises during the night-time period needs to be considered” (Tonin Report Section 4.5). The EPL includes a 58 L_AFmax control for the morning should period. This should be retained, noting the Tonin Report’s calculation for the sleep disturbance trigger (RBL + 15dBA) for the morning shoulder period as 61 L_AFmax for 27 Charles Street (Tonin Report Table 3).

80. The effect of the first respondent’s Condition C6(c) relating to sleep disturbance for the night time period is to be retained, however the L_AFmax 52dBA figure should be replaced with the figure L_AFmax 54dBA as calculated for 27 Charles Street in Table 3 of the Tonin Report. The relevant night period is limited to 10pm-6am for the purposes of this condition.

81. In regard to the first respondent’s Condition C7 and specified annoying noise types, I note that the Tonin Report responded directly to each of the types. It referenced physical evidence in the noise surveys as demonstrating “no audible tones” and “no substantial low frequency content”, and noted that the NPfI provides that a correction for intermittent noise only applies during the night time period. Given the fact of other noise limiting conditions, I find the applicant’s Conditions C5 and C6 adequately address tonal, low frequency, intermittent and impulsive noise.

Hours of operation

Current operating conditions

82. Hours of operation under the current EPL and development consent are generally as documented in the following table (EPL Table to condition L5.1)

Figure 2 - Current hours of operation under EPL (source: EPL adapted version)

Summary of the positions adopted by the parties in regard to proposed operating hours

83. In closing submissions, the applicant provided a useful summary of the proposed operating hours as argued by either party. This summary is reproduced below (Applicant’s Closing Submissions filed 19 June 2023 (ACS) par 83).

Figure 3 - Applicant's summary of respective hours of operation positioned argued by parties respectively (Applicant’s Closing Submissions par 83)

84. The parties agree that: (1) oxy-acetylene torch cutting would continue to operate as per the current licensed hours, and (2) general cleaning and maintenance would be allowed to occur at any time.

Key differences between the parties

85. The first respondent’s conditions would bring operations back significantly from the current licensed hours (current operational activities generally limited to 6am-9pm Monday to Saturday v proposed 7am-6pm Monday to Saturday, 8am-6pm Saturday). However, essential to an appreciation of the first respondent’s approach is the identified potential for expanding operating hours into the morning shoulder period and evenings, dependent on demonstrated noise performance. The first respondent’s proposed Condition B12 establishes the framework for this to occur.

“B12. Despite Condition B10 and the hours of work specified in Table 1, the Applicant may seek the Planning Secretary’s written approval to carry out the operation of the development between 6am and 7am on Monday to Friday, between 7am and 8am on Saturday, and/or between 6pm and 9pm Monday to Saturday. The request must include:

(a) results of:

(i) the latest Noise Performance Monitoring Report carried out under Condition C12;

(ii) the latest compliance report carried out under Condition D11;

(iii) the latest independent audit carried out under Condition D13 (if any);

(b) demonstration that noise generated by the operation of the development does not exceed the noise limits specified in Conditions C4 and C6 during the relevant operating hours sought under the request; and

(c) details of activities that need to be ceased, rescheduled or reduced under noise-enhancing or very noise-enhancing conditions to achieve compliance with noise limits specified in Conditions C4 and C6 at all times during the relevant operating hours sought under the request.”

86. This approach reflects the first respondent’s suggested need for a cautious approach in recognition of the overall expansion of scrap metal throughput (MCS par 34):

“In order to address the uncertainty as to whether the amenity noise levels can be complied with during the evening, the Respondent proposes a cautious approach whereby noise generating activities are curtailed during the more sensitive times of day until the effectiveness of the noise mitigation measures is tested and compliance with amenity noise levels is confirmed.”

87. The applicant’s version of operational hours would separate metal shearing and shredding from other operational activities, a point of difference from the current EPL approach. The applicant’s point here is “in recognition that metal shearing and shredding are likely to be more susceptible to the emission of noise than other activities falling under the umbrella category of ‘all other activities’” (ACS par 84(b)). I note that in oral evidence Dr Tonin emphasised that the (eastern) shear was the key source of L_AFmax noise levels from the site, referring to noise data summary material provided at Figures 12-14 of the Tonin Report. I note the recommendations of the Tonin Report include that: “shredders, shears and cranes on the Site shall not commence prior to 0700 on any day” (par 170, emphasis added).

88. The applicant’s version of conditions would allow other operational activities from 6am. The Tonin Report paints a picture of the types of activities to occur during this period perhaps in preparation for commencement of operation of the shredder (par 170 ii):

“Deliveries only to occur prior to 0700 with the use of front-end loaders to push delivered product out of the way where necessary.”

89. The applicant indicates that its “considered position is that the imposition of the hours of operation proposed by the (first respondent) would make the development consent uneconomic to take up” (ACS par 85).

Evidence

90. It is practical to focus on key risk areas and I thought Dr Peng provided a lead on that front with his differentiation of noise risk from the eastern compound and western compound operations. I believe the evidence is quite strong that the arrangements with respect to the eastern shear would provide for reasonable operation of that particular shear in accordance with the applicant’s proposed hours of operation (adding that, as referenced by Dr Tonin, cranes also only begin operations after 7am during weekdays).

91. That is to say, the noise emanating from the eastern shear would, on the evidence, be likely to be well attenuated (with respect to eastern residential receivers) as a consequence of the proposed (relatively adjacent) 16m acoustic wall and proposed real time noise monitoring in the immediate vicinity of the eastern shear. Dr Tonin’s explanation of Figures 12, 13 and 14 in the Tonin Report (pp 181-183), lucidly outlined the source of the major noise events (in particular east shear vs west shear), albeit over a narrow time period, and the “dramatic” effects of the proposed acoustic walls in mitigating effects of the eastern shear for the nearest residential receivers (Tcpt, 31 May2023, p 62 (5)). Generally, I believe the data collection scope and analytical framework followed in that section of the Tonin Report to be highly creditable. The applicant’s proposed real time noise monitoring of operations in the vicinity of the eastern shear can effectively attend to the concerns raised about high noise operational incidents (notably, the suggested dropping of metals from an unreasonable height).

92. However, noise generated in the western compound and received in eastern residential areas, at least when sourced at a point some distance above the ground, benefits less (in terms of attenuation) from the 16m acoustic wall at the western boundary. Dr Tonin has suggested a “1 decibel” mitigative effect (Tcpt, 31 May 2023, p 63(8)). Dr Tonin explained that, according to his measurements, out of 100 hypothetical significant noise events above RBLs, some 77 were from the east shear and 23 were from the west compound. With the upscaling of throughput, Dr Tonin indicated that all of the east shear noise events would be mitigated and conservatively the west compound events would double to 46. This was an explanation of major improvement over the existing measured effects.

93. Dr Peng focused on the identified western compound maximum noise events and argued that there was insufficient mitigation in relation to the western compound. He went to Appendix E of the Tonin Report titled “Measured contributions from the West Compound and East Shear”. This work summarised the contributions from both fields for selected times during day, evening and morning shoulder periods over 15 minute intervals. Dr Peng pointed to data indicating L_AFmax levels of 72.5 and 67.8 from the western compound for day periods on 14 December 2022 and 12 December 2022 respectively. The argument was that if such events were to scale up with the expanded MRRF throughput then there was insufficient attenuation in regard to west compound shear operations (Tcpt, 31 May 2023, p 64(45)).

94. Dr Peng pointed to the L_{Aeq, 15min} measure of 43.2 dBA, for the day period on 12 December 2022 as the western compound’s contribution (referencing the Tonin Report’s p 388). I understood his argument to be that this form of noise event could equally occur during evening operation at the western compound and, further, that with the increased throughput at the western compound, all other things being equal, the regularity of potentially annoying noise events would increase. Dr Peng saw a practical opportunity for these kinds of noise events to be able to be managed in the western compound (akin to what was proposed in the eastern compound). A particular event that both experts seemed to seek to reduce was the dropping of metal waste by cranes and the ambition was to reduce the drop height of waste materials as a noise event. I understood that the higher the elevation of noise sources in the western compound above the ground, the less effective the eastern acoustic wall (due to diffraction). Dr Peng’s view was that implementation of real time noise monitoring, and a trigger action response plan (TARP), were management measures that could assist in attending to these kinds of noise risks if physical noise barriers weren’t practical for the western compound. Dr Tonin was asked to respond to this point, however he was unable to assist (Tcpt, 31 May 2023, p 70(41)).

Consideration

95. The key point of difference here relates to the operation of metal shredders, metal shears and cranes during the evening period. While acknowledging the concerns of the first respondent in regard to caution (and a suggested performance-based pathway to increased hours even to 9pm operations (Tcpt, 31 May 2023, p 71(49)), I believe that the material before the Court allows some more concrete steps towards final operational take-up than currently proposed by the first respondent, provided certain performance related conditions are applied. Here I am most critically mindful of the noise evidence but also need to give some consideration to the large investment decision involved in the provision of the proposed acoustic walls for an expanded MRRF throughput which involves some public benefit, including the very significant scale investment that would be involved in the 16m high eastern wall.

96. Based on the evidence of the noise of the existing operation and noise attenuation, as calculated, I am generally satisfied with allowing the operation of metal shredders, metal shears and cranes on the site for the first half of the evening period (between 6pm and 8pm), subject to performance management and monitoring which is explained more fully later.

97. It seemed clear on the evidence of Dr Tonin that noise from the eastern compound could be attenuated to a satisfactory extent as a consequence of the acoustic walls. The applicant’s proposed performance monitoring at the eastern shear provides an important safeguard for operations between 6pm and 8pm.

98. On my own understanding, I found Dr Peng’s arguments persuasive on the potential for increased activity in the western compound (associated with increased MRRF throughput of say 71%) to, on occasion, breach 43 L_Aeq,15min (the amenity noise trigger level) during evening periods. While I think only one breach of this figure was uncovered by Dr Peng in his review of the period of investigation documented in the Tonin Report, I found the evidence inconclusive on the likelihood of future noise events from the western compound resulting in noise reception greater than the amenity noise trigger level. This does not mean that I am not accepting of the operations of the western compound during the evening period. It is to be recalled that my finding was that PNTLs were not to be taken as fixed requirements [63], and in any event there was some doubt as to whether the suburban amenity level applied [59]. Returning to the NPfI’s point on determining “feasible and reasonable noise management measures”, it seems to me further attention is required in regard to operations in the western compound, including real time noise monitoring, which I return to later.

99. Relating the finding to allow operation of cranes, shredders and shears from 6pm-8pm to noise limits, I note that the first respondent, in its version of conditions, has adopted a 44 L_Aeq,15min noise limitation standard for evening periods at 27 Charles Street, reflecting the applicant’s modelled achievable figure. The applicant seeks a limitation of 46 L_Aeq,15min, in accordance with the current EPL. With appropriate supplementary conditions in place, it seems to me reasonable to adopt a figure of 45 L_Aeq,15min for evenings for 27 Charles Street. This should not be considered as a middle ground. I am aware that the first respondent is making a concession already in adopting its figure. The non-acceptance of the applicant’s position makes some allowance for my finding that the “reasonably most-affected” residential receiver sits in a marginal situation between “suburban” and “urban” categorisation [59], while at the same time acknowledging that the proposed operations would conclude at 8pm. That is, at a midpoint of the evening period, during which RBLs would remain relatively high.

Identification of benchmark receivers and future monitoring via consent conditions

100. There are two places in the parties’ consent conditions where reference is made to residential and non-residential noise receiver locations. The first respondent’s Condition C12(c) nominates four sites which would be the subject of noise performance monitoring under the required Noise Performance Monitoring Report (two residential and two commercial sites). The applicant’s corresponding Condition C8(c) proposes only one site (27 Charles Street). Separately, Table 2 to Condition C4 (for both parties), when nominating L_Aeq noise limits, specifies a number of sites. The first respondent nominates eight residential sites, six commercial sites and three industrial sites. The applicant’s corresponding condition specifies three residential sites and three non-residential sites. The premise of Condition C4 is that noise not exceed the nominated limits at these sites, but there is no particular requirement for performance monitoring at Condition C4.

101. I note that the EPL nominates two noise monitoring sites only (27 Charles Street and 189 Sunnyholt Road). There seems to be no dispute that 189 Sunnyholt Road is no longer a useful site to monitor operations of the MRRF (Tonin Report par 141).

Consideration

102. It seems to me preferable to have a clear validation system which would identify and require evaluation from the most affected receiver in demonstrably different settings. So, for the closest residential areas to the east, I can adopt 27 Charles Street as the most noise-affected site. Dr Tonin suggested 15 Anthony Street, around 100m west of 27 Charles Street and topographically higher, is warranted as a validation site. I agree with this selection but believe, for the critical evening period, this site is more obviously subject to a suburban amenity trigger level and warrants the lower threshold control of 44 L_{Aeq, 15min}, as does the northern residential receiver at 29 Camorta Close. For the sake of simplicity, for each of these premises, the existing EPL limits can be applied in regard to the day period (and therefore morning shoulder period). This would retain the essence of the status quo for residential receivers for this period, and according to Table 8 of the Tonin Report there would be no concerns in regard to compliance.

103. Then other single validation sites can be chosen for most affected industrial and semi-commercial areas. The picture is clearer in regard to the industrial sites. Here, the first respondent’s nomination of sites located west, north and east of the MRRF can be nominated. In regard to commercial sites, it is unfortunate the parties were unable to come to some agreement on the most affected site(s). I have selected the site with the highest predicted L_{Aeq, 15min} prediction (Tonin Report Table 8). That is, 40 Forge Street, which does not appear to be on the list of either party. But if the parties were to agree on a different location this would be acceptable to me. For the industrial and commercial sites, NPfI’s PNTLs apply.

104. I will mention here briefly that the Tonin Report has given consideration to the Shree Swaminarayan Hindu Temple, some 300m to the south-west of the site. I accept the finding, which I understand was that predicted noise levels at the receiver would not be of concern, taking account of hours of use and noise reduction from typical windows (Tonin Report, Table 8 par 96).

105. The applicant’s proposed Condition C9 and first respondent’s proposed Condition C13 both require the development to not emit offensive noise (as defined in the POEO Act), which leaves the door open for the investigation of complaints from sites not otherwise nominated as requiring performance monitoring, something agreed by Dr Tonin (Tcpt, 31 May 2023, p 77(5)).

Table 2 to Condition C4 - identifying sites for noise performance monitoring

106. From the above finding, it follows that Table 2 from Condition C4 would read as provided below (Table 7).

Table 7 - Representation of findings with respect to Table 2 to Condition C4

Location	Day 7am-6pm LAeq,15min	Evening 6pm-10pm LAeq,15min	Night 10pm-6am LAeq,15min	Morning shoulder 6am-7am LAeq,15min
Residential receivers
27 Charles St, Blacktown	46	45	38	46
15 Anthony St, Blacktown	46	44	38	46
29 Camorta Pl, Kings Park	46	44	38	46
Commercial /public worship (when in use)
40 Forge St, Kings Park	63 LAeq,15min
1/44 Bessemer St Blacktown	63 LAeq,15min
Industrial receivers (when in use)
21 Tattersall Rd Kings Park	68 LAeq,15min
57-69 Tattersall Rd Kings Park	68 LAeq,15min
38 Tattersall Rd Kings Park	68 LAeq,15min

107. That concludes the first evaluative section of the judgement. I now move to particular findings on individual contested conditions.   

Findings on contested conditions

Introduction

108. Each party filed draft conditions of consent on 13 June 2023. In this section of the judgment, I make findings in regard to what I have interpreted to be the points of dispute between the parties in regard to these consent conditions. In this instance, there remain some points of technical detail in regard to the wording of conditions which are best left to the parties to finalise. In turn, I will be requesting the parties to confer and, if possible, agree on the wording of conditions of development consent which are to reflect this judgment. If there are points of dispute, which I have missed, they will need to be returned to me.

109. I accept the argument of the first respondent that its version of conditions is based on a standard drafting approach developed for State significant development projects (MCS par 50), and I adopt this version as the base for these comments. However, the disputed conditions are of course subject to individual examination.

110. I will also note here that it seemed to me that some of the recommendations of the Tonin Report were not picked up in conditions versions of either party. I raise these matters at the relevant moment.

Definitions

Cleaning and maintenance

111. In regard to the disputed definition of “[c]leaning and [m]aintenance” and the inclusion of the word “property” in the third and fourth bullet points of these definitions, I note that this is relevant to night time operations on the site, where noise annoyance might be reasonably understood as the point of attention. The first respondent indicates it adopts the definition of cleaning and maintenance used in the Tonin Report. This “line of sight” to the Tonin Report and its own noise-related analysis of cleaning and maintenance activities is relevant. While in submissions the applicant argues there would be no consequences for noise levels by the addition of the term “property” (relevantly), there is no persuasive evidence to this effect and I have no particular understanding of what this might change from the analysis by Dr Tonin. The first respondent’s position is accepted.

Initial reporting period

112. Given my findings to a finding at [122], the definition of “initial reporting period” is not required.

Noise enhancing conditions and very noise enhancing conditions

113. Given my findings in support of the first respondent’s proposed Condition C14(d)(iv), the first respondent's definitions of "Noise enhancing conditions" and "Very noise enhancing conditions" need to be included.

Deferred commencement conditions (Conditions A1-A3 for both parties)

114. These conditions are concerned with Fire and Rescue NSW (FRNSW) satisfaction in regard to whether the proposed noise walls will adversely impact on fire and its management. There is little by way of practical difference between the parties on this point. The applicant raises legal concerns relating to appeal rights. In light of these concerns, I am happy to adopt its approach as I see no particular difference in process or outcome with the wording it adopts from that preferred by the first respondent.

Administrative conditions

Post approval oversight by regulators (applicant's proposed conditions B2-B3 - first respondent's proposed conditions B2-B4)

115. The first respondent’s proposed conditions B2(b), B3 and B4 would provide for the Secretary of the Department of Planning and Environment (Secretary) to make written directions to the applicant to implement actions relating to “the content of any strategy, study, system, plan, program, review, audit, notification, report or correspondence submitted under or otherwise made in relation to this consent”. The applicant is concerned about the uncertainty of any such condition. The first respondent argues that this provision facilitates the direction of actions which would follow the findings from “management plans, monitoring programs, audits and reports”, otherwise required to be prepared in relation to the consent (MCS par 46).

116. The first respondent’s commentary is apposite (MCS pars 42-44) in differentiating the breadth available to consent conditions applying to State significant development (s 4.38(1)(a) of the EPA Act) and other development applications (s 4.17 of the EPA Act). The references to Ulan Coal Mines Limited v Minister for Planning and Moolarben Coal Mines Pty Limited (2008) 160 LGERA 20; [2008] NSWLEC 185 at [50], [75], [78] and [80] were pertinent.

117. I understand that the first respondent’s proposed Conditions B2, B3, B4 and relatedly B28, as conditions for State significant development, align with the responsibility of the Secretary and Department of Planning and Environment (the Department) in regard to monitoring and enforcing compliance for complex development of this kind. Noting this, the qualifications in Conditions B3 and B28 (“consistent with the requirements of this consent”) adequately address concerns in regard to certainty and finality, generally.

118. The first respondent’s intention with respect to proposed Condition B2(b) is clear from its submissions. That is, that “[the] supervisory role of the Planning Secretary in relation to the preparation and implementation of plans, programs, etc is clearly set out in condition B3” (MCS p 11). To remove any doubt, there is a need to add a qualification to proposed Condition B2(b) as follows: “in accordance with all written directions of the Planning Secretary under Condition B3”.

Air quality annual report / air quality audit (applicant's proposed Conditions C21-C22 - first respondent's proposed Conditions C26-C27)

150. I accept the terminology Air Quality Audit (AQA) adopted by the first respondent. The term “audit” is that which is used by the air quality experts in Ex 3 with respect to this matter. I generally accept the first respondent’s provisions with respect to the AQA, as reasonable refinements of the recommendations of the air quality experts.

Parking, traffic and access

Parking (applicant's proposed Condition C24-C25 - first respondent's proposed Condition C29-C30)

151. The applicant’s changes to the first respondent’s proposed Condition C29 is accepted. Otherwise, the first respondent’s version of this condition is accepted.

Operational traffic management plan (applicant's proposed Condition C27 - first respondent's proposed Condition C30)

152. The Secretary’s endorsement function is again accepted, here with respect to the first respondent’s Condition C30 and the required Operational Traffic Management Plan (OTMP). It is reasonable for the OTMP to include a stockpile management plan, in that it makes sense for the stockpile management plan to sit in the relevant document (it is immaterial whether it is already available). It is reasonable and could be thought of as good practice for non-employee drivers to be well integrated into the OTMP and instructed not to park or queue on the public road network, albeit that there is no power on the part of the applicant to compel action of non-employees. I also prefer the first respondent’s particulars with respect to the proposed Traffic Control Plan (TCP) and see the comments from the applicant as essentially non-critical rewording for the purposes of conditions and would otherwise be appropriately addressed in the relevant OTMP or TCP. In turn I accept the first respondent’s Condition C30.

Operating Conditions (applicant's proposed Condition C27 - first respondent's proposed Condition C32)

153. The first respondent’s paragraph C32(a) is accepted as appropriate as it is more directive. With respect to subparagraph (c), there is no power for the applicant to “ensure” no vehicle queueing on the public road network. This condition should be deleted. I note the requirement to “instruct drivers not to park or queue on the public road network” is already covered in the OTMP. I accept the first respondent’s version of paragraph C32(f) as I would think the intention here is to recognise the prospects for mixed loads to require covering.

Fire management - (applicant's proposed Condition C31 - first respondent's proposed Condition C35)

154. With respect to first respondent’s paragraph C35(b), I note that the stockpile plan shows dimensions for each stockpile: average height (m), size (m³), mass (tonnes) and marks the length by breadth (m). It would be appropriate for each of these dimensions to be referenced in this condition. I note that the stockpile plan already builds in some flexibility with the note “dimensions indicated are approximately only”. The first respondent’s position is adopted.

Dangerous goods (applicant's proposed Conditions C33-C34 - first respondent's proposed Conditions C38-C41)

155. There is duplication here with the first respondent’s double reference to storing all chemicals, fuels and oils in accordance with the requirements of “Storing and Handling of Liquids: Environmental Protection – Participants Manual” (Department of Environment and Climate Change, 2007). However, a reading of this could suggest a situation where some of the referenced material may require bunding (relevant to Condition C42) and some not (falling into the otherwise catch-all of Condition C40). As it stands, I accept the first respondent’s conditions as a standard approach, but tidier wording would be preferred.

Emergency services information package (applicant's proposed Condition C36 - first respondent's proposed Condition C43)

156. While I have heard no evidence on this, my sense is that the applicant has a more precise understanding of the specific point where FRNSW would access the site and its provision for the location of the Emergency Services Information Package is preferred.

Imported soil (applicant's proposed Condition C37 - first respondent's proposed Condition C44)

157. The applicant’s version is clearer and is accepted. However, and while I am not aware of the particulars, for now I would leave it to the parties as to whether the sentence should commence: “In relation to any imported soil,” (rather than “imported fill”).

Discharge limits (applicant's proposed Condition C40 - first respondent's proposed Condition C47)

158. The applicant’s version of the condition presents as a more complete representation of the setting. I accept the applicant’s version of the condition.

Water management system (applicant's proposed Condition C41 - first respondent's proposed Condition C48)

159. The first respondent’s version is accepted with the exception of adoption of the applicant’s suggested deletion of the word "water" from "... the need to allow stormwater water flow across ... ".

Flood management (applicant's proposed Conditions C42-C44 - first respondent's proposed Conditions C49-C51)

160. I accept the applicant’s argument that the first respondent’s Condition C49(a) has no effect given the fact that this application’s construction particulars are limited to the wall. I also accept that the focus of Condition C49(c) should be perimeter walls. I have already considered the need for flaps on the acoustic wall: [129] et seq.

Water management plan (applicant's proposed Conditions C45 - first respondent's proposed Conditions C52)

161. I accept the applicant’s version of this condition as more applicable, with the exception that the Water Management Plan would be prepared in consultation with Blacktown City Council (Council) and the EPA. The Council’s function as both a consent authority (for local development applications) and in dealing with stormwater management generally in the local government area is relevant here.

Waste management

Waste management plan (applicant's proposed Conditions C47-C48 - first respondent's proposed Conditions C54-C55)

162. I prefer the applicant’s Condition C47 with respect to the waste management plan. On plain reading, the first respondent’s Condition C54(c) would be perceived as including the recycling of metal products, that is, the fundamental operational aspect of the proposal. It seems to me the focus of the waste management plan should not be on this proposed securing of recyclable waste metals for on-processing. Rather it is concerned with the general operational waste.

163. I see no particular need for reference to the stockpile management plan in the first respondent’s Condition C54(d). Reference to this plan might be an option, elected by the applicant, for demonstrating that storage does not restrict building access during operational hours, which seems to be the point of the condition.

Waste monitoring program (applicant's proposed Condition C49 - first respondent's proposed Condition C56)

164. I accept the first respondent’s position that the waste monitoring program should be prepared to the satisfaction of the Secretary. This seems reasonable given the scale and type of development proposed.

Community consultation plan - (proposed Condition C65 – both parties)

165. I accept the applicant’s position that item (d) from the applicant's proposed Condition C65 should not form part of the requirements. As an operating project in the midst of an established employment precinct, the proposal is quite different from some other large State significant development projects in regard to the need for regular consultation with the community. I agree with the applicant that the other limbs of Condition 65 would afford adequate opportunities for any interested local parties to be informed.

Environmental management, reporting and auditing

Management plan requirements (proposed Condition D1 – both parties)

166. The applicant’s view that “detailed baseline data” should only be required where relevant, is a common sense inclusion and is accepted.

Operational environmental management plan (proposed Condition D4 – both parties)

167. I agree with the applicant that, under Condition D4(b), the Secretary should not have a unilateral role to “revise” the operational environmental management plan (OEMP). The first respondent argues this is not the intention. Preferred wording for Condition D4(b) is as follows: “(b) operate the development in accordance with the initial OEMP as approved by the Secretary, and revised OEMPs as approved by the Planning Secretary from time to time”.

Revision of strategies, plans and programs (applicant’s proposed Condition D5 – first respondent’s proposed Condition D5-D6)

168. The first respondent’s Condition D5(e) is accepted, consistent with my findings with respect to Conditions B2 and B3.

169. There is little by way of submission from either party in regard to the first respondent’s proposed Condition D6, which was excluded in the applicant’s draft of conditions. There is a need for further particulars to be included in the first respondent’s proposed Condition D6 to make clear its scope. Words to the following effect are preferred:

D6. If necessary to either improve the environmental performance of the development as otherwise required under this consent, cater for a modification or comply with a direction under Condition B2(b) and B3, the strategies, plans and programs required under this consent must be revised, to the satisfaction of the Planning Secretary. Where revisions are required, the revised document must be submitted to the Planning Secretary for approval within six weeks of the review required under condition D5, or such other timing as agreed by the Planning Secretary (emphasis added).

Independent audit (applicant's proposed Conditions D12-D13 - first respondent's proposed Conditions D13-D14)

170. The first respondent’s Condition D13 is acceptable, with the applicant’s proposed changes of no real effect.

171. With respect to the first respondent’s Condition D14(c), the applicant’s proposed addition of the qualification “if reasonable and feasible” is too open-ended. However, it seems to me that there should be some capacity for an otherwise suitable alternative to the specific recommendations of the audit report to be put in place. While this may be the first respondent’s intention, a plain reading of the condition does not seem to allow this. Words to the following effect are preferred:

(c) implement the recommendations, or an otherwise suitable alternative, to the satisfaction of the Planning Secretary … (emphasis added).

Access to information (applicant's proposed Condition D15 - first respondent's proposed Condition D16)

172. The first respondent is objecting to a limited number of provisions in the applicant’s proposed Condition D15, which is concerned with which documents should be made available on the applicant’s website (and when). However, I am not convinced that the relevant provisions (paragraphs (a)(iv), (v) and (vi)) should be excluded. Important, to me, here is that these three particular provisions seem to be useful in providing for summary progressive reporting documentation to be accessible (rather than difficult to navigate) for lay members of the public.

173. This concludes the second evaluative section of the judgment.

Jurisdictional considerations

174. I now turn to this judgment’s third evaluative section. There are a number of environmental planning instrument provisions which require consideration or positive findings of the Court in this matter. As indicated earlier, the parties provided an agreed statement outlining relevant jurisdictional provisions and the response of the application, which I rely on significantly in this section.

Transport and Infrastructure SEPP

175. I have indicated earlier the relevance of the Transport and Infrastructure SEPP with respect to the permissibility of the development on the site. There are other relevant jurisdictional provisions which need to be addressed.

176. The proposed development is “traffic-generating development” pursuant to s 2.122(1)(b) of the Transport and Infrastructure SEPP. This brings into play the requirements of s 2.122(4). It is clear that Transport for NSW were notified of the development application. Relevant to s 2.122(4)(b)(i), I have given consideration to the relevant submission in response (Ex 2 pp 456-458). I have also taken into consideration the further matters at ss 2.122(4)(b)(ii) and (iii). In regard to these matters, I note the various traffic and transport related documentation relating to the application which has been prepared and the related consent conditions proposed by either party, as put in the jurisdictional statement as follows (p 3):

“a. The Traffic Impact Assessment contained in Tab 8 of the Applicant’s Class 1 Application (Exhibit A);

b. The Supplementary Traffic Assessment Information contained in Tab 3 of the Applicant’s Bundle of Documents (Exhibit C);

c. The Employee Transport Plan contained in Tab 11 of the Applicant’s Bundle of Documents (Exhibit C);

d. The Vehicle Swept Path plan contained in Tab 4 of Exhibit JSC-1 to the Affidavit of Justin Sebastian Chenevier affirmed 9 May 2023 (Exhibit B); and

e. The Parties’ respective draft conditions of consent in relation to traffic and parking issues (see Condition C29 to C34 of the First respondent’s draft conditions of consent and Condition C24 to C29 of the Applicant’s draft conditions of consent, noting the differences in the parties’ conditions).”

State Environmental Planning Policy (Resilience and Hazards) 2021

Hazardous and offensive development

177. The parties advise that the proposed development is a “potentially hazardous industry” and/or a “potentially offensive industry” pursuant to Ch 3 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP).

178. Section 3.11 of the Resilience and Hazards SEPP requires a person who proposes to make a development application to carry out development for the purposes of a potentially hazardous industry to prepare a preliminary hazard analysis (PHA). The PHA for the proposal (Ex C Tab 6) found that the proposed development is potentially hazardous development since the quantity of liquid oxygen storage exceeded the applicable threshold. In turn, s 3.12 lists five matters for consideration which apply to the proposal. The parties’ agreed jurisdictional statement provides responses to each of these considerations which I have reviewed. Notably, I accept the advice of the parties that:

1. The PHA for the proposed development was prepared in accordance with relevant guidelines and the parties have agreed on conditions of consent related to pertinent guidelines.

2. The relevant public authority has been consulted (in this instance this is the Department).

3. The parties agree that there is no feasible alternative to the carrying out of the development on the site as an expansion of the existing facility, and the site locale is acceptable given compliance with relevant risk criteria.

4. Consideration has been given to likely future uses of the surrounding land and future industrial uses would not be precluded, based on the risk analysis which has been undertaken.

Contamination and remediation

179. Under s 4.6 of the Resilience and Hazards SEPP, before granting consent to a development, a consent authority needs to make positive findings relating to the contamination status of the land:

(1) A consent authority must not consent to the carrying out of any development on land unless—

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

…

180. It is clear that there is potential for the site to be contaminated given the historical and current use. The parties agree that the Court can be satisfied in regard to s 4.6(1)(b) of the Resilience and Hazards SEPP because (jurisdictional statement p 6):

“a. The Proposed Development does not involve a change of use; and

b. The Parties have agreed on a condition of consent (Condition C46 of the First respondent’s draft conditions of consent and Condition C39 of the Applicant’s draft conditions of consent) requiring the Applicant to prepare an unexpected contamination finds procedure to ensure that potentially contaminated material is appropriately managed and disposed of. “

181. I accept this advice of the parties and am satisfied that the land is suitable in its contaminated state for the purpose for which the development is proposed to be carried out site.

Blacktown Local Environmental Plan 2015 (BLEP)

182. Clause 5.21 contains a provision with respect to flood planning. The parties’ jurisdictional statement (p 6) explains how this particular provision does not apply because the development application was made before the provision came into effect.

183. Clause 7.3 of BLEP applies because the site is within 40m of the top of the bank of a watercourse, being Breakfast Creek, which runs along the south of the site. Clause 7.3(3) lists a series of matters which I have given consideration to, with the assistance of the parties’ jurisdictional statement (p 7). Clause 7.3(4) lists certain points with which a consent authority must be satisfied prior to the grant of consent. The parties consider that the Court can be satisfied in relation to the matters at cl 7.3(4) given that the proposal does not provide for a change of use and that proposed conditions of consent have the effect of ensuring the development is designed, sited and will be managed to avoid any significant adverse environmental impact. The parties list the relevant consent conditions which may have some relationship to Breakfast Creek environs as riparian land and a watercourse. I generally accept the opinion expressed by the parties. However, more broadly, I am satisfied that the if impacts cannot be reasonably avoided, then the development (as conditioned) is designed, sited and will be managed to minimise such impacts. The requirements of cl 7.3(4) are met.

184. Clause 7.5 of BLEP is concerned with essential services. Mindful of the advice of the parties in the jurisdictional statement (p 8), including the fact that the proposal relates to an expansion of an existing facility in an operating industrial precinct, I am satisfied that the relevant services are available or that adequate arrangements have been made to make them available when required.

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act

185. In regard to s 4.15(1)(d), I note the numerous objecting submissions made in regard to the proposal, as documented in Ex 2, which I have given consideration to. In coming to my conclusions, I have also given attention to likely impacts of the proposal, site suitability and the public interest. In my opinion, the proposal as would be conditioned, including various requirements relating to performance management into the future, provides for a reasonable outcome in all of the circumstances.

Conclusion

186. I have determined that development consent should be granted to the development application before me, subject to conditions. In the findings above, there has been a working through of various points of dispute in regard to the content of these conditions.

187. It is now my intention to direct that the parties confer and provide to the Court conditions of consent that reflect my findings. While my ambition has been to resolve all the points of dispute, if there are some remaining points of lack of clarity, the parties should provide to the Court their competing versions of the conditions and I will decide on the conditions of consent that should be imposed. If there is a necessity for an appearance, the parties could make submissions in that regard. As soon as the position is clear to me, I will then uphold the appeal and grant development consent subject to the conditions.

Directions

188. Accordingly, the Court directs that:

1. By 05 October 2023, the parties are to confer and, if possible, agree on the particulars of conditions of consent, which are to reflect the findings of this judgment, and file the agreed conditions.

2. If the parties are not able to agree on the interpretation of my findings and particulars of conditions of consent by 05 October 2023, each party is to file in Court and serve the party’s version of the appropriate conditions with brief notes in support.

3. Liberty to restore is available in the normal manner, and online Court submissions can be made should there be agreed modifications to the timetable above.

…………………………

P Walsh

Commissioner of the Court

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Decision last updated: 13 September 2023