Land and Environment Court of New South Wales CITATION : Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources (No. 2) [2005] NSWLEC 412 APPLICANT: Patrick Autocare Pty Limited ACN 004 497 607 PARTIES : RESPONDENT The Minister for Infrastructure, Planning and Natural Resources FILE NUMBER(S) : 11609 of 2004 CORAM: Lloyd J Development Application :- intermodal cargo facility - State significant development - weight to be given to government policy KEY ISSUES: Environmental Planning and Assessment Act 1979 (NSW), sub-ss 5(a)(i) and (ii), 76A(7) and (9), 79C(1)(c), 80 (1), (4) and (5); ss 79A, 82, 91, 97 LEGISLATION CITED: Land and Environment Court Act 1979 (NSW), s 39(4) Rivers and Foreshores Improvement Act 1948 (NSW), Pt 3A Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 277; CASES CITED: Stockland Development Limited v Many Council (2004) 136 LGERA 254; Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 DATES OF HEARING: 03/06/2005 and 06/06/2005 DATE OF JUDGMENT: 08/03/2005 APPLICANT: J E Robson SC SOLICITORS: Deacons LEGAL REPRESENTATIVES: RESPONDENT: S A Duggan (barrister) SOLICITOR: Christine Hanson JUDGMENT: - 60 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES LLOYD J Wednesday, 3 August 2005 LEC No. 11609 of 2004 PATRICK AUTOCARE PTY LIMITED v THE MINISTER FOR INFRASTRUCTURE, PLANNING AND NATURAL RESOURCES (No. 2) [2005] NSWLEC 412 JUDGMENT (No. 2) Introduction 1 LLOYD J: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (NSW) (the "EP&A Act") by the applicant, Patrick Autocare Pty Limited (Patrick Autocare), against the deemed refusal by the respondent, the Minister of the Department of Infrastructure, Planning and Natural Resources (DIPNR) (the "Minister") of its development application for the construction and operation of an intermodal cargo facility. 2 As the proposed development involves a capital investment of approximately $26 million, the development is State significant development, and the Minister is the consent authority: EP&A Act, sub-ss 76A(7) and (9). The Minister did not determine the development application within 60 days and Patrick Autocare now appeals against this deemed refusal: EP&A Act, s 82; Environmental Planning and Assessment Regulation 2000 (NSW), sub-cl 113(1)(b)(ii) (the "EP&A Regulation"). The Site 3 The proposed development would be located at lots 132-145 in deposited plan 804256, lot 113 in deposited plan 800543 and lot 205 in deposited plan 787308, Broadhurst Road, Ingleburn (the "site"). The site is cleared, undeveloped and highly modified, being devoid of natural topography and vegetation other than weeds and exotic grasses with some scattered trees. Stockpiles for soil are located along the railway boundary. 4 The site covers an area of approximately 5.7 hectares. It is located in Campbelltown local government area and forms part of the existing Ingleburn Industrial area, which flanks the site to the north and west. The site lies immediately west of the Main Southern Railway, south of Ingleburn Station. On the eastern side of the railway, there are residential areas forming part of the suburb of Ingleburn. 5 Bow Bowing Creek lies to the south of the site and separates the site from Patrick Autocare's existing car processing, storage and distribution facility at No. 45 Stennett Road, Ingleburn. In the vicinity of Ingleburn Industrial area, including adjoining the subject site, the creek has been extensively modified and realigned and no natural features remain. 6 The area surrounding the site has been developed as industrial factories, warehouses and industrial units which tend to have a high proportion of manufacturing and warehouse/distribution activities. The Applicant 7 Patrick Autocare is a subsidiary of Patrick Corporation an Australian public company that provides vehicle processing and distribution services to major national and international vehicle manufacturers. It is a national operation and has facilities in all states. 8 Patrick Corporation is embarking on a nationwide strategy to increase the amount of cargo transported by rail. This strategy includes the establishment of strategically located intermodal rail facilities where cargo can be transferred between trains and trucks for local delivery, such as the proposed development. Patrick Corporation intends that this strategy will also result in an increase in the number of privately operated freight rail services, increasing competition and efficiency in the transport sector. The Proposed Development 9 The proposed development is to construct and operate an intermodal cargo facility. Cargo will be transported to and from the site via rail from Port Botany and Melbourne for distribution to and from the site via truck. 10 The proposed development would involve two operations, a vehicle transfer operation and a container operation, and would be developed in three stages over a three-year period. Stage 1 Vehicle Transfer Operation 11 The vehicle transfer operation is intended to provide for the transportation by rail of locally manufactured vehicles from the Toyota Manufacturing plant in Melbourne, Victoria to Patrick Autocare's existing facility at Ingleburn. More specifically, Stage 1 includes those parts of the development comprising the construction and operation of two 400-metre long rail sidings for the vehicle transfer operation; installation of acoustic walls, landscaping and a security fence; relocation of existing power lines; construction and use of temporary site facilities; and installation of lighting, drainage, tarmac and parking. 12 The facility would be designed to receive a 700-metre long train with a carrying capacity of 280 vehicles per trip on 2 x 400-metre long sidings. The three trains per week initially proposed (Monday, Wednesday and Friday, arriving from Melbourne before 6.00am and departing at approximately 1.00pm), could deliver approximately 42,000 cars to the facility per annum. 13 At present the demand is for about 32,000 cars to be delivered from Melbourne per annum and therefore, initially, the actual train length will be set to meet the volume requirements (being a train 500-metres long with a carrying capacity of 200 cars). When demand exceeds 42,000 per annum, a high level crossing over Bow Bowing Creek must be constructed and car train services would be required to increase to one 700-metre long train per day, six days a week. 14 On arrival the train would be moved into the siding in two halves and would then be unloaded by driving the cars from the southern end of the train and stored at the facility. These cars would then be distributed to retailers by trucks directly from the site. The train returning to Melbourne would be utilised to transport a limited number of specially ordered imported cars and used local cars. Stage 2 Container Operation 15 The container operation is intended to provide for container consolidation and distribution, and for the rail transport of international import and export shipping containers between the Campbelltown district and Port Botany. More specifically, Stage 2 includes those parts of the development comprising the construction and operation of an additional two 400-metre long rails sidings for the container operation; installation of heavy duty pavement for cargo storage and truck bays; installation of two gantry cranes for the loading/unloading of cargo containers; and construction and use of internal access road. 16 The two 400-metre long sidings for container trains would be constructed to accept 700-metre long trains, which have a carrying capacity of 90 TEU (Twenty-foot Equivalent Unit). As such, a train entering and leaving the site would have a total carrying capacity of 180 TEU. The container train is expected to arrive at the facility from Port Botany at 10.00am and depart at 2.00pm, Monday to Saturday. As such, on the basis of one train per day, six days a week and fifty weeks a year, the total rail capacity is approximately 54,000 TEU per annum, although allowing for an 80 per cent utilisation, the actual capacity is likely to be about 43,200 TEU per annum. 17 When demand exceeds the capacity of one train per day, a second train will be introduced into the operation. However, until the dedicated freight line from Macarthur to Port Botany is operational, the operation will be limited to one per day as the Rail Infrastructure Corporation (RIC) has advised that at present it could only schedule a second container train at night. 18 In addition, a maximum of 12 container train movements may occur outside the normal hours of operation within any 12 month period. 19 When on the siding, containers would be lifted from the train by one of the two gantry cranes and placed in the container storage stacks, up to three containers (7.5 metres) high and eight containers deep. Containers would then be collected from the site by road trucks and transported to their final destination. 20 Containers destined for Port Botany would be delivered to the site by trucks and stored on site before being loaded onto a train for transport to the Port. Stage 3 Ancillary Works 21 Stage 3 includes those parts of the development comprising ancillary works, including installation of a rail siding, and construction and use of a permanent site office, maintenance workshop, landscaping and car park. Hours of Operation 22 The normal working hours of the proposed development will be from 5.00am until 6.00pm from Monday to Saturday. The activities undertaken at the facility would include gantry crane loading and unloading of containers; forklifts and reachstackers moving containers between container stacks; trucks entering, idling and leaving; cars entering and leaving and being unloaded from the train; and trains entering and leaving the sidings. 23 Notwithstanding the proposed normal working hours, the proposed development is for limited 24-hour operation of the facility as trains may arrive/depart outside the scheduled times to meet the requirements of the RIC. The proposed facility requires that where a train arrives/departs: · between 6.00pm and 10.00pm, on-site activities during this period would be similar to those occurring during "normal working hours". · between 10.00pm to 12.00 midnight, the train would be loaded/unloaded by the gantry cranes but cargo would not be dispatched by trucks; · after midnight, an arriving train would be brought into the siding and shutdown over about 15 minutes. A train would take less than 15 minutes to depart. Thus, the only activity that would occur between 12.00 midnight and 5.00am would be the arrival or departure of trains. No cargo handling would occur during this time. Impact on Rail Movements 24 There are 375 rail movements past the intermodal site every working day. The proposed rail schedule for the operation will increase the number of movements by 4, to 379 movements. This represents an increase of less than 1.5 per cent over the existing rail movements. Impact on Truck Movements 25 At present, approximately 32,000 locally manufactured cars are transported by truck from Melbourne to Patrick Autocare's Ingleburn existing facility for local distribution. The proposed development would eliminate this activity and the associated generation of approximately 8,000 truck movements (14.4 million truck kilometres) per year between Melbourne and Sydney, specifically on the Hume Highway, M5 and road networks within Campbelltown City. In addition, the proposed facility would also remove 42,000 container truck movements (3 million truck kilometres) per year between Port Botany and the Macarthur region. 26 As a consequence of the reduced truck movements, fuel consumption would be reduced by approximately 1.71 million litres and subsequently greenhouse gas emissions would also decrease by an estimated 4,500 tonnes per annum resulting in less photochemical smog in the Sydney Basin. 27 Under the proposed development, the distribution centre for the Melbourne manufactured cars would be relocated from the existing facility to the new site and car carrier trucks would have to travel an extra 200-metres. However, this would only be temporary as a high level crossing over Bow Bowing Creek is proposed to link the existing facility to the new site. 28 The facility has the capacity to accommodate up to 40 trucks on the site. However, it is proposed to schedule a maximum of 20 truck onsite at any given time. The proposed maximum of three trains per 24-hour period would generate a maximum of 250 truck movements per day. 29 The proposal includes the preparation of traffic management plans and a contribution pursuant to a s 94 Contribution Plan. Landscaping and Acoustic Wall 30 The proposed development includes a landscaped berm comprising crib walls and sloping garden beds in a 10 metre zone along the eastern boundary of the site to address the potential impacts from noise and visual amenity concerns. A low wall about 1metre high would be positioned at the crest of the berm to serve as a safety balustrade, as well as an acoustic barrier. The overall height of the berm and low wall would be 6 metres from the level of the proposed track within the facility. A landscaped buffer incorporating a wetland system is also proposed along the western side boundary on Broadhurst Road and Stennett Road. 31 The distance from the landscaped wall to the stacks of containers, taking into account the slope of the site (which would fall away from Ingleburn Road), means the containers would likely be concealed from sight and only the top of the gantry cranes, which would be painted in visually recessive colours, would be seen. 32 The proposed landscaping would maintain the streetscape vista through the site to the Bow Bowing Creek reserve and would eliminate some of the existing less appealing attributes of the industrial precinct when viewed from the residential zone. The acoustic wall and associated landscape berm would appear as a vegetated relief, consistent with the rural views further to the west. Security and Night Lighting 33 The proposed development would be policed by 24 hour security and security fencing would be installed around the perimeter of the site. 34 Floodlighting would be installed at various points around the site perimeter for visibility during the night works and security. Night lighting would be designed such that the lighting would be contained within the facility. The lighting on the eastern side of the site would be mounted inside the noise screen to minimise the light spill. Employment 35 The proposed facility would provide 15 permanent site positions and 20 locally based truck driving positions. In addition, further employment benefits would arise from the potential to attract labour intensive depot and warehousing operations, as well as the packing of international shipping containers, to adjacent sites. The Development Application Process 36 A development application (DA-357-10-2002-i) for the proposed development was lodged with the Minister on 15 May 2002. That is not the development application which is the subject of this appeal. However, it does not differ in any material respect from the development application the subject of this appeal. The application was the subject of a Commission of Inquiry (the "COI") into all environmental aspects of the development. 37 Commissioner Kevin Cleland's COI report to the Minister dated December 2003 (Exhibit B(2), Tab 8), concluded that: the environmental aspects of the proposed development do not preclude its approval subject to the recommendations to minimise and control residual environmental impacts and to restrict night-time operation. 38 Commissioner Cleland made the following findings regarding the proposed development: Environmental Impacts of Operation · The facility would remove 8,400 car-carrying truck movements per year between Melbourne and Sydney and would also remove 42,000 container truck movements per year between Port Botany and the Macarthur region, when one train is operating per day between Port Botany and Ingleburn. · The proposed replacement of road transport with rail will reduce greenhouse gas emissions, improve air quality generally and reduce the traffic burden on major arterial road in the Sydney region. · Truck traffic on the roads close to Sydney would be reduced and any new train and truck movements would be centred on Patrick Autocare's site with truck movements limited to a maximum of 250 per day. · Heavy vehicles servicing the site would add to traffic on local roads including Campbelltown Road. However, other than some mid-block congestion on Campbelltown Road and minor delays at the intersection of Campbelltown Road and Williamson Road in peak periods, the local road network can accommodate the predicted increases while generally maintaining good levels of service. · The facility can comply with the relevant noise level criteria provided the confirmed acoustic barrier is constructed. · The acoustic barrier and site can be effectively landscaped to a high standard to ensure the visual amenity of the locality is maintained. Further, floodlighting can be designed and directed so that light spill is minimised. · The noise of the arrival, placing of wagons on Patrick Autocare's sidings or the departure of trains cannot be directly compared with the noise from normal operations on the main Southern Railway line. Strategic Planning Impacts of the Operation · The industrial areas of Ingleburn, Minot, Campbelltown and Narellan in Sydney's southwest generated 16.8 per cent of export cargo (25,000 TEU) and 6.2 per cent of import cargo (32,000 TEU) through Port Botany in 2000, according to a study conducted by the Sydney Ports Corporation. The annual growth rate of containerised cargo has been 7 per cent for the past 3 decades. It is clear that significant containerised cargo passing through Port Botany is either destined for or originates from the Macarthur region. · State and Commonwealth governments have recognised the need for infrastructure such as the proposed development and the overall environmental benefits of using rail transport instead of road in developing this infrastructure. · In the Independent Review of Proposed Enfield Intermodal Terminal (February 2003) (the " Morris Report ") (Exhibit B(1), Tab 11), the Honourable Milton Morris AO concluded there is a need for additional intermodal terminal capacity in Sydney over the coming decade which needs to be well planned. The planning must take into account recent developments at all three NSW commercial ports; in road construction; and issues around construction of freight only rail tracks in and through Sydney. The principle of intermodal terminals demands that there should be numerous small facilities strategically spread across the metropolitan areas in order to maximise the distance containers travel by rail and minimise the distance travelled by road. · The Ingleburn site has been identified by two Rail Access Corporation (RAC) (the predecessor of the RIC) studies as the preferred location for an intermodal facility. · Based on the requirements of RAC, the Sydney Metropolitan Rail Sites Study (July 1998) (Exhibit B(1), Tab 2) identified part of the Ingleburn site (Ingleburn SW, Stennett Road, Ingleburn) as a potential site for a new rail operation. The study found that the site was suitable for freight operations as it is adjacent to the main southern line and has direct access, provided new connections are installed, to the north-south rail corridor, to Enfield Yard and to Sydney ports. · The Metropolitan Land Bridging Concept Study (December 1998) (also commissioned by RAC) concluded that a number of terminals would be required to satisfy both the volume and geographic distribution of industrial zones across Sydney. The study preferred a "network" of terminals rather than a single or limited number of terminals. The study identified the same site in Ingleburn as the Sydney Metropolitan Rail Sites Study. · The Government has committed to construct a dedicated freight line between Macarthur and Chullora, which would link with the Enfield to Port Botany freight line to provide a dedicated freight line through Metropolitan Sydney as part of an upgraded Melbourne-Sydney-Brisbane corridor. The dedicated freight line would adjoin the proposed development, hence the movement of freight trains generally, as well as trains entering the site, would not be constrained by commuter trains on the main railway line. 39 Commissioner Cleland conclusively found that "[t]here is an established need for the proposed development, it is on land zoned to permit such development, and its operation could be managed to minimise the environmental impacts on residents". 40 On 24 September 2004, the Minister, as consent authority for the development application, determined the application pursuant to sub-ss 80(4) and 80(5) of the EP&A Act by granting consent to Stage 1 (the vehicle transfer operation) and requiring Stages 2 and 3 (the container operation and ancillary works) to be the subject of a further consent. A further consent was issued on 23 November 2004 for Stage 1A of the proposed development being the access driveways, internal access roads and car parks, and the construction and operation of the site office. 41 On 20 October 2004, Patrick Autocare lodged a second development application with the Minister for Stages 2 and 3 of the proposal, being the container operation and ancillary works. The Minister did not determine this second application within 60 days and, consequently, that deemed refusal is the subject of this appeal. Relevant Statutory Planning Controls 42 The following statutory planning controls apply to the proposed development: · Campbelltown (Urban Area) Local Environmental Plan 2002 · Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment · State Environmental Planning Policy No 11 – Traffic Generating Developments · State Environmental Planning Policy No 33 – Hazardous and Offensive Development; · State Environment Planning Policy No 34 – Major Employment Generating Industrial Development. · Draft State Environmental Planning Policy No 66 – Integration of Land Use and Transport. · Campbelltown City Council Development Control Plan No 52 – Off Street Car Parking Policy No 5.2.18 · Campbelltown City Council Industrial Development Policy No 5.2.13 43 Relevantly, under the Campbelltown (Urban Area) Local Environmental Plan 2002 (the "LEP"), the development is proposed on land specified as Zone 4(a) - General Industry Zone. Development for the purpose of an intermodal cargo facility is an innominate permissible use within that zone and is permissible with development consent: LEP, sub-cl 12(4). 44 The proposed development also constitutes integrated development under s 91 of the EP&A Act as it requires a permit from the Department of Infrastructure, Planning and Natural Resources under Pt 3A of the Rivers and Foreshores Improvement Act 1948 (NSW). The Department has issued General Terms of Approval in relation to the issue of that permit. 45 In addition, as noted above in par [2], the proposed development is State significant development (s 76A(7)(b) of the EP&A Act), and thus, it is also advertised development within the meaning of cl 5 of the EP&A Regulation. 46 Pursuant to s 79A of the EP&A Act and the EP&A Regulation, nearby landowners and occupiers were notified of the development application and the application was publicly exhibited and advertised. 47 The Minister received 54 submissions during the public exhibition period. The following submissions were received: a) 5 submissions from State government and local government bodies including: · Rail Corporation New South Wales (RailCorp) – provided 2 submissions in support. · Campbelltown City Council – provided 2 submissions in opposition. · Sydney Regional Development Advisory Council (Roads and Traffic Authority) – provided 1 submission which raised no objection. b) 9 submissions from businesses and business associations, including one submission from the Ingleburn Chamber of Commerce and Industry Inc – 8 of which were in support and one in opposition; and c) 40 submissions from private individuals – all in opposition. Issues 48 Principally, the issue to be decided is whether the Court, as consent authority, should grant or refuse consent to the development application: EP&A Act, sub-s 80(1). 49 More specifically, the Minister's Statement of Issue identifies the issue as being: Whether it is appropriate, having regard to the proper and integrated future planning of the Sydney Region, to determine Phases 2 and 3 of the proposed development prior to finalisation of the Sydney Metropolitan Freight Strategy and determination of the Government's preferred options for container movements and intermodal terminal locations in the Sydney Metropolitan Area, having regard to: i. The objects in sub-s 5(a)(i) of the EP&A Act ; ii. The objects in sub-s 5(a)(ii) of the EP&A Act ; iii. The suitability of the site for the development: sub-s 79C(1)(c) of the EP&A Act ; and iv. Sub-section 39(4) of the Land and Environment Court Act 1979 (NSW) (the " Court Act "). 50 Relevantly, sub-ss 5(a)(i) and 5(a)(ii) of the EP&A Act provide, in particular, that the objects of the Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, …. 51 Finally, sub-s 39(4) of the Court Act provides that: …. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. …. 52 In Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 277, I held that the matters identified in par [49] above were relevant considerations to the determination of the development consent. I also held that it was a question for the determining authority to decide what weight should be given to those considerations. The identified issue became the principle or essential issue in this appeal, together with the submissions on the development application noted in par [47] above. In this respect three objectors also gave evidence expanding upon their grounds of objection, referred to below. The Evidence 53 The respondent called three objectors to give evidence during the proceedings: Ms Noelene Holliday (resident), Mr Ian Campbell (Macarthur Intermodal Shipping Terminal), Mr Scott Phillip (Campbelltown City Council); and also called Ms Leisbet Spanjaard (Department of Infrastructure, Planning and Natural Resources). Ms Noelene Holliday 54 Ms Noelene Holliday has been a resident of Ingleburn for 43 years and resides at 82 Ingleburn Road. Ms Holliday had written to the Minister after being notified of the proposed development to express her concerns. In particular, Ms Holliday expressed the following particular objections to the proposal: · The noise impacts associated with increased train movements, the hours of operation, and the switching point where trains are to be split in two, and the reversing of trains, especially prior to 5 am when trains are to arrive at the facility and will wait outside the site. · The proposed acoustic wall will be insufficient because the noise caused by the train arrivals and departures extends along the entire length of the train line and travels beyond the facility site. · The fumes which are emitted from the proposed facility's engines and trucks which are distributed by south-westerly winds. · Trucks will create noise, dust, traffic congestion and parking problems, and will damage the country roads of the area. · The facility's container storage will be unsightly and · The facility will take jobs from other operators in the area. · The allowance for 12 movements beyond the normal hours of operation every 12 months is unreasonable, and would mean that once a month residents would be disturbed. Mr Ian Hinde Campbell 55 Mr Ian Campbell is a consultant engaged by Macarthur Intermodal Shipping Terminal (MIST) and assisted MIST in the preparation of written submissions in relation to the proposed development. MIST is a direct trade competitor of Patrick Autocare as conducts an intermodal operation transporting containers from Port Botany by rail to its site at Minto. Mr Campbell conceded that his evidence was biased as a result of his consultancy for MIST - he said "I am not unbiased" - as MIST has a vested interest in ensuring that the proposed development is not approved. 56 In examination in chief, Mr Campbell claimed that as MIST already operates as an intermodal cargo facility in the Macarthur area, the contention of Patrick's that the proposed development will reduce truck movements and greenhouse gas emission is incorrect. Also, although Mr Campbell expressed concern regarding the future capacity of the site, the use of gantry cranes, rail noise, operating hours, truck traffic and queuing, and consequent greenhouse gas emissions, night lighting and employment opportunities, in cross-examination he conceded that the conditions recommended by Commissioner Cleland would address the objections previously raised by MIST in its written submissions to the Minister and the to COI. 57 In cross-examination Mr Campbell also accepted that the summary of MIST's submission in the COI report was accurate. Commissioner Cleland's summary of MIST's submission (Exhibit B(2), Tab 8, p 17) principally concluded that MIST objected to the proposed development as it did not consider the use and expansion of the MIST operation as a genuine alternative and the "Patrick Use Only" operation would reduce the choice of rail operators even further and thus also the fair competitive trade arena which is necessary for Australia's future. The MIST submission also noted that Patrick Autocare, through its 50 per cent ownership of Pacific National, owns half of the rail infrastructure of MIST. In relation to this, Mr Campbell strongly denied any knowledge of the fact that MIST and Patrick Autocare were currently involved in a legal and commercial dispute as MIST was not permitting Patrick Autocare to access to a siding which was owned by Patrick Autocare. Further, Mr Campbell did not admit that approval of the proposed development would cause MIST to suffer commercially, though claimed that MIST would benefit through increases in industrial land values. Mr Scott Phillips 58 Mr Scott Phillips is the manager of Development Services of the Campbelltown Council and assisted in the preparation of the Council's submission in relation to the proposed development. On behalf of the Council, Mr Phillips amplified the objections of the Council (including those submitted to the COI) and the public. In particular, Mr Phillips stated the following objections: · The Council supports the Ports Freight Plan and the need to remove transport from the road into rail, though recognises the proposed development is the right development in the wrong location. · Although the proposed development has many strategic benefits, the development does not adequately or appropriately address a number of issues including visual amenity, noise, light spill, traffic and transport, and infrastructure and these impacts on local amenity are too great. · The inadequacy of information and limited opportunity for community consultation of the revised documentation prejudice the community's right to fully understand and respond to the proposal. 59 In cross-examination, Mr Phillips stated that the proposed application does not differ significantly from the development considered by Commissioner Cleland. Mr Phillips further claimed that although he had not read any of the expert reports in relation to the local impacts of the development before Commissioner Cleland, including noise, traffic, air quality and visual amenity, he was aware of the recommendations suggested by the Commissioner and did not believe that these recommendations addressed the impacts sufficiently. In particular, Mr Phillips conceded that he knew of the Commissioner's finding in relation to the abatement of the noise impact by the acoustic wall, being that the acoustic wall would be more effective if it was located on the Council's land to the east of the railway line rather than Patrick Autocare's land to the west. Moreover, he stated that he knew that Patrick Autocare had amended the development application as the Council had refused to give owner's consent to allow the acoustic wall to be built to the east of the railway line. He noted that the Council is not prepared to change its mind in relation to owner's consent. Despite these admissions, Mr Phillips reiterated the concern of the Council concerning the acoustic impact of the facility associated with train movements before they enter the proposed site. 60 Mr Phillips also conceded that the Council, as a member, had made a $50,000 contribution to the Chain of Intermodal Shared Services Hubs for the Eastern Seaboard of Australia (CISSES) to help CICCES establish a public/private partnership with stakeholders from business and all tiers of Government to develop an effective alternative distribution path for business in the main freight corridors on the eastern seaboard, through an efficient mix of road and rail infrastructure supported by appropriate technologies. He stated that he did not take this issue into account when providing evidence to the court. Ms Leisbet Spanjaard 61 Ms Liesbet Spanjaard provided both oral evidence and a written statement of evidence dated 19 May 2005 (Exhibit 3). Ms Spanjaard has been employed as the Director of Freight Strategy and Planning within the Transport Planning Division of DIPNR since January 2004 to work on the development of an intermodal freight strategy for the Sydney metropolitan area. 62 Ms Spanjaard's written statement of evidence dated 19 May 2005 (Exhibit 3) outlines the following submissions on behalf of the Minister in relation to the proposed development: · An intermodal terminal is a facility which enables the exchange of freight (usually by container) between modes of transport. Imported containers are often transported by rail to an intermodal facility where they are unloaded from the train and either loaded onto a truck for delivery to the consignee or taken to a warehouse on site where they are unpacked and distributed to the customer in smaller lots. Most exporters pack their cargo into a container at their site and deliver it by road to an intermodal facility or alternatively, truck their cargo to a packing facility and then to an intermodal terminal where it is transported by rail to the port. · The provision of sufficient intermodal capacity to match the volume of containers moved by rail is critical; therefore, any increase in rail freight mode share will necessarily result in an increase in the demand on the intermodal terminal network. The Ports Freight Plan · In October 2003 the Premier announced the Ports Growth Plan (formerly the Metropolitan Intermodal Freight Strategy), which sets out the framework and order for development of NSW containers ports. At the same time Cabinet directed the Minister to investigate the opportunity for increasing the rail mode share. These two actions formed the basis for the development of the Ports Freight Plan. · The Ports Freight Plan is a major strategic policy initiative, which will address the required transport network infrastructure and the future of the metropolitan intermodal terminal network. · On 13 December 2004, the Minister outlined the following key elements of the Ports Freight Plan to the Sydney Futures Forum II (Exhibit 2, Tab 37) (these were also published in a press release (Exhibit 2, Tab 38)): i An identified target of 40% rail mode share of containers moving to and from the Port, a significant increase on the current level of 21%; ii The need for additional work to be done to investigate the preferred design of an intermodal terminal network, including the location and capacity of any new intermodal terminals and the necessary transport infrastructure to handle the projected growth in imported and exported container movements over the next 20 years. · In order to achieve a 40% rail mode share of containers, the capacity within the intermodal terminal network must match the projected volume of container movements within the metropolitan area. The capacity of the current intermodal network (composed of 4 main terminals at Villawood, Camellia, Minto and Yennora) of 300,000 TEU per annum, will be insufficient if the Port Botany expansion proceeds, therefore, a more comprehensive intermodal terminal network is required. · The Freight Infrastructure Advisory Board (FIAB) has been established to provide advice on intermodal terminal network design, potential changes to operating practices and other elements of the Ports Freight Plan, including the freight infrastructure charge. The FIAB first met in February 2005 and has since invited interested stakeholders to make submissions in relation to these issues. The board is working to a time frame of providing a report to the Minister by the end of July this year so that it may be incorporated into advice to DIPNR regarding implementation of the Ports Freight Plan. The FIAB Terms of Reference identifies the following key areas which are to be the initial focus for the board: - An intermodal terminal network to improve freight distribution; - Transport infrastructure required to support such a metropolitan intermodal terminal network; - The structure, amount, means of collection and economic impacts of a possible port freight charge on containers moved by road to and from Port Botany; - Potential changes to work practices including "truck tracking" to minimise queuing at the port gate; "container in/container out" to maximise the efficiency of truck haulage; and other strategies to minimise unnecessary movements of containers across the city; - How to maximise Federal funding support for the implementation of the freight strategy; - Liaison with industry stakeholders. · Work performed to date indicates that to satisfy projected demands, future intermodal terminals will need to have the following characteristics: - They will need to be significantly larger than any existing terminals being capable of accommodating at least 300,000 TEU per annum. - They will need to provide for fully integrated facilities incorporating on site warehousing, empty container storage, consolidation and de-consolidation of product. - They should have the ability to consolidate sufficient cargo to enable the operation of block trains and accommodate potentially longer trains than those currently operating in order to maximise the use of existing infrastructure. - They should have sufficient size and capability to ensure capital investment is worthwhile and they are commercially viable in terms of volume throughput. - They should offer competitive neutrality and provide access for all rail operators. - They should be closely located to key road arterial routes to industrial areas throughout Sydney as well as being located on freight only rail lines wherever possible. - They should be capable of operating 24 hours a day, 7 days a week in order to maximise the return on the investment in the terminal and, more importantly, utilise the network to its maximum capacity. As such, it is likely that any new terminal will require a sufficient buffer around it to minimise conflicts with residential areas regarding impacts on local amenity. · There have been a number of possible locations identified for future intermodal terminals. As indicated by the Minister in his speech to the Greater Western Economic Freight Forum on 13 April 2005 (Exhibit 2, Tab 34), work is still being conducted to determine the preferred locations in conjunction with the FIAB investigations. The Government's decision as to its preferred locations will form part of the Ports Freight Plan which will be release in the second half of 2005. The relationship between the Proposed Port Botany Expansion and the Proposed Development · Port Botany handles the majority of all containers in New South Wales and the number of containers is steadily growing with trade growth. Moreover, 85% of all containers through the port are handled within 40km of the port, although currently only approximately 21% of the containers are transported to and from the port by rail. · Sydney Port's Corporation development application for the proposed expansion of Port Botany is currently the subject of a Commission of Inquiry. A decision on the proposed expansion will set a clear indication of the future container volumes through the port. Application of the 40% rail mode share target to this forecast number will determine how many containers are to be transported by rail within the metropolitan area. This number, in turn, will determine what intermodal terminal capacity is required in Sydney over and above current terminal capacity. · Consequently, DIPNR is unable to finalise the Ports Freight Plan until the Commissioner's report is available and the Minister determines the Port Botany expansion proposal and if approved, the conditions of consent. The Significance of the Ports Freight Plan to the Determination of the Proposed Development · The approval of any development application for a new intermodal terminal prior to the release of the Ports Freight Plan has the capacity to undermine the work of DIPNR and the FIAB, and ultimately, the integrity of the outcomes of the strategic planning process. In addition, it would also have the capacity to undermine the orderly and economic development of land, which is an objective of the EP&A Act : EP&A Act , s 5(a)(ii). · The development of the Ports Freight Plan is well advanced. However, it is unreasonable to expect DIPNR, as developers of the strategy, to finalise and release the strategy until a decision on the future of Port Botany is made. Until this is resolved, it is inappropriate to recommend approval of any new intermodal terminals as it may be surplus to requirements and represent poor economic use of the land. 63 In addition, Ms Spanjaard expressed the following personal views about the proposed development in her statement of evidence: · The site may not be large enough to cope with neither the projected increased volume of container movements nor the integrated operations and empty container storage of the necessary number of TEU to generate the likelihood of longer, single load trains to and from port terminals. · The close proximity of the site to residential areas may preclude consent for a 24 hour 7 day a week operation which is desirable to maximise the efficiency of infrastructure i.e. utilisation of the rail network to and from the port. · It is premature to grant a consent which would permit the development of a new intermodal facility at Ingleburn, until the potential role of the proposed Ingleburn site within a broader metropolitan intermodal network design is made clear. 64 During evidence in chief, Ms Spanjaard reiterated the objections contained in her statement of evidence and stated that the proposed development did not further the Government's Ports Freight Plan due to the following reasons: · The proposed development cannot be considered in isolation, though rather as part of the broader strategic network of intermodal cargo facilities and the supporting road and rail network. · The train movements part of the proposed development would place a "footprint" on the rail network, which would preclude the ability of future planning to maximise the network to achieve the Government's policy of 40 per cent rail mode share by 2011. · To achieve the Government's target of 40 per cent rail mode share, optimal intermodal cargo facilities should have a sufficient buffer and not be located near residential areas to enable them to operate 24 hours seven days a week and should have a turnover of approximately 300,000 TEU per year to satisfy the growing demand for the transportation of containerised cargo. If they cannot reach this threshold capacity to deliver volume, they may be commercially unviable. Commissioner Cleland clearly recommended that the facility should not operate as such due to its proximity to residential areas. Therefore, approval of the facility on the basis of the Commissioner's recommendations would limit the capacity of the facility to a turnover of approximately 50,000 TEU per year. The facility would not satisfy the demands for cargo transportation and would limit the capacity of the Government to achieve the 40 per cent rail mode target share. · Current investigations by the FIAB into the optimal strategic freight network are modelling potential networks and approval of the development may frustrate and delay the finalisation of the investigations and the formulation of the Strategy from three to six months. Similarly, the proposed storage (three containers (7.5 metres) high and eight containers deep) would be operationally inefficient, as it would slow down loading time considerably. · The storage of the containers and the requirement for 700 metre trains to be split in two for processing under the proposed development is operationally inefficient. The need to split the trains in two and waits in a place reduces the number of cycles rail operators can achieve and thus, increases the capital costs of rail transport making it less attractive to the market. · To maximise the efficiency and reduce congestion on the network, there should be a smaller number of larger trains rather than a greater number of smaller trains. Also, to reduce the overall amount of heavy, container trucks on the whole road network intermodal cargo facilities should have integrated facilities with site warehousing distribution, empty container storage, container cleaning and repairs. · The findings of the RAC in the Sydney Metropolitan Rail Sites Study (July 1998) (Exhibit B(1), Tab 2) are irrelevant as the study identified only part of the site of the proposed development as being suitable for a rail operator not an intermodal cargo facility within a strategic network and the site identified by the report (site 10) was capable of receiving 1200 metre long trains. · The Morris Report (February 2003) (Exhibit B(1), Tab 11) recommended that no approval should be given to any site until a comprehensive study is conducted to determine a strategy for a network of intermodal facilities and further that a comprehensive Commission of Inquiry should be conducted for all rail operations prior to approval. 65 During cross-examination, Ms Spanjaard conceded that she had not read any of the expert reports prepared in relation to the impacts of the proposed development and tendered during the COI. She noted, however, that the Commissioner's findings and recommendations as well as the Morris Report, were made prior to the development of the government's policy, the establishment of the FIAB and the commencement of the Inquiry into the Port Botany expansion. Ms Spanjaard stated that DIPNR's submission to the commission that it considered the proposal to be strategically located and beneficial to encouraging the substitution of road transport by rail transport consistent with the state policy should be accepted by the Court and given significant weight. 66 Ms Spanjaard also conceded that she knew that the Minister had identified Ingleburn, the suburb, as a suitable location for an intermodal cargo facility in his address to the Sydney Futures Forum on 13 December 2004 (Exhibit 2, Tab 37) when he announced of Stage One of the Ports Freight Plan. Further, she conceded that as the Government has committed to, albeit not provided full approval for, the construction of a dedicated freight line between Macarthur and Chullora through metropolitan Sydney which would adjoin the proposed development (the proposal requires an EIS, review and funding), the development would be even more suitable as freight train movements generally, as well as trains entering the proposed site, would not be constrained by commuter trains on the main railway line. 67 Ms Spanjaard told the court that the Government's policy in relation to intermodal cargo facilities could be found in the Minister's speech to the Greater Western Sydney Freight Forum on 13 April 2005 (Exhibit 2, Tab 34). She indicated that within 3-4 months, this document containing guidelines for the development of future intermodal facilities in terms of the criteria they should meet in order to support the achievement of the rail mode target of 40 per cent would be produced and then may be legislated and may become a State environmental planning policy. She said that the primary desire of the Government is to move more containers by rail. In doing so, she conceded that as the proposed development does this and the development may well be consistent with the Government's policy. Finally, she conceded, however, that the Minister wanted to delay the determination of the proposed development until the determination of the Commission of Inquiry into the Proposal of Sydney Ports Corporation to construct and operate a new container terminal and associated infrastructure at Port Botany in the City of Botany Bay local government area (the "COI into the Port Botany Expansion") and the Minister's subsequent determination of the Port Botany proposal. Ms Spanjaard further stated that it would be impossible to give any indication whatsoever of when the COI into the Port Botany Expansion will be determined and thus when the Ports Freight Plan would be finalised. In addition, however, she conceded that the proposed development does not depend for its viability, existence or justification on what may or may not happen in relation to the Port Botany proposal. Agreed Facts 68 The Minister concedes that the objections to the development application cannot be a basis on which this Court should refuse the consent pursuant to s 80(1)(b) of the EP&A Act. 69 Importantly, Ms SA Duggan, appearing for the Minister, concedes that the proposed development application complies with all the requirements of the relevant statutory planning controls. Moreover, she concedes that the development is consistent with the zone objectives provided in sub-cl 12(2) of the LEP. Sub-clause 12(2) of the LEP relevantly provides: 12 Zone 4 (a)—General Industry Zone …. (2) What are the zone objectives and what effect do they have? The objectives of this zone are: (a) to encourage activities that will contribute to the economic and employment growth of the City of Campbelltown, and (b) to allow a range of industrial, storage and allied activities, together with ancillary uses, the opportunity to locate within the City of Campbelltown, and (c) to encourage a high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development, and (d) to protect the viability of the commercial centres in the City of Campbelltown by limiting commercial activities to those associated with permitted industrial, storage and allied development, and (e) to ensure development will not be carried out unless the consent authority is satisfied that the processes to be carried on, the transportation to be involved, or the plant, machinery or materials to be used, do not interfere unreasonably with the amenity of the area. Except as otherwise provided by this plan, consent must not be granted for development on land within this zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone. …. Patrick Autocare's Submissions General Submissions 70 Patrick Autocare submits that the Court, as consent authority, should grant consent to the proposed development (s 80(1)(a)) of the EP&A Act) prior to finalisation of the Sydney Metropolitan Intermodal Freight Strategy (now known as the Ports Freight Plan) and determination of the Government's preferred options for container movements and intermodal terminal locations in the Sydney Metropolitan Area. 71 Patrick Autocare submits that the subject site is highly suitable for the proposed development (s 79C(1)(c) of the EP&A Act) for the following reasons: · adjacent to the main southern railway connections to Melbourne, Newcastle and Botany; · surrounded by existing transport and industrial developments; · connection to the major metropolitan road network; · significant reduction in traffic movements to the region; · significant reduction in the generation of greenhouse gases; · additional employment opportunities; and · short distance from the major manufacturing centres of western and south-western Sydney. 72 Patrick Autocare's Statement of Environmental Effects (Exhibit A(1), pp 8-10) states that the proposed development is in accordance with both national and state policies which recognise the need for and the environmental benefits of intermodal cargo terminals. The Commonwealth Government's 1998 National Greenhouse Strategy recommends the establishment of new intermodal freight terminals with a view to substituting freight journeys using rail/road modes in place of road transport alone as well as facilitating road and rail links to improve intermodal container movements. The Auslink Program, the Commonwealth's new framework for funding infrastructure, also supports the development of intermodal container movements aimed at increasing the percentage of freight moved by rail. The program includes "development of new intermodal facilities and industrial zones on the outskirts of cities to contain urban road transport trips and enhance rails' efficiency". 73 In addition, under the New South Wales Government's 25 year Air Quality Management Plan, Action for Air, an integrated freight management strategy across road, rail and other transport modes, supporting the establishment of new intermodal freight terminals, is being prepared to assist in achieving targets for reducing pollution by reducing the per capita growth in vehicle kilometres travelled. 74 Fundamentally, the Statement of Environmental Effects states that to develop the most economic and environmentally efficient transport system capable of dealing with the steady growth in containerised trade, strategically located intermodal facilities, such as the proposed development, are required to enable the transfer of cargo from rail to road for transport from manufacture to market and to, subsequently, ensure economic prosperity. 75 In addition, both the written submissions of Mr J E Robson SC, appearing for Patrick Autocare, and the Statement of Environmental Effects (Exhibit A(1), p 41) state that the proposed development is consistent with the findings of the Morris Report (Exhibit B(1), Tab 11, pp 13 and 15) conducted by the Honourable Milton Morris AO. The Morris Report concluded that there is a need for additional intermodal terminal capacity in Sydney over the coming decade and the planning for such capacity needs to be comprehensive and must take into account recent developments at all three NSW commercial ports; in road construction; and issues around construction of freight only rail tracks in and through Sydney. Further, the report stated the preferred strategic approach to the development of intermodal facilities "demands that there should be numerous small facilities spread across the metropolitan areas in order to maximise the distance containers travel by rail and minimise the distance travelled by road". 76 In particular, the Statement of Environmental Effects states that the proposal meets and satisfies all of the key criteria for a successful intermodal terminal established in the Sydney Ports Corporation's submission to the Morris Report. That is, the proposed development has the following characteristics: · close proximity to cargo (the market); · access to rail network; · access to the arterial road network; · sufficient land zoned for relevant industrial and rail purposes; · it is socially and environmentally sustainable; · the potential impact on the community has been identified and addressed. 77 In particular, the facility is located in close proximity to cargo and will have a vital and continuing role as part of Sydney's growth corridor. The facility has access to the rail network and the proposed construction of a dedicated freight line will increase the facility's capacity and suitability as the movement of freight trains generally, as well as trains entering the site, would not be constrained by commuter trains on the main railway line. Although the facility will actually reduce the number of existing truck movements, the site is in close proximity to the South Western Freeway (M5) which enhances the suitability of the site. The site is located in Ingleburn Industrial Area, which forms part of a significant industrial area within the southwest corridor, which is likely to become the most important and productive area in Sydney. Further, the suitability of the site is enhanced by its proximity to the existing Patrick Autocare site at Stennett Street. The proposed development will be both socially and environmentally beneficial. Detailed noise, traffic and visual studies confirm that the proposed site is one of the most suitable sites for an intermodal cargo facility. The Morris Report identified seventeen existing or potential sites, and the proposed site was short listed as one of six of these sites, which was noted as having the least potential impact on the community. 78 Furthermore, Mr Robson SC submits that subject site is highly suitable for the proposed development as it has also been identified by two RAC studies as the preferred location for an intermodal facility. 79 The Sydney Metropolitan Rail Sites Study (July 1998) (Exhibit B(1), Tab 2), pp 21-22) identified part of the proposed site ("Site 10 Ingleburn": SW, Stennett Road, Ingleburn) as a potential site for a new rail operation. The study found that the site was suitable for freight operations as it is adjacent to the main southern line and has direct access, provided new connections are installed, to the north-south rail corridor, to Enfield Yard and to Sydney Ports. 80 Similarly, the Metropolitan Land Bridging Concept Study (December 1998) concluded that a "network" of a number of terminals would be required to satisfy both the volume and geographic distribution of industrial zones across Sydney. Significantly, the study identified the same site in Ingleburn as the Sydney Metropolitan Rail Sites Study. 81 Further, Mr Robson SC submits that DIPNR itself also consistently endorsed the strategic appropriateness of the site before the COI (Exhibit B(2), Tab 4, p 27; Tab 5, p 8). Ultimately, Mr Smith's Statement of Evidence dated 31 May 2005 (Exhibit C) shows that only difference between the proposed development and that which was before the COI is that the current proposal adopted the recommendations of Commissioner Cleland. He therefore urges the Court to adopt the findings and recommendations of the Commissioner. Specific Submissions 82 Mr Robson SC submits that the specific areas for consideration in this appeal are: i. The current position of any Ports Freight Plan; and ii. The weight to be accorded to the evidence of Ms Spanjaard. i The Current Position of Any Ports Freight Plan 83 Ms S A Duggan, appearing for the Minister, adduced evidence to identify the process and development of the proposed Ports Freight Plan. The Minister relies on this evidence to urge the Court to exercise its jurisdiction to refuse consent pursuant to sub-s 80(1)(b) of the EP&A Act. 84 In relation to this issue, Mr Robson SC asks the Court to consider the judgment in Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 277 on the preliminary point of law, and in particular the following statement: The Court can only, of course, determine the appeal and the development application on the information available to it at the time of the hearing. It then becomes a question of what weight should be given to the matters identified in par 1 of the respondent's Statement of Issues: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; Stockland Development Limited v Manly Council (2004) 136 LGERA 254 at 272-273. In determining what weight should be given to the question, the Court will, of course, be guided by the joint judgment in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1at 17-18), namely that the Court must determine the application independently of the wishes or advice of the Executive Government; and this is so even in those cases where government policy is a relevant factor for consideration. 85 Mr Robson SC submits that neither Ms Spanjaard's statement of evidence nor the "speeches" of the Minister, to which Ms Spanjaard referred in her oral evidence, contain evidence which amounts to a policy, a draft policy or an otherwise identifiable government policy: Terrace Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195 at 209-219 [81] (per Mason P, Spigelman CJ and Ipp JA Agreeing); Stockland Development Limited v Many Council (2004) 136 LGERA 254 at [88] – [92] per McClellan J. The evidence of Ms Spanjaard establishes only that DIPNR is in the process of developing a Ports Freight Plan. 86 Mr Robson SC submits that Ms Spanjaard's statement of evidence dated 19 May 2005 merely states: i. in October 2003 the Ports Growth Plan was announced: [7], [20]; ii. Cabinet directed the Minister to investigate the opportunity for increasing rail mode share: [7], [20]; iii. in December 2004, the first element of the strategy, that the Government would target a 40% rail mode share of containing moving to and from the port, an increase on the current level of 21% was announced. iv. the Freight Infrastructure Advisory Board has been established, its terms of reference including intermodal terminal network design, and will provide a report to the Minister by July 2005: [29]. 87 Mr Robson SC further submits that in any event, there is simply no compelling evidence that would suggest (directly or indirectly) that the proposed development would be contrary to any such policy, especially in light of the plethora of material supporting the application (particularly by various government departments and indeed DIPNR itself). In support of this, he notes that in her oral evidence Ms Spanjaard agreed that there is no evidence to suggest that the earlier views of DIPNR have changed, though rather she sought to differentiate that DIPNR's view (as previously expressed to Commissioner Cleland) relate to "land use". 88 Mr Robson SC also submits that there is nothing in the provisions of the legislation, or in the subject-matter scope and purpose of the EP&A Act or the Court Act, which would require or allow the Court to give determinative weight to the consideration of the Minister's assertion that a relevant strategy is being developed. Moreover, he argues that it is not in the public interest for the Court, as consent authority, to have regard to (or give any weight to) the assertions of Ms Spanjaard that a policy or strategy is being developed. Mr Robson SC submits that the public interest is served by determining the application in accordance with the law and the actual existing policies or draft policies referred to in s 79C of the EP&A Act. ii The Weight to be Accorded to Ms Spanjaard's Evidence 89 Mr Robson SC submits that the evidence of Ms Spanjaard's personal views of the likely content of the Ports Freight Plan (pars [9], [30] – [36] statement of evidence) and of the suitability of the Ingleburn site (par [40] statement of evidence) is speculative and can have little or no weight. 90 Mr Robson SC submits that without the Ports Freight Plan itself, or at least a draft Plan prepared, for example, for public discussion, the evidence of Ms Spanjaard's personal view of the likely content of the Ports Freight Plan can have little or no weight. He argues that such a finding is consistent with the relevant authorities. 91 Specifically, Mr Robson invites the Court to consider Stockland Development (at [90] –[92]) where McClellan J set out the matters to be considered when determining the weight to be accorded Urban Design Control or a planning policy. His Honour said (at par [90]-[92]): The public interest for the purposes of the EP&A Act 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. 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 them 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 the affected land, and reflects the outcomes which are within the range of sensible planning options. 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 of 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 convention planning outcomes accepted as appropriate for the site or area affected by it. 92 Mr Robson SC submits that is impossible to apply the principles in Stockland Development in the current proceedings as there is no policy to evaluate because the Ports Freight Plan cannot be shown to exist. He further submits that although the Court, in exercising its jurisdiction under s 80 of the EP&A Act, is required to have regard to the most current material available to it, the evidence presented in Ms Spanjaard's statement of evidence amounts to little more than an indication of the likely content of a policy and is too incomplete, inaccurate and misleading to form a basis for the Court to exercise its jurisdiction to refuse consent: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 45 per Mason J; see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 591 per Bowen CJ and Deane J and at 607 per Smithers J. He also submits that the matters put forward amount to no more than the Government's wish or advice, contrary to the obligation of the Court to independently determine the appeal: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18. Mr Robson SC conclusively submits that the evidence of Ms Spanjaard's personal views of the likely content of the Ports Freight Plan should be rejected as having any evidential value in the determination by this Court of this appeal. 93 Consistently, Mr Robson SC argues that the evidence of Ms Spanjaard's personal views of the suitability of the Ingleburn site (at par [40] of her statement of evidence) is also speculative and irrelevant to the Court's determination of the development application. He further argues that in any event Ms Spanjaard's personal views are contrary to earlier studies, recommendations and comments (including the Minister's submission to the COI (Exhibit B(2), Tab 4, p 27) and the recommendation of Commissioner Cleland in his Report to the Minister (Exhibit B(2), Tab 8, pp 56-57)) which merely illustrates that information changes as a policy develops. 94 Ultimately, Mr Robson SC concludes that the evidence of Ms Spanjaard in relation to the proposed development, being the most current material available to it, is too incomplete and uncertain to have determinative weight in relation to Patrick Autocare's appeal. 95 However, to the extent that Ms Spanjaard's opinion that the approval of the proposed development may be inconsistent with any yet to be formulated Ports Freight Plan can be accepted, Mr Robson SC submits that his general submissions (as set out above pars [73] –[82]) as to the suitability of the site should be preferred and accepted. In particular, he argues that the location of the proposed development is consistent with the earlier identification of suitable locations (for example, in the Morris Report and the two RAC studies) and subject to micro planning issues (technical merit issues about which Ms Spanjaard expresses no opinion) is not inconsistent with the broad strategy to create a policy that may, if it ever materialises, give further direction to the evolution of freight strategy in New South Wales. 96 Mr Robson SC contends that independent of the whims of government, the Court has before it unequivocal evidence that supports a conclusion that the subject site is eminently suitable for the purposes of an intermodal cargo facility as proposed to be operated by Patrick Autocare. Furthermore, he argues that, to the extent that the desire of the executive government is reflected in the genesis of the Ports Freight Plan, the current proposal (which does not depend upon Port Botany in any event) still is in accordance with the proper desire to increase the transport of freight by rail. Submissions in Conclusion 97 In conclusion, Mr Robson SC submits that the Minister's evidence in relation to the Ports Freight Plan (specifically Ms Spanjaard's evidence) either does not establish the policy or, to any extent it may establish the policy, cannot be given determinative weight for the Court to refuse consent and, therefore, consent should be granted to the development application. The following submissions are said to support this finding: a) The operation of the prescribed time limits imposed by s 82 of the EP&A Act and cl 113 of the EP&A Reg evinces a legislative policy of promptitude in decision-making under the EP&A Act in respect of development applications. Had Parliament sought to enable determinations to be put on hold until a Minister got around to formulating policy or strategy on a particular matter it could have said so in the EP&A Act . b) The proposed development complies with the strategies and policies that have certainty and are known in relation to intermodal facilities and rail freight strategies: see for example the Minister's submission to the COI (Exhibit B2, Tab 4). c) The content and detail of any future policy or Ports Growth Plan is unknown. The timing of the policy is unknown and, to the extent that it is dependent upon the Port Botany expansion (and the COI into the Port Botany Expansion ) the content and effect are entirely unknown. d) This Court cannot refuse consent on the basis that a policy may be forthcoming. There is no legislative warrant to defer making a decision about a proposed development while a policy may or may not be formulated. In any event, the current proposal does not depend upon the expansion of Port Botany. e) There is no foundation for the Minister's suggestion (if it is put so high) that to determine this application prior to the formulation of any relevant policy will have dire or serious or even material detrimental consequences for the transportation of containerised cargo to and from Port Botany. The evidence is, with respect, all the other way. The serious consequences of not approving the development (accepting that there is no technical merit issue left unresolved) is to shut ones eyes to the obvious material benefits to the environment namely, the massive reduction in truck traffic between Port Botany and the Macarthur region and is to ignore the undisputed reality of the need and, indeed, the Government's own commitment to increasing, the amount of cargo to be transported by rail. The Minister's Submissions 98 The Minister's principal submission is that the Court, as consent authority, should refuse consent to the proposed development (s 80(1)(b) of the EP&A Act) since consent should not be granted prior to finalisation of the Ports Freight Plan and determination of the Government's preferred options for container movements and intermodal terminal locations in the Sydney Metropolitan Area. I have reformulated and now set out the detailed submissions, as I understand them, advanced in support of this contention. The State Government's Policy on Intermodal Cargo Facilities: The Ports Freight Plan 99 Ms Duggan, appearing for the Minister, submits that there is a final state government policy regarding the development of a network of intermodal cargo facilities called the Ports Freight Plan; that the plan is currently progressing towards a detailed strategic document that reflects the policy and allows the policy to be implemented; that policy does not have to be written, it does not have to be an environmental planning instrument and it does not have to be a piece of legislation. Ms Duggan relies upon the Court of Appeal decision of Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195, where Mason P said (at [81]): In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. … Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". 100 Ms Duggan submits that although Terrace Tower Holdings concerned the weight to be given to a draft state environmental policy under s 79C of the EP&A Act, it is clear from that case that policies do not need to be in the form of draft or final environmental planning instruments. She submits that policy evolves through government pronouncements from the necessary Minister, and as such, there is no necessity for public consultation or a draft policy. 101 Contrary to the submissions of Mr Robson SC, Ms Duggan asks the Court to distinguish Stockland Development. She submits that the case is not applicable as in that case the Court was considering a development control plan which is a policy generated in the context of a council's powers and those powers are different and constrained when compared to those of the State government, as in this case. She notes that in Stockland Development McClellan J did, however, recognise that a policy which is based on research and consultation is to be given considerable weight and need not be a written document but reflective of outcomes which are within the range of sensible planning options (at [91]). 102 Ms Duggan submits that the Ports Freight Plan has been clearly stated by the State government and acted upon. She notes the Minister announced the plan in October 2003 (Exhibit 2, Tab 42) as the means to achieve the State government's target of increasing the rail modal share in freight transport moving to and from Port Botany to 40 per cent by 2011, an increase above the present 21 per cent. She submits that the plan is being developed by the Minister to provide for a comprehensive and coordinated network of strategically located intermodal cargo facilities and associated infrastructure to address the continuing increases in container trade. The plan forms part of the NSW Metropolitan Strategy, which is currently being implemented through many other policies. 103 Ms Duggan argues that the fact that this policy is a target does not make it any less of a policy. In opposition to Mr Robson SC, she submits that the policy amounts to much more than a mere wish, desire or dictation of the State government (Wilson) as the Minister has committed to investigate and implement whatever mechanisms are required in order to ensure that the target is achieved. 104 Ms Duggan submits that there is substantial and significant evidence in relation to the existence and formulation of the state government's policy of a 40 per cent rail mode share and the Ports Freight Plan as well as the extensive progress towards development and implementation of the plan to achieve the target. She relies on the following submissions to support this contention: a) In February 2004, the NSW Government made a submission to the Legislative Council Standing Committee on State Development - Inquiry into Port Infrastructure in New South Wales (Exhibit 2, Tab 40, p 8) which noted the development of the Ports Growth Plan to address the important strategic issues in relation to the future of port development in NSW in the coming 20 years. It recognised that the plan will provide strategic direction to allow the private sector to commence planning for the next tranche of major container growth throughout NSW, and it also will allow the public sector providers of road and rail infrastructure to settle on their long-term development plans. The submission further noted that an Intermodal Freight Planning Group had been convened for the purposes of providing advice to the Minister. b) In October 2004, DIPNR provided a Revised Primary Submission to the COI into the Port Botany Expansion (Exhibit 2, Tab 39, p 30) which recognised that the Ports Freight Plan will set the strategic direction for the roles of various NSW ports, and both public and private industry to accommodate the expected growth in trade through the ports the coming decades. The submission noted the plan is intended to ensure a coordinated approach to the development of further metropolitan intermodal terminal capacity, and manage the balance between freight and passenger access to the rail network, and thereby increase the reliability of rail access to Port Botany. It also recognised the plan, was being designed to address "upstream issues" associated with the proposed Port Botany expansion such as: · Constrained ability to accommodate longer trains either at the port, on the metropolitan rail network or at the intermodal terminals in the metropolitan area; and · Whether sufficient intermodal terminal capacity exists in Sydney and, in fact, whether it is capable of being delivered within timeframes consistent with the forecast growth of container traffic; to ensure the proposed increase in the proportion of containers moved by rail (40% rail modal share) is achieved through Port Botany and more broadly. The submission indicated that the Ports Freight Plan was expected to be finalised for inclusion in the Sydney Metropolitan Strategy which was to be available in early 2005. c) On 13 December 2004, Stage One of the Ports Freight Plan was announced at the Sydney Futures Forum (Exhibit 2, Tab 37, p 217) and in the associated media release (Exhibit 2, Tab 38, p 226). The Minister's announcement highlighted the Government's commitment to a 40 per cent rail mode share target for annual container movements to and from Port Botany by 2011 and container initiatives to increase the rail mode share, including the investigation of a freight infrastructure charge and the establishment of the FIAB to design an intermodal terminal network to improve freight distribution. d) On 13 April 2005, the Minister's speech to the Greater Western Sydney Freight Forum (Exhibit 2, Tab 34, p 12) indicated that pursuant to its terms of reference (Annexure C to Ms Spanjaard's statement of evidence: Exhibit 3), the FIAB has provided an interim report to the Minister, it identified a focus on larger intermodal facilities and a sophisticated network of intermodal facilities that relies in part upon the provision of an augmentation of State Government infrastructure. The Minister noted the need for these larger facilities to be capable of 300,000 boxes per year (as opposed to the capacity of the proposed development being 45,000 containers per year (Statement of Environmental Effects, Exhibit A(1), p 12)). Further, he also made clear that any nominated site for an intermodal terminal will be the subject of a full environmental assessment and, in addition, an independent Commission of Inquiry. e) DIPNR, specifically the Transport Planning Division headed by Ms Spannjard has been working on the development of the Ports Freight Plan and, in particular, researching and modelling a number of options for an intermodal cargo network for the Sydney metropolitan area to achieve the 40 per cent rail mode share. Modelling different network operations is required as the capacity to accommodate the movement of freight is limited by a finite number of windows on the rail network and its infrastructure. There is a need to identify windows on the network to determine timetabling and train capacity. If a facility is operational and has a commitment based on current demand then they occupy a window on the network which is unavailable for other users and, according to Ms Spannjard's oral evidence, cannot be regained. The Minister is trying to prevent the ad hoc development of any further facilities that occupy these windows and do not meet the necessary capacity to further the 40 per cent rail mode share policy. The Minister favours a smaller number of larger facilities, capable of handling longer trains which are able to transport a greater the amount of freight within a single window, that are ideally located in relation to infrastructure, employment and amenity to effective serve the port and the market. The Minister is the only person who has the capacity to determine which network option will eventually be adopted and Ms Spannjard does not know and cannot speak for the Minister at this stage. The Weight to be Given to the Ports Freight Plan 105 Ms Duggan submits that the Ports Freight Plan is a policy at the upper echelon of the hierarchy of policies as it is made by the State government and has the capacity to affect a great number of people throughout metropolitan Sydney, the State of NSW and potentially the Commonwealth. She argues that the plan will have a "ripple effect" with the capacity to have local level effects through the location of intermodal facilities and the zoning of land, as well as state level effects such as the impact of those facilities upon the use and efficiency of rail and road infrastructure which then informs significant budgetary considerations in relation to the upgrade and maintenance of that infrastructure; and that the evidence shows the finalisation of the policy is imminent. By virtue of these reasons, Ms Duggan submits the Ports Freight Plan should be given significant weight in determining whether consent should be granted or refused for the proposed development, especially given its potential to affect the economic and efficient use of the land: EP&A Act, s 5(1)(ii). The Relationship between the Ports Growth Plan, the COI into the Port Botany Expansion and the Proposed Development 106 Ms Duggan submits that the capacity of Port Botany and other ports in NSW to receive containers being determined by the COI into the Port Botany Expansion will inform the development of the Ports Freight Plan and the intermodal cargo network option chosen by the Minister to achieve the 40 per cent rail mode share. She submits, therefore, that until the COI into the Port Botany Expansion has been completed, the Minister cannot finalise the Ports Freight Plan. 107 Ms Duggan argues that this interdependence emphasises the importance of the plan as a strategic policy, as otherwise the container capacity at Port Botany may not be able to be moved; and that these propositions are supported by the Revised Primary Submission of DIPNR to the COI into the Port Botany Expansion (Exhibit B(2), Tab 10, p 33) as discussed above in par [103(b)] and also the Submission in Reply of DIPNR to the COI into the Port Botany Expansion (February 2005) (Exhibit B(2), Tab 13, pp 8-9). 108 In particular, Ms Duggan submits that DIPNR's Submissions in Reply clearly identify the relationship between the Ports Growth Plan and the proposed expansion of Port Botany, as they were prepared after the announcement of the plan and the government's target of 40 per cent rail mode share by 2011; that the submissions highlight the importance of the plan as the first step in achieving increased intermodal terminal capacity in appropriate locations to facilitate efficiencies in container movement by rail and make rail movements more attractive compared to road freight, and thereby alleviating the environmental and social impacts of the road mode share. She notes further the submissions specifically recognise that intermodal terminals are important to complement port capacity, as part of the downstream network distribution system and, as such, the plan earmarks Port Botany as the NSW port that will handle the forecast container trade growth in coming decades. 109 Ms Duggan submits that to achieve the 40 per cent rail mode share and ensure the economic wellbeing of the State the integrity of the highly co-ordinated and interdependent cargo transport network between the ports and intermodal cargo facilities must be maintained. 110 She submits further that given Ms Spannjard's undisputed evidence that the hearings of the COI into the Port Botany Expansion were completed in February 2005 and her belief that the report will be delivered imminently, her expectation that the final plan would be released in the second half of 2005 should be accepted and any 'delay' in finalising the plan awaiting the outcome of the Port Botany inquiry is not unreasonable. The Ports Freight Plan and Proposed Development 111 Ms Duggan concedes that the Minister cannot guarantee that the proposed development will not form part of the intermodal cargo transport network under the Ports Freight Plan and ultimately assist in the achievement of the policy. Ms Duggan submits, however, that although the development will increase the current rail share, it has the capacity to be contrary to the requirements of the final plan because of its location, size and capacity (in terms of TEUs per annum). She argues as such it is likely reduce the capacity of the entire network to achieve the 40 per cent rail mode share target and undermine the implementation of the plan. The following submissions are said to support these propositions: a) Due to its location next to residential areas and the requirements of the LEP zone 4A objectives, the proposed development does not have the capacity to operate 24 hours a day and support a high turnover of container traffic. As Ms Spannjard told the court: if approved, the development is therefore unlikely to be able to be modified, either through fresh consents or otherwise, to increase its capacity to accommodate container flow in excess of that which is proposed in this application and achieve a throughput of 300,000 TEU; b) The proposed development is not an integrated facility with the capacity for warehousing and the like, so that there is not a capacity within the facility to handle freight in such a way that would reduce truck movements; and c) The site of the proposed development has an extremely limited siding, which can only accommodate trains 700-metres long, not large trains of up to 1500-metres long. The RAC Sydney Metropolitan Rail Sites Study (July 1998) (Exhibit B(1), Tab 2) identified part of the Ingleburn site (Ingleburn SW, Stennett Road, Ingleburn) as a potential site for a new rail operation. However, the site identified was considerably larger than the subject site and was capable of handling 1500-metre long trains provided new connections are installed to the to the north-south rail corridor, to Enfield Yard and to Sydney Ports. The subject site is too small to accommodate trains up to 1500-metres that are potentially required to meet the 300,000 TEU turnover per annum that has been identified as being desirable for the purposes of achieving the 40 per cent rail mode share target. 112 Due to these operational constraints and in light of the need to maintain the integrity of the entire intermodal cargo transport network noted above in par [107], Ms Duggan submits that the approval of the development, as an under-utilised site which has the capacity to compromise the efficiency and the economic viability of other facilities, would be contrary to the objective of the EP&A Act requiring the Court to ensure that the land is used in an orderly and economic way: EP&A Act, s 5(a)(ii). 113 Accordingly, Ms Duggan submits that until all the factors associated with its development can be properly considered, the Court should not be satisfied that the facility would not have an adverse impact upon the implementation of the plan and would not be in the public interest. She submits that if the development is approved, it will frustrate the policy as all DIPNR's modelling of intermodal freight network options would have to be redone and the finalisation of the Ports Freight Plan could be delayed for up to 6 months. In addition, she submits that the State government will have to spend considerable amounts of taxpayers' money to upgrade infrastructure to accommodate the development that it would not have had to if the capacity could have been accommodated within the network, absent approval of the development. 114 When applying benefit to cost, Ms Duggan argues that development consent should be refused, as the only benefit of approving the development is to Patrick Autocare, a sole independent operator, while the costs will be borne by every taxpayer in the State of New South Wales who will potentially have to pay for the augmentation of the infrastructure and the efficiency of the movement of freight and the pushing back of a co-ordinated policy. As such, she submits that the proposed development should not be approved prior to the finalisation of the Ports Freight Plan. 115 To conclude, Ms Duggan submits that it is clear that there is a state government policy toward intermodal cargo facilities, the Ports Freight Plan is being developed as the mechanism to implement this policy and there is significant and substantial work being done to finalise the plan imminently to support and facilitate the strategic and coordinated transportation of freight in metropolitan Sydney and beyond. As such, she argues that it would be clearly against the public interest to pre-empt the policy and approve a facility, such as the proposed development, on an ad hoc basis, which has the potential to undermine the implementation of the State Government policy and to preclude the efficient transport of freight through metropolitan Sydney. She argues that the public interest would be best served by enabling the government to finalise the Ports Freight Plan to enable the establishment of a co-ordinated and efficient freight transport system in New South Wales. The Irrelevance/Relevance of Previous Inquiries into the Subject Site: the COI, the Morris Report and the RAC Studies 116 Ms Duggan submits that there has been investigation into how best manage freight transportation in Sydney for many years, which has finally culminated in the announcement of the Ports Freight Plan and the State Government's policy of 40 per cent rail mode by 2011. Accordingly, she argues that all the investigations, reports and inquiries prior to the release of this plan and policy target, including Commissioner Cleland's COI, the Morris Report and the RAC studies, were made in a different strategic context and were only precursors to the plan and target. Ms Duggan submits that they neither sought to forward the plan and target, nor contemplated the possible expansion of Port Botany, and therefore, the Court should exercise some caution when considering them and should not give them significant weight when determining the proposed development. Ms Duggan relies on the following submissions to support this proposition: a) The identification of Ingleburn either as a suburb or as a site, before the announcement of the plan and the policy does not assist the Court in determining this application. For example, the Minister's speech on 13 December 2004 announcing Stage One of the Ports Freight Plan at the Sydney Futures Forum (Exhibit 2, Tab 37, p 217) merely identifies that a number of applications that have been lodged for the development of intermodal cargo facilities, including in the suburb of Ingleburn, though not specifically the subject site. Similarly, as noted above in par [111], although the RAC Sydney Metropolitan Rail Sites Study (July 1998) (Exhibit B(1), Tab 2) identified part of the Ingleburn site as a potential site for a new rail operation, the site identified was considerably larger than the subject site and was capable of handling 1500-metre long trains. b) The Morris Report (February 2003) (Exhibit B(1), Tab 11, p 15) only recognises that there is a need for additional intermodal terminal capacity in Sydney over the coming decade which needs to be well-planned. The Honourable Milton Morris AO was merely expressing a personal opinion when he stated he believed that there should be numerous small facilities strategically spread across the metropolitan areas in order to maximise the distance of containers travel by rail. More importantly, he recommends that the development of any intermodal terminals on any sites cannot be justified at this stage in light of emergent logistic issues in the Sydney Metropolitan area, which need to be addressed first. c) The findings of the COI by Commissioner Cleland and the reports used by Commissioner Cleland to make those findings are not helpful as the inquiry considered a different development application at a different time prior to the release of the plan, the policy target, the proposed Port Botany expansion, and the establishment of the FIAB. Moreover, the development application before the COI and the current proposed development are completely different in relation to their capacity and hours of operation, for example, the COI considered a 24 hour operation. The Evidence of Ms Spanjaard 117 Ms Duggan submits that the evidence of Ms Spanjaard should not be discounted merely because she is not a town planner. She argues Ms Spanjaard's evidence is essential to inform the Court of the implications of the proposed development against the strategic requirements of the State in relation to the proper movement of freight and the proper strategy to ensure the efficient movement of freight through the State of New South Wales. Ms Duggan submits further that Patrick Autocare has failed to bring any evidence post the announcement of the policy and plan to suggest that the position as stated by Ms Spanjaard in relation to these issues should not be accepted. Submissions in Conclusion 118 In conclusion, Ms Duggan submits that the Court could not be satisfied that the approval of the proposed development, prior to the finalisation of the Ports Freight Plan, is in the public interest, promotes the orderly and economic use of land or the social and economic welfare of the community, and is suitable given the site constraints. She submits that the Court could not be satisfied that development would be in furtherance of the State government policy: it has the capacity to undermine the policy and prevent the 40 per cent rail mode share being achieved. Conclusion 119 The principle issue to be decided is whether the Court, as consent authority, should grant or refuse consent to the development application: EP&A Act, sub-s 80(1). 120 As noted above in par [68], the Minister concedes that the objections to the development application cannot be a basis on which this Court could refuse the consent. The oral evidence of Ms Holliday, Mr Campbell and Mr Phillips does not alter this position. I recognise the concerns of these objectors, though note the proposed development complies with all the requirements of the relevant statutory planning controls and find that the conditions of the proposed development adequately deal with all of their concerns. In addition, I find that Mr Campbell's evidence can be given very little weight given his admission that he was "not unbiased" as a representative of MIST, a direct trade competitor of Patrick Autocare. 121 Therefore, in determining whether or not to grant consent to the proposed development prior to the finalisation of the Ports Freight Plan and the determination of the Government's preferred options for container movements and intermodal terminal locations in the Sydney Metropolitan area, the Court need only consider the desire to meet the objectives of the Act, including the orderly and economic use of land and the social and economic welfare of the community (sub-ss 5(a)(i) and (ii) of the EP&A Act), the need to promote the public interest (sub-s 39(4) of the Court Act), and the suitability of the site (sub-s 79C(1)(c) of the EP&A Act). These are the issues specifically identified by the Minister's Statement of Issues (noted in par [49] above). 122 The arguments advanced by Ms Duggan addressing these considerations are said to lead to a finding that the proposed development has the capacity to undermine the government's policy target of a 40 per cent rail mode split and the finalisation of the Ports Freight Plan. Ports Freight Plan and Policy 123 I accept Ms Duggan's submissions that the formulation and establishment of an effective freight transport system has been a significant policy challenge in New South Wales for many years. I also accept that the State government has undertaken, and continues to undertake, significant work to resolve this problem. Most relevantly, it has announced the policy target of a 40 per cent rail mode share by 2011 to be achieved through the development and implementation of the Ports Freight Plan. I note that the plan is currently being development and is intended to provide for a comprehensive and coordinated network of strategically located intermodal cargo facilities and associated infrastructure to address the ongoing increases in container trade. I accept that the Ports Freight Plan, as a state government policy, will, once finalised, have a far-reaching capacity to affect people throughout Sydney, the State of New South Wales and also potentially the Commonwealth. Ports Freight Plan and the COI Port Botany 124 I also note the relationship between the Ports Freight Plan and the COI into the Port Botany Expansion. It is clear that the State government is awaiting the outcome of the COI into the Port Botany Expansion and the Minister's determination of the proposed expansion, prior to finalising the Ports Freight Plan. Weight to be Accorded to Ports Freight Plan 125 In determining whether to grant consent for the proposed development, however, the Court may only have regard to the most current information available to it at the time of the hearing. Further, I note that operation of time limits imposed by s 82 of the EP&A Act and cl 113 of the EP&A Reg evinces a legislative policy of promptitude in determining development applications. Accordingly, I find, based on the evidence before the Court, that the government is in the process of developing the Ports Freight Plan. There is, however, no finalised and clear policy, draft policy or otherwise identifiable government policy on which the Court can place determinative weight: Terrace Holdings at 209-219 [81]; Stockland Development at [88] – [92]. It is clear that the evidence in relation to the policy and the plan, especially that provided by Ms Spannjard, is too incomplete and uncertain to form a basis for the Court to exercise its jurisdiction to refuse consent: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 45 per Mason J; see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 591 per Bowen CJ and Deane J and at 607 per Smithers J. I accept the submission of Mr Robson that the policy and plan, although being relevant considerations, amount to no more than the Government's wish or advice and are therefore contrary to the obligation of the Court to independently determine the appeal: Wilson at 18. I find it is, therefore, inappropriate to give the policy and plan significant or determinative weight in determining the appeal before the Court, although it remains a relevant consideration. Ports Freight Plan, COI Port Botany and Proposed Development 126 Accordingly, I do not accept that consent for the proposed development should be refused solely on the basis of the submission that the report from the COI into Port Botany Expansion will be delivered imminently and subsequently the Ports Freight Plan will be finalised in the second half of 2005. It would be unreasonable to refuse consent solely on this basis, noting that Ms Spanjaard conceded in cross examination that it would be impossible to give any indication whatsoever of when the COI into the Port Botany Expansion will be determined and thus when the Ports Freight Plan would be finalised. Moreover, she also stated that the proposed development does not depend for its viability, existence or justification on what may or may not happen in relation to the Port Botany proposal. Ports Freight Plan and Proposed Development 127 Both Ms Spannjard and Ms Duggan also relevantly conceded that the Minister could not guarantee that the proposed development will not ultimately form part of the intermodal cargo transport network under the Ports Freight Plan and assist in achieving the 40 per cent rail mode share. 128 Thus, I reject the submission of Ms Duggan that the proposed development has the capacity to undermine the government's policy target of a 40 per cent rail mode split and the finalisation of the Ports Freight Plan. On the contrary, this development will promote that policy target. I acknowledge Ms Spannjard's evidence in pars [62] and [64] above, that the approval of this development will frustrate the government's policy as DIPNR's modelling of intermodal freight network options will be required to be redone and the finalisation of the Ports Freight Plan may be delayed. However, I note that the government is still undertaking this modelling work and the Ports Freight Plan remains in the process of being developed. Therefore, I do not accept Ms Duggan's submission that the approval of this development is against the public interest as it will delay the finalisation of the plan: the impact of this development will have only a marginal impact on total freight movements by rail and its impact will merely have to be incorporated into the present modelling and planning process. Proposed Development: Suitability, Public Interest, sub-ss 5(a)(i) and (ii) 129 I find that there is no difference in substance between the proposed application and the development which was considered by Commissioner Cleland in the COI. As Mr Smith's Statement of Evidence dated 31 May 2005 (Exhibit C) shows, the only substantial difference between the proposed development and that which was before the COI is that the current proposal adopted the recommendations of Commissioner Cleland. Accordingly, I accept the findings of the Commissioner in relation to the development and find that its environmental impacts do not preclude its approval subject to the recommendations to minimise and control local environmental impacts. Moreover, I note that DIPNR itself also consistently endorsed the strategic appropriateness of the site for the development of an intermodal cargo facility before the COI (Exhibit B(2), Tab 4, p 27; Tab 5, p 15) and Ms Spanjaard agreed that there is no evidence before the Court to indicate that these views of DIPNR have changed. 130 The proposed development complies with all the requirements of the relevant statutory planning controls and the strategies and policies that have certainty and are known in relation to intermodal facilities and rail freight strategies. 131 In addition, I note that the proposed development will only generate a 1.5 per cent increase in rail movements per day (4 rail movements per day; two in full and two out empty), which will be added to the existing rail traffic of 375 trains per day already passing the site. It is self-evident, therefore, that the impact upon the capacity of the entire rail network will not be serious or dire as submitted by Ms Duggan, but will be marginal at most. Moreover, given the government has committed to the construction of the dedicated freight line adjoining the site, it is even more apparent that the impact of the proposed development on the intermodal cargo network will not be significant. Accordingly, I do not accept Ms Duggan's submission that the limited size and capacity of the proposed development will reduce the capacity of the entire network to achieve the 40 per cent rail mode share target. 132 The facility would actually have several positive benefits, and contrary to Ms Duggan's submissions, would actually further the government's policy. State and Commonwealth governments have both recognised the need for infrastructure such as the proposed development and the overall environmental benefits of using rail transport instead of road in developing this infrastructure. The environmental benefits of the proposed facility, as outlined above pars [22]-[34] and [38], include significantly reducing truck movements and fuel consumption currently associated with the transportation of containers and, thus also reducing greenhouse gas emissions, improving air quality generally and lessening traffic congestion on major arterial road in the Sydney region. It is overwhelmingly clear that the proposed development will have significant environmental benefits. 133 I find that that the subject site is highly suitable for the development of an intermodal cargo facility and accept the submissions of Patrick Autocare outlined above in pars [71] – [81], in this respect. In particular, the site has been identified in two RAC studies as a preferred location for an intermodal facility. The proposed development is suitable pursuant to sub-s 79C(1)(c) of the EP&A Act as it will be: · adjacent to the main southern railway connections to Melbourne, Newcastle and Botany; · surrounded by existing transport and industrial developments and there is sufficient land zoned for the purposes of the development; · connected to the major metropolitan arterial road network; · environmentally sustainable as it significantly reduces traffic movements and the generation of greenhouse gases; and · socially sustainable as it creates additional employment opportunities and the impact on the community has been comprehensively assessed; and · proximate to the major manufacturing centres of western and south-western Sydney. 134 The site and the suburb of Ingleburn have also been identified as suitable for the development of an intermodal cargo facility by previous investigations and inquiries. Most recently, the Minister identified Ingleburn as an appropriate suburb for the location of an intermodal cargo facility in his speech on 13 December 2004 announcing the Ports Freight Plan to the Sydney Futures Forum (Exhibit 2, Tab 37, p 217). The Sydney Metropolitan Rail Sites Study (July 1998) (Exhibit B(1), Tab 2) also identified part of the subject site as a potential site for a new rail operation as it is adjacent to the main southern line and has direct access, provided new connections are installed, to the north-south rail corridor, to Enfield Yard and to Sydney Ports. Similarly, the Metropolitan Land Bridging Concept Study (December 1998) identified the same site as suitable for the location of one of a number of terminals within a "network" of terminals required to satisfy both the volume and geographic distribution of industrial zones across Sydney. 135 Although the site identified by these RAC studies was larger than the subject site and able to accommodate trains 1500-metres long, the site identified was chosen due to its proximity to the rail network. Relevantly, as noted above, the Government's has now committed to construct a dedicated freight line, which would adjoin the proposed development. This will clearly further enhance the suitability of the site as the movement of freight trains generally, as well as trains entering the site, would not be constrained by commuter trains on the main railway line. 136 In addition, I note that the Morris Report also identified Ingleburn as an appropriate area for the location of an intermodal cargo facility. The Honourable Milton Morris AO, former Minister for Transport in New South Wales, found there should be numerous small facilities strategically spread across the metropolitan areas in order to maximise the distance of containers travel by rail and minimise the distance travelled by road. The proposed development is clearly in accordance with this recommendation. 137 I conclude, therefore, that the site is eminently suitable for the proposed intermodal cargo facility. Accordingly, I agree with Commissioner Cleland's finding that "[t]here is an established need for the proposed development, it is on land zoned to permit such development, and its operation [can] be managed to minimise the environmental impacts on residents". 138 I find that approval should be granted for the proposed development prior to the finalisation of the Ports Freight Plan and the determination of the Government's preferred options for container movements and intermodal terminal locations in the Sydney Metropolitan Area. The proposed development is strategically located and will enable the development of an economically and environmentally efficient transport system capable of dealing with the steady growth in containerised trade in New South Wales and will ensure the continued economic prosperity of the State. Thus, I find the approval of the proposed development is in the public interest (sub-s 39(4) of the Court Act) and will promote the orderly and economic development of the land and the social and economic welfare of the community (sub-ss 5(a)(i) and (ii) of the EP&A Act). 139 Ms Duggan submitted that in the event that the Court decided to grant consent then it should be for a staged development. No submissions were advanced, however, to support this contention. Accordingly, in the absence of any reasons for the development to be staged, consent will be granted for the whole development as sought. The parties have otherwise agreed as to the appropriate conditions of consent. Court Orders 140 The Court orders that: 1. The appeal is upheld. 2. The development application for an intermodal cargo facility on lots 132-145 in deposited plan 804256, lot 113 in deposited plan 800543 and lot 205 in deposited plan 787308, Broadhurst Road, Ingleburn is determined by the grant of development consent subject to conditions as set out in Annexure "A". 3. There is no order as to costs. 4. The exhibits may be returned. I hereby certify that the preceding 140 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 3 August 2005 1 ANNEXURE A Patrick Autocare Pty Ltd v The Minister for Infrastructure and Planning Land and Environment Court Proceedings No 11609 of 2004 CONDITIONS OF CONSENT SCHEDULE 1 Application made by: Patrick Autocare Pty Ltd. To: Minister for Infrastructure and Planning. In respect of: Lots 132-145 DP 804256, Lot 113 DP 800543, Lot 205 DP 787308, Broadhurst Road, Ingleburn in the Campbelltown local government area. For the following: construction and operation of an intermodal cargo facility. The cargo will be transported to/from the site via rail from Port Botany and Melbourne for distribution to/from the site via truck. The development would include: vehicle transfer operation; container consolidation and distribution operation; rail siding; site office and maintenance workshop; landscaping and carpark. Development Application: DA-256-10-2004-i, lodged with the Department of Infrastructure, Planning and Natural Resources on 20 October 2004, accompanied by Intermodal Cargo Facility, Broadhurst Road, Ingleburn: Statement of Environmental Effects (two volumes), prepared by City Plan Services and dated October 2004; State Significant Development Under Section 76A(7) of the Act, the development is classified as State Significant development by virtue of a declaration made by the then Minister for Planning on 3 August 1999 with respect to rail freight terminals. Integrated Development The proposal requires an additional approval from the Department of Infrastructure Planning and Natural Resources under the Rivers and Foreshores Improvement Act 1948. Consequently it is classified as Integrated Development under s.91 of the Environmental Planning and Assessment Act 1979. Commencement of Consent Pursuant to section 83(2) of the Environmental Planning and Assessment Act 1979, this consent operates from the date of determination. Lapse of Consent Pursuant to section 95 of the Environmental Planning and Assessment Act 1979, this development consent is liable to lapse five years after the date from which it operates unless the use of any land, building or work the subject of the consent is actually commenced before the date on which the consent would otherwise lapse. KEY TO CONDITIONS 1. GENERAL 4 Scope of Development 4 Surrender of Development Consents 4 Statutory Requirements 4 Utilities and Infrastructure 4 2. COMPLIANCE 4 3. ENVIRONMENTAL PERFORMANCE 5 Air Quality Impacts 5 Soil and Water Quality Impacts 5 Noise Impacts 6 Waste Generation and Management 7 Visual Impacts 7 Traffic and Transport Impacts 8 4. ENVIRONMENTAL MONITORING AND AUDITING 8 Noise Monitoring 8 Auditing 9 5. COMMUNITY INFORMATION, CONSULTATION AND INVOLVEMENT 9 Complaints Procedure 10 6. ENVIRONMENTAL MANAGEMENT AND MONITORING 10 Environmental Representative 10 Construction Environmental Management Plan 11 Operation Environmental Management Plan 12 7. ENVIRONMENTAL REPORTING 14 Incident Reporting 14 Annual Performance Reporting 14 SCHEDULE 2 In this consent, except in so far as the context or subject-matter otherwise indicates or requires, the following terms have the meanings indicated: Act Environmental Planning and Assessment Act, 1979 Applicant Patrick Autocare Pty Limited construction any activity requiring a Construction Certificate under Part 4A of the Environmental Planning Act 1979, the laying of a slab or significant excavation works Council Campbelltown City Council Department NSW Department of Infrastructure, Planning and Natural Resources development the development to which this consent applies Director-General Director-General of the NSW Department of Infrastructure, Planning and Natural Resources, or nominee dust any solid material that may become suspended in air Minister Minister for Infrastructure and Planning, or nominee Regulation Environmental Planning and Assessment Regulation, 2000 1. GENERAL Scope of Development 1.1 The Applicant shall carry out the development generally in accordance with: a) Development Application DA-256-10-2004-i, lodged with the Department of Infrastructure, Planning and Natural Resources on 20 October 2004; b) Intermodal Cargo Facility, Broadhurst Road, Ingleburn: Statement of Environmental Effects (two volumes), prepared by City Plan Services and dated October 2004; c) landscape plans 203022 LD 01 (Vers 00) and 203022 LD 02 (Vers 00), both dated 1 October 2003, and site plans P095-D3-02 (six sheets) each dated 25 June 2004; and d) the conditions of this consent. 1.2 In the event of an inconsistency between the documents listed under condition 1.1 of this consent, and the conditions of this consent, the conditions shall prevail to the extent of any inconsistency. Surrender of Development Consents 1.3 The Applicant shall, within six months of the date of this consent, surrender to the Minister all development consents relating to development application DA-357-10-2002-i (granted on 24 September 2004 and 23 November 2004). Statutory Requirements 1.4 The Applicant shall ensure that all licences, permits and approvals are obtained and maintained as required throughout the life of the development. No condition of this consent removes the obligation for the Applicant to obtain, renew or comply with such licences, permits or approvals. The Applicant shall ensure that a copy of this consent and all relevant environmental approvals are available on the site at all times during the development. Utilities and Infrastructure 1.5 The Applicant shall be responsible for all costs associated with the undergrounding or relocation of the overhead 66kV electricity line (feeder 860), 11kV feeder lines (Lancaster Street and Barf Road, and any alterations that are required to the existing mains in Broadhurst Road due to the development, and the underground mains crossing the Main Southern rail line. 1.6 Prior to the issue of any Occupation Certificate for the development, the Applicant shall obtain from Sydney Water a Section 73 Compliance Certificate under the Sydney Water Act 1994. 2. COMPLIANCE 2.1 The Applicant shall put in place a management system, and take reasonable steps, to ensure that employees, contractors and sub-contractors are aware of, and comply with, the conditions of this consent relevant to their respective activities. 2.2 The Applicant shall be responsible for the works the subject of this consent and the environmental impacts that may result from those works, and shall put in place an environmental management system governing the conduct of all persons on the site, including contractors, subcontractors and visitors. 2.3 Prior to each of the events listed from a) to c) below, or within such period otherwise agreed by the Director-General, the Applicant shall certify in writing to the satisfaction of the Director-General, that it has complied with all conditions of this consent applicable prior to that event. Where an event is to be undertaken in stages, the Applicant may, subject to the agreement of the Director-General, stage the submission of compliance certification consistent with the staging of activities relating to that event. a) commencement of any physical works on the site; b) commencement of construction of the development; and c) commencement of operation of the development. 2.4 Notwithstanding condition 2.3 of this consent, the Director-General may require an update report on compliance with all, or any part, of the conditions of this consent. Any such update shall meet the requirements of the Director-General and be submitted within such period as the Director-General may agree. 2.5 The Applicant shall meet the requirements of the Director-General in respect of the implementation of any measure necessary to ensure compliance with the conditions of this consent, and general consistency with the documents listed under condition 1.1 of this consent. The Director-General may direct that such a measure be implemented in response to the information contained within any report, plan, correspondence or other document submitted in accordance with the conditions of this consent, within such time as the Director-General may agree. 3. ENVIRONMENTAL PERFORMANCE Air Quality Impacts 3.1 The Applicant shall not permit any offensive odour to be emitted beyond the boundary of the site, as defined under section 129 of the Protection of the Environment Operations Act 1997. 3.2 The Applicant shall undertake the development in a manner that minimises or prevents dust emissions from the site, including wind-blown and traffic-generated dust. All activities on the site shall be undertaken with the objective of preventing visible emissions of dust from the site. Should such visible dust emissions occur at any time, the Applicant shall identify and implement all practicable dust mitigation measures, including cessation of relevant works, as appropriate, such that emissions of visible dust cease. Soil and Water Quality Impacts 3.3 The Applicant shall ensure that section 120 of the Protection of the Environment Operations Act 1997 (prohibition of pollution of waters) is complied with in and in connection with the carrying out of the development. Erosion and Sedimentation 3.4 All soil and/or vegetation disturbed or removed from the site shall be disposed of to, or stored at, an appropriate location where it cannot be washed off the site. 3.5 All construction vehicles exiting the site, having had access to unpaved areas, shall depart via a wheel wash facility. 3.6 The Applicant shall install appropriate erosion controls (eg haybales) to prevent soil or sediment loss from the site. The Applicant shall ensure that sediment laden run-off from the site does not enter Bow Bowing Canal Bay during any stage of the development. 3.7 The Applicant shall install all erosion, sedimentation and pollution control infrastructure prior to the commencement of any soil-disturbing activities on the site. This infrastructure is to be maintained at or above design capacity for the duration of soil-disturbing works and until such time as all disturbed areas have been stabilised and rehabilitated so as not to act as an on-going source of sediment. Stormwater and Drainage 3.8 All stormwater runoff collected from hardstand areas, carparks and roadways shall be collected and treated prior to discharge. 3.9 All stormwater runoff naturally draining to the site shall be collected and discharged through the site's stormwater system. 3.10 The Applicant shall design, implement and maintain a stormwater management system for the site capable of collecting, containing and treating all stormwater for at least a one-in-three month ARI storm peak flow. Riparian Protection and Enhancement 3.11 The Applicant shall undertake the development in a manner that does not cause damage to, or increase erosion of banks associated with Bow Bowing Canal. 3.12 The Applicant shall design, construct and maintain any stormwater outlet structure located within 40 metres of Bow Bowing Canal to ensure that the structure does not compromise the stability or function of the riparian zone. The design of any outlet structure within the riparian zone, including pipelines and spillways, shall be in accordance with the Department's guideline Stormwater Outlet Structures to Streams and shall be approved by the Director-General prior to the commencement of any construction works within the riparian zone 3.13 The Applicant shall establish and maintain a riparian zone, consisting of local native plant species, in the area between the development and Bow Bowing Canal, within the property boundary. The zone shall be designed to ensure bed and bank stability of this area, and to prevent any sedimentation and water quality impacts on the Canal as a result of the development. The riparian zone shall be designed and constructed to meet the requirements of the Department and shall be addressed as part of the Landscape Management Plan required under condition 6.5d) of this consent. 3.14 The Applicant shall maintain the riparian zone, as required by condition 3.13, for a period of at least two years after final planting. Every six months during that period the Applicant shall submit to the satisfaction of the Director-General, a status report detailing the progress of implementation of the Landscape Management Plan. Noise Impacts 3.15 The Applicant shall minimise noise emissions from plant and equipment operated on the site in relation to the development by installing and maintaining, wherever practicable, efficient silencers, low-noise mufflers (residential standard) and replacement of reversing alarms with alternative silent measures, such as flashing lights. Restriction to Hours 3.16 Car trains arriving at the site before 6.00am shall not enter the site and shall be shut down on the approach line. The engine shall not be restarted, nor any uncoupling or placement of wagons on the site's sidings, until after 6.00am. 3.17 The Applicant shall only undertake construction activities associated with the development, including the delivery of material to and from the site, between the following hours: a) 7:00 am to 6:00 pm, Mondays to Fridays, inclusive; b) 8:00 am to 1:00 pm on Saturdays; and c) at no time on Sundays or public holidays. 3.18 The Applicant shall only operate the development between the following hours: a) 5:00 am to 6:00 pm, Mondays to Fridays, inclusive; b) 5:00 am to 6:00 pm on Saturdays; and c) at no time on Sundays or public holidays. 3.19 Notwithstanding condition 3.18 of this consent, the Applicant may undertake rail operations (being the loading or unloading of trains) outside the hours indicated in condition 3.18 on up to 12 occasions in any 12 month period. 3.20 The time restrictions specified under conditions 3.16 and 3.18 of this consent may be varied with the Director-General's agreement with the proposed variation in times, including the results of any community consultation that the Director-General may require the Applicant to undertake, and after providing any information necessary for the Director-General to reasonably determine that activities undertaken during the varied hours will not adversely impact on the acoustic amenity of receptors in the vicinity of the site. Noise Limits 3.21 The Applicant shall design, construct, operate and maintain the development to ensure that the noise contributions from the development to the background acoustic environment do not exceed the maximum allowable noise contributions specified in Table 1, at the residence most affected by noise from the development. The maximum allowable noise contributions apply under: a) wind speeds up to 3 ms-1 (measured at 10 metres above ground level); or b) temperature inversion conditions up to 3oC per 100 metres and wind speeds up to 2 ms-1 (measured at 10 metres above ground level). Table 1 - Maximum Allowable Noise Contribution Day Shoulder Evening Night 7:00am to 6:00pm Mondays to Saturdays 5:00am to 7:00am Mondays to Saturdays 6:00pm to 10:00pm on any day 10:00pm to 5:00am Mondays to Saturdays 8:00am to 6:00pm Sundays and public holidays 10:00pm to 8:00am Sundays and public holidays LAeq(15 minute) LAeq(15 minute) LA1(1 minute) LAeq(15 minute)LAeq(15 minute)LA1(1 minute) 45 49 49 59 45 55 3.22 For the purpose of assessment of noise contributions specified under condition 3.21 of this consent, noise from the development shall be: a) at any point within the residential boundary; and b) subject to the modification factors provided in Section 4 of the New South Wales Industrial Noise Policy (EPA, 2000), where applicable. Notwithstanding, should direct measurement of noise from the development be impractical, the Applicant may employ an alternative noise assessment method deemed to be acceptable (refer to Section 11 of the New South Wales Industrial Noise Policy (EPA, 2000)). Details of such an alternative noise assessment shall be submitted for the approval of the Director-General prior to the implementation of the assessment method. Waste Generation and Management 3.23 The Applicant shall ensure that all liquid and/ or non-liquid wastes generated and/ or stored on the site, including contaminated soils, are assessed and classified in accordance with the EPA's Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-Liquid Wastes (Waste Guidelines) as in force as at 1 July 1999. 3.24 Wastes removed from the site for treatment and/ or disposal shall only be sent to a waste management facility able to lawfully accept those wastes. Visual Impacts 3.25 The Applicant shall ensure that all external lighting associated with the development is mounted, screened, and directed in such a manner so as not to create a nuisance to surrounding properties or roadways. The lighting shall be the minimum level of illumination necessary and shall comply with AS 4282 1997 - Control of Obtrusive Effects of Outdoor Lighting. 3.26 Nothing in this consent permits the Applicant to erect or display any advertising structure(s) or advertisements associated with the development. Traffic and Transport Impacts 3.27 All heavy vehicles entering the site shall be wholly contained within the site before being required to stop. 3.28 The Applicant shall ensure that all landscaping is established and maintained so as not to affect driver sight distance for vehicles entering and exiting the site. 3.29 Vehicles associated with the development shall not to park or stand on Broadhurst Road, Slater Road or Stennett Road at any time. 3.30 The Applicant shall design and construct all internal road works, including associated parking and loading facilities: a) in accordance with the relevant Roads and Traffic Authority and Council standards and codes, and Australian Standards, including AS 2890.1-1993 Parking Facilities - Off-Street Car Parking and AS 2890.2-2002 Parking Facilities - Off-Street Commercial Vehicle Facilities; b) with clearly marked visitor, disabled, ambulance and service vehicle parking areas; and c) with signage to demarcate all vehicle movements within the site. Community Enhancement Program 3.31 Prior to the issue of a construction certificate for the development the Applicant shall pay to Council $88,106 to compensate for the cumulative social and/or community impacts as the result of the proposed development 4. ENVIRONMENTAL MONITORING AND AUDITING Noise Monitoring 4.1 Within 90 days of the commencement of operation of the development, or as may be agreed by the Director-General, and during a period in which the development is operating under design loads and normal operating conditions, the Applicant shall undertake a program to confirm the noise emission performance of the development. The program shall include, but not necessarily be limited to: a) noise monitoring, consistent with the guidelines provided in the New South Wales Industrial Noise Policy (EPA, 2000), to assess compliance with condition 3.21 of this consent; b) methodologies for noise monitoring; c) location of noise monitoring; d) frequency of noise monitoring; e) identification of monitoring sites at which pre- and post-development noise levels can be ascertained; and f) details of any entries in the Complaints Register (condition 5.2 of this consent) relating to noise impacts. A report providing the results of the program shall be submitted to the Director-General within 28 days of completion of the testing required under a). 4.2 In the event that the program undertaken to satisfy condition 4.1 of the consent indicates that the operation of the development, under design loads and normal operating conditions, will lead to greater noise impacts than permitted under condition 3.21 of this consent, then the Applicant shall provide details of remedial measures to be implemented to reduce noise impacts to levels required by that condition. Details of the remedial measures and a timetable for implementation shall be submitted to the Director-General for approval within such period as the Director-General may require. Auditing Transport Auditing 4.3 Within 90 days of the commencement of operation of the development, and then as may be required by the Director-General, the Applicant shall commission an independent Transport Audit of the development. This Audit shall: a) be undertaken by a suitability qualified and experienced person, approved by the Director-General prior to the commencement of the Audit; b) assess whether the heavy vehicles associated with the development are complying with the predictions and mitigation measures detailed in the documents referred to under condition 1.1 of this consent; and, c) if any non-compliance is detected, identify what additional measures will be implemented to ensure compliance. The Applicant may, with the prior approval of the Director-General, utilise Global Positioning System technology as an alternative to the monitoring requirements set out above. In gaining this approval, the Applicant shall demonstrate to the Director-General the suitability of this technology and subsequent data analysis in fulfilling the requirements of this condition. 4.4 Within 28 days of conducting the Audit referred to under condition 4.3 of this consent, the Applicant shall provide the Director-General and Council with a copy of the Transport Audit report. If the Audit identifies any non-compliance in relation to traffic movements and impacts, the Applicant shall detail what additional measures would be implemented to ensure compliance, clearly indicating who would implement these measures, when these measures would be implemented, and how the effectiveness of these measures would be measured and reported to the Director-General. 4.5 Twelve months after the commencement of operation of the development, and every three years thereafter, or as otherwise agreed or required by the Director-General, the Applicant shall commission an independent, qualified person or team to undertake an Environmental Audit of the development. The independent person or team shall be approved by the Director-General prior to the commencement of the Audit. An Environmental Audit Report shall be submitted for the approval of the Director-General within one month of the completion of the Audit. The Audit shall: a) be carried out in accordance with ISO 19011:2002 - Guidelines for Quality and/ or Environmental Management Systems Auditing; b) assess compliance with the requirements of this consent, and other licences and approvals that apply to the development; c) assess the environmental performance of the development against the predictions made and conclusions drawn in the documents referred to under condition 1.1 of this consent; and d) review the effectiveness of the environmental management of the development, including any environmental impact mitigation works. The Director-General may require the Applicant to undertake works to address the findings or recommendations presented in the Report. Any such works shall be completed within such time as the Director-General may require. 5. COMMUNITY INFORMATION, CONSULTATION AND INVOLVEMENT 5.1 Subject to confidentiality, the Applicant shall make all documents required under this consent available for public inspection on request. This shall include provision of all documents at the site for inspection by visitors, and in an appropriate electronic format on the Applicant's internet site, should one exist. Complaints Procedure 5.2 Prior to the commencement of construction of the development, the Applicant shall ensure that the following are available for community complaints: a) a 24-hour, toll-free telephone number on which complaints about the development may be registered; b) a postal address to which written complaints may be sent; and c) an email address to which electronic complaints may be transmitted. The telephone number, the postal address and the email address shall be advertised in a newspaper circulating in the local government area on at least one occasion prior to the commencement of construction of the development, through such other medium as may be approved by the Director-General. These details shall also be provided on the Applicant's internet site, should one exist. 5.3 The Applicant shall record details of all complaints received through the means listed under condition 5.2 of this consent in an up-to-date Complaints Register. The Register shall record, but not necessarily be limited to: a) the date and time, where relevant, of the complaint; b) the means by which the complaint was made (telephone, mail or email); c) any personal details of the complainant that were provided, or if no details were provided, a note to that effect; d) the nature of the complaint; e) any action(s) taken by the Applicant in relation to the complaint, including any follow-up contact with the complainant; and f) if no action was taken by the Applicant in relation to the complaint, the reason(s) why no action was taken. The Complaints Register shall be made available for inspection by the EPA and the Director-General upon request. The Applicant shall also make summaries of the Register, without details of the complainants, available to the public for inspection upon request. 5.4 Prior to the commencement of construction of the development, the Applicant shall develop and submit for the approval of the Director-General, a Complaints Handling and Response Protocol, detailing how public complaints will be managed and addressed in an appropriate and timely manner. Once approved, the Applicant shall implement the Protocol for the duration of the development. 6. ENVIRONMENTAL MANAGEMENT AND MONITORING Environmental Representative 6.1 Prior to the commencement of construction of the development, the Applicant shall nominate a suitably qualified and experienced Environmental Representative(s), approved by the Director-General. The Applicant shall employ the Environmental Representative(s) on a full-time basis for the duration of the development. The Environmental Representative shall be: a) the primary contact point in relation to the environmental performance of the development; b) responsible for all Management Plans and Monitoring Programs required under this consent; c) responsible for considering and advising on matters specified in the conditions of this consent, and all other licences and approvals related to the environmental performance and impacts of the development; d) responsible for receiving and responding to complaints in accordance with condition 5.2 of this consent; and e) given the authority and independence to require reasonable steps be taken to avoid or minimise unintended or adverse environmental impacts, and failing the effectiveness of such steps, to direct that relevant actions be ceased immediately should an adverse impact on the environment be likely to occur. The Applicant shall notify the Director-General of the name and contact details of the Environmental Representative upon appointment, and any changes to that appointment that may occur from time to time. Construction Environmental Management Plan 6.2 The Applicant shall prepare and implement a Construction Environmental Management Plan to outline environmental management practices and procedures to be followed during construction of the development. The Plan shall include, but not necessarily be limited to: a) a description of all activities to be undertaken on the site during construction including an indication of stages of construction, where relevant; b) statutory and other obligations that the Applicant is required to fulfil during construction including all approvals, consultations and agreements required from authorities and other stakeholders, and key legislation and policies; c) details of how the environmental performance of the construction works will be monitored, and what actions will be taken to address identified adverse environmental impacts. In particular, the following environmental performance issues shall be addressed in the Plan: i) measures to monitor and manage dust emissions; ii) measures to monitor and minimise soil erosion and the discharge of sediment and other pollutants to lands and/ or waters during construction activities; iii) measures to monitor and control noise emissions during construction works; iv) measures to monitor and control air emissions during construction to ensure that air emissions are both minimised and in compliance with the requirements of this consent and the Environment Protection Licence for the site; d) a description of the roles and responsibilities for all relevant employees involved in the construction of the development; e) the Management Plans listed under condition 6.3 of this consent; and f) complaints handling procedures during construction. The Plan shall be submitted for the approval of the Director-General no later than one month prior to the commencement of any construction works associated with the development, or within such period otherwise agreed by the Director-General. Construction works shall not commence until written approval has been received from the Director-General. 6.3 As part of the Construction Environmental Management Plan for the development, required under condition 6.2 of this consent, the Applicant shall prepare and implement the following Management Plans: a) an Erosion and Sedimentation Management Protocol to ensure that all erosion and sediment controls associated with the development are consistent with Managing Urban Stormwater: Soils and Construction (Landcom, 2004).. The Plan shall address the requirements of the Department shall include, but not necessarily be limited to: i) results of investigations into soils associated with the site, in particular the stability of the soil and its susceptibility to erosion; ii) details of erosion, sediment and pollution control measures and practices to be implemented during construction of the development; iii) design specifications for diversionary works, banks and sediment basins; iv) an erosion monitoring program during construction works associated with the development; and v) measures to address erosion, should it occur, and to rehabilitate/ stabilise disturbed areas of the site. b) a Noise Management Protocol to detail measures to mitigate and manage noise during construction works. The Protocol shall include, but not necessarily be limited to: i) procedures to ensure that all reasonable noise mitigation measures are applied during construction works; ii) construction noise objectives for each relevant receiver commensurate with the noise limits and noise goals specified under this consent; iii) identification of the associated noise sources and activities that will be carried out during construction; iv) assessment of construction noise impacts against the noise limits and noise limits and goals at all relevant receivers; v) details of overall management methods and procedures that will be implemented to control noise from during construction; vi) a pro-active and reactive strategy for dealing with complaints, with particular regard to verbal and written responses; vii) noise monitoring, reporting and response procedures; viii) internal compliance audits of all plant and equipment; ix) construction timetabling to minimise noise impacts; and x) procedures for notifying residents of construction activities likely to affect their acoustic amenity. c) a Traffic Management Protocol to outline management of traffic conflicts that may be generated during construction of the development. The Protocol shall address the requirements of Council and the Roads and Traffic Authority and shall include, but not necessarily be limited to: i) details of traffic routes for heavy vehicles, including any necessary route or timing restriction for oversized loads; ii) detailed consideration of measures to be employed to ensure traffic volume, acoustic and amenity impacts along the heavy vehicle routes are minimised; iii) detailed consideration of alternative routes (where necessary); and iv) demonstration that all statutory responsibilities with regard to road traffic impacts have been complied with. Operation Environmental Management Plan 6.4 The Applicant shall prepare and implement an Operation Environmental Management Plan to detail an environmental management framework, practices and procedures to be followed during operation of the development. The Plan shall include, but not necessarily be limited to: a) identification of all statutory and other obligations that the Applicant is required to fulfil in relation to operation of the development, including all consents, licences, approvals and consultations; b) a description of the roles and responsibilities for all relevant employees involved in the operation of the development; c) overall environmental policies and principles to be applied to the operation of the development; d) standards and performance measures to be applied to the development, and a means by which environmental performance can be periodically reviewed and improved, where appropriate; e) management policies to ensure that environmental performance goals are met and to comply with the conditions of this consent; and f) the Management Plans listed under condition 6.5 of this consent. The Plan shall be submitted for the approval of the Director-General no later than one month prior to the commencement of operation of the development, or within such period otherwise agreed by the Director-General. Operation shall not commence until written approval has been received from the Director-General. 6.5 As part of the Operation Environmental Management Plan for the development, required under condition 6.4 of this consent, the Applicant shall prepare and implement the following Management Plans: a) a Water Management Plan to outline measures that will be employed to manage water on the site, to minimise soil erosion and the discharge of sediments and other pollutants to lands and/ or waters throughout the life of the development. The Plan shall be based on best environmental practice and shall address the requirements of the Department. The Plan shall include, but not necessarily be limited to: i) detailed plans showing the design of the stormwater control infrastructure; ii) demonstration that the stormwater control infrastructure will conform with, or exceed all relevant Council requirements and guidelines; iii) description of the procedures for the installation, inspection and maintenance of the stormwater control infrastructure, including stormwater pollution control devices; iv) consideration of all reasonable and feasible options to avoid discharge to ground and/or ambient waters including methods to minimise the volume of contaminated water and effluent generated, recycling and reusing water and effluent; v) identification of clean and dirty water areas on site maps for different stages of the development; vi) identification of criteria for nomination of areas as clean or dirty; vii) details of water management measures to be implemented for clean and dirty waters; viii) calculations for a water balance for all waters generated on the site including potential volumes of groundwater, stormwater and process water for treatment on-site or off-site, proposed discharges, recycling or reuse; ix) details of the remedial actions to be taken by the Applicant and site operators in response to an exceedance of concentration limits or other performance criteria for the on-site or ambient water management controls; x) characterisation of wastewater qualities and quantities for reuse on-site shall be characterised and irrigation management practices specified; xi) specification of wastewater reuse areas shall be specified on site maps for different stages of the development; and xii) specific details shall be provided in relation to the times, locations, volumes and qualities of the water to be irrigated, including how the quality of water to be used for irrigation will be assessed. b) a Noise Management Plan to detail measures to mitigate and manage noise during operation of the development. The Protocol shall include, but not necessarily be limited to: i) procedures to ensure that all reasonable and feasible noise mitigation measures are applied during operation of the development; ii) procedures to generate suitable documentation for annual environmental auditing, that demonstrates that the noise limits and noise goals specified under this consent, or best practice noise control operations, are being met; iii) identification of all relevant receivers and the applicable criteria at those receivers commensurate with the noise limits and noise goals specified under this consent; iv) identification of activities that will be carried out in relation to the development and the associated noise sources; v) procedures for periodic consideration of noise impacts at the relevant receivers against the noise limits and noise goals specified under this consent; vi) details of all management methods and procedures that will be implemented to control individual and overall noise emissions from the site during operation; vii) development of reactive and pro-active strategies for dealing promptly with any noise complaints, including documentation of a fast response (eg within one hour), the completed action on a complaint and feedback from the complainant (eg within 24 hours); and viii) noise monitoring and reporting procedures. c) a Transport Code of Conduct to outline minimum requirements for the movement of heavy vehicles to and from the site. The Code shall meet the requirements of Council and the RTA, should there be any. The Code shall include, but not necessarily be limited to: i) restrictions to routes; ii) speed limits to be observed along routes to and from the site; iii) restrictions to the hours of transport operations to avoid travelling through built-up areas late at night or at times of high traffic flows in those areas; iv) minimum requirements for vehicle maintenance to address noise and exhaust emissions; v) behavioural requirements for drivers; and vi) load coverage requirements. d) a Landscape Management Plan to outline measures to ensure appropriate development and maintenance of landscaping on the site. The Plan shall include, but not necessarily be limited to: i) details of all landscaping to be undertaken on the site with specific reference to screening structural elements of the development from lines of sight with surrounding visual receptors; ii) maximisation of flora species endemic to the locality in landscaping the site; iii) provision for the removal of all noxious weeds, as listed under the NSW Noxious Weed Act 1993, from the site, and prevention of reinfestation of the site with those species; iv) results of consultation with Council and the Department to determine appropriate species for landscaping on the site; v) details of car parking and measures to prevent vehicle encroachment onto landscaped areas; vi) details of an irrigation system to be installed throughout all landscaped areas to provide full coverage to those areas with no overspray onto hard surfaces; and vii) a program to ensure that all landscaped areas on the site are maintained in a tidy, healthy state. 7. ENVIRONMENTAL REPORTING Incident Reporting 7.1 The Applicant shall notify the Director-General of any incident with actual or potential significant off-site impacts on people or the biophysical environment within 12 hours of becoming aware of the incident. The Applicant shall provide full written details of the incident to the Director-General within seven days of the date on which the incident occurred. 7.2 The Applicant shall meet the requirements of the Director-General to address the cause or impact of any incident, as it relates to this consent, reported in accordance with condition 7.1 of this consent, within such period as the Director-General may require. Annual Performance Reporting 7.3 The Applicant shall, throughout the life of the development, prepare and submit for the approval of the Director-General, an Annual Environmental Management Report (AEMR). The AEMR shall review the performance of the development against the Operation Environmental Management Plan (refer to condition 6.4 of this consent), the conditions of this consent and other licences and approvals relating to the development. The AEMR shall include, but not necessarily be limited to: a) details of compliance with the conditions of this consent; b) a copy of the Complaints Register (refer to condition 5.2 of this consent) for the preceding twelve-month period (exclusive of personal details), and details of how theses complaints were address and resolved; c) identification of any circumstances in which the environmental impacts and performance of the development during the year have not been generally consistent with the environmental impacts and performance predicted in the documents listed under condition 1.1 of this consent, with details of additional mitigation measures applied to the development to address recurrence of these circumstances ; d) results of all environmental monitoring required under this consent and other approvals, including interpretations and discussion by a suitably qualified person; and e) a list of all occasions in the preceding twelve-month period when environmental performance goals for the development have not been achieved, indicating the reason for failure to meet the goals and the action taken to prevent recurrence of that type of incident. The Applicant shall submit a copy of the AEMR to the Director-General every year, with the first AEMR to be submitted no later than twelve months after the commencement of operation of the development. The Director-General may require the Applicant to address certain matters in relation to the environmental performance of the development in response to review of the Annual Environmental Report. Any action required to be undertaken shall be completed within such period as the Director-General may require. The Applicant shall make copies of each AEMR available for public inspection on request. ********** 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.