Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26 (2025) QPELR 1

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26 PARTIES: CLEANAWAY SOLID WASTE PTY LTD (appellant) v IPSWICH CITY COUNCIL (respondent) And QUEENSLAND ELECTRICITY TRANSMISSION CORPORATION LIMITED TRADING AS POWERLINK QUEENSLAND (first co-respondent by election) And CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING (second co-respondent by election) And DR CORNELIA TURNI (third co-respondent by election) And ROSEMAREE THOMASSON (fourth co-respondent by election) FILE NO: 4101 of 2019 DIVISION: Planning and Environment Court PROCEEDING: Applicant appeal against refusal ORIGINATING COURT: Planning and Environment Court of Queensland, Brisbane DELIVERED ON: 20 June 2023 DELIVERED AT: Brisbane -- 1 of 99 -- 2 HEARING DATES: 10, 12, 13, 14, 17, 18, 19 & 31 May 2021 1, 2, 3, 4, 7, 8, 9, 10 & 11 June 2021 26, 27, 29 & 30 July 2021 Further written submissions provided on 5, 6 and 18 August and 12 October 2021 JUDGE: Williamson KC DCJ ORDER: 1. The appeal is dismissed. 2. The respondent’s decision to refuse the appellant’s development application, communicated by way of amended decision notice dated 4 November 2019, is confirmed. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application seeking approval to expand an existing landfill and resource recovery facility – whether the proposed development will have an unacceptable environmental impact – whether the proposed development will have unacceptable amenity impacts – whether the proposed development complies with the respondent’s planning scheme – whether the proposed development complies with a Temporary Local Planning Instrument - whether there is a need for the proposed development – whether an approval would act as a disincentive for investment in resource recovery – whether there are additional matters favouring approval – whether the development application should be approved or refused in the exercise of the discretion under ss 60(2) and (3) of the Planning Act 2016. LEGISLATION: Integrated Planning Act 1997 ss 1.2.1, 1.3.3 & 2.1.3 Planning Act 2016, ss 3, 4, 8, 23, 45, 59 & 60 Planning & Environment Court Act 2016, ss 43 & 45 CASES: 48 Stuart Pty Ltd (atf 48 Stuart Unit Trust) v Brisbane City Council [2017] QPELR 133 Abeleda v Brisbane City Council (2020) 6 QR 441 Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27 Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 Broad v Brisbane City Council [1986] 2 Qd R 317 Clermont Quarries Pty Ltd v Isaac Regional Council & Ors [2021] QPELR 65 GFW Gelatine International Ltd v Beaudesert Shire Council & Ors [1993] QPLR 342 HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors [2020] QPELR 534 IB Town Planning Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 791 Lane v Gatton Shire Council & Anor [1988] QPLR 49 -- 2 of 99 -- 3 Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management v Fabcot Pty Ltd & Ors [2022] QPELR 309 Wilhelm v Logan City Council & Ors [2021] QPELR 1321 COUNSEL: Mr G Gibson KC and Mr J Houston for the appellant Mr C Hughes KC, Mr J Lyons and Mr B Rix for the respondent Mr D O’Brien KC and Mr J Ware for the second co- respondent by election Dr C Turni self -represented Ms R Thomasson self-represented SOLICITORS: Allens for the appellant McInnes Wilson for the respondent Hopgood Ganim for the second co-respondent by election Table of Contents Introduction .......................................................................................................................... 4 The land and surrounding locality ........................................................................................ 5 Existing approvals .............................................................................................................. 10 Operational difficulties and non-compliance with approvals ............................................. 15 The proposed development ................................................................................................ 21 The statutory assessment and decision making framework ............................................... 23 Planning context ................................................................................................................. 24 The properly made submissions ......................................................................................... 40 The disputed issues ............................................................................................................. 41 Environmental impacts and risk ......................................................................................... 42 Liner integrity and differential settlement ................................................................ 52 Landfill cap ............................................................................................................... 63 Inability to comply with conditions .......................................................................... 64 Groundwater ............................................................................................................. 67 Environmental risk: conclusion ................................................................................ 68 Amenity impacts................................................................................................................. 68 Non-compliance with focal provisions............................................................................... 78 Matters favouring approval ................................................................................................ 83 Exercise of the discretion ................................................................................................... 87 Conclusion .......................................................................................................................... 90 ANNEXURE A – LIST OF ISSUES ................................................................................. 91 -- 3 of 99 -- 4 Introduction [1] The appellant (Cleanaway) owns and operates an existing waste management facility at Chum Street and Rhondda Road, New Chum.1 The facility, which commenced operation under the control of a different entity in the mid to late 1990s,2 comprises a non-putrescible landfill, a resource recovery area and ancillary uses. The use is authorised by a number of planning approvals and an Environmental Authority issued under the Environmental Protection Act 1994. A planning approval issued in 1998 limits, inter alia, the lateral and vertical extent of the landfill. In order to comply with these limits, it was anticipated at the time of the hearing that the deposition of waste in the landfill would cease sometime in 2023. Once this occurs, approvals require the waste to be capped and the resulting landform rehabilitated. [2] In June 2018, Cleanaway made a development application to Ipswich City Council (Council) seeking a suite of approvals that authorise an increase to the lateral and vertical extent of the landfill. The application comprised impact assessable and code assessable components. The public notification process for the impact assessable component attracted 320 properly made submissions.3 On 28 October 2019, Council resolved to refuse Cleanaway’s development application.4 [3] This is an applicant appeal against Council’s refusal. [4] The appeal is one of the three against separate decisions by Council to refuse an application seeking approval for a use involving the receipt and disposal of non- putrescible waste. Each of the applications relate to land in Council’s local government area.5 Save for common issues with respect to need and the waste industry, I heard each of the appeals consecutively. As to the common issues, they were the subject of a joint hearing. Agreement was reached as to the evidence that was cross-admissible for each appeal.6 This body of evidence, in conjunction with common submissions, has been considered in determining this appeal. [5] Council and a number of submitters who elected to co-respond to this appeal (co- respondents) oppose an approval. They each notified extensive reasons for refusal. By the end of the hearing, the reasons for refusal advanced by Council and the Co- respondents were in lock step. [6] The second co-respondent by election (Chief executive) was also active in the appeal, supporting the referral agency response given for the development application. The referral jurisdiction arises in relation to Environmentally Relevant Activities for which approval is sought. The Chief executive’s response is supportive of an approval. It assumes conditions are imposed on any approval granted. [7] The appeal is by way of a hearing anew.7 1 Ex.9.006, paras 4 and 13. 2 Ex.9.006, para 15(a). 3 Ex.6.002, p.7. 4 Communicated by way of an amended decision notice, dated 4 November 2019; Ex.6.002, p.3. 5 The other appeals are Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27 and Lantrak Property Holdings (Qld) Pty Ltd v Ipswich City Council & Ors [2023] QPEC 25. 6 Ex.14.025. 7 s 43, Planning and Environment Court Act 2016. -- 4 of 99 -- 5 [8] It is for Cleanaway to establish the appeal should be upheld.8 The land and surrounding locality [9] The land the subject of the development application9 comprises two (2) lots. It is formally described as Lots 268 and 227 on SP103913 and is irregular in shape (the land). The common boundary between Lot 268 and 227 divides the site into two unequal portions along a north-south axis. Lot 268 is to the west of this axis and is the larger of the two lots at 79.28 hectares. Lot 227 is to the east of this axis and is 55.43 hectares in size. The total site area is 134.71 hectares. [10] A review of a Smart Map contained in a book of maps, plans and drawings reveals:10 (a) the western boundary of Lot 268 adjoins Chum Street; (b) the southern boundaries of Lot 268 and 227 adjoin Child Street and Rhondda Road; (c) the eastern boundary of Lot 227 adjoins a reserve, which varies in width and sleeves the western side of Six Mile Creek; and (d) there are three locations11 on the eastern boundary of Lot 227 (two in the north- east and one in the south-east) where the width of the reserve is narrow such that the land appears to almost adjoin Six Mile Creek. [11] The principal access to the land is via Chum Street. [12] The land is part of a broader area subject to extensive open cut and underground coal mining activities.12 The land, prior to its current use, was subject to underground mining and then open cut mining. 13 Underground mining ceased in 1997 and open cut mining ceased in 2009.14 This activity has left a legacy of voids and underground mine workings. Remnants of this activity include a former mining pit, known as Void 10, which is located in the north-eastern corner of Lot 227. Its location is co-incident with one of the pinch points in the reserve between the boundary of the land and Six Mile Creek.15 The remnants also include underground mine workings, which have been identified and mapped.16 [13] Lot 268 has been cleared, with modest and disturbed areas of regrowth now evident.17 [14] The natural profile of the land, pre-mining, can be extrapolated from a 1972 aerial photograph overlaid with a 2013 cadastral map.18 This document suggests the land had a natural hill profile, with a high point of approximately RL70m AHD in the north-western corner of Lot 268. From this point, there was a gradual fall to the east 8 s 45(1)(a), Planning and Environment Court Act 2016. 9 Ex.8.016, p.6 paras 13 and 14. 10 Ex.1.036, pp.8 and 9. 11 Ex.1.036, p.8. 12 Ex.8.016, p.6, para 15. 13 Ex.9.006, p.2, para 15(b). 14 Ex.8.016, p.6, para 15. 15 Ex.8.016, p.7. 16 For example, at Ex.8.013, pp.367-374 and Ex.8.010, pp.77-79. 17 Ex.8.006, pp.8-9, para 32. 18 Ex.8.016, p.107. -- 5 of 99 -- 6 towards Six Mile Creek (RL35-40m AHD) and to the western boundary (RL50-55m AHD). The fall from the high point of the land to the south was less gradual and irregular. The low point occurs at the south-eastern end of the land, which adjoins the reserve (RL30-35m AHD). Mining activity has removed, in large part, the high point of the land and created a number of voids, which were backfilled (in part) in an uncontrolled manner with mine spoil.19 This is a matter of import for the geotechnical and landfill design experts called to assist the Court in this appeal. [15] The land has been used for a landfill facility since 1996. Cleanaway’s involvement with the use commenced in 2007 after it purchased Lot 268.20 Aerial photography21 confirms waste management activities occupy about 50% of the land area and, save for modest intrusions into Lot 227, are located on Lot 268. The balance of the land comprises artificial waterbodies, ponds and areas of vegetation. [16] The area providing a buffer to Six Mile Creek is a modified landscape,22 but supports pockets of Category C and B regulated vegetation known to be habitat for koala and echidna. It is also suitable habitat for ‘conservation significant’ species.23 The wooded areas surrounding Six Mile Creek, which form a corridor connecting the Brisbane River (to the north) with broad habitat areas around White Rock Conservation Reserve (to the south), provide physical habitat connectivity within, and external to, the land.24 [17] A highly modified tributary of Six Mile Creek runs through Lot 227 via a perched dam and Void 10.25 It was common ground that Void 10 is hydraulically connected to Six Mile Creek. Water levels in the void are consistent with Six Mile Creek, typically at RL16m AHD.26 [18] An extant Environmental Authority authorises the receipt of three streams of waste, namely general waste (including inert construction and demolition waste), limited regulated waste and contaminated soil.27 The facilities and infrastructure to receive, undertake recovery, and dispose of residual waste on the land are as follows:28 (1) a landfill and associated infrastructure; (2) a resource recovery area and associated infrastructure; (3) leachate extraction and landfill gas (LFG) extraction infrastructure; and (4) ancillary land uses such as a weighbridge, administration offices and amenities. The landfill occupies an area of 61 hectares.29 It has been developed in stages through the construction and filling of cells. [19] The landfill comprises 11 cells, which are not uniform in size.30 They are numbered 1, 2, 2B, 3B (described as 3B west and 3B east), 3A, 4B, 4A, 5B, 5A, 5A1 and 5. Cell 1 is located in the north-eastern corner of Lot 268. The cells then continue in a clockwise direction around the land, finishing at Cell 5 in the north-western corner. 19 Ex.8.016, p.6, para 15 and p.108. 20 Ex.9.006, p.2, para 15. 21 Ex.8.016, p.7 and p.8, para 21. 22 Ex.1.036, p.34. 23 Ex.8.006, p.9, para 37. 24 Ex.8.006, p.9, para 38. 25 Ex.8.006, p.9, para 38. 26 Ex.10.003, p.8, L50-51. 27 Ex.18.012, p.11, Condition W1. 28 Ex.9.006, p.3, para 22. 29 Ex.9.006, p.4, para 33. 30 Ex.9.006, p.3, para 24. -- 6 of 99 -- 7 At the time of the hearing, Cells 4A, 4B and 3B (west) were receiving waste and Cell 3B (east) was under construction. The remaining cells were inactive.31 [20] The highest point of the landfill is approximately RL68m AHD. This occurs along the western boundary of Cell 4A.32 This can be compared to the 1972 aerial photograph overlaid with the 2013 cadastral map. The comparison reveals that the land, coincident with the location of the western boundary of Cell 4A, was about RL55m AHD in 1972.33 As a matter of basic arithmetic, the land elevation at this location has increased by 13 metres. [21] The landfill is supported by a number of engineering measures and controls to manage leachate and landfill gas. Leachate is essentially clean water that has come into contact with waste or leachate. It is managed as contaminated water and is tested prior to release. [22] The engineering measures and controls include existing stormwater infrastructure. This comprises34 a High Efficiency Sediment basin (referred to as Chum Pond) located in the north-west corner of Lot 268, two sediment basins, and a perched pond. Groundwater from Cell 3B, and stormwater from the two sediment basins just referred to, are pumped into the perched pond.35 [23] The leachate collection system includes36 sumps and a riser pipe in Cells 2, 3A, 3B (west), 4A, 5B, 4B and 5A. A telemetry system has been installed to monitor leachate levels in Cells 2, 3A, 4A, 5B and 5A. A ring main delivers leachate from the top of each riser to a pond located in the south-eastern corner of Lot 268. [24] The landfill involves the placement of waste in a former mining void, which cannot gravity drain. This means, in general terms, leachate accumulating at the base of a landfill cell has to be collected and pumped out to avoid two things. First, the saturation of waste at the bottom of the cell. If the waste is saturated it has the potential to create anerobic conditions that lead to the release of contaminants. Second, it is necessary to prevent the level of leachate rising at the bottom of any cell. This is to prevent the creation of a hydraulic gradient, which has the potential to force leachate out of the cell and into the surrounding groundwater. Cell liners are used to protect groundwater from leachate. The evidence reveals, like many things, the effectiveness of liners has improved markedly since 1996 when the landfill commenced. [25] With respect to the use of liners:37 (a) Cell 1 is not lined; (b) Cells 2, 3A, 3B, 4A, 4B and 5B have a composite lining system comprising compacted clay fill, a geosynthetic clay liner (GCL) and a high polyethylene (HDPE) liner on the base and side walls; 31 Ex.9.006, p.4, para 25. 32 Ex.9.006, p.4, para 32. 33 Ex.8.016, p.107. 34 Depicted on Ex.1.036, p.15. 35 Ex.9.006, p.4, para 34. 36 Ex.9.006, pp.4-5, para 36. 37 Ex.9.006, p.4, paras 27-29. See also Ex.8.010, pp.73-75. -- 7 of 99 -- 8 (c) Cell 2B has a composite piggyback liner over the top of asbestos waste, which has no base liner; (d) Cell 5 has a clay liner; (e) Cell 5A has a clay and GCL liner; and (f) Cell 5A1 has a clay and GCL liner, save where it joins Cells 1 and 5. [26] To prevent the ingress of water into inactive cells, an interim cover of soil has been placed over the waste.38 The batters of Cells 1 and 5 have also been capped with soil and vegetation, or a geomembrane. [27] To monitor for impacts on groundwater,39 18 monitoring wells have been installed. In Cell 3B, a groundwater depressurisation system has also been installed. This system allows for groundwater to be pumped to the perched pond discussed above. [28] The landfill gas management system includes40 15 perimeter monitoring wells. It also includes a network of 68 extraction wells with associated ring main piping and flares. [29] The resource recovery component commenced on 1 July 2019. It occupies about 10 hectares.41 It is situated on an engineered pad above former landfill cells and is serviced by mobile machinery.42 Cleanaway has invested in the order of $6 million in this part43 of the facility. The investment allows a number of materials to be recovered and diverted from landfill, including fines, concrete, timber and metal.44 [30] Photomontages prepared for the appeal confirm the land is visible, in part, from residential development to the east and south-east. This is because the residential land, like the subject, is elevated above the intervening land that separates them. The intervening land is the vegetated waterway corridor for Six Mile Creek, which can be seen in the foreground to middle of the photomontages prepared for the appeal. It screens a large part of the development. That part of the land which can be identified in the photomontages is undoubtedly impacted by anthropogenic interference.45 [31] A local topographical feature, known as Claypave Hill, is also prominent in the photomontages. It is a stockpile of overburden located to the west of the land. It is, in effect, the backdrop for the photomontages, with its highest point at RL118m AHD.46 It is proposed by Cleanaway to use fill from Claypave Hill as cover in the landfill. As a consequence, the height of Claypave Hill is expected to reduce in the future. [32] Mr Ovenden and Mr Perkins helpfully identified surrounding features that inform an assessment of character. Those features are identified at paragraph 30 of their joint expert report. In summary terms, the features can be identified as follows: (a) industrial uses to the north, including clay mining and a fertilizer plant;47 38 Ex.9.006, p.4, para 30. 39 Ex.9.006, p.5, para 39. 40 Ex.9.006, p.5, para 40. 41 Ex.9.006, p.5, para 43. 42 Ex.9.006, p.6, para 48. 43 Ex.9.006, p.6, para 47. 44 Ex.9.006, p.6, para 46. 45 Ex.8.008, p.2-5, 2-15, 2-25, 2-35. 46 Ex.8.016, p.9, para 31. 47 Ex.8.016, p.10. -- 8 of 99 -- 9 (b) Six Mile Creek and adjoining reserves to the east; (c) a former Council landfill site to the south-east; (d) an electricity easement to the south; and (e) Chum Street, overburden stockpiles (including Claypave Hill) and former Claypave business premises to the west. [33] With these features in mind, the character of the area was described by Mr Ovenden and Mr Perkins as an ‘industrial and greenspace’ context. Their joint description is an accurate one, made good having regard to the visual aids before the Court. With the benefit of those aids, I readily accept the following point of agreement between Mr Ovenden and Mr Perkins:48 “In terms of describing the land use and character of the area, at a macro level the subject site sits in a corridor containing former mining areas that starts just north of the site (with the clay mining site) and runs in a south west direction between the Cunningham Highway to the west and environmental corridor of Six Mile Creek to the east. There is no access across Six Mile Creek or the Cunningham Highway (except for Whitwood Road crossing noted earlier) so the corridor is isolated from uses to the east and west…” [34] Mr Ovenden and Mr Perkins identified the location of established residential areas on Figure 2 in their joint expert report.49 Figure 2 reveals: (1) Riverview is located to the north and, at its southern tip, is about 1 kilometre from the land; (2) Collingwood Park is located to the east and south-east, with its western tip located some 750 metres from the land; and (3) residential development is located to the west and north-west of the Cunningham Highway, with the eastern tip of each area located in the order of 750 metres from the land. The residential area of primary concern in this appeal is identified in item (2). [35] The character of the ‘area’ was also examined by Dr Chenoweth and Mr Curtis. They were called to deal with visual amenity and character issues. At paragraph 5.13 of their second joint expert report, it was agreed the local area can be broadly categorised by reference to five character types. They are depicted in Figure 4 of the same joint expert report.50 By reference to Figure 4, the local area examined by Dr Chenoweth and Mr Curtis is more extensive than that considered by Mr Ovenden and Mr Perkins. The area is consistent with the Swanbank New Chum area depicted in Figure 6-7-1 of the planning scheme. I accept the area examined by Dr Chenoweth and Mr Curtis is an appropriate one to examine visual and character impacts. I also accept the character types within that area were accurately identified by Dr Chenoweth and Mr Curtis as: (1) mined, excavated and landfill areas (which includes the land); (2) natural bushland and parkland green space; (3) urban residential and commercial; (4) industrial, HV transmission lines and major roads; and (5) vacant/undeveloped land. 48 Ex.8.016, p.11, para 35. 49 Ex.8.016, p.10. 50 Ex.8.015, pp.16 and 47. -- 9 of 99 -- 10 Existing approvals [36] The existing use of the land is authorised by a suite of planning approvals and an Environmental Authority. It is unnecessary to identify each and every approval in turn. It is sufficient for present purposes to say the suite of approvals and authority relied upon to conduct the waste management facility were marked exhibits 18.001 to 18.016 inclusive. [37] The history of approvals commences in about 1998, when Council approved an application for town planning consent.51 A number of changes have been made to this approval. The most recent change was approved by Council on 8 December 2016.52 [38] The town planning consent approval, and the conditions attached to it, are somewhat rudimentary, despite the complexity of the use approved and its potential to adversely impact on the environment. The conditions are rudimentary in the sense they have the tenor of broadly stated objectives, which are to be met, in due course, to the satisfaction of a nominated Council officer. This can be illustrated by reference to two conditions. [39] Condition 31 states:53 “Water table The landfill shall be designed and constructed so that the water table is below the base level of the landfill, to the satisfaction of the Health, Environmental Protection and Waste Manager and Senior Development Engineer.” [40] Condition 35 states:54 “Site rehabilitation (a) Site rehabilitation is to be carried out generally in accordance with the document entitled "Rehabilitation Plan for Queensland Trade Waste Pty Ltd. Waste Disposal Facility: 21 Rhondda Rd, New Chum" prepared by Ison Environmental Planners dated August 1996. Additionally, details of the progressive rehabilitation of the site are to be submitted to the satisfaction of and for approval by Council's Conservation and Parks Manager as follows: (i) For each individual landfill cell, details are to be submitted eighteen months prior to the expected final receipt of wastes in that individual landfill cell; and (ii) For all other areas of the site requiring rehabilitation not the subject of a landfill cell, details are to be submitted 51 Ex.8.016, p.11, para 38. 52 Ex.18.001. 53 Ex.18.001, p.10. 54 Ex.18.001, pp.12-13. -- 10 of 99 -- 11 eighteen months prior to the expected final receipt of wastes in the final landfill cell. (b) Further, each progressive rehabilitation plan required by item (a) above is to be generally in accordance with the following: (i) The landform as generally indicated in the “Proposed Final Surface Contours (Pre Settlement)” Plan, F002, Rev 0, dated 28 November 2014, prepared by Golder Associates & “Proposed Final Surface Contours (Post Settlement)” Plan, F003, Rev 0, dated 28 November 2014, prepared by Golder Associates, or any other plan which may be approved by the assessment manger; and (ii) Any rehabilitation requirements set down under the Department of Environment and Heritage environmental authority Licence No SR611 or any subsequent document replacing or amending that authority; and (iii) Any rehabilitation requirements of the Department of Mines and Energy in respect to the previous relinquishment of the Mining Leases. … (e) Progressive and post closure rehabilitation of the site shall be in accordance with the rehabilitation plan and any requirements of the Department of Environment and Heritage environmental authority and is to be completed to the satisfaction of the Conservation & Landscape Manager and Senior Development Engineer.” [41] Condition 35(a) requires rehabilitation to be carried out generally in accordance with a report published in August 1996. Section 9 of the report identifies, again in rudimentary terms, the requirements for revegetating the land. This involves: (1) a minimum of 50 mm and an average depth of 100mm of topsoil; (2) the application of fertilizer; (3) planting of a mix of seeds/grasses, and trees and shrubs, all of which are to be appropriate to the circumstances of the land; and (4) planting of selected native trees and shrubs where required.55 [42] Condition 35(b)(i) requires a progressive rehabilitation plan to be prepared. The plan is to be generally in accordance with, inter alia, two approved plans, FOO2 and FOO3.56 From these plans, the vertical extent of the landfill approval on Lot 268 can be identified. The maximum pre-settlement height approved is RL72m AHD in the south-western corner. An area in the north-western corner of Lot 268 has a maximum pre-settlement height of RL65m AHD. The finished landform depicted in the approved plans gradually slopes west to east. The lowest part of the landform is in the south-eastern corner, which sits at an elevation of about RL33m AHD. 55 Ex.8.016, p.12, para 42. 56 Ex.18.002, pp.1 and 2. -- 11 of 99 -- 12 [43] The current Environmental Authority (the current EA) for the use is EPPR00445713, dated 31 January 2020.57 [44] The current EA conditions are grouped under one of six headings. [45] Conditions W1 to W3 are included under a heading of ’Waste Management’ and identify the waste streams that may be received. [46] The following conditions are also grouped under a heading of ‘General’. They limit the release of contaminants from the land and impose requirements for the management of leachate: “G3 Other than as permitted by this environmental authority, the release of a contaminant into the environment must not occur.” And: “G10 A leachate collection system must be designed, installed and maintained by an appropriately qualified person to: 1. collect leachate generated in the landfill unit; 2. convey the collected leachate out of the landfill unit to an appropriate leachate storage facility; 3. restrict the height of the leachate above the liner system to a maximum level of 300mm or another value with equivalent leachate minimisation performance as agreed with the administering authority; 4. measure and record the height of leachate above the liner system on a daily basis where this level is greater than 300mm, or at least weekly at other times.” [47] Leachate is a defined term for the current EA: “Leachate means a liquid that has passed through or emerged from, or is likely to have passed through or emerged from, a material stored, processed or disposed of at the licensed place that contains soluble, suspended or miscible contaminants likely to have been derived from the said material.” [48] Condition WT1 is included under a heading of ‘Water’ and provides that ‘The only contaminants to be released to surface waters are settled treated water of a quality and from release points stated in Table - Surface water release limits’. The table following condition WT1 sets outs a range of water quality characteristics, (such as suspended solids and pH), release limits and identifies release points. ‘Release points’ are defined in the current EA for condition WT1 as follows: “Release points for the purpose of condition (WT1), Table – Surface water release limits are as follows: 57 Ex.18.012. -- 12 of 99 -- 13 - Final sedimentation basin to Void 10 defined (GDA94) as: S 270 37’ 0.3.5” E 1520 50’ 24.7” - High efficiency sediment pond onto Chum Street defined (GDA94) as S 270 36’ 36.1” E1520 49’ 50.1”” [49] Conditions H5, H6 and H7 prescribe the requirements for the installation and maintenance of a groundwater monitoring regime. One of the parameters to be monitored in the groundwater is ammonia (as N). Mr Sutherland, an expert called by Council with respect to groundwater and leachate management, explained that ammonia is a key landfill indicator of leachate.58 [50] Conditions W6, W7 and W8 go to matters of rehabilitation and post-closure care. The conditions are in the following terms: “W6 When the deposition of waste to the landfill unit ceases, a final capping system to the landfill unit must be designed by an appropriately qualified person and installed to minimise: 1. infiltration of water into the landfill unit and water ponding on the surface; and 2. the likelihood of any erosion occurring to either the final capping system or the landfilled materials. A final capping system is not required where the deposition of waste to a landfill unit ceases temporarily for the purpose of using an alternative working face. W7 Land that has been disturbed for activities conducted under this environmental authority must be rehabilitated in a manner such that: 1. suitable species of vegetation for the location are established and sustained for earthen surfaces 2. potential for erosion is minimised 3. the quality of water, including seepage, released from the site does not cause environmental harm 4. potential for environmental nuisance caused by dust is minimised 5. the water quality of any residual water body does not have potential to cause environmental harm 6. the final landform is stable and protects public safety 7. the contaminant concentrations within the final capping layer are appropriate for the final land use and in accordance with 58 T21-36, L38-45. -- 13 of 99 -- 14 the ‘National Environmental Protection (Assessment of Soil Contamination) Measure 1999.’ W8 Following cessation of deposition of waste in the landfill facility, post-closure care of the landfill facility must be conducted for a period of 30 years or until the administering authority determines, on the basis of correct information, that the landfill facility and surrounding site are stable and that no release of waste materials, leachate, landfill gas or other contaminants that may cause environmental harm is likely.” [51] Condition W10 requires a site management plan to be prepared at least 12 months prior to the expected final receipt of waste. That plan must include, inter alia, the actions to be taken to achieve compliance with the closure, and post-closure care requirements of the approval. [52] Condition G13 secures compliance with the current EA by way of prescribed financial assurance. [53] Condition G2 imposes a reporting obligation on the holder of the authority. It is in the following terms: “G2 Any breach of a condition of this environmental authority must be reported to the administering authority as soon as practicable with 24 hours of becoming aware of the breach. Records must be kept including full details of the breach and any subsequent action.” [54] In anticipation of an approval being granted for the expanded landfill facility, Cleanaway applied for, and obtained, a new Environmental Authority identified as EA0001935 (the new EA).59 The new EA does not take effect unless, and until, an approval is granted for the development application the subject of this appeal. [55] A review of the new EA reveals it bears the following points of similarity with the current EA, namely both documents: (a) identify the waste streams that may be received;60 (b) contain a reporting obligation in the event of a breach of condition;61 (c) restrict the height of leachate to a maximum of 300mm above a cell liner;62 (d) preclude the release of contaminants otherwise than as expressly permitted;63 (e) require a groundwater monitoring regime to be implemented and maintained;64 (f) require the landfill unit to be sealed with a capping system and the resulting landform subject to post-closure care;65 and 59 Ex.18.013. 60 Ex.18.013, pp.21-36, Conditions W1-W7. 61 Ex.18.013, p.5, Condition G3 and p.12, Condition WT1. 62 Ex.18.013, p.36, Condition W9. 63 Ex.18.013, p.5, Condition G5. 64 Ex.18.013, p.6, Condition G11 and pp.15-19, Conditions WT8-WT16. 65 Ex.18.013, pp.19-20, Conditions L3-L6. -- 14 of 99 -- 15 (g) seek to secure performance of conditions by way of financial assurance.66 Operational difficulties and non-compliance with approvals [56] The successful management of a landfill that cannot gravity drain requires an operator to do three things. First, an operator must ensure the integrity of any liner system is not compromised. Liner integrity is critical to the maintenance of groundwater and prevention of contamination. Second, an operator is required to divert and separate surface water from waste. Third, an operator is required, to the extent practicable, to divert and separate clean water from leachate. The second and third points go hand in hand. They go to ensuring the generation of leachate is minimised. [57] The evidence revealed that Cleanaway’s management of the existing facility is poor. More particularly, it revealed the three matters stated above have not been met at all times. Monitoring data reveals that surface water and groundwater has come into contact with leachate. The work undertaken by Dr Bennetts suggests it has manifested, in part, as elevated levels of PFAS (per and polyfluoroalkyl substances) in onsite water bodies, Void 10 and downstream of a discharge point to Six Mile Creek.67 The evidence also establishes that leachate has mixed with groundwater. The extent to which contaminated groundwater has migrated beyond the boundary of the land is unknown. [58] That elevated levels of PFAS were detected in surface and groundwater is, in my view, the product of poor onsite management of leachate. It is also symptomatic of a bigger issue facing Cleanaway in this appeal: that a known operational constraint (leachate in a void that cannot gravity drain) is difficult to successfully manage on the land, even for an operator the size of Cleanaway. [59] Poor leachate management was not assisted by the events of June/July 2020. [60] In June/July 2020, a side liner in Cells 4A and 5B was breached during the construction of seven (7) LFG extraction wells.68 The liner comprises (from the bottom up) a 1 metre thick compacted clay/engineered fill layer, a GCL layer, a HDPE geomembrane and a protection geotextile.69 Cleanaway became aware the liner was breached on 27 October 2020, one day after the newly installed LFG wells were balanced and commissioned.70 On 29 October 2020, Cleanaway notified the Department of Environment and Science (DES) of, inter alia, the liner breach.71 They were required to do so having regard to condition G2 of the current EA. [61] After notifying DES, Cleanaway took steps to remedy the liner breach. This involved:72 (1) undertaking a review of geological information to understand the lithology below the liner; (2) the implementation of a well monitoring program, which was ongoing at the time of the appeal; and (3) the carrying out of works to remediate 66 Ex.18.013, p.7, Condition G16. 67 Ex.8.010, pp.157-160. 68 Ex.9.006, pp.10-11, paras 82, 85 and 89. 69 Ex.9.006, p.11, para 90. 70 Ex.9.006, p.11, paras 88 and 89. 71 Ex.9.006, p.10, para 82. 72 Ex.9.006, p.11-12, paras 94-95. -- 15 of 99 -- 16 liner breaches.73 A construction quality assurance report (CQA) was produced for the remediation works,74 which were paid for by the contractor responsible for piercing the liner.75 [62] The breach of the side liner in Cells 4A and 5B was not without consequence. At the time the liner was pierced, Cells 4A and 5B had only an intermediate cover and were relatively flat in grade. Under these circumstances, rainfall is expected to have migrated through the intermediate cover and into the waste below, generating leachate. The rainfall recorded for the five month period the liner was breached (July 2020 to December 2020) was 127mm.76 [63] Ammonia (NH4) concentrations recorded in bore hole monitoring data suggests leachate from the waste mass in Cell 5B mobilised and migrated into the groundwater. Bore hole BH07A is located to the west of Cell 5B77 and some 60 to 100 metres from where the liner was pierced.78 Ammonia measured in samples taken from this bore hole indicate the contaminant was present in the groundwater for an extended period. The concentration level spiked after the liner was remediated but reduced over time. [64] Mr Ife, who is a hydrogeologist, helpfully explained the impact of the liner breach on groundwater in this way:79 “In summary, the liner breach was caused by drilling penetrating the liner in seven locations close to the margins of the cells. This created a pathway for migration of fugitive emissions of leachate from the waste to the water table and this was detected as a significant rise in NH4 concentration in the groundwater monitoring bore NH07A. Rectification of the liner breaches appear to have stopped the release of leachate into the substrate but monitoring in BH07A indicates that desorption of NH4 from the clay-rich material in the unsaturated zone has influenced concentrations in the bore although the most recent monitoring records indicate the concentrations are significantly reducing over time.” [65] In circumstances where it is well understood that the integrity of the liner system is critical to the management of this landfill, 80 and it is not difficult to foresee that the operation of a drill near the surface of the liner could pierce it, one might be forgiven for asking this question: how does it come to pass that a cell liner could be pierced not once, but seven times, without Cleanaway knowing for a period of about four months? The answer is to be found in the evidence of Cleanaway’s engineering manager for the facility, Ms Barnes.81 [66] Ms Barnes was the team leader responsible for supervising the contractor who drilled the seven LFG wells. She explained how the process should have proceeded. Ms 73 The scope of remediation works carried out were discussed by Mr Ife at Ex.9.011, pp. 13-14, paras 46 and 47. 74 Ex.9.006, p.12, para 96. 75 T20-20, L19-29. 76 Ex.9.011, p.15, para 49. 77 Ex.9.011, p.13, Figure 2. 78 Ex.9.011, p.16, 55 e). 79 Ex.9.011, pp.16-17, para 57. 80 T19-77, L11-14. 81 T19-76, L1 to T19-77, L29. -- 16 of 99 -- 17 Barnes said it involves setting out a grid across the landfill and fixing locations for new wells within the grid. Once the location for each new well is fixed, they are surveyed. That survey is then compared to the level of the liner and base of the cell below. This comparison is repeated after each drill hole is completed. [67] The comparative exercises described by Ms Barnes did not occur on a drill by drill basis, or at all, in June/July 2020. What did occur was a campaign of drilling, which proceeded absent the two critical comparative exercises providing a necessary check and balance. The reason for this was not explained. Rather, Ms Barnes, despite accepting without qualification her team was responsible for supervision of the drilling campaign, refused to accept responsibility for the error. This was clear from the following passage of her oral evidence:82 “…yesterday, you answered to the effect that you – and it’s not clear whether it was referenced to you personally or you the company – accept responsibility for that. Do you remember saying that?---No, I don’t remember accepting - - - Well, do you…accept responsibility for that?---…we engaged the drillers, we engaged Run Energy, they drilled the wells by use of a contractor. And, yes, they’ve been too deep. In terms of …doing the actual drilling, no. HIS HONOUR: …– sorry…I don’t quite understand your answer… I think the question is; does Cleanaway take responsibility for the breach of the liner? Whether it physically did the drilling or not…?---No, we don’t.” [68] I found Ms Barnes’ explanation for the drilling error, combined with her demeanour and unwillingness to accept responsibility for the liner breaches, devoid of the perspicacity expected of an experienced landfill operator. In any event, the evidence comfortably establishes the side liners in Cells 4A and 5B were pierced on seven occasions due to poor supervision of a drilling campaign. Cleanaway proceeded with that campaign in circumstances where: (1) the integrity of the liners are critical to the successful management of the existing facility; (2) the campaign, on any objective view, posed a risk to the integrity of cell liners; and (3) necessary checks and balances were either not in place, or not executed, to protect cell liners. Data collected from groundwater monitoring bore hole BH07A indicates Cleanaway’s poor supervision was not without consequence. [69] Shortcomings in Cleanaway’s management of the existing landfill are not limited to the circumstances of June/July 2020. [70] In July 2019, whilst preparing a response to a request for information in connection with the development application before the Court, Cleanaway became aware that concentrations of PFAS in surface water, on-site water bodies and groundwater exceeded the toxicant trigger level of 99% identified in the PFAS National Environmental Management Plan dated January 2018.83 This is indicative of 82 T20-19, L39 to T20-20, L13. 83 Ex.9.006, p.10, para 76 and Ex.8.010, pp.158-159, paras 271-280. -- 17 of 99 -- 18 bioaccumulation risk84 but not a direct toxicity risk. Monitoring in Six Mile Creek indicates the concentration of PFAS appreciably increases downstream of the land.85 [71] At the time of the hearing, the evidence did not suggest this operational issue had been resolved, nor resolved quickly. Ms Barnes did however indicate that PFAS was the subject of ongoing monitoring. A new stormwater and site water management strategy was also said to be under development to proactively manage PFAS.86 [72] Further, the height of leachate within a number of cells has proven to be a difficult constraint for Cleanaway to manage successfully, and in compliance with the current EA. [73] A telemetry system in Cells 3A, 3B (west), 4A, 5B and 5A monitors the height of leachate above the liner.87 On 29 October 2020, Cleanaway notified the DES of non- compliance with conditions G10(3) and (4) of the current EA, which are set out at paragraph [46]. The notification given to the DES recorded:88 (1) leachate levels were higher than 300mm above the base of the liner; and (2) the telemetry system was offline, with the consequence that the height of leachate above the liner was not measured and recorded daily. [74] The evidence reveals non-compliance with condition G10(3) of the current EA commenced in 2018 and was ongoing at the time of the hearing.89 The exceedance has been significant and protracted. At one time, the level of leachate was estimated to be about 7.6 metres above the base of the liner in Cells 4A and 5B.90 Measurements set out in a note dated 1 June 202191 reveal the height and volume of leachate above cell liners during the hearing of the appeal were as follows:92 Cell 2 3A 3B 4B 5A 5B TOTAL … Leachate level (m above cell base liner) 1.09 3.21 0.25 1.63 0.86 3.77 N/A … Total Volume (cum) 61326 23303.1 2018.7 2817.3 8293.7 26118.3 123877.1 Volume in excess of 300mm above liner (cum) 32701.2 23148.5 0.0 2692.7 3835.4 26047.0 88424.9 84 Ex.8.010, p.159, para 279. 85 Ex.8.010, p.157, para 269 and Figure 5. 86 Ex.9.006, p.10, para 81. 87 Ex.9.006, p.12, paras 101 and 102. 88 Ex.9.006, para 104. 89 T19-77, L46 to T19-78, L8 and Ex.9.025, pp.14-15, para 4.5 read with Figure 1. 90 T21-51, L30-42. 91 Ex.9.025. The relevant attachment is a memorandum dated 27 May 2021. 92 Ex.9.025, pp.14-15, para 4.5 read with Figure 1. -- 18 of 99 -- 19 [75] There are a number of reasons, taken in combination, that explain why leachate has built to significant levels above the base of cell liners. The reasons can be identified in summary as: (1) the size of individual landfill stages have created large expanses of working face that allow for the infiltration of rain and surface water into cells; (2) inappropriate cover material has been placed over waste at a relatively flat grade and for extended periods – this allows rainfall to infiltrate the waste below;93 (3) it appears landfill cells were used as basins to hold leachate while a treatment solution was fixed upon, including one permitting discharge of the leachate from an approved release point; and (4) poor landfill management has allowed excess leachate to be generated in already difficult circumstances. Poor landfill management practices have included Cleanaway leaving large areas of waste exposed to the elements (rain), which generates additional leachate requiring treatment and disposal. [76] At the time of the hearing, Cleanaway had investigated a range of options to resolve the leachate issue but had not fixed upon a final solution.94 The preferred option involved the use of a water treatment plant and disposal of the treated leachate. Assuming a treatment rate of 1 megalitre per day, it would take in the order of 6 to 12 months to reduce leachate in the cells to a level less than 300mm above the liner.95 [77] The use of a water treatment plant was well advanced at the time of the hearing. A trial plant for Cell 5 was installed in November 2020 and became operational in February 2021.96 The plant was partly successful in achieving its objective. It was:97 (a) successful in removing PFAS contamination to a release limit that is equivalent to the 99% ecological protection criteria referred to in paragraph [70]; (b) unsuccessful in removing ammonia to comply with Queensland Urban Utilities Sewer Discharge Criteria; and (c) was unsuccessful in removing Biological Oxygen Demand, Chemical Oxygen Demand, Total Organic Carbon and Total Dissolved Solids, ammonia and the majority of heavy metals to comply with the water release limits in the new EA. [78] The treatment plant can be augmented with ‘off the shelf’ components to deal with the contaminants identified in (b) and (c) above.98 Whilst the treatment plant may be capable of augmentation in this way, at the time of the appeal there was no plant capable of treating the leachate in the base of the landfill to a level that was suitable for release under the terms of the current EA, let alone capable of treating leachate at a rate of 1 megalitre per day. [79] Cleanaway’s preferred leachate management system also includes a lined leachate pond. This was under construction at the time of the appeal. It is elevated 50 metres above the groundwater level and will have a capacity of 12.6 megalitres.99 The pond will be used to dispose of leachate, either by evaporation or recirculation through the landfill mass.100 93 T16-14, L42 to T16-15, L3. 94 Ex.9.006, p.13, paras 110-111. 95 Ex.9.025, p.2, para 24. 96 Ex.9.004, p.2, paras 11 and 13. 97 Ex.9.004, pp.8-9, para 46. 98 T17-5, L43 to T17-6, L4 and T17-17, L35-37. 99 Ex.9.022, pp.8-9, paras 96 and 101. 100 Ex.9.006, p.13 and para 117. -- 19 of 99 -- 20 [80] Condition WT1 of the current EA authorises discharge from Chum Pond, provided the water meets defined water quality parameters. On 15 January 2021, Cleanaway gave notice to DES that 150,000 litres was released from Chum Pond following a storm event where 84.2mm of rain fell in a two hour window. The water released was sampled and tested. The results revealed the presence of PFAS. It also revealed there was 480 milligrams/litre of total suspended solids in the sample. This is about nine times greater than the limit prescribed in the current EA, which is 50 milligrams/litre.101 [81] On 19 January 2021, Cleanaway again gave notice to the DES about a release of water from Chum Pond following a storm event. The release was estimated to be equivalent to 120,000 litres. Tests conducted on sampled water indicated the release exceeded the prescribed limit for total suspended solids by a factor of three and also included PFAS.102 [82] A statement prepared by Ms Barnes indicates that Cleanaway was fined in excess of $26,000 for releasing water from Chum Pond. It also records that a number of active steps have been taken to address releases from Chum Pond.103 This included undertaking preventative maintenance and removing residual sediment. [83] Following the storm events in March and April 2021, water104 was released from Chum Pond and Basin 1 to Void 10. Limited detail was provided about these events. The evidence did however reveal that on 17 May 2021, Cleanaway informed DES of monitoring results, which indicated concentrations of total suspended solids in Chum Pond, and the perched pond, had exceeded the surface water release limits prescribed in the current EA. [84] A significant proportion of the material sent to landfill is combustible. Fires therefore are not uncommon. They need to be managed to avoid, inter alia, damage to cell liners. In the 10 year period prior to the hearing, Cleanaway’s internal records reveal there have been 82 fires at the New Chum facility.105 One event was particularly serious. It required about 2.6 hectares of the Cell 2 liner to be repaired.106 [85] With the above evidence in mind, all of the technical experts called to assist the Court were examined by Mr Hughes KC about Cleanaway’s management of the existing landfill facility. The response by all, when pressed, was uniform in substance; Cleanaway’s management of the existing facility, particularly leachate, was poor and required significant improvement. Improvement is required to achieve compliance with, inter alia, the current EA. [86] That the standard of management for the existing facility is poor was a matter firmly pressed by the refusing parties. It was pressed in two ways. First, to advance the proposition there is little confidence Cleanaway can successfully manage the existing facility, let alone an expanded version of that facility. Second, it was advanced as being symptomatic of a fundamental issue, namely this: the land is unsuitable for landfill, and any expanded version of it. These matters are considered later in these 101 Ex.9.006, p.14, paras 118 and 119. 102 Ex.9.006, p.14, paras 120 and 121. 103 Ex.9.006, pp.14 to 15, paras 124-129. 104 Ex.9.006, p.15, para 130 and Ex.9.022, p.10, para 113. 105 Ex.9.018, p.3, s 2; T17-37, L1-4. 106 T17-39, L43 to T17-42, L14. -- 20 of 99 -- 21 reasons dealing with environmental impacts and risk. It can however be observed at this stage that the two points pressed are not without force. The proposed development [87] The development application seeks approval to increase the capacity of the existing landfill facility by 7.5 million m3, delivered in a number of stages. No change is proposed to the type, or annual rate, of waste material received by Cleanaway under its existing approvals. [88] The life of the extended facility is a function of the rate at which waste is received. The best estimate at the time of the appeal was that an approval would extend the life of the landfill somewhere between 5 to 10 years. [89] The proposed expansion involves a number of elements, which are depicted in a set of proposed plans107 and described in the town planning joint expert report at paragraph 44.108 In summary terms, the elements are: (1) a lateral extension (up to 142m) from the eastern side of Cell 2 towards Void 10, which creates a new Cell 6 with an area of 2.34 ha; (2) a vertical extension of the existing landfill footprint up to a maximum pre-settlement height of RL85m AHD; (3) modifications to landform grades to, inter alia, improve surface water management, and to reduce leachate generation and differential settlement; (4) the provision of a resource recovery area for sorting, removing and stockpiling waste suitable for recovery; (5) the provision of new water management infrastructure; (6) the provision of vegetated screening bunds along the southern and eastern edges of the landfill; (7) the construction of a new internal road; (8) rehabilitation of the land south of Void 10 and to the east of the landfill; and (9) maintenance and enhancement of the buffer area to the north of Void 10. [90] The proposed resource recovery area is approximately 1 hectare in size and has a stockpile capacity of approximately 20,000 tonnes.109 The materials to be targeted for recovery are concrete, timber and metal. Fines (soils) will also be targeted for utilisation as cover in the landfill.110 Plant and equipment used in this part of the facility has already been secured. It is mobile.111 [91] Notable features of the development are as follows. [92] The crest (or peak) of the final landform is located towards the south-western corner of the landfill. Within that area, the landform comprises new waste placed upon existing waste. A composite ‘piggyback’ liner is proposed to be placed between existing and new waste. This aspect of the development represents the vertical extension discussed in item (2) above. The piggyback liner provides an opportunity to cap existing waste to prevent water infiltration into the waste mass below. [93] Waste material is to be placed in stages, and visually screened by a 12 metre high perimeter bund and screening bund. In the early stages of development, a bund will be located towards the south-western end of the landfill adjacent to, and sitting above, 107 Ex.1.036, pp.14-35. 108 Ex.8.016, p.13, para 44. 109 Ex.9.022, p.9, para 103. 110 Ex.9.022, p.9, para 105. 111 Ex.9.022, p.9, paras 108 and 109. -- 21 of 99 -- 22 the peak height of the final landform. The bund will progressively extend towards the north-eastern corner as stages are completed, and the final landform is achieved. Portable screening barriers between 6 and 8 metres in height are also proposed. It is intended these barriers will move with the progression of filling activities to provide supplementary screening. [94] Typical cross-sections indicate the final landform is achieved adopting two capping methods, namely a phytocap and geosynthetic liner cap. A phytocap can be landscaped with trees, shrubs and grasses. The geosynthetic liner cap can be landscaped but is suited to shrubs and grasses. The extent of the phytocap is depicted on an updated rehabilitation strategy plan. It appears to coincide, to varying degrees, with Cells 1, 2, 2B, 3B, 3A, 4B, 4A and 5.112 The western, southern and eastern edges of the phytocap are sleeved by a perimeter bund. The extent of the geosynthetic cap is also depicted on the same rehabilitation plan. It covers the balance of the landfill footprint. It comprises (from the bottom up) an earthen fill layer, geosynthetic clay liner, geosynthetic liner, geocomposite drain layer, soil cover and topsoil. [95] The plans of development depict a leachate pond in the south-western corner of the fill area. This is the pond discussed at paragraph [79], which will collect leachate conveyed by pipes around the perimeter of the landfill. The pond replaces two existing leachate ponds located in the south-eastern part of the land. The existing ponds are to be decommissioned. A new road is proposed around the northern, eastern and southern sides of the leachate pond. [96] The plans of development identify an existing sediment basin in the south-eastern corner of the land. This basin is to be decommissioned. The proposed plans also provide for three new sediment basins, namely ‘Sediment Basin 1’, ‘Sediment Basin 2’ and a ‘High Efficiency Sediment Basin’. Basin 1 and 2 are located on the eastern side of the fill area. The plans indicate they receive stormwater conveyed by pipes and vegetated channels located around the perimeter of the fill area. A new road is proposed to the west of Basin 1. The High Efficiency Sediment Basin is located at the north-western edge of the landfill. [97] In support of approval, the development application includes a rehabilitation strategy, which is articulated in pictorial form. The most up to date version of the strategy is Attachment D to the terrestrial ecology joint expert report.113 Having regard to this report, and the oral evidence of Mr Francis, the total area of land to be restored (from an ecological perspective) is in the order of 71 hectares.114 This comprises the phytocap, perimeter bund and two specific areas targeted for rehabilitation, namely: (1) an area to the east of the landfill footprint and west of the buffer area to Six Mile Creek; and (2) an area to the south-west of the landfill footprint. [98] I accept an approval granted subject to conditions recommended by Mr Francis and Mr Clowes will, from an ecological perspective:115 (a) maintain vegetation providing habitat and movement opportunities for koalas; (b) manage adverse impacts on biodiversity and the natural environment; 112 Ex.8.017, p.43. 113 Ex.8.017. 114 Ex.8.006, p.20, para 100. 115 Ex.8.006, p.20, para 101. -- 22 of 99 -- 23 (c) provide a buffer to Six Mile Creek; (d) repair the riparian ecology of Six Mile Creek; and (e) enhance the function of habitat corridors. The statutory assessment and decision making framework [99] The development application was lodged on 7 June 2018.116 [100] In terms of the statutory assessment framework and levels of assessment, the development application comprises two parts. To the extent the application seeks planning approval for a material change of use, it is impact assessable. The balance of the application, which seeks approval for a number of ERAs under the Environmental Protection Act 1994, is code assessable. It is unnecessary to dwell on the code assessable component of the application. Adopting a practical and sensible approach, Council conceded the fate of this part of the application turns on the success of the impact assessable component. This will therefore be the primary point of focus of these reasons. [101] The statutory assessment and decision-making framework for this appeal is prescribed by the Planning Act 2016 (PA). The PA requires, inter alia, the development application be assessed in accordance with s 45 and decided in accordance with ss 59(3) and 60. [102] Sections 45(3)(a) and 45(5)(a)(i) of the PA mandate assessment of the application against assessment benchmarks in a categorising instrument. Section 45(7) confirms the reference to an assessment benchmark is one in effect when the development application was properly made. Here, that captures, inter alia, Council’s 2006 Planning Scheme (the planning scheme) and a Temporary Local Planning Instrument promulgated in 2018 (the 2018 TLPI). [103] The statutory framework for the impact assessable component of the development application is to be approached consistently with the following Court of Appeal authorities, namely Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987, Abeleda v Brisbane City Council (2020) 6 QR 441, Wilhelm v Logan City Council & Ors [2021] QPELR 1321 and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309. Having regard to these authorities, it can be observed that: (a) the ultimate decision called for when making an impact assessment under ss 45 and 60 of the Act is a ‘broad evaluative judgment’;117 (b) in contrast to its statutory predecessor, the discretion conferred by s 60(3) of the PA admits of more flexibility to approve an application in the face of non- compliance with a planning scheme; (c) the exercise of the discretion under s 60(3) of the PA is subject to three requirements, including that it be based upon the assessment carried out under s 45;118 and 116 Ex.8.016, p.14, para 49. 117 YQ Property, per Henry J at [59]. 118 Abeleda, per Mullins JA (as her Honour then was) at [53] and [58]. -- 23 of 99 -- 24 (d) the PA does not alter the characterisation of a planning scheme – it remains a reflection of the public interest.119 [104] Consistent with the approach adopted in the other landfill appeals, Council submitted the planning scheme here is a reflection of the public interest but says time and circumstances mean it does not paint a complete and contemporary picture. Council invited the Court to look at the planning scheme with the benefit of contemporary forward planning documents. In particular, the Court was invited to consider policy promulgated by the State Government in relation to waste management. This policy came into existence well after the planning scheme was adopted in 2006. [105] I considered this point at paragraphs [113] to [117] of Austin BMI Pty Ltd v Ipswich City Council & Ors [2023] QPEC 27. At paragraph [117] I said: “Whilst a particular case may call for the public interest to be examined by reference to an adopted planning scheme and other relevant matters, the extent to which the latter informs the outcome of that examination involves matters of fact and degree. The outcome will of course be informed by, inter alia, the knowledge that a planning scheme is a statutory instrument with the force of law. Decision making that maintains confidence in such a document is itself a matter of public interest...” [106] I have adopted the same approach in this appeal. Having regard to paragraphs [192] and [442], the facts and circumstances here do not establish the planning scheme, or the TLPIs, are out of step with contemporary expressions of planning intent or waste management principles. Contemporary planning anticipates that the land may be developed with, inter alia, a landfill, subject to meeting prescribed qualifications. The qualifications are directed towards environmental and amenity considerations. Reference to documents published after 2006 do not alter this in a way that impacts on the assessment of the development application the subject of the appeal. [107] The issues in dispute call for consideration of matters that were the subject of the exercise of referral agency jurisdiction by the Chief executive under the PA. In this regard, non-compliance is alleged with State Code 22: Environmentally relevant activities. Like Austin, there was uncertainty as to whether State Code 22 is a mandatory consideration or a relevant matter to which regard may be had in the assessment and decision making process. I have adopted the same approach in this appeal as I did at paragraph [121] of Austin. In short, the issue for the Court is whether an assessment against State Code 22 establishes a basis for refusal. I have undertaken such an assessment because it is an issue in the appeal; the document is said to contain focal provisions with which there is non-compliance. An assessment demonstrates partial compliance with the Code. This has informed the exercise of the discretion under s 60 of the PA. Planning context [108] The planning scheme is an assessment benchmark against which the development application must be assessed. It was prepared, and took effect, when the Integrated Planning Act 1997 (IPA) was in force and provides a ‘framework for managing 119 Abeleda, per Mullins JA at [42] and [54]. -- 24 of 99 -- 25 development in a way that advances the purpose’ of that Act.120 Nothing in this appeal turns on the differences between the purpose of the IPA and PA. This is perhaps unsurprising given a review of each purpose statement reveals both Acts share a common objective; to achieve the balance that is ‘ecological sustainability’.121 [109] The planning scheme is divided into nine localities.122 Planning scheme maps reveal the land is included in the Regionally Significant Business Enterprise and Industry Areas locality (RSBEIAL). This locality is divided into six zones.123 The land is included in three of the six zones; partly in the Regional Business and Industry Investigation Zone (Investigation zone), partly in the Recreation Zone (Recreation zone) and partly in the Regional Business and Industry Zone (Industry zone).124 [110] That part of the land included in the Investigation zone is separated from adjoining land by a broken line on the zoning map. This indicates the land is part of an area ‘subject to further detailed assessment’. A note in the planning scheme suggests assessment of this kind occurs as part of the development application process.125 [111] Some zones in the planning scheme are further divided into Sub Areas and Precincts.126 A note to the planning scheme indicates the division of zones in this way has a particular purpose. It is to reflect that certain areas have features affecting the application of, inter alia, assessment criteria.127 The land is included in two Sub Areas, namely: (1) land in the Investigation zone is also included in Sub Area RBIA2 – Swanbank New Chum (RBIA2); land included in the Industry zone is also included in Sub Area RB5M– Swanbank New Chum (Medium Impact Business and Industry) (RB5M). 128 [112] The agreed list of issues for determination129 does not suggest the parties pressing for refusal allege non-compliance with provisions of the planning scheme dealing with the Industry zone,130 Recreation zone131 or Sub Area R5BM. This is reflective of the fact that the development footprint is located principally in the Investigation zone. It is the provisions of the planning scheme dealing with this zone, the RSBEIAL and a specific development code that contain the ‘focal’132 provisions. Non-compliance is alleged with ‘focal´ provisions of the planning scheme. [113] The RSBEIAL, Investigation zone and Sub Area RBIA2 provisions of the planning scheme reveal three themes of interest to this appeal. 120 Ex.3.001, p.1-3, s 1.1. 121 s 1.2.1, IPA; ss 3(1) and 3(2), PA. It is a ‘balance that integrates’ identical considerations in each Act (s 1.3.3, IPA and s 3(2), PA). 122 Ex.3.001, p.1-11, s 1.11. 123 Ex.3.001, p.1-12, s 1.12(1)(c). 124 Ex.3.001, pp.1-160 and 161. 125 Ex.3.001, p.1-160, note below ‘Recorded approvals’ and p.1-66, note 6.14A(2)(b). 126 Ex.3.001, p.1-14, s 1.13. 127 Ex.3.001, p.1-14, note 1.13A. 128 Ex.3.001, pp.1-160 and 161. 129 Ex.14.008. 130 Ex.3.001, pp.1-43 to 1-65, ss 6.8 to 6.12. 131 Ex.3.001, pp.1-113 to 1-122, ss 6.32 to 6.36. 132 Ex.14.028, p.9, para 22(a). -- 25 of 99 -- 26 [114] First, the planning scheme recognises that parts of the RSBEIAL, Investigation zone and RBIA2 are degraded and/or contaminated by, inter alia, former mining activities.133 This is consistent with my findings at paragraphs [12] and [14]. [115] Second, the planning scheme recognises there is a need to rehabilitate land degraded or contaminated by former mining activities. Rehabilitation is intended to achieve two outcomes, namely:134 (1) to enable the land to be used in ‘an appropriate manner’; and/or (2) for the land to be integrated into a network of green spaces, which include environmental buffers and corridors and recreation areas. The evidence of Dr Chenoweth and Messrs Francis and Clowes establishes that the implementation of the proposed rehabilitation strategy discussed in paragraph [97] will satisfactorily achieve item (2). I accept this evidence, subject to the qualification that integration will not be immediate. Comparing the photomontages prepared for two scenarios (Scenario C and E) vividly illustrates how vegetation planted in accordance with the rehabilitation strategy will need a number of years to reach a mature state. It is not until this time that the landform resulting from the filling activity will be screened from view. [116] Third, in terms of the land being used in ‘an appropriate manner’, the development application seeks approval for a ‘special industry’. This is a defined use in the planning scheme. It includes waste disposal and recycling facilities such as that proposed. A special industry use is anticipated in the Investigation zone. It is a potentially consistent use in that zone.135 [117] Special industries are supported in Sub Area RBIA2. Specific Outcome 6.16(2)(a)(iv)(F), which applies to the Sub Area, states:136 “The Sub Area supports uses which – … (iv) provide more capital intensive, business, industry, recreation and community uses, including some ‘difficult to locate’ activities,…including…: (F) special industries;…” [118] I was not directed to any provision of the planning scheme that suggests, expressly or by implication, the phrase ‘supports uses’ in Specific Outcome 6.16(2)(a)(iv)(F) captures only new uses and does not extend to the expansion of an existing special industry in the Sub Area. [119] The refusal case advanced by Council and the co-respondents directs attention to those parts of the planning scheme said to qualify provisions providing encouragement for the proposed development. The ‘qualifications’ relied upon raise issues with respect to: (1) the performance of the development, primarily the landfill component, in environmental and amenity terms;137 (2) whether the proposed development will 133 Ex.3.001, p.1-28, s 6.6(2)(g), p.1-37, s 6.7(5)(e)(x); p.1-67, s 6.14(2)(j); p.1-74, s 6.16(2)(a)(i). 134 Ex.3.001, p.1-28, s 6.6(2)(g), p.1-31, s 6.7(4)(a)(i)(G); p.1-33, s 6.7(4)(a)(vi)(D)(ii); p.1- 37, s 6.7(5)(e)(x); p.1-67, s 6.14(2)(j); p.1-69, s 6.15(15)(d). 135 Ex.3.001, p.1-28, s 6.4(2), read with s 6.17. 136 Ex.3.001, p.1-74, s 6.16(2)(a)(iv). 137 Ex.14.008, pp. 3-6, Sections C and D. -- 26 of 99 -- 27 rehabilitate the land as anticipated by the planning scheme; and (3) whether the proposed development represents sustainable development.138 [120] What does the planning scheme require in terms of environmental and amenity performance? [121] The broadest expression of planning intent is contained in Part 3 of the planning scheme. It sets out the Desired Environmental Outcomes (DEO) for the local government area. They are a creature of the IPA139 and form the basis for the measures of the planning scheme.140 Each DEO is sought to be achieved to ‘the extent practicable’, having regard to each other DEO.141 DEO (3)(b) and (j) are relevant to environmental and amenity impacts of new development. The provisions contain broadly stated tests and are in the following terms: “(b) adverse effects on the natural environment are minimised or prevented with respect to the loss of natural vegetation and associated habitat, soil degradation, air pollution and water pollution owing to erosion, chemical contamination, acidification, salinity, sewage and wastewater treatment, management and effluent disposal and the like; … (j) the health and safety of people, and the amenity they enjoy, are maximised, particularly in the urban and township areas where different types of uses are located close together;” (emphasis added) [122] Beneath the DEOs sit the locality provisions. [123] Overall and Specific Outcomes for the RSBEIAL are set out in Part 6, Division 3 of the planning scheme. [124] The Overall Outcomes for the RSBEIAL speak of the locality having a ‘high standard of amenity’. To manage amenity and environmental impacts, a specific strategy is articulated. It is one involving separation from, and buffers to, sensitive and incompatible uses. Overall Outcomes (2)(d) and (i) relevantly state:142 “(d) A land use pattern is created for each area where there is a transition from lower impact uses on the edge to higher impact activities towards the centre, with buffer areas on the periphery to separate incompatible or sensitive uses.” … (i) Buffers are created between incompatible uses to ensure that there is no discernible amenity or environmental impacts which affect adjacent sensitive land uses.” (emphasis added) [125] The proposed development, when considered in plan view, will contribute to the spatial arrangement of the intended land use pattern as described in Specific Outcome 138 Ex.14.008, pp.1-2, Section A. 139 s 2.1.3(1)(b), IPA. 140 Ex.3.001, p.1-26, s 3.1(1). 141 Ex.3.001, p.1-26. 142 Ex.3.001, p.1-28, s 6.6(2). -- 27 of 99 -- 28 (d) above. An issue in this appeal is whether the buffers seen in plan view, taken in combination with separation distances between the proposed development and adjacent sensitive land uses, will achieve ‘no discernible amenity or environmental impacts’. For reasons that follow, the proposed development will not be sufficiently separated or buffered from sensitive residential uses to the east and south-east. It will have a discernible amenity impact on the residents of those areas. [126] Specific Outcome (2)(c) for the RSBEIAL provides guidance with respect to environmental management and visual amenity. It states:143 “Uses and works with the potential for material or serious environmental harm, establish and implement a site specific Environmental Management Plan, which describes the measures to be used to avoid or minimise adverse impacts, and how such measures are to be implemented during the life of the development.” (emphasis added) [127] An issue in the appeal is whether site specific management measures can be implemented and maintained during the life of the development. For reasons that follow, I was not satisfied this would be achieved in the event an approval was granted and acted upon. [128] Figure 1-1 of the planning scheme144 depicts, inter alia, the localities for the planning scheme. It can be seen from this figure that the RSBEIAL has seven discrete parts. The land is located in the second largest of those parts, being the elongated strip (stretching north-south) situated in the north-eastern corner of the planning scheme area. This area is referred to in other parts of the planning scheme as ‘Swanbank New Chum’. It is surrounded by land in the Urban Areas Locality where, inter alia, residential development is anticipated, and promoted. [129] The Swanbank New Chum area is given particular attention in two Specific Outcomes for the RSBEIAL.145 The area to which this planning relates is depicted on Figure 6- 7-1, which is a ‘Land Use Concept Master Plan’.146 A vision statement for the area includes the following stated objective:147 “Development is of the highest environmental standards and occurs in a fully master planned and landscaped setting.” (emphasis added) [130] Guiding principles are identified for development in Swanbank New Chum. The principles call for development to, inter alia: (a) create ‘a high quality business park environment that is distinct from traditional industrial areas’;148 (b) provide ‘a visually appealing backdrop’ to, inter alia, achieve an ‘interface[s] with surrounding residential areas to eliminate negative amenity impacts’; 149 143 Ex.3.001, p. 1-30, s 6.7(2)(c). 144 Ex.3.001, p.1-13. 145 Ex.3.001, pp. 1-30 to 1-40, ss 6.7(4) and (5). 146 Ex.3.001, p.1-41. 147 Ex.3.001, p.1-31, s 6.7(4)(a)(i)(D). 148 Ex.3.001, p.1-32, s 6.7(4)(a)(v)(D)(i). 149 Ex.3.001, p.1-33, s 6.7(4)(a)(v)(D)(ii). -- 28 of 99 -- 29 (c) retain ‘environmental corridors and buffers’;150 (d) rehabilitate and repair the hydrological network and the riparian ecology of Six Mile Creek and, to a lesser extent, secondary tributaries; 151 and (e) retain ‘remnant vegetation where possible’ to buffer future industry uses from nearby sensitive uses.152 [131] A Specific Outcome provides detail as to the ‘preferred pattern of development’ for Swanbank New Chum.153 In the context of ‘Development Concepts’ for this area, the planning scheme includes the following: “(ii) The uses and works within the Swanbank New Chum area are located and relate to each other in ways that- … (C) achieve a high standard of amenity with particular regard to minimising environmental and amenity impacts on existing and proposed residential areas and promoting overall visual attractiveness; (D) protect important areas of ecological significance and develop an overall greenspace setting through the protection of remnant native vegetation and supplementary planting on the visually prominent hillsides, ridgelines and creeklines;…” (emphasis added) [132] A review of the Land Use Concept Master Plan154 reveals the land is included in three designations, moving east to west: (1) Buffer/Greenspace for the majority of Lot 227; (2) the Regional Business and Industry Investigation Area in two separate portions of Lot 227 where it shares a common boundary with Lot 268; and (3) Land-Extensive, Business Enterprises, consuming Lot 268. [133] Within the Buffer/Greenspace area, it is recognised land may be degraded, contaminated and in need of rehabilitation. As to the future use of this land, Specific Outcome (5)(i)(v) relevantly provides:155 “Degraded or contaminated sites are rehabilitated and used for broad hectare recreational, environmental and land extensive business enterprises where there is generally no impact on nearby residential uses.” (emphasis added) [134] Lot 227 is to be targeted by the rehabilitation strategy identified in paragraph [97]. I did not understand the parties pressing for refusal to suggest the works proposed by the rehabilitation strategy will have an impact on residential areas. Nor did I understand there to be an allegation that the works proposed within the 150 Ex.3.001, p.1-33, s 6.7(4)(a)(vii)(B)(i). 151 Ex.3.001, p.1-33, s 6.7(4)(a)(vii)(B)(iii). 152 Ex.3.001, p.1-33, s 6.7(4)(a)(vi)(D)(iii). 153 Ex.3.001, p.1-34, s 6.7(5). 154 Ex.8.016, p.22. 155 Ex.3.001, p.1-38. -- 29 of 99 -- 30 Buffer/Greenspace areas would not be located, designed and managed to, inter alia, ‘avoid significant adverse effects on the natural environment’.156 [135] Little is said in the planning scheme about the area included in the Regional Business and Industry Investigation Areas on the Land Use Concept Master Plan. The reader is directed to provisions of the planning scheme with respect to the Investigation zone.157 I will turn to these provisions shortly. [136] The Land-Extensive, Business Enterprises designation applies to Lot 268, which contains the footprint of the landfill and resource recovery area. Specific Outcomes relevant to the designation require sites to:158 “…maintain a broad acre, greenspace setting, with the retention, where possible, of remnant native vegetation together with supplementary planting to enhance visual amenity.” [137] The land, in its rehabilitated form, will eventually comply with this requirement once vegetation has reached a mature state. [138] In terms of environmental impacts for land in the Land-Extensive, Business Enterprises designation, Specific Outcome (5)(e)(ix) states:159 “Uses or works which have significant environmental impacts – including air, water, noise, odour, dust and vibration emissions outside of the designated business and industry areas are avoided.” [139] It is convenient to now turn to the provisions of the planning scheme applying to the Investigation zone and Sub Area RBIA2. [140] Most of the land is included in the Investigation zone. The land use mix anticipated in this zone comprises ‘regional business enterprise and industry employment opportunities’.160 This is subject to the: “…resolution of applicable constraints such as potential amenity impacts on nearby residential areas, mining, flooding and availability of services.” (emphasis added) [141] Where constraints cannot be resolved appropriately, it does not necessarily follow that land within the zone is unsuitable for development. It is contemplated that new uses or works may still occur in such circumstances, but, again, subject to qualification. Such uses and works are limited to land extensive or low yield activities which have minimal building requirements.161 They are not to compromise business or industry activities. 162 Nor are they to have significant detrimental amenity impacts on existing or proposed residential areas. 163 156 Ex.3.001, p.1-39, s 6.7(5)(i)(vii)(E). 157 Ex.3.001, p.1-38, s 6.7(5)(g)(i). 158 Ex.3.001, p.1-36, s 6.7(5)(e)(i). 159 Ex.3.001, p.1-37, s 6.7(5)(e)(ix). 160 Ex.3.001, p.1-66, s 6.14(2)(a). 161 Ex.3.001, p.1-66, s 6.14(2)(e). 162 Ex.3.001, p.1-66, s 6.14(2)(f)(i). 163 Ex.3.001, p.1-66, s 6.14(2)(f)(ii). -- 30 of 99 -- 31 [142] Overall Outcome (j) for the Investigation zone promotes the rehabilitation of land in the zone, along with its use in an appropriate manner.164 [143] The land use pattern envisaged in Investigation zone is one of transition. Overall Outcome (2)(d) for the Investigation zone states:165 “A land use pattern is created for each area where there is a transition from lower impact uses on the edge to higher impact activities towards the centre, with buffer areas on the periphery to separate incompatible or sensitive uses.” (emphasis added) [144] This Overall Outcome is complemented by Overall Outcome (k) for the same zone, which states:166 “Buffers are created between incompatible uses to ensure that there are no discernible amenity or environmental impacts which affect adjacent sensitive land uses.” (emphasis added) [145] The two Overall Outcomes above are consistent, in substance, with the planning scheme provisions discussed at paragraph [124]. [146] Section 6.17 of the planning scheme identifies consistent and inconsistent uses, use classes and other development for the Investigation zone.167 Subsection (2) of this provision provides that 25 use classes, and other development, are consistent with the outcomes sought for the Investigation zone, provided a qualification is met, namely development is of: “…a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds…” [147] One of the uses identified in s 6.17(2)(t) is ‘special industry’. The use includes the operation of a facility for waste recycling, reprocessing and disposal. A development application seeking approval to materially increase the intensity or scale of an existing use of this kind in the Investigation zone is impact assessable.168 [148] The land forms part of a broader area that is Sub Area RBIA2. The provisions of the planning scheme with respect to this Sub Area provide finer grained planning for this part of Swanbank New Chum. The planning reflects that two categories of land use are supported in the Sub Area. The first category is low capital intensive ‘interim land uses’, such as agriculture and animal husbandry.169 The second category are those uses which:170 “provide more capital intensive, business, industry, recreation and community uses, including some ‘difficult to locate’ activities…” 164 Ex.3.001, p,1-67, s 6.14(2)(j). 165 Ex.3.001, p.1-66, s 6.14(2)(d). 166 Ex.3.001, p.1-67, s 6.14(2)(k) 167 Ex.3.001, p.1-76 and 77. 168 Ex.3.001, p.1-80. 169 Ex.3.001, p.1-74, s 6.16(2)(a)(iii). 170 Ex.3.001, p.1-74, s 6.16(2)(a)(iv). -- 31 of 99 -- 32 [149] The encouragement to be derived from this provision of the planning scheme is qualified. It is subject to the requirement that an applicant demonstrate: “…the use has no discernible amenity or environmental impacts outside of the Sub Area…” [150] That development is to have no discernible impacts outside of the Sub Area is consistent with the planning provisions set out at paragraphs [124] and [144]. [151] Other Specific Outcomes within the same part of the planning scheme dealing with RBIA2 highlight the importance of visual amenity considerations. In this regard, it is anticipated that uses and works will be of high visual quality when viewed from a range of locations, including nearby residential areas.171 [152] It is also contemplated that uses supported in the Sub Area: (1) will co-exist with the extent and severity of known impacts affecting the land, including impacts from mining;172 and (2) will be located in areas which, after a detailed assessment, are demonstrated to be geotechnically suitable.173 For reasons that follow, it has not been demonstrated the development proposed can satisfy either item (1) and (2). [153] Part 12 of the planning scheme includes development specific codes. Division 7 of this part of the planning scheme contains the Commercial and Industrial Code. Non- compliance is alleged with this Code and is said to warrant refusal of the development application. [154] In terms of environmental and amenity controls, the Commercial and Industrial Code envisages that uses and works, inter alia: (a) are not to cause nuisance or disturbance of nearby land, particularly for sensitive receptors;174 (b) are compatible with the physical characteristics of the site and character of the local area; 175 (c) provide reasonable buffers between incompatible land uses and zones; 176 (d) maintain a height and scale commensurate with the intent of the zone in which it is located and compatible with surrounding development; 177 (e) minimise the risk of exposure to harmful elements, with emphasis given to residential areas situated in close proximity; 178 (f) are developed and managed in accordance with acceptable environmental standards; 179 and 171 Ex.3.001, p.1-74, s 6.16(2)(b)(i) and (ii). 172 Ex.3.001, p.1-74, s 6.16(2)(a)(i). 173 Ex.3.001, p.1-74, s 6.16(2)(a)(ii). 174 Ex.3.001, p.1-123, s 12.7.3(2)(a)(i). 175 Ex.3.001, p.1-123, s 12.7.3(2)(a)(ii). 176 Ex.3.001, p.1-123, s 12.7.3(2)(a)(v). 177 Ex.3.001, p.1-123, s 12.7.3(2)(a)(vii). 178 Ex.3.001, p.1-124, s 12.7.3(2)(a)(xii). 179 Ex.3.001, p.1-124, s 12.7.3(2)(b). -- 32 of 99 -- 33 (g) have no significant detrimental effect on the amenity and general well-being of the area. 180 [155] The planning scheme expressly encourages the rehabilitation or repair181 of land included in the Land-Extensive, Business Enterprises designation on Figure 6-7-1. Part of the land is included in this designation. As to what is envisaged for this designation, guidance can be taken from preferred development outcomes for Swanbank New Chum, in particular, Overall Outcomes s 6.7(4)(a)(i)(G), (H) and (I). These provisions state:182 “(G) Development will progressively lead to the rehabilitation of areas degraded by past mining activities and the integration of these areas within a network of green spaces. (H) Green spaces include environmental buffers and corridors as well as active and passive recreation areas. (I) The Swanbank New Chum green space network is a regional resource, linking with the green spaces of surrounding communities and offering a wide range of recreation and environmental opportunities.” [156] Subject to the qualification identified at paragraph [115], I am satisfied, having regard to the evidence of Dr Chenoweth and Messrs Francis and Clowes that compliance has been demonstrated with these provisions. [157] The refusal case puts in issue the extent to which the proposed development can be characterised as sustainable given: (1) the potential for adverse environmental impacts; and (2) it involves increasing landfill capacity contrary to contemporary waste management policy. These points are said to have their foundation in two planning scheme provisions, namely ss 6.7(4)(a)(i)(A) and 6.7(4)(a)(iv)(A). The former is an Overall Outcome falling under an overall vision statement for Swanbank New Chum.183 The latter is also an Overall Outcome for Swanbank New Chum. It falls under a heading of ‘Development Themes’ and a subheading of ‘Quality Efficient Infrastructure Services’.184 The provisions are in the following terms: “(A) Swanbank New Chum is a flagship example of effective sustainable development integrated into the surrounding emerging communities of Ipswich City.” And: “(A) Swanbank New Chum is a leading example of sustainable industrial development.” 180 Ex.3.001, p.1-124, s 12.7.4(1). 181 Ex.3.001, p.1-37, s 6.7(5)(e)(x). 182 Ex.3.001, p.1-31. 183 Ex.3.001, p.1-30. 184 Ex.3.001, p.1-32. -- 33 of 99 -- 34 [158] The above provisions, and an assessment against them, are not, in my view, frontline reasons for refusal. Indeed, there are issues of much greater weight and importance. I have assumed compliance has been demonstrated with the above provisions. [159] Consideration of relevant planning context also requires two Temporary Local Planning Instruments and a Statement of Proposals to be examined. [160] Temporary Local Planning Instruments identify planning and development assessment policies to ‘protect all or part of a local government area from adverse impacts in urgent or emergent circumstances’.185 They may suspend or otherwise affect the operation of another local planning instrument, but do not amend or repeal that instrument.186 A Temporary Local Planning Instrument does not create a superseded planning scheme,187 nor result in an adverse planning change.188 They do however prevail to the extent of inconsistency with a planning scheme.189 [161] A notice of the making of Temporary Local Planning Instrument No.1 of 2018 (Waste Activity Regulation) was published in the Queensland Government Gazette on 6 April 2018.190 It took effect that day for a period not exceeding two years. [162] The 2018 TLPI was in force at the time the development application was made to Council. [163] The 2018 TLPI comprises four parts, namely: (1) the text of the TLPI identifying, inter alia, an overview, purpose, Strategic Outcomes, and definitions; (2) a Map (Attachment A) identifying the area to which the TLPI applies; (3) a code in Attachment B titled ‘Swanbank/New Chum Waste Activity Code’ (Activity Code); and (4) a Table of Assessment and Relevant Assessment Criteria. [164] Section 2.1 of the 2018 TLPI states: “This TLPI provides an interim policy response to address concerns raised by Ipswich City Council (the council) and the local community in respect to landfill and waste industry uses occurring in the Swanbank/New Chum industrial area.” [165] The area to which the 2018 TLPI applies is depicted in Attachment A. It bears a striking similarity to the area depicted on Figure 6-7-1 of the planning scheme. [166] The purpose of the 2018 TLPI is stated in 3.1 as follows: “The purpose of the TLPI is to regulate applications for new or expanded waste activities within the Swanbank/New Chum industrial area (located within the Ipswich local government area) to ensure this regionally significant economic area is appropriately regulated to protect existing, approved or planned residential and other sensitive receiving uses, from adverse impacts associated with waste activities.” 185 s 4(d), PA. 186 s 23(3), PA. 187 s 23(7)(a), PA. 188 s 23(7)(b), PA. 189 s 8(4)(d), PA. 190 Ex.3.002, p.2-9. -- 34 of 99 -- 35 [167] To achieve this purpose, the 2018 TLPI includes Strategic Outcomes, definitions, two waste activity regulation areas, prescribes categories of assessment and assessment benchmarks. The document also includes a land use code, namely the Activity Code. [168] There are three Strategic Outcomes stated in the 2018 TLPI. They are said to be comparable to DEOs in the planning scheme and prescribe the type of ‘Waste Activity Uses’ in identified waste activity regulation areas. There are two waste activity regulation areas, namely the ‘Swanbank / New Chum Waste Activity Area’ (Waste Activity Area) and ‘Swanbank / New Chum Buffer Area’. Save for a small part of its north-western corner, Lot 268 is included in the Waste Activity Area.191 The north- western corner of Lot 268 is where ancillary aspects of the landfill are located, such as the site offices and weighbridge.192 [169] Waste Activity Uses are defined in s 8.6 of the 2018 TLPI as follows: ““Waste Activity Use” means – The use of premises for: (a) “Compost Manufacturing Enclosed”; (b) “Compost Manufacturing Unenclosed”; (c) “Landfill”; and (d) “Rehabilitating a mining void”. [170] Each of the above uses are in turn defined. Only two are of direct relevance, namely: ““Landfill” means – (a) the use of land for the disposal of material such as domestic waste, putrescible waste, organic waste, regulated waste, building waste, commercial and industrial waste or the like, to raise the level of the site, or to fill or partly fill a mining void on a site. (b) The term includes the reprocessing of material from landfill on or off site.” And: ““Rehabilitating a mining void” means – (a) the filling of a mining void involving only ‘clean earthen material’.” [171] The phrase ‘clean earthen material’ is defined as follows: ““Clean Earthen Material” means- (a) bricks, pavers, ceramics or concrete that does not contain embedded steel reinforcing rods, and no piece has any dimension of more than 100mm; or (b) clean earth that has trace elements and containment levels within the interim ecologically-based investigation levels for urban use under the document ‘Schedule B(1)-Guidelines on the Investigation of Soil and Groundwater’, forming part of the 191 Ex.8.016, p.29. 192 Ex.1.036, p.15. -- 35 of 99 -- 36 National Environment Protection (Assessment of Soil Contamination) Measure 1999.” [172] The proposed development involves Landfill as defined in the 2018 TLPI. [173] One of the three Strategic Outcomes in s 3.2 of the 2018 TLPI provides that ‘Landfill’ only occurs in the ‘Waste Activity Area’. [174] Attachment C to the 2018 TLPI provides that an application for Landfill in the Waste Activity Area is impact assessable. Relevant assessment criteria for such an application is prescribed to include the Activity Code. Compliance with the code is achieved through consistency with identified Overall Outcomes and Specific Outcomes.193 Development that is inconsistent with the Activity Code is ‘undesirable development’ and ‘unlikely to be approved’. [175] The Overall Outcomes and Specific Outcomes for the Activity Code confirm two things. First, Landfill uses are directed to the Waste Activity Area. Outside of this area, Landfill is regarded as an ‘inconsistent use’.194 Second, there are five topics that call for close examination when assessing the merits of a Waste Activity Use, which includes Landfill. The topics are identified in Overall Outcome 3(2)(b) of the Activity Code, which states: “Waste Activity uses: (i) do not have a detrimental impact on the amenity of the surrounding area, particularly on existing, approved or planned residential areas or other sensitive receiving uses; and (ii) do not have a significant impact on visual amenity from residential and other sensitive receiving uses; and (iii) do not have a detrimental impact on the environment; and (iv) are designed, operation and maintained to avoid potential nuisance impacts on existing, approved, or planned residential and other sensitive receiving uses; and (v) achieve appropriate rehabilitation outcomes for land affected by former mining activities.” [176] There is alignment between Overall Outcome 3(2)(b) and the planning scheme. Both expressly call for an examination of amenity and environmental impacts of uses such as that proposed. They also make clear it is intended that land affected by former mining activities is rehabilitated. [177] Each of the matters identified in Overall Outcome 3(2)(b) are advanced through Specific Outcomes of the Activity Code. Specific Outcomes s 4(4) to (7) inclusive are directed towards applications for Waste Activity Uses. 193 Ex.3.002, p.2-14, s 2(1). 194 Ex.3.002, p.2-14, ss 3(2)(a) and 4(2) and p.2-16, Column 1, Buffer Area. -- 36 of 99 -- 37 [178] Specific Outcome 4(4) is relevant to ‘rehabilitation outcomes’, and provides: “(4) Waste Activity Uses achieve appropriate rehabilitation outcomes for land affected by former mining activities that: (a) add to a network of green spaces, environmental corridors and active and passive recreation areas; and (b) do not prejudice or compromise the future rehabilitation, use, repair or maintenance of the land; and (c) includes appropriate landscaping and revegetation strategies appropriate for the long-term use of the rehabilitated land.” [179] Specific Outcome 4(5) is relevant to the overall height of Waste Activity Uses, particularly those involving the filling of former mining voids, which have the potential to adversely impact on visual amenity. The provision states: “(5) Filling and earthworks associated with Waste Activity Uses: (a) do not extend beyond the top of former mining voids, except for approved minor contouring, that improves stormwater management and drainage outcomes; and (b) are designed, operated and maintained so that exposed waste is not visible from surrounding residential and other sensitive receiving uses at any time.” [180] Specific Outcome 4(6) deals with a range of environmental impacts. The provision states: “(6) Waste Activity Uses are developed in a manner that: (a) establishes and maintains native vegetation buffers to improve amenity or environmental impacts particularly where situated close to residential areas or riparian corridors; and (b) retains and maintains significant existing vegetation, particularly remnant native vegetation and areas of environmental significance; and (c) does not adversely affect surface or ground water quality, including through storm water runoff or the dewatering of former mines, and where possible, improves the quality of nearby surface and ground water; and (d) does not adversely affect stormwater management and where possible, improves the management of the catchment.” [181] Specific Outcome 4(7) calls for an examination of amenity impacts. The provision states: -- 37 of 99 -- 38 “(7) Waste Activity Uses are designed, operated and maintained so that: (a) no nuisance or disturbance is caused to the amenity of surrounding and nearby residential and other sensitive receiving uses; and (b) airborne emissions, including odours, dust or substances harmful to public health, do not cause nuisance or harm to surrounding and nearby residential and other sensitive receiving uses; and (c) the generation of noise or light overspill does not cause nuisance or disturbance to surrounding and nearby residential and other sensitive receiving uses.” [182] Notice of an amendment to the 2018 TLPI was given on 31 August 2018. The amendment did not change the period in which the document would have effect. The amendment added Specific Outcome 4(8) to the Activity Code. It is directed at applications seeking approval to change or expand an existing Waste Activity Use and states: “(8) Applications to change or expand an existing Waste Activity Use: (a) may be given favourable consideration where it can be clearly demonstrated, with a high degree of certainty, that improved amenity, environmental or community outcomes are able to be achieved; (b) are not likely to be approved where such changes may lead to increased detrimental amenity, environmental or community outcomes.” [183] The 2018 TLPI, in its amended form, was repealed in late March 2020. [184] Council alleges non-compliance with provisions of the Activity Code forming part of the 2018 TLPI on the footing it was an assessment benchmark in force at the time the development application was properly made. [185] On 1 April 2020, notice was given in the Queensland Government Gazette of Temporary Local Planning Instrument No.1 of 2020 applying to the Ipswich City Council Local Government Area (2020 TLPI). The 2020 TLPI is, for all intents and purposes, identical to the amended version of the 2018 TLPI. [186] By the date these reasons were published, the 2020 TLPI was repealed. [187] Council relies upon non-compliances with the Activity Code forming part of the 2020 TLPI to warrant refusal. It does so on one of two alternative bases, namely: (1) on the footing an assessment of the development application against the document should be given weight under s 45(8) of the PA; or (2) on the footing the document is a ‘relevant matter’ for consideration under s 45(5)(b) of the PA. [188] Given the delay in delivering these reasons, and so as not to visit this delay upon Council, I have assessed the development application on the basis the 2018 TLPI is -- 38 of 99 -- 39 an assessment benchmark that must be considered. The 2018 TLPI as amended and the 2020 TLPI are matters to which weight may be given in the assessment of the development application on the footing they are relevant matters under s 45(5)(b) of the PA. The extent to which the assessment against the Activity Codes forming part of the TLPIs informs the exercise of the discretion under s 60 of the PA is dealt with later in these reasons. [189] The final piece of planning context to examine is a Statement of Proposals promulgated in 2019.195 A review of its contents confirms it is not a draft planning scheme, but rather a proposal to prepare a new planning scheme. That planning scheme may, or may not, reflect the forward planning set out in a draft Strategic Framework attached to the document. There are many steps to go before the draft Statement of Proposals is converted into a draft planning scheme ready, and approved for, public notification. [190] Council alleged non-compliance with provisions of the draft Strategic Framework. A review of the document, which has no statutory force, reveals five things. First, the document reflects, and seeks to respond to, contemporary waste management principles espoused in the Queensland Government’s Waste Management and Resource Recovery Strategy.196 Second, the document recognises there is an ongoing need to rehabilitate contaminated or degraded land in Swanbank New Chum. Third, Waste Activity Uses, which include landfill, are anticipated in the same area captured by the 2018 and 2020 TLPIs.197 Fourth, landfills are anticipated where there is a demonstrated need for the ‘additional landfill capacity above that already approved’.198 Five, the environmental and amenity tests for a landfill bear a striking similarity to the Specific Outcomes of the Activity Code set out above. [191] The draft Strategic Framework is not, in my view, to be treated as if it were a draft planning scheme. It is well short of this status. This means it is unnecessary to approach the document: (1) as if a detailed compliance assessment should be carried out against it; or (2) on the footing the ‘Coty’ principle is engaged. That does not however mean the document should be ignored. Its very existence, and substance, is of assistance. It permits an examination of the strategies espoused in the planning scheme, and TLPIs, for consistency with contemporary planning and waste management policy. [192] A review of the draft Strategic Framework reveals, in my view, it is consistent with the planning scheme and TLPIs. All of these documents, taken as a collective, indicate the land may be used for an integrated waste facility such as that proposed, subject to an examination of environmental and amenity impacts. When this is appreciated, neither the Statement of Proposals, nor the draft Strategic Framework, suggest the planning scheme and TLPIs are out of date, overtaken by events, or unsoundly based. Put another way, the draft Strategic Framework does not suggest compliance with the planning scheme, and TLPIs, will lead to development that is incongruous with contemporary planning, waste management policy or contemporary expressions of the public interest. This, in my view, informs the weight to be given to an assessment against the planning scheme in the exercise of the discretion under s 60 of the PA. 195 Ex.3.003. 196 Ex.3.003; p.3-20, s 3.5.4.4 – referring to ‘circular economy’ and the waste management hierarchy where landfill is a measure of last resort. 197 Compare Ex.3.003, p.3-34 with Ex.3.002, p.2-13 and p.2-21. 198 Ex.3.003, p.3-21, s 3.5.4.4(5)(a)(i). -- 39 of 99 -- 40 [193] Council, and its town planner Mr Perkins, emphasised that the draft Strategic Framework introduces a new test for landfill facilities; it requires need to be demonstrated for additional landfill capacity above that already approved. I accept this is a new test. It has an identifiable purpose. One purpose, in my view, involves the introduction of a test which permits a balance between competing considerations to be struck, namely: (1) to make provision, in a land use sense, for important and necessary pieces of infrastructure; as against (2) avoiding an oversupply of landfill capacity, which may, inter alia, give rise to adverse impacts, including an adverse impact on amenity and the waste industry. To the extent it is asserted an approval would lead to an adverse impact on the waste industry, I am satisfied an approval would not lead to such a result. An approval would lead to the addition of non- putrescible landfill airspace capacity for the benefit of South east Queensland in circumstances where: (1) available landfill airspace capacity of this type is nearing exhaustion; and (2) to allow this type of landfill airspace to exhaust in the short to medium term is not without adverse consequence. To this it can be added (for reasons that follow), an approval will not result in an oversupply of landfill capacity manifesting in adverse impacts on the waste management industry. [194] Given the matters traversed in paragraphs [189] to [193], the Statement of Proposals is not a feature of this appeal that advances the refusal case. The primary planning documents of interest are the planning scheme, followed closely by the TLPIs. The properly made submissions [195] An assessment manager for an impact assessable application (and this Court on appeal) is required to take into account properly made submissions. Here, the development application was the subject of two rounds of public notification. It attracted 320 properly made submissions and 24 submissions that were not properly made.199 As to the mix, 19 submissions were in support of the proposal; the balance called for refusal. [196] The submissions were marked exhibits 2.001 to 2.344 inclusive. [197] I reviewed all of the submissions. Those calling for refusal of the development application are based on a number of subjective opinions. The submissions assert refusal should follow having regard to: (1) traffic impacts; (2) noise, air and soil pollution; (3) adverse health impacts; (4) the nature of the proposal, which does not rehabilitate the land; (5) visual amenity and character impacts; (6) impacts on local flora and fauna; (7) impacts on stormwater and groundwater; (8) uncertain geological conditions and geotechnical instability issues; (9) lack of need for the development; (10) the proximity to residential communities; and (11) non-compliance with adopted planning controls. [198] The submissions objecting to the proposal also raise for consideration an intangible impact on amenity. It is said the proposal, if approved, would serve to perpetuate, wrongly, the notion that Ipswich is a dumping ground for waste generated by, and for the benefit of, other communities. The further point is also made that communities who stand to benefit from a waste disposal facility are physically removed from them. This means they do not experience the impact uses of this kind have on the daily lives of a residential community. This point is not without force. 199 Ex.8.016, p.16, para 62. -- 40 of 99 -- 41 [199] The submissions made in support of the proposal raise a number of points for consideration. In summary terms, the submissions emphasise that: (1) landfill is an essential service; (2) the land is well located for the proposed development; (3) the operator is an experienced and trustworthy landfill operator; (4) the proposed development will contribute to the economy; and (5) the rehabilitation outcome, assuming an approval was granted, is appropriate. [200] An expression of subjective opinion or desire in a submission is relevant to the exercise of the planning discretion. The more difficult point to come to grips with is the weight to be given to those opinions and desires in the circumstances of any particular case. [201] As to the submissions that are supportive of approval, they are by no means decisive, but indicate there is a measure of support for the proposed development in the community. This is entitled to weight in the exercise of the discretion under s 60(3) of the PA. It is not decisive in its own right but is supportive of an approval. [202] The vast majority of submissions do not support approval. Those submissions, taken collectively, suggest the proposed development will have adverse impacts, including impacts on amenity and the environment. For reasons that follow, this aspect of the submissions find support in the technical evidence before the Court. This will be given weight in the exercise of the discretion under s 60(3) of the PA. Whilst far from decisive, it is a matter that adds weight to the refusal case. The disputed issues [203] The issues to be determined are identified in a consolidated issues document. The document was agreed between the parties and described as ‘Agreed list of issues for determination’ (list of issues).200 The list of issues is 8 pages in length and identifies, inter alia, ‘focal’ provisions relied upon by the refusing parties to allege ‘non- compliance’ with adopted planning controls.201 The list of issues is attached to these reasons and marked Annexure A. [204] It can be observed that the list of issues does not suggest ecological (flora and fauna) and traffic impacts warrant refusal of the development application. Nor does the list suggest that impacts occasioned by reason of noise, dust and odour emissions warrant refusal. These are all matters for conditions. [205] The list of issues raise 22 matters for the Court’s consideration and determination. The order in which they appear in the list says little, if anything, about their importance in the appeal. In my view, the issues can be split into two categories. [206] The first category are those issues having the greatest potential to impact on the exercise of the planning discretion, both in favour of approval or refusal. The issues of this character are as follows: 1. Whether it has been demonstrated the environmental impacts and risks of the proposed development are acceptable? 200 Ex.14.008. 201 The focal provisions are highlighted in yellow. The provisions that are not highlighted are said to provide context. -- 41 of 99 -- 42 2. Whether the impacts of the proposed development in amenity terms will be acceptable? 3. Whether there is compliance with those parts of the planning scheme and Activity Code going to the acceptability, or otherwise, of environmental and amenity impacts? [207] The second category of issues are those relevant to the exercise of the discretion but unlikely, in and of themselves, to be decisive in the appeal. The issues falling into this category are as follows: 1. Whether the proposed development will sufficiently promote resource recovery? 2. Whether the proposed development is ‘sustainable development’? 3. Whether there is an economic, community or town planning need for the landfill component of the proposed development? 4. Whether an approval would delay the rehabilitation of the land and its redevelopment for uses anticipated by the planning scheme? 5. Whether an approval of the proposed development would be contrary to planning principle having regard to the above issues? 6. Whether compliance is demonstrated with those parts of the planning scheme and Activity Code informed by the above issues? 7. Whether there are relevant matters that favour approval in the exercise of the discretion? [208] Non-compliance is alleged with State Code 22, which is relevant to the code assessable component of the development application. It is unnecessary to dwell in any detail upon these alleged non-compliances given a sensible concession made by Council. Paragraph 112 of Council’s written submissions states, in part:202 “As is evident from the Issues in Dispute (Ex.14.008), the code assessable components of the proposed development rise and fall on the same issues as those relevant to the impact assessable components…” [209] I turn now to deal with the issues identified in paragraph [206]. Environmental impacts and risk [210] The proposed development has the potential to adversely impact on the environment. This risk subsists during the operational and rehabilitation/post-closure phases of the use. The latter phase continues for decades after the landfill has ceased receiving non- putrescible waste. 202 Ex.14.028, pp.56-57. -- 42 of 99 -- 43 [211] It was not suggested the development application should be refused simply because it carries the risk of adverse environmental impact.203 This was entirely appropriate. As Judge Quirk observed in Lane v Gatton Shire Council & Anor [1988] QPLR 49 at 51: “The attractions of avoiding responsibility for allowing any proposal which has an element of serious risk, while only too obvious, must be resisted. As Carter J. when constituting this Court in Davjan v Noosa Shire Council 1981 QPLR 69 observed, when a similar situation arose, “such an approach would be superficial and an abrogation of my judicial function”. He went on to point out that the standard to which a tribunal must be satisfied that a development will not of itself be a source of risk… is the “civil standard”, namely, “a degree of persuasion of the mind according to the balance of probabilities”.” [212] Lane was cited by Judge Quirk in GFW Gelatine International Ltd v Beaudesert Shire Council & Ors [1993] QPLR 342 at 352-353. His Honour said: “In this case, the Court is once more faced with a proposal which, if not properly considered, planned and executed has a potential to pose a serious threat to the environment and in particular to water quality in the Logan River. The way in which the Court should approach a case of this kind is well established by decisions of this and other Courts in comparable situations (Rejfek v McElroy (1965) 112 CLR 517; Davjan v Noosa Shire Council (1981) QPLR 69; Esteedog Pty Ltd v Maroochy Shire Council (1991) QPLR 7), the Court must be careful to resist the attractions of avoiding responsibility for allowing a proposal which has been demonstrated to have its risks if not handled carefully and which has been the subject of considerable public attention and feeling (Lane v Gatton Shire Council (1988) QPLR 49). Justice must be done for all interested parties and this calls for a fair-minded assessment of the proposal on the evidence given free from any emotive influences which matters of this kind are prone to attract.” [213] Since Lane and GFW Gelatine, a body of jurisprudence has developed with respect to the precautionary principle. This principle has received statutory recognition. As Judge Rackemann observed in Clermont Quarries Pty Ltd v Isaac Regional Council & Ors [2021] QPELR 65 at [12], the precautionary principle does not call for intolerance to risk under any circumstance (footnotes omitted). His Honour said: “The case involves a consideration of the risk, in particular to human health and/or the environment, potentially associated with a proposal. That is not unusual. Whilst the submissions for the appellant pose the question “why take the risk?”, the Court has long resisted the attractions of avoiding responsibility for allowing a proposal which has been demonstrated to have some risk unless handled appropriately. Consideration needs to be given to the nature and extent of the risk and to the ways and means by which it is proposed to be addressed or managed. Whilst, in more recent times, the precautionary principle has received statutory recognition, that principle (which the appellant did not invoke) does not call for a nervous approach, or one 203 Ex.14.028, p.8, para 21. -- 43 of 99 -- 44 which is intolerant of any risk under any circumstances. Further, in addressing risk, it must be remembered that…the standard of proof remains the civil standard.” [214] The Clermont Quarries decision, with which I respectfully agree, makes two points of application here. First, the mere presence of risk does not, in and of itself, call for a nervous approach or intolerance under any circumstance. Second, an assessment of risk, and its acceptability, requires an examination of: (1) the nature and the extent of the risk; and (2) the means by which it is to be addressed. Such an approach is entirely consistent with the following observation in GFW Gelatine (at 353): “The onus of showing that the application for town planning consent should be approved of course rests with the Applicant, but this is not to say that in a proposal yet untried, the complete absence of any likely future difficulty must be demonstrated. It is essential that it be shown that the relevant procedures and their likely impact on the environment are properly understood by the Appellant and its expert consultants and that there is a capacity to deal with any difficulty that might arise in a way which will preclude unacceptable results. The results that are achieved are all important and the means whereby these results are achieved are less so. While there should be no uncertainty at all about the standards that are called for, there is more room for flexibility regarding the way in which these results are attained. Lessons will be learned in practice and there will, no doubt, be advances in technology…” [215] Council, and the co-respondents, advanced a refusal case founded upon the following passage cited from GFW Gelatine above: ’It is essential that it be shown that the relevant procedures and their likely impact on the environment are properly understood…and that there is a capacity to deal with any difficulty that might arise in a way which will preclude unacceptable results.’ With this statement in mind, it was submitted Cleanaway does not have the capacity to deal with difficulties arising on the land in a way that precludes unacceptable results. [216] To preclude unacceptable results requires ongoing maintenance, vigilance, and operational efficiency on the part of a landfill operator.204 Having regard to paragraphs [56] to [86], Cleanaway has not achieved this at all times at the existing landfill facility. Cleanaway has had significant difficulties managing the use in accordance with the requirements of its current EA. The failure to do so has been the product of two interrelated factors: (1) site constraints; and (2) Cleanaway’s poor management of engineering controls and systems, the purpose of which are to ensure the use co-exists with known site constraints. [217] There are a number of site constraints relevant to environmental risk, in particular, the risk associated with the management of leachate. First, the landfill sits in a void created by mining activities. Leachate is unable to gravity drain in this landform. To prevent contamination of groundwater, leachate must be contained in the landfill cell and pumped to the surface for treatment and disposal. Second, the landform is substantially disturbed, with known and unknown subterranean fractures, connections 204 T16-52, L4-8. -- 44 of 99 -- 45 and pathways. This predisposes the land to unwanted interactions between surface soils, surface water and groundwater. This explains why it is critical the liner within the base of a landfill cell retains its integrity to separate leachate from the surrounding geological conditions. The third site constraint relates to the groundwater level. In this locality, groundwater has not recovered to its pre-mining level. It is still rebounding. This is relevant to the hydraulic gradient or pressure applied to the base and sides of a landfill cell liner. Pressure dictates the rate, and direction of flow (of groundwater or leachate) into, or out of, a landfill cell. This can be seen from the circumstances discussed at paragraphs [60] to [64], which occurred when the leachate was above the base of the cell liner. [218] The site constraints identified above are relevant to the existing and proposed landfill operations. They demand vigilance from the operator in its management of leachate to avoid: (1) leachate and waste mixing with clean water sources; and (2) the generation of excess leachate, which must be collected and managed. [219] The matters traversed in paragraphs [56] to [86] establish that Cleanaway has fallen short in in terms of its management of the landfill facility. Poor management has resulted in the following. First, there has been a failure over a number of years to ensure leachate does not exceed 300mm in height above cell liners. Second, contaminated water has been released on three occasions from stormwater devices, with contaminant concentrations exceeding prescribed discharge limits. Third, groundwater was contaminated by the release of, inter alia, ammonia. This was due to side liners being pierced while there was an elevated level of leachate above the liner. The elevated levels of leachate are likely to have created a hydraulic gradient favouring exportation of leachate into the surrounding groundwater. Fourth, poor management practices have led to excessive leachate generation, some of which has contained PFAS subsequently discharged to Void 10 and, in turn, Six Mile Creek. [220] The evidence did not establish that a solution has been identified and implemented for each and every one of these difficulties to preclude adverse results. Most notably, at the time of the hearing, leachate levels remained at a significant level above the base liner. The tenor and substance of Ms Barnes’ evidence left me with the impression that Cleanaway was waiting for this Court to grant an approval before each and every operational difficulty was addressed. This was a matter of considerable concern given: (1) the existing obligations imposed on Cleanaway under its current EA; and (2) the extent of leachate above the base of a number of landfill cells. [221] The assessment can be paused at this point, and the following question posed: is it relevant to consider Cleanaway’s past performance to determine whether, in the context of future performance, it has the capacity to deal with an operational difficulty on the land in a way that will preclude unacceptable results? [222] This question is, in my view, answered in the affirmative. The body of evidence going to past performance: (a) confirms the land has a number of constraints impacting on the successful operation of a landfill that is unable to gravity drain and is reliant on engineering solutions to prevent leachate migrating to, and contaminating, the receiving environment; -- 45 of 99 -- 46 (b) confirms the management of known constraints (in the context of a landfill that does not have the benefit of gravity drainage) is difficult, even for a large and well known operator; (c) suggests conditions imposed on relevant authorities, despite best intentions, have not precluded poor management practices, nor, to adopt the words of Judge Quirk, have they precluded ‘unacceptable results’; (d) indicates there is a need for Cleanaway to significantly improve its approach to the management of the land and the existing use; and (e) makes good the proposition that there is a relationship between non-compliance with conditions of an authority, such as an EA, and increased environmental risk. [223] With respect to (d) above, success in this appeal for Cleanaway turns, in part, on the Court accepting two propositions: (1) the proposed development can be conditioned to manage its impacts; and (2) Cleanaway can execute a management strategy consistent with the conditions imposed to preclude adverse results. Past performance on this very site for the same land use suggests there is good reason to be circumspect about item (2). Indeed, the evidence makes clear that the success of the proposed development in environmental terms requires Cleanaway to significantly improve its standard of management. As Dr Johnston, who was called by the Chief executive, correctly observed:205 “…So my position would be that the past performance is not acceptable, and that Cleanaway has to improve its performance quite significantly in order to meet the standards…” And:206 “…I think I said this morning, past performance is perhaps a predictor of future behaviour but, in this case, his Honour would have to be convinced that Cleanaway could manage the site in a better way than they’ve completed to date.” [224] With respect to (e) above, the evidence establishes that past performance can inform an assessment of environmental risk. This is because Cleanaway’s past performance has led to admitted non-compliances with conditions of the current EA, more particularly, conditions intended to mitigate environmental impacts. Dr Johnston explained why non-compliance was relevant to an assessment of risk:207 “…the existing non-compliances on the Cleanaway site are obviously of concern. And we’ve discussed those. Why are they of concern to you?---Non-compliances indicate an increased amount of risk. I said this morning the management of the site is largely a question of risk amelioration. There are a number of measures specifically taken to reduce the risk that leachate will mix with surface water and groundwater. If the conditions of the environmental authority are not complied with, one could only come to the conclusion that the 205 T16-37, L28-30. 206 T16-51, L25-28. 207 T16-56, L39 to T16-57, L2. -- 46 of 99 -- 47 level of risk is heightened as a consequence of that. So I take seriously the fact that there’s an environmental authority which has been issued…and that there have been non-compliances which are problematic.” (emphasis added) [225] None of this is to suggest an examination of past performance is to punish Cleanaway as if this were a criminal proceeding. This is a merits appeal. In that context, past performance is one of a number of matters that have informed my assessment of environmental risk. [226] Returning to the two points of application identified in paragraph [214], it can asked: what is the nature and extent of the environmental risk here, and the means by which it is to be addressed? [227] The environmental risk attracting the greatest attention in this appeal relates to leachate, and the need to separate it from groundwater, surface water and waste. [228] A large body of evidence with respect to the design and operation of landfills explains how it is proposed to achieve this. It is to be achieved by a combination of measures. First, prior to the deposition of waste over an existing cell or Cell 6, a composite liner, which includes a geomembrane layer (HDPE liner), will be placed. The liner physically separates the waste and leachate from groundwater. The ongoing integrity of this liner is critical to the protection of groundwater and minimisation of environmental risk.208 The second measure involves the use of a range of engineering solutions to provide surface water diversion, groundwater depressurisation and leachate removal and treatment. Third, Cleanaway accepts groundwater, leachate and surface water should be the subject of ongoing monitoring. Fourth, Cleanaway accepts a condition should be imposed limiting the size of the landfill working face. This is to reduce the area for clean water to infiltrate a landfill cell. Finally, the landfill cells will be progressively capped and maintained to minimise rainfall infiltration. This is required to starve the waste beneath the cap of water and, in turn, avoid legacy issues.209 [229] To demonstrate these measures can address known environmental risk, Cleanaway led evidence from 9 experts210 in 11 separate areas of expertise. The areas of expertise related to groundwater, PFAS, stormwater and flooding, landfill design, landfill gas management, leachate management, geotechnical engineering, spontaneous combustion, phytocap design, phytocap vegetation and fires. The evidence included two substantive joint expert reports, one for landfill design and rehabilitation and a second for surface water and groundwater. The former is 498 pages in length, split into two volumes.211 The latter is 353 pages in length.212 The subject matter traversed in these joint expert reports is technical and complex. [230] After reviewing the technical evidence, I was satisfied Cleanaway’s experts adopted a rigorous approach to the assessment of environmental risk and the suitability of mitigation measures to address that risk. That evidence is founded on an important assumption, namely: the engineering controls and management measures proposed 208 Ex.8.010, p.54, para 118. 209 Ex.10.005, p.6, Section 2.2 e). 210 Dr Bennetts, Dr Salt, Dr Wright, Dr Mendham and Messrs Ife, Clark, Green, Morphet and Francis. 211 Ex.8.012 and Ex.8.013. 212 Ex.8.010. -- 47 of 99 -- 48 can be conditioned, implemented and maintained to manage environmental risk to an acceptable level. As these reasons explain, I am not satisfied the evidence established this assumption can be accepted and acted upon. [231] The position advanced by Cleanaway was supported by Dr Johnson. He gave evidence with respect to surface water, groundwater and leachate management. I was particularly grateful for his assistance. Dr Johnson sort to cut through the very large body of technical evidence and focussed on the points he regarded as having the greatest significance. He approached issues of this character in a pragmatic way. This is revealed in the following contribution attributed to Dr Johnson in a joint expert report dealing with, inter alia, surface water and leachate:213 “37. TJ says that the existing non-compliances on the Cleanaway site are obviously of concern, but cannot reasonably be an issue in the current application unless it is demonstrated that the technical solutions put forward by the applicant are not achievable, or that the risk of contamination following application of these solutions is unacceptably high. I do not consider this to be the case, with the management measures proposed by the applicant generally in accord with Best Management Practice. However. I acknowledge that the applicant must demonstrate and verify by monitoring that the management measures will be adequately implemented. The issue of managing the existing non-compliances and off-site water contamination is a separate matter to be addressed between the operator and the Department of Environment and Science. In my opinion, the applicant’s consultants have successfully shown that suitable measures are available to manage stormwater and leachate on this site provided that suitable conditions of approval are adequately complied with.” (emphasis added) [232] The passage set out above reflects that Dr Johnson asked and answered three questions: (1) has it been demonstrated the technical solutions put forward by Cleanaway are achievable? (2) is the risk of contamination following application of the technical solutions unacceptably high? and (3) has Cleanaway demonstrated that suitable measures are available to manage stormwater and leachate on the land? Dr Johnson concluded that each question is resolved in the affirmative, subject to three assumptions: (a) the technical solutions adopted are in accordance with ‘best management practice’; (b) Cleanaway demonstrates and verifies, by monitoring, the technical solutions have been properly implemented; and (c) conditions of approval are complied with. [233] Like Cleanaway’s experts, Dr Johnson’s evidence assumes the proposed management measures can be conditioned, implemented and maintained. As I observed above, I was not satisfied the evidence established this assumption should be accepted. 213 Ex.8.010, p.10, para 37. -- 48 of 99 -- 49 [234] The evidence of Council’s experts, namely Messrs Amaral, Sutherland and Collins, taken in combination, suggests it cannot be assumed conditions imposed on an approval, which are intended to manage environmental risk to an acceptable level, can be maintained. A multitude of reasons (taken in combination) were advanced as to why this is so. The reasons remaining at the close of evidence214 can be divided into two categories. First, reasons intended to demonstrate leachate management is not only critical, but a difficult task on the land. Second, reasons that explain why the management measures proposed are critical and are incapable of being maintained. [235] I will start with the first category of reasons. These reasons do not warrant refusal in and of themselves. They provide context to inform the second category of reasons. [236] Mr Amaral and Mr Sutherland pointed out that the landform was poorly suited to landfill because it involved the placement of waste within a void that cannot gravity drain. This, as I understood the evidence, is because placement of waste within a void increases the risk of leachate generation, and makes more difficult the separation of surface water, groundwater and leachate. It also renders more difficult the task of monitoring leachate levels (height and concentration). In simple terms, this is because leachate, and the base of any landfill cell, is below ground and cannot be the subject of visual inspection. This means heavy reliance is placed on subsurface monitoring systems, which reactive to operational difficulties rather than proactive. That this is so, is borne out by the circumstances discussed at paragraphs [60] to [64]. [237] I accept the absence of gravity drainage is a key constraint. This does not, in and of itself, mean the land is unsuitable for the proposed development. Rather, the constraint is one of a number of reasons that explain why there is a genuine need for ongoing vigilant leachate management and a cap precluding the infiltration of water. The former is required to ensure: (1) leachate in the base of a landfill cell at any given time sits beneath the waste above it; and (2) leachate in the base of a landfill cell is separated from groundwater. The ongoing operation of a pumping and treatment chain is proposed here to address item (1). A liner system is proposed to address item (2). As to a cap, it is required to prevent the infiltration of water into the waste mass to avoid the generation of leachate and the further mobilisation of contaminants within the waste. If these measures are unable to preclude the adverse results they are intended to address, that is, in my view, an indicator the proposed development is inconsistent with a known constraint of the land. To arrive at such a conclusion necessarily requires an assessment of the design, and efficacy, of the management measures proposed. [238] Mr Amaral and Mr Sutherland contend the land is unsuitable for landfill given the proximity of waste to groundwater. The point advanced was that appropriate separation between groundwater and leachate is problematic. This is because a natural unsaturated attenuation zone cannot be maintained between the waste, its concomitant leachate, and groundwater. This point was raised in circumstances where it is uncontroversial the groundwater level has not reached equilibrium and sits at or about the base of the landfill.215 That the groundwater is proximate to waste is confirmed 214 The material prepared pre-trial suggests the potential for the spontaneous combustion of carbonaceous material beneath liners was a point in issue. Mr Amaral conceded this was a matter for conditions at T20-68, L15-31 and T20-69, L18-25. Surface water and stormwater considerations were also matters for conditions, subject to the views expressed by Mr Sutherland and Mr Amaral. 215 T18-33. L3-4. -- 49 of 99 -- 50 by the records of a contractor retained to construct depressurisation trenches for Cell 3B.216 [239] In support of this point, Mr Sutherland made reference to a guideline published by DES, and similar guidelines from New South Wales and Victoria. These documents are not assessment benchmarks. They do however fall within the ambit of ‘relevant matters’ for the purpose of s 45(5)(b) of the PA. I have considered the documents as relevant matters but kept steadily in mind that they: (a) are ‘guidelines’; (b) do not purport to prescribe one solution for landfill design and operation from which there can be no departure; (c) are not assessment benchmarks; and (d) are not incorporated into the planning scheme or TLPIs – by way of example, neither the planning scheme or TLPIs suggest an application for landfill will be refused because it fails to make provision for a natural unsaturated attenuation zone or would involve placement of waste beneath the regional groundwater table. [240] In his further statement of evidence, Mr Sutherland cited four passages from the DES guideline. He placed particular emphasis on the following two passages: “…Maintain an adequate separation between the base of the liner and the highest expected groundwater level.”217 And: “…A preferred site for a landfill is one that minimises the risk of groundwater pollution by providing a natural, unsaturated attenuation layer beneath the liner for contaminants that may leach through it…”218 [241] I accept the proposed development involves the placement of waste proximate to groundwater. The evidence suggests groundwater sits beneath the landfill generally between RL16 and 18m AHD, save for the south-eastern corner where it sits at about RL33m AHD.219 Construction details show the base level of most landfill cells above RL18m AHD, and above the water table. The details also reveal that a depressurisation system is proposed under Cell 3B to reduce the height of groundwater in the south-eastern corner. 220 [242] When existing circumstances are examined, it is correct to say that a natural unsaturated attenuation zone has not been provided between waste and the rebounding groundwater level. The purpose of such a zone is to absorb metals and other contaminants in the event leachate migrates out of a landfill cell due to liner failure. The zone is not regarded as a complete fix or failsafe. This is because it is not impermeable. The zone acts to retard flow, and reduce the concentration of contaminants migrating towards groundwater. 216 T18-32, L21-44. 217 Ex.10.005, p.28. 218 Ex.10.005, p.29. 219 Ex.8.010, p.64, para 192 and pp.81 and 95 (BH14). 220 Ex.8.010, p.64, para 193. -- 50 of 99 -- 51 [243] Whilst the absence of a natural unsaturated attenuation zone beneath the waste here is relevant, it does not call for refusal in and of itself. Section 5.2.3 of the DES Guideline relevantly states:221 “Regardless of the location, landfill should only be sited in areas where the potential impacts on groundwater have been properly assessed. Part of this assessment involves development of a hydrogeological risk assessment. The outcomes from the hydrogeological risk assessment are expected to outline the potential risks to groundwater and the engineering controls that will provide protection of the groundwater. This may include (but not limited to) the following:  required separation from groundwater and attenuation layer  groundwater recovery system  containment barrier design  design and management practices to protect groundwater quality. Landfills that are, or have the potential to be, below the water table must ensure that the engineering controls to manage the potential impact of leachate on the groundwater (and vice versa) are implemented and managed/reviewed until it is demonstrated that the risk of pollutants migrating from the landfill has ceased…” (emphasis added) [244] Section 5.2.3 anticipates that an alternative solution may be provided to a natural unsaturated attenuation zone. The alternative involves the use of engineering controls. That controls of this character are proposed raises this issue: whether engineering controls can be conditioned, implemented and maintained to protect groundwater? [245] The evidence of Mr Sutherland and Mr Amaral suggests this will not be easily achieved here given: (1) the absence of gravity drainage; (2) the proximity of groundwater to waste; (3) the absence of a natural unsaturated attenuation zone; (4) host geological conditions; and (5) the nature of the subbase under existing landfill cells. As to host geological conditions, they are far from ideal. The geological sequence includes mine workings that provide preferential pathways for groundwater. The subbase for the existing landfill cells is also far from ideal. It consists of end dumped unconsolidated mine spoil. The spoil is hydraulically connected to groundwater. [246] The combination of items (1) to (5) underscore why liner integrity is critical to the protection of groundwater in this case. Depending on the hydraulic gradient, a break in a cell liner gives rise to a risk of groundwater contamination. This is because leachate may migrate out of the landfill cell into groundwater, or alternatively allow groundwater to migrate into the landfill cell. Whether the former results in an adverse impact (i.e. contamination) turns on the nature and volume of leachate that escapes. The nature and extent of contamination, if any, is unlikely to be known until after such an event has occurred. 221 Ex.4.006, p.84. -- 51 of 99 -- 52 [247] Migration of groundwater into a landfill cell is also problematic. It can result in the generation of more leachate and can mobilise contaminants in the waste it touches. Depending on its depth, it also has the potential to impede the decomposition of waste in the landfill unit. Where the depth of water touches the waste above, it creates anaerobic conditions, which impede decomposition. This is of concern during the post-closure phase where the intent is to starve the waste of water so it can decompose and settle. [248] The final matter relied upon to demonstrate leachate is a significant and difficult operational constraint is the evidence of past performance. It is relied upon to predict likely future performance. For reasons already given, I accept past performance is a relevant consideration. It does suggest the management of leachate on the land is a difficult task. It is a risk that has a direct nexus with the nature of the landform and the absence of gravity drainage. Self-evidently, the proposed development cannot alter this position. The constraints are fixed. Cleanaway relies upon engineering controls and systems to manage these constraints. [249] As I have already observed, the matters traversed in paragraphs [236] to [248] do not, in and of themselves, warrant refusal. They provide context for the determination of a key issue in the appeal, namely: whether conditions can be imposed on an approval, which are intended to manage environmental risk, are capable of being implemented and maintained? The context provided, in my view, is not favourable to an approval. When taken collectively, it indicates there is good reason to be concerned that the conduct of a landfill on the land, absent gravity drainage, is complex, requiring nothing less than the consistent and vigilant application of engineering controls and systems. History suggests this is easier said than done. [250] I will now deal with the second category of matters referred to in paragraph [234], namely those matters Mr Sutherland and Mr Amaral say demonstrate the management measures proposed are not only critical, but incapable of being maintained. It is convenient to do this by reference to discrete technical areas, which are set out below. Liner integrity and differential settlement [251] Mr Amaral was critical of the existing landfill, and its suitability in a geotechnical engineering sense, to receive the volume of additional waste contemplated by the proposed development. His criticisms were directed at the engineering certification for existing liners, the standard and lack of uniformity in liner design and the foundation material upon which existing liners sit and depend for their ongoing integrity. [252] Mr Amaral described the existing liner system as a ‘complex patchwork quilt’. After examining information provided about the existing liners, he expressed the following opinions:222 “…information has since been supplied and confirms that there is no overall Certification for the liner segments but different segments have been Certified by different parties to varying degrees. Some of the liner segments are deficient. One segment (part of Cell 2) needed to be repaired upon exposure with no reason given for its necessary repair. 222 Ex.8.012, pp.13-14, paras 68 and 69. -- 52 of 99 -- 53 There is no Certification of acceptance by the Liner Manufacturer and at least one portion of the liner was supervised by Cleanaway themselves. My summary of the information provided is given in Appendix B9. BA considers these issues in dispute (integrity of liner) relate to the integrity of the existing base liner given its siting and the proposed piggyback liner with respect to settlement of the waste and settlement of the subgrade below the base liner. The extensive material made available since the PJER has confirmed my concerns relating to the integrity of parts of the complex patchwork quilt liner configuration and I am of the view that at least portions of the overall liner system are deficient and cannot tolerate the additional imposition of waste that is proposed. A summary of my assessment of the existing eleven (11) different liner segments constructed to date (some of which have been subdivided into sub-segments) is provided in my Appendix B9. One cell (Cell 1) is unlined, ten (10) have been certified by three different Consultants and two (2) of these ten (10) segments are considered deficient. Further, the certification of the eastern half of Cell 2 is unknown, refer to Paragraph 64. No overall certification is available for the entire liner system by either a single Consultant or the liner Manufacturer. All of the segments suffer from not being placed on an “unyielding” sub-base which is a requirement of the Manufacturers of the liners and the Qld. DES as well as the relevant Victorian and NSW landfill guidelines.” [253] The matters raised by Mr Amaral in relation to the ‘complex patchwork quilt liner configuration’ are not without merit. Indeed, I did not understand his evidence about this to be challenged. The evidence paints the picture of a liner system lacking in uniformity of design. Further, it is a system that: (1) cannot be certified in its entirety; and (2) includes a number of segments that are deficient. [254] The deficient liner components were identified by Mr Amaral on a site plan.223 They cover Cells 1, 5A1 and 5A. In relation to these cells, Mr Amaral said:224 “Of these cells which have been provided with a CQA there are two composite liners which are considered to be deficient as they do not meet minimum standards even if they had been placed on a competent “unyielding” foundation base: (i) Cell 5A. Excessively high permeability of CCL. (ii) Cell 5A1. Phase 1 area has inadequate depth of CCL. Phase 2 has inadequate CCL and no GCL …Also . Cell 1 is unlined…” [255] I did not understand Mr Amaral’s evidence about this point to be challenged. 223 Ex.8.013, p.353. 224 Ex.8.013, pp.349-350. -- 53 of 99 -- 54 [256] I accept those parts of Mr Amaral’s evidence set out above. His analysis demonstrates the existing liner system, and associated certification, is suboptimal and, in parts, unsuitable. [257] Mr Amaral was also critical of the subbase material providing the foundation for the landfill and cell liners. It is this foundation which is relied upon to provide a firm and unyielding base for cell liners. A base of this kind is required to maintain the integrity of cell liners. With this in mind, Mr Amaral said the certifications obtained do not address the base on which they have been constructed. He observed:225 “Importantly, very little, if any, mention has been made of the fundamental requirement of the liner manufacturers and the Queensland DES Guidelines that landfill liners need to be placed on a “well consolidated firm liner platform(refer to Appendix B3). Similarly, the heterogeneous and, in many cases, incompetent nature of the mine spoil materials comprising the liner platform has not been addressed in the various CQAs provided (refer to Appendix B1).” [258] The absence of certification for the subbase is not ideal given the variation in depth, and nature, of the mine spoil in the fill profile. Mr Amaral described the fill profile, inclusive of the proposed development, in this way:226 “The proposed extended landfill…indicates that the completed landform will have a final depth of waste varying from zero to 60m placed over a variable depth and quality of unconsolidated mine spoil ranging in depth from about 45 to 90m across its base and between zero and 93m beneath its perimeter batters.” [259] As to the composition of the mine spoil and its suitability as foundation material for a landfill liner, Mr Amaral said:227 “…The material placed below the liner at this site consists of a heterogeneous mix of…min [sic]…spoil material varying form [sic] solid sandstone pieces to weak siltstone, shale, carbonaceous shale, coal rejects, coal washery fines, soil and slope wash placed under a variety of methods including end dumping in the dry, end dumping into water, pushing by dozer over existing steep batters and washing into ponds… From a Geotechnical Engineering perspective this unconsolidated uncontrolled filling process has created an incompetent foundation base for an engineered liner. My Appendices B1 and B3 address this issue.” [260] Save for the last two sentences above, I did not understand this part of Mr Amaral’s evidence to be the subject of challenge. [261] It was uncontroversial that: (1) fill material providing the subbase for the landfill comprises a heterogeneous mix of mine spoil; and (2) mine spoil was end dumped into the voids rather than placed and compacted as if it were an engineered subbase.228 225 Ex.8.013, p.350. 226 Ex.8.013, p.282. 227 Ex.8.012, p.18, para 96. 228 T18-37, L1-10 and T18-44, L1-6. -- 54 of 99 -- 55 This, in combination with a patchwork quilt of liners, some of which are deficient, does not engender confidence in the foundation upon which the existing landfill has occurred. [262] Save for Cell 6, the proposed development involves the construction of a composite piggyback liner229 over the existing landfill footprint. New waste is to be placed on top of that piggyback liner, which is intended to provide, in effect, a cap restricting the infiltration of leachate into the waste below. The subbase upon which the piggyback liner and new waste would sit has been in situ for 25 to 30 years. There have been no reports of failure in that material (such as instability, tension cracking, slumping or heaving ground).230 Despite this, Mr Amaral opined:231 “BA considers that where the various landfill base, wall and piggyback liners are founded on a variable depth of unconsolidated mine spoil excessive total and differential settlements will occur. As outlined in my Appendix B3 and below the age of fill materials has very little effect determined by experienced Geotechnical Engineers have found by drilling and testing old fills. The mine spoil filling consists of a heterogeneous mix of materials varying from fresh sandstone (minor component) to a variety of weaker / weathered sedimentary rock types which slake on exposure to air and wet/ dry cycles as well as incompetent coal washery refuse which will have collected in the lower, depressed pond areas of the operational mine site. The uncontrolled placement of these materials as described in my Appendices B1 and B3 has further created a highly variable and incompetent base. It is a fallacy to believe that age improves the quality of an incompetent material except for an extremely minor degree….” [263] Mr Amaral explained how differential settlement in the subbase and existing waste: (1) has the potential to cause liner strain or failure; (2) has the potential to cause local depressions and undulations in existing liners, which impede the flow of leachate towards drainage points; and (3) provides an incompetent base for the proposed piggyback liners, leading to the same end envisaged by items (1) and (2) but reflecting in the piggyback liner. [264] Each of items (1) to (3) above are not without consequence. Item (1) increases the risk leachate escapes the landfill cell and mixes with groundwater. Item (2) creates an operational difficulty. If leachate cannot properly drain, it will increase in height overtime and become difficult to remove from landfill cells by pumping. Item (3) has the potential to undermine an acknowledged benefit of the piggyback liners – they will act as an umbrella or cap over the existing waste column to starve it of water. If the piggyback liner is compromised, this may lead to leachate travelling vertically through the landfill towards its base, causing leachate to build at the bottom of the cell. This circumstance would be difficult to detect let alone remediate below a fill profile that has significant depth (as discussed in paragraph [258]) and comprises variable material, including waste. 229 Ex. 8.012, p.86, para 7 a) - The piggyback liner is to comprise a nominal 1.6m thick layer comprised (from the base up) of a gas collection layer, a 300 mm thick regulating layer with soil reinforcement, a 1 metre thick clay liner, a Geomembrane liner, a Cushion Geotextile, a 300 mm thick leachate aggregate collection layer covered with a separation Geotextile 230 Ex.8.012, p. 18, paras 97 and 101. 231 Ex.8.012, p.19, para 107. -- 55 of 99 -- 56 [265] Mr Amaral explained how an approval, in his view, would lead to liner failure and the disruption of leachate drainage paths. He said the placement of further waste would lead to differential settlement in the subbase below existing liners, and reflect vertically up through the existing waste, piggyback liners and new waste. The extent of differential settlement estimated by Mr Amaral in the underlying mine spoil is significant, ranging from 0 metres to 5.71 metres.232 This led Mr Amaral to conclude as follows:233 “With the expected degree of settlement of the mine spoil at this site, the maintenance of the EA requirement of a maximum 300mm head of leachate above the liner, in my opinion, cannot be achieved. …Inevitably, in my opinion, local depressed areas of the liner will develop, perhaps up to several metres deep, fill up with leachate and will be incapable of being drained...” [266] The inability to drain leachate from a landfill cell gives rise to a legacy issue. This was considered by Mr Sutherland. This point is dealt with below. [267] Cleanaway joined issue with Mr Amaral’s evidence. In support of its case, it called evidence from Mr Morphet and Mr Green. The former is an engineering geologist and hydrogeologist with nearly 50 years’ experience.234 He has been involved, intermittently, with the existing landfill operation since 2011, including the design of Cells 4A and 4B.235 The latter is a civil engineer with over 30 years’ experience. He specialises in landfill design, construction and management.236 [268] Mr Morphet was of the view that the subbase, comprising variable mine waste placed 25 to 30 years ago, is stable. This was supported by detailed engineering modelling and analysis. He also drew support from the absence of evidence suggesting instability. In this regard, Mr Morphet relied upon his own involvement with the land and the absence of site records suggesting personnel had observed ‘instability, tension cracks, bulging of the slope toe as the landfill has progressed towards the south, or slumping or heaving ground that would indicate foundation problems’.237 The level of importance attached to the absence of evidence suggesting instability is reflected in the following passage of Mr Morphet’s evidence:238 “As there has been no evidence of stability issues on the founding material below the landfill liner system over the 20-year operational life of the landfill, the foundation material is considered to be at least firm to stiff material. The anticipated total settlement is considered to be less than 2 m based on the landfill performance to date and the modelling carried out.” [269] Mr Green examined the extent to which predicted settlement would give rise to strain in base and side cell liners, and/or impede leachate drainage paths. He considered 232 Ex.8.013, p.285. 233 Ex.8.013, p.286, paras 45 and 46. 234 T18-2, L22-31. 235 T18-4, L23-36. 236 Ex.13.011 and T18-60, L3 to T18-61, L5. 237 Ex.8.012, p.18, para 96. See also para 101. 238 Ex.8.012, p.18, para 105. -- 56 of 99 -- 57 these issues, adopting Mr Morphet’s predictions for settlement and a worst case scenario. The latter reflects Mr Amaral’s predictions for settlement. Adopting Mr Amaral’s predictions for settlement, Mr Green concluded that: (a) ‘strain values are low enough to remain within the adopted strain criteria of 3%-4% when combined with the strain measured in the compression testing’;239 (b) the ‘gradient of the majority of sections of the existing base liner were found to either increase (favourable outcome) or remain sloping in the designed direction…and allow for the collection of leachate in…existing leachate sumps’.240 [270] There is an exception to the conclusion stated in (b) above. Mr Green concluded the base liner grade is adversely impacted due to the settlement of mine spoil in three localised sections. He recommended additional measures be conditioned to mitigate this impact. The measures include pumping leachate and the installation of a new leachate well in Cell 3A.241 Cleanaway has indicated it accepts this recommendation and any condition that flows from it. [271] The conclusion identified in paragraph [269](a) indicates compression testing informed Mr Green’s assessment of strain. This took the form of cone pressure testing. The purpose of this testing was to examine the stiffness of material comprising the subbase. It was carried out in Cell 3B, which is the only cell from which foundation material could be obtained.242 The intention was to test to a depth of 30 metres. The cone was unable to penetrate to this depth. Logs reveal cone depth was variable, ranging from 0.8 to 9.5 metres.243 The results of the testing were used by Mr Morphet to confirm the fill mass is variable, but firm. [272] There is a significant body of technical analysis underpinning the evidence given by Mr Morphet and Mr Green. Their work is fairly described as thorough and detailed. Whilst the evidence went a long way to demonstrating the matters raised by Mr Amaral did not call for refusal, it ultimately fell short. This, in my view, was because the evidence: (1) did not, in my view, give sufficient weight to the circumstances traversed in paragraph [273] below; and (2) was heavily reliant on the absence of evidence going to instability of the existing landfill. [273] With respect to item (1) above, Mr Morphet and Mr Green downplayed the significance of real world factors, which paint the picture of a subbase that is unsuitable for additional loading. These factors, which materially undermine confidence in the suitability of the foundation to receive a significant volume of additional waste, are as follows: (1) the landfill subbase material is variable in depth and of poor quality; (2) the landfill subbase and its method of placement does not have the benefit of engineering certification; (3) part of the landfill base is covered with a patchwork quilt of liners that either lack certification, or have no uniformity of certification; (4) part of the landfill base is covered with liners that are deficient for the existing landfill let alone an extension; (5) the quality of the foundation for the existing and proposed landfill extension cannot be improved; (6) the foundation for 239 Ex.8.013, p.267, para 25 and Ex.9.016, p.17, para 21, 240 Ex.9.016, p.5, para (a). 241 Ex.9.016, p.7, para 24. 242 T18-43, L4-6. 243 T18-43, L15 to T18-44, L6. -- 57 of 99 -- 58 the proposed landfill extension is incapable of receiving engineering certification, no doubt given items (1) to (5); and (7) there is no controversy the subbase will settle under the additional load placed in the proposed extension. 244 [274] With respect to item (2) in paragraph [272], I was not persuaded the absence of evidence (of instability) is a reliable indicator of likely future performance. This is because the absence of evidence says little about how the existing subbase will perform under very different conditions. That is conditions involving the placement of an additional load (potentially millions of cubic metres of waste) on top of a fill profile that is already less than ideal and expected to settle under that additional load. A key issue in this appeal is how much the subbase will settle under additional load and that impact of that settlement on existing and future liners. [275] There are particular aspects of Mr Morphet’s and Mr Green’s evidence, which left me unpersuaded the existing landfill can provide a suitable base for the proposed extension. The relevant parts of the evidence relate to predicted settlement, and its consequential impact on liners and leachate management. [276] The views expressed by Mr Morphet and Mr Green in this regard relied, in part, upon the results of the cone pressure testing discussed above. The results were used to confirm the subbase material sampled performs as if it had the equivalent stiffness of soft clay. This, as I understood the evidence, gave Mr Morphet comfort as to the likely future performance of the subbase under an additional load. [277] Mr Amaral arrived at a different conclusion in relation to the cone pressure testing results. He said the results are not representative of clay, but representative of loose mine spoil.245 Mr Gibson KC pressed Mr Amaral in cross-examination about this point:246 “And what we see through this CPT result is that once the penetrometer gets to a depth of, what, a metre or so, almost all the readings are on the stiff side of that line of distinction; do you see that?---There’s an assumption made here that this is a clay…this is a penetrometer. You’re not looking at a sample; you’re pushing in something which is solid and you’re getting resistance. If this was a clay, you could interpret the penetration as being very soft, soft, firm, stiff, very stiff, or hard. But it’s not a clay…It’s a granular material, and it’s either very loose, loose, compact. So I just wouldn’t apply these figures without seeing the soil. There’s no sample of soil here, there’s just pushing a rod into the ground. So you’re seriously suggesting, are you, that these CPT results aren’t worth the paper they’re written on?---I’m suggesting what? That they’re not worth the paper they’re written on?---Well, I’m saying they’re not representative of mine spoil, which is a clay. They are representative of mine spoil, which would give an interpretation of very loose, loose or compact. They’re just different materials. So the assumption that this is a clay is my problem.” 244 T20-44, L1-3. 245 T21-9, L24-25. 246 T21-9, L8-26. -- 58 of 99 -- 59 [278] As has already been observed, the cone pressure testing hit refusal at shallow depths relative to the total depth of material being examined. As Mr Amaral explained, this was not because the cone struck clay. He said:247 “…I noted the fact that they hit refusal at shallow depths. And the reason for that refusal wasn’t that it was a hard clay…it was because it hit gravel or a boulder or cobble and it just couldn’t penetrate. And you can’t interpret that result to a strength of the soil; it’s just an obstruction.” [279] Given: (1) Mr Amaral’s description of the cone pressure tests; (2) the absence of soil samples confirming the views expressed by Mr Morphet and Mr Green; and (3) that the penetration depths of the cone were shallow relative to the depth of the fill being examined; I was not persuaded it was prudent to proceed with an assessment on footing that the underlying base for the landfill is performing equivalent to a firm or stiff clay, as assumed by Mr Morphet and Mr Green. [280] There is little doubt the proposed development, if approved, would cause settlement in cell liners overtime.248 Whilst judgment can be brought to bear about the extent of settlement, no one knows precisely how much it will be, and where it will occur. One thing can however be said with confidence: irrespective of its depth, variability and location, settlement can create an undulating surface, be it in the subbase, liner or waste material placed above it. [281] To demonstrate an undulating surface will not give rise to liner strain or impede drainage, Cleanaway’s experts carried out a broad assessment of the landfill footprint. Mr Morphet considered global strain across this footprint. This involved: (1) estimating the extent of settlement at nominated points in the landfill footprint; and (2) calculating the extent of tilt between the points considered in item (1). The calculation for tilt assumes the change in level between two points is uniform over the horizontal distance between them. [282] Mr Morphet predicted settlement, in a global sense, would range from 0m to about 2m in depth. Based on this level of settlement, Mr Green calculated the likely strain on the liner. The calculations indicate the strain placed on a side or base liner would not cause its integrity to be compromised. As to local strain, Mr Morphet regarded this as unlikely to occur, and therefore gave this little, if any weight, in his assessment. The calculation for local strain is the same as global strain, save that the distance between the two settlement points under consideration are in much closer proximity than those examined for global strain. [283] Mr Amaral adopted a different approach. Given the variation and depth of materials in the landfill, he looked at specific locations in the fill profile to assess global strain.249 He also examined local strain. [284] I preferred Mr Amaral’s assessment given the depth and variability of the material below the proposed piggyback liner. His evidence demonstrated why particular consideration needs to be given to impacts associated with local strain and differential settlement. 247 T21-8, L37-41. 248 T20-44, L1-3. 249 T18-45, L18-31. -- 59 of 99 -- 60 [285] This is not to say an assessment of global strain is of limited assistance. It is to be considered but approached with caution. In this regard, Mr Amaral explained why a global assessment has the potential to understate the true level of strain. His evidence was as follows:250 “…what about the more global strain? Do we need to consider that …- ?---You need to consider it, but the global strain is likely to give you a figure that appears to be less. For instance, if you take a straight line, as Mr Green and myself both did, and took the settlement at those distance – quite a distance apart, and assume it’s acting as a rigid structure, then the tilt comes out in small value. But, of course, it’s not a rigid structure; it’s a two-millimetre thick HDPE underlain by a seven-millimetre thick – which, when it hydrates, goes to about 50 millimetres, two inches. And they’re both flexible. So it’s not going to be a rigid thing; it’s going to be moving…over that length. So the global strains don’t tend to give you an accurate picture of how the actual liner is performing.” [286] I accept this aspect of Mr Amaral’s evidence. [287] Mr Amaral’s view was that settlement across the liners should be considered on the footing it would be ‘differential’ (with localised variations) rather than ‘uniform’ as assumed in a global assessment. Mr Amaral was asked in evidence-in-chief what gave him confidence settlement would be differential and not uniform. He responded as follows:251 “Well, the most obvious thing is the depth. Variable depth. If you look at the cross-sections ABC and D and F that I’ve done, there’s a tremendous variation in the depth. Now, the amount of settlement will be directly proportional to the depth. So that’s the first area why you would get such a substantial differential settlement. The second point about the mine spoil is that it’s heterogenous. …So it’s the depth, and then the quality of the material…Even more so if you happen to have that at a particular location. It’ll settle more. So I think the differential would be very substantial.” [288] I accept this aspect of Mr Amaral’s evidence. [289] As to the likely impact of local or global strain, Mr Amaral explained:252 “Well, I believe it will cause an undulating surface. There will be some global strains, which is difference in elevation over some distance, and it will cause many, many, many local strains, as I refer to them, which might…as I’ve shown in a calculation…you don’t need much depression in the surface to cause strains that go above three per cent, and indeed, above six per cent.” (emphasis added) [290] I accept this aspect of Mr Amaral’s evidence. 250 T20-45, L44 to T20-46, L6. 251 T20-46, L42 to T20-47, L7. 252 T20-44, L30-38. -- 60 of 99 -- 61 [291] Mr Morphet was cross-examined about local strain and its potential impact on liners. The cross-examination focused on example local strain diagrams prepared by Mr Amaral. After examining the diagrams, Mr Morphet said it was unlikely the liner would undulate over the short distance depicted.253 This was supported by Mr Green.254 His analysis demonstrated that strain by reason of a 0.5 metre diameter void forming beneath a piggyback liner will not exceed 3% and will be within the design tolerance for the proposed liner in any event.255 [292] Whilst it may, or may not, be correct to say the localised strain diagrams prepared by Mr Amaral are unlikely to lead to liner failure, the evidence fell short of demonstrating that ‘many, many, many local strains’ predicted by Mr Amaral (in the circumstances identified in paragraph [274]) will not lead to liner strain or impede leachate drainage. The evidence in response to this point was underwhelming. Mr Morphet regarded local strain as unlikely and did not assess it. [293] Moreover, the evidence in response seemed to be supportive of Mr Amaral’s concern about the impacts of settlement on leachate drainage. In this regard, a calculation was performed by Mr Green to demonstrate why local strain will not result in liner failure. The calculation assumed a 0.5 metre diameter void in the subbase. The resulting depression may not give rise to liner strain as calculated but does create a low point for leachate to accumulate. This is because the depression in the liner and subbase alters the grade of the cell liner in a way that adversely disrupts drainage. The example Mr Green used is, in effect, a basin that cannot drain. This is the very circumstance Mr Amaral was concerned about. It poses a significant operational issue to be addressed. The solution is not a simple one. [294] In fairness to Mr Green, he examined the impact of settlement on leachate drainage. He concluded, subject to one exception, that settlement predicted by Mr Amaral on a global basis would lead to the partial improvement of leachate drainage256 and allow for the collection of leachate in existing sumps.257 The exception relates to circumstances where the base liner grade reverses in three locations. To mitigate this impact, Mr Green recommended conditions requiring, inter alia, the pumping of leachate and the installation of a new extraction well.258 [295] My initial impression of this evidence was one of scepticism. It struck me as counter- intuitive that metres of settlement in mine spoil, reflecting as variable undulations and an uneven grade in a cell liner, is capable of improving leachate drainage. This initial impression was not altered after examining a technical memorandum prepared by Mr Green.259 [296] The technical memorandum explains how Mr Green arrived at the views discussed in paragraph [294]. The memorandum reveals the opinions are based on an examination of liner deformation due to mine spoil settlement and subsidence. To consider liner deformation, Mr Green identified a location in Cell 4A as having the greatest potential 253 T18-46, L40 to T18-47, L19. 254 T18-72, L29-39. 255 Ex.8.012, p.87-88. 256 Ex.9.016, p.17, s 2.6. 257 Ex.9.016, p.5, para 21(a). 258 Ex.9.016, p.7, para 24. 259 Ex.9.016, p.13, Appendix A5. -- 61 of 99 -- 62 for differential settlement. This location is a step at an interface between mine spoil and undisturbed ground.260 With this point in mind, Mr Green said:261 “In the example provided in Plate 2, the predicted settlement does not negatively impact the grade of the cell floor due to the location of the leachate sump in Cell 5B. The settlement would increase the grade in the downslope direction to encourage flow towards the leachate sump in Cell 5B.” [297] This opinion makes reference to Plate 2 in the same technical memorandum. [298] I was unable to ascertain from Plate 2 how it demonstrates the point made by Mr Green. This task was a difficult one because the Plate makes no reference to Cell 4A, Cell 5B or a leachate sump. [299] After expressing the opinion cited above, Mr Green said:262 “Other modern cells have been assessed in a similar manner to ensure that leachate will continue to flow through the leachate collection layer to be pumped from the sumps.” [300] There are a number of difficulties with this evidence: (a) it does not expose the identity of the ‘other modern cells’ that have been assessed; (b) it does not expose where the detail of the ‘assessment’ carried out is to be found; and (c) it does not expose the results of each of the ‘similar’ assessments that have been carried out and relied upon to express the opinion. [301] Each of these matters, individually and collectively, have the consequence that Mr Green’s opinion cannot be tested. In any event, I was not persuaded to act upon this aspect of Mr Green’s evidence. The point to which it was responding was an important one and called for a detailed response. The response provided did not satisfy me that leachate drainage issues of the kind identified in paragraphs [263] and [264] would either not arise, or could be managed by conditions. [302] For reasons given above, I am not satisfied the existing subbase upon which the proposed development would be founded, in part, is suitable to receive millions of cubic of metres of additional waste. There is an unacceptable risk of differential settlement in the foundation for the landfill, which may lead to liner strain and reflect as localised depressions in cell liners. The former compromises the integrity of a liner. The latter makes more difficult the collection and removal of leachate from a landfill cell. [303] In combination, the potential for liner strain and impeded drainage gives rise to two unacceptable environmental risks. First, the circumstances create a pathway for leachate to migrate from a landfill cell into groundwater. The extent to which 260 Ex.9.016, p.16, para 16. 261 Ex.9.016, p.17, para 23. 262 Ex.9.016, p.18, para 24. -- 62 of 99 -- 63 groundwater is contaminated will be a product of the hydraulic gradient, the volume of leachate that escapes, and the concentration of contaminants within the leachate. The circumstances discussed in paragraphs [60] to [64] demonstrate how far, and fast, contaminants can move in the groundwater here when leachate in the base of a landfill cells exceeds 300mm in height. [304] Second, the circumstances create a pathway for groundwater to enter a landfill cell and mix with waste and/or leachate. This is far from desirable during the operational phase of a landfill. It would cause additional leachate to be generated at the base of a landfill cell. The leachate would need to be removed by pumping, which may prove difficult if drainage pathways are impeded. These circumstances demonstrate why compliance with a condition such as G10(3) of the current EA would be difficult, if not impossible. [305] The accumulation of leachate in the base of a landfill cell is also undesirable during the post-closure period. It makes more difficult the achievement of a self-sustaining landform where the intention is to starve the waste of water so it can decompose, and the landform settle. It is, in my view, no answer to suggest leachate can be pumped from the base of the landfill. The leachate collection system, assuming it can still collect leachate as intended, would need to be operated in perpetuity to achieve a self- sustaining landform. Such an outcome would cause the land to become a legacy issue for future generations. It is of little comfort, in my view, that the operation of the leachate system in that scenario would be secured by financial assurance for future generations. Landfill cap [306] The current and new EA have in mind that the landfill will achieve a self-sustaining form upon cessation of the receipt of waste and completion of a cap/rehabilitation works. This requires the landfill unit to be closed so that waste within it is starved of water. In that state, the waste will decompose and settle. This takes time, potentially 30 years. The theory is the landfill, once it has reached this point, will stabilise and not release contaminants that may cause environmental harm. Condition L5 of the new EA requires the conduct of a post-closure programme to achieve this outcome. Central to the success of the programme is the integrity of the cap and underlying landfill liner, both of which act to starve the waste of water, allowing the generation of leachate to cease and the landform time to settle. [307] For reasons given above, I am not satisfied it has been demonstrated the liner system will achieve this intent. The same cannot be said for the proposed cap. [308] There was no controversy the purpose of the proposed cap is to limit the infiltration of water into the waste mass below. The disagreement between the relevant experts was a narrow one, namely: whether this objective could be achieved on the phytocap, assuming the vegetation planted included trees and shrubs.263 [309] Mr Sutherland and Mr Amaral preferred a cap planted with a grass sward for three reasons: (1) tree roots put the integrity of the cap at risk; (2) grass is better at limiting 263 Ex.8.012, p.30, para 159. -- 63 of 99 -- 64 erosion; and (3) grass is easier to maintain, and facilitates ready inspection of the underlying cap and landfill gas extraction system. [310] Dr Salt was called by Cleanaway to respond to these issues. I found her evidence to be thorough. It was based on detailed water balance modelling. With the benefit of modelling, Dr Salt concluded that a phytocap, planted with trees and shrubs, is superior (in drainage, runoff and erosion terms) to a grass sward.264 Dr Salt’s modelling was not challenged. It makes good the opinions expressed by her. I accept Dr Salt’s evidence. [311] As to the view trees and shrubs will make inspection and maintenance of the landfill cap more difficult, such a concern is not, in my view, one that renders the proposed phytocap unacceptable. The evidence comfortably demonstrates these concerns can be overcome by the use of modern technology, such as LIDAR survey and drones. [312] As a general proposition, it can be accepted the planting of trees on the phytocap gives rise to a risk; tree roots may damage the cap, creating pathways for the infiltration of water. The evidence establishes this risk can be addressed by conditions. In particular, conditions can be imposed prescribing an appropriate planting schedule. Such an approach can ensure the trees planted do not have a root system that puts the integrity of the cap at an unacceptable level of risk. [313] For these reasons, I am satisfied the phytocap, planted with trees and shrubs, is acceptable. Inability to comply with conditions [314] Mr Sutherland and Mr Amaral concluded the proposed development, if approved, could not comply with conditions W9(c) and L5 of the new EA.265 The former condition regulates the height of leachate above a cell liner (300mm). The latter requires the landfill unit, after a period of post-closure care, to reach a self-sustaining state where leachate production has ceased. [315] Ordinarily, this Court assumes, in the context of a merits appeal, conditions imposed on any approval would be complied with. There is good reason to do so; it should not be assumed an applicant for approval would flout the law in a way that results in the commission of a development offence.266 This is not to say a different view may never prevail. The evidence in a given case may reveal there is a proper basis to conclude otherwise.267 [316] In this appeal, I have not assumed Cleanaway has, or will, elect to flout the law or turn its cheek against compliance with an approval (or authority) it holds and relies upon to authorise the landfill operation. Rather, I have approached the matter on the footing the issue to be examined is this: whether the evidence suggests compliance with conditions proposed can be achieved? Given Dr Johnson’s evidence discussed at paragraph [224], the answer to this question informs an assessment of environmental 264 Ex.8.012, p.32, para 166(f) and p.37, para 174(j). 265 T21-54, L3-34. 266 48 Stuart Pty Ltd (atf 48 Stuart Unit Trust) v Brisbane City Council [2017] QPELR 133, [19](c). 267 IB Town Planning Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 791, [222]. -- 64 of 99 -- 65 risk. As Dr Johnson said, non-compliance with conditions increases the level of environmental risk. [317] Two particular parts of the evidence, which I accept, establish there is an unacceptable risk of non-compliance with conditions intended to manage adverse environmental impacts. [318] First, Mr Amaral and Mr Sutherland expressed opinions about the ability here to comply with conditions: (1) limiting the height of leachate above a liner; and (2) requiring the achievement of a self-sustaining landform during the post closure period. [319] As I understood the opinions expressed by Mr Sutherland and Mr Amaral, they contend conditions regulating the height of leachate above the liner will not be complied with unless the leachate and groundwater pumping systems are maintained in perpetuity. This assumes excess leachate is generated and builds up in landfill cells. This would occur as a consequence of liner failure, in combination with a hydraulic gradient causing an exchange of groundwater into the cell through the liner. The generation of leachate in this circumstance creates an operational difficulty; leachate must be removed and treated. It also poses a difficulty for post-closure care. Leachate has the potential to impede the decomposition of waste and to cause mobilisation of additional contaminants in the waste it comes into contact with. Removal of the leachate in either circumstance will prove to be difficult given the matters identified in paragraphs [302] to [305]. [320] Mr Sutherland helpfully explained: (1) the interrelationship between non-compliance with condition L5 of the new EA and conditions requiring the height of leachate to be less than 300 mm above a liner; and (2) why compliance with conditions of this kind could not be achieved absent the operation of a pumping system in perpetuity. As I understood the evidence, condition L5 requires the landfill unit, after a period of post- closure care, to reach a self-sustaining state where leachate production has ceased. Mr Sutherland was of the view this could not be achieved while leachate exceeded 300 mm above a liner. Compliance could only be achieved if pumping systems, which remove leachate from the landfill unit and/or maintain groundwater at an elevation to preclude migration into or out of the landfill cells, are operated in perpetuity. [321] Mr Sutherland was cross-examined by Mr O’Brien KC about this point:268 “Now, you gave some evidence before lunch, that you believe – as I understood – that you didn’t think this [L5] could be complied with?- - -That’s right. … is…the effect of your evidence…that that can’t be complied with because of the requirement in the condition that leachate be kept at less than 300 mils?---…It can be complied with, providing you pump on an ongoing basis in perpetuity. …if we go back to the wording of L5, just to be clear, is your evidence that…it’s simply not possible for a person who has the benefit of this approval, despite deploying whatever engineering techniques they can, to demonstrate at a…certain period of time beyond 30 years, that there 268 T21-56, L1-18. -- 65 of 99 -- 66 would be no environmental harm likely to be caused?---…I’m going to say, “Yes.” If that involves cessation of the pumping of leachate and the recovery of the groundwater level, either through the depressurisation system being turned off or the leachate pumping being turned off, there is a risk of the remobilisation of the contaminants within the waste, and that then goes on to, infect, condition W8, and then goes on to, possibly, infect W11. And …that’s the tension as I see it.” [322] I understood the reference to W8 to be a reference to condition W9 of the new EA, which restricts the height of leachate above the liner to a maximum of 300 mm. Condition W11 requires leachate to be separated from any surface water management systems. [323] The need for pumping in perpetuity creates what Mr Sutherland described as a ‘legacy’ operation. Unsurprisingly, this was a matter of concern to Mr Sutherland. He was cross-examined about this by Mr O’Brien KC:269 “…I’m intellectually concerned that there’s a condition which doesn’t appear to be able to be complied…without active pumping in perpetuity. The income stream from …a waste management facility is going to be over. And, yet, it seems as though…you have to maintain the condition above 300 millimetres in perpetuity when that income stream or bond has run out. And I see… that tension hasn’t been addressed. Well, we know that there’s a condition requiring financial security?--- Yes. We know that there’s an obligation under L5 to continue to monitor and manage the site until you can demonstrate that there is no environmental harm occurring?---…I accept all of that. But my proposition is if the leachate level…is allowed to rise with the surrounding groundwater level, then you run the risk of the contaminants in the waste being remobilised, just like they have been with the PFAS, and then being available for transport down the track.” [324] I am satisfied there is an unacceptable risk that differential settlement will lead to liner failure and cause leachate to accumulate in the landfill unit to depths exceeding 300 mm in height above the base of the liner. This risk arises during the operational phase of the proposed development and persists during the post-closure phase. The consequences that follow in the event the risk becomes a reality were correctly identified by Mr Amaral and Mr Sutherland. The result is development that: (1) cannot comply with a condition such as W9 of the new EA; and (2) is described as a legacy operation, which cannot comply with a condition such as L5 of the new EA absent the operation of leachate and groundwater management systems in perpetuity. Irrespective of whether the development leads to the result in items (1) and/or (2), these outcomes are symptomatic of a site that is not suited to the proposed landfill extension. 269 T21-57, L35 to T21-58, L3. -- 66 of 99 -- 67 Groundwater [325] I accept retention of leachate in the landfill unit does not, in and of itself, cause adverse environmental impact. It is leakage of leachate to the receiving environment that gives rise to potential adverse impacts.270 To demonstrate leachate retention in a landfill cell does not pose an unacceptable environmental risk, Cleanaway led evidence from a groundwater expert, Mr Ife. He modelled the impact of leachate on groundwater, assuming a number of scenarios, including one where there is no liner beneath the landfill unit.271 [326] Based on his modelling, Mr Ife concluded the proposed development would not give rise to adverse environmental impacts having regard to: (1) the rate at which particles move through the groundwater; and (2) the likely concentration of contaminants relative to the surrounding groundwater (dilution).272 In relation to item (1), it was a point of agreement between the groundwater experts that the particle velocity of the groundwater here is in the order of 3.35 x 10-3 m/day, which equates to 122 metres in a 100 year period.273 With the benefit of Mr Ife’s work, it was agreed between the experts that failure of the liner system would not ‘cause a significant adverse impact on groundwater quality’.274 [327] Mr Sutherland, who was in agreement with this opinion, pointed out that the modelling assumes compliance is achieved with a condition such as G10(3) of the current EA. This condition requires leachate to not exceed 300mm in height above a liner.275 The modelling assumes compliance is achieved on the footing there is active pumping, removal and treatment of leachate. [328] For reasons already given, I am not satisfied it can be safely assumed leachate will be removed from landfill cells and compliance achieved with the 300 mm height limit. For this assumption to be made good, it needs to be demonstrated that leachate can properly drain to, and be collected in, leachate wells. The evidence I accept suggests there is an unacceptable risk drainage will be impeded, leading to an accumulation of leachate. [329] If the assumption discussed above is altered in the groundwater modelling to reflect the risk of liner failure and impeded leachate drainage, it is not difficult, in my view, to foresee a change to modelling outputs. The circumstances discussed in paragraphs [60] to [64] give insight into how the outputs may change. In this regard, Mr Sutherland pointed out that, unlike the modelling carried out by Mr Ife, contaminants, in circumstances discussed at paragraphs [60] to [64] moved 100 metres in 90 daysa, most likely as a consequence of an increased hydraulic head within the landfill. The increased head of pressure was due to an accumulation of leachate within a landfill cell.276 This is dramatically different to the modelling undertaken by Mr Ife, which assumes particles will move 122 metres in 100 years. 270 T21-56, L25-27. 271 Ex.13.006. 272 Ex.8.010, p.53, para 115 273 Ex.8.010, p.53, para 112. 274 Ex.8.010, p.54, para 121 b). 275 T21-53, L26-29. 276 T21-56, L37 to T21-57, L30. -- 67 of 99 -- 68 [330] For the above reasons, I was not persuaded the migration of leachate through a compromised liner would not lead to adverse environmental outcomes. There is an unacceptable level of risk that an adverse environmental outcome may arise by reason of liner failure, impeded leachate drainage and an accumulation of leachate in a landfill cell above 300mm. That these circumstances may lead to an adverse environmental outcome is supported by real world experience, namely the circumstances discussed in paragraphs [60] to [64]. This involved the release of, inter alia, ammonia from the landfill, which is a key indicator for the presence of leachate. Environmental risk: conclusion [331] For reasons given above, I am not satisfied the evidence demonstrates: (a) the environmental risk associated with the proposed development is acceptable; and (b) conditions imposed on any approval for the proposed development can be implemented and maintained to manage environmental risk at an acceptable level. [332] Finally, it can be observed Council’s case in relation to environmental risk involved an assertion that an approval would depart from a planning principle stated in these terms: development should not ‘cause (or have the potential to cause) contamination or other adverse environmental impacts’. For the reasons given at paragraphs [543] to [548] of Austin, this principle (if it in fact be one) does not assist in the determination of this appeal. Amenity impacts [333] The proposed development has the potential to cause significant impacts on amenity. The nature of those impacts can be tangible and intangible. The former captures impacts on the senses such as noise, odour and visual impacts. The latter are associated with subjective notions of perception, sense of place and the feel/air/character of an area.277 [334] The refusing parties contend impacts on amenity stand against approval. In support of refusal, it was alleged the proposed development: (a) will have an unacceptable visual amenity impact; (b) will have an unacceptable impact on the general amenity of the area; (c) will have an unacceptable impact on community perception and sense of place; and (d) by reason of (a) to (c), is contrary to a broadly stated planning principle278 and assessment benchmarks. [335] To examine the visual impact of the proposed development, I had the benefit of photomontages along with the evidence of Dr Chenoweth and Mr Curtis. 277 Broad v Brisbane City Council [1986] 2 Qd R 317. 278 The broadly stated planning principle was not supported by authority or founded upon provisions of the Planning Act 2016. It is not a feature of the case that warrants refusal. -- 68 of 99 -- 69 [336] Photomontages were prepared for five viewpoints. The location of the viewpoints were agreed.279 Four of the five locations are within view of the proposed development, which is confirmed by a visibility analysis attached to a joint expert report prepared by Dr Chenoweth and Mr Curtis.280 [337] Two A3 volumes of photomontages were prepared at two camera focal lengths, namely 50mm and 28mm. The key difference between the two volumes of images is an assumption made about staging and associated planting.281 [338] The photomontages depict one of five scenarios:282 (1) the existing view (Scenario A); (2) the approved landfill with post-settlement profile, capped in accordance with existing approvals (Scenario B); (3) the completed pre-settlement profile prior to landfill surface vegetation (Scenario C); (4) the post-settlement profile of the proposal with grass (Scenario D); and (5) the post-settlement profile of the proposal with trees and shrubs after 5 years growth (Scenario E). Scenario D is of no assistance given paragraphs [306] to [313]. [339] The photomontages show Claypave Hill, which is a major landform to the immediate west of the land. Having regard to paragraph [31], it can be assumed the height of Claypave Hill will reduce in the future. The photomontages depict the hill in its condition as at December 2020.283 [340] With respect to Claypave Hill, Dr Chenoweth and Mr Curtis agreed:284 “…It is likely that continued removal of earth material from Clay Pave Hill by Cleanaway (under separate existing approvals) will change the appearance of the hill, and may also locally reduce the skyline ridge height; and this is likely to offset to some extent by revegetation under mine closure and rehabilitation legislation. The peak of Clay Pave Hill has reportedly been reduced from RL 125 to RL 118 by removal of earth material by Cleanaway over recent years…However further height reductions and other changes have not been modelled in the photomontages.” [341] This point of agreement requires the photomontages are to be considered with care. They do not depict the final form of Claypave Hill. For my part, after examining the photomontages, I am satisfied future changes to the form and elevation of Claypave Hill do not: (1) undermine the reliance that can be placed on the development outcomes depicted in the photomontages; and (2) suggest the acceptability, or otherwise, of the proposed development in visual terms is be altered by those changes. [342] A review of the photomontages makes good a number of points of agreement reached between Dr Chenoweth and Mr Curtis as to potential visual impacts. Relevant points of agreement include: 279 Ex.8.015, p.7, para 3.2 280 Ex.8.015, p.7, 3.3 and Figure 14 at p.56. 281 Ex.8.015, p.44, para 9.2. 282 Ex.8.015, p.8, para 3.7. 283 Ex.8.015, pp.18-19, para 6.2.8. 284 Ex.8.015, pp.18-19, para 6.2.8. -- 69 of 99 -- 70 (a) the proposed development, post settlement, will be more visible in the local area (larger and higher) than the approved landfill;285 (b) the sensitive residential receptors likely to be visually affected by the proposed development are located to the east and south-east with viewing distances ranging from 1.5 to 3 km;286 (c) at viewing distances of 1.5 to 3 km, little detail in the landfill is discernible;287 (d) trees associated with Six Mile Creek screen existing landfill operations from most sensitive views;288 and (e) a forested landfill with a wooded skyline will be visually compatible with the intended character of the local areas and have an acceptably low level of visual impact.289 [343] I accept these points of agreement. [344] To examine the visual impact of the proposed development, the photomontages depicting the various scenarios (save for Scenario D) can be compared. This comparison reveals that: (1) the existing landfill is obscured by vegetation for some but not all viewing points (Scenario A); (2) the rehabilitated landform under existing approvals will take on the appearance of green space, visually connected to vegetation associated with Six Mile Creek (Scenario B); and (3) the rehabilitated landform following the proposed development is visually compatible with the local area (Scenario E). The photomontage of concern is that relating to Scenario C. In this image, the landform is visible, prominent and has the appearance of a manmade mound. It was agreed by Dr Chenoweth and Mr Curtis that such an outcome is adverse in visual terms – it looks out of place. [345] The photomontages do not depict the proposed development during the operational phase of the landfill. [346] Paragraphs [342] to [345] suggest there are two visual amenity issues calling for careful examination. First, whether the proposed development, during the operational phase, will give rise to adverse visual impacts. Second, whether the proposed development, as it approaches completion and is settling prior to rehabilitation, will give rise to adverse visual impacts.290 [347] Dealing with operational impacts, Dr Chenoweth identified the measures proposed to ensure waste related activities will not be visible during landfill operations.291 At paragraph 6.9.6 of the second visual amenity and greenspace joint expert report, Dr Chenoweth said: “The proposed development incorporates temporary earth mounds to 12 m height, vegetated with quick-growing wattles and other native shrubs (as well as stabilising grasses and cereals, at each of the proposed 285 Ex.8.015, p.43, para 8.1 and 8.3 286 Ex.8.015, p.43, para 8.3. 287 Ex.8.015, pp.43-44, para 8.6. 288 Ex.8.015, p.43, para 8.4. 289 Ex.8.015, pp.43-44, para 8.6. 290 Ex.8.015, p.30, para 6.8.9. 291 Ex.8.015, p.32, para 6.9.5. -- 70 of 99 -- 71 interim Stages 1, 2 and 3 and along the northern landfill edge, as have been detailed in the 2020 Minor Change application. The position, orientation and heights of these temporary mounds have been designed to screen views from residences to the east and south-east (‘sensitive receiving uses’), and also from future possible house to the north. In addition, moveable metal screen panels of 6 m height will be positioned on top of these mounds, and these will also reduce visibility of operational vehicles and landfill equipment at each stage.” [348] I accept Dr Chenoweth’s evidence in part only. The southern part of the existing landfill is visible and will become more visible during Stage 1. It will become more visible as Stage 1 increases in height and extends to the north where screening bunds will be constructed at the top of Stage 1, and within the void, to screen views of Stage 2. Mr Curtis correctly pointed out that Stage 1 will be visible below the screening bunds. This stage will not be vegetated until complete. It will appear as depicted in Scenario C of the photomontages; it appears as a large manmade area of sloping grass. [349] Turning to the second issue, Mr Curtis pointed out that it is uncertain how long the operational activity and areas of unrehabilitated land will be visible at sensitive viewing points (as depicted in Scenario C).292 To make good on this, at paragraphs 6.9.9 and 6.9.10 of his second joint expert report, Mr Curtis made reference to the dates proposed for the planting of each stage. They were identified in correspondence dated 8 February 2021. With the dates in mind, Mr Curtis expressed the following opinions:293 “…The above letter is based on assumptions that may not eventuate as the dates may be reasonably assumed to be dependent upon varying market conditions. There is no certainty with respect to timing and duration of each stages. …The above letter also states “..the landform will be allowed to settle for a period of 12 months, before being capped and vegetated during the following period of 12 months.” Each stage will not be vegetated incrementally while still operational but 12 months after it is complete, which will then take a further 12 months. Should market conditions require the landfill operation to ‘slow down’, the duration of the unvegetated partially complete stage could extend for an unknown period of time.” [350] Dr Chenoweth was cross-examined about the uncertainty to which Mr Curtis referred. I did not take Dr Chenoweth to be in disagreement with Mr Curtis. He confirmed there is uncertainty as to the length of time areas of the landfill will be visible in an unrehabilitated state (as depicted in Scenario C of the photomontages).294 [351] The photomontages for Scenario C depict what will be visible after landfilling has ceased, and the landform is allowed to settle prior to the commencement of rehabilitation. Mr Curtis helpfully explained the issues of concern with respect to the Scenario C photomontages at paragraphs 6.9.13 and 6.9.14 of the second visual amenity and green space joint expert report: 292 Ex.8.015, p.30, para 6.8.9. 293 Ex.8.015, p.33, paras 6.9.10 and 6.9.11. 294 T21-70, L8-15. -- 71 of 99 -- 72 “As noted above, Stage 1 will not be vegetated until complete and will therefore appear as depicted by Visualisation JER1 Vol 3 pages 6 and 7, 16 and 17, 26 and 27, 36 and 37. While these photomontages depict the landfill in its entirety, LC notes that Stage 1 will occupy the greater part of the visible area viewed by sensitive receptors to the east and southeast as represented by the viewpoints of the abovementioned photomontages. Also as noted above, the duration of Stage 1 will be subject to market conditions and could extend beyond the assumed four years before revegetation commences. …Stage 2 will be located at the northwest corner of the void and will be largely screened to views from the east and southeast by Stage 1 and the screening bunds. Stage 3 will start to fill the northeast corner of the void. LC notes that this will involve extending the slope of the Stage landfill to the north along the eastern side of the void. It is unclear how the Stage 3 operation will be screened to views from the east. Stage 4 will complete the filling of the void’s northeast corner.” [352] Mr Curtis later recorded in the same joint expert report that the visual outcome depicted in Scenario C, which may be visible for four years or more, is visually intrusive and will not contribute to the existing visual character of the local area.295 The development was said to be visually intrusive because ‘as [it] approaches its maximum height it may appear to sensitive residential receptors to the east and south- east as an operational landfill site with minimal vegetation for a protracted period of time’.296 I accept this evidence. [353] Dr Chenoweth did not regard the visual impacts of the proposed development as rising above ‘relatively minor’. As I understood his evidence, this was for the following reasons:297 “a. Relatively few sensitive receiving uses (residences or residential streets) are within view, and only from the east and south-east. There are no views from sensitive receiving uses to the north or west; b. All houses are separated by buffer distances of at least 700m from the landfill, and those likely to have views of the landfill are more than 1.5 km away; c. The subject land has been a disturbed landscape for more than 30 years, and has been a landfill site since 1996. Its visible (elevated) surrounds are not per se scenically attractive, and neither scenic amenity nor character will be detrimentally affected by continued landfill operations; d. No views to any notable or attractive landscape feature will be obstructed; and 295 Ex.8.015, p.38, para 6.11.9. 296 Ex.8.015, p.40, para 6.13.6. 297 Ex.8.015, pp.36-37, para 6.11.1. -- 72 of 99 -- 73 e. The landfill surface will be smoothed and vegetated (including native trees and shrubs) following landfill closure, to take place within 3 – 10 years.” [354] I accept each of the points made above by Mr Chenoweth. I do not however accept the reasons, taken individually or collectively, establish the visual impacts of an operational landfill of the kind proposed are characterised as minor. The impacts will be material. This is for three reasons. First, the proposed development will delay the rehabilitation of the land (in accordance with existing approvals) for a period of about seven years. Second, this delay will occur in circumstances where the proposed development will be ‘noticeably more visible’ for sensitive receptors in comparison to the existing development. Third, at the time there is a gap between landfill completion and cap rehabilitation (Scenario C), the land will appear as a manmade grassed area in contrast to the trees associated with Six Mile Creek in the foreground. This contrast exposes that the resulting landform will be out of place,298 or put another way, appears as a man-made mound reinforcing it is not part of the vegetated foreground. This represents an adverse visual amenity outcome. The likely duration of that outcome is uncertain. [355] It does not necessarily follow that the adverse visual outcome warrants refusal. The significance of the impact needs to be considered against the planning scheme. In particular, those parts of the planning scheme applicable to Swanbank New Chum. [356] A relevant starting point in this regard is the planning context provided by paragraphs [113] to [118]. The context reflects that the local area is not a pristine residential community. The local area includes land that is degraded and contaminated. Rehabilitation is promoted as a means of improving land for uses intended in a Regionally Significant Enterprise and Business and Industry locality. One such use is a special industry as defined. This is a potentially consistent use on the land. The development application seeks approval for this defined use. [357] The case advanced by the refusal parties is, in essence, that this context is subject to important qualifications limiting, inter alia, the extent to which development in Swanbank New Chum can impact, in visual terms, on surrounding residential areas. [358] What qualifications apply to development in Swanbank New Chum? [359] Starting at the most detailed level of planning, note 6.16F of the planning scheme describes Sub Area RBIA2 as significant in a townscape context.299 The note goes on to recognise the potential for the Sub Area to have ‘significant’ impacts on the visual amenity of, inter alia, nearby residential areas. [360] Specific Outcomes that inform an assessment of the acceptability of visual impacts of development in Sub Area RBIA2 have in mind that: (a) industry uses, including ‘difficult to locate activities’, demonstrate there will be no discernible amenity impact outside of the Sub Area;300 298 Similar to what was agreed at Ex.8.015, p.33, para 6.9.8. 299 Ex.3.001, p.1-74. 300 Ex.3.001, p.1-74, s 6.16(2)(a)(iv). -- 73 of 99 -- 74 (b) new uses and works are to have buildings of a high visual quality when viewed from, inter alia, nearby existing and planned residential areas;301 and (c) buildings and outdoor areas used for plant, equipment and storage are to be screened with appropriate landscaping when viewed from, inter alia, nearby residential areas.302 [361] Having regard to the evidence of Mr Curtis, I accept there is substantial compliance with subparagraphs (b) and (c). Non-compliance does however arise with provisions of the planning scheme for reasons traversed in paragraphs [348] to [354]. The matters traversed suggest the proposed development will have a discernible adverse visual impact outside of Sub Area RBIA2. This is established by the photomontages for Scenario C. This impact will be limited in time. The length of time is uncertain having regard to paragraphs [349] and [350]. [362] Swanbank New Chum is an area specifically identified, and planned for, at the RSBEIAL level of the planning scheme.303 The area is mapped in Figure 6-7-1.304 This area is intended to be a ‘flagship example of effective sustainable development integrated into the surrounding emerging communities of Ipswich’.305 Land degraded by former mining activities is encouraged to be progressively rehabilitated and, inter alia, integrated within ‘a network of green spaces’.306 Green spaces include environmental buffers, corridors and recreation areas.307 New development within Swanbank New Chum is to be located, and to relate to other development, in a way that creates a sense of place; achieves a high standard of amenity; and promotes visual attractiveness.308 Consistent with the Sub Area provisions, plant and equipment is be screened and impacts contained within the business and industry area.309 [363] The matters traversed in paragraphs at [348] to [354] indicate the development will not minimise adverse amenity impacts on residential areas. Nor will it promote visual attractiveness and sense of place while the landform appears as that depicted in Scenario C. This gives rise to non-compliance with s 6.7(5)(a)(ii)(B) and (C) of the planning scheme. [364] With respect to visual amenity, landscape character and placemaking in Swanbank New Chum, s 6.7(4)(a)(v)(D) states, in part:310 “(v) Visual Amenity, Landscape Character and Placemaking … (D) Guiding principles for visual amenity, landscape character and placemaking are that development: (I) creates a high quality business park environment that is distinct from traditional industrial areas; 301 Ex.3.001, p.1-74, s 6.16(2)(b)(i). 302 Ex.3.001, p.1-74, s 6.16(2)(b)(ii). 303 Ex.3.001, pp.1-30 to 1-42, ss 6.7(4) and (5) 304 Ex.3.001, p.1-41. 305 Ex.3.001, p.1-30, s 6.7(4)(a)(i)(A). 306 Ex.3.001, p.1-31, s 6.7(4)(a)(i)(G). 307 Ex.3.001, p.1-31, s 6.7(4)(a)(i)(H). 308 Ex.3.001, p.1-34, s 6.7(5)(a)(ii)(B) and (C). 309 Ex.3.001, p.1-36, s 6.7(5)(e)(v). 310 Ex.3.001, p.1-32. -- 74 of 99 -- 75 (II) provides a visually appealing backdrop to the Ripley Valley Urban Core, Ripley Valley Secondary Urban Centre East, Redbank Plains residential areas and all other interfaces with surrounding residential areas to eliminate negative amenity impacts (e.g. noise, odour, etc.); … (IV) acknowledges the inherent values of surrounding natural environments and do not adversely impact on them; and (V) enhances the existing and future green space environments.” [365] If attention is given to the photomontages illustrating the land in its rehabilitated state in the year 2035, it can be accepted the proposed development will contribute to: (1) the greenspace setting of the locality in a positive way; and (2) the provision of a visually appealing backdrop to residential uses to the east and south-east. The difficulty, however, is that there will be a period of time where item (2) will not be achieved. During this time, the land will present as a manmade feature that is out of place. This, in my view, is symptomatic of non-compliance with 6.7(4)(a)(v)(D)(II) above and Overall Outcome 12.7.3(2)(a)(ii) of the Commercial and Industrial Code. The latter requires, inter alia, industrial uses and works to be compatible with the character of the local area. Scenario C is, in my view, incompatible with the intended character. [366] An assessment of the proposed development against provisions of the planning scheme particular to Swanbank New Chum do not support approval. The assessment confirms the visual impacts discussed in paragraphs [348] to [354] will be unacceptable for a period of time that cannot be identified with certainty. [367] The Activity Code includes a Specific Outcome of interest to a visual assessment. It is Specific Outcome 4(5), which is set out above but bears repeating:311 “(5) Filling and earthworks associated with Waste Activity Uses: (a) do not extend beyond the top of former mining voids, except for approved minor contouring, that improves stormwater management and drainage outcomes; and (b) are designed, operated and maintained so that exposed waste is not visible from surrounding residential and other sensitive receiving uses at any time.” [368] Cleanaway concedes the proposed development does not comply with subsection (a) because the proposed development involves filling beyond the top of a former mining void. It is contended this non-compliance does not warrant refusal because it sounds in no adverse planning consequence. [369] As I observed in Austin, Specific Outcome 4(5) has at least two purposes. First, it seeks to control the scale of filling and earthworks in a former mining void in the 311 Ex.3.002, p.2–7. -- 75 of 99 -- 76 Waste Activity Area. It does this by limiting the vertical height of those works. Second, it is a control that works hand-in-hand with an overarching intention of the 2018 TLPI. These documents seek to regulate applications for new waste activities. They do so to, inter alia, protect residential and sensitive uses from adverse impacts.312 The impacts of concern are related to general amenity and visual amenity considerations. [370] By retaining fill and earthworks within an existing void, save for minor contouring, visibility of a Waste Activity Use to sensitive receptors is limited. By limiting visibility, unacceptable visual impacts on residential neighbourhoods are minimised. In simple terms, when visibility of a Waste Activity Use is reduced, or completely obscured, it is less likely to be perceived as something that adversely impacts upon sense of place and community perceptions of a residential neighbourhood – it would be ‘out of sight, out of mind’. This is supported by subsection (b) of the same Specific Outcome. It requires day-to-day operations be screened from view. This provision, self-evidently, seeks to ensure no waste is visible from residential uses. [371] Whilst the evidence supports a finding that the end result will have no adverse visual consequences, the same cannot be said of the development prior to the commencement of rehabilitation. The landform at this stage is visually unacceptable for reasons given above. I do not accept this impact is of no planning consequence. It is the direct product of the scale of development, which exceeds what is anticipated by a deliberate planning strategy. That strategy is articulated in the Activity Code, which forms part of 2018 TLPI created to ‘protect all or part of a local government area from adverse impacts in urgent or emergent circumstances’. The adverse impact to which Specific Outcome 4(5) seeks to protect is clear enough from the following purpose statement: “The purpose of the TLPI is to regulate applications for new or expanded waste activities within the Swanbank/New Chum industrial area (located within the Ipswich local government area) to ensure this regionally significant economic area is appropriately regulated to protect existing, approved or planned residential and other sensitive receiving uses, from adverse impacts associated with waste activities.” (emphasis added) [372] The non-compliance conceded with Specific Outcome 4(5) of the Activity Code contained in the 2018 and 2020 TLPIs, which are in identical terms, do not assist Cleanaway’s case in favour of approval. To this can be added non-compliance with Overall Outcome 3(2)(b)(ii), which is set out at paragraph [175]. That the non- compliances do not positively advance Cleanaway’s approval case is confirmed by Overall Outcome 3(2)(a) of the Activity Code. This provision is, in my view, engaged by the two non-compliances referred to. The provision states: “Applications involving new or expanded waste activities that are inconsistent with the outcomes sought by the Swanbank / New Chum Waste Activity Code, constitute undesirable development and are unlikely to be approved.” (emphasis added) 312 Ex.3.002, p.2-2, s 2.3. -- 76 of 99 -- 77 [373] The TLPIs were repealed prior to the promulgation of these reasons for judgment. Given this, and the outcome of the above assessment, I have approached the exercise of the discretion on the footing that all versions of the Activity Code are, in effect, a neutral consideration. That is to say, an assessment against each Activity Code neither supports approval, nor warrants refusal. [374] Council and the parties pressing for refusal also contend that an approval would give rise to adverse impacts on residential amenity in an intangible sense. I accept this has been established. [375] The starting point in this regard is not a good one for the proposed development. [376] The development application seeks approval to extend the life of an operational waste facility that is adversely impacting upon the amenity of existing residential communities. The impacts are tangible (visual) and intangible (sense of place/character etc). That the existing use has such an impact is confirmed by the photomontages, the substance of the adverse properly made submissions and the lay witness statements of Dr Turni and Ms Thomasson. This body of evidence establishes: (a) the existing use is not containing its amenity impacts within Sub Area RBIA2; and (b) the operational difficulties, and long standing non-compliances with extant authorities discussed at paragraphs [56] to [86], are notorious. [377] In my view, an approval here would only serve to entrench a use that does not comfortably co-exist with residential communities in the manner anticipated by the planning scheme. Indeed, the proposed development, if approved, would exacerbate the point made in subparagraph (a) above. There is also an unacceptable risk the circumstances identified in subparagraph (b) will continue in the event an approval is granted. That an approval would not cure the existing difficulties identified in (a) and (b) above was not lost on those who elected to make adverse submissions, including Dr Turni and Ms Thomasson. [378] Subjective opinions or desires articulated in submissions or lay witness statements may inform the exercise of the discretion. The extent to which they do so is fundamentally a product of: (1) the substance of the issues raised in the documents; and (2) the support that can be drawn for, or against, those issues from the body of technical evidence before the assessment manager, or this Court on appeal. [379] Here, the substance of the adverse submissions and lay witness evidence does not support approval. They suggest an approval would adversely impact on the sense of place and general amenity of existing residential communities. This subjective expression of opinion is supported, in part, by the visual amenity evidence. This is a factor working against approval. [380] For my part, I readily accept an approval would have an adverse impact on the amenity of existing residential communities in an intangible sense. Bearing in mind the nature of the use, an approval would have two negative consequences adversely impacting on the sense of place of existing residential communities to the east and south-east. -- 77 of 99 -- 78 [381] First, an approval would delay the rehabilitation of the land and lead to an adverse visual impact, albeit of a limited and uncertain duration. This delay is the direct product of the vertical extension proposed to the landfill facility, which the evidence: (a) does not establish is required to rehabilitate the land; (b) establishes will cause the facility to become more visible and fail, like the existing use, to contain its amenity impacts within Sub Area RBIA2. [382] Second, given the nature of the use (a waste facility), and given the circumstances traversed in paragraphs [348] to [354] and [358] to [366], an approval would be inconsistent with a reasonable community expectation. The planning scheme confers an expectation that development of the kind proposed will contain its impacts within Sub Area RBIA2. For reasons already given, the proposed development is inconsistent with this expectation. [383] It has not been established the proposed development can successfully manage its impacts on residential amenity. Non-compliance with focal provisions [384] Focal provisions put in issue by Council are identified in the agreed list of issues, which was marked exhibit 14.008 and included as Annexure A to these reasons. The focal provisions relied upon are to be found in the planning scheme, the 2018 and 2020 TLPIs, the South East Queensland Regional Plan 2017 (SEQRP 2017) and State Code 22. [385] Council alleged non-compliance with more than 30 focal provisions of the planning scheme. A review of the alleged non-compliances, in light of the findings above in relation to environmental and amenity impacts, led me to conclude there are a limited number of provisions that have an impact on the exercise of the discretion, one way or another. The provisions falling into this category are dealt with below. Before doing so, I can indicate that partial compliance with the planning scheme has been taken into account as a factor supporting approval. The exercise of the discretion, which is dealt with later in these reasons, proceeds on the footing that compliance has been demonstrated with focal provisions not mentioned below, but only to the extent compliance is consistent with the findings I have made in relation to environmental and amenity impacts. [386] The first category of focal provisions of import are those traversed at paragraphs [358] to [366] above. I am not satisfied compliance has been demonstrated with the planning scheme provisions dealt with in those paragraphs. They are provisions, in my view, which reflect particular planning for Swanbank New Chum. The particular planning goes to the management of impacts associated with significant business and industry uses on, inter alia, existing and planned residential communities. [387] The additional focal provisions with which there is non-compliance are as follows. [388] A planning objective repeated throughout parts of the planning scheme is one that encourages rehabilitation of degraded and contaminated land so it can be put to an -- 78 of 99 -- 79 appropriate use. This theme appears in s 6.14(2)(j) of the planning scheme, which is an Overall Outcome for the Investigation zone and relied upon as a focal provision:313 “Degraded or contaminated sites (including former mining sites and overburden stockpiles) are rehabilitated and used in an appropriate manner.” [389] The theme is also reflected in the following provisions of the planning scheme, which are also relied upon as focal provisions: (a) Part 6, Division 3, Overall Outcome s 6.6(2)(g) for the Regionally Significant Business and Industry Areas:314 “Degraded or contaminated sites (including former mining sites and overburden stock piles) are rehabilitated and used in an appropriate manner.” (b) Part 6, Division 3, Overall Outcome 6.7(4)(a)(i)(G), which applies to Swanbank New Chum:315 “Development will progressively lead to the rehabilitation of areas degraded by past mining activities and the integration of these areas within a network of green spaces.” (c) Part 6, Division 3, Specific Outcome 6.7(5)(e)(x) for the land included in the Land-Extensive, Business Enterprises designation on Figure 6-7-1:316 “Degraded lands are rehabilitated or repaired.” (d) Part 6, Division 5, Specific Outcome 6.15(15)(d), which is relevant to the effects of development in the Investigation zone:317 “Uses and works within Regional Business and Industry Investigation Areas occur within a comprehensive planning framework that – … (d) provides for the rehabilitation, repair and reuse of former mining lands” [390] Whilst I accept the evidence demonstrates the rehabilitated landform will make a positive contribution in ecological and greenspace terms, I am not satisfied it has demonstrated the proposed development, if approved, will rehabilitate the land as anticipated by ss 6.6(2)(g), 6.7(a)(i)(G) and 6.14(2)(j) of the planning scheme. For the reasons given in paragraphs [302] to [305] and [317] to [324], there is an unacceptable risk the development will be unable to reach a self-sustaining state absent the continued operation of leachate and groundwater pumping systems. The use would, as a consequence, be regarded as a legacy operation that, unfairly, burdens future generations. 313 Ex.3.001, p.1-67. 314 Ex.3.001, p.1-28. 315 Ex.3.001, p.1-31. 316 Ex.3.001, p.1-37. 317 Ex.3.001, p.1-69. -- 79 of 99 -- 80 [391] Part 6, Division 3 of the planning scheme contains, inter alia, Overall and Specific Outcomes for the Regionally Significant Business and Industry Areas. A provision within this division directed to preferred development outcomes in Swanbank New Chum, s 6.7(4)(a)(i)(A), states:318 “Swanbank New Chum is a flagship example of effective sustainable development integrated into the surrounding emerging communities of Ipswich City.” [392] An approval, if granted and acted upon, would result in development that: (1) delays the rehabilitation of the land as required by existing approvals; (2) does not contain its environmental and amenity impacts with the Sub Area RBIA2; and (3) adversely impacts on existing residential amenity. Items (1) to (3) inclusive are inconsistent with the proposition the proposed development integrates with surrounding residential communities. These points, in my view, serve to reinforce the inherent incompatibility, and lack of sufficient buffer, between the proposal and surrounding residential communities to the east and south-east of the land. [393] Part 6, Division 3, s 6.7 of the planning scheme contains Specific Outcomes for the Regionally Significant Business and Industry Areas. In the context of an overall vision for Swanbank New Chum, s 6.7(4)(a)(i)(D) states:319 “Development is of the highest environmental standards and occurs in a fully master planned and landscaped setting.” [394] For the reasons given in relation to environmental risk, I am not satisfied the proposed development will, or can be conditioned to be, of the highest environmental standard. [395] As I have already observed, the land is included in the RBIA2 Sub Area. The finer grained planning for this Sub Area anticipates development that:320 “provide[s] more capital intensive, business, industry, recreation and community uses, including some ‘difficult to locate’ activities…” [396] The proposed development derives support from this provision because it is fairly described as a ‘difficult to locate’ activity. This support is however qualified by the need to demonstrate: “…the use has no discernible amenity or environmental impacts outside of the Sub Area…” [397] For reasons given above, compliance has not been demonstrated with this qualification. [398] Section 6.17 of the planning scheme identifies consistent and inconsistent uses, use classes and other development for the Investigation zone.321 Subsection (2) of this provision provides that 25 identified use classes, and other development, are 318 Ex.3.001, p.1-30. 319 Ex.3.001, p.1-31. 320 Ex.3.001, p.1-74, s 6.16(2)(a)(iv). 321 Ex.3.001, p.1-76 and 77. -- 80 of 99 -- 81 consistent with the outcomes sought for the Investigation zone. This assumes a qualification is met, namely the use is of:322 “…a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds…” [399] The proposed development is a use identified in s 6.17(2)(t). It is a ‘special industry’. [400] The findings I have made with respect to amenity and environmental impacts are, in my view, symptomatic of development that is of an inappropriate scale for the particular circumstances of the land and its surrounds. [401] The non-compliances with the planning scheme identified above are not technical, textual or of no planning consequence. The non-compliances sound in adverse amenity impacts. They also involve an unacceptable level of environmental risk. [402] The non-compliances with the planning scheme are serious in nature. They represent non-compliances with provisions that provide important qualifications to the type, and scale, of uses anticipated in Swanbank New Chum. For the purposes of this appeal, it can be said the qualifications: (1) provide direction about the acceptability, or otherwise, of environmental impacts; and (2) inform how land use conflict is to be addressed between two inherently incompatible uses (residential uses (existing and future) on the one hand and significant business and industry uses on the other hand). In circumstances where, as here, it is not suggested the planning scheme is overtaken by events or unsoundly based, the document should be given its full force and effect in the exercise of the discretion under s 60 of the PA. [403] As to the 2018 TLPI, for reasons already given, non-compliance has been established with Specific Outcome 4(5)(a) of the Activity Code. Non-compliance has also been established with a number of other provisions of the document having regard to: (1) the evidence I accept with respect to environmental and amenity impacts; and (2) the finding in paragraph [371]. The provisions with which non-compliance arises are set out in full at paragraphs [175] to [182]. The non-compliances are as follows: (a) Overall Outcome 3(2)(b)(i), because the proposed development will have a ‘detrimental impact on the amenity’ of existing residential areas to the east and south-east; (b) Overall Outcome 3(2)(b)(iii), because it has not been demonstrated environmental risk is acceptable; (c) Overall Outcome 3(2)(b)(v), because it has not been demonstrated the proposed development will achieve an appropriate rehabilitation outcome; (d) Specific Outcome 4(4)(b), because there is an unacceptable risk the proposed development will lead to a legacy operation that prejudices the rehabilitation and future use of the land; and (e) Specific Outcome 4(6)(c), because there is an unacceptable risk the proposed development will adversely affect groundwater quality. 322 Ex.3.001, p.1-77, s 6.17(2). -- 81 of 99 -- 82 [404] The 2018 TLPI was amended in August 2018 to include Specific Outcome 4(8), which is in the following terms: “(8) Applications to change or expand an existing Waste Activity Use: (a) may be given favourable consideration where it can be clearly demonstrated, with a high degree of certainty, that improved amenity, environmental or community outcomes are able to be achieved; and (b) are not likely to be approved where such changes may lead to increased detrimental amenity, environmental or community outcomes.” [405] It can be accepted the proposed rehabilitation works, in part, will deliver an improved outcome for the reasons given at paragraphs [415] to [422]. It has not however been demonstrated ‘with a high degree of certainty’ that an improved amenity, environmental or community outcome can be achieved. As a consequence, I am not satisfied support for an approval can be derived from Specific Outcome (8)(a). [406] The evidence I accept with respect to amenity impacts establishes an approval would lead to ‘increased detrimental amenity…outcomes’. In short, the proposed development, if approved: (1) would delay the rehabilitation of the land; (2) lead to a circumstance where the landform would be more noticeable for residential communities to the east and south-east; (3) lead to a period, of at least 12 months, where the landform is in an unrehabilitated state and looks out of character. These matters, coupled with the unacceptable level of environmental risk, engage Specific Outcome (8)(b). The Activity Code envisages the proposed development is, as a consequence, ‘not likely to be approved’. [407] For the above reasons, the Activity Codes forming part of the 2018 and 2020 TLPIs do not support approval. Given the TLPIs are now repealed, I have approached the exercise of the discretion on the footing the assessment carried out against the Activity Code does not support approval. I have also assumed the assessment does not warrant refusal or lend support to the refusal case generally. [408] Non-compliance is alleged with a small part of the SEQRP 2017, namely a broadly stated objective contained in Theme 4 – Sustain. The objective speaks of an intent to achieve ‘zero net waste’. This is raised by Council in the context of the resource recovery and sustainability issue. For reasons given in Austin and paragraphs [425] to [427] below, I was persuaded compliance with this provision of the SEQRP 2017 was demonstrated and supports approval. [409] Non-compliance is alleged with two focal provisions of State Code 22, namely Performance Outcomes PO4 and PO5. The provisions are in the following terms:323 “PO4 Development is suitably located and designed to avoid or mitigate environmental harm to the receiving waters environment.” “PO5 Development is designed to include elements which: 323 Ex.4.002, pp.59-60. -- 82 of 99 -- 83 1. prevent or minimise the production of hazardous contaminants and waste as by-products; or 2. contain and treat hazardous contaminants on-site rather than releasing them into the environment; and 3. provide secondary containment to prevent the accidental release of hazardous contaminants to the environment from spillage or leaks.” [410] The evidence with respect to environmental impacts establishes there is an unacceptable risk of non-compliance with PO4. That is to say, the landfill is not suitably located and designed to avoid or mitigate environmental harm to the receiving waters environment. There is an unacceptable level of risk that groundwater will be contaminated by leachate. This risk arises because the development involves placing a very significant volume of waste on top of an unsuitable subbase. This matter points towards refusal. [411] The evidence of Cleanaway’s experts demonstrates the development has been designed to include the three elements cited in PO5. The issue is whether the elements will achieve their intended objective. For the exercise of the discretion, I have proceeded on the footing that compliance has been demonstrated with PO5. This is a matter favouring approval. Matters favouring approval [412] In support of approval, Cleanaway advanced a number of ‘relevant matters’.324 The matters relied upon are in the following terms: (a) improved environmental outcomes as a result of rehabilitation of the landfill as well as surrounding areas; (b) reduction of waste going to landfill as a result of the resource recovery component; (c) planning, community and economic need; (d) continuation of the existing development on the land as an operating landfill; (e) positive locational characteristics of the land; (f) the absence of any significant detrimental or unacceptable environmental impacts; (g) the absence of any significant detrimental or unacceptable amenity impacts; (h) substantial compliance with relevant provisions of the planning scheme and TLPIs; (i) the issue of an EA to facilitate the proposed development; (j) the design, construction and operation of the proposed development so as to meet environmental obligations including those under the EA; (k) the proposed development can be conditioned to comply with appropriate design, construction and operational requirements; 324 CFG-31, p.124, para 522. -- 83 of 99 -- 84 (l) the proposed development can be conditioned to ensure no adverse environmental or amenity impacts. [413] Subparagraph (a) advances the proposition that the proposed development will deliver improved environmental outcomes in comparison to the existing approved landfill. The improved outcomes relied upon are: (1) the progressive rehabilitation of the landfill; (2) the progressive rehabilitation of the balance land; (3) resultant biodiversity outcomes in terms of flora and fauna; and (4) a revised landform, which more effectively sheds surface water and reduces infiltration and leachate production.325 [414] The written submissions prepared on behalf on Cleanaway did not contain a comparative examination of the environmental outcomes to be delivered by the proposed development as against existing obligations arising under the current EA and extant development approval. Such an exercise was required to ascertain the extent to which any, or all, of items (1) to (4) above represent ‘improvements’. [415] It will be recalled the planning approval for the existing facility includes condition 35(a),326 which requires the land to be progressively rehabilitated and in accordance with a document prepared by Ison Environmental Planners, dated August 1996 (ISON Report).327 The finished landform is to be generally in accordance with a Proposed Final Surface Contour Plan dated 28 November 2014. The landform approved is, for reasons already given, lower in elevation than the proposed development. [416] The rehabilitation objectives identified in section 4 of the ISON Report are as follows:328 “In designing the final landform the following objectives were established: 1. Create a landform that is geotechnically stable and is not subject to slumping or erosion. 2. Create a drainage pattern that will allow the control of water run off of acceptable quality during establishment of the rehabilitated land and subsequent use. 3. Create a final landform in harmony with the existing topography. The proposed rehabilitation plan will ensure that the site does not adversely affect land outside the site boundary. The establishment of vegetation on the proposed land form will allow subsequent land owners the opportunity to select future uses for the site. All of the filled area will be recontoured to a final landform that blends with the surrounding landscape and revegetated progressively after filling.” 325 CFG-31, p.125, para 525. 326 Ex.18.001, p.12. 327 Ex.14.022. 328 Ex.14.022, p.4. -- 84 of 99 -- 85 [417] Section 3 of the ISON Report describes how the land will appear after rehabilitation is complete:329 “The rehabilitation goals chosen for this site are the rehabilitation criteria nominated for the Aberdare Colliery that previously occupied this site. These were: “to return the backfilled area to open eucalypt forest and grassed open space with some trees.” For the grassed open space “Selected tree planting of eucalypts and acacias will complement the grass in these areas.” For the open eucalypt forest areas, “We would be targeting a density of 200 stems/hectare in those areas”.” [418] The means by which this objective is achieved are identified in the ISON Report. They are identified at paragraph [41]. [419] Conditions W6, W7 and W8 of the current EA also impose obligations on the holder of the authority to rehabilitate the landfill and conduct post-closure care. These conditions are set out at paragraph [50]. I was not directed to a rehabilitation and post- closure plan that was approved by the DES under the current EA. [420] A comparison of the proposed development with the current EA and extant development approvals suggests the proposed development will deliver two improved environmental outcomes. First, the modified landform will provide a superior drainage solution; the cap will shed surface water more effectively than the approved landform. This has the benefit of reducing the risk of water infiltration and consequential leachate production. Second, the proposed development involves superior rehabilitation outcomes for the land that sits outside of the landfill footprint. The rehabilitation proposed in these areas of the land will improve ecological values for flora and fauna. [421] With paragraph [420] in mind, I accept the proposed development will deliver an improved environmental outcome in some respects, but not others.330 The improvements attract weight in the exercise of the discretion in favour of approval. They are not decisive considerations in and of themselves. [422] I accept subparagraph (b) has been established. It is a relevant matter that supports approval. [423] Subparagraph (c) invites the Court to exercise the discretion on the footing there is a town planning and community need for the proposed development. This proposition can be accepted for the resource recovery component of the proposal. On any view, significant investment is required in facilities of this kind in South East Queensland for the foreseeable future. Council did not suggest otherwise. [424] As to the need for the landfill component, there is little controversy that private non- putrescible airspace capacity in South East Queensland will be exhausted in the near future. Despite this, Council contended there was no need for the development because there is ample putrescible landfill airspace capacity available that can, and does, receive non-putrescible waste. In support of this, reliance was placed upon the large body of waste industry and need evidence, along with the findings in HPC 329 Ex.14.022, p.3. 330 The ‘others’ being the circumstances traversed in these reasons with respect to environmental risk and associated legacy issues. -- 85 of 99 -- 86 Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors [2020] QPELR 534. [425] For the reasons given in Austin (paragraph [740] to the end of the second sentence in paragraph [751], [817] to [831]): (a) I do not accept the findings made in HPC about landfill airspace supply in South East Queensland should be applied to determine the need point in this appeal; (b) I do not accept a critical assumption underpinning Council’s need case - namely it can be assumed, for the life of the proposed development, that putrescible airspace capacity serving South East Queensland is a substitute for private non- putrescible airspace capacity. To assume it is in the public interest that the former is substitute for the latter, in the short term, requires a number of adverse consequences flowing from such substitution to be ignored. The consequences are identified in paragraph [831] of Austin as follows: “To allow the exhaustion of non-putrescible waste facilities to occur in South East Queensland would lead to the following: (a) it would result in the loss of a service – not all landfills are the same; (b) it would reduce competition for the disposal of non- putrescible waste; (c) it would expose non-putrescible waste to higher dumping fees in comparison to those charged at putrescible landfill waste facilities; and (d) would result in the consumption of a valuable community asset - putrescible landfill airspace would be consumed more rapidly than it could be replaced by viable alternatives, such as energy for waste.” [426] Once it is appreciated: (1) landfill represents important infrastructure; (2) private non- putrescible landfill airspace capacity serving South East Queensland is near exhaustion; (3) the demand to dispose non-putrescible waste will continue for the life of the extended landfill; and (4) it cannot be assumed non-putrescible waste can be diverted to putrescible waste facilities absent adverse economic consequences for the life of the extended landfill; it is not difficult to conclude there is a need for additional private non-putrescible landfill airspace capacity to serve South East Queensland. This need exists, in my view, today and will persist for the life of the proposed development. [427] I am satisfied the proposed development can meet the identified need, in part, in an economically efficient way (as an extension of an existing landfill facility). Given the need exists today, and relates to a piece of community infrastructure, this is a matter attracting significant weight in support of approval. [428] I accept subparagraph (d) has been established. It is supportive of approval but does not attract significant weight. It is a point that is bound up in the assessment of need. [429] I accept subparagraph (e) has been established. It is supportive of approval but does not attract significant weight in, and of, itself. The locational characteristics of the -- 86 of 99 -- 87 land explain, in part, its inclusion in the RSBEIAL and Investigation zone under the planning scheme. [430] I do not accept subparagraphs (f) and (g) have been established for reasons given above. [431] I accept subparagraph (h) has been established but to a more limited extent than advanced on behalf of Cleanaway. I do not accept the point has been established in so far as it assumes compliance in environmental and amenity terms. [432] Whilst I accept the new EA is a relevant matter for the purposes of assessing the impact assessable component of Cleanaway’s development application, I do not accept its very existence is a factor that advances the exercise of the discretion very far in favour of approval. For the document to provide meaningful support for approval, it was necessary to go further than its mere existence. For example, it might have been said the document demonstrates how the proposed development can be conditioned to address, inter alia, its environmental impacts.331 It has not however been established that compliance can be achieved with particular conditions imposed on the new EA. [433] Central to subparagraphs (j), (k) and (l) is the proposition that the proposed development can be conditioned to ensure its design, construction, operation and completion can occur in a manner that is acceptable in environmental and amenity terms. For reasons given above: (a) I am not satisfied this has been demonstrated in amenity terms; and (b) whilst, in theory, conditions could be imposed to address the environmental impacts of the proposed development, it has not been demonstrated, in reality, an operator of the expanded landfill can implement and maintain the controls required by particular conditions to successfully (and acceptably) manage environmental risk – this is due to existing and well known site constraints that cannot be removed by an approval. Exercise of the discretion [434] Cleanaway’s case in support of approval was founded on the following propositions, namely: (a) an approval, granted subject to conditions, would comply with the planning scheme, SEQRP 2017 and State Planning Policy 2017; (b) an approval, granted subject to conditions, substantially complies with the 2018 and 2020 TLPIs; (c) the proposed development will not have any unacceptable ecological, environmental or amenity impacts; (d) the proposed development will rehabilitate the landfill and surrounding areas; (e) the proposed development will deliver improved environmental outcomes for the land; 331 Austin, [846]. -- 87 of 99 -- 88 (f) the proposed development is well located and, if approved, would deliver identifiable public benefits, namely: (i) the development would meet an existing town planning, community and economic need; and (ii) the development is consistent with contemporary waste management planning in that it will reduce the volume of waste going to landfill by operation of its resource recovery area; [435] Subparagraph (a) has not been established in so far as it involves compliance with the planning scheme. [436] Subparagraph (b) has not been established to the extent Cleanaway’s case assumed non-compliances with the Activity Code in the TLPIs were limited in number, and without planning consequence. [437] Subparagraph (c) has been established in part only. The evidence demonstrates the proposed development will not give rise to unacceptable ecological impacts. The evidence does not however demonstrate what is asserted in relation to amenity and environmental impacts. [438] Subparagraph (d) can be accepted to the point it involves ecological improvements. Beyond this, there is an unacceptable risk the proposed development will lead to the site becoming a legacy use that requires leachate and groundwater pumping systems to operate, and be maintained, in perpetuity. [439] Subparagraph (e) has been established to the extent in relates to ecological improvements of the kind discussed in paragraphs [98] and [420]. [440] Subparagraph (f) has been established. [441] To the above matters can be added the following considerations relevant to, and favouring, approval, namely: (1) the substance of the properly made submissions supporting approval (discussed at paragraphs [199] and [201]); (2) the matters traversed in paragraphs [423] to [427], to the extent they are not otherwise reflected above; and (3) that hard amenity impacts, in terms of noise, dust and odour emissions, can be successfully managed by conditions. [442] Council alleged the development application should be refused because there is no need for the landfill component of the development; the proposed development will not sufficiently promote resource recovery; the proposed development is not sustainable development; the proposed development would be contrary to contemporary waste planning principles; the proposed development will delay the rehabilitation of the land and is contrary to general planning principles. Save for the issue raised with respect to rehabilitation, the exercise of the discretion will proceed on the footing these matters have been resolved favourably to Cleanaway. It is appropriate to do so having regard to: (a) paragraphs [423] to [427] above; (b) paragraphs [783] to [839] of Austin, which, I am satisfied, has application (by parity of reasoning) to issues in this appeal about resource recovery, sustainable development and consistency with contemporary waste planning principles; and -- 88 of 99 -- 89 (c) paragraphs [543] to [548] of Austin in relation to the importance, if anything, to be attributed to asserted departures from broadly stated planning principles. [443] As to the rehabilitation of the land and its redevelopment for uses anticipated by the planning scheme, I am satisfied rehabilitation and reuse of the land would be delayed by an approval. However, in isolation, this does not materially enhance the strength of the refusal case. The strength of the case is derived from three matters, namely: (1) the proposed development will have unacceptable impacts on amenity; (2) the proposed development has an unacceptable level of environmental risk; and (3) the proposed development is non-compliant with the planning scheme in a number of material respects (by reason of (1) and (2)). [444] The critical question is this: has it been demonstrated an approval should be granted, subject to conditions? [445] This question is resolved in the negative. [446] The evidence establishes the land is constrained. It has not been demonstrated the proposed landfill extension can be undertaken in a manner that appropriately co-exists with those constraints. This manifests in three ways: (1) as an unacceptable risk of environmental impact; (2) in the form of adverse amenity impacts; and (3) material non-compliance with the planning scheme and State Code 22. These are compelling reasons for refusal. Indeed, items (1) and (3) are sufficient to warrant refusal of the development application in their own right. [447] There are reasons supportive of approval that are to be balanced against these matters. They are not without significant force and include partial compliance with the planning scheme, improved environmental outcomes, and the meeting of a town planning and community need for critical community infrastructure. All of the matters that could be said to favour approval do not carry the day because: (a) the grounds supportive of approval, taken individually or collectively, do not render the risk of adverse environmental impact acceptable; (b) meeting the identified need will not render the adverse amenity impacts acceptable; (c) the need for non-putrescible landfill facilities can be met, in part, by the development approved in Austin; and (d) the grounds supportive of approval do not, taken individually or collectively, provide a sound town planning basis to approve development that is inconsistent with the planning scheme and has the potential to give rise to adverse environmental and amenity impacts. [448] Cleanaway has not discharged its onus. The development application is refused. -- 89 of 99 -- 90 Conclusion [449] It is adjudged that: 1. The appeal is dismissed. 2. The respondent’s decision to refuse the appellant’s development application, communicated by way of amended decision notice dated 4 November 2019, is confirmed. -- 90 of 99 -- 91 ANNEXURE A – LIST OF ISSUES -- 91 of 99 -- 92 -- 92 of 99 -- 93 -- 93 of 99 -- 94 -- 94 of 99 -- 95 -- 95 of 99 -- 96 -- 96 of 99 -- 97 -- 97 of 99 -- 98 -- 98 of 99 -- 99 -- 99 of 99 --