The Next Generation Pty Ltd v Independent Planning Commission

[2022] NSWLEC 16

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Next Generation Pty Ltd v Independent Planning Commission and Ors [2022] NSWLEC 16

Hearing dates:

17 August and 1 September 2021

Date of orders:

02 March 2022

Decision date:

02 March 2022

Jurisdiction:

Class 1

Before:

Robson J

Decision:

See orders at [157]

Catchwords:

ENVIRONMENT AND PLANNING — Development application — State significant development — development application refused — application to amend development application — whether consent authority’s function to agree to an amendment exhausted — whether sufficient particulars to indicate nature of changed development — particulars sufficient — leave to amend allowed

COSTS — Class 1 proceedings — whether respondents entitled to costs thrown away as a result of the amendment application — whether fair and reasonable to award costs in favour of parties other than consent authority — second and third respondents not awarded costs

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 1.5, 4.16, 4.5, 8.7, 8.12, 8.14, 8.15

Environmental Planning and Assessment Regulation 2000 (NSW), cll 55, 55AA

Environmental Planning and Assessment Regulation 2021 (NSW), Sch 6, cll 37, 38

Interpretation Act 1987 (NSW), s 33

Land and Environment Court Act 1979 (NSW), ss 34, 39

Land and Environment Court Rules 2007 (NSW), r 3.7

Protection of the Environment Operations Act 1997 (NSW)

State Environmental Planning Policy (State and Regional Development) 2011 (NSW), cl 8A

Waste Avoidance and Resource Recovery Act 2001 (NSW)

Cases Cited:

Australian Consulting Architects Pty Ltd v Liverpool City Council [2017] NSWLEC 129; (2017) 226 LGERA 406

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45

Dunford v Gosford City Council (No 3) [2015] NSWLEC 96

Grant v Kiama Municipal Council [2006] NSWLEC 70

Janlz Constructions Pty Ltd v Randwick Municipal Council [1976] 2 NSWLR 427

Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28; (2019) 236 LGERA 35

Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 4) [2017] NSWLEC 116

Mekol Pty Ltd v Baulkham Hills Shire Council [1971] 2 NSWLR 54

Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90

Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402

Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292

Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740; (1973) 28 LGRA 218

Somerville v Dalby (1990) 69 LGRA 422

The Next Generation Pty Limited v Independent Planning Commission [2020] NSWLEC 13

Verde Terra Pty Ltd v Environment Protection Authority (No 2) [2018] NSWLEC 160

Huajun Investments Pty Ltd v City of Canada Bay Council [2020] NSWLEC 108

Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224

Category:

Procedural rulings

Parties:

The Next Generation Pty Ltd (Applicant)
Independent Planning Commission (First Respondent)
Blacktown City Council (Second Respondent)
Jacfin Pty Ltd (Third Respondent)

Representation:

Counsel:
I Hemmings SC with M Seymour (Applicant)
J McKelvey (First Respondent)
Dr S Pritchard SC with J Taylor (Second Respondent)
P Tomasetti SC (Third Respondent)

Solicitors:
Mills Oakley (Applicant)
Department of Planning, Industry and Environment (First Respondent)
Clayton Utz (Second Respondent)
HWL Ebsworth Lawyers (Third Respondent)

File Number(s):

2019/00013009

Publication restriction:

Nil

Judgment

1. By notice of motion filed 16 July 2021, The Next Generation Pty Ltd (‘applicant’) seeks leave to rely on amended material in Class 1 appeal proceedings commenced by the applicant on 14 January 2019 against the refusal by the first respondent, the Independent Planning Commission (‘IPC’) on 19 July 2018 of State Significant Development Application SSD 6236 (‘development application’) for the construction and operation of an energy from waste facility at Honeycomb Drive, Eastern Creek (‘proposal’).

2. The applicant contends that the material amending the development application (‘amended material’) responds to matters raised by the respondents in their respective statements of facts and contentions (‘SOFACs’) and, more specifically, removes floc waste as a feedstock for the facility. The amended material comprises supporting documentation, particularly experts’ opinions that the removal of floc waste does not impact existing conclusions and assessments concerning the facility.

3. While the IPC consents to the Court granting leave which effectively amends the development application, the second respondent, Blacktown City Council (‘Council’), and the third respondent, Jacfin Pty Ltd (‘Jacfin’) oppose the grant of leave.

4. Two related issues arise in the circumstance where the IPC does not oppose the order sought in the motion and maintains that, because it has refused the development application, it is for the Court to provide the “agreement of the consent authority” to the proposed amendment as provided for in cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) (‘EPA Regulations’). The first is effectively a threshold issue raised by the applicant relating to whether the role of the IPC as consent authority for the purposes of cl 55 is enduring given it refused the development application on 19 July 2018. The second is the substantive issue raised by Council and Jacfin that the amended material does not include sufficient particulars to indicate the nature of the changed development as required by cl 55(2) such that the Court should not allow the amendment. Council and Jacfin also raise an ancillary issue involving the consequence of the applicant’s delay in seeking the amendment, which they contend would lead the Court to decline to exercise its discretion to allow the amendment.

5. The hearing of the motion proceeded before me over two days. Mr I Hemmings of senior counsel appeared with Mr M Seymour of counsel for the applicant. Ms J McKelvey of counsel appeared for the IPC. Dr S Pritchard of senior counsel appeared with Ms J Taylor of counsel for Council. Mr P Tomasetti of senior counsel appeared for Jacfin. The Court received extensive evidence as well as detailed written and oral submissions.

6. For the reasons that follow, I consider that leave should be granted to the applicant to amend the development application.

Background

7. The background facts are relatively uncontentious. Although more apposite to the second issue noted above, the following narrative provides necessary context to understand the nature of the proposal and, more particularly, the detailed submissions of Council and Jacfin.

8. Plans for the proposal were first pursued by the applicant by letter dated 31 October 2013 to the (then) NSW Department of Planning and Infrastructure (‘DPI’) requesting environmental assessment requirements for the proposal. In December 2013, the Director General of DPI issued its environmental assessment requirements pursuant to the former s 78A(8A) (now s 4.12(8)) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’). The “Environmental Assessment Requirements” are now issued by the Secretary of the NSW Department of Planning, Industry and Environment (as it was known at the time of the hearing of this motion) (‘Department’) pursuant to Sch 2 of the EPA Regulations and (now) s 4.12(8) of the EPA Act, and are commonly referred to as ‘SEARs’. Hereafter, I adopt the acronym, SEARs, and use ‘Department’ as a reference to that government body in all its monikers.

9. On 28 April 2015, the applicant lodged the development application and an “Environmental Impact Statement” dated April 2015 (‘EIS’) in accordance with the SEARs for the construction and operation of a waste or resource management facility, and associated building, infrastructure and plant, to generate 76 megawatts of electricity from the processing of 1,105,000 tonnes of waste per annum at new lots created from the subdivision and reconfiguration of part Lot 1, part Lot 2 and Lot 3 in DP 1145808 at Honeycomb Drive, Eastern Creek (‘site’). The development application described the proposal as an energy from waste (‘EFW’ or ‘EfW’) facility and was proposed to be implemented over two phases.

10. There is some discrepancy in how the specific lot(s) of, and area covered by, the site is described within the parties’ various SOFACs, perhaps arising from the proposed subdivision and reconfiguration of the site. Nevertheless, it is sufficient for the present purposes to understand that the proposal will be located within the site.

11. The site is located within an industrial estate in the Blacktown local government area which is zoned IN1 General Industrial under State Environmental Planning Policy (Western Sydney Employment Area) 2009. The site is west of the M4 Motorway and Wallgrove Road, where the M4 Motorway intersects the M7 Motorway, and adjacent to related waste processing facilities (outlined below). The residential areas of Minchinbury and Erskine Park are approximately 1km north and west from the site respectively. The site is undeveloped, containing primarily couch grass, with small areas of critically endangered Cumberland Plain Woodland and endangered River-Flat Eucalypt Forest in the south-west corner of the site.

12. The site adjoins construction and demolition (‘C&D’) and commercial and industrial (‘C&I’) recycling processing facilities known as Genesis Xero Waste Recycling Centre; Genesis Materials and Processing Centre (‘MPC1’) (together, the ‘Genesis facilities’); and a landfill facility operated by Bingo Industries (‘Bingo facility’), from which the facility intends to source waste through the construction of a large conveyor, with waste otherwise delivered via truck. Waste is also to be sourced from a proposed C&I waste processing facility at the Genesis facilities referred to as “MPC2”.

13. Adjacent facilities, including the Genesis facilities, are extensive, with a total site acceptance rate of up to two million tonnes of material (including segregated hard-fill, segregated timber green waste, co-mingled C&D waste and C&I waste, and residual material for landfill) per annum. The Genesis facilities and the Bingo facility include the following operations: a resource recovery facility; quarry rehabilitation via landfilling of up to 700,000 tonnes of non-putrescible waste per annum; and stockpiling of up to 50 tonnes of tyres and up to 20,000 tonnes of green waste at any one time.

14. The site of the proposal in relation to its surroundings is helpfully portrayed by the aerial photographs provided within the IPC’s SOFAC filed 10 April 2019, extracted as follows:

Figure 1: Site context

Figure 2: Surrounding uses

15. The development application was publicly exhibited from 27 May to 27 July 2015 on the Department’s website, at the Department’s Information Centre and at Council, with 44 submissions received (10 from public authorities and 34 from local businesses, special interest groups, and the general public).

16. In November 2016 and December 2017, the development application was amended, and the scope of the proposal sought to be undertaken changed. This included an amendment to seek consent only for “Phase 1” of the proposal for the treatment of 552,500 tonnes per annum of residual waste fuels, being one half of the originally proposed capacity. As such, at the hearing of this motion, the development application was for the construction and operation of “Phase 1” of the facility being the construction of: a tipping hall; waste bunker; combustion lines 1 and 2 (comprising of two independent boilers, twin flue gas treatment systems, stacks, as well as one turbine, and one air cooled condenser deck); all other auxiliary equipment; substation; ash collection bay; workshop; control room; offices and amenities; and laydown areas. References in this judgment to the development application and to the proposal refer to the development application and to the proposal as amended by those applications.

17. The development application (as amended) was publicly exhibited from 9 December 2016 to 1 March 2017 in the same way as earlier exhibited in 2015 (with the addition of Penrith Local Council), with 990 submissions received (10 from public authorities and 980 from local businesses, special interest groups, and the general public).

18. On 13 September 2017, MRA Consulting Group prepared a report titled “TNG Feedstock Review” (‘2017 MRA Report’) in accordance with the “resource recovery criteria” (outlined in the Environment Protection Authority’s “NSW Energy from Waste Policy Statement” (January 2015) (‘EPA EfW Policy’)), concluding that the facility “can target at least 552,500 tonnes per annum of waste eligible for energy recovery via current and planned facilities” in NSW’s Metropolitan Levy Area, consistent with the EPA EfW Policy.

19. A detailed design brief prepared by Ramboll Environ, titled “The Next Generation NSW Pty Ltd Project Definition Brief”, dated 27 September 2017 (‘Ramboll Brief’), finalised the proposal’s key design parameters. The Ramboll Brief, which formed the basis for later design and technical documents, includes consideration of available and appropriate waste streams and the source and mix of fuel for the facility’s technology. The technology adopted by the facility consists of a moving grate incinerator fed by two combustion lines and associated boilers, utilising an air-cooled condenser, flue gas treatment systems, and associated residue and reagent storage silos and tanks; emissions stack and monitoring systems; and steam turbines powered by two diesel generators within a turbine hall.

20. The incinerator technology underpinning the facility was designed by a specialist Swiss EfW company, Hitachi Zosen INOVA (‘HZI’). Some understanding of HZI’s role in the proposal is appropriate in order to consider the applicant’s application to delete floc waste as a feedstock for the facility.

21. On 7 June 2021, HZI provided a report titled “Suitable Fuel Types for TNG Eastern Creek EfW Facility” to the applicant’s solicitors (part of the amended material, being annexure “B” to the affidavit of Benjamin Michael Salon sworn 16 July 2021) (‘HZI Report’) attesting to first, the facility’s suitability for the (now) proposed fuel types; second, that the Ramboll Brief remained valid; and third, suggesting that the HZI designed Ferrybridge Multifuel FM1 facility in West Yorkshire, United Kingdom (‘Ferrybridge’), was a suitable proof of technology (‘reference facility’) (a requirement for the purposes of assessment pursuant to the EPA EfW Policy) as a fully operational plant using the same technologies and treating similar waste streams. Ferrybridge is an 80-megawatt electrical EfW facility utilising moving grate incineration technology and two combustion lines with a capacity of 725,000 tonnes of waste (comprising derived fuel, waste wood, and C&I waste) per annum.

22. Relevantly, the EPA EfW Policy (superseded as of June 2021) recognised the benefits of thermal processing residual waste which cannot be reused, reprocessed or recycled, in line with the aims and objectives of the Protection of the Environment Operations Act 1997 (NSW) and the Waste Avoidance and Resource Recovery Act 2001 (NSW). The policy set out the “framework and overarching criteria” applicable to proposed EfW facilities including with respect to design and control, emissions, monitoring, health, and efficiency.

23. As the applicant is seeking to amend the development application by the deletion of one component of feedstock, some further understanding of the details of the proposal is appropriate. As mentioned, the facility will treat a maximum volume of 552,500 tonnes of residual waste per annum and, subject to the leave sought in this motion, is presently designed to accommodate the following composition of fuels:

1. 19.90% of chute residual waste (‘CRW’) – residual waste from waste streams which have been processed to extract recyclable or reusable waste;

2. 12.06% of material recovery facility waste (‘MRF’) – material from qualified resource recovery facilities;

3. 14.73% of floc waste (‘floc waste’) – residue from shredding and crushing items such as motor vehicles and white goods;

4. 40.93% of mixed C&I waste – solid waste generated by businesses, industries (including shopping centres, restaurants, and offices) and institutions (such as schools, hospitals, and government offices), but not C&D waste or municipal solid waste; and

5. 12.37% of specified waste fraction (‘SWF’) – waste which is compliant with the EPA EfW Policy including insulation, carpet/underlay, compounds, asphalt, and inert non-hazardous building waste.

24. In April 2018, the Department provided its assessment report relating to the proposal, which concluded that the proposal was not consistent with the objects of the EPA Act, not in the public interest, and should be refused.

25. On 19 July 2018, the IPC, the relevant consent authority pursuant to s 4.5(a) of the EPA Act and cl 8A of the State Environmental Planning Policy (State and Regional Development) 2011 (NSW), refused the development application.

26. On 14 January 2019, the applicant commenced these Class 1 proceedings appealing against the refusal of the development application pursuant to s 8.7(1) of the EPA Act. Council was joined as a party on 9 September 2019 pursuant to s 8.15(2) of the EPA Act and Jacfin (the owner of land in the vicinity of the site) was joined as a party on 18 June 2020 pursuant to s 8.12(3) of the EPA Act.

27. On 18 February 2020, Moore J dismissed a motion by the applicant seeking leave to amend the development application to reduce the amount of waste to be processed to 300,000 tonnes per annum; broaden the range of fuel components; exclude floc waste and other waste types; include municipal organic waste; amend the size and location of various built structures and facilities within the site; and other variations, including changes to the method of delivery of waste from the adjoining Genesis facilities. Moore J held that the proposed amendments were “so different as to constitute a development for which a fresh development application is required”: The Next Generation Pty Limited v Independent Planning Commission [2020] NSWLEC 13 (‘earlier judgment’) at [59].

28. Each of the parties filed a SOFAC with the IPC filing its SOFAC on 10 April 2019; Council filing its SOFAC on 23 March 2020; Jacfin filing its SOFAC on 7 August 2020; and the applicant filing its SOFAC (in reply) on 1 October 2020.

29. From 19 to 21 May 2021, the parties attended a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (‘LEC Act’) before the Senior Commissioner of the Court. The conference was terminated as the parties could not reach an agreement that would resolve the proceedings.

30. On 16 July 2021, the applicant filed the present motion seeking the following orders:

“1   The applicant is granted leave to rely on the material listed at Schedule ‘1’ to this Notice of Motion amending State Significant Development Application SSD 6236 as reflected in the Amendment Comparison Table at Schedule ‘2’ to this Notice of Motion.

2   Any other order the Court sees fit.”

31. As noted at [2] above, the applicant now seeks leave to rely on amended material which it contends responds to matters raised by the respondents in their respective SOFACs and, more specifically, removes floc waste as a feedstock for the facility.

32. The amended material, as detailed in Schedule “1” to this motion, with some additional annotations, comprises:

1. “TNG Feedstock Review”, prepared by Mike Ritchie of MRA Consulting Group, version 7, dated 28 May 2021 (‘2021 MRA Report’), an update of the 2017 MRA Report;

2. Report on Suitable Fuel Types for TNG Eastern Creek EfW Facility, prepared by Dr Marc Stammbach of HZI, dated 7 June 2021 (the previously mentioned ‘HZI Report’);

1. Report on The Next Generation Energy from Waste – Amended Feedstock – Air Quality, prepared by Damon Roddis of Zephyr Environmental, dated 1 July 2021 (‘Air Quality Report’), which upheld the conclusions of the Air Quality and Greenhouse Gas Assessment Report prepared by Damon Roddis (then) of Pacific Environment, dated 20 November 2017 (‘AQGG Report’);

2. Report on The Next Generation Energy from Waste – Amended Feedstock – Greenhouse Gases, prepared by Damon Roddis of Zephyr Environmental, dated 1 July 2021 (‘Greenhouse Gas Report’), which upheld the conclusions of the AQGG Report;

3. Report on The Next Generation Energy from Waste – Amended Feedstock – Odour, prepared by Damon Roddis of Zephyr Environmental, dated 1 July 2021 (‘Odour Report’), which upheld the conclusions of the Energy from Waste Facility – Odour Assessment Report by Damon Roddis (then) of Pacific Environment, dated 8 September 2017;

4. Report on updated MRA TNG Feedstock Review and removal of floc waste with regard to Human Health Risk Assessment, prepared by AECOM, dated 13 July 2021 (‘Human Health Risk Report’), which upheld the conclusions of the Energy From Waste Facility: Human Health Risk Assessment, Honeycomb Drive, Eastern Creek, NSW Report, prepared by Lesley Limage of AECOM, dated 28 September 2017;

5. Planning Statement, prepared by Clare Brown and John Booth of URBIS, dated 16 July 2021 (‘URBIS Planning Statement’); and

6. Title, dealing and company searches: NSW Historical Dealing Search undertaken on 14 May 2021 for Lot 1 in DP 1145808; NSW Historical Dealing Search undertaken on 14 May 2021 for Lot 2 in DP 1145808; NSW Historical Dealing Search undertaken on 14 May 2021 for Lot 3 in DP 1145808; Dealing AG615110 for the mortgage of Lots 1, 2 and 3 in DP 1145808 dated 27 July 2011; Dealing AN617110 for the transfer of Lot 1 in DP 1145808 dated 1 June 2017; Dealing AM6I7120 for the transfer of Lot 2 in DP 1145808 dated 1 June 2017; Dealing AM617119 for the transfer of Lot 3 in DP 1145808 dated 1 June 2017; and ASIC Company Search of A.C.N. 114 843 453 Pty Ltd undertaken on 14 May 2021.

33. In summary, the amended material addresses the deletion of floc waste as a feedstock for the facility, with the authors mentioned above (at [32(1),(3)-(6)]) addressing reports previously provided by the applicant in the “Amended Environmental Impact Statement” dated 29 November 2016 (‘Amended EIS’) and Response to Submissions dated 14 December 2017 each stating that the amendment does not change their previous conclusions. The experts’ conclusions are summarised in the URBIS Planning Statement, with the experts concluding on the deletion of floc waste as a feedstock, as follows:

1. The deletion of floc waste will not cause detriment to the availability of suitable feedstocks for the proposal (including of calorific values suitable to HZI’s combustion requirements); the feedstock remains “like” that of Ferrybridge; MPC2 will further enhance the recovery rates of recyclables; and the feedstock remains in compliance with the EPA EfW Policy (including the draft of the June 2021 EPA EfW Policy) (2021 MRA Report);

2. Is suitable for the technology adopted because the remaining C&I and C&D fuel types have a calorific value within the allowable range of operation; and that Ferrybridge is a suitable reference facility because it is of the same design and has “like for like” waste streams as the proposal (HZI Report);

3. Will not impact the proposal’s feedstock supply, ability to demonstrate it is “like” the feedstock supplied to Ferrybridge, atmospheric dispersion modelling, or its ability to meet the EPA EfW Policy “air quality” expectations (Air Quality Report);

4. Will not materially change the assessment of greenhouse gas benefits, rather it will improve benefits as it will divert waste which would otherwise have the potential to generate methane in landfill (Greenhouse Gas Report);

5. Is not anticipated to negatively impact conclusions made in the odour assessment, particularly as the proposed waste stream is not highly odorous and because the proposal already incorporates appropriate odour mitigation safeguards (Odour Report); and

6. Will not change human health risk assessment conclusions as the reasonable assumption, and HZI’s guarantees, that regulatory limits are met regardless of whether feedstock composition remains the same (Human Health Risk Report).

34. At present, no timetable for the hearing of the Class 1 proceedings has been set by the Court.

Evidence

35. The applicant read the affidavit of Benjamin Michael Salon sworn 16 July 2021 (‘Salon affidavit’) and tendered an extract (Tab 83) from the applicant’s bundle of documents filed on 4 May 2021 in the appeal proceedings (‘Bundle’) titled “Addendum Letter in Response to Submission”.

36. Mr Salon summarised the proposed amendment and detailed why the applicant is seeking to rely on the amended material relating to the removal of floc waste as a feedstock for the facility. He annexed an “Amendment Comparison Table” (which also comprises Schedule “2” to the present motion) which is extracted from the URBIS Planning Statement (referred to above at [32(7)]) which compares the “key attributes” of the proposal presently before the Court with the “key attributes” of the proposed amended development. The table is annexure “A” to this judgment.

37. The Amendment Comparison Table addresses 13 ‘items’ of the proposal being land description; subdivision; technological design capacity; technology engineering; fuel feedstock; waste outputs; waste output – reuse; facility processing volumes; greenhouse gas emissions; in-stack emissions; flue gas treatment; odour; and proof of performance framework. The applicant recorded “no change” against all items except “fuel feed stock”. The change disclosed on that row item is extracted as follows:

Project Item	EFW proposal Considered by IPC	Proposed Amended Application	Change
Fuel Feed Stock	• Construction and Demolition Waste • FLOC waste • Inert Commercial and Industrial Waste	• Construction and Demolition Waste • Inert Commercial and Industrial Waste	Floc excluded from feed stock to the EfW Facility

38. The Salon affidavit annexed each of the documents referred to at [32] above and deposed that the amendments (primarily in relation to the deletion of floc waste as a feedstock) respond to matters raised by each of the respondents in their respective SOFACs and address the effect of the removal of floc waste as a feedstock, a matter which was foreshadowed in the applicant’s SOFAC (in reply) filed on 1 October 2020. The affidavit included the following table which Mr Salon deposed summarises the specific contentions raised by each of the respondents which the applicant has sought to address by removing floc waste as a feedstock for the facility.

Statement of Facts 

and Contentions

Contentions Sought to be Addressed by the Proposed Amendment to the SSDA – Removal of FLOC Waste as a Feed Source for the EfW Facility

1^st R’s SOFAC

•   B.1 on the risk of hazardous emissions

•   B.2 on the chemical composition of FLOC waste

•   B.4 on the human health risks

•   B.5 on consistency with the objects of the EP&A Act

•   B.6 on the public interest

•   B.7 on reference facilities that use FLOC waste

2^nd R’s SOFAC

•   B.1 on waste supply

•   B.3 on ash management

•   B.4 on combustion temperature

•   B.6 on health risk assessment and methodology

•   B.7 on health impact data associated with the proposed fuel mix

•   B.8 on social impacts

•   B.10 on suitability of the site

3^rd R’s SOFAC

•   B.2 on owner’s consent

•   B.5 on pollutants

•   B.6 on human health risks

•   B.7 on assessment of risk to human health

•   B.8 on compliance with the NSW EfW Policy

•   B.9 on use of FLOC waste as feedstock

•   B.10 on use of international best practice techniques

•   B.11 on eligible feedstock

•   B.17 on odour impacts

39. Council tendered four documents from the Bundle filed in these Class 1 appeal proceedings being: (Tab 96) “State Significant Development Application Decision: Refusal of Development Application”, dated 19 July 2018; (Tab 4) “Amended Environmental Impact Statement”, dated 29 November 2016; (Tab 49) “Project Definition Brief”, dated 27 September 2017; and (Tab 74) “Air Quality Assessment”, dated 20 November 2017.

40. Jacfin tendered an email from the Department to various parties dated 16 August 2021; (Tab 67) “Waste Management Report”, dated 13 September 2017; and a separate bundle of documents, styled “Third Respondent’s Bundle of Documents”, containing: a copy of an email from the IPC to the parties dated 12 August 2021; a copy of the SEARs issued in December 2013 (relating to the proposal); further SEARs dated 12 August 2020 (relating to a potential new proposal for the site); “Modification of Development Consent” application, dated 3 March 2021 (relating to the MPC2 development); “State Significant Development Guidelines”, dated July 2021 (‘SSD Guidelines’); “Appendix D” to the SSD Guidelines styled “Preparing an Amendment Report”; a copy of a letter from Bingo Industries to the solicitors for the applicant dated 13 August 2019; a copy of a letter from Bingo Industries to the applicant dated 16 October 2019; a copy of a letter from Sydney Waste Services to the applicant dated 18 October 2019; and “Amended Environmental Impact Statement” dated 16 January 2020.

Relevant legislative framework

41. The EPA Regulations provide for the amendment of development applications prior to determination. On 16 July 2021, when this motion was filed, cl 55 of the EPA Regulations provided as follows:

55   What is the procedure for amending a development application?

(1)   A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined, by lodging the amendment or variation on the NSW planning portal.

(2)   If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include particulars sufficient to indicate the nature of the changed development.

(3)   If the development application is for—

(a)   development for which concurrence is required, as referred to in section 4.13 of the Act, or

(b)   integrated development,

the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.

42. As anticipated in the parties’ submissions below, on 1 October 2021 amendments to the EPA Regulations came into force, excluding State significant development from the application of cl 55 and introducing a new cl 55AA which specifically provided for the amendment of State significant development applications. The relevance of these amendments is limited because the EIS and Amended EIS were lodged on 28 April 2015 and 29 November 2016 respectively and are therefore captured by the savings provision within cl 299 of the EPA Regulations which provides that the 1 October 2021 amendments do not apply to an EIS received by the Planning Secretary on or before 31 March 2022. Despite this, the amendments provided as follows:

55   Amendment or variation of development application except for State significant development

…

(4)   This clause does not apply to a development application for State significant development.

55AA   Amendment or variation of development applications for State significant development

(1)   A development application for State significant development may, with the agreement of the consent authority, be amended or varied by the applicant at any time before the application is determined.

(2)   An application to amend or vary a development application for State significant development must—

(a)   be in the form approved by the Planning Secretary and made available on the NSW planning portal, and

(b)   include particulars of the nature of the proposed amendments or variations, and

(c)   be prepared having regard to the State Significant Development Guidelines, and

(d)   be lodged on the NSW planning portal.

43. I further note that as of 1 March 2022 the EPA Regulations have been repealed and replaced by the Environmental Planning and Assessment Regulation 2021 (NSW) (‘EPA Regulations 2021’). As considered later in this judgment, I do not consider the EPA Regulations 2021 to be relevant considering this motion was filed on 16 July 2021 and heard on 17 August and 1 September 2021. I am nonetheless conscious that the new cll 37 and 38 would be the applicable provisions if not for the savings provision within Sch 6 of the EPA Regulations 2021 which provides that the EPA Regulations continue to apply to development applications made but not finally determined before 1 March 2022. Those clauses relevantly provide as follows:

37   Amendment of development application

(1)   An applicant may, at any time before a development application is determined, apply to the consent authority for an amendment to the development application.

(2)   The application must be made on the NSW planning portal.

(3)   If the application relates to State significant development—

(a)   the application must be in the approved form, and

(b)   the applicant must consider the State Significant Development Guidelines in preparing the application.

…

(6)   If the amendment will result in a change to the development, the application must contain details of the change, including the name, number and date of any plans that have changed, to enable the consent authority to compare the development with the development originally proposed.

(7)   A requirement to use the NSW planning portal under this section does not apply if the development application is subject to proceedings in the Court.

38   Determination of application for amendment of development application

(1)   The consent authority may, through the NSW planning portal, approve or reject an application for an amendment to a development application submitted under section 37.

(2)   If the consent authority approves the amendment, the development application is taken to be lodged on the day on which the applicant applied for the amendment if the consent authority—

(a)   considers the amendment not to be minor, and

(b)   notifies the applicant, by the NSW planning portal, that the later day applies.

…

(4)   A requirement to use the NSW planning portal under this section does not apply if the development application is subject to proceedings in the Court.

44. In passing, as further considered later in this judgment, it would appear that some of the concerns and issues considered in this judgment concerning cl 55 of the EPA Regulations may not be concerns in future applications to amend or vary development applications in relation to state significant development.

45. As noted above, in the present circumstances where the IPC has refused the development application, there is contention relating to the identity and role of the “consent authority” for the purposes of cl 55 of the EPA Regulations. At this point it is sufficient to record the relevant powers of the Court pursuant to s 39 of the LEC Act and s 8.14 of the EPA Act (which for convenience I refer to interchangeably), as follows:

LEC Act

39   Powers of Court on appeals

(1)   In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)   In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

…

(5)   The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

…

(7)   The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

…

EPA Act

8.14   Powers of Court on appeals (cf previous s 39(6A) Land and Environment Court Act)

(1)   In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(2)   The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly.

…

Issues

46. In circumstances where the IPC (now) does not oppose the order sought by the applicant in this motion and maintains that it is appropriate for the Court to grant the relief, this motion raises two key controversies between the parties being, first, the threshold issue of the role of the consent authority for the purposes of cl 55 of the EPA Regulations; and second, whether the particulars accompanying the amendment application are sufficient to indicate the nature of the changed proposal (‘issue of particulars’).

Summary of positions

Applicant’s position

Role of the consent authority

47. The applicant became aware that the IPC’s position was that it “consented” to the Court making the orders sought by the applicant shortly before the hearing of this motion. The applicant contends that in the circumstances where the Court has not decided the Class 1 appeal such that the development application is not yet finally determined, the IPC maintains its function as ‘consent authority’ in respect to providing “agreement” to the amendment under cl 55 of the EPA Regulations, and the Court’s power to agree to the amendment pursuant to s 39 of the LEC Act would only be sought where the IPC itself has not agreed. The applicant submits that it would effect “textual violence” to treat the Court as the consent authority and deprive the IPC of the function to agree to the amendment where the development application remains undetermined because the express terms of cl 55 refer to the consent authority itself, not the Court.

48. The applicant submits that this position is supported by analogy with the administrative functions (of consultation and notification) relating to an application to modify a development consent pursuant to s 4.55 of the EPA Act which are performed (and continue to be performed) by the relevant authority and not by the Court when the Court is otherwise enabled to modify a development consent. By comparison, the language of cl 55 of the EPA Regulations indicates that the consent authority “is capable of dealing with both the making of the decision and the carrying out of any administrative functions…for example…the uploading to the portal”.

49. Moreover, the applicant submits that the term “appeal” is unhelpful where it implies that there is a final determination being ‘appealed’, for which the Court would take on different functions to the relevant authority, because, as considered in Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28; (2019) 236 LGERA 35 (‘Bunnings’) at [149], the Court determines a development application in its original, rather than appellate, jurisdiction. Therefore, notwithstanding the IPC’s determination of refusal, the development application is nevertheless undetermined until it is resolved by this Court on appeal. To approach the determination in cl 55 as that of the consent authority would require additional words, “determined by the consent authority”, to be read into the provision. As such, the IPC retains the discretion as consent authority to determine the machinery questions. On that basis, it is only when the consent authority does not agree to an amendment that the Court adopts the functions and discretions of the consent authority in accordance with s 39(2) of the LEC Act. The Court would then determine whether it would agree to the amendments.

47. Further, cl 55 does not express the power to agree to an amendment as being exclusive to the Court. This is clear from other provisions under the EPA Regulations, including those considered in Bunnings at [158]-[159], which support that there are functions to be performed by consent authorities that could not be expected of the Court where the development application is on appeal. As such, there is no impediment to the continuing effect of cl 55 to authorise the IPC as consent authority to give agreement for the purposes of cl 55(1).

48. The applicant submits, in these circumstances where the Court is not the consent authority and does not need to form a state of agreement because the IPC does “agree” to the amendments, the applicant submits that all that is required is the filing of a notice of motion to deal with procedural matters including the amendment of the SOFAC and for the preparation of evidence. As such, the Court does not now need to determine this motion. Furthermore, the IPC is the body able to make an amendment to a development application by lodging the amendment on the NSW Planning Portal (‘planning portal’). For that reason, the Court only needs to direct the IPC to lodge those materials as a procedural step to implement the amendment. Therefore, if the Court accepts the applicant’s primary position, it need not further consider the various concerns of Council or Jacfin and would make orders and give directions as suggested in the Department’s correspondence of 16 August 2021.

Whether particulars are sufficient

52. In relation to the second issue, which arises if the Court does not accept its primary position, the applicant submits that cl 55(1) of the EPA Regulations focuses on an amendment or variation to a development application, whereas cl 55(2) focuses on whether the amendment or variation will result in a change to a proposed development. As such, cl 55(2) requires any changes to be particularised and, in the present circumstance, the only change to the proposal is that floc waste is no longer relied upon as a feedstock for the facility. It will not be replaced by new fuels such that the existing mix of waste fuels remains.

53. The applicant submits that the amended material does not change the description or the purpose of the proposal and does not lead to any change in the built form of the facility or the component parts of the production of energy from waste. While waste streams will vary over the life of the proposed facility, for the purposes of the assessment of the proposal, potential fuel streams are identified. As the inclusion of floc waste caused concerns to the respondents, the applicant proposes to remove floc waste as a feedstock for the facility. As such, Council and Jacfin have misunderstood the amendments in circumstances where there are no changes to the built form, processes, machinery facilities, scale, conveyor waste delivery, volume of waste to be processed, traffic, or any component part of the process because the only change is the removal of floc waste – one part of the feedstock.

54. The evidence indicates that the removal of floc waste results in a fuel mix from fuel sources that is capable of being utilised in the technology proposed and remains suitable for assessment under the EPA EfW Policy. The removal of floc waste will increase the certainty by which the policy may be applied to the proposal, and is supported by the applicant’s air quality and human health consultants on the basis that modelling parameters or outcomes for assessment ought not be changed. As such, the amendment has the potential to address up to six contentions of uncertainty raised by the respondents and address or substantially narrow areas of dispute in up to 18 further contentions regarding modelling.

55. The applicant submits that the power to amend is a beneficial and facultative power that should be exercised because the amendment produces better outcomes in terms of a just, quick, and cheap determination of the issues in dispute and the amendment can be distinguished from the decision of Moore J in the earlier judgment, since this dispute concerns a minor single amendment compared to the substantial changes that were refused in that instance.

56. The applicant responds to the discrete concerns of Council and Jacfin as follows. In relation to Jacfin’s concern regarding delivery of fuel to the facility by truck (and potential change in truck movements), this is misplaced as there is no change in traffic because the change in relation to floc waste as a feedstock for the facility does not alter or change the proposed development or the assessment of traffic as delivery of fuel remains to be a combination of truck and conveyor.

57. In relation to Council’s concern regarding an additional sorting process not being particularised, there is no additional sorting proposed. MPC1 and the proposed MPC2 are sophisticated facilities with advanced screening, sorting and processing technology and, in any event, sorting is undertaken off site.

58. In relation to concerns regarding a lack of particulars about whether fuel from different waste sources is suitable for the facility’s plant design to ensure emissions or outputs are compliant with relevant limits, the adopted HZI technology is designed to accommodate wastes of various compositions. The HZI Report confirms that all fuel types are suitable on their own, or in various compositions, and do not change the facility, its processes or outputs. While the Court at the hearing of this Class 1 appeal will need to be satisfied that fuel can meet the calorific content (a measure of the amount of heat released from a fuel when combusted) required by the proposal, Ferrybridge and 700 worldwide HZI designed EfW facilities prove that HZI’s technology can handle fuels across a broad range of calorific values.

59. Although Council and Jacfin submit that further particulars are needed regarding the percentage of fuel mixtures, saying that the removal and replacement of floc waste is a change to the proposal, as the HZI Report analyses, the waste stream is always changing and so the fact that at any one time it has no waste from one stream, or that it may be composed of only one type of fuel waste, is irrelevant as the system operates in a manner that anticipates the absence of floc waste, as at any point under the previous proposal floc waste could be absent at any time. As such, the “filling of the gap” (left by the removal of floc waste) causes no change to operations. Further, Council’s submission that this filling of the void opens up a discretion to reject the amendment application, incorrectly assumes that C&D and C&I have not already been part of the proposal when, in fact, the proposal was always equipped for C&D, C&I and floc waste as feedstocks for the facility. Contrary to Council and Jacfin’s submissions, the fact that floc waste is removed, while C&D and C&I remain, does not change the way in which the waste is treated, it remains thermal treatment, the volume does not change, and the technology does not change.

60. There has been no “changed development” because the removal of floc waste as a feedstock for the facility does not change any of the combustion process, flue treatment, energy production, materials used in filling the void, built form, or equipment utilised. As such, cl 55(2) of the EPA Regulations does not apply and, as the IPC accepts, these are matters for evidence and merit assessment. As it is accepted that the waste treated varies day in and day out, there is therefore no change to particularise.

61. As the authors of the primary expert reports have each expressed the view that the removal of floc waste does not change their conclusions – it is open for the IPC (and others), at final hearing, to accept, test or otherwise find against those conclusions.

62. In relation to concerns expressed regarding security of fuel waste supply, there are many waste sources and fuel mixes which the facility can draw from in the market within NSW’s Metropolitan Levy Area and which are eligible under the EPA EfW Policy, as supported by the 2021 MRA Report.

63. In relation to Jacfin’s concern regarding “staleness” of the SEARs, this is irrelevant because SEARs would be dated in their application to both the present development application and amended development application if allowed, and that aspect of the administrative preparation and assessment of the development application has passed with the IPC’s refusal.

64. In response to the submissions of Council and Jacfin (summarised later in this judgment), the applicant submits:

1. In relation to the general public’s ability to comprehend the nature and effect of the amendment proposed, these submissions should be rejected because: first, there is no requirement for SOFACs to be uploaded to the planning portal; and second, the narrow ambit of further information now provided (in the amended material) repels any inference that it was necessary to either remove or amend all information previously uploaded to the planning portal.

2. In relation to why the applicant marshals the title, dealing and company search documents, these attempt to address Jacfin’s contention regarding owners’ consent for adjoining land and facilities.

3. In relation to concerns regarding source of fuel, this concern is irrelevant to the appreciation of the proposal as the source and the nature of fuels will vary over the life of the project and, as such, Council and Jacfin confuse a change to an “input” to the proposal for the proposal itself in contending there is a defect in the amendment of the development application, where the applicant has not provided information about the sorting processes of various suppliers.

4. In relation to sorting, there is no change in respect of adding any activity, transaction, or process of sorting. Contracts with offsite suppliers will guarantee supply and quality of fuel waste supply.

5. In relation to the respondents’ position that the amendment does not satisfy their contentions, there is no reason to doubt Mr Salon’s evidence that the reason for making the change and amending the material is an attempt to address matters raised in the respondents’ SOFACs.

6. In relation to delay, there was no undue delay and therefore no discretionary ground to refuse the amendment of the development application. The result of COVID-19 lockdowns was one factor that caused delay and, in any event, Bunnings is an example of how late amendments can occur.

IPC’s position

65. The IPC consents to the applicant being granted leave to rely on the amended material and accepts that the amendments concern the removal of floc waste as a part of the feedstock for the facility and that there are no changes to the built form. However, in variance to the applicant, the IPC submits that IPC’s consent to the orders sought in this motion is a matter for the Court to take into account when determining this motion and is not the equivalent of an “agreement” of the consent authority in cl 55(1) of the EPA Regulations.

66. In relation to the first issue, the IPC submits that, while the commentary in Bunnings raises a definite distinction between the Court acting as consent authority with its functions, and being the consent authority, and accepting that the IPC remains a consent authority, the words in cl 55(1), “at any time before application is determined”, have work to do. The IPC maintains that despite its agreement to the amendment of the development application and the orders sought by the applicant in the present matter, where it has determined the development application by refusal, its functions and role in the appeal in relation to any amendment to the development application itself have been exhausted, meaning it cannot now agree, or perform any function related, to the amendment. Further, the comments (of Preston CJ of LEC) in Bunnings at [149] do not support the applicant’s submission that the application “becomes undetermined” when the Court is exercising administrative rather than appellate functions – the Court is redetermining the development application.

67. The IPC submits that while the Court is hearing the appeal de novo, the Court is not the consent authority and on the question of where the IPC’s role as consent authority ends and the Court’s begins (by exercising the consent authority’s functions) in an appeal, the Court should conclude that, in circumstances where the consent authority has refused the development application, the Court would be vested with the authority to agree pursuant to cl 55(1) of the EPA Regulations. The IPC differentiates the present circumstance from Preston J’s comments in Bunnings, stating that Bunnings concerned a matter where it was permitted for the Court to agree to an amendment because, on the facts in that matter, there had been no final determination in the Commissioner’s first judgment while in the present matter, the IPC has exercised its determining authority under the EPA Act and could not now exercise its function to agree to the amendment of the development application.

68. The IPC has formed the view that the particulars provided by the applicant are sufficient to identify the nature of the change to the proposed development and any consequences thereof are a separate question for assessment at the final hearing. As such, the IPC notes that it wrote to the applicant on 12 August 2021 outlining that, if leave is granted for the amendment, the applicant will need to address each of the following matters (which will be raised by the IPC in an amended SOFAC): the (new) Environment Protection Authority’s “NSW Energy from Waste Policy Statement” (June 2021); clarity around what technology will be used to meet updated emission limits; whether Ferrybridge remains a suitable reference facility; the Department’s “NSW Waste and Sustainable Materials Strategy 2041” (June 2021); the Department’s “NSW Plastics Action Plan” (June 2021); and that other current applications for EfW facilities in Sydney have been considered when reviewing available feedstock for the facility. The IPC submits that these are issues of merit assessment rather than a result of insufficient particularisation to indicate the nature of the change to the proposed development in accordance with cl 55(2) of the EPA Regulations.

69. The correspondence from the Department to the parties dated 16 August 2021 (which became Exhibit O1), makes apparent that, if the Court allows the amendment of the development application, the IPC (or the Department on its behalf) would require 14 days to lodge the amendment on the planning portal and also intends to publicly exhibit the amendment for 62 days, including by publication in the Sydney Morning Herald and the Daily Telegraph. In that correspondence, the IPC took the position that the Court should direct the applicant to provide the amended material annexed to the Salon affidavit to the IPC.

Council’s position

70. In relation to the effect of the IPC’s agreement to the Court making the orders sought by the applicant, and thereby effecting the amendment, Council directs the Court to the decision of Moore J in Verde Terra Pty Ltd v Environment Protection Authority (No 2) [2018] NSWLEC 160 and submits, “in the case of an actual rather than deemed refusal, the IPC is functus [officio] because of the refusal of consent and that the power in cl 55 can now be exercised by the Court”. Council submits that, contrary to the applicant’s position, the Court is the sole repository of the power because the IPC is functus officio. Council embraces the IPC’s submissions that the IPC has exhausted its functions, that the Court must have control over its functions, and that the Court is now re-exercising the consent authority’s functions.

71. In relation to the issue of particulars, Council contends that the amendment application should be refused primarily because of the applicant’s inadequate particularisation of the proposed amendments and its inadequate provision of supporting documentation which has resulted in uncertainty as to the nature of the proposed amendments and impedes the ability of the respondents and their experts to respond to the proposed amendments. Further, this failure to particularise impedes the Court’s ability to understand the nature of the proposed amendments and to be satisfied that the removal of floc waste as a feedstock for the facility is, in fact, the only amendment and that no changes in process will occur as a result.

72. Council submits that, although the applicant’s Amendment Comparison Table indicates that the only change to the development application is to exclude floc waste as a feedstock for the facility, the material upon which the applicant seeks leave to rely upon actually suggests various additional changes which have not been clearly articulated (contrary to the requirement of cl 55(2) of the EPA Regulations) compared with the development application presently before the Court, including changes to feedstock, the sorting process, and fuel mix.

73. In relation to the source of feedstock, the proposed amendment suggests waste may be sourced other than from the neighbouring Genesis facilities, in contradiction to the original Ramboll Brief, and Council submits that this change may have flow on effects for issues not particularised including the mechanisms by which waste arrives at the facility, odour emissions, and traffic impacts. In particular, the applicant’s documentation suggests that different sorting processes are employed at different Genesis facilities, the Bingo facility, and MPC2, which may affect the calorific value of the waste; and further, the 2021 MRA Report refers to the future MPC2 processing facility on separate land ownership not previously referenced and makes assumptions regarding integration with MPC2, raising uncertainty of connectivity and flow-on effects if integration occurs. Further, the removal of floc waste as a feedstock for the facility does not address the overall contention that there may be problems with the security of fuel waste supply.

74. The C&D waste stream utilised by the Bingo facility (as detailed in the HZI Report) adopt two separate calorific values, meaning they have different efficiencies at recovering high calorific value materials, a result of different operating efficiencies of different technology. This reinforces Council’s concern that changes to the source of feedstock are likely to have additional impacts.

75. In relation to changes to the sorting process, additional sorting processes are not identified or their nature described in the Amendment Comparison Table or accompanying documentation, making it unclear whether the Genesis, MPC2 and Bingo facilities can effectively eliminate floc waste and whether these changes necessitate any changes to the working environment or impact health and safety considerations, and traffic plans. Further, it is unclear whether there will be any changes to the process for transporting and delivering waste material to the facility and whether the proposal has processes to deal with and separate any floc waste received into the facility. Any changes to the sorting process may have flow on effects for other assessments, such as air quality, and health risk assessments. In order to understand the changes and their potential consequences, Council submits that the Court, the respondents, and their experts need information relating to the sorting processes that these third parties would use to remove floc waste as a feedstock for the facility.

76. In relation to changes to fuel mix, Council submits that even if the deletion of floc waste as a feedstock makes little difference to the facility’s operations, the proposed amendment does not particularise whether there will be an increase in other fuel types, and this should have triggered modelling for air and health impacts. Removal of floc waste does not resolve uncertainty regarding either the health impact data used where there are other potential pollutants in feedstocks or the adequacy of health risk assessment and methodology. It cannot be said that the fuel mix is identical to Ferrybridge because the feedstock compositions of the two facilities differ as portrayed in the 2021 MRA Report.

70. Although the applicant submits that feedstock composition will vary from day-to-day, waste composition must remain within defined parameters on all days, and Council submits that the parameters are presently not clear.

71. Council submits that it is unclear how the removal of floc waste as a feedstock for the facility is relevant to keeping the proportion of chlorinated plastics in the feedstock below 1%. Council submits that the applicant has not fully addressed (although the applicant has gone some way to addressing) the contention that the Amended EIS and Response to Submissions dated 14 December 2017 do not show that flue gas treatment residues and bottom ash can be lawfully disposed of, because the residues will contain dioxins of contaminants.

72. Moreover, Council submits that the amended material annexed to the Salon affidavit is brief and perfunctory, and does not contain sufficient analysis or reasoning in circumstances where the proposed application should provide proper analysis and reasoning so that Mr Salon’s conclusions can be interrogated. As the documents do not meet the requirements of cl 55(2) of the EPA Regulations, the amendment application should be rejected.

73. In relation to delay, Council submits that the possibility of deleting floc waste as a feedstock for the facility was raised as early as 2018 and the applicant has had ample opportunity over an extended period of time to investigate and explain the changes to the development application which arise from the removal of floc waste but has not done so.

Jacfin’s position

81. In summary, Jacfin submits, first, that the powers of cl 55 of the EPA Regulations are vested solely in the Court; second, that the orders sought by the applicant (for leave to rely on the amended material) cannot be made because the amended material is misleading because of the absence of sufficient particulars to indicate the nature of the changed proposal and the absence of up to date information as contemplated by the EPA Act; and third, all the primary documents supporting the development application (and not simply the amended material) relied upon by the applicant would need to be amended and uploaded to the planning portal to allow the IPC, Council, Jacfin, and the general public to clearly understand the amended application.

82. In response to the applicant’s primary position that, because a final determination has not been made, the IPC can agree to the proposed amendment, and therefore the Court should make the order sought in the motion, Jacfin adopts the position of both Council and the IPC that once the development application has been determined by refusal and an appeal lodged in this Court, the functions that the consent authority had thereafter reside in the Court alone. Jacfin submits that it would be anomalous, if not absurd, for the Court to exercise its power at the same time as the consent authority and, once the development application is determined, the consent authority’s power is functus: Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740; (1973) 28 LGRA 218 (‘Shanahan’) at 220-222; Somerville v Dalby (1990) 69 LGRA 422 (‘Somerville’).

83. In relation to the issue of particulars, Jacfin submits: first, the amendment application does not provide particulars sufficient to indicate the nature of the material changes to the proposal; second, the applicant’s Amendment Comparison Table is not correct where it suggests that the only change to the development application is that floc waste is to be removed as a feedstock for the facility; and therefore, the Court’s power under cl 55 of the EPA Regulations to allow the proposed amendment has not been enlivened because cl 55(2) requires “particulars sufficient to indicate the nature of the changed development”, whereby a consent authority can be clear as to what the amendments or variations are: Australian Consulting Architects Pty Ltd v Liverpool City Council [2017] NSWLEC 129; (2017) 226 LGERA 406 (Molesworth AJ); Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 (Cripps J).

84. More particularly, Jacfin submits that the applicant has not provided sufficient information in relation to first, the change to feedstock (including doubt about sources thereof); second, the change in relation to traffic impacts; and third, concern in relation to the nature and use of the conveyor. Jacfin also raises matters which go to the Court’s discretion including delay and the effect upon the SEARs (which Jacfin submits are now outdated).

85. In relation to feedstock, Jacfin submits that comparison and close examination of the 2017 MRA Report and 2021 MRA Report shows: first, that there are amendments beyond simply the removal of floc waste; second, that the composition of organic waste is amended by the increase and decrease in the proportion of fuel types in the feedstock; third, the amendment will result in significantly lower proportions of plastic waste, no wood or timber (where it is assumed not to be included as “organic waste”), and higher proportions of “other waste”; and fourth, the potential difference in the calorific values of different components of the feedstock has not been particularised. Moreover, different components of feedstock have different calorific values which impacts on energy generated in the incineration process.

86. Jacfin submits that these proposed amendments, which are not particularised in the amendment application, have only been discerned after close examination. For example, a comparison of the 2017 MRA Report and the 2021 MRA Report shows that the applicant will receive additional waste from undisclosed facilities in the “Bingo Network” and from “Sydney Waste Services”, with waste from a transfer station at Alexandria now omitted.

87. In relation to the traffic related change, the impact of the proposed amendment to the feedstock has not been particularised or its impact on traffic assessed or included in the Amendment Comparison Table. For example, an increased volume of 207,593 tonnes of waste per annum will now be imported from off site, from “Bingo facilities” other than MPC1 and MPC2, via the road network by trucks, therefore changing the traffic generated by the proposal.

88. Jacfin’s concern in relation to the conveyor is that the conveyor between the site and the adjoining facilities (described above at [12]) was proposed under Estate Road to transport waste from MPC1, whereas the amended application intends to rely on waste from both the original MPC1 and a new MPC2. Particulars are needed to understand how MPC2 is to be integrated, particularly regarding the alignment of the conveyor leaving the site; the amount of waste to be transported; and how the applicant intends to construct and make use of the conveyor where it does not own MPC1, MPC2 or any other land beyond the site’s boundary. Moreover, as MPC2 was not approved at the time the EIS or the amendment application was notified, the public is not informed that MPC1 and MPC2 will be the primary source for sorting and processing feedstock for the proposal.

89. Jacfin submits that if only the amended material is exhibited to the public (as the IPC intends to do – see above at [69]), the general public (who cannot be assumed to be sophisticated or legally trained) will interpret from that amended material that the only change to the development application is the removal of floc waste as a feedstock for the facility. Consequently, the amended material may mislead the general public.

90. Jacfin submits that the amended material, particularly the expert reports, in the annexures to the Salon affidavit has no relevance to the substantive nature of the proposed application and Mr Salon’s commentary, being at most a “high-level summary”, is contrary to the need for particularity required by cl 55 of the EPA Regulations in circumstances where the general public needs to understand what the contentions are that the proposed amendment seeks to address.

91. Jacfin submits that the reports attached to the Amended EIS by URBIS (namely, Ramboll Environ’s “TNG Energy from Waste Facility, Eastern Creek, Reference Facilities” memo dated 26 October 2016; Ramboll Environ’s “TNG Energy from Waste Facility, Eastern Creek, Treated Wood Waste (TWW)” memo dated 26 October 2016; Ramboll Environ’s “TNG Energy from Waste Facility, Eastern Creek, Cl, Br and Hydrocarbons in floc waste” memo dated 30 August 2017; Romboll Environ’s final “The Next Generation NSW Pty Ltd Waste Management Report” dated 4 November 2016; and Traffix’s “Traffic Impact Assessment” report dated 2 November 2016) which presently form part of the development application, will each need to be amended so that the development application can be uploaded to the planning portal as amended. As such, rather than high-level statements by people based on assumptions (within the amended material), the applicant requires leave of the Court to amend and provide proper particularisation within all the primary development application documents to ensure that the parties and general public can understand the application.

92. Jacfin further submits that the Court should exercise its discretion not to grant leave on the basis of the applicant’s delay in bringing this amendment application in circumstances where the applicant was put on notice about concerns regarding the removal of floc waste as a feedstock for the facility first, on 10 April 2019 (in the IPC’s SOFAC); second, on 23 March 2020 (in Council’s SOFAC); and further, on 7 August 2020 (in Jacfin’s SOFAC), and the applicant stated that it intended to amend the application to remove floc waste in its SOFAC (in reply) dated 1 October 2020.

93. Jacfin submits that as a result of the delay, the amendment application does not have regard to current strategic material and statutory requirements, in circumstances where, for example, from 1 October 2021, the EPA Regulations require an amendment application to be prepared and lodged in a particular manner, including having regard to the SSD Guidelines. Further, strategic and planning documents referenced by the development application have changed, and the strategic context has changed since the Amended EIS was prepared. The Amended EIS should analyse the Greater Sydney Commission’s “Greater Sydney Regional Plan: A Metropolis of Three Cities” (March 2018); the Greater Sydney Commission’s “Our Greater Sydney 2056: Central City District Plan” (March 2018); the NSW Premier’s Priorities (2021); the (new) Environment Protection Authority’s “NSW Energy from Waste Policy Statement” (June 2021); the Department’s “NSW Waste and Sustainable Materials Strategy 2041” (June 2021); and the Department’s “NSW Plastics Action Plan” (June 2021).

94. Jacfin points to the SEARs issued in December 2013 pursuant to which the applicant lodged its original development application in April 2015 (which has been amended on two occasions successfully in November 2016 and December 2019 and once unsuccessfully in January 2020), and submits that there have been significant changes to EfW technologies and industry since December 2013, and the policies, guidelines, and plans required to be addressed by the SEARs have since been amended or replaced. In the above circumstances, Jacfin submits the development application is “stale”.

Consideration

Role of the consent authority

95. As a preliminary observation, I note that the nature and the manner of conduct of an appeal in Class 1 of the Court’s jurisdiction is well understood. The usual question for determination is whether the decision made by the consent authority was correct or preferable on the material before the Court at the time of the hearing of the appeal. While there is much commentary as to whether or not the Court is “standing in the shoes” of a consent authority when determining a development application the subject of an appeal, it is now accepted that there remains a distinction between the Court and the consent authority because, first, the Court is not a consent authority; second, the Court is not within the executive; and third, in undertaking a merits review, the Court, albeit a judicial adjudicative body under a duty to act judicially, is exercising executive or administrative functions and not judicial functions: Bunnings [155]-[163].

96. In relation to the first issue, for the reasons that follow, and not without some concern, I find that, despite my view that a consent authority, such as the IPC, having refused an application for development, maintains its function as consent authority in relation to providing its agreement to amendments or variations to a development application in accordance with cl 55 of the EPA Regulations, this is not an appropriate resolution of the present dispute. The fact that the IPC (in addition to Council and Jacfin) has fully participated in the hearing of this motion and while it consents to the Court making the orders sought in the applicant’s motion, but importantly, maintains it is not offering its agreement “as consent authority”, I am reluctant to determine the application for amendment without approaching the matter through s 39(2) of the LEC Act (which I have done). The alternative would have been to consider that the IPC’s agreement to the orders (if it was unequivocal) rendered otiose the application for leave the subject of this motion. If the IPC had been of a different view as to its position, I would likely have adopted this approach. However, the approach I have adopted has allowed the receipt and consideration of the detailed submissions of Council and Jacfin – each of whom has been made a party to these proceedings by earlier orders of the Court and has been an active participant in these proceedings.

97. Notwithstanding the above and my consideration and determination under s 39(2) of the LEC Act, while the matter is not without some doubt, on balance, I agree with the applicant’s primary submission that the development application has not yet been (finally) determined in the sense that the consent authority’s power to agree to an amendment is not exhausted in circumstances where the IPC has determined to refuse the development application and an appeal is pending. Although this view is not determinative of this motion, given that there has been considered argument, it is appropriate to note my reasons for this view.

98. First, I do not accept the respondents’ common position that the IPC’s power to agree to an amendment of a development application are exhausted where it has determined the development application by (actual, rather than deemed) refusal as this requires (as the applicant contends) additional words to be added to cl 55 of the EPA Regulations confining the determination to one “determined by the consent authority”. That reading would require a departure from a fundamental principle of statutory interpretation including reading words in their context and adopting a construction which would promote the purpose or object underlying the provision: Interpretation Act 1987 (NSW), s 33. While I am conscious that questions of statutory construction are not answered by the circumstances of a particular case, I consider that the words of cl 55 are clear.

99. Secondly, it is well-known that where a consent authority’s refusal is the subject of an appeal, the Court’s determination of a development application (as a matter in its original and not appellate jurisdiction) is the “final decision”: Bunnings at [149]-[154]; Janlz Constructions Pty Ltd v Randwick Municipal Council [1976] 2 NSWLR 427 at 429. Therefore, simply stated, I consider that until the time of final determination, by reference to s 4.16 of the EPA Act, the development application is not “determined” including, for the purposes of cl 55 of the EPA Regulations. Given what I consider to be the plain words of cl 55, seen in the context that the final stage of the determination of the development application has not been reached – it being a matter for the Court and the determination of the Class 1 proceedings, I consider that the IPC is not deprived of the power independently to agree to the proposed amendment.

100. Moreover, I do not consider that the IPC’s power to agree to an amendment is, in the present circumstance, “exhausted” such that it cannot provide its agreement in relation to cl 55 of the EPA Regulations. The Court, in plain terms, is not the consent authority. Simply because the Court may exercise the functions and discretions of a ‘consent authority’ does not make it a consent authority which, as defined in s 1.4(1) and s 4.5 of the EPA Act, and relevantly for present purposes, includes the IPC but not the Court.

101. Thirdly, I consider the function of the Court “agreeing” to an amendment is clearly one which would move from a consent authority and vest in the Court under s 39(2) of the LEC Act should the (primary) consent authority not agree to an amendment, however cl 55 does not express that power to be exclusive to the Court. Indeed, if anything, it is exclusive to the consent authority. The relationship between cl 55 of the EPA Regulations and s 39(2) of the LEC Act is preserved in that s 39 is triggered in circumstances where a consent authority does not agree to an amendment. To this extent, cl 55 and s 39 operate harmoniously.

102. Fourthly, this view is supported by consideration of other functions under the EPA Act and the EPA Regulations which, as the applicant submits, are addressed in terms as applying to a consent authority and could not, at least by inference, be seen readily to apply to the Court. These include various procedural steps that remain as obligations of the consent authority. For example, s 4.55 of the EPA Act which provides for modification of a development consent by the consent authority, that section (to the extent that it extends the power to the Court) then goes on to provide that various necessary administrative functions imposed under s 4.55 are to be exercised by the consent authority and not the Court.

103. Similarly, the requirements in the EPA Regulations – cl 52(3) (a power to refund fees for a withdrawn application); cl 54(1) (a power to request further information); cll 59 and 60 (relating to concurrence consultation); cl 66 (relating to general terms of approval for integrated development); cl 77 (relating to publication of a development application on the consent authority’s website); and cl 102 (relating to the publication of determination on the planning portal).

104. Fifthly, contrary to Jacfin’s submission that it would be an anomalous if not an absurd situation for a consent authority and the Court to exercise powers at the same time, I do not consider that it is an “absurd” result for the Court to exercise its power pursuant to cl 55 of the EPA Regulations at the same time as the consent authority would do once the development application is determined by the consent authority. As noted by the applicant, the practice of a consent authority agreeing to an amendment without the Court itself providing a discrete agreement to an amendment, has been adopted on a number of occasions more particularly by commissioners of the Court in the process of conciliation pursuant to s 34 of the LEC Act. Although I do not consider this to be overly persuasive and I accept that there is no principle of construction that the legislature must have intended a construction that would be the simplest or most convenient to apply in practice, this conduct does however lean against a construction that may produce impractical outcomes.

105. Sixthly, although Jacfin seeks to support is position that the IPC is functus officio by reference to Shanahan and Somerville, I do not consider these cases to be of assistance to Jacfin’s position.

106. In Shanahan, Street CJ considered that the council’s decision that a building approval be granted had not gone beyond the “recall” of the council, despite an alderman of the council having informally told the applicant of the decision, because the decision had not been subject of formal notice to the applicant. His Honour’s analysis of earlier authority mainly concerned circumstances where informal and formal notification of various council approvals had (or had not) been provided to applicants (and in some cases where the approval had been communicated and a party acted upon it) and in what circumstances the decision could be recalled, rescinded or altered by the council. His Honour considered that earlier authority provided that before an approval passes beyond the control of the council there must be both a decision and a communication of the decision of a formal character authenticated on behalf of the council. I do not consider this analysis to be of assistance to Jacfin because, in the present matter, there has been a refusal rather than approval of the development application by the consent authority, and the IPC does not attempt to recall its refusal (whether to rescind or alter the determination in any way).

95. Even if I were to consider Shanahan to be of assistance, it would support my view that the power to approve or refuse the development application is beyond recall of the IPC in that that power presently resides with the Court pursuant to s 39 of the LEC Act in these Class 1 proceedings, while the ancillary functions of the consent authority, which do not determine the development application itself, remain with the IPC.

96. Jacfin also drew my attention to the consideration of various earlier authorities by Hemmings J in Somerville. Amongst other matters, his Honour considered whether it had been ultra vires for the council to grant a development consent to an alteration of a development approval which was subject of an appeal in this Court. His Honour first found that the council did not have jurisdiction to amend the development consent it had granted because it did not have before it a modification application as required by the EPA Act, rather it had received an informal request for reconsideration of the consent from the applicant and the council proceeded to review its decision on the original development application. Although not determinative of his decision, his Honour then considered what effect an appeal of the council’s initial consent would have. Drawing similarity with the decision in Mekol Pty Ltd v Baulkham Hills Shire Council [1971] 2 NSWLR 54 (Sugerman ACJ, Asprey and Manning JJA) (‘Mekol’), his Honour stated at 432, “[w]hilst an appeal is pending, the court is the only lawful consent authority with respect to that application, and council has no power to amend or modify the development approval”.

97. I do not accept Jacfin’s contention that, adopting this line of authority, the power in cl 55 of the EPA Regulations vests solely in the Court. In Somerville, the council itself varied an actual development approval although the approval remained the subject of appeal which was subsequently discontinued. Albeit, his Honour stated at 431 that “the court has all the functions and discretions which council had in respect of the matter the subject of the appeal”, however this is now reflected in s 39(2) of the LEC Act. The present circumstance is distinguishable in that the IPC is not purporting to amend its determination, as the council was in Mekol. The function in cl 55 for a consent authority to agree to an applicant’s amendment to a development application is distinct from the power of a consent authority (or Court on appeal) to approve or refuse a development application (which was subsequently discontinued).

98. Apart from the above, I note that the more recent repeal and replacement of cll 55 and 55AA of the EPA Regulations (which are noted at [41]-[42] above and were operative from 1 October 2021) does not change my view expressed above as the newly applicable wording within the EPA Regulations 2021, in relation to amendments of a development application, has moved away from the concept of “only with the agreement of the consent authority” (as per cl 55(1) of the EPA Regulations) to a position where the consent authority may “approve or reject an application for an amendment to a development application” (as per cl 38(1) of the EPA Regulations 2021). The new procedural protocol would appear to mandate that when proceedings have been commenced it is for the Court to “approve or reject” an amendment application. The “agreement of the consent authority” which was the foundation of the present argument does not arise under the new regime.

99. Despite my finding at [97] above, it is clear that the Court is in a somewhat unusual position where the IPC itself, and Council and Jacfin, now parties to the proceedings, adopt and promote a different outcome.

Whether particulars are sufficient

112. As noted above, given the position of the IPC, and in the event that I am wrong in my finding on the first issue, it falls to the Court (pursuant to s 39(2) of the LEC Act acting in the shoes of the consent authority) to provide agreement to the proposed amendment.

113. I consider the fact that the IPC consents to the Court granting leave to rely on the amended material (because it is satisfied by the particulars and that any issues that may arise therefrom will be able to be canvassed and determined at final hearing) is persuasive albeit not determinative. In this circumstance, for the reasons that follow, I nonetheless find, first, that the proposal has not been changed in any material sense; second, that, to the extent necessary, the particulars are sufficient to indicate the nature of any change to the proposed development; and third, that it is appropriate to make the orders sought by the applicant.

114. In my consideration to follow, I take into account that, as a result of the proposed amendment, the contentions (of one or more of the parties) may change and that the appeal has not been set down for final hearing and the fact that the evidence has not closed.

115. Before further consideration it is appropriate to make two observations. First, as noted above, the nature of an appeal against an administrative decision, in this case the decision of the IPC, a consent authority, is well understood. Such appeals are by way of “rehearing” in which the Court is not confined to the material that was before the consent authority and the Court determines whether to grant or refuse consent for the development application the subject of the appeal in the exercise of original, not appellate jurisdiction: Janlz Constructions Pty Ltd v Randwick Municipal Council [1976] 2 NSWLR 427 at 429; Bunnings at [149]. This involves a process referred to as merits review, where in the primary appeal proceedings, the question for ultimate determination will be not whether the decision which the IPC made was the correct or preferable one on the material before it, but rather to determine the correct or preferable decision on the evidence then before the Court.

116. Secondly, I now briefly note the general principles the Court applies when considering an application to amend a development application under cl 55 which are well-known and not in dispute.

117. The Court has “all the functions and discretions” which the IPC, as the consent authority, had in respect of the matter the subject of the appeal: s 39(2) of the LEC Act (and s 8.14(1) of the EPA Act), and the Court “may agree to an applicant amending or varying [a] development application at any time before the development application the subject of the appeal is determined by the Court.”: Bunnings at [151] (Preston J, Beazley P agreeing); Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292 at [8] (Jagot J) (‘Radray’).

118. The breadth of the Court’s power to authorise changes, and whether the power should be exercised, is dependent on the facts and circumstances of the case; “[t]he availability of the power to amend a development application is to be determined having regard to the beneficial and facultative nature of the provision”; and the Court, having weighed factors in favour (or not in favour) of granting leave, may decline to exercise its discretion to allow an amendment to a development application: Radray at [8], [12]-[21].

119. I accept the applicant’s submission that cl 55 of the EPA Regulations focuses on different aspects in subcll (1) and (2), where subcl (1) focuses upon the amendment or variation to a development application per se, and subcl (2) because of the word “if” focuses upon whether the amendment or variation (sought by cl 55(1)) will result in a change to the proposed development per se.

120. I accept the applicant’s submission that under the EPA Act the terms “development application” and “development” have distinct definitions within ss 1.4 and 1.5 respectively. Suffice to say, a development application means an application to carry out development, usually a proposed use of land, erection of buildings, works, acts and the like. It follows, as the applicant submits, that the terms “development application” in cl 55(1) and “development” in cl 55(2) of the EPA Regulations mean that it is only the change to the development, rather than the changes to the development application (such as revised expert analysis and assessments), that require particularisation. Nevertheless, as my comments and findings below make apparent, I am of the view that I need not make such a differentiation and therefore have merged my consideration of “development application” and “development”.

121. It is clear, and I find, that the primary and possibly only material change to the proposal is the deletion of floc waste as a feedstock for the facility. That is not to say that such a deletion could not be significant, and, as Council and Jacfin submit, there may be ramifications in relation to the other aspects of the proposal and, more relevantly, the manner in which the amended material presently marshalled (in support of the present iteration of the proposal) would necessarily require reconsideration (if not recalibration). However, having considered the amended material (and each of the seven reviews and reports at [32(1)-(7)] above), I find that most, if not all, of the discrete concerns raised by Council and Jacfin are matters for consideration at the final hearing of the appeal which will be determined on the evidence then before the Court. I understand the IPC adopts a similar position.

122. Council and Jacfin (as noted above) each provide comparative analyses of the material earlier marshalled in support of the development application and the amended material annexed to the Salon affidavit and submit that the amendment has not been properly particularised. I have undertaken a similar comparison and, as noted at [32(1)-(7)] above, a number of the authors of the reports (in the amended material) were involved in preparation of the primary reports in the respective areas of expertise. Although Council and Jacfin criticise the approach where further documentary material attempts to supplement the earlier reports and submit that all the relevant earlier reports comprising the development application should be amended and uploaded to the planning portal to properly articulate the changes to the proposal so that the changes can be understood and considered by the general public, I do not accept that criticism for the reasons that follow.

123. First, each of the authors of the amended material comments discretely and directly in relation to earlier reports (and opinions) consequent upon the proposed deletion of floc waste as a feedstock for the facility. Second, even if certain “assumptions” implicit in each of the further utterances may not be made out, as submitted by Council and similarly reflected in Jacfin’s submissions, that concern is a matter for interrogation at the final hearing of the Class 1 appeal. Again, I note that the IPC adopts a similar position.

124. It is with these initial observations that I consider each of the discrete concerns. My comments in relation to the proposed amendment are not reflective of an opinion as to the suitability of the proposal to receive development consent. For the purpose of the motion before me, I accept that, and the evidence is, the deletion of floc waste as a feedstock for the facility is, at least, an attempt by the applicant to address some (but not all) of the contentions raised by each of the respondents. Further, I am also conscious that at any final hearing of the matter, the existence of various updated policies, strategies, and instruments (outlined at [68], [93] above) will likely be brought to the attention of the Court.

125. In this regard, there is no doubt that the EPA EfW Policy will require the Court on appeal to take into account a number of matters not the least of which is the type, and availability, of feedstock proposed to be used, and this obviously requires consideration of an appropriate supply line. However, I consider that these are matters for the Court to consider at the hearing. As such, I accept the applicant’s submission that information in relation to the activities of other developments on other sites (which may provide feedstock) are not relevant to this motion (although accepting that they may be relevant in any final determination).

126. I have considered the submissions of Council and Jacfin, noting that there is some overlap (and mutual adoption of submissions) in relation to concerns regarding feedstock (and the sources thereof); the sorting processes to be adopted on (and off) the site; the composition of the fuel mix; calorific value of waste components; the possible effect upon traffic; the paucity of detail regarding the location and nature of the conveyor; the ownership and integration of associated waste facilities; the general public’s ability to comprehend the changes if the proposed amendment is allowed; and matters regarding the exercise of the Court’s discretion in circumstances of the delay in the progression of this amendment of the development application. Council also raises a concern regarding the presence of chlorinated plastics in the feedstock and the disposal of flue gas treatment residues.

127. In considering the concerns of Council and Jacfin, I am conscious that they have not marshalled evidence of an expert nature to support their contentions and have instead relied upon close consideration of the amended material and some of the material earlier relied upon by the applicant in support of the development application.

128. Although both Council and Jacfin raise concerns in relation to feedstock (and the particular source thereof) for the facility, I accept the applicant’s submission and consider that the identification of the source of the fuel, on the material before the Court, does not assist consideration of the proposal. In forming my view, I have considered Jacfin’s submissions in relation to changes to feedstock more particularly by consideration of the Ramboll Brief and the differences between the 2017 MRA Report and the 2021 MRA Report, which assessed the availability of waste feedstock (subsequently without floc waste in the 2021 update) eligible pursuant to the EPA EfW Policy’s “resource recovery criteria”. While I accept that there are some differences (articulated with some precision in Jacfin’s submissions) between the 2017 MRA Report and 2021 MRA Report, and while there will be some consequential changes to the composition of organic waste; the proportions of plastic, wood, and “other” waste; and a difference in the calorific values of feedstock components, these changes in my view are not determinative in this motion. Consistent with the applicant’s submissions, I do not consider these “changes” cause a change to the proposal as they are inputs which do not impact the operation or design of the development. As such, they are matters which can be interrogated at hearing should there be evidence available (which there is not at present) indicating that this is a matter requiring closer consideration.

129. In relation to the source of feedstock, apart from the EPA EfW Policy which requires consideration of an available supply line and the type of fuel which is proposed to be used, I accept the applicant’s position that this information is to allow consideration of whether the proposed technology designed by HZI will work with the nominated fuels. I do not consider that a possible change from one particular source (for example, a particular “Bingo” site rather than another) is persuasive (and certainly not determinative) in this motion. Again, I consider that the question whether a particular fuel is available and will be accommodated in the process is a matter for the Court at final hearing.

130. In relation to concerns regarding sorting, I accept the applicant’s submission that there is little (if any) sorting of material to take place on the site, there is no additional (in the sense of no change) in the sorting arrangements proposed as a result of the amendment and, in any event, the primary sources of feedstock (being MPC1 and MPC2 which will account for 54% of the amended feedstock) are themselves sophisticated developments with their own sorting arrangements.

131. Further, in relation to concerns regarding fuel mix (also related to feedstock, its source and sorting thereof), I accept the submission of the applicant that it is irrelevant that at any one time the feedstock may have no waste from a particular stream or be comprised of only one fuel type because, as the HZI Report provides, the technology adopted is designed to “handle various compositions cognisant that waste constantly changes”. For present purposes, that is the consideration of the proposed amendment, I accept that the facility is designed to operate in a manner that anticipates the absence of floc waste (or any other fuel) as feedstock for the facility.

132. In relation to Jacfin’s concerns in relation to traffic impacts that may result from the proposed change to the waste stream and which may not have been assessed, I do not consider that this is a matter of particular concern either on its own or considered with the other concerns. This is primarily because, as submitted by the applicant, the traffic impact assessment (in the Amended EIS including the report of Traffix (November 2016) was premised upon the earlier position of a combined feedstock of 1,105,000 tonnes per annum of which 500,000 tonnes was to be from external sources (with the balance to be sourced “internally” by conveyor) and that the present iteration of the proposal has reduced the quantity of waste to be treated to 552,500 tonnes per annum of residual waste. Whether the expert opinion regarding the traffic impacts is accepted or not will be a matter for consideration at final hearing however, as the matter is presently before the Court, the change in composition (by deletion of floc waste as a feedstock for the facility) does not appear to alter the existing situation.

133. In relation to Jacfin’s concern in relation to the location and detail of the conveyor (noted at [88] above) I accept the applicant’s submission that the location, nature, and use of the conveyor has not changed (and apparently will not change) as a result of the proposed amendment (such that feedstock will continue to be provided by conveyor and truck). That is not to say that Jacfin’s concerns in relation to the conveyor, in particular the fact that reliance is now to be placed on the new MPC2 facility, is misplaced, however, again, I consider it is a matter for consideration of final hearing and is not determinative in relation to this motion.

134. In relation to the concern of Council and Jacfin regarding the ownership of the adjoining facilities, and land upon which they are (or will be) situated, beyond the site’s boundaries and therefore concerns with the proposal’s integration with, and security of supply from, those facilities, I accept that the applicant has sought to address this contention by marshalling title, dealing and company searches, the detail of which I have not considered. Whether those materials are sufficient to satisfy the Court in relation to the contention regarding owners’ consent, is a question for final hearing and not determinative in this motion.

135. Likewise, Council’s submission that the deletion of floc waste does not address their contentions pertaining to the proportion of chlorinated plastics and the disposal of flue gas treatment residues and bottom ash, is a matter for merit assessment at final hearing.

136. Keeping in mind that the present amendment application is for amendment and not one for consideration of the merits of the proposal, while there is little doubt that some differences (or changes) will follow from deletion of floc waste, in the circumstance where each of the reports in the amended material relates to, or corresponds with, an earlier report, the conclusions are clear and I therefore disagree with the submission of Council and Jacfin that the particulars are inadequate such that the detail and consequence of the amendment are unclear or impede the ability of the respondents, the Court, or the general public to understand the proposed amendment. As such, I do not consider that each of the earlier reports referenced in the amended material is required to be updated and uploaded to the planning portal in order to prevent any misunderstanding that may reside with members of the public regarding the change to the proposal. Even if various modelling and impact assessments earlier undertaken may require enhancement to more fully address the deletion of floc waste and the issues raised, again, this is a matter for final hearing and determination.

112. I also do not agree with the respondents’ submission that the Court could not agree to the amendment because the amended material is too brief or lacks detail to satisfy cl 55(2) and thereby enliven the function to agree to an amendment within cl 55(1).

113. Jacfin’s submissions in relation to the consequence of the delay are cogent but insufficient to be determinative as an independent discretionary ground to refuse the amendment. I accept that there has been a significant passage of time since the original development application was made, and since the applicant became aware of concerns regarding floc waste, with the consequence that the statutory and policy framework has altered, however I do not consider, given the size and significance of the proposal, with the significant community and other interest that has been shown, that this militates against leave to amend being granted. I do not consider that the delay has been the sole fault of the applicant, given the COVID-19-related delays and the number of parties now involved in the proceedings. Further, to the extent that there have been changes to a number of policies, guidelines, and mandatory considerations, these are not determinative in relation to this present motion and are matters which will be of relevance at final hearing, as is clear from the position adopted by the IPC in this motion. It is sufficient to say that none of the above matters on their own or combined are such that I would decline to exercise my discretion to allow the proposed amendment.

114. I have also considered Jacfin’s submission that because of the delay the amendment application does not have regard to the earlier anticipated cl 55AA (which now has itself been superseded by cll 37 and 38 of the EPA Regulations 2021) and, particularly, the requirement for an amendment application to be prepared in accordance with the SSD Guidelines which in turn require the preparation of an “Amendment Report” to assess the economic, environmental, and social impacts of an amended proposal. Again, as I have found above, changes in policies, guidelines and legislation are likely to be considered at final hearing although I accept, as considered above, that the delay in the progress of the proposal has meant that the material to be relied upon may not reflect the most up to date guidelines and policies.

Conclusion

140. Having considered the detailed submissions of the parties, the amended material (being the annexures to the Salon affidavit) and a number of earlier documents and reports contained in the Amended EIS to which I have been directed; and adopting a “beneficial and facultative” approach to cl 55, I find that to the extent that there is some change, the evidence presently before the Court allows a conclusion to be reached as to the nature of the changed proposal. I find that it is appropriate for the applicant to be given leave to amend the development application in the manner provided for in the amended material.

Costs

141. The parties made submissions regarding costs. The IPC submits that if the Court allows the amended application, it is entitled to its costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the EPA Act, and that the amendment is more than minor due to the nature of the assessment required. As the applicant does not suggest that the amendment is minor and accepts that the IPC is entitled to costs thrown away pursuant to s 8.15(3), it is appropriate to make that order.

142. Council and Jacfin submit that if the applicant is successful in this motion, in circumstances where the amendment is more than minor, it is fair and reasonable for each to be awarded costs thrown away as a result of the amendment of the development application pursuant to r 3.7 of the Land and Environment Court Rules 2007 (NSW) (‘LEC Rules’). In support of this submission, Council relies upon Huajun Investments Pty Ltd v City of Canada Bay Council [2020] NSWLEC 108 (Moore J) to contend that Council is a public authority which has taken a substantial role in proceedings; and Jacfin submits, that it should receive costs resulting from the assistance it has provided to the Court in the hearing this motion.

143. The applicant submits that it would not be fair or reasonable in the circumstances for the Court to make an order for payment of costs in favour of either Council or Jacfin because each voluntarily and actively sought to participate in the proceedings with knowledge that: costs do not follow the event pursuant to the general costs rule within r 3.7 of the LEC Rules; each countervailed themselves of s 8.15(3) of the EPA Act (in that neither is the consent authority); and that applicants are ordinarily encouraged through the Court’s conciliation process to seek amendments to resolve contentions. Furthermore, the applicant submits that there has been no unreasonable conduct that would make it fair and reasonable for the Court to make the costs order sought by Council and Jacfin.

144. While I consider that the IPC is entitled to its costs thrown away by reason of the amendment in accordance with s 8.15(3), I do not consider that it is appropriate that Council or Jacfin is entitled to an order for costs in their favour.

145. Leaving to one side that the applicant has enjoyed success in this motion, the notion that costs follow the event, and the fact that the IPC shortly before the hearing of this motion gave its consent to the orders sought, the Court’s power to order costs is derived from s 98(1) of the Civil Procedure Act 2005 (NSW) and subject to the LEC Rules.

146. These proceedings are conducted in Class 1 of the Court’s jurisdiction to which the presumptive rule contained within r 3.7(2) of the LEC Rules applies:

“The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.”

147. Further, r 3.7(3) provides a non-exhaustive list of circumstances in which an order for costs may be fair and reasonable:

“(3)   Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following—

…

(c)   that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings,

(d)   that a party has acted unreasonably in the conduct of the proceedings,

(e)   that a party has commenced or defended the proceedings for an improper purpose,

(f)   that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:

(i)   the claim or defence (as appropriate) did not have reasonable prospects of success, or

(ii)   to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.”

148. Although the various indicia within r 3.7(3) may provide some assistance when evaluating whether an order for costs is fair and reasonable, the power exercised by the Court is not confined to these matters and is instead in the broadest of terms. I refer to, and adopt, the comments of Biscoe J in Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 (‘Arden’) at [9]:

“All rational considerations are relevant to the formulation of that judgment. In the end, the question is whether, in the opinion of the Court, they are of sufficient weight to overcome the presumptive rule. Indicative guidelines for the exercise of the discretion are useful in promoting consistent decisions, but are not entitled to presumptive, let alone determinative, weight.”

149. The principles applicable to the Court’s exercise of the costs power under r 3.7 of the LEC Rules are well-known and not repeated: Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 4) [2017] NSWLEC 116 at [10]-[14]; Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 at [23]-[37]; and earlier, Grant v Kiama Municipal Council [2006] NSWLEC 70 at [15].

150. In considering the application of r 3.7 of the LEC Rules, it is apposite to note that the “no discouragement” principle underlies this presumptive rule. Put simply, a person generally should not be discouraged from making or defending an application by the prospect of an adverse costs order: Arden at [10].

151. Accepting the Court’s discretion is not confined to the considerations in r 3.7(3) of the LEC Rules, I do not consider that it is fair and reasonable to make a costs order in favour of either Council or Jacfin. While I accept that both parties, by the fact that they have been made parties to the proceedings, have a legitimate interest in the determination of the matter and that both acted reasonably in the conduct of this motion, I do not find any circumstance of these proceedings that would make a costs order against the applicant in favour of Council or Jacfin fair and reasonable. Leaving aside that none of the considerations in r 3.7(3) of the LEC Rules could be said to be reflective of the conduct of any of the parties, it is certainly not the case that the applicant acted unreasonably in pursuing an amendment application which, at least as far as I can discern, sought to address concerns raised by the respondents in their respective SOFACs.

152. Further, having considered the history of the matter (including the circumstances leading to the orders made by the Court in relation to each of Council and Jacfin becoming parties to the proceedings and the parties participation in conciliation), I discern nothing in the conduct of the applicant which could be indicative, and certainly not decisive, of unreasonableness in the conduct of these proceedings. Relevantly, there is nothing unreasonable in the applicant seeking an amendment of the development application.

153. Further, while the Court was assisted in the consideration of the amendment application by the submissions made by each of Council and Jacfin, their conduct (and the conduct of the applicant seeking the amendment) is not unusual in proceedings of this type considering the nature and extent of the proposal. In any event, I accept that there is a difference between the situation of a consent authority who is brought into proceedings through no choice of its own (and has the benefit of s 8.15(3)) and other parties who choose to become involved in circumstances where there is knowledge that they would not be able to rely upon s 8.15(3).

154. In addition, there is no doubt that in order to facilitate resolution of the matter in Class 1 of the Court’s jurisdiction, whether by way of formal hearing or by the Court’s processes involving conciliation and/or mediation, an applicant should not be discouraged from seeking an amendment that may well facilitate determination of the matter. Again, while I do not proffer any view in relation to the likely outcome of the present proceedings, in the context of consideration of the conduct of a party to facilitate an order in relation to costs, such an amendment application could not be seen as akin to the type of conduct otherwise referred to in r 3.7(3). I accept the submission of the applicant that there is a stark difference in the provisions of s 8.15(3) and the requirements in r 3.7(2) and, in the circumstances of the presumptive rule, I do not consider that the making of costs orders as sought by Council and Jacfin is fair and reasonable.

Orders

155. For the reasons above, it is appropriate to make orders granting leave to the applicant to rely upon the amended material. In circumstances where first, the applicant provided detailed draft orders reflecting a different outcome (being success on the first issue) and draft directions for the further conduct of the matter; and second, where the Department in its correspondence of 16 August 2021 gave notice that it would require certain procedural matters to be undertaken (as noted above at [69]), I consider it appropriate to make the primary orders sought by the applicant and stand the matter over for 14 days to allow the parties, more particularly the applicant and the IPC, to agree as to appropriate orders and directions for the further conduct of the matter.

156. I expect agreement to be reached in relation to each of the requirements articulated by the Department in the correspondence of 16 August 2021 and in relation to procedural directions which should be generally in accordance with the Court’s Practice Note – Class 1 Development Appeals.

157. The Court makes the following orders:

1. The Next Generation Pty Ltd is granted leave to rely upon the material listed at Schedule “1” to the Notice of Motion filed 16 July 2021 amending State Significant Development Application SSD 6236 as reflected in the Amended Comparison Table at Schedule “2” to the Notice of Motion filed 16 July 2021.

2. The Next Generation Pty Ltd is to pay the Independent Planning Commission’s costs that have been thrown away as a result of the amendment of the application for development consent in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

3. The matter is stood over for mention (and entry of further orders) at 9.00am on Wednesday, 16 March 2022.

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Annexure A (111814, pdf)

Decision last updated: 03 March 2022