The Corporation of the City of Enfield v Development Assessment Commission and Collex Waste Management Services Pty Ltd No. SCGRG 95/2422 Judgment No. 5684 Number of Pages 26 Local Government Town Planning

[1996] SASC 5684

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Local government - town planning - development application - General Industry Zone - whether proposed development a special industry - definition of special industry - whether Development Assessment Commission had correctly classified the proposed development - grant of development consent set aside as proposal incorrectly classified with consequential failure to determine application in accordance with prescribed procedures. Development Act, 1993ss34, 35, 38; Development Regulations, 1993 Reg 16, referred to. Beer v South Australian Planning Commission (1988) 142 LSJS 20; Remove All Rubbish Pty Ltd v City of Salisbury (1989) 51 SASR 26; South Australian Housing Trust v Lee (1993) 81 LGERA 378; Jurkovic v Development Assessment Commission
(1995) 64 SASR 294, applied.

HRNG ADELAIDE, 22-23, 29-31 January 1996 #DATE 28:6:1996

Counsel for plaintiff :            Mr A Besanko Qc with Mr A Watson

Solicitors for plaintiff :         Piper Alderman

Counsel for defendant DAC:         Ms M Panagiotidis

Solicitors for defendant         DAC: Crown Solicitor (SA)

Counsel for defendant Collex :     Mr D Hayes Qc With Mr A Crocker

Solicitors for defendant Collex : Ward &; Partners

ORDER

JUDGE1 DEBELLE J
1. Collex Waste Management Services Pty Ltd ("Collex") owns land at Churchill Road, Kilburn. The land is within the area of the Corporation of the City of Enfield ("the Council"). Collex seeks to alter and add to an existing waste treatment plant on its land so that it may treat some additional kinds of liquid wastes. On 13 November 1995 the Development Assessment Commission ("the Commission") granted Collex provisional development plan consent pursuant to the provisions of the Development Act to undertake the development and to use the land for the purpose of a liquid waste treatment plant.

2. The Council asserts that the consent is invalid. It contends that the proposed liquid waste treatment plant is a special industry as defined by the Development Regulations and that the Commission has failed to comply with the procedures prescribed by the Development Act and the Development Regulations to be followed when an application is made to use land for a special industry. The Council, therefore, seeks a declaration that the provisional development plan consent is ultra vires and void. It also seeks an injunction restraining Collex from acting pursuant to the terms of the consent.

3. This is the third application made by Collex for the proposed plant. Collex had obtained development consent to each of its first two applications but each of those consents was set aside by an order of this Court. The history of the two applications is set out in Corporation of the City of Enfield v Development Assessment Commission
(1994) 63 SASR 22, 24-26, a decision deals with procedural issues involved in the challenge to the second development consent. It is also noted in the statement of agreed facts tendered in this action. The first consent was invalidated by order of Matheson J made on 15 March 1994: Corporation of the City of Enfield v Development Assessment Commission (1994) 82 LGERA 439. The second consent was invalidated by an order made by consent on 30 August 1994. That order was made in the course of hearing the application by the Council challenging the validity of the development consent. The second development consent included a condition that Collex did not treat grease trap waste at its plant. As will be seen, by this third application, Collex proposes to treat grease trap waste and the development consent permits the treatment of such waste.

4. With that brief overview, I turn to a detailed examination of the issues. It will be seen that a central issue is whether the proposed use constitutes a special industry. It is common ground that, if the use is a special industry, the Commission has failed to comply with the prescribed procedures. The Council contends that the consent should be set aside on the ground of jurisdictional error: Craig v South Australia (1995) 69 ALJR 873.

The Application 5. On 8 March 1995 Collex lodged a development application with the Council seeking approval for what it called additions and alterations to an existing waste treatment plant. Collex proposed to expand its existing waste treatment plant to treat the additional liquid waste. To that end, additional storage tanks and treatment facilities would be required. The liquid waste to be treated included grease trap waste, caustic waste, oily water, inert sludges, soluble oil, waste acid, mud and acid wash water. Collex submitted other documents with the application. They were a Planning Submission, a Management Plan for the proposed plant and a bundle of documents entitled "Background Documents". There were also two sets of drawings of the proposals. The proposal was essentially described in the Management Plan and the drawings and they are the most relevant documents.

6. The land on which it is proposed to carry out this development is within a General Industry Zone as prescribed in the Development Plan which applies to the Council area. The Development Plan provides that a development which constitutes a special industry is prohibited in this General Industry Zone. Following the vogue for euphemisms, the Development Act and the Development Regulations now speak of a non- complying development instead of a prohibited use. A use which is described as "prohibited" by the Development Plan is deemed to be non- complying use: see s16(10) of the Statutes Repeal and Amendment (Development) Act 1993. The question whether a particular use is a non-complying use is to be determined objectively by reference to the Development Plan and an examination of the nature of the use proposed. The Development Plan does not designate a class of uses which are universally prohibited. Instead, it prescribes that particular kinds of uses are prohibited in particular zones. So a use may be prohibited in one zone but not in another.

7. The General Industry Zone is on the western side of Churchill Road, Kilburn. The proposed plant will be located well within the site some 300 metres west of Churchill Road. The land immediately to the north and adjoining the Collex site is used for industrial purposes. On the eastern side of Churchill Road and opposite the Collex site, the land is zoned Residential 2 and is used for residential purposes. The nearest house is about 350 metres to the east of the plant. The Collex site is bordered on the west by the railway line from Adelaide to Gawler. To the west of the railway line land is used for industrial purposes. Unoccupied premises formerly used for industry immediately adjoin the Collex land to the south. About 150 metres south of the site land is used for industrial purposes. A further 400 metres south of the Collex site land is used for residential purposes.

The Prescribed Planning Procedures 8. As the proposed development was to involve the reception, storage and treatment of waste, the application had to be determined by the Commission: see s34(1)(b)(i) of the Development Act and para 2 of Schedule 10 of the Development Regulations. The procedures prescribed by the Act and Regulations require three copies of the application with any plans, specifications and other documents to be lodged with the Council. The Council retains one copy of the application and supporting documents and sends the remaining copies to the Commission: see s39 and Reg 15(1) and (4). For that reason, on 9 March 1995, the Council sent the application to the Commission for determination.

9. If the proposed development is for a special industry and, therefore, for a non-complying use, it does not necessarily disqualify Collex from receiving development consent. However, the Commission must not grant provisional development plan consent unless both the Minister and the Council concur in the granting of the consent: see s35(3)(a) of the Development Act. There is no appeal from a refusal to grant consent or from a refusal to concur in the proposal. If the proposed development is for a general industry, the Commission is able to grant consent without the concurrence of the Minister and the Council.

10. It is convenient at this stage to notice some other steps in the process of determining applications for development consent. In many instances, the nature of the proposed development will be readily apparent. In others, it might be necessary for the relevant planning authority to determine the nature of the development for the purpose of assessing it against the provisions of the Development Plan. In this case, it was necessary for the Commission to determine the nature of the proposed development since the decision whether the proposed use was a general industry or a special industry governed the procedure by which the application should be considered. Regulation 16 makes express provision for assessing the nature of a proposed development. It provides:
    "(1) If an application will require a relevant authority to
    assess a proposed development against the provisions of a
    Development Plan, the relevant authority must determine the
    nature of the development, and proceed to deal with the
    application according to that determination.

(2) If the relevant authority is of the opinion that an
    application relates to a kind of development that is described
    as non-complying under the relevant Development Plan, and the
    applicant has not identified the development as such, the
    relevant authority must, by notice in writing, inform the
    applicant of that fact."

11. If necessary, the planning authority may require an applicant to submit further information relating to the proposed development for the purpose of assessing the application: s39(2) of the Act. As will be seen, the Council required Collex to submit additional information. The Commission did not require any further information. If the information was inadequate, the Commission could either have dealt with the application on the information before it or it could have called for further information from Collex.

12. To recapitulate, given that the application was for a proposed development to treat waste, the relevant planning authority charged with deciding whether development consent should be granted was the Development Assessment Commission. The application had to be lodged first with the Council and then sent by the Council to the Commission. The Commission was required to determine the nature of the development. That determination in turn affected the procedure required to be followed for the purpose of determining whether to grant development consent. If, as the Commission decided, the proposed development was for a use defined as a general industry, the correct procedure was in fact adopted. If, however, the Commission ought to have decided that the proposed development should be characterised as special industry, the incorrect procedure was adopted and the development consent is invalid. Thus, at the heart of the issue, is the question whether the proposed development was a special industry.

13. The Development Regulations define "special industry" in these terms:
    "`special industry' means an industry where the processes
    carried on, the methods of manufacture adopted or the particular
    materials or goods used, produced or stored, are likely

(a) to cause or create dust, fumes, vapours, smells or gases; or

(b) to discharge foul liquid or blood or other substances or
    impurities liable to become foul,

and thereby -

(c) to endanger, injure or detrimentally affect the life, health
    or property of any person (other than any person employed or
    engaged in the industry); or

(d) to produce conditions which are, or may become, offensive or
    repugnant to the occupiers or users of land in the locality of
    or within the vicinity of the locality of the land on which
    (whether wholly or partly) the industry is conducted"

14. The Regulations also define "industry", "general industry", "light industry" and "service industry". It is common that the treatment of waste is an industry. The only issue in this action is whether the proposed use is a special industry. It is, therefore, unnecessary to examine the other definitions.

15. The definition of "special industry" has been interpreted by this Court in Remove All Rubbish Pty Ltd v Corporation of the City of Salisbury (1989) 51 SASR 26 and in Jurkovic v Development Assessment Commission (1995) 64 SASR 294. In the latter decision it was held that the words "are likely" had a dual operation. It was first necessary to decide whether the industrial process or the relevant materials or goods were likely to the have the effects nominated in either paras(a) and (b) of the definition. If that requirement was satisfied, it was necessary to decide whether it was likely that the emissions identified in paras(a) and (b) would have their consequences identified in paras(i) or (ii). In either case, it was held, that a test of probabilities was involved.

16. In his reasons, Olsson J qualified the nature of the probability. He said at 305:
    "I am firmly of the view that the definition quite plainly
    infuses in the test to be applied the need for it to be shown,
    not only that there is a positive likelihood that the proposed
    use will cause or create vapours or smells, but also that
    there is a real probability that these will produce conditions
    which may become offensive or repugnant. The words `may
    become', as used in the definition attach only to the word
    `conditions'. The definition simply does not apply until it is
    first shown that the use is likely to create vapours or smells
    which will thereby produce the relevant conditions. It
    envisages the existence of a likelihood and real practical
    probability that conditions of the type postulated will be
    generated."

17. Neither Bollen J nor Lander J adopted this approach. With respect, there is nothing in the text which justifies the epithets qualifying the probabilities. Phrases such as "real probability" or "real practical probability" only serve to cloud the issues. The concept of deciding issues on the balance of probabilities is well-known. That is all that the definition requires. An industry is a special industry if, on the balance of probabilities, it has the effects identified in paras(a) and (b) and thereby, on the balance of probabilities, has the effects stated in paras(i) and (ii).

18. For present purposes it is necessary to have regard only to para(ii). The question to be decided is whether on the balance of probabilities the smells produced by the liquid waste materials brought on to the site and the processing of them will produce conditions which are offensive. The expression "which are, or may become" refers to at least two possible events. The first is that it is proved that the industry will produce conditions which are and will continue to remain offensive. The second is that the industry produces conditions which will on occasions be offensive. In other words, the expression "may become" is being used in a temporal sense referring to the likelihood that at some future date the conditions will offensive.
In this case, the Commission decided at a meeting on 12 September 1995 that the nature of the proposed development was a general industry and that, for the purposes of public notification of the proposal, it should be assigned to Category 2. Section 38 of the Development Act provides that notice of a Category 2 development need only be given to a limited range of persons and those persons do not have a right to appeal from the decision granting consent. If the proposed development had been characterised as a Category 3 development, the Commission would have had to give notice to adjoining owners and occupiers, to other owners and occupiers who in the opinion of the Commission would be directly affected to a significant degree by the proposed development, and to the public generally: s38(5) of the Development Act. Those who made representations concerning the proposal would have a right of appeal against the decision of the Commission: s38(5) and (12). The Council, therefore, says that the development should have been assigned to Category 3. Thus, it says, both the characterisation of the proposed development as a general industry and the assigned category are wrong. The Council says that, not only has it been denied its power to concur or not in the grant of development consent under s35(3), but also that the occupiers or users of land in the vicinity of the Collex proposal have been denied the opportunity to make representations in relation to the proposed development and, if consent is granted, to appeal against the grant of consent.

The Proposed Development 19. The proposed development envisaged alterations and additions to an existing liquid waste processing plant so that the facility might receive a range of additional industrial waste liquids. The proposal was based on a similar facility operated by Collex at Camellia, a suburb of Sydney. Part of the suburb of Camellia has been developed for large industrial complexes, including a petrochemical refinery and other processes likely to produce offensive odours. It was proposed to receive the following additional kinds of waste: . grease trap waste from restaurants and other food processing outlets

. wastes from food factories

. wash waters from car and truck washing facilities

. water contaminated by oil and/or detergents

. soluble oil from vehicle parts machining

. waste acids and alkalis usually in a form diluted by water

. non-odorous water/solid mixtures.

20. Collex intends that the facility will receive, process, and recycle waste which is not appropriate for direct disposal to landfill or which could not be disposed into the sewer system without prior treatment. In other words, waste will be converted to a form which is suitable for disposal either to landfill or into the sewer system. The waste would be generated from sources in Adelaide or in regional centres and would be transported to the site in tankers.

21. The proposed plant has been designed to receive and process some 1,600,000 litres of liquid waste per month which represents some 80,000 kilolitres per day. Collex estimates a daily turnover of some 50,000 litres. The plant will operate between the hours of 6.00am and 6.00pm. There will be occasions when oily water is received as late as 9.00pm.

22. Collex owns and operates six specialised liquid waste collection tankers which are not articulated vehicles. Each tanker is fitted with facilities to evacuate liquid waste from the tankers to tanks below the ground. Collex proposes that, as the volume of waste processed increases, other licensed contractors will deliver waste to the land. The planning documents do not disclose the nature of the tankers to be used by the so-called "licensed contractors".

23. The proposed plant is nominally divided into five processing areas being 1. Oily waters system,

2. Lime makeup system,

3. Dissolved Air Flotation (DAF) and sludge handling system,

4. Grease trap treatment system, and

5. Wet sludge receival system.

24. It is unnecessary for present purposes to consider further the lime makeup system. Each of the processing areas drains to or has treated water pumps discharging to the treated water holding tanks and a recycling tank.

Treating Odorous Wastes 25. Some of the waste received will be odorous. The most odorous is the grease trap waste. About one-eighth of the waste to be received will be grease trap waste. Some of the so-called inert sludges are also highly odorous. It is common ground that, unless appropriate odour control measures are taken, the plant has the potential to cause offensive smells. Collex, therefore, proposes facilities to control the potential for offensive smells.

26. The proposed plant as described in the Management Plan will contain two separate odour control systems, one specifically to deal with odours generated from the grease trap plant and the other to deal with odours from the oily water plant.

27. In order to ensure that all odours arising from the grease trap plant are contained and processed, Collex proposes that all unloading and storage of the material will be undertaken within an enclosed system. This system will comprise a negatively vented building to receive the waste, a vacuum unloading system and a negatively vented processing plant. The vacuum unloading system is designed to ensure that any leak in the pipe work lets fresh air into the system rather than letting odour or liquids escape. All odours will be treated by a manifold and processed through a three stage odour treatment system combining oxidation, caustic scrubbing and activated carbon absorption. After treatment, the odours are released into the air via a chimney stack fitted with canisters of activated carbon to treat residual odours. The process is designed to minimise the impact of offensive smells upon neighbours. When the plant is not operating a vacuum valve will seal the manifold to prevent the escape of fugitive emissions through the stack. A similar process is proposed for the treatment of odours from the oily water plant.

28. Collex stated that tankers bringing grease waste to the site will be rinsed after each delivery of waste. The rinse water will be pumped under vacuum to the waste treatment plant for processing. All potentially odorous wastes, in particular grease trap waste from restaurants and food factory waste, will be received and unloaded within a negatively vented building. Collex asserts that spillages outside bunded areas will be a rare event and that procedures will be put in place to clean up all spillages.

29. The Management Plan stated that wet sludges received at the plant would be inert and unlikely to give rise to odours. They were said to comprise in the main industrial wash waters with contaminants comprising mud or sand. Wastes of that kind are not likely to be highly odorous. However, the Planning Submission stated that inert sludges would come from the SA Brewery and the Engineering and Water Supply Department. Waste from the brewery is not inert. It is a chemically active and putrescible sludge and is highly odorous. This discrepancy between the Management Plan and the Planning Submission is significant in that the Management Plan did not show how this sludge would be treated in a way which would not cause offensive odours.

30. The DAF and sludge handling system is intended to receive and separate the solids from the waste water. The treated water is then taken to treated water holding tanks. The sludge passes to a sludge storage tank.

31. The oily water to be treated will primarily be wash waters from vehicle washing, soluble oil from vehicle parts machining, water contaminated by oil and detergents, and waste alkalis and acids contaminated or diluted by water. It includes waste soluble oils, waste or contaminated lubricating oils, contaminated diesel and wash waters. Separation systems will produce oil and clean water. The oil will be recycled where possible and the water discharged to the sewer.

32. The Management Plan states that the entire facility will be contained within a fully bunded area which will include all tanks, pipe work, valves, pumps and discharge areas. A bunded area is a large rectangular shaped area with a raised lip at the edge to contain all that falls on to the surface. Each process area will be separately bunded to contain spillages and prevent cross contamination of liquids. The areas in which tankers will discharge their load will be designed so that the tankers are wholly parked within the bunded area. The bunded areas will be surfaced in reinforced concrete which fall to a sump to allow the collection of any spilled material or waters used in the washing of vehicles or the bunded areas. It is proposed that all possible areas in which spillage might occur will be contained within a bunded facility.

Inadequate Plans 33. The plans of the proposal did not completely depict the proposed odour control measures. Instead of providing plans which clearly showed the existing development, the proposed additions and the odour control processes, Collex provided little more than a site plan and a plan called a "development plan", both of which depicted some buildings and facilities and then only in a bare outline providing little information. In addition, it provided flow charts and diagrams which are annexed to the Management Plan. It is not easy to reconcile those charts and diagrams with the site plan or the development plan. It is not possible to distinguish the existing plant from the proposed additions and alterations. Two of the experts, Mr Gray and Dr Grynberg, both of whom have had experience as plant managers, were unable to ascertain the full extent of the odour control procedures and both identified deficiencies in the plans.

34. The need for proper and adequate plans is made the more important because both the Management Plan and the Planning Submission are expressed in terms which, understandably enough, are designed to promote the proposal. A planning authority should be able to determine from the plans whether the proposed complex as constructed will operate in the manner as represented in any statement of intended operation such as the Management Plan in this case. It is important also that diagrammatic representations and charts such as flow charts are consistent with the plans. Where consent is sought for a development for a proposed use which is controversial and sensitive, the applicant has a duty clearly to depict the proposal in its plans and in a way which enables the planning authority or its advisers to determine that the proposal will operate in the manner stated. This proposal was controversial in the sense that two earlier applications for a similar use had been to this Court. It was sensitive in that it has the potential to cause offence.

35. Generally speaking, applications for provisional development plan consent do not require plans which descend to every matter of detail. For example, it is not necessary to prepare working drawings for a proposed building. However, a proposal for a development as sensitive as the kind proposed and which depends, for its classification as a special industry or general industry, upon the extent to which, if at all, there is adequate provision made for odour control, requires a great deal more detail than was shown in the plans submitted by Collex.

36. Some of the deficiencies identified by Mr Gray were that it was not possible to identify what facilities were housed in buildings; it was not possible to identify what buildings shown on the plans already existed and what were proposed; the Management Plan proposed three chimney stacks but the plans depicted only one; the wet sludge pits were not clearly depicted; and it was difficult to relate what was shown in the diagrams attached to the Management Plan with the buildings and tanks shown on the Development Plan. In a number of instances, it was not possible to locate on the Development Plan particular items of plant and especially tanks referred to in the Management Plan. It was not possible, therefore, to identify as fully as was desirable the extent to which odour control mechanisms were proposed. Dr Grynberg also identified some of these defects. Dr Grynberg noted inconsistencies and that the plans were incomplete. The consequence is that it is not possible fully to identify the extent to which Collex will implement a complete system of odour controls.

The Council Considers the Application 37. The Council had retained Mr Gray, a consulting chemical engineer, to advise it concerning both of the earlier applications made by Collex. The Council was also advised by Dr Kerry Holmes, an environmental scientist. Counsel referred this third application to Mr Gray. Mr Gray reported on several occasions to the Council. In his first report to the Council dated 30 March 1995, he reported that, although Collex proposed substantially more extensive equipment for odour control than had been provided in previous applications, doubts still remained as to the capacity of the proposal to prevent offensive odours. He noted that there were improved methods of treating odours from the plant to process grease trap waste and the oily water plant. He thought that emissions from the stacks would be unlikely to be offensive if the plant was properly managed. However, offensive odours could be caused by what he called fugitive emissions. These would be caused by spillages inside the building, spillages outside the buildings, and odours from those parts of the plant for which comprehensive odour control equipment had not been proposed. The latter two were the more likely to cause odours which would be offensive to neighbours. He identified those aspects of the proposal where it was either not clear whether the proposal to control emissions or where there was an absence of appropriate odour control measures.

38. Mr Gray noted that it was not clear whether measures were proposed to control odours emitted either from the plant intended to treat sludges, or from particular items of the plant intended to treat the grease trap waste, or from particular items of plant treating oily water. He noted that no provision had been made for an extraction and odour control in the wet sludge receival pit, and that no provision had been made for extraction and odour control in the DAF and sludge handling plant which was intended to treat water recovered from the oily water plant and wet sludge from the wet sludge receival pits.

39. Mr Gray identified other areas which would rise to offensive odours. It would be necessary to wash trucks bringing grease trap waste to the site. The wash water would need to be discharged into a receival pit. In addition, he believed blockages would occur in pipes used to pump grease trap waste from the tankers. There was a need to provide a receival pit for spillages. The plans did not provide for a receival pit with appropriate odour control processes.

40. In conclusion, he identified a number of areas for concern. They were: . fugitive air emissions from spillages;

. fugitive air emissions from parts of the plant where air extraction or treatment is not provided; and

. the fact that some odorous waste would have been processed through equipment which was not fitted with odour control equipment.

41. He also commented on air dispersion modelling provided to him by Dr Holmes. Based on information in a report he had received from Dr Holmes, he concluded that in the event of complete failure of odour control equipment at the grease trap waste plant and depending on atmospheric conditions, odours were likely to be detected at nearby residences. He concluded also that the prevention of emissions from the main stack producing detectable odours required an efficient design and effective operation of the odour control equipment. He noted that air dispersion modelling had not been carried out for emissions from the three stacks where air from the oily water plant is discharged after activated carbon treatment.

42. The Council provided Mr Gray's report to Collex. On 30 May 1995 Collex provided further information to the Council concerning the application. The information was in the form of a letter from its planning consultants, Bone &; Tonkin Planners Pty Ltd, and was sent in response to a request for additional information made by the Council on the basis of the reports prepared by Mr Gray and Dr Holmes. The information provided related to the following matters: (i) Odour measurements taken at the Collex liquid waste plant at Camellia, a suburb of Sydney near the Parramatta River;

(ii) Assumptions made in the air dispersion modelling process, particularly with respect to fugitive emissions;

(iii) The impact of the proposed design process on odour control production; and

(iv) Plant engineering and management.

43. Although Mr Gray had identified what he believed to be deficiencies in the plan, deficiencies which I find did exist, and despite his concerns as to the adequacy of the proposed measures for odour control, the letter contained no further information as to the manner in which odour control would be effected. Collex thus allowed an opportunity to provide more information to pass it by.

44. Mr Gray reported to the Council again in a report dated 23 June. He noted that the particulars supplied by Collex did not specifically address questions regarding some details of plant design, particularly of the apparent lack of emission control from some items of plant which had been detailed in the management plan. He assumed from the assertions that the possible emissions would be addressed in detailed design. He noted also that Collex contended that there would be no spillage of waste during unloading, treatment, maintenance or disposal operations and that was based on their experience at its Camellia plant. He concluded that the proposal was for a special industry.

45. In June 1995 Mr Davos, the Director of Environmental Services for the Council, prepared a report on the Collex development for the consideration of the Council. He attached to it Mr Gray's report dated 23 June. At its meeting on 27 June 1995 the Council considered the application and resolved that the Commission be advised that the Council, having taken independent advice on the proposed additions and alterations to the Collex plant, considered that the proposed waste treatment plant constituted a special industry and therefore requested that the application be treated as a non-complying development application. By letter dated 4 July 1995 the Council informed the Commission of its resolution.

The Commission Grants Consent 46. After the application for development consent had been lodged on 8 March 1995, the Council sent it the next day to the Commission. The Commission considered the application by Collex at three meetings. The first was on 8 August 1995. Before that meeting, members of the Commission met representatives of Collex at the site of the proposed development. The development was explained. At its meeting the Commission reviewed the material then before it. At this meeting the Commission had before it a report by Dr Grynberg, a consultant engineer, engaged by the Commission, as to whether the proposed development was a general industry or a special industry. I will return to examine that report.

47. The next meeting of the Commission was held on 12 September 1985. At that meeting the Commission decided upon the nature of the proposed development. Mr Whitworth, the Manager of the Office of the Environment Protection Authority was present at the meeting. He explained why he thought the proposed development was not a special industry. It is apparent from the minutes of the meeting that Mr Whitworth was relying to a substantial degree on Dr Grynberg's report. The Commission resolved that the nature of the proposed development was a general industry and that for the purposes of public notification the development was a Category 2 development. The Commission next considered the proposal at its meeting on 9 December 1995 when it granted provisional development plan consent to the proposal.

48. The Commission imposed twenty-two conditions on the grant of consent. They were:
    "1. Except where minor amendments may be required by other
    relevant Acts and/or Legislation, or by conditions imposed
    herein, all development, is to be established in strict
    accordance with the details and plans submitted with the
    development application received on 10 March 1995.

2. All development and works associated thereto, are to be
    completed to the reasonable satisfaction of the Commission,
    prior to the occupation and use of the buildings and site.

3. The site and development contained herein is to be maintained
    in a serviceable condition and operated in an orderly and tidy
    manner at all times.

4. The proposed car parking layout and access areas are to be
    amended to conform with Australian Standards and all sealed and
    paved areas, including line marking, are to be in accordance
    with accepted engineering standards.

5. All landscaping is to be developed in accordance with the
    details and plans referred to in condition number 1, herein and
    is to be maintained and nurtured at all times with any diseased
    or dying plants being replaced wherever necessary.

6. All landscaping is to be established within three months of
    occupation of the building.

7. All loading and unloading of vehicles shall take place on the
    subject site.

CONDITIONS OF THE OFFICE OF THE ENVIRONMENT PROTECTION
    AUTHORITY:

8. Main (existing) process building shall be enclosed and
    mechanically vented in a manner which prevents leakage of odour
    from the building and directs ventilation air to an effective
    odour control device before discharge via a 12 metre stack. The
    odour control system must consist of three stages incorporating
    ozone scrubbing, caustic scrubbing and activated carbon
    absorption.

9. All process and storage tanks shall be fully sealed with only
    a single vent for displaced air to be ducted to a control
    device.

10. All tanks shall have high level indicators with audio and
    visual alarm and shall be interlocked to road tanker filling
    valves.

11. Chemically or biologically active and odorous sludge
    including brewery yeast sludges shall be excluded from receival
    and treatment.

12. Lime storage silo:

(1) Silo high level sensors and audio and visual alarms shall be
    fitted and interlocked to auto shut off on delivery truck.

(2) A silo vent filter broken bag detector shall be installed.

(3) Silo pressure sensor and audio and visual alarms shall be
    fitted and interlocked to auto shut off on delivery truck.

13. All odorous waste waters should be accepted and treated in
    buildings which are negatively vented with appropriate odour
    control as nominated in the proposal.

14. Three Stage Ozone Scrubbing Odour Control System:
     Grease Trap Waste Treatment and Main (Existing) Process
    Building

14.1 The ozone scrubber shall be fitted with:

(1) a flow meter and alarm; and

(2) a redox potential instrument and alarm.

14.2 The caustic scrubber shall be fitted with:

(1) a flow meter and alarm; and

(2) a pH probe and alarm.

14.3 An over vacuum release valve must be fitted to all vacuum
    pump systems.

14.4 The exhaust gases from the carbon absorber must be
    discharged to atmosphere via a stack of a height of not less
    than 12 metres above ground level.

14.5 The design vertical discharge velocity of the exhaust must
    be not less than 10 metres per second at full load.

14.6 Discharge shall be vertical and unimpeded by rain protector
    devices.

14.7 Sufficient vacuum pumps must be installed in the piping
    system to allow for 100% stand-by capacity at all times.

14.8 A sample point shall be fitted to the outlet vent of the
    carbon absorbers and shall be located for accessibility at
    ground level. The sample point (utilising and effective shut off
    valve) shall be used for daily odour level checks.

15. Oily Water Treatment - Odour Control System

15.1 The exhaust gases from the carbon absorber must be
    discharged to atmosphere via stacks of a height not less than 12
    metres above ground level.

15.2 The design vertical discharge velocity of the exhaust must
    be not less than 10 metres per second at full load.

15.3 Discharge shall be vertical and unimpeded by rain protector
    devices.

15.4 Sample (tapping) points shall be fitted to outlet vents of
    the carbon absorbers and shall be located for accessibility at

    ground level. The tapping points (using effective shut off
    valves) shall be used for daily odour level checks.

16. Tanks containing sulphuric acid and caustic soda must be
    installed in a bunded area.

17. The floor levels within the bund must be graded so that the
    fall is towards the floor collection sump.

18. The bund must not be fitted with any form of drain or drain
    valve.

19. All pipe work from the enclosed tanks/or pumps must be
    directed over the bund wall and not through it.

20. Internal floor drains must not be connected to the storm
    water drainage system.

21. Provisions shall be made within the boundaries of the site
    for a wash down area to clean vehicles used in the transporting
    of waste or operating within the site. The wash down area shall
    be paved with an impervious material and drained into the liquid
    disposal area. A water service of sufficient pressure to
    properly clean the vehicles shall be provided.

22. The applicant shall forward to the EPA a Contractor
    Installation and Compliance Report within 14 days of the
    completion of work. Contractor Installations and Compliance
    Report shall cover the extent to which the above conditions
    (condition 8 through to 22 inclusive) applied to the consent,
    have been completed. Conditions not complied with shall be
    identified giving reasons and expected completion date of work.
    Commissioning trials shall not commence before Contractor
    Installation and Compliance Report is received and a written
    response from the EPA is issued."

49. In the document informing Collex of the grant of development consent, the Commission stated that its reasons for the decision were that the development was consistent with the Development Plan. It also said that the conditions were imposed "to ensure the development is of a high environmental standard and the amenity of the area is maintained".

50. There are several remarkable features of these conditions. The first is that there are so many conditions, a fact which on its face raises serious questions as to the desirability of the proposal at the proposed site. Secondly, Condition 11 prohibits the treatment of one form of waste proposed by Collex and in that respect alters one aspect of the proposal. Thirdly, some of the conditions are vague and may create difficulties for enforcement. In the result, it is unnecessary to examine the enforceability of the conditions.

The Witnesses 51. The Council called two witnesses, Mr Gray and Dr Holmes. I have already referred to them. Both were very impressive witnesses. Mr Gray is a consulting chemical engineer. He has academic and practical experience. Since graduating in 1965 he has spent some twenty years as a plant manager or assistant plant manager for companies engaged in industrial or mining operations in Australia and in South Africa. In that capacity, he was responsible for complying with environmental standards and, in Tasmania, for ensuring that the plant operated within the terms of an environmental licence. In the past ten years he has acted as a consultant on environmental issues. He has advised on environmental aspects of a range of industrial and processing plants involving issues relating to a variety of emissions including odours. He has advised on management and design of plants to control offensive or harmful emissions. He gave his evidence in a careful and precise manner. His assessment of the proposal was balanced. He made whatever qualifications or concessions were necessary without in any way negating the force of his conclusion. Dr Holmes is an environmental scientist by qualification and experience. She has advised on a number of enterprises in relation to emissions including odours. Her evidence too was careful and precise. Dr Holmes' evidence essentially concerned computer modelling of the emissions. Mr Gray relied on her reports. Given that all of the experts agree that there will be a number of occasions when offensive conditions will exist, it is unnecessary to recapitulate her evidence. Both Mr Gray and Dr Holmes were eminently qualified to assess the proposal. Neither was seriously challenged in cross-examination. I prefer their evidence where it conflicted with that of any other witnesses.

52. The Commission called two witnesses, Dr Grynberg and Mr Whitworth. Dr Grynberg too was an impressive witness. He was qualified to give his evidence both by academic qualification and experience. He has had about 17 years' experience as a plant manager in Australia and in Israel and for the past six years has acted as a consultant on environmental issues. He is engaged from time to time by the Environment Protection Authority in Victoria as an environmental auditor to conduct audits on developments, both existing and proposed, which might adversely affect the environment including industrial liquid waste treatment sites and petrochemical sites. He has designed liquid waste treatment plants. He was well qualified to assess the proposal. His assessment of the proposal suffered from the fact that he had imposed a list of possible conditions which altered the nature of the proposed development. I will return to that issue. In a number of areas the evidence of Mr Gray and Dr Grynberg corresponded. Where their evidence conflicted, I prefer the evidence of Mr Gray. Mr Whitworth is qualified as a chemical engineer. He is a chartered professional engineer and is currently the Air Quality and Executive Adviser of the office of the Environment Protection Authority in South Australia. He has had extensive experience in environmental issues and in particular with air pollution. His evidence appeared to lack the objectivity of the evidence given by Mr Gray and Dr Grynberg and I was not as impressed by his evidence as I was with the evidence of the other two experts.

53. Collex called Mr Purton and Mr Stubbins. Mr Purton has obtained diplomas in meteorology and has had quite extensive meteorological experience. Since 1983 he has acted as member of B C Tonkin &; Associates providing advice in areas related to meteorology. His evidence essentially concerned computer modelling of the likely emissions from the site. Mr Stubbins was engaged as recently as 8 January 1996 to act as a technical manager for the proposed plant. He has experience as a chemist including a period of five years as an assistant plant manager of a liquid waste treatment plant at Wingfield. Mr Stubbins was understandably anxious to do well by his new employer. This caused him sometimes to be an advocate for the proposal. His evidence concerned the proposed manner of operation of the intended plant. On occasions, there were some significant inconsistencies between his understanding and the proposal. He was called for the purpose of dealing with issues raised by Mr Gray. He had prepared some plans which differed from the original plans submitted to the Council. Mr Gray characterised these plans as a totally new plant with significant changes to the plant as proposed. He pointed out that the new plans were incomplete. I find that there is nothing in the new plans which alters the effect of the evidence given by the experts. Further, there was nothing in the evidence of Mr Stubbins which caused to doubt any aspect of Mr Gray's evidence.

54. In the result, there were three experts who dealt in an overall way with the proposed development and its likely environmental effects. They were Mr Gray, Dr Grynberg and Mr Whitworth. The evidence from the other witnesses was used by them in reaching their conclusions. As will be seen, each of the experts said that the proposed plant would occasionally produce conditions which would cause offence in the residential development to the east. They differed only as to the number of occasions. Mr Gray was the only person who considered neighbouring industrial development in any detail. I accept his evidence on that topic.

55. When the Commission examined the nature of the proposed development on 12 September 1995, it had before it documents including Mr Gray's report dated 23 June, Dr Grynberg's report and a report from a senior project officer of the Commission, Mr D A Johnston. Mr Johnston's report summarised the reports of Mr Gray and Dr Grynberg and then added:
    "It can be concluded from both consultant's reports that some
    level of odour emission is anticipated. However whether such
    emissions from the proposed facility will cause or produce
    conditions which are offensive to neighbours is unclear.

Clearly if the development will cause odours which are offensive
    to the neighbours then it must be considered as a special
    industry.

From a "technical" perspective by ensuring all the necessary
    operating requirements are in place through EPA licensed
    conditions, this would then minimise the likelihood of causing
    odours which are offensive to neighbours and therefore it could
    be considered as a general industry and can therefore be sited
    as proposed."

56. Mr Johnston's report then went on to note the implications of deciding that the proposal should be classified as a general industry or alternatively as a special industry. It will have been noticed that Mr Johnston suggested that the imposition of appropriate conditions might minimise the likelihood of offensive odours so that the proposal could be classified a general industry. For reasons given below, it was not appropriate to impose conditions and then determine the nature of the development.

57. Dr Grynberg had been retained by the Commission to advise it on the proposed development. His brief was to review the application together with the previous applications, to have regard to the definitions of general industry and special industry in the Development Regulations and
    "3. To provide a conservative and justifiable written assessment
    to the Office of the Environment Protection Authority and whether
    the proposed development should be classified as a general
    industry or alternately (sic) a special industry as defined in the
    Regulations made under the Development Act 1993.

58. To provide written advice to the office of the Environment
    Protection Authority on a list of possible conditions of control
    which would be necessary to impose on the proposed development in
    order to make it conform with the definition of a general industry
    or a special industry."

59. Dr Grynberg's report identified a number of the same features as had been noted by Mr Gray and, in particular, the lack of detail concerning the proposed odour control measures. Unlike Mr Gray, he concluded that it was a general industry. The difference between the two reports results in large part from the fact that Dr Grynberg has imposed a number of conditions designed to regulate aspects of the proposed operation. In the body of his report Dr Grynberg concluded that, although emissions from the several chimney stacks would be unlikely to cause offence, there were other causes of fugitive emissions which would cause odours which would cross the boundaries. His report concluded in these terms:
    "4.4 Conclusions

A strictly conservative approach could result in a conclusion
    that there may be odour incidents which may be offensive to the
    neighbours and that the proposed development as described should
    be in a special industry zone. However we consider this an
    inappropriate view from a technical perspective.

Based on the material provided by the proponent and the other
    material reviewed we conclude that it is considered likely that
    occasional odours at the site could occur. However we consider
    that these will be infrequent. It is however difficult to form a
    judgement with available information as to whether these odours
    will be detected by and be offensive to the neighbours. This
    will be a site specific characteristic. The modelling indicates
    that this is unlikely.

The odour treatment system proposed (3 stage) for the grease
    trap waste should be effective. It is not considered likely that
    the system will be inoperative (which would result in odours).
    The oil waste storage tank has a two stage activated carbon only
    but there is a lower probability of odour production. All tanks
    which contain potentially odorous materials should be connected
    to the odour control system. All processes which are potentially
    odorous should also be similarly controlled.

Our conclusion is based on the following:

For the proposed development to be permitted in a general
    industry zone, the general requirement would be that all
    activities which could (are likely to) give rise to odours
    should occur within, a negatively vented building or within
    tanks, which have odour collection and treatment. All odorous
    air should be treated to the degree which is necessary to
    prevent odours which are offensive to neighbours. Modelling may
    be necessary to demonstrate this situation. These conditions
    seem to have been generally met.

Therefore we consider the proposed development as being able to
    incorporate the necessary processes and operating requirements
    such that it is not a "special industry" and therefore can be
    sited in a general industry zone. Specific conditions are noted
    in the following section.

5.0 Controls

If the proposed development is in a general industry zone the
    following conditions should apply in addition to those nominated
    in the City of Enfield conditions:

1. No chemically active or putrescible or odorous sludges are to
    be received at the facility.

2. All odorous wastewaters should be accepted and treated in
    buildings which are negatively vented with appropriate odour
    control as nominated in the proposal.

3. All activities likely to result in odours at the boundary of
    the facility will be conducted in buildings/tanks which have
    odour controls.

4. Should odour incidents (as detected at the boundary) occur
    due to a particular waste stream at a frequency of 2 or more per
    3 month period or with a duration of more than 4 hours then
    these wastes will be discontinued to be received at the
    facility.

5. Odour incidents should be reported to the EPA within 4 hours
    together with a contingency plan for remediating the odour
    problem.

6. The proponent will prepare and have approved by the EPA an
    odour contingency plan. A copy is to be provided to the City of
    Enfield.

7. The detailed design of the facility should be approved by the
    EPA before facility commissioning, including a set of design
    calculations which outlines the design basis and efficiencies of
    the odour extraction and treatment systems. The maximum odour
    discharge rates should be for the greasetrap scrubbing system
    250 OU at 14 m/sec and 200 OU at 14 m/sec for the tank system.

8. In the first year of operation odour measurements will be
    made from each of the discharge stacks and sources of odour,
    during normal operation, every 3 months. The data will be used
    to model odours at the boundary of the property, at the nearest
    houses and other potential receptors. The model should be
    calibrated, if possible.

9. At the end of the first year of operation, a report should be
    submitted to the EPA with the odour results, modelling, incident
    reports etc. A copy should be made available to the City of
    Enfield.

10. The EPA shall decide, after consideration of the report,
    what future odour monitoring requirements may be necessary.

11. The proponent should provide to the EPA, annually, a report
    on site operations which includes a discussion of compliance
    with the site licence condition and other relevant environmental
    regulations."

(The abbreviation OU means odour units, a measure of the level
    of odour. The same measure is sometimes called ODU.)

60. A reader of Dr Grynberg's report might conclude that, if some of the conditions he suggested had been omitted, the proposal would have constituted a special industry. This conclusion was conceded by Dr Grynberg in cross-examination. It is clear that Dr Grynberg had prepared his report in accordance with the brief he had received to prepare possible conditions of control which it would be necessary to impose on the proposed development or to make it conform with the definition of a general industry or a special industry. In his view, the conditions he suggested made the proposal a general industry. For the reasons which follow, the Commission ought to have asked Dr Grynberg to assess the proposal as presented by Collex. It could also have asked for advice as to suitable conditions to impose on a grant of development consent. It should not have asked for conditions which would alter the nature of the development.

An Improper Use of Conditions 61. This Court has commented on several occasion upon the appropriate point in the process of considering applications for development consent at which to impose conditions: Beer v South Australian Planning Commission (1988) 142 LSJS 20 at 25 and, on appeal, (1988) 145 LSJS 284 at 289-290; Remove All Rubbish Pty Ltd v City of Salisbury (supra) at 34; and South Australian Housing Trust v Lee
(1993) 81 LGERA 378, 390. The decisions also emphasise the care which must be taken by a planning authority when imposing conditions on a development consent. It was held that the power to impose conditions should be exercised only after the decision has been made that the proposed development was at least prima facie a suitable and appropriate use of the land having regard to the relevant planning considerations. As Jacobs J said in Beer v South Australian Planning Commission at 25:
    "The primary question with which planning authorities are
    concerned is the question of land use, whether a proposed
    development, including a change of use, is compatible with the
    relevant provisions in the Development Plan and the orderly and
    proper planning of the locality. It is only when that question has
    been answered in the affirmative that the authority should concern
    itself with questions of management, and indeed there has been an
    alarming trend on the part of some planning authorities to use
    planning conditions to bring the management of the land, once
    planning approval has been given, under planning control and in
    some cases thereby to usurp the functions of other government or
    semi-government authorities."

62. He made observations to like effect in Remove All Rubbish Pty Ltd v City of Salisbury at 34:
    "The primary concern of a planning authority is to control land
    use and the first question to be addressed should always be
    whether in the circumstances the proposed development it is at
    least prima facie a suitable and appropriate use of the subject
    land having regard to the provisions of the Development Plan. To
    approach a planning decision by framing conditions designed to
    make a proposal suitable and appropriate is to bypass the primary
    question."

63. This reasoning was followed in South Australian Housing Trust v Lee.

64. These three decisions concerned conditions which had been ordered in the process of considering whether a proposed development was a suitable and appropriate use of land having regard to the provisions of the Development Plan. With appropriate modification, the reasoning applies with even greater force when the planning authority is determining the nature of a proposed development. In such a case, the planning authority must consider the proposal as submitted by the applicant in conjunction with whatever other information it has obtained in response to its request for further information. That is the only proper basis upon which it could determine the nature of the proposed development. If the planning authority frames conditions which bear upon the manner in which the proposed development is to be conducted, there is a real risk that it will alter the nature of the proposal from that which has been submitted by the applicant to some other proposal which might or might not be adopted by the applicant. To adapt the words of Jacobs J, it is approaching the question of the nature of the proposed development by framing conditions which are designed to make the proposal suitable to one form of land use.

65. When determining the nature of a development pursuant to Reg 16, a planning authority is not deciding whether to grant or refuse development consent. The authority will at some later stage make their decision and, if it decides to grant consent, it can then consider whether it is appropriate to impose conditions on the grant. Thus, the fact that the industry is classified as a special industry does not, standing alone, disqualify the proposed use. The question whether the proposed use should be permitted was a matter for later determination, when all information relevant to the application will be before the planning authority. To impose conditions before deciding the nature of the proposed development is a misuse of the power to impose conditions. Furthermore, as this case plainly illustrates, the procedure to be adopted when dealing with the application might turn upon the nature of the proposed development. It is entirely wrong for a planning authority to alter the nature of a proposed development by the imposition of conditions which might thereby frustrate the process prescribed by the Parliament for the proper consideration of applications for development consent.

66. In this case, the Commission should have considered only the proposal as described in the application together with any supplementary information supplied in response to its request for additional information. The Commission should have examined what was to be processed, how it was to be processed, and whether adequate measures were depicted in the proposal to control odour emissions. The question whether the proposal was a special industry or general industry depended on the nature of the proposal submitted, not upon the proposal as modified by the Commission. As submitted, the proposal was one intended to treat industrial wastes including highly odorous wastes. It was apparent that, if proper odour control measures were not in place, the proposal might be likely to cause offence. It is not clear from the drawings whether odour control mechanisms were as complete or as extensive as necessary to prevent the emission of odours. There were inconsistencies between the drawings and the Management Plan. There were a number of areas where it was unclear whether odour control measures would be implemented. The Council had drawn these to the attention of Collex when it provided Mr Gray's report of 30 March 1995 to Collex. However, Collex had not submitted any information to deal with the concerns expressed by Mr Gray as to inadequate information. In addition, the proposal indicated that highly odorous brewery sludge would be received and treated but no odour controls were proposed for the process. There were other areas of concern identified by Mr Gray. The absence of proper odour control measures pointed to the conclusion that this was a special industry. Absent those controls, odours would be offensive to neighbours. The evidence shows that without the conditions suggested by Dr Grynberg this was a special industry.

67. The Commission, therefore, erred in its use of its power to impose conditions to classify the Collex proposal as a general industry because the conditions altered the nature of the proposed development. The Commission should have classified it as a special industry. The incorrect classification caused the Commission to adopt the wrong procedure to deal with the application. It, therefore, follows that its purported grant of provisional development consent is invalid.

68. In one sense that is enough to dispose of the issues in this matter and to grant the orders sought by the Council. However, it is apparent that Collex is prepared to comply with all of the proposed conditions. Collex could now submit a fresh application which included most, if not all, of the matters which were made the subject of conditions and contend that the Commission should characterise the proposed development as a general industry. That is a relevant matter to consider in the exercise of the discretion whether to grant the relief sought by the plaintiff Council. It would be an exercise in futility if this consent were quashed and a fresh proposal submitted for consent which included all of the measures proposed by Dr Grynberg and Mr Gray. I turn, therefore, to the question whether the proposal as hedged about with all of the conditions imposed by the Commission constituted a special industry.

A Special Industry 69. Mr Gray, Dr Grynberg and Mr Whitworth gave evidence on this issue. It was common ground that, provided that the proposed odour control measures operated efficiently and effectively, emissions from the chimney stacks at the site would not produce smells which were offensive to those working or residing in the vicinity of the Collex plant. There was, however, the risk of fugitive emissions.

70. In addition to fugitive emissions, there is also the risk of operational failure caused either by a failure of part or whole of the odour control plant or by the failure of employees to implement correct procedures. Although a major failure of the plant is unlikely, nevertheless, it is readily apparent that the capacity of the plant effectively to control odours depends on the proper functioning and efficient operation of the plant and on proper management and work practices. I accept the evidence of Mr Gray, who has had experience managing plants, that even with best management practice, it is likely that the plant will fail to function from time to time. He concluded that, even with the plant operating efficiently and proper management and supervision of staff, there will be several incidents in each year, he estimated about five, when the operation of the plant would cause offence to the residents residing to the east of the Collex plant. It followed that, if the plant was not properly operated or the management was defective, the number of incidents would increase. He also estimated that at least once a week those employed in the industrial premises to the north would be subjected during working hours to offensive odours. Mr Gray also believed that, during the period when the new plant was being commissioned, there would be occasions when breakdown would occur resulting in a failure effectively to control odours and thus cause offence to those in the vicinity.

71. Dr Grynberg concluded that on two or three occasions in each year residents to the east of the Collex plant would detect offensive odours from the plant. He said that it would be difficult to say whether the odour would be offensive. He had not examined the effect on those working in the adjoining industrial premises. However, he conceded that it was appropriate to have regard to them also as a group of people likely to be most frequently affected. He estimated that they would detect odours a few times in each quarter. If Collex was to operate on a twenty-four hourly basis, he would qualify his opinion.

72. Mr Whitworth held the view that there could be about four occasions in each year when the plant would cause odours which would be offensive to the residents to the east of the plant, a conclusion based on his experience in the Environmental Protection Authority. He did not address the position of those occupying the closer industrial premises. His evidence makes it clear that, if the conditions of the kind proposed by Dr Grynberg were not imposed, the development would have "an unacceptable environmental impact". From that evidence it is reasonable to infer that, absent the conditions, the proposed development was a special industry.

73. Mr Whitworth adopted an unduly restrictive definition of a special industry as an industry that "has continuous or near continuous emissions of odour or dust which would give rise to offence off site" as distinct from one which had a potential to give offence to others off the site. There is nothing in the definition which requires that the emissions be continuous or nearly continuous. It might be appropriate to examine the number of occasions when there is an emission of odours in order to determine whether it is offensive but to require them to be continuous or almost so is to adopt a very restrictive view of the definition and to include in it a qualification which is not to be found in the terms of the definition. This is another reason why I have not relied on Mr Whitworth's evidence.

74. The concerns expressed by Mr Gray as to offensive conditions in the adjoining industrial area are valid. There is no reason why persons working in industrial premises should be denied protection from offensive odours. That is one of the reasons why special industry zones are established by the Development Plan. At its meeting on 9 December 1995 the Commission was informed of a representation opposing the Collex proposal from an adjoining occupier of industrial land immediately to the north, Trio Hinging Australia Pty Ltd. One of the grounds of the opposition of Trio Hinging Australia was that fugitive emissions will adversely impact on the area.

75. I have already referred to the definition of "special industry" and how it is to be applied. The evidence establishes that the proposed industry will cause offensive odours on three to five occasions in each year. In that sense, it satisfies the definition. For understandable reasons, the definition does not prescribe how on many occasions the conditions must be offensive or repugnant to render the industry a special industry. The question whether an emission is offensive is not the kind of question which is to be resolved only by some numerical tally. The definition is open to the construction that the industry will be a special industry if it causes offensive conditions on one occasion only. However, in that event, it might be appropriate to apply the maxim that the law does not concern itself with trifles. The question remains as to whether several occasions of offensive conditions in each year constitutes a special industry. One relevant factor is the nature of the emission. In this case, it is an offensive odour.

76. It must also be noticed that, strictly construed, the definition is wide enough to catch many kinds of industry which would not generally speaking be considered to be a special industry. A number of industries produce dust, fumes, smells, gases and other emissions and take steps to prevent those emissions. If proper steps are taken, they are not classified as special industries. Thus, a joinery, which as a general rule would be considered to be a light industry, might utilise plant to prevent the emission of dust and sawdust from the premises. At other industrial premises, noise control might be effected by the simple process of closing a window or some other aperture through which the offensive noise might escape. Noise control might also be effected by a baffle, acoustic tiles or other acoustic treatment. In addition, the question whether the conditions are or may become offensive or repugnant will depend on other neighbouring uses of land. What is inoffensive in an industrial area may be highly offensive in a residential area. These are factors which point to the conclusion that, in the ultimate result, it will be a question of fact and degree whether a particular industry is a special industry.

77. Processes designed to ameliorate offensive emissions will vary in their complexity. Some will be simple to operate and will not depend upon the efficient operation of plant or equipment or upon the skills of management or employees. For example, it might be possible to prevent the emission of noise by a permanent feature requiring no management or supervision such as baffles or acoustic materials. Others will depend for their effectiveness on a process which for its effectiveness depends on efficient and effective plant operation and constant supervision and management. Between these two extremes are many forms of control. If the process requires the effective operation of plant and proper management and supervision of staff, there is a greater likelihood that there will be occasions when the emissions will not be properly controlled. That is not to say that a process which requires the efficient operation of its plant or equipment and depends upon the management and supervision of employees should incur some kind of handicap. A planning authority is required to assume reasonable management and operation of plant and equipment. In this case, it must be acknowledged that the proposed equipment was described as "state of the art". But the processes designed for odour control in this case are of the kind which requires effective operation of plant and proper management and supervision of staff.

78. In this case, the liquid wastes include those which are highly odorous and others which have the capacity to become odorous. Grease trap waste is the most highly odorous and most likely to cause offence. The treatment of these liquid wastes produces offensive smells which will cause offence to persons in the locality if proper measures are not taken to collect and treat the odour. In the absence of such measures, the likelihood is that the odours will be offensive to neighbours. The Collex proposal included a number of measures to control the emission of odours. The conditions attached to the development consent provided an improved method of odour control. But, even with these improved methods, the experts agree that there will be occasions when offensive odours will be emitted.

79. The evidence, therefore, unquestionably demonstrates the probability of odours which will be offensive to the residents. The only issue is on how many occasions those offensive conditions will exist. The disagreement between the experts as to the frequency of the offensive emissions is slight. It ranges between an assessment of offensive conditions on about three occasions in each year to about five occasions in each year. Mr Gray was the only expert who considered in any detail the extent to which offensive odours would be detected at the industrial premises and on his estimate that would occur at least once in each month.

80. An estimate of the occasions in each year when offensive odours will be noticed in the residential areas is but a starting point. There is a degree of artificiality in confining one's attention to one year. Common knowledge indicates that, generally speaking, the residents in this area will occupy their dwellings for periods ranging from five to twenty years or even longer. Over a period of five years it is likely that there will be as many as fifteen to twenty-five occasions when the residents would be subjected to offensive smells. Those occupying the industrial premises would be subjected to such smells a good deal more frequently.

81. In short, Collex is treating wastes, some of which are intrinsically offensive, and it is treating them by a process which will cause offensive conditions if proper odour control is not achieved. The effectiveness of the odour control processes depends on the effective operation of the plant, on proper management, and on adequate supervision of staff. The technology for the process has undoubtedly improved. Although the Collex proposal includes plant described as "state of the art", the experts acknowledge the likelihood of offensive emissions. There are a number of areas where a failure to adhere to proper practice could lead to offensive emissions. It is necessary for the doors to negatively vented buildings to be kept shut. The washing of vehicles must be carried out in bunded areas in buildings which are negatively vented. Spillages must be cleaned up promptly. Canisters of activated carbon placed in the chimney stacks to reduce odours must be regularly replaced. All of this stands in stark contrast to premises where a simply operated device is sufficient to prevent the emission of something which is offensive.

82. This is not an industry which might produce offensive conditions on one or two isolated occasions over a period of several years. Instead, it will subject residents in the vicinity to offensive odours on several occasions in each year and will continue to do so in ensuing years. Industrial neighbours will be frequently affected on at least twelve occasions in each year. In addition, operational failure or defective management would increase the number of such incidents. If the odour control processes do not operate efficiently or management is defective and the processes are conducted in a way which causes offensive emissions, the incidence of offensive emissions will be higher.

83. For all of these reasons, the development must be characterised as a special industry even if it complies with the conditions imposed by the Commission. The conclusion accords with common sense and common experience. The evidence shows that technological advances in the treatment of industrial wastes have not yet reached the stage where it can be said that they will not give rise to offensive emissions.

84. The fact that the premises will be monitored by the Environment Protection Authority and can be closed if there is a failure to comply with conditions does not render the proposal something other than a special industry. Instead, the requirement that the premises will be monitored reinforces the conclusion that the development is a special industry.

85. The Development Plan depicts relatively few areas for general industry and even fewer areas for special industry. It is obviously appropriate that a special industry should be located in a zone set aside for that purpose not only because it will accord with the intentions of the Plan but also will prevent the scarce amount of land which is available for general industry being utilised for an inappropriate purpose: see Remove All Rubbish Pty Ltd v City of Salisbury (supra) at 34.

86. Mr Hayes QC, who appeared for Collex, submitted that the regulatory system prescribed by the Development Act and the Development Regulations left a limited scope for this Court to examine the issue whether a proposed development is for a special industry. He said at the end of the day the decision turned on minute issues of detail so that, if the question whether the proposal for a special industry is finely balanced, the Court should not in the exercise of its discretion interfere with the Commission's decision simply because it takes a different view. The Court should only interfere, he said, if it was manifest that this was not a special industry. This submission must fail, first because, for the reasons already expressed, the classification of the proposal ought to have been made by the Commission before it imposed any conditions. It is manifest on the evidence that, absent those conditions, the proposed development would have caused odours which were offensive to neighbours so that the proposal was for a special industry. Secondly, even if the proposal was to be considered in conjunction with the conditions imposed by the Commission, the evidence clearly demonstrates that it will cause offensive odours on several occasions in each year. Thirdly, if the Commission has erred and its decision is promptly challenged, the error should be corrected particularly where, as here, there is a jurisdictional error which adversely affects the interests of others.

The Assigned Category 87. The Council has also challenged the category assigned to the proposed development pursuant to s38 of the Development Act. As already mentioned, s38 prescribes the extent to which public notice of a proposal must be given, rights of representation concerning a proposed development, and the extent to which, if at all, those who make representations may appeal against a grant of development consent. It will be apparent that the assigning of a particular category can be of significance both to the proponent of any development and to those who might be affected by it. This development was assigned to Category 2. Notice of the application had, therefore, to be given to an owner or occupier of any adjoining land. There was no right of an appeal from the Commission's decision to grant consent.

88. The assignment of categories is regulated by s38 and by Reg 32 and Schedules 9 and 22 of the Development Regulations. By classifying the proposal as a general industry, the Commission effectively assigned the proposal to Category 2: see Reg 32(3)(b). Had it been classified as special industry, it would have been assigned a Category 3: see s38(2). It is a curious feature of the Development Regulations that a development such as this which, for obvious reasons, is classified as an activity of major environmental significance by Schedule 22 of the Development Regulations might be assigned to Category 2 instead of Category 3 because it is classified as a general industry. Even with all of the conditions imposed by the Commission, this development had the potential to cause offensive conditions. It is proposed to locate it close to a residential area. If any regard is to be had to the ordinary interests of fairness, it is reasonable to give residents in the neighbourhood not only an opportunity to make representations upon a proposal of this kind but also to test a decision granting consent on appeal. It would, therefore, be desirable to amend the Development Regulations in this respect. For present purposes it is sufficient to note that as the proposal in a special industry it ought to have been assigned to Category 3.

89. For all of these reasons, the proposed development is a special industry. The Commission has not, therefore, followed the correct procedures and the consent granted to Collex is invalid. There will be orders and declarations as follows: 1. A declaration that the provisional Development Plan consent granted by the Commission on 9 December 1995 in relation to Development Application Number 060/283/95 is ultra vires and void.

2. An injunction restraining the second defendant, its servants and agents from acting pursuant to or in reliance upon the said provisional development plan consent.