Crawfords Freightlines Pty Ltd v SafeWork NSW [2022] NSWCATAD 50

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Crawfords Freightlines Pty Ltd v SafeWork NSW [2022] NSWCATAD 50 Hearing dates: 27 – 30 October 2020 Date of orders: 16 February 2022 Decision date: 16 February 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: K Ransome, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW – licensing – ammonium nitrate storage facility – criteria to be applied to assessment - whether regulator can alter assessment criteria – whether separation distances can be applied – risk to persons in surrounding area Legislation Cited: Administrative Decisions Review Act 1997 Explosives Act 2003 Explosives Regulation 2013 Cases Cited: Attorney-General (NSW) v Quin [1990] HCA 21, (1990) 170 CLR 1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299 Category: Principal judgment Parties: Crawfords Freightlines Pty Ltd (Applicant) SafeWork NSW (Respondent) Representation: Counsel: D Kelly (Applicant) C Magee (Respondent)

Solicitors: Gillis Delaney Lawyers (Applicant) Legal, Department of Customer Service (Respondent) File Number(s): 2019/00397736

REASONS FOR DECISION 1. Crawfords Freightlines Pty Ltd (Crawfords) is a privately owned company headquartered in Newcastle with operations in freight transportation by road, rail and sea and warehousing. The business operates a major storage facility at Sandgate. The facility at Sandgate has been licensed to store ammonium nitrate since December 2008. In NSW, as in all other Australian jurisdictions, a licence is required to store ammonium nitrate - a compound used in agricultural fertiliser and the main component of an explosive commonly used in the mining industry. 2. At the Sandgate facility ammonium nitrate is stored in flexible bags of approximately 1 tonne to 1.25 tonnes capacity, in 500 tonne stacks, configured as a pyramidal stack. The ammonium nitrate is received in flexible bags through the Port of Newcastle (through truck deliveries), the Port of Sydney (rail – container deliveries) or direct from manufacturing facilities by truck. The ammonium nitrate is distributed by Crawfords in flexible bags or decanted from bags into bulk trucks for distribution to the Hunter Valley and other mining areas in NSW. 3. There are four storage sheds at the Sandgate facility – Sheds A, B, C and D. Over the years varying quantities of ammonium nitrate have been stored in these sheds. At various times the amount of ammonium nitrate able to be stored has been reduced or increased as particular sheds reverted to general storage for a period or sheds were added. On each occasion when there were proposed changes to the storage of ammonium nitrate at Sandgate Crawfords submitted applications to amend its licence which were approved accordingly. 4. Planning approval issued in June 2013 by the Department of Planning permits Crawfords to store a maximum of 13,500 tonnes of ammonium nitrate at the site comprising: 1. Shed A – 4,500 tonnes 2. Shed B – 4,500 tonnes 3. Shed C – 4,000 tonnes 4. Shed C compound – 500 tonnes. 1. In 2014 Crawfords was licenced to store 13,500 tonnes of ammonium nitrate at Sandgate in accordance with the volumes set out above for. In May 2016, at Crawfords' request, Shed C was removed from the licence as Crawfords wished to revert to general freight storage for that shed. This reduced the total licenced capacity to 9,000 tonnes of ammonium nitrate and 65 tonnes of ammonium nitrate emulsion in an outdoor compound. In December 2016 the Sandgate facility was granted a Major Hazards Facility licence. 2. On 1 March 2019 Crawfords submitted an application to SafeWork NSW to amend the licence to reinstate the storage of 4,500 tonnes of ammonium nitrate in Shed C. The amendment was sought as Glencore Coal had advised Crawfords they wished to store 10,000 tonnes of ammonium nitrate at Sandgate to facilitate a daily drawdown to its coal mine site and delivery of ammonium nitrate directly through Newcastle Port. By this application, total storage capacity for ammonium nitrate at Sandgate would be 13,500 tonnes. 3. There then followed correspondence between Crawfords and SafeWork NSW in which SafeWork NSW foreshadowed it intended to refuse the application and Crawfords was given time to submit its response as to why the amendment should not be refused. To that end Crawfords submitted a Quantitative Risk Assessment Report by Julie Green, an explosives consultant, and a risk review prepared by Michael du Plessis. On 8 October 2019 the application was refused by SafeWork NSW, a decision which was affirmed on internal review on 21 November 2019. 4. The application to amend the licence was refused because SafeWork NSW was not satisfied that Crawfords has the facilities, systems and procedures in place to store an additional 4,500 tonnes of ammonium nitrate at Shed C with an appropriate level of safety in regard to the separation distances to vulnerable facilities located nearby. These facilities include a passenger and freight rail line, an aged care facility, a childcare centre, a school and a private hospital. SafeWork NSW was of the opinion that storage of an additional 4,500 tonnes of ammonium nitrate in Shed C presented an unacceptable level of risk to these facilities.