West Australian Landfill Services Pty Ltd and Shire Of Serpentine-Jarrahdale
[2007] WASAT 297
•16 NOVEMBER 2007
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | DEVELOPMENT & RESOURCES |
| ACT | : | PLANNING AND DEVELOPMENT ACT 2005 (WA) |
| CITATION | : | WEST AUSTRALIAN LANDFILL SERVICES PTY LTD and SHIRE OF SERPENTINE- JARRAHDALE [2007] WASAT 297 |
| MEMBER | : | MR D R PARRY (SENIOR MEMBER) MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) MR P CURRY (SESSIONAL MEMBER) |
| HEARD | : | 30 JULY 2007, 31 JULY 2007 (VIEW), 9 AUGUST 2007, 10 AUGUST 2007, 26 OCTOBER 2007, 29 OCTOBER 2007 AND 30 OCTOBER 2007 |
| DELIVERED | : | 16 NOVEMBER 2007 |
| FILE NO/S | : | DR 89 of 2007 |
| BETWEEN | : | WEST AUSTRALIAN LANDFILL SERVICES PTY LTD Applicant |
| AND | ||
| SHIRE OF SERPENTINE-JARRAHDALE Respondent | ||
| Catchwords: |
Town planning - Development application - Class II landfill facility - Inert and putrescible landfill - Modification and expansion of existing landfill - "Special Use - Waste Disposal, Composting and Associated Landfill Activities" zone - Whether proposed development is acceptable having regard to the prospect of
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expansion of townsite to within 700 metres of development site - Separation distance - Whether greater than generic buffer under EPA Guidance required - Whether major industrial development - Whether cumulative impacts - Whether circumstances are not typical - Meteorological condition - Katabatic winds - Gas and odour - Leachate drainage system - Geotechnical stability - Whether detailed engineering design required at development approval stage - Whether detailed engineering design is relevantly incidental
Legislation:
Environmental Protection Act 1986
(WA), s 38(1), s 100(1)(b) cl 5.11, cl 5.11.1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 165, s 242, s 252(1)
Result:
Development approval granted subject to conditions
Category: B
Representation:
Counsel:
| Applicant | : | Mr PG McGowan |
| Respondent | : | Mr PL Wittkuhn |
Solicitors:
| Applicant | : | Clayton Utz |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Phil Lukin Pty Ltd & Anor and Shire of Busselton [2006] WASAT 124
[2007] WASAT 297
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 This case concerned a development application to modify and
expand an existing inert and putrescible landfill facility so as to extend its operation from approximately eight to 15 years. The land is subject to a site-specific "Special Use - Waste Disposal, Composting and Associated Landfill Activities" zoning. Residential development is likely to take place during the extended operation approximately 700 metres from the site and approximately 850 metres from the area of the proposed landfill.
The principal issues in the case concerned:
• alleged planning conflict between the landfill and the likely residential development; • adequacy of a generic 500 metre separation buffer; • landfill gas and odour; • leachate management; • methodology of groundwater monitoring; and • geotechnical stability.
3 The Tribunal determined that the site-specific zoning contemplates
the continued use of the site for landfilling. The Tribunal considered that, in light of the zoning and the physical distance between the site and the location of the likely future residential development, there is relevantly no land use conflict. The Tribunal found that there is no basis to depart from the generic buffer of 500 metres for residential subdivisions and in particular that the proposed development is typical of regional landfills. The buffer is intended to protect sensitive land uses from unacceptable impacts outside the buffer area, not to eliminate all impacts.
4 The Tribunal determined that the proposed leachate management
system is adequate and that the proposed development is acceptable in relation to the risk of groundwater contamination. Finally, the Tribunal found that the landform of the proposed development will be stable.
5 The Tribunal concluded that the best evidence of the likely
environmental performance of the proposed development is the
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performance of the existing landfill over the past seven years.
Development approval was granted subject to 21 conditions.
Introduction
6 West Australian Landfill Services Pty Ltd (WA Landfill) seeks
review under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) of the deemed refusal by the Shire of Serpentine-Jarrahdale (Shire or Council) of a development application for approval to the modification and expansion of the South Cardup Landfill Facility which is located at Shale Road, Cardup, approximately 250 metres east of South Western Highway (site).
The review was conducted over seven days. On 31 July 2007, the members of the Tribunal had a detailed view of the site accompanied by representatives of the parties.
8 On 9 August 2007, the Tribunal gave leave under s 242 of the
PD Act to Mr Alan Clarkson, a local resident and the President of the Serpentine-Jarrahdale Ratepayers' Association, to make a submission in relation to the application. Mr Clarkson's principal concerns relate to groundwater monitoring methodology, the impact of the development on future planning of the area and odour. These concerns are also raised in the Shire's issues 5, 1 and 3, respectively, and are addressed below in the assessment of those issues.
Site and locality
9 The site is located on the western scarp of the Darling Range
approximately 35 kilometres south of the City of Perth, 4 kilometres south of the Byford townsite and 3 kilometres north-east of the Mundijong townsite. The site has an area of 39 hectares and comprises Lot 10 on diagram 89658 and portion of Lot 11 on diagram 89270.
10 The site is zoned "Rural" under the Metropolitan Region Scheme (MRS) and "Special Use - Waste Disposal, Composting and Associated Landfill Activities" under the Serpentine-Jarrahdale Shire Town Planning Scheme No 2 (TPS 2 or Scheme).
11 The nearest urban settlement to the site is at Cardup Siding
approximately 3 kilometres to the north-west. The nearest residential dwelling is located approximately 650 metres from the eastern boundary of the site. No residential dwellings have a view into the site as a consequence of the surrounding landform.
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12 The land to the immediate north and south-east of the site is zoned
"Special Use - Extractive Industry" under TPS 2. There is a hard rock quarry on the adjoining property to the south-east. There is a motocross track on the property between the western boundary of the site and South Western Highway. A brickwork is located approximately 1.7 kilometres to the north-west.
13 To the west of South Western Highway in the vicinity of the site is a
large Bush Forever area. To the south-west of the site, beyond the Bush Forever area, is an area the subject of substantial urban expansion proposals referred to as the Mundijong/Whitby Urban Cell. This area has recently been rezoned from "Urban Deferred" to "Urban" under the MRS and is also proposed to be rezoned from "Rural" to "Urban Development" under Amendment No 153 to TPS 2. Amendment No 153 has been approved by the Council and is now awaiting final approval from the Minister for Planning and Infrastructure. The Urban Cell is located a minimum of approximately 700 metres from the boundary of the site and a minimum of approximately 850 metres from the location of the proposed landfill operation.
Existing and proposed development
14 The existing and proposed development is a Class II landfill facility.
A Class II landfill facility is licensed by the Department of Environment and Conservation (DEC) to accept the following non-hazardous wastes:
• inert waste (clean fill, building demolition waste, limited quantities of tyres); • putrescible waste (municipal household waste, food waste, office and packaging waste, non-chemical waste from manufacturing and industry, sewerage treatment plant grits, screenings, biosolids, animal manure and carcases); • special waste (asbestos and clinical waste not requiring incineration); and • contaminated solid waste meeting waste acceptable criteria specified for Class II landfills.
The following hazardous wastes are not accepted at a Class II landfill facility:
• toxic wastes; [2007] WASAT 297
• flammable wastes; • corrosive wastes; • carcinogenic wastes; • poisons; • infectious wastes; or • radioactive wastes.
16 The existing facility is one of six regional landfills in the
Perth metropolitan region. The facility receives approximately 200 000 - 250 000 tonnes of waste per annum, which is approximately 20% of the waste that is landfilled each year in the Perth metropolitan region.
17 The site receives on average between 80 and 100 single unit trucks
and semi-trailers per day from waste disposal companies (75%), local authorities (20%) and other customers (5%). The trucks and semi-trailers drive over a weighbridge and then directly to the active tipping site, which is generally confined to one limited area, where the waste is dumped.
18 The tipping site is constantly manned. After waste is dumped, it is
spread and compacted by a bulldozer and a 50 tonne compactor on the tipping site. At the end of each day's operation, 150 millimetres of sand is placed over the waste. At the beginning of the next day's operation, the sand is removed by the bulldozer.
19 The facility operates from 6 am - 5 pm Monday to Friday,
7 am - 12 noon Saturday and 7 am - 2 pm public holidays (excluding
Good Friday and Christmas Day).20 The existing facility received environmental approval from the
Minister for the Environment on 5 May 1994 and development approval from the Shire on 23 September 1994. The development was approved to take place in two stages - Stage 1 comprising Cells 1 - 4 up the slope of the scarp to the east and Stage 2 comprising Cells 5 and 6 lower down the slope and closer to South Western Highway to the west.
21 The facility commenced operation in September 1999. Stage 1 was
completed in January 2005 and was subsequently capped. Stage 2 commenced in February 2005 and, at current rates of disposal, is expected
[2007] WASAT 297
to be completed in mid-2008. Stage 1 has an area of 6.9 hectares and a maximum landfill height of 173 metres AHD. Stage 2 as approved has an area of 7.8 hectares and a maximum landfill height of 140 metres AHD.
22 The proposed development involves utilising the "valley" between
Stages 1 and 2 for landfill in two new cells, Cells 7 and 8, and deleting the north-western portion of Stage 2 which is closest to South Western Highway. The operation of the existing landfill would remain essentially unchanged. While the proposed net increase in landfill area is only 2.8 hectares or 19%, the consequent increase in landfill capacity would be 2.2 cubic megametres or 85%. The final proposed landfill profile would essentially fill in the gap between Stages 1 and 2, with a relatively constant increase in height from Stage 2 to Stage 1. The proposed development would increase the operational life of the landfill facility from approximately eight years to approximately 15 years.
23 The modified landfill footprint would require the removal of some
trees. However, substantial treed areas would be retained along the boundaries of the site and these are proposed to be supplemented by additional planting. A sedimentation dam between the northern parts of Stages 1 and 2 is proposed to be relocated.
The proposed development includes cell lining, gas extraction, leachate management, surface water management and landfill capping.
It is proposed to line the floors of Cells 7 and 8 with a liner system
comprising:
• minimum 2.0 metres thick natural unsaturated material above the water table; • 300 millimetre thick clay rich engineered fill; • geosynthetic clay liner; • geomembrane; and • cushion geotextile.
26 The existing facility has a site-specific designed landfill gas
extraction system installed and maintained by a specialist landfill gas management company, LMS Generation Pty Ltd (LMS). Mr David Williams, LMS national gas manager, gave evidence - which we accept - that the landfill gas extraction system provides safe and efficient extraction of landfill gas under partial vacuum.
[2007] WASAT 297
The gas extraction system is designed to accommodate increased gas flows as the landfill expands. The existing system has been deliberately "over-engineered" to ensure correct extraction rates can be applied, including from the proposed development. Mr Williams explained that gas extraction would be improved by the proposed development, because it would create a single landfill in place of two separate landfills.
27 LMS will install both vertical and horizontal gas extraction wells.
Vertical wells will be spaced at 35 - 50 metre intervals and drilled to approximately 75% of the depth of waste in place. Horizontal gas wells will be spaced at 40 metre intervals. Perimeter horizontal gas wells will also be installed against the side liner. Although the horizontal and vertical gas wells would not be able to be accessed under landfill, Mr Williams explained that they are perforated pipes in themselves so as to enable the extraction of gas. In consequence, if subsidence of the landfill created a hole in a pipe at depth, it would not pose a difficulty, because the hole would work as an extraction point for the gas.
28 Mr Williams explained that the existing landfill gas extraction
system was installed in about 2000 and, for the first four years of its operation, disposed of gas by enclosed flaring. Approximately two years ago, modular electricity generation units were installed at the site which utilise the extracted gas to generate electricity which is exported to the local power grid. Currently three modular units operate at the site creating sufficient electricity to power a total of 3000 houses. There is capacity to add additional modular units and increase the electricity exported to the grid. As landfill gas reduces within the landfill over time, the modular units can be progressively decommissioned. Ultimately, the system would return to flaring. Flaring would cease once the landfill gas is no longer combustible.
The proposed leachate management system consists of 300 millimetre thick leachate collection aggregate and perforated drainage pipes which drain towards a sump at the lowest point in the cell. The leachate is then pumped from the sump and treated. The proposed development would utilise two existing leachate ponds to the south-west of Stage 2.
30 Surface water management during the operational phase of the
proposed development would consist of new and existing diversion drains to divert clean water around the site. All rainfall that falls on any working areas is treated as leachate and managed accordingly.
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31 The landfill cap is currently proposed to consist of 500 millimetre
thick engineered clay cap, 500 millimetre thick subsoil layer and 300 millimetre thick topsoil layer. However, best practice may change over the lifetime of the proposed development depending on the results of the Australian Alternative Covers Assessment Program project currently being conducted across Australia. Vegetation is proposed to be planted on the cap to mitigate the effects of erosion. Once the site has been capped and rehabilitated, surface water would be managed through drains constructed on the benches of the landfill - on top of the landfill cap - to collect and direct run-off to perimeter drains.
Development application
32 In April 2003, WA Landfill applied to the Shire for development
approval for the modification and expansion of the landfill facility under both the MRS and TPS 2. The Shire referred the development application to the Environmental Protection Authority (EPA) for assessment under s 38(1) of the Environmental Protection Act 1986 (WA) (EP Act). In December 2005, the EPA advised WA Landfill that the proposal had the potential to be assessed as an Assessment on Referred Information (ARI) under the EP Act. Updated documentation was submitted to the EPA in February 2006 for consideration under this process and was further expanded in April 2006 to incorporate additional requested information.
33 On 24 April 2006, the EPA issued Bulletin 1218 recommending that
the Minister for the Environment approve implementation of the proposal.
The EPA concluded that:"The proposal is capable of being managed in an environmentally acceptable manner such that it is unlikely that the EPA's objectives would be compromised, provided there is satisfactory implementation of the recommended conditions and the proponent's commitments …"
34 Eighty-six appeals were lodged under s 100(1)(b) of the EP Act with
the Minister for the Environment against the level of assessment set by the EPA. The majority of appellants indicated that the current location of the landfill site is inappropriate and the facility should be closed and relocated to a more suitable area.
35 On 28 September 2006, the Minister for the Environment issued a
decision in which he supported the ARI level of assessment set by the EPA in Bulletin 1218, but imposed five additional requirements
[2007] WASAT 297
in relation to the carrying out of the proposal concerning stakeholder consultation, leachate management, operational contingency plans, decommissioning and post-closure management, and financial assurance.
36 In the interim, in light of the passage of time and intervening events,
a revised development application was lodged with the Shire in November 2006 for approval for the proposed development under the MRS and TPS 2. These proceedings are for the review of the deemed refusal of the revised development application. However, it is common ground that the proposed development before the Tribunal is substantially the same as the proposal that has been the subject of environmental assessment by the EPA and the Minister for the Environment.
37 The Shire advertised the development application to public
authorities and the community. In response, the EPA referred to its Bulletin 1218 and raised no objection to the proposed development. Main Roads WA also raised no objection. Individual letters of objection were received from the Mundijong Thoroughbred and Standard Bred Trainers' Association Inc, the Serpentine-Jarrahdale Ratepayers' Association and nine residents. In addition, 26 form letters of objection were received from a total of 15 addresses. A submission was also received from a town planning consultant acting for an adjoining landowner which "does not object to the modified footprint as such, recognising that the land use is already approved and the modified footprint offers some improvements to setbacks and operational practices", but arguing for a five year time limited consent.
38 As noted earlier, the proceedings are for review of the deemed
refusal of the development application. Although the original development application was lodged in April 2003 and the revised/current development application was lodged in November 2006, the proposed development has not been assessed or determined by the Council on its merits. Shortly before the first part of the hearing, the Council met and endorsed the statements of issues, facts and contentions prepared by its solicitors under instructions from its Executive Manager, Planning and Regulatory Services.
Issues for determination
The Shire identified the following six issues which it contends are determinative in relation to the proposed development:
1. Whether the proposed development is acceptable having regard to the prospect of expansion of the
[2007] WASAT 297
Mundijong/Whitby Townsite during the carrying out of the development or any continuing impact of the development.
2. Whether a separation buffer of greater than 500 metres between the proposed development and existing or future residential development is appropriate.
3. Whether the proposed development is acceptable in relation to gas and odour.
4. Whether the proposed leachate management system is adequate.
5. Whether the likely environmental impact of the proposed development is acceptable having regard to previous monitoring.
6. Whether the landform of the proposed development is likely to be stable.
The Tribunal will address each of these issues in turn.
Expansion of the Mundijong/Whitby townsite
41 As noted earlier, the Mundijong/Whitby Urban Cell has recently
been rezoned from "Urban Deferred" to "Urban" under the MRS and its rezoning from "Rural" to "Urban Development" under TPS 2 is pending final approval by the Minister for Planning and Infrastructure. As also noted earlier, the closest portion of the Mundijong/Whitby Urban Cell is located approximately 700 metres from the boundary of the site and approximately 850 metres from the closest part of the proposed landfill. In order for residential development to commence in the Urban Cell, relevant planning authorities must still approve a District Structure Plan, a Local Structure Plan and a subdivision plan, and conditions of subdivision approval, including carrying out infrastructure works and obtaining utility services on the land, must first be cleared. The evidence indicates that, although the landowner is keen to sell lots as soon as possible, it is likely that the first lots will not be developed and sold until about mid-2010 to mid-2011, having regard to the remaining stages of the planning process. The evidence indicates that the landowner intends to commence residential development approximately 800 metres to the west of South Western Highway, which is over 1 kilometre from the site boundary, and then proceed west, that is, away from the site.
[2007] WASAT 297
The easternmost part of the Urban Cell, which is at a higher contour, is likely to be developed subsequently. It is likely that between 1250 - 1800 lots, or approximately 42% - 60% of the residential subdivision in the closest part of the Urban Cell to the site, will be developed during the lifetime of the proposed landfill development.
42 Mr Bradley Gleeson, the Shire's Executive Manager, Planning and
Regulatory Services, gave evidence that the rezoning of the Mundijong/Whitby Urban Cell "indicates that the planning authorities are satisfied that urban development within those cells is timely" and "should be regarded as a constraint to prolonging waste disposal at the subject site, rather than vice versa". Mr Gleeson also expressed the opinion that at the time when development approval was granted for Stages 1 and 2 of the landfill, the community and Council "was of the clear understanding that the development would finish within a 15 year period" from approval in 1994.
43 However, as Mr Larry Smith, a consultant town planner who gave
evidence on behalf of WA Landfill, observed, the strategic planning of the locality has recognised both urban development of the Mundijong/Whitby Urban Cell and landfill development of the site for a number of years. In particular, the Council's Rural Strategy in 1994 and the South-east Corridor Structure Plan in 1996 (Structure Plan) reflected a clear intent for the Mundijong/Whitby Urban Cell to become urban. The Structure Plan proposes that the Mundijong townsite will accommodate a target population of around 30 000 people. Significantly, the Structure Plan also noted that a new regional waste disposal site would be required and that "a major facility is proposed at Cardup with a lifespan of 35 - 40 years". Mr Gleeson and Mr Smith agree - and the Tribunal concurs - that this statement is probably a reference to the site which is the subject of these proceedings. As Stages 1 and 2 were only expected to have an operational life of 15 years, the Structure Plan recognised that ultimate expansion of the approved facility was proposed.
44 Furthermore, after having granted development approval for Stages 1
and 2 of the existing facility on 23 September 1994, the Shire facilitated the rezoning of the site on 5 July 1996 from "Rural" to "Special Use - Waste Disposal, Composting and Associated Landfill Activities". Clause 3.3 of TPS 2 states that "no person shall use any land or any building or structure in a Special Use Zone, except for the purpose specified against the description of such land in Appendix 2 to the Scheme". Appendix 2 identifies the only permitted uses of the site as
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"waste disposal, composting and associated landfill activities". The site is
the only land in the Scheme area which is zoned in this way.
Clause 5.11 of TPS 2 states as follows:
"5.11.1 The purpose and intent of the Special Use Zone is to permit the use of land for any specific use not considered appropriate or desirable in any other zone and being a use which Council considers may satisfy a specific need in the locality where the use is proposed.
5.11.2 A description of the land together with the special use to be permitted and any special provisions relating to the land are set out in Appendix 2 and the development and use of the land shall be in accordance with the provisions set out against the description of the land in Appendix 2."
46 In this rather unusual statutory planning context, the Tribunal accepts
the submission made by Mr PG McGowan, counsel for WA Landfill, that, in its "predictive and prescriptive nature", the Scheme contemplates the continued use of the site for landfilling. Clause 5.11.1 of the Scheme clearly suggests that the use of the site for the special purpose of landfilling is appropriate in terms of orderly use and development of land and satisfies a specific need in the locality. The Tribunal also accepts Mr Smith's evidence that the unusual and specific zoning of the site "sends a clear warning to the community and surrounding landowners that waste disposal and associated activities is to be regarded as a longer term use of the land and that due regard needs to be paid to the landfill in making locational or development decisions".
47 In light of the physical distance between the site and the
Mundijong/Whitby Urban Cell and the site-specific zoning of the landfill site, the Tribunal does not consider that either the Urban zoning of the Urban Cell or the Special Use Landfill zoning of the site involves a constraint upon the other. Each zoning reasonably contemplates development in accordance with that zoning, subject to merit assessment. One of the general objectives and purposes of the Scheme is "to zone land for the purposes described in the Scheme so as to promote the orderly development of the land by making suitable provision for land use" (cl 1.6(b)). The site-specific zoning of the landfill site and the Urban zoning of the Mundijong/Whitby Urban Cell both reflect and contemplate
[2007] WASAT 297
orderly development of the Scheme area by making suitable provision for
land use.48 Furthermore, the lack of constraint or conflict posed by the
site-specific zoning of the site for landfill purposes and the Urban zoning of the Mundijong/Whitby Urban Cell is reflected in the Council's resolution to include the following provision in relation to urban development in Amendment No 153 to TPS 2:
"No subdivision or development of incompatible land use will
be supported within the separation distances associated with:
…
• South Cardup Landfill on Lots 200 & 201 Shale Road; … until these uses cease or the separation distances are scientifically determined and approved by Council and the Department of Environment and Conservation. Separation distance requirements are to be determined in consultation with the Council and the Department of Environment and Conservation and are to be shown on the Structure Plan."
49 The "separation distance requirements" referred to in this provision is
relevantly a generic buffer distance of 500 metres which is discussed in relation to issue 2 below. As the minimum separation distance between the site and the closest potential urban development is approximately 700 metres, the applicable and proposed statutory planning provisions do not involve any conflict or constraint on the proposed development.
50 Furthermore, whatever the time frame that was contemplated for
Stages 1 and 2 when the existing landfill facility was approved by the Shire in 1994, the Shire's subsequent site-specific rezoning of the site gave rise to a reasonable expectation that the area which is the subject of the proposed development could be utilised, subject to merit assessment, for landfill.
51 Finally, Mr PL Wittkuhn, counsel for the Shire, submits that
landfilling is a unique form of development, because it has a finite life. This submission is correct, because once an area has been landfilled, it cannot be landfilled again. However, the area that is the subject of the
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proposed landfill extension lies essentially between the two approved Stages and is available for the carrying out of the site-specific permissible use.
52 Ultimately, in relation to issue 1, the Tribunal accepts
Mr McGowan's submission that the proposed development is an appropriate use of the site pursuant to current zoning provisions. The proposed development is acceptable having regard to the prospect of expansion of the Mundijong/Whitby townsite.
Separation distance
53 The EPA's Guidance for the Assessment of Environmental Factors - Separation Distances between Industrial and Sensitive Land Uses (No 3 June 2005) (EPA Guidance) nominates a generic buffer distance from Class II and III landfill sites of 500 metres for sensitive uses (subdivisions) and 150 metres for single residences. The EPA Guidance identifies the impacts that are sought to be addressed by the generic buffer distance as gaseous, noise, dust and odour.
Clause 4.4.1 of the EPA Guidance states as follows:
"Where the separation between the industrial and sensitive land uses is greater than the generic distance, there will not usually be a need to carry out site-specific technical analyses to determine the likely area of amenity impacts due to emissions from the industry. The need for technical analyses is likely to be limited to such instances as major industrial developments, industries using new or non-typical processing techniques, or areas subject to cumulative impacts." (Original emphasis.)
Clause 4.2 of the EPA Guidance also states that:
"It is not appropriate to use the generic separation distances where the industry involved is very large, utilises non-typical technology, or in some other way the circumstances are not typical.
Further, the separation distances should be used with caution in strategic and structure planning exercises, and in situations where cumulative impacts may result from the co-location of any industries."
The EPA has also published an Interim Guidance on Odour as a Relevant Environmental Factor which includes the following:
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"If generic buffer distances are met (as set out in the [EPA Guidance] or in appropriate Codes of Practice or Statements of Planning Policy developed by the WA Planning Commission) and the proposed facility is designed for 'best practice' emission control (EPA Guidance Statement No. 55), then no further assessment of odour is required."
57 Also relevant is a draft document published by the then Department
of Environment (DoE) in November 2005 entitled Best Practice Environmental Management - Siting, Design, Operation and Rehabilitation of Landfills (draft DEC report). Section 4.1.3 of the draft DEC report adopts the generic buffer distances in the case of a Class II landfill of 500 metres for residential development and 150 metres for single dwellings prescribed in the EPA Guidance. However, unlike the EPA Guidance, the draft DEC report measures the buffer distance from "the activities capable of causing a nuisance", rather than from the site boundary. The draft DEC report also states that:
"Subject to an evaluation demonstrating that the environment will be protected and the amenity of sensitive areas will not be adversely affected, lesser buffer distances may be applied subject to a risk assessment that considers design and operational measures."
58 Although the generic buffer distances to subdivision/residential
development of 500 metres and to single residences/dwellings of 150 metres are exceeded from the site boundary in this case by 200 metres and 500 metres respectively, the Council contends that the generic buffer distances prescribed by the EPA Guidance are inapplicable as the proposed development:
• is a "major industrial development"/"very large"; • involves or contributes to cumulative impacts; and/or • is not typical in one or more of essentially five respects.
59 In relation to whether the proposed development is a major industrial
development/very large, the Shire relies on the evidence of Mr Gleeson and Mr Andrew Mack, an environmental consultant. Mr Gleeson considers that the proposed development is "very large", because of the size of the footprint, the nature of landfilling and the off-site impacts including odour emission and traffic. However, in answering questions from the Tribunal, Mr Gleeson conceded that "the operation itself
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probably would be very similar to a lot of others that are operating around Perth or in the State". Mr Mack considers that the proposed development is "very large", because it would receive approximately 20% of the total metropolitan waste stream and the size of its footprint.
60 WA Landfill relies on the evidence of Mr Smith and
Mr Noel Davies, an environmental engineer. Mr Smith notes that the active portion of the landfill at any given time is relatively small and contrasts the proposed development with older style landfills which had large active areas. Mr Davies describes the proposed development as "typical of regional landfills". Mr Davies gave evidence that, while working for the Health Department of WA, he was the author of the original document that recommended the 500 metre buffer distance that was subsequently adopted by the EPA. He explained that that document was directed towards regulation of regional landfills, as they existed at the time, which were typically in a scale of 150 000 - 250 000 tonnes per year, that is, comparable to the proposed development.
61 The Tribunal prefers Mr Davies' evidence over Mr Mack's to the
extent that they differ. Mr Davies has extensive, specialist experience in relation to landfills both in government and the private sector. Mr Davies chaired the State Waste Management Board, which advises the state government on waste management policy and legislation, from January 2002 to October 2006. As noted, his experience includes the establishment of the original buffer distance that was ultimately adopted by the EPA. In contrast, Mr Mack's experience in relation to landfills is limited to assessment of one facility which is no longer operating in the Shire's local government area and a facility in Kalgoorlie and regulatory compliance in relation to a regional facility in Perth.
62 Mr Davies' opinion that the proposed landfill is typical of regional
landfills is also confirmed by evidence of the amount of waste received at other regional landfills in the Perth metropolitan region, which is comparable to the proposed development. Furthermore, the proposed development is smaller than the approved landfill facility at the site. It is considerably smaller in its footprint and comprises 85% of its volume.
63 The Tribunal accepts the evidence of Mr Smith that the active
landfill area is relatively small and confined. Other than the footprint, Mr Gleeson's reasons for considering that the proposed development is "very large" relate essentially to the activity of landfilling as such, rather than the particular proposed landfill.
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64 In its submissions, the Shire also refers to the height and scale of the
proposal. However, as noted earlier, the maximum height of the landfill would not increase over the approved height of Stage 1. The scale of the proposal, in terms of its capacity, is less than approved Stages 1 and 2.
The Tribunal finds that the proposed development is not a "major industrial development"/"very large" for a Class II landfill facility.
66 In relation to cumulative impacts, the Shire relies on the evidence of
Mr Mack that there would be cumulative impacts because of the location of the quarry to the south-east. When asked by the Tribunal to identify the cumulative impacts, Mr Mack referred to noise and dust which would be generated both from the landfill activity and from the quarrying activity. Mr Davies agrees that cumulative impacts need to be considered. However, Mr Davies does not consider dust to be a primary issue in relation to the proposed development, because "typically dust isn't a determinant or an impact outside a 500 metre buffer zone within a well run landfill". Mr Davies also referred to the complaints register which has been maintained at the site in accordance with a requirement of the original environmental approval. Between 1999 and 2006, there were only four complaints in relation to dust. There have been no complaints in relation to noise. Furthermore, the Shire presented evidence from 10 lay witnesses, including four residents and six motorists, who each referred to odour generated by the existing facility, but not to dust or noise.
67 In light of Mr Davies' significant, relevant experience in relation to
the operation of landfills and the absence of any significant complaint in relation to dust and any complaint in relation to noise, the Tribunal finds that the area is not subject to cumulative impacts in terms of dust or noise.
68 The Shire contends that the circumstances of this case are not typical
in one or more of five respects.
69 First, the Shire notes that the site is located on an escarpment
whereas the draft DEC report states that "valley landfills are to be avoided as they have inherent environmental problems such as unstable slopes, water infiltration and leachate seepage". The draft DEC report also states that "a valley landfill is by definition located in a drainage line" and that extensive management is required to control stormwater ingress into the landfill.
70 However, Mr Davies notes that the site is at the very top end of a
quite small valley, there are significant levels of water control and the site
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has operated for a number of years without evidence of any difficulty. Mr Davies also points out that it is not uncommon for landfills to have drainage lines through the site.
71 Second, the Shire contends that the proposed development is very
close to the water table. However, as noted earlier, the proposal includes
a minimum 2.0 metre separation from the water table.72 Third, the Shire contends that the circumstances are atypical, because
of the level of odours generated by the existing landfill facility. The Shire presented evidence from four residents and six motorists, none of whom were required for cross-examination.
73 One resident, who lives approximately 2.2 kilometres west of the
site, gave evidence that, during the summer, the prevailing wind is an easterly wind, and when the easterly wind is blowing she can smell odour from the landfill "most of the time", the smell is strongest at night and it is "a rubbish tip smell, a sort of sweet smell which is quite revolting". On about three or four particular occasions during the summer of 2006 - 2007, there was a different and much stronger smell which she describes as "like a sweet, putrid smell". Although she wrote down the dates on which these smells occurred, she has been unable to find the piece of paper, and did not get around to do anything about the smell as she felt that no action would be taken by the authorities because of a response that she once had from the EPA in relation to a dust complaint. A second resident, who lives approximately 4 kilometres west of the site, said that he is affected by odour from the landfill when there is a prevailing easterly wind and that it is a "pungent, sickly rotting smell", strongest in summer and worse in the evening. On three occasions during the summer of 2006 - 2007, the stench was so bad that the family had to go inside. A third resident, who resides over 2 kilometres away, said that in summer he is able to smell the landfill site from his house when there is a strong north-easterly wind blowing, and on his bicycle when he is within 3 kilometres of the site. He described the smell as "similar to that of rotten eggs". A fourth resident, who resides approximately 1 kilometre to the north-east of the site, gave evidence that there are a number of days per year when the smell from the site is noticeable and intrusive. The six motorists gave evidence that, when they drive past the site, they can smell an odour variously described as "a putrid decaying stink", "strong and obnoxious smell of rubbish", "a strong chemical-like smell" and "a foul odour that I would describe as typical of refuse".
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74 The Tribunal does not consider that the evidence of the residents and
motorists demonstrates that the circumstances of this case are atypical. The EPA Guidance states that the generic buffer distance serves to protect "sensitive land uses from unacceptable impacts on amenity that may result from industrial activities, emissions and infrastructure" and to "avoid or minimise the potential for land use conflict". Similarly, Mr Davies explained that:
"It needs to be pointed out that the adoption of a buffer zone and a separation distance will not guarantee that there are never any impacts outside a landfill boundary, but the intention is that there shouldn't be regular and ongoing impacts …"
75 Furthermore, the reports of odour given by residents and motorists is
necessarily subjective. Most significantly, none of the 10 witnesses complained to WA Landfill or the Shire in relation to the odours that they gave evidence about. As Mr Davies explained, the purpose of the complaints register process is to ensure that complaints are addressed. The draft DEC report states that:
"Buffer areas are not an alternative to providing appropriate management practices, but provide for contingencies that may arise with typical management practices."
76 As Mr Davis explained, if complaints are not made, action cannot be
taken to see whether there have been failures of management and to
correct such failures.77 The complaints register indicates that there has been a significant
reduction in odour complaints in relation to the operation of the site, from 34 complaints between 2000 and 2004, at an average of 6.8 per year, to only one between 2005 and 2006. Furthermore, it appears that over half of the odour complaints that have been made since 2000 were from the adjoining quarry, rather than from residents.
78 Fourth, the Shire submits that the circumstances are atypical because
of the high level of engineering required as a result of the valley location of the development. However, for reasons discussed in relation to issue 6 below, the Tribunal is satisfied that the proposed development is acceptable in relation to structural stability. Furthermore, there does not appear to be any relevant connection on the evidence between the level of engineering required and potential odour impacts.
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79 Fifth, the Shire submits that the circumstances of this case are
atypical, because the site is subject to a meteorological condition known as "katabatic winds" which are winds moving down the face of the scarp and continuing as easterlies due to cooling processes during the evening and at night. However, Mr Ramsay Zietek and Mr David Pitt, environmental engineers with specialist experience in relation to air emissions who were called to give evidence on behalf of WA Landfill and the Shire, respectively, said that katabatic winds affect a fairly large part of the Perth metropolitan region that is located away from the coast. Both witnesses also agree that for the purposes of odour modelling, the wind data set from Caversham is appropriate for application at South Cardup. Mr Davies gave evidence that a number of State government policies strongly advocate the siting of landfills in locations which do not have the potential to impact on groundwater within the Swan Coastal Plain. Groundwater and other considerations favour the location of landfills away from the coastal plain and katabatic winds affect a large part of the Perth metropolitan region that is located away from the coast. The Tribunal therefore does not consider that the meteorological condition of katabatic winds has the effect that the circumstances of the proposed development are atypical.
80 Finally, Mr Wittkuhn submits that it is instructive to compare
Class II landfills with dairies and rabbitries, which also have a 500 metre generic buffer under the EPA Guidance. Mr Wittkuhn submits that the EPA, in giving landfills a 500 metre generic buffer, "must have had in mind as a suitable candidate for the application of the 500 metre buffer, a landfill of the order of magnitude of a dairy or rabbitry". This submission is misconceived. There is no evidence before the Tribunal to suggest that there is a scientific consistency in the circumstances that led to the generic buffer of 500 metres in the case of a landfill, a dairy and a rabbitry. Furthermore, the Tribunal does not have evidence in relation to the scientific basis for the formulation of the 500 metre buffer for a dairy or a rabbitry. In contrast, the Tribunal has the evidence of Mr Davies that the 500 metre buffer was originally determined by the Health Department of WA in the context of similar regional landfill facilities to the proposed development and was subsequently adopted by the EPA.
81 The Tribunal finds that there is no basis to depart from the generic
buffer of 500 metres established by the EPA Guidance in the circumstances of this case. A site-specific technical analysis of gas, noise, dust or odour is not required. A separation buffer of greater than 500
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metres between the proposed development and existing or future
residential development is not warranted.
Gas and odour
82 The Tribunal is satisfied on the evidence of Mr Williams referred to
earlier that the landfill gas management system that exists in Stages 1 and 2 and is proposed for the development is appropriate and will properly manage landfill gas.
83 In relation to odour, the Tribunal accepts Mr McGowan's submission
that the generic buffer, where applicable, "builds in" an assessment of odour. Indeed, as noted earlier, odour is one of the impacts on account of which a generic buffer has been nominated. As the generic buffer is exceeded in the case of both existing and likely future residential development, the Tribunal finds that the odour impact of the development is acceptable.
84 Although WA Landfill presented an odour assessment by Mr Zietek
during the course of the hearing which was responded to by Mr Pitt, an odour assessment is unnecessary as the generic buffer is exceeded and the proposed development is not relevantly a major industrial development/very large, the area is not subject to cumulative impacts and the circumstances are not atypical. Furthermore, as the odour assessment was based on winter readings of only two odour samples, the Tribunal can place no weight at all on it. Mr Zietek and Mr Pitt agree that active face odour emissions are likely to be greater in summer, but could not say to what extent. Furthermore, the handbook describing the use of the method adopted by Mr Zietek for measuring active odour emissions recommends a minimum of six samples for each zone. The two samples taken demonstrate a high level of potential variability. Where required, an odour assessment should be based on at least six samples taken in summer.
85 Although the evidence of the four residents and six motorists is
relevant, it does not cause the Tribunal to conclude that the proposed development is not acceptable in relation to odour. As noted earlier, the generic buffer is intended to "avoid or minimise" impacts, not necessarily to wholly eliminate odours outside that area. It is typically sufficient to ensure that there are no regular and ongoing impacts.
86 Furthermore, as also noted earlier, the evidence is subjective and
none of the witnesses made a complaint so that management practices could be checked at the time. It is also to be noted that although the area
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is not heavily populated, there are a large number of residential properties in the vicinity of the witnesses' properties from which there is no evidence or history of complaint. Finally, in relation to the motorists' evidence, South Western Highway is located approximately 200 - 250 metres from the site, well within the 500 metre generic buffer.
The Tribunal considers that the proposed development is acceptable in relation to gas and odour.
Leachate drainage system
88 The Shire has raised a concern as to whether the proposed leachate
drainage system would minimise the risk of a landfill liner breach contingency and whether adequate mitigation measures would be utilised to address such a contingency. We are satisfied on the evidence of Mr Roger Parker, a geotechnical and environmental consulting engineer with more than 30 years' experience, 20 years specialising in landfill and contaminated land and groundwater projects, that the leachate drainage system is likely to operate satisfactorily and will minimise the risk of landfill liner breach and deal adequately with the consequences of breach should that occur.
89 The leachate collection system is proposed to consist of two systems
which will work in conjunction with each other. The first system consists of leachate collection on the floors of the new cells. The second system consists of leachate collection at the interface between Stage 1 and the proposed development. The purpose of the first system is to manage any leachate that percolates to the floor of the landfill, by drawing it away to the sump. From there it will be pumped out to the leachate ponds. The drainage system on the floor of the cell will consist of a layer of leachate drainage aggregate and perforated leachate collection pipes. In addition, a leachate sump from Stage 1 will be drained to the new sump along a pipe system independent of the leachate drainage system for the proposed development. In accordance with best practice, the design will be aimed at including redundancy to minimise risk to the environment. The purpose of the second system is to reduce the volume of leachate that may infiltrate into Stage 1 from the proposed development and to ensure that leachate is removed from the landfill as soon as possible. However, Mr Parker explained that as the leachate system in Stage 1 contains drains that are "way over designed" in accordance with best practice, it has capacity to satisfactorily bear any leachate transferred from the proposed development.
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90 Mr Parker and Mr Stewart Masterton, a consultant geotechnical
engineer who gave evidence on behalf of the Shire, agree that differential settlement of waste may cause the interface drainage system to at least partially fail. Mr Parker agrees that once the pipework is covered, there will be no possibility of repair of any particular pipe. However, the pipes will be sized such that a closed circuit camera can be used to inspect the pipes through the flushing access points which will be located at the main header pipes. Furthermore, it will be possible to install vertical wells to extract leachate from the landfill. Finally, Mr Parker explained that differential settlement can be addressed by including a slope on benches to allow drainage out of the aggregate. He explained that in landfills leachate can run down the slope of the clay liner to get to the sump if pipes fail and that this happens elsewhere in the landfill.
The Tribunal is, therefore, satisfied that the proposed leachate drainage system is adequate.
Groundwater monitoring methodology
92 Regular groundwater monitoring has been a requirement of the
environmental licence for the operation of the landfill facility at the site since its commencement. Prior to 2003, groundwater monitoring was undertaken by a number of different consultants. In 2003, WA Landfill commissioned GHD Pty Ltd (GHD) to undertake a review of previous monitoring programs. On the basis of the 2003 GHD review, the DoE prepared a Sampling Analysis Plan which promoted the use of "low-flow" sampling techniques for the collection of groundwater samples from the monitoring bores at the site. GHD then implemented the DoE Sampling Analysis Plan in November 2003. GHD has undertaken quarterly monitoring in accordance with the DoE (now DEC) requirements and in compliance with the environmental licence. Groundwater monitoring reports are submitted to the DEC on an annual basis in accordance with the licence.
93 The Shire raises essentially two issues in relation to previous
groundwater monitoring at the site. First, the Shire notes that monitoring and testing has shown the presence of some substances that are consistent with groundwater contamination and contends that this has not been adequately addressed. Second, the Shire relies on the evidence of Dr Peter Thorpe, a hydrologist, who questions the appropriateness of the "low-flow" method for the collection of groundwater samples from the monitoring bores. In contrast, Mr Turner, a hydrologist with experience in the assessment of contaminated land and groundwater who has been
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involved in the ongoing monitoring of groundwater and surface water around the site as the principal scientist at GHD, expressed the opinion that monitoring undertaken in accordance with the "low-flow" method at the site is consistent with normal professional industry practice and provides a sound and reliable overview of the condition of groundwater.
94 In June 2005, the DoE undertook a detailed assessment of the
monitoring and testing of groundwater at the site and in particular the presence of some substances consistent with groundwater contamination. The Department's report concluded that it and a series of earlier reports in relation to the site had provided enough information and data to make an informed decision in relation to contamination in groundwater and surface water. The report concluded that elevated readings of contaminants are either not likely to be related to the landfill or are within acceptable limits.
95 Doctor Thorpe's concern as to the appropriateness of the "low-flow"
method was communicated to and addressed in an independent report by Dr Chris Barber of the Centre for Groundwater Studies in March 2005 which was commissioned by the DoE. The Department accepted Dr Barber's advice that the "low-flow" method is the most appropriate method for groundwater monitoring at the site. The Department has also obtained advice from its Land and Water Quality branch which has confirmed that the "low-flow" method is generally the preferred method for sampling groundwater near landfill sites. The Department has accepted monitoring based on the "low-flow" methods in satisfaction of monitoring requirements in the environmental licence. In Bulletin 1218, the EPA determined that, having regard to the groundwater monitoring by GHD and other factors, the proposed development can be managed to meet its environmental objectives. The EPA concluded that the risk of groundwater contamination as a result of the proposed development is low with the appropriate design of the liners and leachate management and can be managed through appropriate monitoring and contingency plans under the EP Act. In dismissing the appeals against the level of assessment set by the EPA in relation to the proposal, the Minister for the Environment noted that the operating licence contains conditions requiring regular monitoring of water quality and that it is understood that the licence will continue to require monitoring for the proposed development.
96 The Tribunal is satisfied that the likely environmental impact of the
proposed development is acceptable having regard to previous monitoring. In particular, the Tribunal does not consider that the difference in professional opinion between Dr Thorpe, on the one hand, and Mr Turner, Dr Barber and the DEC, on the other hand, warrants
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refusal of the development application. Doctor Thorpe's concern in relation to the "low-flow" method has been comprehensively addressed by the DEC and its independent consultant. The Department itself required GHD to undertake monitoring using the "low-flow" method and has accepted both the continuing appropriateness of this method and the results yielded by it.
97 It appears that the existing landfill facility has operated in an
acceptable manner in terms of addressing the potential for groundwater contamination. As the Minister for the Environment noted, the environmental licence will continue to require regular monitoring. The Tribunal is, therefore, satisfied that the proposed development is acceptable in relation to the risk of groundwater contamination.
Geotechnical stability
98 Mr Parker and Mr Masterson agree that the proposed development
can be designed to be structurally stable. However, because he has concerns about the structural stability analysis for Stage 1 on its own, Mr Masterson considers that the detailed engineering design demonstrating structural stability of the whole landfill comprising Stages 1 and 2 and the proposed development should be available at the development application stage. Based on Mr Masterson's evidence, the Shire submits that the detailed engineering design should be available "up front". The Shire submits that there is "far too much latitude left for subsequent discretion and even variation, in the later detailed design". It submits that the question of geotechnical stability is fundamental and consequently a condition requiring that the landfill be stable and that the detailed engineering design be certified by an appropriately qualified geotechnical engineer is insufficient. The Shire contrasts this situation to that considered by the Tribunal in Phil Lukin Pty Ltd & Anor and Shire of Busselton [2006] WASAT 124.
In Phil Lukin & Anor and Shire of Busselton, the Tribunal held at [85] as follows:
"A condition cannot lawfully defer, for later consideration, a non-incidental aspect of a development and cannot 'leave open the possibility that development carried out in accordance with the consent and condition will be significantly different from the development for which the application was made' (Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 per Priestley JA; see Randall and Town of Vincent [2005] WASAT 147 at [14] - [22]). The determination of whether an
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aspect of a development is incidental is one of fact and degree
in the circumstances of each case."
100 We consider that the detailed engineering design of the proposed
development is relevantly incidental in the circumstances of this case. What is fundamental is whether the proposed development can be designed to be structurally stable; it is common ground that it can. Contrary to the Shire's submission, requiring, by condition, that the development shall be carried out such that it and the whole landfill is structurally stable, and certification from a geotechnical engineer that the detailed engineering design will be structurally stable, does not allow latitude for variation of the development. It does not leave open the possibility that the development carried out in accordance with the consent and condition will be significantly different from the development for which application was made. The detailed engineering design must be consistent with the siting and profile of the landfill which is depicted on Figures 3, 6, 7 and 8 of the ATA Environmental report which is Appendix 6 of Volume 2 of the development application. Agreed condition 1 requires that the construction of the proposed development will be implemented in accordance with those plans. The detailed engineering design cannot alter the location or profile depicted in the plans referred to in condition 1.
101 Mr Parker gave evidence that his firm, Golder Associates,
determined two to three years ago that the proposed modified footprint will be stable. However, if the ultimate detailed engineering design requires an amendment to the siting or profile of the landfill shown in the approved plans, a further development application would have to be submitted, assessed and approved.
102 The Tribunal is therefore satisfied that the landform of the proposed
development will be stable. Conditions 2, 3 and 4 in Attachment A to
these reasons will ensure that this is the case.
Conclusion - the proposed development warrants conditional approval
103 The Tribunal considers that the proposed development warrants
conditional development approval so as to enable the continuation of the existing landfill facility for an additional approximately seven years. The conditions subject to which the development should be approved are set out in Attachment A to these reasons.
104 The proposed development is reasonably contemplated by the
site-specific Special Use zoning of the site. The site is well located for the
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proposed development, being in excess of the generic buffer distance prescribed by the EPA Guidance from existing and likely future residential development. The proposed leachate management system is adequate and the development is acceptable in relation to the risk of groundwater contamination. The modified landform can be conditioned to ensure that it is structurally stable.
105 The best evidence of the likely environmental performance of the
proposed development is the performance of the existing landfill facility between 1999 and the present. The existing facility incorporates what appears to be best practice landfill gas extraction. Odour complaints, which between 1999 and 2004 occurred on average 6.8 times per year, with over half from the adjoining quarry, have reduced to one in 2005 and 2006. While four residents who live between 1 kilometre and 3.9 kilometres from the site, gave evidence about offensive odours generated by the facility at certain times and during certain meteorological conditions, these witnesses did not make any complaint to WA Landfill or the Shire so that management practices at the time could be investigated and addressed. Importantly, the generic buffer nominated by the EPA Guidance does not necessarily ensure that there is no impact outside that area and assumes the continuous implementation of appropriate management practices. The evidence also indicates that the leachate drainage system at the site has operated successfully and that groundwater monitoring occurs in an appropriate manner that is acceptable to the environmental regulatory authority.
Conditions
106 In accordance with the Tribunal's usual practice, the Shire formulated
a set of draft, "without prejudice" conditions to be imposed in the event that the Tribunal determines that conditional approval should be granted. The applicant responded to the draft conditions and proposed some alternative conditions. Aspects of the following conditions remain in dispute.
Condition 4 - fire contingency plan [condition 7 in Attachment A]
107 The parties agree that a fire contingency plan should be prepared and
approved by the Fire and Emergency Services Authority (FESA) prior to commencement of the development. The Shire also wishes to be an approval authority in relation to this plan. The applicant submits that it is adequate for FESA to be the approval authority. We consider that the sole approval authority should be FESA which is the authority with specialist
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expertise in relation to fire contingency planning. A copy of the approved
fire contingency plan should be provided to the Shire for its records.
Condition 6 - gas and odour monitoring [condition 9 in Attachment A]
108 Although the Shire originally proposed a condition requiring ongoing
gas and odour monitoring, it subsequently withdrew the condition on the basis that the Tribunal should not be satisfied that the application can be approved without gas and odour monitoring at the development application stage. For reasons set out above, the Tribunal is satisfied that the proposed development is acceptable in relation to gas and odour, because of the gas extraction system proposed and the exceedance of the generic buffer nominated in the EPA Guidance. However, the Tribunal considers that a condition requiring ongoing gas and odour monitoring is appropriate to provide the community with satisfaction as to the appropriate operation of the facility.
109 The Shire ultimately submitted that if a condition requiring
monitoring is imposed, monitoring should occur quarterly. The applicant submitted that monitoring should occur every two years. The Tribunal considers that, in the circumstances of this case, annual monitoring should be required to provide objective information to the community. To this end, the condition should require an annual monitoring report to be submitted to the Shire which can then make it public. To ensure that the report indicates the worst case scenario, the monitoring should take place in summer.
Conditions 7 - 12 - landfill gas extraction system
110 Condition 7 requires submission for approval by the Shire of detailed
plans of the landfill gas extraction system for Cells 5 - 8. Condition 8 requires the submission of "as constructed" drawings for the landfill gas extraction system for Cells 1 - 4. Condition 9 contains very detailed requirements for monitoring and maintenance of the gas extraction system. Conditions 10 - 12 require the operator to continue to use the gas extraction system until an engineer certifies that gas flows are no longer suitable for commercial extraction and thereafter that gas be flared.
111 WA Landfill objects to the provision of detailed plans of the gas
extraction system and objects to approval by the Shire. WA Landfill agrees to provide single line diagrams and a written description of the gas extraction. WA Landfill also objects to the degree of detail set out in condition 9 on the basis that it is unnecessary, unreasonable and not
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proportionate. It proposes an alternative condition. WA Landfill objects
to conditions 10 - 12 on the basis that they are unnecessary and punitive.112 The Tribunal agrees with WA Landfill that it is unnecessary for the
Shire to approve the detailed plans of the landfill gas extraction system. The system forms part of the approved development. The existing system operates satisfactorily and appears to reflect best practice. The modified conditions proposed by WA Landfill, which are conditions 10 and 11 in Attachment A, should be imposed instead.
113 The Tribunal agrees with WA Landfill's objection to the level of
detail required by the Shire in relation to ongoing implementation of the system. The modified condition proposed by WA Landfill, which is condition 12 in Attachment A, should be imposed instead.
114 The Tribunal also agrees that the conditions in relation to the
cessation of gas extraction and flaring of gas are unnecessary. The substance of these proposed conditions will be implemented as part of the carrying out of the development in accordance with condition 1.
Condition 13 - engineering plans of bunding and drainage system
115 This condition as proposed by the Shire requires the Shire's
approval of detailed engineering plans for bunding and drainage. The applicant objects on the basis that approval should be by the DEC with a copy to the Shire. We agree, because the DEC has the appropriate expertise.
Condition 15 - monitoring of surface water flows
116 Condition 15 requires a monitoring strategy to be submitted to the
Shire for surface water flows. The applicant objects on the basis that the DEC is the appropriate regulatory agency to address monitoring methodology. The Tribunal agrees. Any monitoring strategy submitted to and approved by the Department should be provided to the Shire for its records.
Condition 17 - "Pop outs" [condition 16 in Attachment A]
117 Condition 17 as proposed by the Shire requires that prior to
landfilling commencing or continuing in any of Cells 5 - 8, a strategy is to be prepared by a suitably qualified consultant for approval by the Shire which provides in specific terms for measures to prevent and respond to the incidence of "pop outs". The applicant agrees to the preparation of a
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strategy, but only in relation to the proposed development, namely Cells 7
and 8, to be provided to the Shire for its information, not approval.118 The Tribunal does not consider that a condition can be lawfully
imposed in relation to Cells 5 and 6, because these cells are not the subject of the proposed development. The Tribunal agrees with WA Landfill that it is unnecessary to require the Shire's approval of measures to prevent and respond to "pop outs"; it is sufficient that the strategy be prepared by a suitably qualified consultant and provided to the Shire for its information.
Condition 21 - noise
119 Condition 21 proposed by the Shire requires the operator to ensure
that site-based vehicles on the site use a "croaker" reversing beeper to mitigate noise. This is objected to by WA Landfill on the basis that it is unnecessary. Noise has not been raised as an issue of concern in any complaint or in the evidence before the Tribunal. Noise is adequately addressed by the buffer distance. The proposed condition is therefore unnecessary.
Condition 24 - completion of landfilling
120 Condition 24 proposed by the Shire requires the completion of
landfilling by 31 December 2014. WA Landfill objects to this condition on the basis that it is punitive and ignores the provision for landfill activities within the local and regional planning regime. The Tribunal considers that a time limited consent is unnecessary. For reasons set out earlier, the proposed development is contemplated by the planning regime and is appropriate for the site. The generic EPA buffer is comfortably exceeded. In any case, the landfill is likely to be completed by 2015. For the same reasons, we do not consider that the consent should be limited to five years as suggested in an objection made on behalf of an adjoining landowner.
| Orders |
The Tribunal makes the following orders:
1. The application for review is allowed. 2.
The deemed refusal by the respondent of the development application lodged on 17 November 2006 to modify the footprint of the existing South Cardup Landfill Facility is set aside and a decision is substituted that development
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approval is granted to the development application under the Metropolitan Region Scheme and the Serpentine-Jarrahdale Shire Town Planning Scheme No 2 subject to the conditions in Attachment A.
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Attachment A
CONDITIONS OF DEVELOPMENT APPROVAL
IN ACCORDANCE WITH APPLICATION AND PLANS
1. The construction of the footprint modification and the operation of landfilling activities will be implemented in accordance with the Development Application Materials Volumes 1 and 2 (Volume 1 and Volume 2 respectively) of Koltasz Smith dated November 2006, and in particular:
(a)
Figures 5 - 16 of ATA Report being Appendix 6 of Volume 2;
(b)
Figures 1 - 6 of Golder Associates Report being Appendix 3 to ATA Report which is in turn Appendix 6 of Volume 2; and
(c)
Figures 13 - 18 of Golder Associates Report of 8 March 2006, appended to the ATA Report being Appendix 6 of Volume 2;
unless otherwise approved by the Council and the
Department of Environment and Conservation.
STRUCTURAL STABILITY AND DETAILED ENGINEERING PLANS
2. The footprint modification the subject of this approval shall be carried out such that the footprint modification and the whole of the landfill on the site are structurally stable.
3. Prior to the commencement of the footprint modification the subject of this approval, the landfill operator shall submit to the Shire for its records detailed engineering plans of the footprint modification which are consistent with the plans referred to in condition 1 (engineering plans) together with a certificate from an appropriately qualified and experienced geotechnical engineer stating that if the footprint modification is carried out in accordance with the engineering plans, the footprint modification and the whole of the landfill on the site will be structurally stable.
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4. The footprint modification the subject of this approval shall be carried out in accordance with the certified engineering plans referred to in condition 3.
SUBSTANTIAL COMMENCEMENT
5. If the footprint modification the subject of this approval is not substantially commenced within two years from the date of this approval, the approval shall lapse and be of no further effect. Where this approval has lapsed, the footprint modification shall not be carried out without further approval being sought and obtained from the Shire.
CLASS I AND CLASS II PUTRESCIBLE WASTE ONLY
6. No waste other than Class I and Class II putrescible waste (as defined in the Landfill Waste Classification and Waste Definitions 1996 published by the Department of Environment pursuant to items 63, 64, 65 and 66 of Schedule 1 of the Environmental Protection Regulations 1987) is permitted to be received by the facility.
FIRE CONTINGENCY PLAN
7. Prior to commencement of any filling activities within the modified footprint, a Fire Contingency Plan is to be prepared for approval by the Fire and Emergency Services Authority (FESA). The Fire Contingency Plan is to deal with prevention of, and response to, both fires potentially originating within the facility and fires potentially originating outside and from in the state forest. Upon approval, a copy of the approved Fire Contingency Plan is to be provided to the Shire and the Fire Contingency Plan is to be implemented in full and maintained in implementation until closure of the facility.
8. The Landfill Decommissioning and Post-Closure Management Plan required pursuant to condition 7 of the Environment Minister's statement that a revised proposal may be implemented, pursuant to the Environmental Protection Act 1986 (WA), for the footprint modification, is to incorporate provisions to the satisfaction of the Shire
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and FESA, in respect of the post-closure period, dealing with the prevention of, and response to, both fires potentially originating within the facility and fires potentially originating outside the facility.
GAS AND ODOUR MONITORING
9. The operator of the landfill (operator) is to engage a suitably qualified person to carry out landfill gas and odour monitoring, in accordance with the Odour Methodology Guideline (Department of Environment, 2002) or any Department of Environment and Conservation document that may subsequently replace that guideline. The monitoring is to include gas and odour emissions from all potential sources such as the open face of the landfilling operation, capped cells, leachate ponds and gas burning operation.
Monitoring is to be undertaken during summer within the first two years of the commencement of landfill activities of the modified footprint and thereafter be conducted every year during summer until cessation of landfill activities. Reports are to be provided to the Shire of such monitoring results. The report should include advice on:
(a) appropriate odour and gaseous criteria; (b)
odour modelling and mapping to current and future sensitive receptors and/or 1 kilometre;
(c)
compliance checks and established reference positions; and
(d)
where required, engineering and/or operational gas and odour management solutions.
The requirements of this condition are to continue for six years after final capping of the facility unless the Shire agrees in writing to the sooner termination of the monitoring. After the cessation of landfilling activities, the landowner from time to time shall be responsible for the continuation of the monitoring.
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LANDFILL GAS EXTRACTION SYSTEM
10. As part of detailed design of the proposed landfill Cells 5 - 8 and at any rate prior to any construction of the underdrainage of any such cells commencing, the following are to be submitted to the Shire in relation to the landfill gas extraction system:
(a) a single line diagram indicating the intended layout of pipework and intended gas well positions; and (b) a general written description cross-referenced to (a) above demonstrating that the system will provide comprehensiveness of coverage in each of Cells 5 - 8 and meet the outcomes specified in the New South Wales EPA, Environmental Guidelines Solid Waste Landfills. 11. In relation to the gas extraction system for existing Cells 1 - 4, the operator is responsible for ensuring that an "as constructed" single line diagram of the landfill gas extraction system is submitted to the Shire prior to implementation of the footprint modification.
12. The operator is responsible for ensuring the following in relation to the gas extraction system in relation to all Cells 5 - 8 inclusive:
(i)
the gas extraction network is to be inspected regularly;
(ii)
on-site monitoring is to be undertaken to ensure the landfill gas extraction system is functioning and maintained properly. Monitoring is to occur via field monitoring and real time monitoring at the facility. Monthly reports are to be produced from collected data; and
(iii) all leaks and defects are to be repaired promptly.
PREVENTION OF STORMWATER CONTAMINATION
13. Prior to commencement of construction of any cell, engineering plans submitted and approved by the
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Department of Environment and Conservation incorporating:
(a) bunding; or (b) a drainage system; or (c) a combination of (a) and (b) (features) shall be provided to the Shire for its records.
14. Certification from an appropriately qualified engineer is to be provided to the Shire and the Department of Environment and Conservation that the following features are designed to a capacity sufficient to withstand a one in 20-year flood event:
(a) the leachate retention pond; and (b) the storm and surface water systems.
EXTRA LOAD ON LEACHATE DRAINAGE SYSTEM
15. Prior to commencement of construction of the earlier of Cells 7 or 8, the certification of an appropriately qualified engineer is to be provided to the Shire certifying that the proposed leachate drainage system will be capable of supporting the extra load by reason of the footprint modification, including the extra load on those parts of the Stages 1 and 2 areas which will be the subject of further landfilling beyond that already previously approved by planning consent of 27 October 1994.
"POP OUTS"
16. Prior to landfilling commencing or continuing in any of Cells 7 and 8, a strategy is to be prepared by a suitably qualified and experienced consultant for the information of the Shire which provides in specific terms for measures to prevent and respond to the incidence of "pop outs". Management procedures to be developed that detail how the following principles will be implemented:
(a)
management of waste placement to minimise the risk that low permeability waste is placed in horizontal layers that could otherwise lead to
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higher horizontal permeability and so impede the flow of leachate down towards the leachate collection system;
(b)
removal of any cover materials before the next placement of waste;
(c)
immediate clean-up of any pop out and rehabilitation of affected areas;
(d) improving vertical permeability; and (e)
other steps for improvement including constructing a drainage system over the area of any pop out in order to reintroduce the outflow back into the landfill within a controlled manner.
The landfill operator is responsible for ensuring
that the strategy is implemented and maintained.
AMENITY
17. The owner(s) and operators shall ensure that any windblown waste is removed from the premises, fences and roads, and any windblown waste emanating from the premises is collected and removed on a weekly basis or more frequently when directed by the Shire.
18. The owner(s) and operators shall ensure that all areas on the premises from which dust may be generated are maintained in a moist condition so that no visible dust crosses the boundary of the premises.
NOTIFICATION
19. Within two months of the date of this approval, notification in the form of a memorial to be placed on the certificate of title of the lots advising the existence of a hazard or other factor, in accordance with s 165 of the Planning and Development Act 2005 (WA), and notice of this memorial be lodged to the satisfaction of Council and at the applicant's cost. The memorial to state as follows:
"The quality of groundwater obtained from the subject land may require scientific analysis to determine its quality."
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ANNUAL MONITORING REPORT
20. The owner(s) shall provide to the Shire for its record:
(a)
a copy of the annual monitoring report containing monitoring data required by the Department of Environment and Conservation; and
(b)
a specific annual report containing monitoring data required by condition 9 of this approval. This report shall contain data collected from the previous calendar year and shall be provided no later than a date two months from each anniversary date of this approval. In the annual monitoring report, the owner(s) shall list any monitoring methods used to collect and analyse data required by condition 9 of this approval to demonstrate they comply with the methods specified in this approval.
LANDSCAPING, REVEGETATION AND REHABILITATION
21. Within two years of commencement of filling within the footprint modification, a Landscaping, Revegetation and Rehabilitation Plan is to be lodged with the Shire for approval by the Shire. The Plan is to provide full details giving effect to the principles in the Ecoscape Figures 9 - 14 forming part of Appendix 8 to the Development Application Materials, Koltasz Smith Volume 2 of November 2006. Such details are to include:
(a)
staging of landscaping, revegetation and rehabilitation steps by reference to milestones of the landfill development stages/cells;
(b)
area by area species identification in non-generic terms;
(c) planting densities; and (d)
ensuring survival rates/re-planting strategy in cases of non-survival.
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Upon approval, the landowner is responsible to ensure that the Landscaping, Revegetation and Rehabilitation Plan is implemented in full.
I certify that this and the preceding [121] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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