Land and Environment Court New South Wales Medium Neutral Citation: CWO Pty Ltd v Muswellbrook Shire Council [2024] NSWLEC 61 Hearing dates: 5, 6, 7, 8 and 9 February 2024 Date of orders: 24 June 2024 Decision date: 24 June 2024 Jurisdiction: Class 1 Before: Duggan J Decision: See orders at [145]-[146] Catchwords: ENVIRONMENT AND PLANNING – Class 1 appeal – appeal against the deemed refusal of amended development application seeking change of use of land – suitability of site – s 4.15(1)(c) of the Environmental Planning and Assessment Act 1979 – risk to safety of users of site posed by Commonwealth explosive ordnance facility not sufficient for site to be deemed unsuitable – "likely impacts" of development – s 4.15(1)(b) of the EP&A Act – impact of site on Commonwealth facility not made out – application granted, subject to conditions Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Environmental Planning and Assessment Act 1979 (NSW) State Emergency and Rescue Management Act 1989 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Work Health and Safety Regulation 2011 (Cth) Work Health and Safety Regulation 2017 (NSW) Cases Cited: BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 Category: Principal judgment Parties: CWO Pty Ltd (Applicant) Muswellbrook Shire Council (First Respondent) Commonwealth of Australia (Second Respondent) Representation: Counsel: A Stafford (Applicant) A Pearman (day 1) and thereafter J Griffiths, solicitor (First Respondent) M Wright SC and D Robertson (Second Respondent) Solicitors: Sekel Grinberg Judd (Applicant) Moray & Agnew Lawyers (First Respondent) Maddocks Lawyers (Second Respondent) File Number(s): 2022/325617 Publication restriction: Yes JUDGMENT Nature of proceedings 1. These proceedings are a Class 1 appeal brought by CWO Pty Ltd (Applicant) against the deemed refusal by Muswellbrook Shire Council (Council) of development application 2021/137 for the change of use from a former winery, storage and distribution complex to an information and education facility/art gallery with a focus on light art and with associated works (DA). 2. I have been assisted in the hearing of this matter and in the preparation of this judgment by Commissioner Porter. 3. The subject site is known as 516 Rosemount Road, Denman (Site) and legally described as: * Lots 9, 14, 42, 43, 115, 151 of DP 750924; * Lot 2 of DP 619378; * Lot 3 of DP 223751; * Lots 8, 10, 11, 12, 13 of DP 113468; * Lots 1, 2 of DP 206929; * Lot 1 of DP 781025; and * Lot 32 in DP 838536. 1. The Site is approximately 236 hectares in size and irregular in shape. The Site is zoned RU1 Primary Production and C3 Environmental Management under the Muswellbrook Local Environmental Plan 2009 (MLEP). The proposed use is permissible with consent in both zones. 2. The Site is currently occupied by several buildings. The existing buildings on the Site are primarily within the RU1 zone. 3. The Site is: 1. Mapped as terrestrial biodiversity to the far east of the site in the MLEP; 2. Mapped as Vegetation Category 1 and Vegetation Category 3 bushfire prone land; and 3. Located within a mine subsidence area. 1. Land to the south and west of the Site is zoned RU1 and C3 under the MLEP. The Site is separated from those adjoining properties by the Goulburn River. 2. Relevant to the issues in dispute, directly adjoining the Site to the north and north-east is the Myambat Explosive Ordnance Depot (EO Depot) owned by the Second Respondent, the Commonwealth of Australia (Commonwealth). The EO Depot is zoned C3 and Myambat is a local heritage item in the MLEP. 3. The EO Depot is classified by Comcare, the Commonwealth health and safety regulator, as a Major Hazards Facility (MHF). The EO Depot is described by the Commonwealth as a National Wholesale Explosive Ordnance Depot for the Australian Defence Force (ADF) that stores and distributes explosives Australia wide. 4. Use of the EO Depot also includes a "demolition ground" to dispose of munitions by demolition, described by the Commonwealth as an essential capability within an explosive depot. 5. The EO Depot is described by the Commonwealth as having a replacement value of approximately $800 million. The value of the EO Depot was in dispute during the proceedings. Amended application 1. On 30 June 2023, the Applicant sought to amend the DA pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW), with the agreement of Council. The Court granted the motion on 19 July 2023 (Amended DA). The Amended DA is described in detail as follows: * Use of part of the site, primarily three of the existing warehouses, for use as an information and education facility/art gallery called the "Museum of Colour" (Museum); * Introduction of a "Zone A", shown on the architectural plans prepared by J Stevenson dated 26 June 2023 and described in the Supplementary Statement of Environmental Effects prepared by Fowler Partners dated June 2023 (SSEE) to clearly indicate the location of the proposed use. A 1.8m chain wire fence is proposed from the front entry along to the eastern boundary to segregate existing uses from Zone A, as identified diagrammatically in the following plan: * Amendment to the proposed hours of operation. Uses permitted within Zone A will be limited to one use at a time in set hours. Existing uses will not be undertaken within the operational hours of the proposed use in Zone A. A "cross over period" of 45-60 minutes is to be observed prior to reopening Zone A for utilisation by the existing uses on site; * Vehicular and pedestrian access works, including: Separate driveway entrance for the proposed use; Modifications to the existing internal driveways and footpaths and new driveway areas; Coach parking and turning bay; Proposed visitor parking and overflow staff parking to the north-west of Gallery 1; Use of existing parking areas for Museum staff parking near the entrance; Walkways throughout the site including between the three galleries, with lifts and associated works; and * Septic and stormwater works. 1. Further clarification and refinements were made to the Amended DA over the course of the hearing. Incorporated into the draft conditions of consent, the proposed use within designated "Zone A" is only proposed to be operational when other existing uses are not operational within Zone A, and with a seven-day clear period between the uses. The proposed condition agreed by the parties was: 61. No simultaneous use of Zone A The information and education facility is not to operate within 7 clear days of any day on which any existing approved uses are carried out within Zone A, shown as the area within the blue line on Drawing 3 of the approved drawings prepared by Jacqui Stevenson dated 26 June 2023. For the avoidance of doubt: (a) During any period while the information and education facility is operating, any goods, machinery, plant and equipment used for any existing approved uses are to be kept outside of Zone A; and (b) The information and education facility is to appoint a Marshall, who is to: a. Inspect Zone A at the time that the existing approved uses cease; b. Record the cessation of the existing approved uses, including the absence of any goods, machinery, plant and equipment used for any existing approved uses and the departure of staff engaged in those uses; and c. Inspect Zone A on the day prior to the opening of the information and education facility and confirm and record the absence of any goods, machinery, plant and equipment used for any existing approved uses, and staff engaged in those uses; (c) The records in (b) and (c) above must be made available to Council on reasonable notice. Reason: To ensure there is no safety risk from the existing approved uses and the approved use being undertaken simultaneously 1. The SSEE describes the current uses on site, which will continue to operate alongside the proposed use, though subject to the above proposed restriction as: Wineries and cellars, dwelling houses, restaurant and cellar door, administration building, wine making office, laboratories, various warehouses and storage buildings, tank farm, crusher, workshop and bottling lines. 1. Following lodgement of the DA on 4 November 2021, Council advertised the DA from 29 November 2021 to 13 December 2021. Three submissions were received, all made by the Commonwealth. The issues raised were primarily dealt with through the Commonwealth's Statement of Facts and Contentions. 2. The Applicant commenced Class 1 proceedings against Council's deemed refusal on 22 October 2022. 3. On 6 February 2023, the Registrar of the Court granted the Commonwealth's Notice of Motion to be joined as a party to the proceedings. 4. On 4 April 2023, following considerations of a Notice of Motion by the Applicant to set aside the above orders and dismiss the Commonwealth's motion, Robson J varied the Registrar's orders. The effect of the orders limited the Commonwealth's joinder to contentions 1 and 2. The Commonwealth filed further amended Statement of Facts and Contentions (Amended SOFAC) in relation to the contended impacts to and from the EO Depot on the proposed development on 9 May 2023. 5. The Council, whilst it appeared in the proceedings to assist the Court, indicated that all of the contentions raised by it had been satisfied. The Council advised that it consented to the grant of development consent subject to the conditions prepared by it. Issues 1. By the Amended SOFAC the Commonwealth contended that the following matters warranted refusal of the Amended DA (particulars not reproduced): 1. Site suitability The Site is not suitable for the Proposed Development. If development consent is granted, the Development may pose a safety risk to the public on the Site immediately or shortly after an explosion or multiple explosions arising from a major incident at the EO Depot. This contention is confined to the impact of the proposed development on the Myambat Explosive Ordnance Depot and/or the impact of the Myambat Explosive Ordnance Depot on the proposed development. 2. Impacts on the ongoing operation of the EO Depot The Proposed Development is likely to significantly impact the ongoing operation of the EO Depot, and the ADF's ability to store and distribute explosive ordinances in Australia. This contention is confined to the impact of the proposed development on the Myambat Explosive Ordnance Depot and/or the impact of the Myambat Explosive Ordnance Depot on the proposed development. 1. The two issues express risk of harm, of different kinds, from converse perspectives: the first, the risk posed by the EO Depot to the Site; and the second, the potential harm posed by the development to the EO Depot. Evidence 1. The Applicant and the Commonwealth adduced evidence relating to the two contentions, including documentary and expert evidence. Expert evidence was adduced from: 1. For the Applicant: 1. Mr Brian Roberts who is a safety and explosives engineer, with a Master of Science in Explosive Engineering and approximately 50 years' experience in explosives and dangerous goods; and 2. Mr David Owens who is a public safety and emergency management expert, with a Master of Emergency Management and 40 years' experience in the operational risk and emergency management. 1. For the Commonwealth: 1. Commodore James Nash of the Royal Australian Navy, who is a weapons electrical engineering officer, and holds, inter alia, a Masters of Science (Explosive Ordnance Engineering); and 2. Dr Tony Green who holds, inter alia, a PhD in Chemistry and Bachelor of Science (Honours in Chemistry), with 40 years' experience in fire and explosion research, and some 30 years' experience in emergency and risk management. Points of agreement Defence Regulations 1. There was agreement that a consideration of the Department of Defence Explosives Regulations (Defence Regulations) (as an internal Commonwealth policy document) was relevant to the determination of the appeal. Notwithstanding its title, the Defence Regulations are not delegated legislation. The experts proceeded on the basis that the Defence Regulations were an appropriate tool with which to identify the risk to public safety, given the proximity of the proposed development to the EO Depot. The Defence Regulations comply with the "NATO Guidelines for the Storage of Military Ammunition and Explosives" (NATO Guidelines). 2. The parties agreed that the relevant safeguarding lines had been developed as indicated in the following plan as it related to the Site: see Map extracted below (Map). The Map is an ADF planning tool used to identify risks of land uses in proximity to explosive ordnance. "Safeguarding" is the term ascribed to the process outlined in the Defence Regulations by which such protection is quantified. 1. The relevant safeguarding lines and corresponding zones – Yellow, Green and Purple – on the Map are described under the Defence Regulations in the following terms: a. Green Line/Zone. The green line is the envelope of the lines drawn at the PTR [Public Traffic Route] for each PES [Potential Explosion Site] in the facility. The green zone is the area within this line. b. Yellow Line/Zone. The yellow line is the envelope of the lines drawn at the Inhabited Building Distance (IBD) for each PES in the facility. The yellow zone is the area within this line. c. Purple Line/Zone. The purple line is the envelope of the lines drawn at twice the IBD for each PES in the facility licensed for explosives of Hazard Division 1.1. The purple zone is the area within this line. 1. It was not in dispute that the above lines and zones had been appropriately determined in this case in accordance with the Defence Regulations. Relevantly, the only safeguarding line to be considered in these proceedings was that part of the Purple Line that transected the Site. Emergency management 1. An issue that arose with respect to site suitability was the potential of an emergency incident at the EO Depot affecting any required emergency response on the Site. 2. Mr Owens and Dr Green were agreed as to, inter alia, the necessity of considering in respect of emergency management plans and procedures various applicable statutory regimes, such as, the State Emergency and Rescue Management Act 1989 (NSW) and "State Emergency Management Plan". 3. The relevant experts did not contest that, in NSW, emergency management is based around an "All Hazards, All Agencies" approach, recognising that no agency can address all of the impacts associated with a particular hazardous incident. 4. A report had been prepared and submitted with the Amended DA comprising an Emergency Plan and Procedures by ADAIR consultants. It was agreed that the ADAIR report had been prepared in accordance with relevant standards under both the Australian Standards AS3745-2010 and Work Health and Safety Regulation 2017 (NSW) (WHS Regulations (NSW)). 5. It was also agreed that the Timeline Evacuation Model developed by the NSW State Emergency Service provided an acceptable model for the purposes of evacuation calculations concerning motor vehicles. Licence and Safety Case 1. As the EO Depot constitutes a MHF, there is a requirement imposed upon its operator, Thales, to obtain a licence by the regulator, Comcare, pursuant to the Work Health and Safety Regulation 2011 (Cth) (WHS Regulations). The licence is periodically issued and reviewed. Most recently, Comcare issued to Thales a licence to operate the EO Depot effective as of 30 April 2020, for a period of 5 years. 2. Part 9.3 of the WHS Regulations requires Thales, as operator of a MHF, to prepare, provide, and where necessary revise, a "safety case" (Safety Case). 3. There was agreement among the various experts that the management of risk associated with the EO Depot, being a MHF, was appropriately dealt with through the Safety Case prepared by Thales for the current licence (Thales Safety Case). 4. The content of the Thales' Safety Case remains confidential. Section 2.9 of the Thales Safety Case outlines the relevant assessment of the extent to which the local community may be adversely impacted by a major incident occurring at the EO Depot. Relevantly, the Thales Safety Case concluded that any expected effects in such a scenario would likely remain within the boundaries of the Commonwealth's land. Points of disagreement Site classification 1. As to that part of the Amended DA that was contained within the Purple Line the experts disagreed as to whether the Amended DA was compatible with the Defence Regulations. This issue centred upon the categorisation of the proposed development for the purposes of the Defence Regulations. Relevantly, the Defence Regulations discriminate between various categories of "exposed site groups" in relative proximity to explosive ordnance sites such as the EO Depot; namely, Group IV and Group V. 2. In relation to Group IV sites, the Defence Regulations provide: This distance is termed the 'Inhabited Building Distance' and is the minimum distance, in conjunction with the overriding minimum distances given in paragraphs 40–46, at which inhabited buildings not directly connected with the functions of the EO area should be sited. This level of protection is proposed as acceptable for the following types of ES: a. Structures and facilities in the administrative area of a depot but not within the EO area. […] b. Inhabited buildings, whether single buildings, communities or areas of scattered habitations. c. Structures and facilities in which people assemble, except as indicated in paragraph 158. d. Community facilities in which persons permanently or temporarily assemble. e. Facilities, which serve the safety and needs of the general public. […] f. Railroads, public roads and waterways of special importance subject to the following minimum traffic densities: […] g. Untraversed stacks of EO. 1. As regards to Group V sites, the Defence Regulations provide: Because even superficial damage may in some instances be unacceptable, the siting of facilities of especially vulnerable construction or public importance may require siting at these distances. Examples are: a. Large facilities of special/vulnerable construction or importance […] b. Facilities of vulnerable construction (see paragraph 46) used for mass gatherings […] c. Built-up areas which are both large and densely developed. Large buildings with many inhabited rooms or a number of buildings closely grouped are to be assessed on their merits. […] 1. The Applicant's expert, Mr Roberts, took the view that, properly categorised, the development constituted either a Group III or, alternatively and conservatively, a Group IV site. By necessary implication, it did not satisfy the requirements of a Group V site, as, in his opinion at par 11.4 of his report: Rosemount Estate is not a Group V Exposed Site of Vulnerable Construction. It does not meet the description of any of the three (3) types of Vulnerable Construction. They will never hold thousands of people and is therefore not a large educational facility (under the NATO Safety Principles and the Defence Explosives Regulations), nor be a multi-story building, nor a Sports Stadium. 1. Accordingly, in Mr Robert's opinion, the development was not of a category that was incompatible with the risk assessment regime of the Defence Regulations within the Purple Line. As he concluded at par 11.5 of his report: As a Group IV Exposed Site and as the Safeguarding Green and Yellow Lines/Zones are held within the Commonwealth Property Boundaries of Myambat, Rosemount Estate will have no effect on the operations at Myambat and the DA should be approved. 1. The expert for the Commonwealth, Dr Green, was of the opinion that the proposed development was characterised as "sensitive uses, namely education and people gathering". This was, in his opinion, a fundamental change from the present Industrial and Agriculture uses of the Site. 2. According to Dr Green, the change in land use altered the criteria against which the relevant risk (to the individual and the societal risk) needed to be judged. The relevant indicia of the independent assessment of risk associated with the Amended DA were required to include an assessment of the "individual risk of death" and "societal risk". In light of those indicia, Dr Green stated at par 268 of his report: Because of the nature of the new use, the individual risk of death has to be below 0.5 x 10-6 per annum and a societal rusk below 0.1 x 10-6 per annum. Both the individual risk of death from an accident and the societal risk with the proposed changes in land use is unacceptable in terms of the planning requirements, as the building lie between the purple safeguarding line and the boundary to the Myambat EOD. 1. The conclusion reached by Dr Green, having regard to the individual and societal risk (compounded by "residual risk") at [85] below, was that the proposed development was "unacceptable in terms of the planning instruments….": see par 268 of Dr Green's report. Emergency management 1. The experts disagreed as to aspects of emergency management, in particular the evacuation plan and procedure, applicable to the development. 2. Disagreement also arose between the respective methodologies adopted by the experts: Mr Owens from an operational perspective, and Dr Green from a policy perspective. 3. Dr Green identified two potential issues associated with the proposed development from an emergency management perspective in the event of a major incident: 1. The strain placed upon those resources responding to such an incident, which would require being diverted from the EO Depot to the Site, in effect causing those resources to bifurcate; and 2. The increased traffic and congestion resulting from additional members of the public being on the Site which, again presupposing a major incident, would hamper the efforts of emergency services responding to such an incident. 1. Dr Green, under cross-examination, contended that "human behaviour" would exacerbate emergency management problems which had not been sufficiently factored into the exiting emergency management plans and procedures. 2. In relation to the first of Dr Green's concerns, Mr Owens did not accept the assumption of Dr Green that there was a possibility of causalities on the Site as the Thales Safety Case had determined such casualties were not likely to occur. In relation to the second of Dr Green's concerns, Mr Owens considered that there would not be traffic congestion, firstly, because of the signalling lights of emergency service vehicles and, secondly, the role of Police Forward Commander in overseeing any evacuation. 3. Accordingly, in Mr Owen's view, the Amended DA was appropriate from an emergency response perspective. Risk assessment 1. The experts disagreed as to the aspects of the Thales Safety Case. 2. As to the substance of the Safety Case, Dr Green stated that the conclusion expressed in the Thales Safety Case, as broadly re-expressed above, was incomplete. Relevantly, any assessment of risk must include an assessment of "residual risk". This was explained as: "The residual risk is the risk that can cause injury and death above or through loss of control on the site": Tcpt, 6 February 2024, p165(10-1). The expression residual risk was intended to capture the possibility of risk of injury or death not otherwise adequately provided for under, in particular, the Defence Regulations; or, otherwise expressed by Dr Green as "accidents do occur even with good control of a site". 3. In contrast, Mr Roberts was of the opinion that the various factors which Dr Green identified as uncertainties associated with the EO Depot were already incorporated into the Thales Safety Case such that it represented a comprehensive account, as feasible, of risk. 4. Evidence adduced from Commodore Nash raised a concern that there was a likelihood that the Amended DA would trigger a change in the Thales Safety Case, in particular the assessment of risk and any attendant consequences in terms of licensing of the EO Depot. 5. In his affidavit at par 32 Commodore Nash gave evidence as to the consequence on the EO Depot if the Amended DA was approved and stated: "…the applicant's proposed development, if approved, Comcare will be require [sic] to review the revised MHF Safety Case and place in jeopardy the ability for Myambat EO Depot to maintain an MHF licence." 6. Commodore Nash did not resile from that opinion under cross-examination, though pressed on the distinction between likelihood and consequence as applied to review of the licence required for the EO Depot's continued operation. 7. Commodore Nash concluded at par 39 of his affidavit that: The significant adverse strategic impact that the loss of the Myambat EO Depot's capability will have on Australia's sovereign capacity is an unacceptable strategic risk within the strategic threat environment identified by the Defence Strategic Review 2023. Findings on issues in contention 1. The issues in dispute between the Applicant and the Commonwealth relate to the interaction of the land uses on the Site and the land uses on the EO Depot. The issues were particularised as identified at [20] above and broadly raise a consideration of: 1. The impacts of the EO Depot land uses upon the proposed uses of the Site; and conversely, 2. The potential impacts of the Site upon the continued uses of the EO Depot. Site suitability considering the risk of safety to users of the Site Relevance of Defence Regulations 1. As identified above, the parties were in agreement that the issue of the risk to safety of the users of the Site by the operation of the EO Depot was to be analysed by reference to the Defence Regulations. 2. As was agreed between the parties that the Defence Regulations were an internal policy document used by the Commonwealth in the management of risk both within an EO Depot and to adjoining lands. The Defence Regulations were developed consistent with what had been identified as best practice in the NATO Guidelines. 3. No party submitted that the Defence Regulations were not an appropriate tool to assess the risk to persons on the Site. However, the Applicant did contend that the Defence Regulations, whilst a tool for assessment, was not a binding policy of sufficient weight that non-compliance with which would necessitate the refusal of the Amended DA. 4. I accept that the Defence Regulations are a relevant tool to assist in the determination and consideration of risk. However, I do not consider that the provisions of such policy are mandatory or compliance with its provisions are compulsory. Where a policy exists and is utilised in determining a planning application the weight to be given to such policies pursuant to the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) was identified in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 (Stockland) at [88]-[92] (per McClellan CJ) as: 88 The Environmental Planning & Assessment Act 1979 gave statutory recognition to development control plans. However, there was before that Act, and there remain, many cases where a council adopts statements of policy for its area, or part of it, which are not included in development control plans. They relate to many matters and may include master plans for sites or parts of a council area. They may be adopted after considerable public participation, detailed research and describe fundamental expectations of the relevant council. When there is a relevant policy which is not a development control plan, the question arises as to the approach to that policy and the weight to be given to it in the decision of the relevant council and in an appeal, if any, to this Court. 89 In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, Mason P discussed the role of policy in the consideration process. The President emphasised that environmental planning instruments are not "the only means of discerning planning policies or the 'public interest'" (at LGERA 210). 90 The public interest is expressly acknowledged as a relevant consideration in s 79C(1)(e) of the Environmental Planning and Assessment Act. It was similarly acknowledged in s 91 of the Act in its original form. It must extend to any well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan. 91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options. 92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows: the extent, if any, of research and public consultation undertaken when creating the policy; the time during which the policy has been in force and the extent of any review of its effectiveness; the extent to which the policy has been departed from in prior decisions; the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. 1. The Defence Regulations do not squarely fit within the consideration of the kind referred to by McClellan CJ in Stockland as it is not a policy document adopted by a planning authority, nor one adopted for the purposes of determining development applications. The Defence Regulations have been developed for the purpose of assisting the Commonwealth in the selection and maintenance of suitable sites for EO facilities. The Defence Regulations further make provision for the ongoing assessment of risk associated with the EO facilities for the purposes of the licensing of such facilities as a MHF. The primary focus of the Defence Regulations is on the meeting of the needs of the Commonwealth and not as a tool for the assessment of other developments having regard to the features and risks of the EO facility to other developments on land not controlled by the Commonwealth. In addition, the Defence Regulations were not prepared by a process of community consultation or consultation with the planning authorities. 2. Having regard to those factors, I nonetheless consider that the use of the Defence Regulations as a tool to assess the risk to and from the EO Depot is appropriate. The Defence Regulations have been prepared to identify best practice in the storage of explosive ordnance and conforms with international best practice as identified in the NATO Guidelines. As such, it provides an information foundation upon which risk can be assessed in a planning assessment context. Accordingly, the weight to be given to the Defence Regulations in the determination of the planning merits as identified in s 4.15 of the EP&A Act is relevant but not determinative. 3. The Defence Regulations also makes reference to the Department of Planning's document Hazardous Industry Planning Advisory Paper No 4, Risk Criteria for Land Use Safety Planning (January 2011) (HIPAP). HIPAP identifies its purpose as: 1.2 Purpose of the Guidelines The guidelines suggest risk assessment criteria to be considered when assessing the land use safety implications of industrial development of a potentially hazardous nature. These suggested criteria are equally relevant and applicable to the considerations of land use planning and development in the vicinity of potentially hazardous facilities. The guidelines are relevant to local councils, development proponents and the community. They will assist in efficient and appropriate decision-making concerning the safety planning and impact assessment of potentially hazardous development and surrounding land uses. The advisory nature of the guidelines and their criteria is emphasised for a number of reasons. Firstly, hazards and risk are only one part of the overall decision-making process. Other considerations, such as the need for the development and social and economic factors should also be taken into account. Consent authorities are advised to weigh all these factors, including risk implications, when making their planning decisions. Secondly, it is more appropriate to focus on the proper use of hazard analysis and risk assessment techniques in assessing the relevancy of technical safeguards and locational safety constraints, rather than attempting to meet criteria in isolation. Thirdly, experience indicates variations in assessment factors from one locality or development to another, including variations in organisational safety management, vulnerability to risk exposure and in emergency provisions and infrastructure, which may not be amenable to uniform treatment. It is therefore appropriate that risk assessment criteria be considered as providing target guidance rather than absolute values in ail [sic] cases. 1. Again, the HIPAP are guidelines and are intended to assist in the determination of development applications where there is an identified risk beyond the boundaries of the site upon which a hazardous industry is intended to be undertaken. The provisions of the HIPAP have been adopted through the application of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) where it requires consideration of such guidelines in the determination of certain nominated development types. Those provisions, however, do not apply to the determination of development of the type in the Amended DA. 2. In the circumstances of this case, the HIPAP has no direct application and therefore it is not intended to be of determinative weight. To the extent that the HIPAP are incorporated in the Defence Regulations by reference (cl 2.16; reg 5.3) and as an independent policy document, it too, is a relevant consideration subject to weight and relevance to the particular circumstances of this case. Assessment of risk pursuant to Defence Regulations 1. The Defence Regulations require an assessment of risk which turned upon a determination of the proximity of the risk and the vulnerability of the uses upon which there had been identified a potential risk. The assessment of the proximity of the risk in these proceedings was determined and illustrated by the placement of coloured lines on a plan as shown in [24] above. The depiction of that risk level was not disputed. It was accepted that part of the proposed use would be undertaken within buildings that were in part located within the Purple Line. 2. As to the Purple Line, the Defence Regulation provides: PURPLE SAFEGUARDING LINE Defines the minimum distance large public buildings, where many people may congregate, or major community amenities, must be sited from explosive facilities. The following are examples of structures and facilities that the Department of Defence may not wish to see approved inside the Purple Line: • major public structures or facilities of economic importance or of vulnerable construction, eg transportation terminals and telephone exchanges, • major structures or facilities that attract large populations, eg multi-storey buildings, schools, hospitals, shopping centres, sports stadiums, and • major public infrastructure which would cause considerable inconvenience to the general public if damaged, eg major bridges and dams. 1. The Purple Line is the envelope of lines drawn at twice the Inhabited Building Distance (IBD) for each Potential Explosive Site (PES) in the EO Depot. 2. Whilst it was not disputed that part of the development proposed in the Amended DA was within the Purple Line, the classification of the vulnerability of the uses proposed on the Site was the subject of dispute. The types of uses described above were not defined. 3. The Defence Regulations provide for the categorisation of land uses. By reference to what were described by a "Group" the vulnerability of the structures and users of the building were identified. Depending upon the relevant classification of the building the appropriateness of its location proximate to the EO Depot was to be considered. As to the Purple Line, the Defence Regulations identified that Group IV inhabited buildings could be appropriately safeguarded even if the buildings were within the Purple Line, however Group V buildings would not. 4. In this case, the dispute between the parties related to whether the proposed use of the Site should be categorised as Group V or Group IV. 5. The Applicant contended that the proposed use should be categorised as Group IV by reference to the provisions of cl 155 within reg 5.4 of the Defence Regulations which relevantly provided: 155 Personnel and facilities acceptable. This distance is termed the 'Inhabited Building distance' and is the minimum distance, in conjunction with` the overriding minimum distances given in paragraphs 40-46, at which inhabited buildings not directly connected with the functions of the EO area should be sited. This level of protection is proposed as acceptable for the following types of ES: … (c) structures and facilities in which people assemble, except as identified in paragraph 158; (d) Community facilities in which persons permanently or temporarily assemble. Examples are: … (5) schools and other educational facilities;… 1. The Commonwealth contended that the proposed use should be categorised as Group V by reference to the provisions of cl 157 within reg 5.4 of the Defence Regulations which relevantly provided: 157 Personnel and facilities acceptable. Because even superficial damage may in some instances be unacceptable, the siting of facilities of especially vulnerable construction or public importance may require siting at these distances. Examples are: (a) Large facilities of special/vulnerable construction or importance, eg: … (4) Large educational facilities; … (b) Facilities of vulnerable construction (see paragraph 46) used for mass gatherings: (1) Assembly halls; (2) Exhibition areas; … 1. Most of the concepts described in each of these provisions were not defined within the Defence Regulations with the exception of "vulnerable construction". The definition of "vulnerable constructions" that was said to relevantly apply to the buildings of the Amended DA were of "Type 3" which were defined as: Type 3. The third type of vulnerable construction is impractical to define precisely. This covers any large building which employs non load-bearing cladding panels, eg glass-covered market gardens or warehouse type retail stores. The explosion effects on such buildings depend on many factors, including: (1) The mass per unit area and frangibility of the cladding material. (2) The detailed design of the frame structure including stiffening partitions. (3) The use to which the building is dedicated. (4) The local population inside and outside the building. Note: Definition of this type of construction cannot be more precise, because of the variation in types of modern structures and the complexity of the interaction of the factors given. There is no real alternative to individual assessment of any large building within two times inhabited building distances (ie 44.4 Q1/3) which is not of traditional house construction. 1. Further explanation of buildings of vulnerable constructions was provided in cl 46 of reg 5.4 of the Defence Regulations which stated with respect to Type 3: (b) Type 3 presents a difficult problem and is intended to cover the multiplicity of new construction types which have been introduced since the curtain wall concept first developed. Each such building has to be treated on its merits, the hazard assessed and an appropriate QD selected. It is likely however, that this will fall in the 44.4 Q1/3 region. 1. The Commonwealth contended that the buildings would be classified as Group V as the projected numbers of persons attending the Site at any one time would be 300 people together with 87 staff. This was said to comprise a "mass" gathering or a "large" use of the land. Further it was suggested that the reference in the Amended DA to the proposed use being characterised as an "educational facility" pursuant to the MLEP was the same or similar purpose referred to in the Defence Regulations as an "exhibition space" and was therefore specifically precluded. 2. As noted above, the Defence Regulations provide little assistance by way of defined terms, to understand what certain words were meant to mean. What is to be observed is that the terms used in the Defence Regulations do not appear to have been drawn from the defined terms in the MLEP or used in a planning context. As a consequence, the Defence Regulations cannot be understood by reference to the MLEP. 3. The Commonwealth contended that the proposed use would fall within such descriptions by comparing the increase in population on the Site when comparing that which existed upon the Site under its existing uses with the population that was expected under the Amended DA. It was suggested that the increase was large and significant by comparison. This approach is not one that is open on the Defence Regulations or upon a proper assessment under s 4.15 of the EP&A Act. What is required is an objective analysis of what is proposed in the context of what is being described in the Defence Regulations. The characterisation provided for in the Defence Regulations is not referenced by an increase (or otherwise) from an existing state of affairs. 4. The reference to "mass gathering" and "large" uses must be seen in the context of the examples that are provided when these terms are used in the Defence Regulations. As to "mass gathering", the examples include sports stadia and amusement parks/theme parks. Such an understanding is reinforced when consideration is given to the NATO Guidelines which informed the Defence Regulations. The NATO Guidelines identify high density usage as having a potential population in the order of 900 or more users per day. Whilst utilising a different terminology the NATO Guidelines support the contention of Mr Roberts that the population of a Group V use is of a greater order than that proposed in the Amended DA. Therefore, I consider that the size of the facilities to which the Defence Regulations refer are facilities in which there would be expected to be more than that proposed in the Amended DA. This view is reinforced by the examples used in cl 157(a) of the Defence Regulations relating to Group V buildings that identify large hospitals, multistorey office or apartment buildings, large educational facilities and the like. The size of the facility and the number of persons (at a maximum) that is proposed in the Amended DA is a lesser intensity of use than the uses to which Group V inhabited buildings relate. The references in Group IV make it apparent that there is a distinction between the same use by reference to size. The distinction being one of size leads to a conclusion that the Group V buildings are intended to cover only those uses for which on any measure are considered larger than a standard facility of that type. The use proposed in the Amended DA, therefore, more closely conforms with the description of a Group IV building as a facility in which people assemble. 5. Further, to be a Group V building it must also be classified as being of "especially vulnerable construction or public importance". In this case, I accept the evidence of Mr Owens and Mr Roberts that the buildings proposed to be utilised in the Amended DA are not of curtain wall construction and are not constructed with glass or frangible panels or of such other construction so as to permit a finding that the building is of vulnerable construction. This analysis was also consistent with the visual understanding of the form of building as indicated in the video site inspection tendered in the proceedings. Dr Green was unable to assist as to the construction of the buildings as he stated that he had not inspected same. 6. Accordingly, I find that on the evidence, the building is not of vulnerable construction and consequently, I also find that the building is not of "especially vulnerable construction" such that the provisions of the Group V classification would apply. 7. I therefore accept the evidence and submissions of the Applicant that the building proposed to be used in the Amended DA is appropriately classified as being (conservatively) of Group IV as a facility in which people assemble. Consistent with the Defence Regulations, the risk associated with its location within the Purple Line is acceptable. Residual risk 1. The Commonwealth contended that even if the use was appropriately classed as a Group IV building there remained a "residual risk" to public safety. The foundation for this contention was that the Defence Regulations did not operate to remove all risk and therefore there remained a risk from which conformity with the Defence Regulations would not address. Through the Respondent's witness, Dr Green, it was contended that the residual risk would increase as a consequence of the change in use proposed in the Amended DA. 2. Dr Green's contention that, notwithstanding the Amended DA being acceptable under the Defence Regulations, it was still necessary to consider that there would remain a "residual risk" of harm. The residual risk was said to arise as a consequence of the modelling used in the Defence Regulations only addressing 95% of the risk, there remaining (as the residual risk) a 5% chance that the explosion event would be greater than that modelled. This residual risk, Dr Green contended, would be attended with a risk of injury or death of the users of the Site. The Commonwealth explained the issue of residual risk in its written submissions at par 65 as follows (footnotes omitted): 65 Dr Green was challenged in cross-examination about his opinions, in particular his opinion that the EO Depot posed a "residual risk" of death and injury to persons on the applicant's Site within the Purple safeguarding line / zone, notwithstanding that the "expected outcome" in the event of an accidental explosion at the EO Depot it was "very unlikely" that there would be deaths or serious injuries as a result of the explosion within the Purple safeguarding line / zone. However, Dr Green's evidence should be accepted for the following reasons: (a) When Dr Green uses the term "expected", he is referring to the expected outcome of the blast. That is, the occurrence of the blast is "unexpected" (because it is caused by an accident), but Defence's modelling which is used in the Explosives Regs is based on the "expected" outcome of an "unexpected" or accidental blast, which is the estimate of the 95th percentile, that is, what will happen in 19 out of 20 times such an unexpected blast occurs (as a matter of statistical probability). That modelling is based on previous testing. However, that leaves a 5 per cent chance or 1 in 20 event) that the actual outcome of the accidental blast will be greater than the "expected" outcome, in which case the blast effects in the purple line would be greater than (and therefore more dangerous and destructive) than the "expected" outcome on which the Purple line / zone is based. (b) For this reason, Dr Green does not accept that the Safety Case for the EO Depot demonstrates that the EO Depot does not pose any risk of death or injury to persons on the applicant's site within the Purple line / zone. It was put to Dr Green that the Safety Case demonstrates that "the effects of a major incident will remail within the boundary with no expected casualties outside of the subject site", which Dr Green did not accept because the Safety Case (as expressly stated) is based on the "expected outcome" of an accidental blast at the EO Depot. However, as Dr Green explained, there will be instances (a 1 in 20 event) where the actual outcome of the accidental blast will be greater than the "expected" outcome, in which case the blast effects in the purple line would be greater than the "expected" outcome. (c) Dr Green explained his evidence further in re-examination: "Basically you've got a 5% chance that it's going to end up with an unexpected explosion that is actually greater than is actually being predicted by the modelling". 1. Based upon the evidence, I am unable to accept Dr Green's underlying assertion that the modelling only calculates a 95% eventuality. Dr Green was unable to identify any part of the Defence Regulations or the parent NATO documentation that identified the asserted residual risk inherent in the modelling. His assertion of this deficiency was unsupported on the evidence. 2. Even if there did remain a residual risk to assist in the determination of the Amended DA the question was not whether there was a component of risk that remains unassessed but rather, if there was such residual risk, what was the consequence of such residual risk on the users of the Site. Dr Green's mathematical calculations did not meaningfully quantify such risk that would arise from the asserted residual risk as his assessment: 1. Was based upon an assumption that the risk of death at the Yellow Line was equivalent to the individual "suggested criteria" risk of death as provided for in Table 2 of the HIPAP; and 2. Was based upon an assumption that more than one explosive store detonates simultaneously. 1. Neither of these assumptions are made good on the evidence. There was no evidence that would permit an assumption to be made that there was a risk of death at the Yellow Line. Dr Green accepted that he had not undertaken any calculation of risk of death at the Yellow Line, nor was there any evidence otherwise available that would permit such a finding. Absent the assumption being founded on some evidence the conclusions that are then drawn by Dr Green are unfounded. As to the assumption of multiple explosive stores being involved in an event, the evidence was clear that the design of the facility was unlikely for there to be propagation from one building to another let alone multiple facility involvement at the same time. 2. To the extent that Dr Green relied upon his assumptions to conclude that "5% of the population at the IBD would be killed" or that "as the risk of individual death at the IBD is 50x10-6 per annum, individual risk of death at the Purple Safeguarding line is equivalent to 6.6x10-6" cannot be accepted. There has been no assessment of risk actually undertaken by Dr Green that would supersede or call into question the assessment of risk contained in the Thales Safety Case, the analysis of which was accepted by all experts as having been undertaken in accordance with the Defence Regulations. The Thales Safety Case found that there were no expected casualties to offsite personnel and the expected affected area would be contained within the Commonwealth boundaries. As there is no intended changes to the EO Depot the evidence suggests that such risk analysis remains apt to the Site with the change in use proposed in the Amended DA, that is, if the impacts of the relevant blast are to be contained within the Commonwealth land the prospect of impacts beyond the boundaries of that land remain unlikely. 3. Further, in light of the conclusion that I accept that there is no real or identified chance of death or injury on the Site there is no work for the considerations of societal and individual risk to which the HIPAP (and by incorporation the Defence Regulations) refers. 4. Dr Green also appeared to suggest that what was required in order for the Amended DA to be acceptable from a planning perspective was a finding that there was not any risk arising from the use of the EO Depot on the Site. I cannot accept this is a proper approach to the determination of the Amended DA. First, considerations in s 4.15 of the EP&A Act involving site suitability form part of an unranked and unweighted list of considerations. The satisfaction of a zero risk as a requirement for an approval under s 4.15 is not open on a construction of that section. Secondly, the Defence Regulations, the NATO Guidelines and the HIPAP do not require the zero-risk scenario. Rather, the assessment of risk deals with managing, not eliminating, risk. 5. For those reasons, I prefer the evidence of Mr Owens and Mr Roberts, together with the Thales Safety Case, and find that there is no unacceptable risk to occupants and users of the proposed use described in the Amended DA such that it would warrant refusal of the Amended DA as a consequence of the impacts of the EO Depot on the Site. Risk from blast overpressure, lobbed projectiles/rogue fragments and fire 1. The Commonwealth in its closing submissions did not place great weight upon this issue as a matter otherwise remaining for consideration apart from the risk referred to above, notwithstanding that it had been raised in its Amended SOFAC. 2. As to the issue of risk of fire, a bushfire assessment report formed part of the Amended DA. In addition, expert reports in bushfire risk were adduced by the Council and the Applicant. In their joint expert report the experts agreed that subject to the imposition of conditions that have been incorporated into the conditions at Annexure A, the Amended DA would be appropriate having regard to the relevant standards in planning for bushfire. 3. To the extent that fire risk arose as a consequence of explosion rather than bushfire I accept the evidence of Mr Roberts that the majority of the Site is Category 3 bushfire prone land (rather than Category 2), it is mainly low-lying grass land and the Site has a well-equipped firefighting capability. 4. Having regard to the totality of the evidence, I do not accept that there is a residual fire risk that would warrant refusal of the Amended DA. 5. As to impacts from blast overpressure, to the extent that Dr Green sought to indicate that the risks of overpressure had been underestimated by not considering the residual risk scenario referred to above, I do not accept that evidence for the same reasons outlined above. 6. With respect to the impacts of overpressure when calculated in accordance with the Defence Regulations I accept the evidence of Mr Roberts that the effects of overpressure are consistent with the assessment of overpressures and of the Purple and Yellow Lines in the Thales Safety Case. In the Thales Safety Case the Purple Line is a safety arc drawn to identify the area outside which the peak side-on overpressure (air blast) arising from the worst-case explosives incident onsite will not exceed 2 kPa (0.02 bar) and the Yellow Line is defined similarly but so that the worst-case explosives incident will not exceed 5 kPa (0.05 bar). All of the overpressure effects on people shown in Table 14 in the Thales Safety Case require a peak overpressure that is greater than these levels, for example, for a person to be thrown to the ground the peak overpressure needs to reach 0.10 bar. 7. Accordingly, based upon the evidence, I am satisfied that the effects of blast overpressure do not expose the Site to unacceptable risks such that it would warrant refusal of the Amended DA. 8. As to lobbed projectiles and rogue fragments, Mr Roberts explained in his evidence that Figure 8 to Dr Green's report: …clearly shows fragmentation from as much as a 100,000 kg blast is only reaching distances of 1,000 metres. With a 75,000 kg blast fragments are reaching approximately 940 metres, which is the IBD and also the Safeguarding Yellow Line that is within the [Commonwealth property boundary]. Dr Green, in his evidence, did not dispute this opinion. 1. Accordingly, I accept the submission of the Applicant that on the evidence debris and fragments will not reach the Site, let alone the building to be used in the Amended DA. I am not satisfied that there is a risk of lobbed projectiles or rogue fragments that pose a risk such that the Amended DA should be refused. Emergency response 1. The Applicant submitted with the Amended DA an emergency response and procedures plan. 2. Dr Green had raised an issue with the emergency response in the event that the emergency arose as a consequence of an explosive incident on the EO Depot. His primary concern related to the potential for emergency services to be required to attend to the EO Depot as well as the Site and that this, together with human behaviour could undermine the emergency response. 3. The Commonwealth in its closing submissions did not place great weight upon this issue, notwithstanding that it had been raised in its Amended SOFAC. 4. To the extent that it remains as an issue in the proceedings, I accept the evidence of Mr Owens that the emergency services response is a coordinated response familiar with emergency events with multi-site involvement and that, from an "operational perspective", supports the conclusion that a major incident at the EO Depot would not overwhelm local emergency services, with the existing emergency response and procedures plan being deemed appropriate. 5. I further accept that issues of human behaviour are matters familiar to emergency responses and have been adequately addressed in the proposed emergency response planning for the Site. 6. I find that, subject to the imposition of the conditions as identified in Annexure A, the Site is not unsuitable for the development proposed in the Amended DA due to inadequate emergency response. Likely impacts of the proposed use upon the operations of the EO Depot 1. The operation of the EO Depot has not changed. The Purple Line and the Safety Case that has been prepared with respect to those operations has not changed. The Purple Line was and continues to encompass some land beyond the boundary of Commonwealth land. The issue relates to the fact that there are likely to be more people on the adjoining land and the risk posed to those people by the proximity of the EO Depot. 2. The EO Depot is a licensed MHF under the WHS Regulations. Comcare is the body tasked with licensing such facilities. 3. The current MHF licence for the EO Depot issued under Pt 9.7 of the WHS Regulations, being Licence No. 2010-004, came into effect on 30 April 2020 and expires on 30 April 2025 (MHF Licence). The MHF Licence includes the following conditions: 1. Condition 1: The operator must notify Comcare in writing as soon as practicable of any event where they: 2. (a) have not complied with, or are likely to fail to comply with, a condition of this licence, or 3. (b) are aware of circumstances which will affect the operator's ability to operate the major hazard facility in a safe manner; and 4. Condition 3: The operator must provide prior written notice to Comcare if there is a requirement to revise the facility's Safety Case or any of the reasons provided for in cl 563. The operator must assess any revisions of a Safety Case and provide Comcare an Executive Summary of an Assessment provided by an Approved Assessor of those revisions prior to them being implemented. 1. A MHF is relevantly defined in cl 5 of the WHS Regulations as a facility at which "Schedule 15 chemicals are present or likely to be present in a quantity that exceeds their threshold quantity". Schedule 15 to the WHS Regulations relevantly provides that the threshold quantity of Div 1.1A explosive material is 10 tonnes (see Table 15.2). Therefore, the EO Depot is a MHF under the WHS Regulations because more than 10 tonnes of Div 1.1A explosive material is stored at the EO Depot. 2. As a MHF, the EO Depot must be licensed under Pt 9.7 of the WHS Regulations: see cl 535. The licensing process is as follows: 1. The operator of the MHF is to apply for a MHF licence for that facility: see cl 577; 2. The licence application must be made in accordance with cl 578 which requires the applicant to submit an application which contains a Safety Case prepared under Div 4 of Pt 9.3: see cl 578(2). The preparation of a Safety Case under Div 4 of Pt 9.3 requires the applicant to inter alia (see cl 561(2)): 1. identify all major incidents that could occur in the course of operation of the MHF, and all major incident hazards for the MHF: see cl 554; 2. conduct a safety assessment in accordance with cl 555; 3. prepare an emergency plan in accordance with cl 557; 4. establish a safety management system for the operation of the MHF in accordance with cl 558; 5. include any further information that is necessary to ensure that all information contained in the Safety Case is accurate and up to date: see cl 561(3); 6. demonstrate that the MHF's safety management system will, once implemented, control risks arising from major incidents and major incident hazards, and the adequacy of the measures to be implement by the operator to control risks associated with the occurrence and potential occurrence of major incidents: see cl 561(4); 1. Once the application is submitted, the regulator (that is, Comcare) must grant a MHF licence if satisfied that the Safety Case for the facility has been prepared in accordance with Div 4 of Pt 9.3, and the operator is able to operate the MHF facility safely and competently: see cl 580(1) and (2); 2. Where a MHF licence is granted, the regulator may impose any conditions it considers appropriate on the MHF licence: see cl 584; 3. A MHF licence may be granted for a period of not more than 5 years: see cl 585; 4. Where an operator has been granted a MHF licence to operate the MHF, the operator must give the regulator written notice of any change to any material particular in any information given at any time by the operator to the regulator in relation to the licence, such information required to be given within 14 days after the operator becomes aware of the change: see cl 588. The regulator may amend the MHF licence as a result of the provision of such information: see cl 589; 5. Where an operator of a MHF identifies a new major hazard risk, the operator must review and as necessary revise the safety assessment, the emergency plan and the safety management system, as well as the Safety Case: see cll 569 and 570; and 6. The regulator may renew a MHF licence on application by the operator: see cl 595. The renewal process requires the operator to submit a revised and up to date Safety Case prepared in accordance with cl 570: see cl 596. 1. The relevant documents which have been prepared by Thales for the licensing and operation of the EO Depot which are in evidence in the proceedings are as follows: 1. Thales EO Services Major Hazard Facilities Safety Case – Volume One; 2. Thales EO Services Major Hazard Facilities Safety Case – Volume Two; and 3. Thales EO Services Emergency Plan EO Depot Myambat. 1. The issue raised by the Commonwealth is that the change in use of the Site as proposed in the Amended DA will constitute a material change in risk such that the Commonwealth will need to undertake a further risk assessment and submit the same to Comcare for consideration. Such actions may put at risk the licensing of the EO Depot as a MHF or may require changes to the operation of the EO Depot to accommodate such risk such that the efficacy of the EO Depot will be put at risk. 2. Commodore Nash, in his evidence, explained the functions and importance of the EO Depot at pars 8 to 14 of his affidavit as follows: 8 The Myambat Explosive Ordnance Depot at 495 Rosemount Road, Denman in New South Wales (Myambat EO Depot) is the central depot in Defence's national explosive ordnance storage network, which consists of 17 explosive ordnance depots across Australia. 9 [REDACTED]. 10 [REDACTED]. 11 [REDACTED]. 12 In addition to the site's natural features, the Myambat EO Depot is strategically situated for logistics purposes, being approximately 90km from the Singleton Military Area and 152km from RAAF Base Williamtown, critical facilities for Army and the Royal Australian Air Force's operational capability, respectively. 13 [REDACTED]. 14 [REDACTED]. 1. I accept his evidence in this regard. It was also submitted that the capacity to relocate the EO Depot in its entirety would be extremely costly and in the order of many millions of dollars, which I also accept. 2. Notwithstanding my acceptance of the strategic importance of the EO Depot the considerations required to be undertaken pursuant to s 4.15(1)(b) of the EP&A Act requires me to have regard to the "likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality." The concept of a likely impact was considered in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638 at [44] and [46] (per Basten JA) where it was held to mean: 44 … The impact must be one flowing from the development the subject of the development application: the question is how remote a "likely" impact must be, in order to disqualify it from the scope of the consideration. This requires an evaluative judgment which will often not involve any bright-line boundary. An antecedent question may, therefore, be: who is to determine the point at which a particular impact is too remote to demand consideration? … 46 … Some such limitation must follow from the concept of "impact": as remoteness from the development increases, impact is likely to decrease, until it no longer has practical significance in terms of approving or refusing to approve the application. Further, the likelihood of a particular impact may diminish with remoteness. "Likely" in this context has the meaning of a "real chance or possibility" rather than more probable than not: Randwick Municipal Council v Crawley (1986) 60 LGRA 277 at 279–281; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 193. 1. The evidence adduced by the Commonwealth in this case is that there is likely to be a requirement to advise Comcare and to provide an updated risk assessment. The need to provide an updated risk assessment is one that is consequential of the licensing regime, irrespective of any change in use on the Site as the MHF licence is for a limited period under the WHS Regulations. Even if such a requirement was triggered as a consequence of the approval of the Amended DA, I do not consider such a requirement alone to comprise an impact of such significant so as to warrant refusal of the Amended DA. In order for the impact to be a "likely" impact within the meaning of s 4.15(1)(b) of the EP&A Act what is to be considered is the consequence of the triggering of the reporting requirement. 2. The Commonwealth has not adduced any evidence that the outcome of such notification or such risk analysis would be adverse to the continued operations of the EO Depot. 3. From the evidence adduced, the Thales Safety Case (see [89] above) and the findings I have made as to the likely risk to users of the Site there is no evidence to support the anticipated consequences as identified by Commodore Nash as to the impact on future licensing of the EO Depot. 4. No evidence was adduced from Thales that such a statement would require revision as a consequence of an approval of the Amended DA even on the assumption of an increased risk to users of the Site consequent upon an approval of the Amended DA. 5. Commodore Nash did not undertake an analysis of his own as to the prospect of there being an adverse effect on the continued operations of the EO Depot and deferred that analysis to Dr Green. In light of my findings with respect to the evidence of Dr Green, there is no evidence that would support a finding of any risk to the continued operations of the EO Depot and not a risk that could be found to be a real chance or possibility. 6. Taking into account the totality of the evidence adduced in these proceedings the risk, if any, to the continued operations of the EO Depot at all is speculative. The assertion that the approval of the Amended DA would likely pose a risk that the EO Depot would be unable to operate in such a manner so as to reduce its functional and operational value to the safety and protection of the Commonwealth is absent. 7. The Commonwealth contended that all that was required to be found to warrant refusal was that there was a trigger from the change in use of the Site that would warrant an updated Safety Case to be submitted to Comcare. If such finding was made it submitted that the consequence would be that the Site was incompatible with the operation of the EO Depot. I reject that submission. 8. Section 4.15 of the EP&A Act requires an assessment of site suitability, not in a vacuum but by reference to the evidence. The mere triggering of a reporting requirement is insufficient for a finding on the evidence that the use of the Site would render the continued operation of the EO Depot at risk. Such a trigger alone would be insufficient to permit a finding that the EO Depot would be rendered inoperable in totality. Absent some identification of the circumstances that would be required to change in order to trigger a real risk to the licensing of the EO Depot the contention as to the likely impacts of the Amended DA has not been made out and remains entirely speculative. 9. For the foregoing reasons, I am not satisfied that the likely impacts of the use proposed in the Amended DA would adversely affect the operation of the EO Depot so as to warrant refusal of the Amended DA. Jurisdictional preconditions required for the grant of consent 1. The Applicant and the Commonwealth submitted to the Court that the relevant jurisdictional preconditions have been met by the proposed Amended DA. With consideration of the evidence and submissions, there are no jurisdictional impediments to the grant of development consent as set out below. 2. The Amended DA was lodged, with owners' consent, to Council on 4 November 2021. Accordingly, it is noted that a number of savings provisions within the current environmental planning instruments and regulations are engaged. State Environmental Planning Policy (Resilience and Hazards) 1. With respect to SEPP RH, s 1.4, transferred provisions, applies. Accordingly, the transferred provisions are to be construed as if they had not been transferred. 2. In relation to contamination and remediation, s 4.6 of the SEPP RH applies and states as follows: 4.6 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless— (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subsection (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subsection (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is— (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or childcare purposes, or for the purposes of a hospital—land— (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge). 1. Initially raised as a contention, Council submitted at the hearing that the contention had been resolved and sought a related deferred commencement condition for further information. This contention and proposed deferred commencement condition was clarified through the hearing, with the Applicant and Council submitting that no further information was required on the basis of the Preliminary Site Investigation Report prepared by Foundation Earth Sciences dated June 2023 (PSI) which accompanied the Amended DA. The PSI concluded that the Site was suitable for the proposed development and included recommendations in relation to waste classification, hazardous materials assessment and an unexpected finds protocol. 2. These recommendations were ultimately incorporated into conditions 19 and 21 of the draft conditions of consent. 3. Based on the agreed position of the parties, the PSI and proposed conditions of consent, I accept the evidence that there are no further contamination investigations required and the provisions of s 4.6 of SEPP RH have been satisfied. Section 4.14 of the EP&A Act – Certain bush fire prone land 1. The Site is subject to the provisions of s 4.14 of the EP&A Act in relation to certain bush fire land and is mapped as Vegetation Category 1 and 3. Section 4.14 states: 4.14 Consultation and development consent—certain bush fire prone land (cf previous s 79BA) (1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3(2)) unless the consent authority— (a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or (b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements. (1A) If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire. (1B) This section does not apply to State significant development. (1C) The regulations may exclude development from the application of this section subject to compliance with any requirements of the regulations. The regulations may (without limiting the requirements that may be made)— (a) require the issue of a certificate by the Commissioner of the NSW Rural Fire Service or other qualified person in relation to the bush fire risk of the land concerned, and (b) authorise the payment of a fee for the issue of any such certificate. (2) In this section— special fire protection purpose has the same meaning as it has in section 100B of the Rural Fires Act 1997. 1. During the hearing, Council confirmed that its Amended Statement of Facts and Contentions should not have identified the development as integrated development. It was not integrated development. 2. It was agreed by Council and the Applicant that the Amended DA meets the bushfire provisions of s 4.14 of the EP&A Act as set out by the bushfire experts in the bushfire joint expert report. 3. The bushfire experts addressed the provisions of s 4.14 of the EP&A Act, including the NSW Rural Fire Services Planning for Bush Fire Protection 2019 publication (PBP) in the joint expert report. Based on the Amended DA and recommended conditions of consent, the bushfire experts agree that the proposed development will conform to the requirements of the PBP. The recommended conditions have been included in the proposed conditions of consent at 8, 9, 26, 54 and 65. 4. I accept and adopt the evidence of the bushfire experts and am satisfied that the provisions of s 4.14(1)(a) of the EP&A Act have been met. Other merit considerations Traffic 1. The Council did not press the traffic contentions in relation to parking spaces, manoeuvring, loading and traffic management on the basis of the Amended DA and agreement of the traffic experts in the traffic joint expert report. The traffic joint expert report included a number of conditions that have been included in the proposed conditions of consent at 16, 34 and 57. 2. I accept the evidence and agreement of the traffic experts in the joint expert report and find that there are no traffic or parking matters that would warrant refusal of the Amended DA. Conditions 1. The parties provided a draft set of conditions in the event that it was appropriate to grant development consent. The conditions were largely agreed with the exception of a deferred commencement condition that the Commonwealth contended should be imposed upon any development consent. The deferred commencement condition provided: A1. Deferred Commencement Consent This is a 'Deferred Commencement Consent' under Section 4.16(3) of the Environmental Planning and Assessment Act, 1979 (as amended). This consent does not become operative until the earlier of the applicant producing evidence to the Council that it has received notification from the Commonwealth of one of the following matters: 1. that the Commonwealth has obtained a renewal or reissue of the current "Licence to Operate a Major Hazard Facility" for 495 Rosemount Road, Denman NSW 2328 by Comcare in accordance with Regulation 757 of the Work Health and Safety Regulations 2011 (Cth), on terms which do not result in a reduction in capacity of the Explosives Ordnance Depot at Myambat having regard to the development the subject of this consent; or 2. that the Commonwealth has received confirmation from Comcare that the grant of the development the subject of this consent does not require any change to the safety case which is prepared to support the "Licence to Operate a Major Hazard Facility" or the Licence conditions for 495 Rosemount Road, Denman NSW 2328 in accordance with Regulation 563 of the Work Health and Safety Regulations 2011 (Cth). The Consent shall become operative from a "Date of Endorsement' to be included on a written notification from the Council to the applicant after the Council has received evidence from the applicant to satisfy this deferred commencement condition. The balance of the conditions specified in this consent will then apply. 1. Section 4.16(3) of the EP&A Act provides: (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. 1. In light of the findings I have made, it is not appropriate that a deferred commencement condition be imposed to, in effect, defer the operation of the consent until Comcare has made a determination of the licence for the EO Depot. As I have observed above, it was open to the Commonwealth to adduce evidence as to the likelihood of the risk of change to the EO Depot's MHF Licence and it did not do so. The imposition of the condition as proposed is inappropriate in the circumstances of this case. Conclusion and orders 1. Having regard to the relevant matters identified in s 4.15 of the EP&A Act as identified above, I am satisfied that, subject to the imposition of the conditions in Annexure A, development consent should be granted to the Amended DA. 2. The Court orders: 1. The appeal is upheld; 2. Development Application 2021/137 as amended by orders made on 19 July 2023 for the use of the land identified as Zone A as an information and education facility/art gallery and associated works is determined by the grant of consent subject to the conditions in Annexure A; 3. The exhibits are returned; 4. I direct the parties to make submissions in writing as to whether any part or parts of these reasons should remain restricted from publication having regard to the confidentiality sought by the Commonwealth by 8 July 2024. Orders - 11 July 2024 1. The Court orders: 1. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) further publication of the following parts of [115] of the unpublished judgment dated 24 June 2024 be restricted until 1 September 2043 or until further order of the Court: 1. paragraphs 9-11 and 13-14 extracted from the affidavit of Commodore Nash, which appear after the words "as follows:" Annexure A ********** Amendments 11 July 2024 - Published as Restricted - Lifted. Final orders entered - [146]. Following paragraphs redacted - paragraphs 9-11 and 13-14 of [115] . DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 July 2024