Land and Environment Court New South Wales Medium Neutral Citation: Australian Native Landscapes Pty Ltd v Lake Macquarie City Council [2018] NSWLEC 1006 Hearing dates: 3, 4, 6, 7, 10 & 11 April 2017 Date of orders: 11 January 2018 Decision date: 11 January 2018 Jurisdiction: Class 1 Before: Dixon C Decision: (1) The appeal is upheld. (2) Development consent is granted to Development Application DA792/2016 as amended for the development set out in Exhibit B subject to the conditions in Exhibit 5 in respect of land at Lot 84 DP 9632 known as 60 Crawford Road, Cooranbong. (3) The Council is directed to forward to the Court an electronic copy of the conditions of consent (as amended by my reasons for judgment) within 14 days. (4) The Exhibits are returned apart from Exhibit B and 5. Catchwords: APPEAL – development application for a leachate dam, surcharge storage area, bunding – impacts from leachate and odour arising from the operations on the site – Res Judicata – whether issue estoppel in respect of size and capacity of the temporary surcharge overflow area arising from findings in related class 4 judgment Legislation Cited: Protection of the Environment Operations Act 1997 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Cases Cited: Australian Native Landscapes Pty Limited v Lake Macquarie City Council (No 5) [2016] NSWLEC 134 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (No 2) [2010] NSWLEC 104 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 Weston Aluminium Pty Ltd v Environment Protection Authority and Anor; Weston Aluminium Pty Ltd v Alcoa Australia Rolled Products Pty Ltd (2007) 156 LGERA 283 Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225 Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171 Carr v Minister for Land & Water Conservation (2000) 109 LGERA 175 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30 Allen Commercial Constructions Pty Ltd v The Council of the Municipality of North Sydney (1970) 123 CLR 490 Municipal Council of Sydney v Campbell [1925] AC 338 Council of the Shire of Werribee v Kerr (1928) 42 CLR 1 Texts Cited: Handley K, Spencer Bower and Handley – Res Judicata, (4th ed 2009, LexisNexis) Category: Principal judgment Parties: Australian Native Landscapes Pty Ltd (Applicant) Lake Macquarie City Council (Respondent) Representation: Counsel: Mr T Howard SC (Applicant) Mr T To ( Respondent) Solicitors: McCabes Lawyers(Applicant) Moray & Agnew (Respondent) File Number(s): 2016/219940 Publication restriction: No Judgment 1. Since about May 2000 Australian Native Landscapes Pty Ltd (ANL) has been conducting a compositing facility on land situated at 60 Crawford Road, Cooranbong (the site). The business, which produces potting mix and other products, operates under two separate development consents granted by the Lake Macquarie Council (the Council) in 1986 and 1988 (the consents). The consents, as granted, impose few constraints upon the operation of the composting facility. In particular, they do not require the construction of a leachate dam or any bunding to contain pollutants/ and runoff from the development. 2. As a consequence, for some years, uncontained leachate has been draining from the site down slope and discharging into the environment. This situation changed at some time between May and October 2000 when ANL acted to address this issue and constructed a leachate dam to collect leachate from the composting area and an earthen perimeter bund to prevent the discharge of leachate from the composting works onto the surrounding rural and rural residential land. These works – the leachate dam and the bund – according to ANL, were carried out in order to bring the site and the composing facilities into compliance with relevant standards. 3. The development was further regulated in July 2001 when the Environmental Protection Agency (EPA) granted an Environmental Protection Licence No 11324 to ANL in respect of the scheduled activities carried out on the site. As I understand the facts, in granting the licence the EPA took into account the Council's confirmation that the existing development consents authorised the works being carried out on the site. 4. Following the issue of the licence, at some time between 2006 and 2014, ANL cleared native vegetation from three areas adjacent to the access road within the site. Two of these areas - to the right of the access road as one enters the site – are now used for the stockpiling of woodchips of various kinds. Class 4 proceedings 1. In 2015 the Council commenced civil enforcement proceedings against ANL in respect of the unlawful clearing of native vegetation, and adverse environmental impacts comprising emission of offensive odours, water pollution and land pollution : Lake Macquarie City Council v Australian Native Landscaping Pty Ltd (No2) [2015] NSWLEC 114 per Biscoe J ( Class 4 judgment ). The relevant history of the unauthorised works and environmental impacts is recorded by Biscoe J in the Class 4 judgment at [7]-[33]. The judgment also records that the Court found ANL's use of the site as a composting facility: 1. was in certain respects, an unlawful use in that requisite development consent had not been obtained in relation to a leachate dam, the earthen bunding on the site and the use of an area for woodchip stockpiling; (Class 4 judgement paragraphs 69 – 74); 2. had caused, and would likely cause in the future, the emission of offensive odours in breach of s 129 of the Protection of the Environment Operations Act 1997 (POEO Act) (Class 4 judgement paragraphs 93 – 113); 3. had caused, and would likely cause in the future, water pollution in breach of s12 of the POEO Act – (Class 4 judgement paragraphs 114 – 180). 1. On 17 July 2015 the Court ordered that the unlawful use be restrained and granted injunctions in relation to the pollution matters – it then stayed these orders to enable the applicant to: 1. "…to seek development consent for the use of those works" (Class 4 judgement paragraph 76). 2. "…put effective odour management measures in place" (Class 4 judgement paragraph on 113; and 3. comply with a specific set of injunctions in respect of water pollution designed to ensure there was sufficient surcharge capacity in the leachate dam to contain a storm event of a defined size (Class 4 judgement Orders 5 and 6 made on 23 July 2015, Council Bundle, Tab 3). 1. A stay of the orders in relation to odour was granted until 31 January 2016, and the other matters until 31 July 2016 (Orders 8 and 9 made on 23 July 2015). As I understand the facts ANL has since 14 October 2016 been restrained from using the leachate dam and the bund pursuant to the orders made by the Court in the Class 4 proceedings. The DA appeal 1. This Class 1 appeal arises as a consequence of the Court's orders in the earlier Class 4 judgment (at [76], [113] ) requiring the applicant to regularise the ongoing use of the leachate dam and earthen bund on the site by obtaining development consent. 2. ANL's development application DA792/2016 (DA) was lodged with the Council on 16 May 2016. It was appealed to the Court on a "deemed to have been refused" basis on 21 July 2016. As originally framed the DA sought approval for the use of the existing leachate dam, the earthen bunding around that dam, the use of the woodchip stockpiling area for the purpose of landscape material supplies (i.e. retailing), and the installation of one (1) 10,000 L water storage underground tank. It did not propose any measures to address the emission of offensive odours. For that reason the Council brought the Class 4 proceedings back before to the Court again in July 2016. At that time the Court held that the DA was "obviously and seriously deficient" in addressing the Court's Class 4 orders: Australian Native Landscapes Pty Limited v Lake Macquarie City Council (No 5) [2016] NSW LEC 134 per Sheahan J at [19]). 3. On 23 September 2016 the Court granted ANL leave to amend its DA by substituting plans and providing the further information from its stormwater management expert, Dr Perrens ( the details of which are set out in his letter dated 3 August 2016). ANL was also directed to provide a Leachate Management Assessment Report and Odour Management Assessment Report. These reports, which were filed on 14 October 2016, are part of the current proceedings. The Application sought to be approved 1. The development, as amended, is described in section A1 of the Council's Statement of Facts and Contentions (SOFC) filed with the Court on 1 December 2016 (Council's bundle at page 70). However, with the consent of the Council the DA was amended again during the hearing on 10 April 2017. The application now under review is more accurately described in Exhibit B in the following terms: The development application is an application for prospective consent for drainage works including use of the three (3) dams and bunds shown pink on the plans prepared by Barry Hunt Associates dated 19 September 2016, together with consent for the installation of a Leachate Management System and weighbridge and associated offices and underground tank facilities, amended as follows: a) amend the plans to those prepared by Barry Hunt Associates dated 19 September 2016, being drawings number DA 001, DA 002, DA 003, DA 004, DA 005, DA 006. b) weighbridge, as located on the plans referred to in a) above and detailed in drawings prepared by Lindsay Dynan being pages 5 - 11 inclusive of exhibit "PNV –1" to the affidavit of Paul Nicholas Vergotis sworn 8 August 2016; c) office, as located on the plans referred to in a) above and detailed in the letter dated 17 May 2016 and annexures by Atco structures being pages 12-18 inclusive of exhibit "PNV-1"to the affidavit of Paul Nicholas Vergotis sworn 8 August 2016; d) letter from Advisian dated 3 August 2016 in relation to water management, being pages 34 -109 inclusive of exhibit "PNV – 1" to the affidavit of Paul Nicholas Vergotis sworn 8 August 2016; e) the Leachate Management Plan Drawings No 1863 – 001 and 002 rev C prepared by The Odour Unit Pty Limited and 16 February 2017 ( being at pages 5 and 6 Exhibit G); and f) plan showing proposed drainage arrangements to the south east of the workshop. 1. One of the issues raised during the course of the hearing concerned the surcharge capacity of the leachate dam and the associated surcharge overflow area and the related issue of the identification of the appropriate operating level of the leachate dam. In an effort to resolve matters the applicant offered at the conclusion of the hearing to accept the following parameters in relation to the operation for the leachate dam and provision of surcharge capacity: 1. The applicant has agreed to operate the leachate dam at an operating level of 6.2m AHD, thereby providing a storage capacity in the dam of about 3,570m3. 2. With the dam at a level of AHD 6.2m , the applicant has agreed to provide a 7,100m3 surcharge capacity required to accommodate the run–off from a 1-in-10 year , 24 hour storm event of 168mm, which is the amount that the Council's witnesses in the field of water management ( Dr Perrens and Mr Jamieson) agreed in the joint report (Exhibit 9, paragraph 30 -31) as the surcharge capacity required if the runoff–coefficient of 0.80 nominated by Mr Jamieson is adopted. 3. The applicant has also agreed to provide a further 2500m3 in addition to the volume required to accommodate the run off from a 1-in-10 year, 24 hour storm event of 168mm with an assumed run–off co–efficient of 0.8 (7,100m3). 4. The surcharge capacity is proposed to be accommodated in the area shown in or about the leachate dam and the area marked yellow on drawing number DA prepared by Barry Hunt Associates dated 19 September 2016 (Exhibit B). 1. It was also agreed - at the site view on 4 April 2017 - (in relation to the diversion of stormwater drainage from the area to the rear of the western shed), that a sketch plan would be prepared to address this runoff collection - the drainage plan is marked (Exhibit U). 2. These agreed matters now constitute the application sought to be approved. What outcome do the parties expect from this Class 1 appeal? 1. This is not a case about whether development consent should be granted to the amended DA, but rather, what conditions should be imposed on any consent granted by the Court. Each party at the commencement of the hearing made it plain to me that it wants the Court to grant a conditional consent to the amended application after a proper assessment under s79C. To that end, the parties have provided the Court with competing versions of draft conditions of consent (Exhibits 5 and V). According to the Council the site can and should be conditioned so as to operate in an environmentally acceptable way (Exhibit 5). It submits that I have power to regulate all of the activities on the site through this DA. The Applicant takes a different view. An overview of the parties' positions is summarised below. The Council's case 1. According to the Council the Court's evaluation of the key elements of the proposed development – the use of the leachate dam, surcharge storage area and bunding; and the new leachate management system – necessarily includes, under s79C of the EPA Act, an assessment of the likely overall impacts from the leachate and odour arising from the operations on the site. While the proposed leachate management system for the collection of leachate draining from the composting windrows, and the treatment and storage of such collected leachate in two 220kl tanks is part of the DA the Council contends that the diversion of leachate is but one aspect of the odour generation from the site's use. Integral to the performance of the leachate management system, and of the site as a whole, are the operational aspects of how composting is to be carried out – in terms of amounts, sizes of windrows, and their chemical and physical properties. Although these operational aspects of the development are not referred to in the application the Council believes that these matters must necessarily be addressed. 2. To that end, the Council's version of the draft conditions seeks to include what might be described as "operational conditions" focussed on controlling adverse odour and water pollution. Relying on the evidence of the parties' odour experts, Mr Assal (applicant) and Mr Todoroski (Council) the Council submits that the operational aspects of the site need to be specifically addressed by way of further assessment (odour joint report dated 31 March 2017 at [5]). The Council's conditions require such further assessment. 3. With respect to water management, the application seeks consent for use of the leachate dam and the bunding coloured red referred to in the plan to the Class 4 orders, and also the use of the area north–east of the leachate dam for "temporary surge charge storage" of leachate. The catchment area draining to the leachate dam is agreed at 5.188ha. However, as stated at paragraph [12 (b)] above, there is a difference of opinion between the water experts (Mr Jamison (applicant) and Dr Perrens (Council)) about how much of the rainfall will make its way to the leachate dam. This is because some of the rainfall will be more readily absorbed by the surfaces of the site – the compost windrows. The amount of "loss" of rainfall from such mechanisms is captured by a "runoff co-efficient", expressed either as a percentage or a decimal form. As stated Dr Perrens is of the opinion that the run off coefficient is 0.66. Mr Jamieson considers it should be 0.8 (Exhibit 9 paragraph 28). 4. The Council contends that the surcharge area provided on the site needs to have sufficient volume to contain required storm events and be lined in accordance with the Composting Guidelines. It believes that the additional storage volume presently offered by the applicant is insufficient to safely contain the required storm events on the site and for that reason more of the site needs to be freed up for appropriate storage area. And, as the volume of storage depends in part on the rate of removal of water the Council submits that there is nothing inappropriate in requiring operational rules around the management of water in a predicative fashion. 5. At the commencement of the hearing the Council invited ANL to consider moving the compost piles to a particular area of the site as suggested by the water experts and identified on the marked up plan handed to the Court prepared by Barry Hunt Associates dated 19 September 2016. The plan, which is reproduced below, shows a black line representing a bund across the site separating the composting piles to the side of the leachate dam and the construction of a sediment dam in the area marked hatched. 1. Broadly speaking, the Council's conditions seek to effect such segregation of the site by dividing an area to drain to the leachate dam and the surcharge overflow area. That part of the site, without the compost operation on it will then drain to either the existing clean water dam or a new sediment dam. That said, the Council's conditions leave the precise locations of the windrows within the parameters of the area identified under the water experts' agreement. The Council accepts that we are dealing with an approved use with an existing layout and only the applicant has the detailed operational understanding of the site. A new sedimentation dam is not essential (T: 13: LL40-45). Council's conditions (Exhibit 5) 1. As the current use of the site is effectively unconstrained the Council requires under Part A of its Deferred Commencement Conditions for the applicant to prepare a number of operational plans addressing specific topics (including odour and water) to form the basis of an operational consent that alters the manner of operation in some respects. The Council submits that the Court has ample power under s80 A of the EPA Act to impose conditions which alter an aspect of development that is already carried on in circumstances where the matter is not directly proposed by the application but is related to the development the subject of the application. 2. By way of overview, or example, Part A condition 5.5 deals with performance criteria. As will be explained later, the odour experts have accepted certain applicable criteria and the Council's conditions seek to achieve those criteria. Part A condition 6.1 requires the preparation of a revised layout identifying the locations, number and sizes of the green waste receival area, active windrows, maturation windrows, and any other stockpiles of compost material, limited generally to the areas of the site (between 9mAHD and 13m AHD contour depicted on the site plan drawing DA 001 Sheet 1 dated 19 September 2016). Such areas draining to the leachate dam. The new leachate catchment is then controlled by the leachate management plan (condition 7 1). Thereafter, the conditions require by condition 7.7 a certain quantum – storage volume over the site and condition 7.8 takes into account the daily water balance that the water experts say is desirable to have, then the operational environmental management plan and finally the leachate and clean water storage plan to identify on a plan ultimately where these things are as determined in accordance with the parameters of the earlier plans (T4:5 – 8:20). 3. According to the Council this process will result in a series of operational plans and drawings that reflect what has been agreed, or those aspects of agreed positions after further assessment. Once those matters are approved, then as plans, by way of deferred commencement condition, they can then be conditioned in the sense of - conduct the use in accordance with these approved plans. The Council's conditions, it is submitted are within the proper bounds of consideration and imposition of conditions under s80A (T6:11-45). 4. The local objectors' lay evidence before the Court supports the imposition of the Council's version of conditions on any consent granted by the Court. Although the number of objectors to the DA is limited their complaints about the current operations on the site are consistent. Collectively, the local objectors told me that they have been impacted by offensive odours and noise from the operations on the site over a protracted period of time – and, that they continue to experience substantial adverse odour impacts (Council bundle Tabs 11 and 12). They said that their repeated complaints (in excess of 100 incidents) to the EPA about offensive odour and noise from the activities on the site have, in effect, been ignored (Exhibit 10). ANL 1. ANL contends that in supporting the approval of the leachate dam and earthen perimeter bunding, and other works, the Council is in effect attempting to impose stricter controls on the operation of the existing composting operations approved under the 1986 and 1988 consents. 2. ANL is willing to submit to the imposition of reasonable conditions connected with the development but submits that the primary focus must be on the development for which consent is sought and not on the composting operations which are scheduled activities under the Protection of the Environment Act 1997 (POE ACT), for which consent is not sought. 3. The applicant submits that the Council's draft conditions are beyond power in this appeal under s97 (1) of the Environmental Planning and Assessment Act 1979 (EPA Act). It contends for the imposition of a modified version of the Council's conditions (Exhibit V) and submits that there is no need to provide additional wet weather storage at all given the terms of the Court's Order 5.2 made on 11 November 2015 which ensued from the Class 4 judgment with the consent of the parties. In fact, it submits that the terms of the Order 5.2 in the Class 4 proceedings raises issue estoppel and that the Council faces a difficulty in seeking to advance in this Class 1 appeal a position which is inconsistent with such an order. The estapol submission is summarised at [58] of ANL's written submissions dated 10 April 2017 (AWS) and states as follows: "The possibility in his Honour's proposed consent orders of providing surcharge capacity in excess of that required to contain runoff from a 1 in 10 year 24 hour event was not pursued by the respondent (the Council)". Order 5.2 made 11 November 2015 ensured from his Honour's judgment and was made by consent of both parties. It imposes no requirement for additional volume for wet weather events, and instead imposes a requirement for a maximum storage capacity of [rainfall ] up to and including a 1-10 –year , 24 hour storm event " (our emphasis ). 1. Despite its primary position, and as a pragmatic response, the applicant did in fact offer to provide surcharge storage capacity of 2500m3 as part of its amended application (Exhibit B). Although this is less than that desired by the Council (on the basis of Mr Jamison's evidence) the applicant believes it is more than sufficient and contends there must be a sense of balance in the imposition of conditions when dealing with an existing use. Shortly stated, it submits that the Council has gone too far and that the conditions in relation to the compositing operations reflect an overly prescriptive "command and control approach" in circumstances where the facility is regulated by the EPA under an environmental pollution licence (EPL). 2. In accepting a number of the conditions proposed by the Council the applicant submits that the Court can be confident that this facility will continue to operate on the land without undue environmental or amenity impacts. Facts 1. Having provided an overview of the parties' positions in this litigation it is useful to refer to some pertinent facts - starting with a description of the activities presently carried out on the site. A description of the activities presently carried out on the site 1. The current operations on the site can be divided into four key components, namely; 1. Green waste Receival Area; 2. Pasteurisation and Maturation Areas; 3. Screening , Mixing and Blending Areas; and 4. Bagging and Storing Areas. 1. The aerial image of the site in its locality, taken from Exhibit P, is reproduced below. Although the image is dated 2013 it still serves to identify the areas of the site where the four key components of the operation are presently conducted. 1. The composting process involves the importation in trucks of green recyclable material (such as mowed grass and tree branches) sourced from local councils' waste management facilities. The green material is deposited at one end of the composing windrows of similar green material, which is in the process of breaking down to compost, and is irrigated with leachate from the leachate dam. Apart from adding moisture to the composting windrows the leachate dam fills a water cart which generally sprays water on the operational areas six times a day for dust suppression. 2. As the material starts to weather it is gradually churned and moved along the windrows until it is fully decomposed and weathered. The windrows are approximately 80metres long, 20metres wide and 6metres high. The weathered but unprocessed material is then moved to a machine located to the north east of one of the two sheds on the site. This machine sifts the compost into different grades in accordance with market demand. In turn, it is mixed with other material such as sand or woodchip. This mixed compost is then either transported away from the site on bulk or it bagged in the adjoining eastern shed. The finished product, whether in bulk or bagged, is transported away from the site in trucks. There are generally 15 to 20 trucks per day involved in the unloading and loading of products on the site. 3. There are three dams on the site named the clean water dam, the Crawford dam and the leachate dam (with a bund around the leachate dam) and a woodchip stockpile area. 4. The Leachate dam is located in the north–western quadrant of the site, and receives and stores some leachate from composting activities (pond 1 on the aerial photograph). A concrete based swale drainage system installed in about 2013 is intended to direct the bulk of leachate to the Leachate dam. 5. The clean water dam is located in the western quadrant of the site, and is intended to receive and store stormwater run–off. 6. The activities currently carried out on the site are scheduled activities within the meaning of the Protection of the Environment Operations Act 1997 (POEO Act). Therefore, ANL is required to hold and operate the facility in accordance with the current environmental protection licence dated 28 October 2015 (Exhibit L). 7. The regulatory authority for the operation of the facility under POE Act is the EPA: s6 POEO Act. As regulator the EPA has wide powers to control the operations on the site under the environment protection licence (EPL). For example, Chapter 3 of the POEO Act confers power on the EPA to attach various types of conditions to licences, including conditions requiring pollution reduction and programmes. 8. The evidence is that since 2005 the EPA has used its powers to regulate the site through the EPL issued under the POEO Act. For example, condition U2.1 of the EPL required ANL to provide by "5pm Friday 30 November 2015" a revised Odour Mitigation and Management Strategy in writing prepared by a suitably qualified consultant , aimed at reducing odour from the premises in relation to incoming green waste, active windrows , the Leachate pond. 9. The ELP required by condition U2.2 at p14 of Exhibit L that the report address the following matters: " For each mitigation and management measure proposed in U2.1, the revised strategy must include , but is not limited to, comprehensive details on the following: a. The expected efficiency of that measure; b. The implementation date of that measure; c. A contingency to be used should that measure fail; d. Proof that the measure meets best practice; and e. Proof that the measure is lawful under development consent. 1. ANL complied with this requirement under the licence and submitted a report prepared by THE ODOUR UNIT entitled "Odour Emissions and Mitigation Study Cooranbong, NSW Final Report May 2013" (Exhibit P). 2. As it presently stands ANL is unable to use the leachate dam and is trucking leachate from the site under the terms of the Class 4 orders. Issues 1. The Council's Statement of Facts and Contentions (SOFC) filed on 1 December 2016 raises several issues however, many of them are no longer pressed. The main issues agitated at the hearing concerned odour and leachate management. To assist the Court the parties have provided comprehensive written submissions about the evidence and it seems to me that the following questions arise: 1. What is the development the subject of the application? 2. Who is the appropriate regulating authority for the activities carried out on the site - the Council or the EPA Act or both? 3. Does Order 5.2 in the Class 4 appeal operate to estop the Court from imposing a condition which requires a greater surcharge area than the area (2500m3) offered by the applicant? If not, then the following sub questions arise: 1. What is the appropriate surcharge area for the collection of leachate? 2. Does there need there be an engineered clay liner in the leachate dam and the surcharge area? 1. Does my power to impose conditions of consent under s80 A of the EPA Act extend to the imposition of the draft conditions in Exhibit 5 proposed by the Council? In particular, the deferred commencement conditions? 2. What are the final conditions to be imposed on the development consent? Issue (1) - what is the development the subject of the application? 1. The applicant, in its written submissions (AWS) at [62] describes the development the subject of the application in the following terms: "The development for which consent is sought is essentially for the use of the existing leachate dam and perimeter bund, the installation of the leachate management system and the installation of the weighbridge and the associated demountable office and car parking area". 1. The Council agrees with this description of the works but submits "…that since the application proposes development to ameliorate offensive odour; and to avoid water pollution then the necessary consideration of the application includes consideration of the essential integers into evaluating whether these matters are achieved in an acceptable way" RWS at [22]-[24]. 2. The Council contends that the inquiry of the Court in this case is not limited to asking if the proposed development will be an improvement on the form of the development found to have already caused environmental harm but rather will include, as is conventional, asking if the outcome is environmentally acceptable after assessment under s79C of the EPA Act. As is usually the case, the form of the operational constraints will take the form of conditions of development consent. Some of the conditions will be operational conditions requiring the achievement of performance criteria based on assessments required under deferred commencement conditions. Finding – Issue (1) 1. I accept the applicant's description of the key elements of the application namely: the use of the leachate dam, surcharge storage area and bunding; and the new leachate system - as documented in (Exhibit B). These elements of the development seek to control odour and the discharge of water (leachate) on the site as it is presently used. 2. Accepting that the manner of operation of the composting facility is directly related to the amount of leachate that is produced and the extent of the emission of the odour the application necessarily requires an understanding of the operational activities carried out on the site. Issue (2) - Who is the appropriate regulating authority the Council or the EPA under the POEO Act? Applicant submissions issue (2) 1. The applicant submits that the site is scheduled premises under the POEO Act the operation of which is governed by the environmental protection licence (EPL) granted by the EPA (Exhibit L). Therefore, the EPA is the appropriate regulatory authority in relation to the operation of the facilities, not the Council. 2. Moreover, the EPL is an instrument which is superior in respect of operational controls. It is designed to deal with operational matters and can readily be amended to accommodate operation changes - as Exhibit S containing the Notices of Variation for the EPL for the site demonstrates. Whereas, the applicant the "…development consent is not flexible in dealing with operational matters. Rather, it is relatively fixed in time and is relatively rigid in its terms" at [19] AWS. 3. It is further submitted that "…given the dichotomy of the roles, it is no exaggeration to say that, where the Council attempts to assume a primary role in regulating the operation of the premises where scheduled under the POEO Act and subject to a licence under the Act, the Council is usurping the role of the EPA. That should not occur" at [16], [22] AWS. Council submissions – issue (2) 1. The Council agrees that the EPA is the appropriate regulatory authority for the purposes of the POEO Act. However, it submits that ss7 (1) and 50 (2) of the POEO Act makes it clear that the POEO Act and the EPA Act (under which this DA is to be determined) are "interlocking, parallel schemes of regulation". 2. It submits: "The interlocking nature of the scheme is even more evident when the EPA Act is considered, in particular Division 5 of Part 4 concerning integrated development. In circumstances where the EPA would be the approval body, the scheme envisages, plainly enough, that the requirements of the EPA Act would be obtained. The matter to be noticed however is that those requirements would be imposed on the consent. That is, the scheme envisages roles for both the EPA and a consent authority in ongoing management of development. That must be so when there are enforcement powers under the EPA Act that are conferred only on a consent authority – example the power to issue section 121B orders. It is therefore appropriate for operational matters (where otherwise relevant to the development) to be conditioned in the consent, not merely left the possibility of exercising of licensing powers under the POEO Act". ([83] – [86] CWS) 1. Therefore, it is appropriate for the Court, as consent authority exercising functions under the EPA Act, to impose conditions regulating an ongoing use. The Council submits that it cannot be assumed that the operational oversight of the development will be exercised except intermittently. 2. In saying this the Council submits that it is willing to agree to the EPA having the approval function in respect of management and operational plans under the consent – provided the Council is provided with the draft plans at the time they are provided to the EPA (and therefore has an opportunity to provide comments to the EPA). Accepting that the development is not static but involves ongoing use and the potential for ongoing environmental impacts the Council submits that it's entirely appropriate that a consent authority impose conditions requiring an operation to be conducted according to the procedures defined by the applicant that will achieve an environmentally acceptable outcome. 3. The Council submits that in both the water management and odour evidence the common theme is that the environmental outcome depends on operational measures. The details of the way composting operations are managed cannot and should not be artificially segregated from the environmental impacts which flow from the management regime proposed in this application. 4. The Council contends that the development consent conditions should make provision for the operation to be conducted in accordance with the approved management and operational plan as proposed in its conditions of consent. It submits that it is inappropriate to leave such matters upon which the odour performance and water management outcomes depend at large and it cannot be assumed that the EPA will condition the licence in the same way as may be done under the EPA Act development consent. Furthermore, if the EPA does not condition the licence with operational requirements (as the historical evolution of the licence suggests) then, in the absence of conditions in the development consent the use will remain, for all practical purposes uncontrolled. 5. By allowing opportunity in the conditions for an amendment to an approved management or operational plan by the EPA from time to time, provision can be made for revision or amendment to management and operational conditions to reflect any advances in practices. This should be complimented by conditions requiring any approved, or approved amended operational management plan to be provided by the applicant to the Council within 14 days of approval being notified to the application. This way the Council could be kept informed of the current operating regime. Issue (2) - Finding 1. I agree with the council's interpretation of the legislation which is consistent with the case law. 2. The POEA Act and the EPA Act are complementary and operate to facilitate the regulation of the activities on the site. The terms of the applicant's licence under the POEO Act from the EPA make this clear. For example, the Court was taken to condition U2.1 of the EPL to demonstrate that the EPA has actively sought to regulate odour. Under U2.2 the licence requires that the revised odour strategy must include; "… e. Proof that the measure is lawful under development consent." 3. The Council is the appropriate authority under the EPA Act and its powers extend to operational matters called up by the application for the reasons outlined by the Council as summarised: Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (No2 ) [2010] NSWLEC 104 per Preston CJ at [11]. Does Order 5.2 in the Class 4 appeal operate to estop the Court from imposing a condition which requires a greater surcharge area than the 2500m3 area offered by the applicant? – Issue (3) Finding – Issue (3) 1. I have read and considered the parties' submissions on this issue including the Class 4 proceedings transcript dated 1 June 2015 (Exhibit 18) relied upon by the Council. 2. In my opinion issue estoppel does not arise because the issues in each proceeding were not the same (Handley K, Spencer Bower and Handley – Res Judicata, 4th ed., pages 113-117). 3. Put simply, the Court did not determine in the Class 4 judgment whether a surcharge storage area was necessary. In the Class 4 proceedings the Court was considering whether there had been water pollution. One way the Council demonstrated that water pollution had occurred, and was likely to occur again in the future, was to show that the storage volume available on the site (at that time) was insufficient to contain "a" 1 in 10 year 24 hour storm. The Court accepted this view in finding water pollution had occurred, and was likely to occur again, at paragraphs [17]-[180] of the judgment. It was unnecessary to consider (and the Council asserts that it was not considered in the Class 4 appeal) whether additional surcharge storage was required – although Mr Jamison's evidence at that time relied upon the same interpretation of the Composing Guidelines as expressed in these proceedings. 4. Relevantly, Biscoe J states at paragraph [164] of the Class 4 judgment that compliance with the Composting Guidelines was not asserted as the matter constituting the breach of s120 of the POEO Act. The Council submits that the Court's order reflects what the Composting Guidelines say – "at least a 1 in 10 year 24 hour rainfall event". The fact that the agreed final consent orders reflect a narrower restriction in order 5.2 represents no judicial determination of any issue concerned with additional wet weather storage. 5. In these Class 1 proceedings the Court is exercising the statutory function conferred by the EPA Act. This statutory function cannot be restrained by the injunction given earlier, particularly when it is recognised that the particular surcharge storage area proposed as part of this development application was not considered in the Class 4 appeal. (Albeit, a finding for additional storage in this appeal is not inconsistent with the order of the Court in the Class 4 proceedings.) 6. Having found no estapol I must now determine the appropriate surcharge storage area; and whether there needs to be an engineered clay liner in the leachate dam and the surcharge area? These matters are dealt with under the next heading. (4) Power to impose conditions of consent Applicant's submissions – issue (4) 1. The applicant's written submissions set out in general terms the legal principles for the imposition of a valid condition of development consent under the EPA Act. 2. First, there needs to a nexus between the development application and the development consent: Weston Aluminium Pty Ltd v Environmental Protection Authority and Anor; Weston Aluminium Pty ltd v Alcoa Australia Rolled Products (2007) 156 LGERA 283 at [14]. Secondly, for the condition to be valid, it must fairly and reasonably relate to the development for which consent is sought: Lake Macquarie City Council v Hammeersmith Management Pty Ltd [2003] NSWCA 313 at [48]-[58]. 3. In this case the application before the Court does not seek consent for composting operations on the site. The use of the site for that purpose is already approved by the consents granted by the Council in 1986 and 1988. Therefore, it contends that there is no nexus between the application and the imposition of the Council's proposed operational conditions of consent. They are unfair and unreasonable and invalid because they do not relate to the development the subject of the application under review. Council's submissions – issue (4) 1. The Council agrees with the applicant's summary of the case law in respect of the imposition of valid conditions under the EPA Act. 2. It submits that the general conditions power under s80A (1) (a) of the EPA Act allows for the imposition of a condition if it relates to any [section 79C] matter of relevance to the development application the subject of the consent: Botany Bay City Council and Saab Corp Pty Ltd [2011] 82 NSWLR 17. And, in some cases it extends to the imposition of conditions which require the modification of development carried out on land: Carr v Minister for Land & Water Conservation (2000) 109 LGERA 175 at 188 at [55] Pearlman CJ. Section 80A (1) (c) empowers the Court to impose a condition, where appropriate, to require the modification or cessation of development including; the removal of buildings and works used in connection with that development carried out on land - whether or not being land to which the development application relates. Further still, conditions may be imposed which require carrying out of works ( whether or not on the subject land or any other land ) in relation to any s79C matter of relevance to proposed development : s80A (1) (f). 3. The Council submits that to the extent that its proposed conditions require modification of some of the existing operations of the site to deal with water management or odour management they are clearly authorised by s80A (1) (c) and/or s80A (1) (f) of the EPA Act. Apart from the likely impacts on the environment the Council also submits that the conditions proposed arise under s79C because of the terms of the Council's Development Control Pan Cl3.7 (particularly control 3), cl 2.10 (particularly control 4) and 4.6 (Exhibit 1, Tab9, DCP pp8-9). 4. And, with respect to the argument, founded on the line of authority of Mison and Ors v Randwick Municipal Council and Ors (1991) 23 NSWLR 734, that the conditions are inappropriate because they leave open the possibility of different development being carried out the Council makes the following submissions: 1. First, the development proposed is not being altered by conditions either at all, or any in some uncertain way. The leachate management system is not proposed to be altered at all. The use of the existing bunding is not proposed to be altered. The use of the dam is not proposed to be altered. The office, weighbridge and car parking and not propose to be altered. 2. Secondly, to the extent the conditions contemplate new matters in addition to the proposed development, namely the lining of the dam and surcharge area, and the alteration of the capacity of the dam/surcharge area; they can be done in a clearly defined way. These aspects are not uncertain. They can be imposed under section 80(1) (a) and or (1) (c). (Although, in the ultimate the Council agreed that in view of the applicant's firm attitude against a reduction of the catchment of the leachate dam, it would not press for reduction of the catchment through conditions). 3. Thirdly, the requirements through conditions that matters of direct relevance to waste and odour management be defined in management plans, and those plans adhered to, involves no uncertainty, when regard is had to the unconstrained terms of the 1986 and 1988 consents. What was consented to, and will remain the case, is use for a composting facility. If anything, the imposition of conditions to adhere to management plans will reduce uncertainty about the way the development is operated. 4. Fourthly, the significance of the Mison principle requires recognition that the EPA Act has since been amended to substitute section 80 A, and in particular subsection 4. Clearly the legislative intent, through this subsection is to provide for a different manner of imposition of conditions by reference to outcomes or objectives. (CWS at [77.1]) 1. In the ultimate, the Council submits the Court must assess an application having regard to all relevant matters under s79C on the evidence and, where appropriate, can lawfully impose conditions requiring an operation to be conducted according to the procedures (defined by the applicant) that will achieve an environmentally acceptable outcome. This includes opportunity, where appropriate for the imposition of deferred commencement conditions. Finding – Issue (4) 1. I accept on the authority of Saab at paragraph [8]-[20] that the validity of a condition imposed on a development approval under the Environmental Planning and Assessment Act 1979 (the EPA Act) falls to be considered within the terms of s 80 A of the Act. Section 80 A empowers the consent authority to impose a condition under the general conditions power if "it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent": Section 80 A (1) (a). 2. Section 79 C (1) identifies general matters for consideration by the consent authority in determining a development application. Those matters include "the likely impacts of that development… on both the natural and built environments, and social and economic impacts in the locality": s 79C (1) (b). 3. As stated in Saab this will obviously involve matters of evaluative judgement for the consent authority in respect of any specific condition, and there may be a question as to how distant, remote or indirect the relationship may be between that development and the likely impacts on the environment. The limits of the consent authority's power is explained by Gummow and Hayne JJ Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30;137 LGERA 232, at [93] referring to the judgement of Walsh J in Allen Commercial Constructions Pty Ltd v The Council of the Municipality of North Sydney (1970) 123 CLR 490 at, [93] in the following terms; "His Honour had pointed out that a power to attach conditions to development consents was to be understood as a power to impose conditions reasonably capable of being regarded as related to the purpose for which the functions of the responsible authority were being exercised; that purpose was to be ascertained from a consideration of the applicable legislation and town planning instruments rather than from some "preconceived general notion of what constitutes planning". 1. On one view the test may be described as objective in the sense that the statutory regime and circumstances of the case will dictate the limits of the power to impose a condition under s80 A. In relation to local councils the importance of identifying a legitimate purpose was identified in Council of Sydney v Campbell [1925] AC 338 at 343 PC and the Council of the Shire of Werribee v Kerr (1928) CLR 1. That requirement in the present appeal is in my assessment satisfied so long as the conditions imposed by the Court can be said to relate to the impacts generated by the proposed development including the leachate management system and other the works as described in the Application (Exhibit B). 2. In my opinion the Council's conditions directed to water management and odour management clearly relate to s79C matters of relevance to the development the subject of the consent. They do not fall foul of the line of authority in Mison. The conditions are certain enough and do not alter the development sought but deal with matters clearly related to the application. 3. I cannot accept, as submitted by the applicant, that what the Council is proposing is something other than consent to the application under review. The DA is seeking approval to use environmental control measures which are on the site in circumstances where there's an approval to operate this site without those controls (T9; 22-24). In my opinion the conditions proposed by the Council only seek to make such "environment controls measures" meaningful in achieving appropriate odour and water management of the activities on the site. Moreover, the Court has power to impose conditions that "…adequately address the risks to the environment associated with development". That is, final conditions can "…implement a precautionary, adaptive management approach, yet still meet the criteria of finality and certainty" per Preston CJ, Newcastle &hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (No2) [2010] NSWLEC 104 at [11]. 4. Accordingly, I find that the Court has power to impose the conditions sought by the Council in Exhibit 5 on the evidence before the Court. Let me now explain my understanding of the evidence and my findings in that regard. (a) Water – runoff co- efficient 1. The applicant accepts, that the Composting Guidelines require sufficient storage capacity to contain run off or leachate generated by a 1-in-10 year 24 hour storm event. It is also agreed that such a storm on the site is equivalent to 168mm of rainfall. Although as already noted, Dr Perrens has calculated the run off co-efficient at 0.66. Mr Jamieson considers it to be 0.8 (exhibit 9 paragraphs 28). 2. The evidence is that Dr Perrens' calculated co-efficient is based on two particular storm events – 4-7 January 2016 and 5 to 6 June 2016 (Exhibit F, Dr Perrens' report dated February 2017 at [11] and appendix 4, p4) and is derived from comparing changes in recorded water levels in the leachate dam against known rainfalls recorded by the Bureau of Meteorology. Using this method Dr Perrens identified that the runoff co efficient for those two events was 0.71 (Jan 2016) and 0.48 (June 2016). These data points were then plotted on a curve, with the shape of the curve based on Table 2 of the Blue Book (Exhibit 7 – extract from Soils and Construction, Vol 1- managing Urban Stormwater) and a co efficient of 0.66 was derived. Based on these investigations Dr Perrens told the Court that the soils on the site "behaved like" Group A soils. He was careful not to say that the soils were in fact Group A soils. 3. The Council contends that the recorded water levels relied upon by Dr Perren to derive a co- efficient were unreliable. The evidence is that up to 10 February 2016 ( and covering the 2016 storm event) the daily log sheet recorded levels were not made by reference to the water level gauge installed in late 2015, but by reference to a percentage of some undefined 100% capacity level. The reliability of theses visual estimates recordings is questionable. Dr Perrens did not make any observations and there is no evidence of how the observations were made, the reference point for the percentage estimate. Given the bowl like shape of the leachate dam, at high water levels the experts accepted that even small differences in the water level equates to significant differences in volume. 4. With respect to the period 27 December 2015 to 11 January 2016 the site was unmanned (Exhibit 9 paragraph [40]). Moreover, Dr Perrens conceded in his oral evidence that the water levels recorded and provided to him may have been filled in after the event from the water level observed after 11 January 2016. The Council quite properly submits that this raises some concern about the reliability of such recordings underlying Dr Perrens' conclusions. The Council submission is "How that could be reliably done in a preceding 2 week period of significant rainfall, where water must be flowing to the leachate dam is unexplained" CWS at [14.2]. For the period after 11 January 2016, recorded water levels are recorded in the daily log sheets by references to 0.1m increments. However, the water gauge is only marked in 0.5m increments. The recordings of water levels by reference to the gauge must still therefore reflect a level of estimation. 5. Assuming the recorded levels after 10 February 2016 were correct there remains unexplained anomalies. For example, between 21 and 22 March 2016 there was 19.4mm of rainfall and no water usage on windrows or for dust control and no removal of water from the site (Exhibit F – Dr Perrens report February 2017, appendix 4 p5). Yet, the water levels recorded indicate a drop in volume of 200,000L. For the period 20 -21 June 2016 there was 40.2 mm of rainfall no water usage on windrows or for dust control and no removal of water from the site. However, again the recorded water levels demonstrated a drop in volume of 200,000L (Exhibit F, appendix 4, p6). Between 20 and 21 July 2016 there was 30.8mm of rainfall, no water usage on windrows or dust control and no water removal. The rainfall recorded was unchanged (Exhibit F appendix 4 p7). Between 23 and 24 November 2016 there was 0.2mm of rainfall , no water usage on windrows, or for dust control no removal of water but recorded levels indicate 200,000 L (Exhibit F appendix F, p9). 6. Based on the above the Council submits that Dr Perrens' opinion of the runoff co efficient is not based on sufficiently reliable records of water levels. In that circumstance Dr Jamison's evidence must be preferred. In that regard, it is perhaps not unsurprising that during the course of the hearing the applicant ultimately accepted Dr Jamieson's co efficient of 0.8. That said; let me explain Dr Jameson's evidence about this matter. 7. Dr Jamieson's runoff co- efficient at 0.8 based on the Blue Book (Exhibit 7). His unchallenged evidence was that the soils of the site were between soils groups C and D – which is apparently the classification for most soils along the eastern coast of Australia. Table F2 of the Blue Book identifies that for soil groups C and D the runoff co-efficient for a storm of 61-80 mm over 5 days is 0.7 and 0.79 respectively. Accepting, as a matter of logic, that the more intense the storm – a larger quantity of rainfall and/or over a shorter period of time, the run off co efficient would be higher the Council submits that the storm required to be considered by the Composting Guidelines is both larger in terms of rainfall (more than double that identified in Table F2) and far shorter (24 hours over 5 days). Therefore, the Court can comfortably conclude that the runoff co efficient for the 1-in-10 year 24 hour storm will be higher that range the 0.7 to 0.79 applicable to a storm that is less than half the size and which is spread out over 5 days. 8. Dr Perrens in his evidence extended the co efficient curves for larger rain events for each soil group (Exhibit 7). Figure 1 in Exhibit 7 shows that for a storm event of 168mm the runoff co efficient lies between 0.85 and 0.9 for soil groups C and D and does not fall below 0.8 for soil C until the storm is less than 130mm. Therefore, based on Dr Perrens assessment in Figure 1 the Council submits that the Court can accept Mr Jamieson's opinion that a runoff coefficient of 0.8 is conservative. 9. The resulting storage volume to cater for the 1-10 year 24 hour storm on a run off co efficient of 0.8 is 7,100m 3 (Exhibit 9, at [30] ). And, although the applicant has agreed to provide 7100m3 storage it has only offered to provide additional wet weather storage of 2500m2. The Council believes that the run off co efficient of 0.8 remains relevant for the quantification of any additional wet weather storage yet the applicant has elected not to accommodate this in its calculation of additional wet weather storage. (b) Water - Additional storage 1. Dr Perrens is of the opinion that the Composting Guidelines only require storage for the 1-10- year, 24 hour storm and no more. He is referring to the specific design requirement for the leachate dam in the Guidelines which provides: If the leachate dam or tanks are open top, they must be capable of at least accepting the run off or leachate generated by any 1-in 10 year 24 hour period storm event without overflowing (My emphasis) 1. In contending that additional wet weather storage is not required Dr Perrens focussed upon the word "any" in the design requirement. Whereas the Council contends, when read as a whole, that the requirement of the Composting Guidelines is to "at least" accommodate any 1-10 year, 24 hour storm, a minimum design requirement, all of which is directed to preventing overflow from a composting facility and, therefore, the pollution of water (Composting Guidelines pp10-11). 2. Despite the difference of opinion in the expert's interpretation of the design requirement, Dr Perrens recognised in real terms the need to accommodate the likelihood of rainfall before, during or after a 1-in 10 year 24 hour storm event. In short, he agreed with Mr Jamieson that a daily water balance: … needs to take into account the likely range of climatic and operational conditions that determine water usage, leachate runoff volumes and the volume of leachate that can be transported from the site over the proposed duration of usage of the Leachate Dam. 1. In his evidence, Mr Jamieson identified at least 30 occasions in the last 90 years when monthly rainfall exceeded 300 mm. Five such examples were identified in the joint report. He also produced to the Court a full historical monthly rainfall record for the period 1903 -2017 produced by the Bureau of Meteorology that demonstrated that there were about 45 such occasions (Exhibit 14). 2. The Council contends on the historical rainfall data that there have been and will be occasions of sustained rainfall which will affect the ability to contain the 1-in- 10 year, 24 hour storm when it occurs. Such rainfall can occur before or after the design event. 3. As to operational conditions, there is limited ability to remove water from the site by tankers – the evidence is that the maximum daily amount of water that has been moved off site is 184,000 L (or 184m3) (Exhibit 2 at [78] which Dr Perrens confirmed in his oral evidence), and the amount of water usage on windrows dust suppression is only of the order of 50 m3 a day (Exhibit 9 at [49]). (As I understand it the applicant is presently required under Order 6.2 of the Class 4 orders, as an interim arrangement, to truck a minimum of 250 m3 per day once water exceeds 7m AHD in the leachate dam (Exhibit 1, tab 1). While there is no evidence about the amount of water that can practically be removed from the site the Council submits that it must be greater if more tankers are employed, up to some physical limit and time for loading. 4. With these types of weather conditions in play the Council submits that compliance with the Composting Guidelines requires the provision of additional wet weather storage to prevent overflow and pollution. It does not require the acceptance of an extreme scenario, as was suggested by the applicant's advocate in cross-examination of Mr Jamieson, to conclude that his quantification of the volume of additional wet weather storage referenced to historical data may occur into the future. 5. Ultimately, Mr Jamieson refined his qualification of the volume of additional wet weather storage to 5500m3. About double the area offered by the applicant AWS at [161]. However, in turn this determination relies upon increasing the volume of water that is to be taken off site to 250m3 and strengthening the management procedures to be forward-looking and including steps to reduce water levels in anticipation of predicted storm. 6. I do not accept, as submitted by the applicant that Mr Jamieson's construction of the Guidelines should be disregarded because he interprets the word "any" in the design requirement to accommodate successive 1-in 10 year 24 hour period rain events (AWS at 39-42). Or that his decision to adopt a different interpretation of the Guidelines in an earlier EIS prepared for Remondis Australia Pty Ltd in 2013 undermines his evidence in this case. At the end of the day Dr Perrens accepted there was a need for some additional storm storage area on the site, irrespective of his view that it is not strictly required by the Guidelines. The design requirement is open to different interpretations and in the circumstances it is academic whether the EPA could have been clearer about a requirement for such additional storage over and above the 1-10 year 24 hour storm event. As it happened, Mr Jamieson did not strictly apply this interpretation of the design guideline as stated earlier, he refined his assessment to a storm surcharge area of 5500m3 (plus trucking if required). His analysis was based on historical rainfall data and therefore does not in my assessment promote an "absurd result" at AWS [48]-[49]. Nor do I find that his analysis to be unfairly skewed because he captured 30 months where rainfall exceeded 300mm - the 5 months arbitrarily including the month with the highest rainfall ever recorded – February 1990 621.5mm, which more than doubled his own criterion of 300mm (AWS at 46- 49). This level of rainfall is a fact irrespective of the likelihood of it happening in the near future. 7. The evidence is that the reduced surcharge volume at 5500m3 can be easily accommodated on the site (Exhibit at paragraphs 65-66) and located wholly within the surcharge storage area coloured yellow on the site plan (Exhibit B , Tab A sheet 1of 6) including the provision of the required lining under the Composting Guidelines. (Although, Mr Jamieson suggests that a more sensible design would be to extend this surcharge area to the south-west over the part of the grassed area bounded by the current and proposed concrete swale drain. This would mean the excavation would be shallower than if confined only to the yellow area). 8. The Council contends that if the Court does not impose additional wet weather storage beyond the 1-in-10 year 24 hour storm then every time that the rainfall before after such an event caused the storm capacity to be exceeded there would be overflow into the receiving environment – pollution. The polluted nature of the leachate, which has been sampled, is not seriously in dispute (Exhibit 2 pages 3 and 6). 9. The Council contends that additional wet weather storage, if provided will detain the run-off and leachate from the combined effect of sequential wet weather events, up to a certain point the additional wet weather storage provides the opportunity to either utilise the water on-site or allow its removal off site by truck. This will lead to fewer occasions on which there could be overflow and pollution. It submits that the Court should find that additional wet weather storage is required and that the volume of such storage should be not less than 5.5 ML, in conjunction with the requirements to remove at least 250 m³ of water a day when the water level in the dam reaches a defined level and an operational management plan to provide for removal of water in anticipation of predicted storms having regard to the prevailing leachate dam water level. 10. The purpose of the development is to address water and odour. Both water experts support the provision of additional storm surcharge capacity on the site (albeit at different capacities). In this case I prefer Mr Jamieson's evidence and recommended surcharge area to that proposed by Dr Perrens for the reason stated. (c) Lining of storage areas 1. Dr Perrens and Mr Jamieson agree that there is sandstone underlying the leachate dam. The geotechnical joint report confirms this (Exhibit 9). 2. The author of the report Mr Tavasol, was not qualified as an expert in the proceedings, nonetheless he was relied upon by the applicant. His geotechnical assessment records that he "expects" that the sandstone profile will behave in a way that complies with the permeability criteria required. Dr Perrens relies on his the opinion to argue that there is no need for a lining of the dam. Mr Tavasol's evidence assumes that there are no natural faults or defects in the sandstone however, at the date of the geotechnical investigation I am told that there was approximately 1.2 m of water in the dam itself (Exhibit 9 paragraph 6). The Council contends there cannot have been a proper opportunity to make observations of the condition of the sandstone at the dam base under 1.2 m of water to make good Mr Tavasol's expectation. 3. The geotechnical assessment does not assert otherwise and only comments on the observation of the exposed sandstone which cannot have been the dam base. 4. In relation to the embankment surrounding the leachate dam – which extends to the north east to form one side of the proposed storage surcharge area - there is no information about how it was constructed (Exhibit 9 paragraph 11 to 16). In the geotechnical assessment one sample was taken from the embankment (BH 104) and the evidence is that it did not comply with the permeability requirement (Exhibit B, tab D page 69). It is accepted that the sample is not representative of in situ permeability. The Hunter geotechnical testing – taken at an earlier time refers to testing in an unknown location and is therefore of no assistance. 5. With respect to the surcharge storage area, the geotechnical assessment identifies that there are clay layers of thickness greater than 900 mm required by the Composting Guidelines. However, the clay layers have not been constructed with a re compacted clay layer 900mm thick to eliminate natural defects or flaws and do not comply with the composting guidelines (Exhibit 9 paragraph 21). 6. The Composting Guidelines make no distinction in the lining requirements - where the area is to function as storage it must be lined. The requirement is not in dispute. And, while Dr Perrens indicated that in his assessment of the area was "adequate for intermittent leachate storage" (Exhibit 9 paragraph 20) if that requirement is not achieved the storage area may leak. 7. I do not accept the applicant's submission that the opinions of Martens Consulting Engineers and Hunter Geotechnics can satisfy the Court that additional lining is not required based on the evidence for the reasons outlined. There has simply been no satisfactory investigation of the base of the dam and the findings of the surcharge area suggest that it is inadequate. Conclusions 1. Based on my understanding of the evidence about water, as summarised, I find that both the leachate dam and the surcharge area need to be appropriately lined in accordance with the Composting Guidelines. The water experts have agreed certain works to resolve the inadequacies of the leachate dam liner (Exhibit 9 paragraphs 22 -25) and there is no reason not to require this work to be undertaken. Similarly, the surcharge area needs to be compliant with the Guidelines – "intermittent storage" is clearly unacceptable where water pollution is likely consequence. 2. In my opinion Dr Perrens' evidence in respect of the water storage on the site is of little assistance because it was based on unreliable records of water levels at the dam and trucked water removed from the site. On balance I prefer Dr Jamieson's assessment of the additional wet weather storage area at 5500m3 (subject to any adjustment to accommodate any volume loss from the leachate dam from relining). I am also of the opinion that there should be detailed management plans which include the removal at least 250 m³ of water (by defined conditions and a set of measurements defining anticipatory reductions in water level) having regard to the daily water level and any forecasted storm events in the following week. 3. I accept that there is adequate space on the subject site to accommodate such water surcharge volume in the footprint of the temporary surcharge area coloured yellow on the site plan extended south-west to the bounds of the existing propose concrete swale drain. (a) Odour management 1. The objectors to this application complain about offensive odour. The applicant seeks to address this to modify the operations on the site to include a leachate management system (LMS) (Exhibit G pages 5 and 6). The purpose of the LMS according to the evidence is to divert dry weather flows of leachate into a treatment tank, and to capture an initial amount of wet weather flow. The LMS was identified in the Odour Emissions and Mitigation Study as a significant odour mitigation option (Section 8, commencing at p35). In August 2015 Mr Assal's firm prepared the odour Management Plan dated August 2015 which is Exhibit N. It was submitted to the EPA in December 2015 as part of the EPA's continuing regulation of the facility. In October 2016 Mr Assal and his colleagues prepared and approved an Odour Impact Assessment, which is Exhibit D in support of the DA. The LMS is referred to and described in that document as the proposed odour mitigation strategy. 2. In February 2017, Mr Assal's statement of evidence (Exhibit G) was filed. It included as Figures A and B, the proposed details of the LMS addressing odour contentions. Mr Assal at that time said that that it is consistent with the DEC Composting Guidelines and that it will significantly reduce emissions from the site and , indeed that " [a]s a result the impact on the amenity of the neighbours properties from the leachate related sources will be significantly reduced by more than 98% based on the emissions data" (Exhibit N , p54th dot point; section 1.1on pp5-6;section 2.3 on p10;section 3.6 on p16 and , most importantly , section 3.8 on pp17-22). The applicant submits that this evidence should satisfy the Court that the installation and operation of the LMS should proceed without delay and should not be deferred by the provision of more and yet more reports. 3. That said, the applicant is willing to accept a condition requiring it to install the LMS within a specified period. The applicant has proposed a form of condition on certain premises AWS at [106] – [117]. 4. The Council accepts that the operation of the L5 odour units at isolated receptors will be an improvement however, odour performance on the site will not achieve the odour units (OU) criteria agreed by the odour experts at 2 OU at receptors to the edge of any urban area and up to 5OU at isolated receptors (with Exhibit 3 paragraph 15). 5. It contends that the evaluation of overall odour performance requires consideration of all odour of sources from the site. This was agreed by the experts (Exhibit 3 paragraphs 10, 12, 13, 15, 15 a, 15 c). As the experts explained in their oral evidence to the Court their modelling demonstrated that at the edge of the urban area the odour performance would be 5OU, which was 2.5 times the acceptable performance level (Exhibit D page 23). The applicant's expert Mr Assal, during his oral evidence and contrary to the agreed position in the joint report (Exhibit 3 paragraph 15 b) told me that the EPA's Technical Framework – Assessment and Management of Odour from Stationary Sources in New South Wales (Exhibit K clause 1.6 page 9) odour criteria should not be used as a regulatory tool. While Mr Todoroski, retained by the Council, stated that the application is for a moderate modified activity on the site and clause 1.5 of the technical framework envisages the use of odour criteria to both assess the acceptability of a proposal and to inform development consent conditions. 6. While clause 1.6 of the technical framework provides that the odour criteria would not be applied to an existing operation if operated without a problem it states that these criteria may be used to help with assessing the likely impacts when odour complaints or problems do arise and to develop odour mitigation strategies as required. 7. The Council submits that it is clearly appropriate for the odour criteria to be considered in the current circumstances given the extensive history of complaints and findings of the Court. Mindful that in the best case scenario the odour operation of the site (including the proposed LMS) will not result in an acceptable performance against those criteria it invites the Court to find that the base best case scenario is one that does not reliably model the operation of the site as proposed. It submits: * the unrealistic reduction (in the order of 66 times, from 40.6 to 0 .61 SOER) in odour emission rate from the green waste retrieval area is unsupported by any analysis in the odour assessment or management reports in evidence. * The only explanation given by Mr Assal in cross-examination, which amounted to an assumption, was that the odour performance of the green waste pile covered with oversized bio-layer would achieve precisely the same odour performance of the mature oversized stockpile – Table 2.5. * As Mr Todoroski stated, this assumption implies the bio layer is 100% effective in preventing the emissions of the greater odour from the green waste material, which is impossible. His own experience suggests, at best, it may be 50% effective. But this is dependent on the thickness of the covering layer and the shape of the pile – if the pile was too steep, a sufficiently thick covering layer could not be consistently establish. His personal observation made on the site view was that the layer was perhaps 2 inches, whereas a layer of approximately 300 to 500 mm thick is needed to achieve a 50% reduction the odour emitted from fresh green waste material. * The reduction in odour emission rate from the leachate dam (from 14.9 to 0. 03 SOER) was unsupported by any analysis. The limited capacity of the LMS – 350,000 or 350m3) is to be contrasted with the greater volumes rainfall the fall on the site – 1 in 10 year 24 hour event on Mr Jamieson's run-off coefficient – 7100m3. * As it happens, the constraint on the LMS capacity is not from its overall capacity but the initial capacity provided by sumps S1 and S2 and the maximum rate of pumping out from the high level pumps. Mr Assal accepted that the vast majority of the volume of that 1-in-10 year 24 hour event would overflow the LMS and end up in the leachate dam. * Council submits that the result would be a dam filled with leachate containing organic material – not dissimilar to the water level of the dam sampled by Mr Assal in May 2013 (Exhibit D p18 and Exhibit P p28). * While Mr Assal told the court that he believes that the water in the leachate dam would be heavily diluted and therefore less odorous he conceded that water leaching through the compost later in the storm would continue to pick up organic material. Mr Assal made no assessment of how much leachate would be produced in a storm and initially caught by the LMS and how much would go to the leachate dam - he deferred to the water experts in that regard. His opinion that the leachate reaching the leachate dam would be diluted and therefore not likely to be odorous was ultimately not based on any satisfactory evidentiary basis or reasoning. 1. The Council submits that the Court should not accept Mr Assal's opinion of dilution as establishing that the 'best case' scenario for the leachate dam will be the outcome, and certainly not the almost complete (less than 98%) reduction in the SOER between the 'worst-case' and the 'best case' scenarios. 2. It submits that the overwhelming majority of a large storm including the one in 10 year 24 hour event will continue to pick up organic content and reach the leachate dam the conditions will result in high levels of water in the leachate dam and more closely resemble the overloaded dam that was sampled in May 2013 as the worst-case scenario than the drained out odorous best case. Mr Assal accepted that in respect of the leachate that even reaches the treatment tank (compared to flowing directly to the leachate dam) there will be insufficient contact time for any meaningful biological treatment to occur. Although Mr Assal believes that the organic matter in the dam could be prevented from becoming anaerobic by aeration - aeration of the leachate dam or surcharge area was not part of the present application and the details were unknown to Mr Assal – although desirable. 3. Ultimately, the Council submitted that the odour performance of the site as proposed to be modified would be worse than the best case scenario and the likely outcome more closely aligned to the worst-case given the relative magnitude of odour contribution from the green waste retrieval area and the leachate dam to the overall odour emission performance of the site (exhibit D pages 20 and 22). 4. Despite the odour evidence the Council did not contend that the operation of the site cannot be arranged so as to achieve an acceptable odour performance. Rather it endorsed the recommendation of the odour experts for a further more rigorous odour audit with dispersion modelling and any necessary design operational changes to be made to conform to the 2OU /5OU criteria. And, given that the further audit process is still predictive, the Council also accepts Mr Assal's suggestion that it is appropriate after 12 months of operation of the modified site for the predicted outcomes to be verified by a further audit. These recommendations of the applicant's expert are provided for in Council's without prejudice conditions. Based on the oral evidence of Mr Assal I believe that the Council's conditions are appropriate in this case. Should the applicant be allowed to use the Leachate dam? 1. The applicant submits that the leachate dam is an important part of the LMS but independently it is an important environmental control on the site. 2. The applicant asks the Court to permit it to use the leachate dam in the interim. It submits that the Court should have no reservation in doing so provided that there is a reasonable time limit imposed on the installation of the LMS. The applicant is intent on having the LMS installed reasonable promptly and would accept a condition imposing a reasonable time frame for that to occur. In the interim, the leachate dam, while imperfect in the absences of the proposed LMS is nevertheless an environmental control which would facilitate the control of odour and leachate runoff of it is permitted to be used. 3. It is further submitted that the Court should not be concerned that by granting consent to the use the leachate dam without deferral there would be any material risk of a repetition of the problems that occurred when the leachate dam became anaerobic in early 2013 ( Exhibit P). It is submitted that there is no evidence to suggest that those problems persisted in the period after they were experienced in 2013 and the evidence establishes that , with the benefit of the Odour Emissions and Mitigation Study and the Odour Management Plan , to the satisfaction of the EPA, significant changes were made to the operating practices on the premises , including the use of the aero-sorb system to cover the compost piles and keep them aerated (AWS at [93] referring to Mr Assal's evidence in Court on 7 April 2017 Exhibit D pp16-23). 4. Needless to say, the Council does not accept any interim use of the dam in its present state. 5. For the reasons stated earlier, Mr Assal's final evidence to the Court did not give me comfort that it is appropriate to allow the leachate dam to be used for active storage or re application of leachate until the proposed LMS system is installed. In fact, I have grave doubts based on his evidence of the adequacy of the proposed LMS system without further investigations. Coupled with the evidence about the inadequacy of the lining of the dam it is my considered opinion that the dam should not be used pending further investigation as proposed by the Council's deferred commencement conditions. 6. The applicant strenuously objects to the imposition of deferred commencement conditions on the consent and submits that standard operational conditions of consent are appropriate. It sets out in detail the basis of this submission at [77] - [81] of AWS. Briefly stated it submits that the site is currently operating as an approved composting facility under the DA granted in 1886 and 1988. It has operated for 30 years and the applicant is not aware of any instance where the Court has imposed deferred commencement conditions in relation to the ongoing operation of an approved facility. It submits that the evidence does not suggest that there is any material risk that the use of the leachate dam would cause any offensive odour or any other harm to the environment. Moreover, the prohibition of the use of the leachate dam pending approval of the LMS is "…undesirable because, if the leachate dam is not used to reapply to the compost it is both prejudicial to the composting operation and prejudicial to the managing the water level in the leachate dam "AWS at [79]. 7. Regrettably, for the applicant the dam is not approved and I am not satisfied on the evidence for the reasons stated that it is able to be used until the Council's deferred conditions are satisfied as they address the shortcomings of the current proposal. 8. The applicant cautions me against deferring the installation and operation of for the LMS. And, while I accept that "it is uncontentious that the primary purpose of the propped LMS is to control and mitigate the emission of odours from the site" after weighted consideration of the evidence I am of the view that the interests of the public and the parties is not served by requiring the installation of a LMS system which on the evidence is inadequate. The applicant contends that it would be contrary to s79C to defer installation until the preparation of further reports. In my opinion it would be contrary to my obligation under s79 C to approve the LMS as currently proposed. 9. The applicant's submissions about the impacts of my determination in this Class 1 appeal for the Class 4 appeal are not relevant. I am dealing with a development application under the EPA Act and the current operation of the site, independent of this application, is not a matter under s79C. It is a matter for the applicant how it conducts the existing use on the site under the current consents. With respect to the DA sought to be approved in these proceedings as stated already the deferred commencement conditions proposed by the Council are necessary to ensure that the development is acceptable after assessment under s79C. Further assessment to inform operational plans and conditions can and ought to be prepared as suggested by the Council and supported the evidence. Simply stated, on the evidence as it presently stands I would not be prepared to approve the DA but for the imposition the deferred commencement conditions. Conditions 1. At paragraphs [16] – [48] of its written submissions the applicant addresses in detail the Council's proposed conditions. In addition to the objection to the deferred commencement conditions generally it also is critical of the drafting of several of the conditions. By way of example the applicant contends that condition 5 requiring an update air quality assessment report which must meet certain criteria, which in principle it accepts. As drafted; the sub paragraphs are inconsistent with the principle obligation and consequently they create material uncertainty as to the ambit of the obligations imposed. Put simply the applicant submits that the criteria listed to inform the plan required under the condition read as separate obligations. For example, under 5.6(b), when the sub- paragraph is only intended to identify what matter the air quality assessment report should address, the requirement for the plan to nominate a "maximum annual tonnage of material that can be accepted for composting" is intended to be a de facto condition in its own right restricting the operation to a nominated tonnage of material. This is uncertain and the uncertainty is unfair and prejudicial to the applicant (AWS at [98] - [103]). 2. It submits that conditions 6-9 are of the same character and therefore should not be imposed. 3. I have considered the suggested changes proposed by the applicant and do not accept them. They ignore the weight of the evidence which suggests that more work needs to be done before the dam and the LMS are operative. Based on the evidence before me I am satisfied that the Council's proposed conditions not only relate to the development the subject of the application but are both reasonable and appropriate and meet the finality and certainty requirements of the EPA Act: Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited 9 (No 2) at [11]. As the current use of the site is effectively unconstrained and the development seeks to control leachate and odour I must assess the likely overall impacts from the leachate and odour arising from the site under s79C. As the Council submits integral to the performance of the leachate management system are the operational aspects of how composting is carried out on the site – in terms of amounts , sizes of windrows and their chemical and physical properties . These operational aspects must necessarily be assessed as they are relevant to development before the Court. The Council's draft conditions do quite appropriately include operational conditions focussed on controlling adverse odour and water pollution and unacceptable noise associated with the development in this application. There is no usurping of the EPA's role in regulating the site under the POEO Act as claimed by the applicant at [186] AWS by the imposition of for example conditions 26, 27 or 28. The works referred to in all of the conditions based on the evidence before me relate to the development in this case and not the existing approved use of the site. 4. The objectors have complained about truck noise and queuing outside the site but it is entirely reasonable to impose conditions addressing noise arising from the trucks used to remove leachate water for the site. Conditions 10 and 39 are in my assessment related to the proposed development – which will generate noise from mechanical equipment and truck movements. This consent can modify the hours of operation of the site under s80A. 5. The development seeks to control stormwater and the applicant has proposed a plan to divert stormwater from around the back of the western shed to the dam. Condition 34 is appropriate. So too are conditions 20 and 21 - controlling emissions and wash bay construction and operation as these works also generate water and thereby relate to the development. 6. The applicant complains that the timeframe to provide reports and plans under the deferred commencement conditions is too restrictive as some reports/investigations will require up to 12 months to complete. I have no evidence to support such a proposition. Conclusion 1. I consider that the proposed development, if carried out in accordance with the final conditions of consent as outlined is appropriate and should be approved. In forming that view I do not accept the applicant's submission that the evidence does not permit the Court to formulate appropriate conditions that adequately address the risks to the environment associated with the development. The final conditions in this case, including the deferred commencement conditions, implement a precautionary, adaptive management approach; yet still meet the criteria of finality and certainty. They are reasonable and are responsive to the development under review, and thereby within power and appropriate under s80 A of the EPA Act. 2. In order to grant consent it is necessary for the Court to uphold the appeal subject to the Council's conditions in Exhibit 5 amended by my reasons for judgment. 3. Accordingly, the Court orders: 1. The appeal is upheld. 2. Development consent is granted to Development Application DA792/2016 as amended for the development set out in Exhibit B subject to the conditions in Exhibit 5 in respect of land at Lot 84 DP 9632 known as 60 Crawford Road, Cooranbong. 3. The Council is directed to forward to the Court an electronic copy of the conditions of consent (as amended by my reasons for judgment) within 14 days. 4. The Exhibits are returned apart from Exhibit B and 5. __________________________ Susan Dixon Commissioner of the Land & Environment Court ********** Amendments 15 January 2018 - Corrected numbering of issues in headings at [61] and [70]. 16 January 2018 - Corrected typographical errors at [137], [138], [140], [142], [143] and [144]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 January 2018