Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors

[2009] NSWLEC 1260

Pending Appeal:

Land and Environment Court

of New South Wales

CITATION:

Walfertan Processors Pty Limited v Upper Hunter Shire Council & ors [2009] NSWLEC 1260
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Walfertan Processors Pty Limited

FIRST RESPONDENT
Upper Hunter Shire Council

SECOND RESPONDENTS
Darley Australia Pty Limited
William Bourke

FILE NUMBER(S):

11319 of 2008

CORAM:

Moore SC - Taylor C

KEY ISSUES:

DESIGNATED DEVELOPMENT - DEVELOPMENT APPLICATION - ENVIRONMENT IMPACT STATEMENT - SECTION 97 APPEAL - WASTE DISPOSAL :-
Effluent disposal

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979

CASES CITED:

Walfertan Processors Pty Limited v Upper Hunter Shire Council [2009] NSWLEC 1134
Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321
Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88
Mison v Randwick City Council (1991) 23 NSWLR 734

DATES OF HEARING:

31 March, 1 and 2 April,19, 20 and 21 May, 10 and 17 June

 
DATE OF JUDGMENT: 

4 August 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso SC
INSTRUCTED BY
Clayton Utz

FIRST RESPONDENT
Mr T Robertson SC
INSTRUCTED BY
Sparke Helmore

SECOND RESPONDENTS
Mr P Larkin, barrister
Mr C Norton, barrister
INSTRUCTED BY
Halletts Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
TAYLOR C

4 August 2009

11319 of 2008 Walfertan Processors Pty Limited v Upper Hunter Shire Council & ors

JUDGMENT

Introduction

1 COMMISSIONERS: Aberdeen is a small town in a rural setting in the upper Hunter Valley. It is some 13 km from Scone and 270 km north of Sydney. The town straddles the New England Highway. The town has a population of some 1750 people. The only two industrial enterprises of any significance are coalmining activities to the south of the town and a tannery on the eastern fringes of the town.

2 The tannery building is located in the upper northern slopes of a hill on the eastern side of the town. It processes animal hides that are imported to the site. Nearby is a former abattoir complex that has not operated since the 1990s.

3 The extensive combined landholdings of the former abattoir and the tannery comprise much of the open country immediately to the north and north-east of the town. These landholdings are now owned by the applicant which is the operator of the tannery. We refer to the tannery building as the tannery and to the remainder of the landholdings as the site or the tannery land.

The hearing

4 We spent a full day inspecting the site and in hearing local resident evidence. This was followed by a lengthy further hearing period in court – a good deal of which, as discussed in more detail later, related to what might be the conditions of development consent if the project were to be approved.

5 During the course of the hearing, although not necessarily requiring amendments on each occasion, the work of the joint expert conferences resulted in the nature of the proposal undergoing considerable change and refinement. Indeed, it is reasonable to say that the precise form of the proposal for which consent is now sought is both much more clearly defined and significantly more environmentally improved, The effects of these changes are that the proposed environmental outcomes (planning, monitoring , mitigation of current impacts) will, if approved, result in significant environmental benefits for the residents of Aberdeen.

The proposal

6 During the course of the hearing of this appeal, the proposal has evolved in a number of important aspects. The consequence of this evolution is that, if the proposal in its final form were to be approved, it is expected that it will resolve a number of long-standing adverse impacts upon a number of residents of Aberdeen and nearby locations proximal to the tannery’s effluent disposal activities.

7 The operational activities of the abattoir and of the tannery, at varying times and, in varying fashions, have generated liquid effluent that has needed to be disposed of within the tannery land. The tannery also disposes of its solid waste on the site. The present and proposed future effluent disposal practices of the tannery are the subject of this application. Each of these aspects is discussed in more detail below.

8 As part of the proposal, the tannery proposes to separate its effluent stream into a high concentration stream and a low concentration stream. In this context, the degrees of concentration are merely relative and both future effluent streams may have significant potential environmental impacts if they are not disposed of in an appropriately manner – controlled, by way of a scientifically designed and systematically monitored process.

9 The method of disposal of each of the two future effluent streams is discussed in the context of the relevant present and future elements of the effluent disposal process that is described in more detail later in this decision.

10 As the abattoir is no longer in use and its effluent processing facilities are thus no longer required for abattoir effluent treatment and disposal, the tannery lodged a development application with the Upper Hunter Shire Council (the council) seeking approval for modifications to its current effluent disposal system. These modifications involve utilising portions of the tannery’s existing system as well as renovation, refinement and use of elements of the old abattoir effluent disposal system.

11 A number of elements of the present tannery effluent stream will cease to be used and will be rehabilitated and the operations of other elements will be upgraded in a fashion intended to eliminate past unsatisfactory environmental impacts caused by them.

Understanding the locality

12 To understand the geographic relationship of the various matters that will be discussed in these reasons for decision, it is appropriate to incorporate, at the commencement of the decision, an aerial photograph that shows the location of the tannery building, the surrounding tannery land and the its relationship with the Aberdeen locality together with other matters that will assist understand this decision.

The joinder of additional parties to the proceedings

13 It is appropriate to note that, in a preliminary determination, leave was granted pursuant to s39A of the Land and Environment Court Act 1979 to two of the neighbours to participate as parties to the proceedings (see Walfertan Processors Pty Limited v Upper Hunter Shire Council [2009] NSWLEC 1134). These neighbours’ properties lie to the north and northeast of the tannery and its surrounding land area. This leave was granted because, at that time, the council was not contesting a number of environmental impact issues of both a legal and functional nature.

14 The properties operated by the second respondents comprise an extensive thoroughbred horse stud and a beef cattle grazing property. We note that the beef cattle property is proposed to be organically certified. Each of these property owners is concerned that the spray drift from the eastern irrigation area will go beyond the boundaries of the tannery's property and cause contamination of pasture on the adjacent properties. They are also concerned about possible odour impacts from the effluent irrigation and of contamination of groundwater.

The issues

15 There are, essentially, four remaining matters that we need to determine in the proceedings. If all four of these are determined in favour of the applicant, there then remains a number of conditions of consent that are in contention (although most of the conditions of consent were settled between all three parties during the final phase of the hearings.

16 The first issue, pressed by the second respondents, is the question of whether or not, as a necessary statutory precursor to considering the merits of the application, there needs to be preparation and assessment of an environmental impact statement. The second respondents asserted that an environment impact statement is required and that, since one has not been prepared, the application must be refused. The council does not support this contention.

17 The second issue, also pressed by the second respondents, is their contention that we do not have sufficient information to make a decision on the merits of the proposal. The council, as we understood it, also does not now support this position.

18 The third issue is whether or not, if we were to approve the tannery's proposal, the preparation of the Environmental Management Plan and incorporated Irrigation Management Plan should be approved by the Court or by the council. This is an issue that was raised by us as a matter of concern toward the end of the proceedings. The parties were invited to make submissions to us on this point.

19 The fourth issue, as we understand it, is that the second respondents also say that, even if were satisfied that we had sufficient information to make a decision, we ought not approve the application on its merits. This contention, as we understood it, is also not now supported by the council.

20 A considerable period of time during the final stages of the hearing was also devoted to the question of what would be the appropriate conditions of development consent if development consent were to be granted for the proposal. Although a small number of conditions remained in contest at the conclusion of several days of hearing in dealing with this topic, there was, as we understand it, broad consensus between the parties as to what would be the appropriate operational matrix for the conditions.

21 We have considered each of the contested conditions of consent and deal with them, as necessary, later in this decision.

Is an environmental impact statement required? – Part 1

22 As earlier noted, the second respondents have raised the question of whether or not, as a necessary statutory precursor to considering the merits of the application, preparation and assessment of an environmental impact statement is required. The second respondents have asserted that an environment impact statement is required and that, as one has not been prepared, the application must be refused. Also as earlier noted, the council does not support this contention.

23 This issue arises for consideration, we accept, because, if the applicant is not able to take advantage of the exception provided by cl 35 of Part 2 of Schedule 3 of the Environmental Planning and Assessment Regulation 2000, the proposal is designated development. Designated development requires the preparation of an Environmental Impact Statement and the consideration of that statement prior to any development consent being granted for the proposal for designated development.

24 The terms of cl 35, providing the exception, are as follows:

35 Is there a significant increase in the environmental impacts of the total development?

Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development.

25 There are two propositions that we state, at the commencement of this discussion, that we consider necessarily follow from the terms of the clause and that are relevant in our consideration of how it is to be applied in these circumstances. The first is that, as submitted by the second respondents, the existing or approved development to be considered, for construction of the term “existing”, is existing development that is lawfully existing – that is that it is development which is operating subject to an approval granted by the relevant consent authority – that is, in this case, the council.

26 The second is that there is nothing in the terms of cl 35 that requires that the geographic location of the existing development and that of the proposed development be entirely corresponding. As a consequence, we accept that the proposed total development over the whole of the tannery lands now subject to this application can be compared with the total development that might be existing or approved over the whole of the tannery lands but may also be compared with the existing or approved development confined to the activities of the tannery.

27 During the course of the hearing, evidence was provided of all relevant development or building applications that have been approved by the council that related to the applicant's operations. These are:

DA No	Land Description	Date Lodged/Approved	Details
64/83	Lot 222 DP 559887	25/10/83 21/12/83	Factory for fleshing treatment and water treatment, tree planting
57/89	Lot 221 DP 559887	5/10/89 20/11/89	Erection of concrete block wall to enclose two side of existing building. Installation of plant & equipment by occupier for use in proposed production of crust leather
57/90	Lot 221 DP 559887	9/8/90 15/10/90	Operation of leather finishing plant in building being used for crust leather production
26/92	Lot 221 DP 559887 Lots 54/55 DP 739487	4/5/92 18/5/92	Upgraded effluent treatment facilities - redevelopment of treatment plant - blower room/chemical dosage room
BA No	Land Description	Date Lodged/Approved	Details
27/73	Lot 3, 33/34, 58/59	6/4/73 Approval date not known	Tannery Building

28 Other material was also in evidence relating to development approvals that had been granted to the former abattoir where those approvals might, potentially, be relevant in those proceedings.

29 At this stage, we do not propose to set out or discuss the detailed terms of any of these approvals – merely to note their existence.

30 To permit us to undertake the necessary comparative assessment of whether or not there would be any significant increase in the environmental impacts of the total development that would result if we were to approve this application, we consider it appropriate, in the first instance, to undertake an examination of what is presently taking place on the tannery lands, whether approved otherwise, and how those activities are proposed to be changed.

Approval on the merits – the present effluent disposal practices of the tannery and the proposed changes to them

31 Rather than seeking to describe, separately, the present effluent disposal practices of the tannery and how they are proposed to be changed, we set out below a combined description of the present practices, the impacts produced by them both past and present and how the effluent disposal practices are proposed to be changed by this application.

32 At the present time, there are a number of treatment ponds used for disposal of the abattoir effluent that are not presently being used by the tannery. The present tannery application proposes to refurbish part of this pond system for incorporation in the new overall tannery effluent disposal process. These ponds are on a portion of the site downhill and slightly to the north-east of the tannery but in close proximity to the tannery building.

33 These ponds are connected by drainage channels to a storage dam that also has a nearby overflow dam. These effluent transportation channels are protected from having any overland stormwater flow adding additional volume to the effluent disposal system by uphill contour embankments that are designed to carry the stormwater away from any of the effluent transportation or storage elements. These have the effect of diverting the stormwater into clean water rural dams or into the drainage line known as Bakers Gully, running from the south-east to north-west across the north-eastern portion of the site.

34 The abattoir effluent disposal process then spray irrigated effluent from this dam on to an area known as the eastern irrigation area. The tannery now proposes to pipe effluent to the tannery’s final holding dam from which the effluent will be irrigated on the eastern irrigation area. The pipeline will follow the route of the former open effluent drainage channel.

35 An area to the east of the tannery within the site is known as Mantons. It is currently being used for irrigation of portion of the present effluent from the tannery. The owners of the tannery acquired this land from the council in 1997. However, no development consent has been demonstrated to exist permitting its present use for effluent disposal by irrigation.

36 Mantons will be the subject of a remediation plan and will not be used for the further purpose of general effluent disposal. However, some effluent is likely to be required for the purposes of irrigating vegetation being used for the rehabilitation of that portion of the site. This proposed rehabilitation will not only have significant benefits by ensuring rehabilitation of this area but will also have the benefit of eliminating any possibility of any adverse odour impacts from this irrigation on nearby residences on the eastern outskirts of the town of Aberdeen in the vicinity of Mantons.

37 In addition to the effluent that is irrigated on Mantons, the tannery also operates three dams near Rouchel Road, at the northern edge of the site. The Rouchel Road dams currently receive part of the tannery effluent stream and dispose of this effluent by evaporation. At the present time, to assist in the evaporation process, a spray system is used to create a fine mist of effluent over the surface of the dams. Along the edge of the dams, adjacent to Bakers Gully, a shade cloth type fence, a little over a metre high, has been erected along the top of the dam walls. This fence is designed to prevent any of the scummy foam that forms on the surface of the dams from being blown out of the Rouchel Road dams and onto neighbouring properties.

38 During the course of the site inspection and subsequently local community representatives evidence gave in a school hall in Aberdeen. We were informed of and provided with photographic evidence about the way these dams operated. That evidence included instances of the scummy foam blowing from the Rouchel Road dams, across the remainder of the site between the Rouchel Road dams and Rouchel Road, across this road and onto the private property located to the north of the road. Similar evidence was given concerning instances of the effluent mist spray drifting out of the site and of off-site odour impacts.

39 Although it is not a appropriate for us to express any view as to whether or not the escape from the site of odour, scummy foam or misted effluent from the dams by airborne carriage to adjoining properties is permitted in any fashion, these are clearly undesirable social and environmental impacts, particularly if they are preventable.

40 Photographic evidence was also provided by the objectors of an instance of the overflowing of one of the Rouchel Road dams during a rainstorm. This overflow resulted in effluent discharging from the Rouchel Road dams into Bakers Gully.

41 Bakers Gully, in turn, discharges into the Hunter River some 600 or so metres from the Rouchel Road dams at a point immediately upstream from the bores that are used to extract potable water for domestic water supplies for Aberdeen and Scone provided by the council.

42 The future high concentration effluent stream is proposed to be disposed of by continuing to be discharged to the Rouchel Road dams and evaporated. However, the misting devices that are currently the cause of airborne clouds of effluent to escape from the tannery's property are to be decommissioned. Further, investigation is to be undertaken to determine precisely what remediation and strengthening engineering works might be required to the walls of these dams to prevent any failure in the future that might lead to an accidental discharge of effluent to Bakers Gully. Any such works will be implemented as part of the Environmental Management Plan.

43 As a consequence of the separation of the effluent streams, the volume of material that will be disposed of using the Rouchel Road dams will be reduced significantly compared to the volume of effluent being currently actually disposed of by these dams.

44 The overall result of the changed nature of utilisation of the Rouchel Road dams is that, on the expert evidence available to us, it is highly improbable that there will be any future dam wall failure or any significant airborne material or odour discharges from them. In any case, the evidence suggests that any potential impacts will be reduced significantly.

45 Evidence was also an given that the tannery is using an area to the south and upslope of the Rouchel Road dams, known as Salt Sacrifice, for the purposes of disposing of solid waste by-products of the tannery's processes. Salt Sacrifice is proposed to be rehabilitated if the proposed new effluent disposal regime is approved and implemented. A rehabilitation plan will need to be prepared for this process. Some irrigation of effluent may be necessary as part of the rehabilitation process to encourage growth of the salt tolerant plantings that will be necessary to be used for this purpose.

46 The extensive expert conferencing that was undertaken during the course across a wide range of disciplines led to a series of joint expert reports being provided to us. As a consequence, in the final analysis, comparatively little oral evidence was required and this was, in the end, confined only to the discipline relating to odour emissions.

47 As we have earlier discussed, considerable constructive work was undertaken during the joint expert conferences. Areas of unresolved technical issues were, for the most part, eliminated. Agreement has been reached generally on the location, operational method and substances that are to be the subject of an ongoing monitoring regime for both the surface water and groundwater.

48 The broad parameters involved in monitoring the performance of the eastern irrigation area have also been agreed sufficiently to enable the preparation of an Irrigation Management Plan to be incorporated in the Environmental Management Plan.

49 As we understand the position, the sole significant outstanding technical issue remaining for our consideration, relates to the issue of whether or not any odours emitted during the course of the irrigation of the eastern irrigation area will be sufficiently contained within the site or removed entirely so that there will be no breach of the relevant guidelines published by the Department of Environment and Climate Change.

50 At the conclusion of the discussions between the odour experts, the marked aerial photograph included below shows the odour contours predicted by the applicant's owner expert, Ms Holmes, superimposed on an aerial photograph of the tannery land. These odour contours have been developed using modelling software that is recognised as an appropriate tool for odour modelling and taking into account the best available meteorological data and applying it, with appropriate adjustments, to the topography of the site.

51 This aerial photograph is reflective of further modelling undertaken by Dr Holmes during the course of the proceedings. It was the subject of concurrent oral evidence given by her and by Mr Graham, the odour expert for the second respondents.

52 We are satisfied, on the basis that Dr Holmes is confident that this modelling is an accurate and what we understood to be the concession made by Mr Graham, in the course of the oral evidence, that this modelling now showed a compliant (and thus acceptable) outcome for surrounding properties could now be achieved through the Environmental Management Plan and its subordinate Irrigation Management Plan, that this issue does not impose any significant impediment to granting consent.

53 We are satisfied, in addition, that the decision we have taken requiring the establishment of buffer areas that will separate the tannery land effluent disposal operations in the eastern irrigation area from the lands owned by the second respondents will also add an additional protection against any potential odour impact on these lands.

54 As a consequence, as we understood the proceedings to have finalised, there remain no other significant technical disagreements that would stand as an impediment to the granting of approval on the merits. Subject to determining the process for the finalisation of an Environmental Management Plan (incorporating the Irrigation Management Plan and the rehabilitation plans for Mantons and Salt Sacrifice) we are satisfied that there is now no technical basis why we should refuse the proposal on its merits.

55 Indeed, it is clear from what we have set out above that the entire range of changes proposed to be undertaken to the tannery’s effluent disposal processes will lead to significant environmental benefits to the residents of Aberdeen and the resolution of what had hitherto been a number of apparently intractable adverse environmental impacts on the local community.

56 Having set out the relevant operational matters, whether approved or not, we return to consider whether or not the exception to the requirements of this proposal be regarded as designated development is satisfied. For us so to be satisfied, we are required to form the opinion that:

The alterations or additions do not significantly increase the environmental impacts of the total development (that is, the development together with the additions or alterations) compared with the existing or approved development.

57 The applicant and the second respondents agree that we should not have regard to the effluent disposal activities being undertaken by irrigation on the area known as Mantons. We note that this concession by the applicant is made for the purposes of these proceedings only and is without any admission by the applicant.

58 The applicant submits that the effluent disposal consents for the abattoir should be taken into account in working out what are the environmental impacts of the existing or approved development. The second respondents reject this proposition on the basis, as we understand it, that the second respondents consider that any rights that were granted by consents to the abattoir have now lapsed by the effluxion of time since the abattoir ceased operation. In addition, the second respondents contend, as we also understand it, that, even if this proposition is not correct, the quality and/or composition of the tannery effluent is significantly different from the abattoir effluent such that a comparison of impacts is unable to be made.

59 We consider it appropriate, first, to undertake an assessment pursuant to cl 35 on what we consider to be the most restricted case for the applicant. That is, to assess whether or not the applicant can take advantage of the exception solely on the basis of a consideration of the existing or approved activities of the tannery itself. If the applicant satisfies the exception on this basis, there is no need for us to make a new determination as to whether or not the past development consents for the disposal of abattoir waste are able to be utilised by the applicant for the purposes of an assessment of compliance or not with this exception provision.

60 To undertake this analysis, it is necessary to turn to the terms of the four approvals that have been granted to the applicant and for which we have the terms of development consent. For convenience, we propose to refer to these as the 1983, 1989, 1990 and 1992 development consents.

61 Having considered these documents, we also propose, in a fashion that we consider is permissible within the strictures of Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321, to consider such other documentation as has been provided to us as relating to these consents, where it appears to us to be relevant.

62 We turn, first, to the 1983 approval granted by the then Scone Shire Council. The development for which consent was sought, from the application form, was as follows:

· Factory for fleshing treatment & water treatment
· Tree planting program

63 The proposed use of the building is described on the application form in the following terms:

· Fleshing treatment & water treatment

64 The conditions for the 1983 development consent are in the following terms:

1. Submission of a Building Application, plans and specifications complying with Ordinance 70 of the Local Government Act.
2. The development being conducted in such a manner so as not to interfere with the amenity of the neighbourhood, in respect of noise, vibration, smell, dust, waste water, waste products or otherwise.
3. Subject to approval of the Department of Industrial Relations and Technology and any such conditions shall form part of this approval.
4. The premises are subject to licence under the Clean Air Act in respect of the boiler and any such conditions of licence shall form part of this approval.

65 We note that conditions 3 and 4 might no longer survive (but we express no opinion about this) if tested in light of the decision of the Court of Appeal in Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88.

66 A letter dated 9 December 1983 from the General Manager of the applicant to the Shire Clerk of the then Scone Shire Council enclosed a specification dated 9 August 1983 in support of the application that led to the 1983 approval. The relevant portion of this specification relating to the wastewater treatment plant contains no details of any limit proposed for the volume, composition or concentration of effluent to be produced by the wastewater treatment plant.

67 However, the letter does include the following:

The total concept of the fleshing treatment plant is to give us the potential to improve the processing of our by-products and to restrict any possible interference with the surrounding environment.
1. The fleshing processing plant when commissioned would facilitate an on-site treatment of fleshings, thus obviating the need to transport them.
2. Incorporated in the design of the new installation is a proposal to pump all fleshings in an enclosed pipe from the fleshing machine within the tannery to the treatment area

68 Nothing in these documents for the 1983 approval deals with the disposal or the composition of such effluent.

69 Next, we turn to the 1989 approval also granted by the then Scone Shire Council. The development for which consent was sought, from the application form, was as follows:

• Erection of concrete block wall to enclose two sides of existing building. Installation of plant & equipment by occupiers to use in proposed production.

70 The proposed use of the building is described on the application form in the following terms:

• The proposed use of the building is to produce crust leather as described in the attached Statement of Environmental Effects.

71 The conditions for the 1989 development consent are in the following terms:

1. The submission of a Building Application, plans and specifications complying with Ordinance 70 of the Local Government Act.
2. The development being conducted in such a manner so as not to interfere unreasonably with the amenity of the area.
3. Compliance with any conditions imposed on any licences granted under other applicable legislation.

72 Attached to the papers for this development consent is an undated two-page document entitled Environmental Impact Statement. This document includes a list of “pollutant concentrations and total mass of pollutants to be discharged”. It also includes a number of the properties of the waste and rates of discharge of this waste to the council's sewage treatment system. It would appear that the waste is confined to discharge to the sewer as none of the documents relating to this application mention on-site disposal of any of this waste. In addition, a reading of the environmental impact statement leads to the inference that the totality of this waste is to be discharged to the council's treatment system.

73 We now turn to the 1990 approval that was also granted by the then Scone Shire Council. The development for which consent was sought, from the application form, was as follows:

• Operation of leather finishing plant

74 The proposed use of the building is described on the application form in the following terms:

• Operation in existing building – currently being used for a crust leather operation

75 The conditions for the 1990 development consent are in the following terms:

1. The application of finishes shall only be carried out in enclosed and ventilated areas within the confines of the existing building
2. Any building work is to be subject to the submission of a building application, plans and specifications complying with Ordinance 70 of the Local Government Act
3. Off street parking is to be provided for 4 vehicles in accordance with Council's Code for the provision of Off Street Parking

76 This application was accompanied by a single page document entitled Statement of Environmental Effects dated 7 August 1990. It would appear from the terms of this document that the totality of the matters that caused this application to be lodged relate to fume emissions from a leather finishing operation at Kingsgrove that had caused the Kingsgrove operation to close and a different leather finishing operation be established at Aberdeen. Nothing in this development consent appears to relate to effluent disposal or its composition.

77 Finally, we turn to the 1992 development consent that was also granted by the then Scone Shire Council. The development for which consent was sought, from the application form, was as follows:

· Redevelopment of treatment plant

78 The proposed use of the building is described on the application form in the following terms:

· Blower room/chemical dosage room

79 The conditions for the 1992 development consent are in the following terms:

1. Submission of an approved detailed plan of landscaping prior to the release of the building application.
2. Submission of quarterly review statements on the operation of the effluent treatment system.
3. That noise levels from the site do not exceed EPA standards.
4. Submission of a firm proposal to reduce the waste water nutrient loads to an acceptable level (acceptable to the EPA) such that further degeneration of the irrigation area will be prevented. Details of the proposal to be approved by the EPA prior to the release of the Building Application.

80 This application was accompanied by a more substantial document, prepared by engineering consultants, entitled “Statement of Environmental Effects: Upgraded Effluent Treatment Facilities: Walfertan Processors Pty Ltd.”

81 It is appropriate, for proper consideration of this consent, to note a number of matters from this document referred to immediately above. Set out below is the material from pages 2 and 3 of the document entitled “1.4 Upgraded Effluent Treatment Facilities – Walfertan”.

1.4 Upgraded Effluent Treatment Facilities - Walfertan

The need to upgrade arises primarily from an unfortunate history of malodour (principally HS) from the site since 1987 from grossly deficient treatment capacity, on a site whose facilities evolved historically from former woolscouring, fellmongering and tanning operations. Treatment capacity had considerably lagged site development. (it should be noted, however, that Walfertan has not been the only source of malodour since these events first came to notice in Aberdeen.)

The company changed hands in September 1991, the new venture being a partnership between two stable companies, namely:
• A.1. Topper & Co. Pty Ltd - skin dealers and brine curers, NSW, OLD
• Packer Associated Tanners - Tanners. Narangba, OLD, who have been associated with the tanning industry since 1891.


The principal objective of upgrading the effluent treatment facilities is to eliminate all current deficiencies (including odour) on a progressive phase by phase development program, from upstream to downstream as follows:

Phase I - Odour Control (by 30/6192)
- Upgrade sedimentation and clarification
- Upgrade screening and aeration equipment
(Estimated Cost: $860,000)
Phase 2 - Biological Nutrient Removal (by 30/6/94)
- Provide Effluent recycling and Re-use facilities (Estimated Cost: $75,000)
Phase 3 - Upgrade disposal facilities (by 30/96) (Estimated
Cost: $100,000)

Phase 4 - Construct New Treatment Plant (by 30/6/2000) (as deemed necessary)

Naturally, with increased efficiencies under the new management, there will be some Increase. in production capability which would otherwise put the existing treatment plant under additional stress. This aspect has also been catered for in the proposed upgraded plant.

82 It is also appropriate to set out, in full, the elements from the document contained under the heading “Likely changes to environmental conditions”.

3. LIKELY CHANGES TO ENVIRONMENTAL CONDITIONS

Only the following impacts are likely to change as a result of the proposed upgrade to the effluent treatment facilities:

3.1 Visual Amenity

The existing sludge trench is to be dewatered and filled in during Phase 2. This will be significantly beneficial to the visual amenity of the site when viewed locally.

3.2 Socio-economic

The construction of the upgraded effluent treatment facilities will provide increased labour requirements, particularly for the civil and building works, together with specialised services such as those of the mechanical and electrical type.

It is envisaged that the upgraded plant will require closer attention by way of operation, monitoring and maintenance than the existing plant. Together with the additional task of product recovery, this is likely to require the services of a full time suitably qualified plant operator, conversant with extended aeration wastewater treatment plants.

In-house efficiencies will also facilitate increased production, and it is envisaged that this would involve minor labour increases over present levels.

3.3 Soils and Land Stability

The existing high concentration of oils and grease in the raw effluent is to be removed by suction tanker from the new screening wet well and recovered as a low-grade tallow product (Currently this material returns about $80 per tonne.) This action will be greatly beneficial to soils of the irrigated disposal area, allowing pH values (closer to neutral) to be attained.

Once recycling and re-use capabilities have been established on Phase 2), the volumes to be disposed are not anticipated to increase. Indeed, some reduction is possible. Accordingly, no change of impact Is expected.

There is, however, the potential to recover brine for future processing by using membrane technology, once effluent quality has been improved and this technology has been established as a practical and economic alternative. When this occurs, a significant double benefit will result by way of reduced raw material costs, and reduced salt degradation of soils.

The reconstruction of Lagoon #2 On Phase 2) will be undertaken so as to avoid any concentration and ponding of stormwater runoff. The finished batters will have a slope not exceeding 1:4 and will therefore be able to be mowed. This will add to visual amenity of the site.

3.4 Noise

Air blowers will be required for the equalisation tank and sulphide oxidation towers. However, the latter will only be required to operate during normal work hours as a batch process. In each case, the blowers will be located In a building having blockwork wails. Noise levels will therefore be significantly attenuated, and should not increase background noise levels at the site boundary.
Similarly, the Increased aeration of the lagoons will be undertaken with sub-surface aerators and will have minimal impact at the site boundary.

3.5 Air Quality

It is anticipated that hydrogen sulphide will be almost entirely eliminated by the efficient oxidisation of sulphide (by intense aeration In the presence of manganese sulphate as a catalyst) to sulphate. The anticipated removal efficiency is in the order of 99% when coupled with subsequent biological treatment.
(Experience with a similar system at the Packer Tanning plant at Narangba, Queensland. has confirmed the above removal efficiency with a residual sulphide concentration in the wastewater of <1 mg/L prior to subsequent treatment as above.)

This is the principal off-site and most beneficial impact of the proposed work, In accordance with the stated objective.

3.6 Buildings

The upgraded treatment facilities require the construction of the following buildings:

· Blower house
· Chemical dosing and control rooms


These two buildings will be of blockwork construction for noise attenuation and durability reasons. Unauthorised access will be prevented out of normal Work hours.

3.7 Landscaping

It is intended to provide landscaping of an appropriate type and extent to soften local visual impacts. This would include screening trees and shrubs as necessary for the tannery buildings and proposed effluent treatment plant buildings, such additions to be of a minimum maintenance type and of selective species suitable for the Aberdeen climatic conditions.

83 The conclusions of from this Statement of Environmental Effects are in the following terms:

4. CONCLUSIONS

As may be seen from the above, the anticipated impacts are all geared to redressing current environmental difficulties, and as such will have significantly beneficial Impacts as follows:

• Eliminate all offensive odours originating from the site.
• Provide an effluent suitable for recycling and re-use.
• Improve the pH condition of soils in the disposal area.
• Improve visual amenity.
• Increase permanent labour.
• Provide opportunities for significant labour inputs during construction by way of civil, building, mechanical and electrical works.

84 Also relevant to be noted are elements from a number of appendices to this Statement of Environmental Effects. First, as part of the site plans in appendix 1, there is a document entitled General Site Plan that shows a number of effluent treatment ponds, as we understand it when read in conjunction with the plan Site Plan - Tannery, including not only effluent treatment ponds in the vicinity of the tannery building but also showing the then and now existing Rouchel Road dams. A more specific plan entitled Site Plan - Effluent Disposal Area shows these dams in more detail.

85 Appendix 2 is entitled Climatic Conditions and includes a page entitled “Volumes Requiring Irrigation”. It includes information from which it is possible to calculate, on the then average rainfall for the area, what is the maximum irrigated effluent postulated by this document. The relevant calculations extracted by us appear in the table below and show that in excess of 275 megalitres is postulated by this document as the maximum capable of being irrigated on the area of the then tannery land. This is approaching three times the volume of effluent proposed to be permitted under the present application.

DA 26/92	Total volume to be irrigated (m3 per day)	Total volume/ day (litres)	Annual volume (litres)	Conversion to megalitres/year
Average rainfall conditions	755	755,000	275,575,000.00	275.575

86 Appendix 3 is entitled “Other Relevant Details”. This includes, amongst other things, a document entitled Process Flow Chart. This Process Flow Chart specifically shows that dewatered solid-waste is to be disposed of on site. This flow chart is reproduced below with marking by us of the on-site solid waste disposal notation [this reads “on-site disposal of dewatered sludge (20% solids)”].

87 As a consequence of all this development application and related material, we are of the view that a number of factual observations should be made. These are as follows:

• With respect to all of the development consents relating to on-site disposal of effluent, there is no specific condition of consent that incorporates conditions relating to the composition of the waste whether solid or liquid;
• With respect to all of the development consents relating to on-site disposal of effluent, there is no specific condition of consent that incorporates conditions relating to dilutions rates of whatever might be within the waste;
• With respect to all of the development consents relating to on-site disposal of effluent, there is no specific condition of consent that incorporates conditions precluding on-site disposal of solid waste and such on-site disposal of solids is, in fact, specifically diagrammatically depicted in the flow chart appended to the 1992 Statement of Environmental Effects;
• The document entitled Volumes Requiring Irrigation in appendix 2 to the Statement of Environmental Effects accompanying the 1992 development application does not propose any limit on the volume of liquid effluent to be disposed of but, if it were read to be proposing a limit, postulates that the volume of liquid effluent capable of being disposed of safely on the site under then average rainfall conditions would be 2.75 times the volume proposed to be permitted under the present application.

88 As a consequence of these factual observations and what we have earlier discussed concerning the present operation of the tannery’s effluent disposal process (ignoring Mantons), we are of the view that a number of conclusions can be drawn. These are:

• First, the disposal of waste, solid and liquid, other than discharge of effluent to the sewer (at its most restrictive for the applicant and expressing no view as to whether this restriction actually applies or not) is unregulated by any relevant condition of development consent except for requirements contained in:
v condition 2 of the 1983 consent concerning the amenity of the neighbourhood;
v condition 3 of the 1983 consent requiring compliance with Department of Industrial Relations and Technology conditions (if imposed);
v conditions 4 of the 1983 consent requiring a Clean Air Act licence and that any conditions of such a licence would form part of the consent;
v condition 2 of the 1992 consent requiring submission of quarterly review statements on the operation of the effluent treatment system; and
v condition 4 the 1992 consent requiring, in effect, a pollution reduction program acceptable to the EPA to be aimed at prevention of further degeneration of the irrigation area. EPA approval of this pollution reduction program was to be obtained prior to the release of the building application arising from this development consent.

• Second, as a consequence of what is set out above, it is not possible to determine what would be the permitted environmental impacts of the existing or approved development except that the comparatively unrestricted nature of these conditions, to the extent that they might be valid, means that those environmental impacts are potentially significantly high as the degree of regulation and control provided by the conditions of development consent is very permissive.
• Third, the absence of any certain relevant concentration, composition or volumetric restriction coupled with the limited present monitoring regime required by the EPA licence reinforces the second conclusion we have drawn above.
• Fourth, if there is some volumetric restriction to be imputed from the 1992 development consent, this volumetric limit is at least 2.75 times the limit proposed to be conditioned for this application.
• Fifth, the regime proposed by the conditions of consent as agreed to by the parties and as determined by us as discussed below is a significantly restrictive regime.
• Sixth, the present effluent disposal activities of the applicant (ignoring Mantons) are unsatisfactory both in their impact on the surrounding community and their likely impact on the tannery's own land to the extent that this impact can be assumed given the unsatisfactory monitoring regime currently applying.
• Finally, the regime proposed by the conditions to attach to a development consent arising from this application, although applying to different land areas to those subject of the presently approved effluent disposal activities of the applicant, is one that inevitably lead to a position where the development together with the additions or alterations will not only not significantly increase the environmental impacts of the total development that is presently approved but must, in our view, in fact, decrease the maximum potential environmental impacts necessarily inherent from the present approved development.

89 As a consequence, we have concluded that the applicant has the benefit of the exception in cl 35 without the need to rely on any development consent or entitlement of the abattoir. It therefore follows that an environmental impact statement is not required.

Finalising the Environmental Management Plan

90 We now turn to the question of whether or not the Environmental Management Plan (a plan that all the parties agree is required and we require to incorporate an Irrigation Management Plan) should be the subject of approval by the council or not. The plan will also incorporate the two rehabilitation plans. If it were not to be adopted by the council, consideration and approval of the Environmental Management Plan would need to be undertaken by the Court.

91 The key question concerning the finalisation of an Environmental Management Plan is whether there is sufficient detail now available and guidance provided by the conditions of consent (including those determined by us below) for the plan to be approved by the council.

92 An element of some criticality for finalising the terms of the Environmental Management Plan is the necessity to permit use of the eastern irrigation area for limited irrigation prior to the finalisation of the plan. The preliminary irrigation of this area will be necessary as part of the scientific processes to develop to a finalised framework for the Environmental Management Plan and its subsidiary Irrigation Management Plan.

93 This question was raised with the parties by us because we had a concern that terms of the Environmental Management Plan might be regarded as being so fundamental that that the delegation to the council of approval of the plan would constitute inappropriate delegation of the approval of a fundamental element of the application so that any approval was not sufficiently certain – contrary to the decision of the Court of Appeal in Mison v Randwick City Council (1991) 23 NSWLR 734.

94 We devoted several sitting days to go through, in considerable detail, the various conditions proposed before a development approval. That process of discursive exchanges between us and the advocates for the parties and further joint expert conferences enabled resolution of what had, apparently, been intractable differences of opinion between the parties resulted in generally agreed terms of relevant conditions if approval were to be granted.

95 As a result, the final version of the conditions of consent submitted by the parties (with annotations noting each party's position on those conditions that remained in dispute and requiring determination by us) showed that these remaining matters were of comparatively limited compass. Indeed, as is clear from our determination on these contested conditions later in this decision, there is now a significant degree of detail and certainty, contained in the conditions, of the work that is necessary to prepare the Environmental Management Plan.

96 In addition, it is important to note that the work undertaken during the course of the various joint expert conferences has led to conditions being developed and incorporated that will have the effect of providing very significant guidance to those drafting the Environmental Management Plan and the incorporated Irrigation Management Plan.

97 Further, following the process undertaken during the hearing in dealing with the conditions of consent, although a number of the conditions remained for our determination we do not consider that we have been left with significant unresolved matters of a disputed technical nature so as to require our supervision of the finalisation of the Environmental Management Plan in order to avoid doubts about sufficient certainty to a development consent to be granted as a consequence of this decision.

98 As a consequence, we are satisfied that the degree of technical certainty and predictability to be derived from the proposed conditions of consent, coupled with the information available from the agreed positions contained in the several joint expert reports, renders the preparation of the Environmental Management Plan (and its subsidiary Irrigation Management Plan) matters of technical implementation. Nevertheless, we note that these plans will incorporate a range of matters that are of significant importance to the tannery, council, the second respondents and, indeed, the residents of Aberdeen generally.

99 Having considered all of the material and the final decisions we have now made dealing with the terms of the disputed conditions of consent, we are of the view that there is a sufficiently precise framework laid down for the Environmental Management Plan and what is to be done to prepare it that delegation of approval of the Environmental Management Plan to the council would not be an impermissible abrogation of our responsibilities.

Is there sufficient information to grant approval?

100 We turn, finally, to the last of the major issues – the issue of whether the extent of the information we have available to us, at the present time, renders it is possible for us to grant approval based on the present state of knowledge. To considerable extent, the answer to this is subsumed by the earlier discussion about the merits of the proceedings and the constructive results of the joint expert conferencing process.

101 Whilst, at the commencement of the proceedings, it was undoubtedly the position that the state of the technical information (available from the various expert reports and able to be understood during the course of the site inspection) was seriously deficient. Indeed, the then state of the technical information was sufficiently unsatisfactory and uncertain that it would not have permitted granting consent to the development.

102 However, we are satisfied that the extensive joint conferencing that has been undertaken on a multidisciplinary basis by a range of the experts and, separately, by the odour experts on matters arising within their discipline, has cured sufficiently the significant information deficiency and likely uncertainty of future environmental impacts.

103 We should note that our examination of the various joint expert conference reports makes it clear that the experts undertook a progressive and positive evolutionary process on instructions from us covering a range of matters that needed to be considered by them. Indeed, although this process protracted the hearing, it should be evident from this decision, that conferencing has resulted in a significantly improved proposal compared to that for which approval was originally sought.

104 We should also note, in this regard, that the participation of the various experts retained by the second respondents, whilst initially resisted by the applicant, has led to those experts playing a significant and constructive role in this evolutionary process of expert opinion. What might be described as the initial agnosticism expressed by those advising the second respondents has resulted in a significant improvement of the quality of the expert material now available to us to inform our decision-making. We observe that this may not have been the resultant position had those experts are not taken part in the joint conferencing process.

105 This process is akin to the one that the former Chief Judge of the Court, McClellan CJ, referred to as the ‘traffic light approach’. The red light being equal to a refusal, a green light for an approval and as in this case, an amber light - a possible approval contingent upon certain set of suitable conditions of consent and alterations to the proposal. Further, the approach we have undertaken by requiring issues to be resolved by way of directed extensive joint expert conferencing during the course of the proceedings is an appropriate response to the Civil Procedure Act 2005, s 56 (1) requiring Act us to facilitate the just, quick and cheap resolution of the real issues of the proceedings.

106 Having made those observations, we are, nonetheless, satisfied that we now have sufficient to information to grant approval for the proposal.

The contested conditions

107 A considerable period of time during the final stages of the hearing was also devoted to the question of what would be the appropriate conditions of development consent if a development consent were to be granted for the proposal. Although a small number of conditions remained in the contest at the conclusion of several days of hearing in dealing with this topic, there was, as we have earlier noted, broad consensus between the parties as to what would be the appropriate operational matrix for the conditions.

108 However, as there are still a number of contested conditions, we have dealt with them by referring to the relevant condition number; stating, briefly, our determination on that condition and, as necessary, giving short reasons for that position.

No	Position adopted	Short reasons
Schedule A - General
1.3	Approval by the council	See earlier discussion
1A(a)	Applicant	Given the decision immediately below concerning the responsibilities of the audit team, the team leader does not need to be an accredited site auditor as no amendment is to be approved by the audit team. This arises because of the position we have determined that the Irrigation Management Plan should form part of the Environmental Management Plan and thus any amendments to it will need to be approved by the council.
1A(c)	Neither position is adopted	This provision is to read “review and make recommendations to the Council for approval of any amendment to the Irrigation Management Plan (IMP).”
1A	Tannery land remains	Unless there are some reason that the portions identified in this definition do not form part of the applicant’s landholdings (if there be an error, this can be corrected pursuant to the slip rule), it is appropriate to identify, specifically, all possible land which could be the subject of effluent disposal and that would be the totality of the applicant’s landholdings.
2.3	Respondents	We understand that the purpose of this application is to provide a complete regime for the disposal of effluent on the Tannery land and thus the strict regime proposed by the respondents is appropriate.
4.1	Respondents	This consent is intended to deal not only with effluent irrigation on the eastern irrigation area but also with the operation of the Rouchel Road dams. The applicant’s alternative would permit different forms of effluent to be disposed of through the dams and we have no evidentiary basis to permit this to occur.
4.2	Respondents	No reason is given for the removal of dealing with chemicals for which no material safety data sheet is available. There is no evidence that the proposed provision would breach any commercial confidentiality.
7.1	Respondents	The measures proposed by the applicant are more appropriate to be dealt with through a modification application rather than an imprecise approval process specified in this condition of consent.
7.2	Applicant	This provision is to be removed – we are also not aware of any evidence to support its inclusion and the respondents have not provided any reference to such evidence.
8.1(f)	Applicant	This provision is to be removed – we are also not aware of any evidence to support its inclusion and the respondents have not provided any reference to such evidence.
8.3(a)	Respondents	The applicant’s proposed words are to be removed – we are also not aware of any evidence to support its inclusion and the applicant has not provided any reference to such evidence.
8.3(c)	Applicant	This provision is to be removed – we are also not aware of any evidence to support its inclusion and the respondents have not provided any reference to such evidence.
8.4	Respondents	For the reasons given by the respondents.
11	Respondents	We are satisfied that buffer areas are appropriate taking a precautionary approach to the consequences of failure of any of the provisions in the Environmental Management Plan. As we consider that buffer areas are appropriate and the applicant has not proposed any alternative to the conditions proposed by the respondents, the respondents’ conditions are adopted.
12.4	Respondents	The insertion of the words to establish the meteorological conditions under which spray drift must cease is the additional insertion from the joint expert report. However, the purpose of the experiments is to ensure that spray drift must be contained within the site boundary. It seems to us logical that, if this aspiration is to be met, the circumstances under which spray must cease must also be determined. That is clearly the intention of the respondents proposed condition 12.4 and it is to remain.
13	Respondents	The applicant has given no reason why the requirements prohibiting off-site surface of groundwater flow of tannery effluent should be removed. It is appropriate to incorporate such a prohibition in conditions of consent so that there can be regulatory enforcement rather than leaving legal remedies for such failure to contain effluent on the site to affected private landholders.
16.3	Respondents	The Irrigation Management Plan, as earlier made clear, is to be a subset of the Environmental Management Plan. As a consequence, amendments seeking to draw some distinction between them are ill founded.
18.6	Respondents	The position proposed by the applicant is more appropriate to be dealt with through a modification application rather than an imprecise approval process specified in this condition of consent.
19.1	Neither	The establishment and charter of the Committee should remain a function of the Council. These conditions should only prescribe the responsibilities of the applicant in its participation in the committee. There is no need for Schedule D as it potentially may lead to conflict if the council wishes to expand or otherwise modify the membership or role. Changes in the future should not require the agreement of the applicant but may be appropriate that the applicant should be consulted – however that is a matter properly for the council. 19.1 is to read: The Aberdeen Tannery Community Consultative Committee (“the Committee”) is the committee of that name constituted by resolution of the Council. Schedule D is to be deleted.
19.2(c)	Respondents	See 1A above
23.1	Respondents	It is intended, as we understood it, that approval of this proposal would constitute the sole regime for effluent disposal from the tannery on the applicant's landholdings at Aberdeen. Surrender of the various rights, if they exist, as set out in this provision will ensure that this occurs.

Schedule B - Monitoring
No	Position adopted	Short reasons
1.1	Respondents	If there is some valid reason why the Department of Environment and Climate Change proposes alternative monitoring locations to those agreed by the experts in these proceedings, it would be open to the applicant to lodge a modification application with the council to resolve that. For now, monitoring locations have been identified by the experts in these proceedings and, absent some good reason to do so, changing those locations should not be delegated to another body (no matter how expert it might be).
Table 1	Respondents	The precautionary approach is preferable. There will always be the opportunity for the applicant to seek to have a more permissive monitoring regime, by modification, if significant experience demonstrates that this might be appropriate. However, in the first instance, a precautionary approach dictates that more frequent monitoring is preferable until the appropriateness of some alteration to this frequency is demonstrated to be sufficient.
2.1	Respondents	No reason has been demonstrated by the applicant why an automated system is neither appropriate nor possible. Automatic monitoring is preferable to some form of human inspection which will always be subject to the various vagaries of human frailty.
3.5(a)	Respondents	The words proposed to be omitted appear to be self-evidently the purpose for which the modelling is undertaken. The Environmental Management Plan is intended to be a comprehensive document and incorporate management of the eastern irrigation area.
3.5(d)	Applicant and First respondent	The proposal is contrary to the joint expert opinion, as we understand it. The purpose of the monitoring was specifically to enable the model to be developed as part of the preparation of the Environmental Management Plan. Other ongoing monitoring specified provides an appropriate operational regime.
5.3	Respondents	The requirements of quality testing to be undertaken if groundwater is present during the monthly monitoring was agreed by the experts, on our reading of the relevant extracts from the joint expert reports. In particular, the trigger for testing in Condition 5(d) of Exhibit F, Tab 19, is the presence of water during the monthly monitoring.
9.1	Court amendment: Minimum frequency of monitoring added to each parameter as follows: (a) Chloride – monthly (b) Sodium – monthly (c) EC – weekly (d) pH – weekly (e) SAR – monthly (f) ANZECC criteria for irrigation H20 – monthly	For clarity
9.2	Court condition: Each of the individual tannery effluent concentration values for the parameters listed in para 9.1 (a) to (f) above is to comply with the stated criteria for a minimum of 90 % of all tests for that value within a 12 month period. The 90 % minimum performance level relates to all the collated individual criteria values and not average values.	Reworded for clarity of intent - so that it is clear that the 90 % minimum performance criteria is meaningful and provides for an element of flexibility to allow for some inherent variations in effluent quality, while maintaining reasonable and obtainable standards.
9.3	Applicant plus Court amendment In addition to the above, annual monitoring of total phosphorous and nitrogen will be undertaken to allow mean annual calculations to be made to evaluate and ensure that all nutrients applied to the growing crops in the EIA are of a sustainable volume and in a steady state with respect to soil conditions and the related vegetation.	For clarity and also because annual monitoring of the pH and N is consistent with the requirements of Table 2 – Soil Monitoring. Purpose is to allow for a testing regime that evaluates the whether or not the nutrient application is sustainable.
Schedule C - EMP
No	Position adopted	Short reasons
1.3	Respondents	Consistent with an earlier decision set out above.
1.4	Respondents	No reason is given by the applicant for the removal of the requirement to address the Joint Expert Statement: Water & Soil For Site Sustainability. Absent any cogent reason for the deletion of this provision, it should remain.
1.6	Applicant	During the course the hearing, we adopted the position that regulation at “end of pipe” was appropriate rather than seeking to become involved in operational decisions of the tannery. We also accepted that there were likely to be process matters that were “commercial-in-confidence” and that nothing needed to be revealed which would enable commercially sensitive identification relating to the tannery's processes unless this were essential for environmental management reasons. We do not consider, absent some reason being advanced (and we are unable to hypothesise one), why the source of a chemical should be identified if its presence is sufficient for the purposes of dealing with matters arising from its possible impacts.
2.2	Respondents	See earlier comments concerning the Irrigation Management Plan forming part of the Environmental Management Plan. This also applies, relevantly, throughout the clauses in this schedule.
2.2(d)(2)	Respondents	See our earlier decision on Schedule A clause 11.
2.7	Respondent	2.7 (a) The ECe values used are trigger values as well as being in accordance with the Conditions in Schedule A 8.1 (a), whereas the Applicant proposes a slightly less restrictive cessation value applied to the undefined root zone (Schedule A, 8.3 (b)). The Court considers this is a lower standard. It would be better management practice to apply trigger values/criteria to the development of the salt balance model since these are the minimum standards that are required to be achieved as part of the conditions of consent. 2.7 (b) The ECe values used are trigger values as well as being in accordance with the Conditions in Schedule A 8.1 (a) and thus should form the basis of the condition. The Applicant in effect proposes a lower standard. 2.7 ( c) The ECe values used are trigger values as well as being in accordance with the Conditions in Schedule A 8.1 (a) and thus should form the basis of the condition. The Applicant in effect proposes a lower standard by proposing levels listed in Condition 8.3, Schedule A.
2.8(b)	Applicant	Consistency with condition in Sched. B – Monitoring 9.3
2.8(c)	Respondents with Court amendments If deliberate leaching of effluent is required to ensure that soil salinity does not rise to unacceptable levels, then the IMP must demonstrate how excess nitrogen leaving the plant root zone will be managed and that it will not be sufficient to deleteriously affect adjoining environmental and ecological systems.	Need to ensure no deleteriously off-site impacts arising from irrigation activities.
2.9(g)	Applicant	The requirement by the Respondents is too prescriptive and does not allow for sufficient flexibility for the Applicant to respond to variations in rainfall and evaporative conditions over the seasons. Nevertheless, sufficient protections remain built into the Conditions to protect the soil systems to allow this flexibility.
3.2	Applicant	As discussed earlier in the principal body of our decision, we are of the view that it is appropriate for the Council to be the approval body for the Environmental Management Plan. We do not consider it appropriate to derogate from that in this provision. Although the audit team and the Department of Environment and Climate Change are to be consulted, for the reasons we have earlier set out, we are satisfied that this approval process can be appropriately left to the council.

Schedule D – Community Committee

As an opening comment, we observe that there is a misplaced apostrophe in the objectives and that the word “it’s” should be replaced with a word “its”.

However, we accept that this committee is one which has been established by resolution of the council and should remain a creature of the council (see Schedule A at 19.1).Schedule D is to be deleted.

109 As a consequence of all that is earlier set out, we have concluded as follows:

• no environmental impact statement is required;
• the proposal warrants approval on the merits;
• leaving finalisation of the Environmental Management Plan to the council whilst granting development consent would not lead to a development consent that lacked certainty; and
• we have sufficient information to enable us to finalise the matter on the merits.

110 We have also determined what is the appropriate condition to be applied (or varied and applied) with respect to each of the conditions of consent that remained in dispute between the parties at the conclusion of the hearings.

111 It necessarily flows from our conclusion that the orders of the Court are:

1. The appeal is upheld;
2. Development Application 226/08 for:

• The use of the existing waste water treatment facility and associated Irrigation infrastructure on Lot 53 DP739487 and Lot 159 DP712988 for the treatment of wastewater from Aberdeen Tannery.
• The installation of an above ground Effluent and Freshwater Pipes between the Tannery and the wastewater treatment system on Lot 53 DP739487,
• The replacement of the existing open channel that connects the wastewater system on Lot 53 DP739487 to the Eastern Irrigation Area with an Irrigation Pipe
is granted development consent subject to the conditions in Annexure A; and

3. The exhibits are returned.

Directions

112 As a consequence, we direct that the council file, in document and electronic form (the electronic form to be by e-mail to the Court for the attention of Senior Commissioner Moore), consolidated and settled conditions of consent reflecting this decision by close of business on Thursday 27 August 2009;

113 The matter is listed for telephone callover before the Registrar on Monday 31 August at 10.30AM; and

114 If the direction in (112) is complied with, Senior Commissioner Moore will make orders in chambers and the telephone callover will be vacated.

Senior Commissioner Commissioner of the Court

31/08/2009 - Row in table concerning Condition 8.3(c) not included in original. - Paragraph(s) Paragraph 108