Liverpool City Council v Moorebank Recyclers Pty Ltd

BASTEN JA: The respondent, Moorebank Recyclers Pty Ltd, is the owner of a parcel of land of some 20.5 hectares near the western bank of the Georges River and between the river and Brickmakers Drive at Moorebank, in the local government area of the Liverpool City Council. Moorebank sought to develop the land as a materials recycling facility.

On 19 December 2005 the Director General of the Department of Planning declared the proposed development to be a major project to which Pt 3A of the Environmental Planning and Assessment Act 1979 (NSW) (“EP&A Act”) applied. On 2 May 2006 the respondent submitted a major developments application under Pt 3A of the EP&A Act proposing the development of a materials recycling facility having the capacity to process up to 500,000 tonnes per year of masonry, construction and demolition waste for reuse in the construction industry. [1]

The relevant consent authority was the Minister; on 1 May 2015 the Minister referred the application to the Planning Assessment Commission (“PAC”) for consideration. Objection was taken to the proposal by the Council and by Benedict Industries Pty Ltd and Tanlane Pty Ltd, those companies being the owner and occupier respectively of land to the north of the respondent’s land and adjoining proposed roadworks and a bridge by which trucks bringing waste material to the respondent’s facility would gain access from Brickmakers Drive. On 11 September 2015 the PAC granted the application subject to conditions.

The Council and, separately, Benedict Industries and Tanlane, challenged that decision in the Land and Environment Court. On 8 May 2017 Robson J delivered judgment upholding the approval, subject to revised conditions. [2] Orders were made giving effect to that judgment on 14 July 2017, the orders being entered on 17 July 2017.

The Council commenced an appeal against the orders made in the Land and Environment Court; Benedict and Tanlane commenced a separate appeal of their own. The appeals were heard together in this Court and, ultimately, were subject to a common amended notice of appeal containing nine grounds. (It is convenient to refer to all three parties jointly as “the appellants”.) The appeal, brought pursuant to s 57(1) of the Land and Environment Court Act 1979 (NSW), is limited to an order or decision of the Land and Environment Court “on a question of law.”

Three broad challenges were identified in the amended notice of appeal, which may be identified by reference to the grounds, but in the order in which they are addressed below:

Although Pt 3A of the EP&A Act has since been repealed, its provisions continue to apply to the respondent’s project. As a result, the general regime for the assessment of development applications provided by Pts 4 and 5 of the EP&A Act did not apply to the project. [3] Nor did the relevant local environmental plan. [4] Nevertheless, the primary focus of the appellants’ submissions was upon the terms of the Liverpool Local Environmental Plan 2008 (“the Liverpool LEP”). That was because, although the plan did not “apply” to the project, s 75J(3) provided that “[i]n deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved.”

The appellants’ case was that, although not required to have regard to the Liverpool LEP, the judge did in fact take it into account but, in so doing, misconstrued its legal effect in a manner which materially affected his assessment of the project.

There was no doubt that the primary judge, in reconsidering the decision to approve the project in Class 1 proceedings, was exercising a discretionary power; further, it was not inappropriate to take account of the Liverpool LEP which otherwise provided a scheme for zoning the land and the surrounding lands. There can be little doubt that the zoning of the surrounding lands was a permissible, and possibly a mandatory, consideration. The difficulty with the appellants’ submissions lay in the identification of the legal error. A number of steps were involved in that process.

The first submission focussed on the proposed development in the context of the zoning of the respondent’s land. That relied on the land use table in the Liverpool LEP, which generally operated as follows:

The respondent’s land fell within zone E2, the objectives of which were described as follows:

The only development permitted without consent was “environmental protection works”; there is no doubt that the materials recycling facility was a prohibited use in zone E2, although, pursuant to s 75J, that did not prevent consent to the project.

The respondent’s land was, in any event, the subject of specific provision in Sch 1 to the Liverpool LEP, cl 11 of which provided:

Counsel for the respondent referred to Sch 1 as a mechanism for “spot zoning” particular areas of land. Spot zoning was given effect by cl 2.5:

The second step in the submissions addressed the definition of “resource recovery facility” (being the use identified in Sch 1, cl 11) in the Dictionary to the LEP:

Given these provisions, the appellants developed two lines of argument as to how the judge should have taken the instrument into account. First, it was said that, although the materials recycling facility proposed by the respondent did not conform to the objectives of the E2 zone, it was possible to envisage a resource recovery facility which did conform to the zoning. The trial judge should have, but did not, give weight to the non-conformity in determining to approve the project.

The second (and independent) step in the appellants’ reasoning was that cl 11 was subject to a sunset provision providing for its repeal on 1 September 2018. Although a right may have arisen to rely upon the continued operation of an “existing use” (as defined in s 106 of the EP&A Act), the appellants submitted that from 1 September 2018 the operation carried on by the respondent would become a prohibited use. That too, it was submitted, was a factor which the primary judge failed to take into account, because he misconstrued the effect of the sunset clause.

The appellants’ third submission as to legal error depended upon the application of s 39(4) of the Land and Environment Court Act, which provides:

Little attention was given in this Court to the proper construction of s 39(4). Rather, it appeared that the appellants assumed that the Liverpool LEP was an instrument made under a “relevant” Act, namely the EP&A Act, and that the Court was therefore required to have regard to its terms. However, that did not advance the appellants’ case for two reasons. First, s 39 sets out the nature of the functions of the Court in hearing an appeal in Class 1, 2 or 3 of its jurisdiction. As stated in s 39(2), the Court shall have “all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.” There is no reason to read s 39(4) as expanding that function. Thus, for example, the Court is required to have regard to the Liverpool LEP to the extent, and only to the extent, that the Minister was required to have regard to it. In the vernacular, the Court stands in the shoes of the Minister. Sometimes the vesting of a power in a Minister rather than some other body may reveal that the Minister is thought to have a particular interest in applying government policy or matters which go to the public interest in an imprecise and undefined manner. The reference to “the public interest” in s 39(4) may be intended to make it clear that the Court has a similar power in that respect to the administrative body from which the appeal is brought; in any event it does not give the Court any broader power than that exercised by the original decision-maker.

Secondly, an obligation to “have regard to” a particular instrument does not create an obligation to have regard to an instrument which the original decision-maker was not required to have regard to, because the instrument in its terms did not have that effect. Similarly, s 39(4) does not render mandatory a consideration set out in an instrument if the instrument itself did not make that consideration mandatory. Thus, in the present case, the Liverpool LEP was an environmental planning instrument that the Minister could, but was not required to, take into account. [5] Section 39(4) of the Land and Environment Court Act did not translate that provision into an obligation that the Court take the instrument into account.

For reasons which will be noted below, the primary judge did not misread this provision; but if he did, he did so in a manner favourable to the appellants.

The passages in the reasons of the primary judge challenged by the appellants included, first, the statement of the primary judge as to the basis upon which he approved the project: [6]

The appellants took no issue with the judge’s statements under the headings “Statutory framework”, [7] “Legal principles” [8] and “Merits review – relevant considerations”. [9] In having regard to the provisions of the Liverpool LEP, pursuant to s 75J(3) of the EP&A Act, the judge paraphrased [10] the approach articulated by the Chief Judge of the Court in Ironstone Community Action Group Inc v NSW Minister for Planning: [11]

The primary judge then considered the expert evidence in respect of various planning instruments and government strategies. With respect to the objectives of the E2 zone, the judge stated:

The trial judge then stated:

The inference the appellants sought to draw from the first sentence in [86] was that the judge did not in fact take the identified objectives into account and addressed them only on a somewhat limited and hypothetical basis. This, it was submitted, was not a proper consideration of the objectives. [12]

That is not a sensible way to read the sentence; it is clear from the previous paragraphs of the judgment that the judge had taken the objectives of the zoning into account and found that the proposed development did not fit comfortably within them. However, he gave that conclusion “limited weight.” Read in this context, the hypothetical statement should be understood as meaning, “if it were necessary to consider the consequences of the fact that the objectives are not satisfied ….” However the passage is to be read, it does not demonstrate an error of law which materially affected the outcome.

The judge concluded in relation to the legislative objectives:

The primary judge then turned to what he described as “permissible uses”, in a passage extending from [92]-[99]. This passage lay at the heart of the second limb of the appellants’ complaint of legal error, based on the construction of cl 11. The judge commenced his reasoning in this regard with the following statements:

Although in its opening at trial Moorebank had raised the possibility that the appellants might make such submissions, it is clear that that was not what the trial judge was referring to in the first sentence of [93]. Rather, the words referred to a judgment of Biscoe J in proceedings for the grant of an easement under s 88K of the Conveyancing Act 1919 (NSW) for the purpose of Moorebank obtaining access to its land. [13] In that case Biscoe J, in setting out the “background” to the application stated: [14]

No submissions were directed to the construction of cl 11 in this Court; rather, the appellants’ proposition was based on the matter which had been raised by Ms Laidlaw, referred to in the passage set out above from the primary judgment, Ms Laidlaw being the Council’s planning expert.

That approach was consistent with a proposition put forward by Benedict and Tanlane that, even if consent were given prior to 1 September 2018, by the time of the trial in the Land and Environment Court it was most improbable that the facility would be developed and would commence operation prior to that date. Accordingly, it would be necessary for Moorebank to rely on the provisions of s 109B(1) of the EP&A Act, to the effect that “[n]othing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.”

No legal error was demonstrated in the judge’s understanding of cl 11(3); nor was it explained how the existence of the clause should have affected the assessment of the application.

A statement of the basic elements of the appellants’ submissions in relation to the relevant statutory provisions, together with the challenged passages in the judgment below, is sufficient to demonstrate that no question of law is raised. When a statutory provision permits a decision-maker to have regard to particular material, but does not mandate it, a complaint that the decision-maker did not have regard to that material will not usually identify an error of law. Further, if the decision-maker is permitted (but not required) to have regard to a particular body of material and regard is had to some, but not all of the material, it will again be difficult to identify an error of law, unless the process of selection is manifestly unreasonable. In the present case it is said that the manner in which the judge had regard to material to which regard was permitted revealed legal error. Yet in substance, no legal error was identified.

Section 75J(3) permitted, but did not require, the Minister (and the Court on appeal) to “take into account” the Liverpool LEP. It did not prescribe how such a document was to be taken into account. It certainly did not require that if it were taken into account it should be treated as if it applied to the development under consideration.

For the reasons given above, the primary judge did not err in law in his consideration of the operation of the Liverpool LEP. However, even if legal error had been shown in that regard, it would be necessary to demonstrate that the legal error affected the decision in fact made. It is by no means clear that an error which merely affected the weight given to a particular permissible consideration could constitute an error of law.

The particular area of concern in relation to noise was land zoned R3 (medium density residential) owned by Tanlane, immediately to the north of the respondent’s site and alongside a raised roadway by which trucks would have access to and from the site. The primary judge heard extensive evidence with respect to the acoustic impacts produced on site and by trucks carrying material over the ramp onto the roadway entering the site.

The grounds relating to this issue either alleged there was “no evidence” to support particular findings, or that the primary judge failed to give adequate reasons for his findings (grounds 8 and 9), or that the findings were unreasonable (ground 4). The grounds bore little resemblance to the findings of the primary judge and, indeed, were internally incoherent. Ground 8 stated that the judge erred in finding that “the noise impacts of the MRF on the part of the [Tanlane] land that is zoned R3 medium density residential … are able to be managed by the conditions imposed on the project approval …”. Ground 4 alleged that the judge had accepted as “common ground” that Moorebank had proposed acoustic treatment and amelioration measures, but ones which would be “insufficient to protect all of the R3 land from some adverse acoustic impact”. Ground 9 alleged that there was “no evidence that Moorebank had proposed any noise mitigation measures in respect of the Tanlane R3 Land”.

The finding of the primary judge in relation to the R3 land included the following proposition: [15]

The judge further stated his conclusion in the following terms: [16]

The explanation given for this conclusion was in part that “whilst the measures proposed by Dr Tonin will be insufficient to protect the whole of the R3 part of the Benedict land, not all of that land is negatively affected and that land is presently clearly undeveloped.” [18] The judge concluded that appropriate noise mitigation measures would be required as part of any future residential development on the R3 land and continued:

The primary judge dealt with the question of acoustic impact in a clear and readily comprehensible manner, summarising the evidence and reaching conclusions which were not only not unreasonable, but were manifestly sensible. Where the evidence was not definitive, he said so. The acoustic impacts on the land zoned for residential development (but as yet undeveloped) were not in dispute; the question to be resolved was how best to minimise the relevant impacts. The answers were contestable, but the approach adopted by the primary judge was reasonably open. No error of law was demonstrated in that regard.

The purport of the final ground of appeal, asserting “legal unreasonableness”, was obscure. The suggestion that the decision, if legally unreasonable, would be “void” seemed to equate the judgment below with an administrative decision. That approach was clearly incorrect: the Land and Environment Court is a superior court of record. [21] It does not cease to be a court when determining factual disputes and exercising discretionary powers. There is no reason to suppose that the judgment below was “void”. Furthermore, the proceedings in this Court involved an appeal and not the exercise of supervisory jurisdiction.

The grounds asserting unreasonableness particularised the same elements as had been said to constitute legal error. That too demonstrated an element of confusion. The closest that the appellants’ case came to characterisation of a specific element of unreasonableness was the acceptance that the acoustic amelioration measures proposed by Moorebank would not avoid some significant adverse impact on the land owned by Tanlane. That meant, in effect, that if and when their land underwent residential development, Benedict or Tanlane would have to take their own mitigation measures. In part that solution turned on an assessment of who should bear the costs of such measures.

In the event that no specific legal error was identified in the careful and extensive reasoning of the primary judge, the allegation of unreasonableness must be understood to be a challenge to the outcome. Where the circumstances in which the power comes to be exercised have been thoroughly canvassed in adversary proceedings and the arguments and evidence have been addressed by the judge, there will be no error of law in choosing a particular outcome unless it can be said that that outcome was not reasonably open.

It is true that the function of the appellate court in determining an appeal limited to a question of law is closely analogous to that of a court exercising a function of judicial review in the supervisory jurisdiction. [22] In each case it may be said that the function does not involve any re-exercise of the discretion. In a case of judicial review, the distinction is sometimes described as being between merit review and judicial review; in respect of appeals, it is sometimes described as the distinction between fact and law. With respect to an appeal limited to a question of law, a critical comparison is between such an appeal and an appeal by way of rehearing; in the latter case, interference is not limited to legal error and, subject to constraints arising from the fact that the appellate court has not heard witnesses or considered the full circumstances of a trial, the appellate court has a broad power to intervene and to redetermine discretionary judgments. [23] However, even with respect to an appeal by way of rehearing, it is clear that the appellate court does not intervene merely because it would have taken a different course. As explained in Minister for Immigration and Citizenship v Li: [24]

For the reasons expressed above, it could not be said that it was not reasonably open to the Court below to approve the application on appropriate conditions. Nor was it in dispute that there would be significant acoustic impacts on the neighbouring land. The judgment as to the sufficiency of the protections proposed by the respondent, and as to who should bear the costs of any additional protections if the appellants’ land were to be developed, were entirely matters of evaluative judgment to be determined by the decision-maker. No doubt there was a range of legally available options. It cannot be said that the result achieved by the primary judge was outside the range of reasonably available options. Accordingly the third basis of challenge must be rejected.

No question of law having been identified as erroneously determined by the primary judge, both appeals should be dismissed with costs.

LEEMING JA: I have had the advantage of reading the judgments of Basten JA and Emmett AJA in draft. I agree with the orders proposed and, subject to what follows, which is by way of emphasis rather than qualification, with their reasons.

The grounds of appeal in substance are concerned with three topics: the way in which the primary judge dealt with the Liverpool LEP, the way in which his Honour dealt with acoustic impacts of the project, and a claim that the decision was void by reason of legal unreasonableness. Those topics correspond to grounds 1-5, 6-7 and 8 respectively which are reproduced by Emmett AJA at [111]. They represent all of the substantial grounds (although in a slightly different and more logical order) contained in the Council’s amended notice of appeal filed 26 October 2017, which incorporated the grounds of Benedict and Tanlane.

The starting point is the legislative regime. Prior to the making of the Liverpool LEP, the Director-General had declared that the development of a MRF on the land was a Major Project to which Part 3A applied. The consequence was that by reason of s 75R, Parts 4 and 5 of the Environmental Planning and Assessment Act did not apply to or in respect of the project, and (relevantly) environmental planning instruments other than SEPPs did not apply to or in respect of an approved project. The repealed provisions of Part 3A of that Act continued to apply to the proposal. Section 75J(3) empowered but did not require the decisionmaker to take into account provisions of any environmental planning instrument that did not apply to the project by reason of s 75R. The same position obtained in an appeal objector pursuant to s 75L in Class 1 of the jurisdiction of the Land and Environment Court. That position was not altered by s 39(4) of the Land and Environment Court Act which required that Court to “have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.” Although there is, perhaps, some awkwardness in its wording in its application to an objector appeal under repealed Part 3A, it must only mean that relevant provisions of the Environmental Planning and Assessment Act applied.

The further appeal to this Court is on a question of law. In relation to the grounds based on the Liverpool LEP, all turned on the proposition that if there was legal error in the manner in which it was construed then the decision fell within the limited scope of appeal to this Court, given that the primary judge ascribed significant weight to its operation when concluding that the proposal was consistent with the Liverpool LEP. I am prepared to accept as much for the purposes of this appeal, although I share the doubt expressed by Basten JA at [36].

However, insofar as it is now sought to raise new submissions of construction, then I do not consider that they give rise to any question of law. On appeal it appeared to be put within ground 1 by the Council that the particular MRF proposed was not a Resource Recovery Facility within the meaning of the Liverpool LEP, and that that amounted to material error of law. But before the primary judge Benedict and Tanlane expressly accepted that the definition of resource recovery facility “includes a material recycling facility, an MRF” (transcript, 11 October 2016, p 124(9)), and I do not understand the Council to have taken a different stance. The Council now complains that no regard was had to the definition of resource recovery facility, and that the proposed MRF did not fall within that definition.

Generally, there is no error of law in failing to decide a point not in issue between the parties. There was no error of law in the present case in proceeding on what was then common ground. In any event, I also agree that, for the reasons given by Basten JA and Emmett AJA, the alleged errors of law in relation to the Liverpool LEP are not made out.

There is nothing in the complaint of inadequate reasons, and there was no error of law in the primary judge ascribing minimal weight to alternative objectives in the LEP said to be inconsistent with the MRF in circumstances where the applicable legislative regime in terms excluded project approval from being affected by those provisions.

I do not wish to add to what has been written by Basten JA and Emmett AJA in relation to the treatment of noise impacts, save to say that I cannot see that there is an error of law in concluding that it was not necessary, in the course of imposing a suite of conditions to regulate noise impacts, to put in place conditions which would reduce those impacts on the R3 land in relation to which his Honour accepted evidence that development was not imminent.

I agree with what Basten JA and Emmett AJA have written in relation to the complaint of legal unreasonableness. As I understood the submissions, it was also put that this ground incorporated the grounds relating to construction. To the extent that was so, it takes the matter no further. Further, to the extent that there was a challenge to what was said to be a finding by the primary judge at [177] that the proposed noise amelioration measures would render the project infeasible, the short answer is that no such finding was made, although the primary judge did have regard to the uncertain timing and costs of those measures in connection with an acceptance that “on one view of [Dr Tonin’s] evidence” that cost would render the project unfeasible.

EMMETT AJA: Each of these appeals is concerned with the grant of approval under the Environmental Planning and Assessment Act 1979 (NSW) (the Planning Act) for the construction and operation by Moorebank Recyclers Pty Ltd (Moorebank) of a materials recycling facility (MRF) on a parcel of land owned by Moorebank (the Moorebank Land). The Moorebank Land is within the local government area of Liverpool City Council (the Council).

On 12 October 2005, Moorebank applied to the Minister for Planning (the Minister) for approval under Pt 3A of the Planning Act of a proposal for the construction and operation of an MRF on the Moorebank Land (the Proposal). The Council, as well as Benedict Industries Pty Ltd (Benedict) and Tanlane Pty Ltd (Tanlane), objected to Moorebank’s application. Tanlane is the registered proprietor of land that is occupied by Benedict (the Tanlane Land). The Tanlane Land adjoins the Moorebank Land. By reason of the proximity of the Tanlane Land to the Moorebank Land, Tanlane and Benedict have standing to object to the grant of approval for the Proposal under Pt 3A of the Planning Act. The Council has standing as the council of the relevant local government area. It will be convenient to refer to the Council and Benedict and Tanlane together as the Objectors.

On 1 May 2015, Moorebank’s application for approval under Pt 3A was referred by the Minister to the Planning Assessment Commission (the Commission) for determination. On 11 September 2015, the Commission approved the application subject to conditions.

On 8 October 2015, the Council appealed to the Land and Environment Court (the L&E Court) against the decision of the Commission to approve Moorebank’s application. On 23 October 2015, Benedict and Tanlane also appealed to the L&E Court against the Commission’s decision. On 8 May 2017, a judge of the L&E Court (the primary judge) published his reasons for concluding that approval for the Proposal should be granted. The primary judge directed the parties to confer and finalise conditions of consent reflecting his Honour’s findings. On 14 July 2017, his Honour made orders upholding both appeals and granting approval of the Proposal subject to conditions set out in schedules annexed to the approval. The conditions varied from those upon which the Commission had granted its approval for the Proposal.

By notice of appeal filed on 7 August 2017, the Council appealed under s 57 of the Land and Environment Court Act 1979 (NSW) (the L&E Court Act) from the orders made by the primary judge. By notice of appeal filed on 31 August 2017, Benedict and Tanlane also appealed from the orders made by the primary judge. The Council filed an amended notice of appeal pursuant to leave granted during the course of the hearing of the appeals. As a consequence, both the Council, on the one hand, and Benedict and Tanlane on the other, rely on the same grounds of appeal.

The appeals to this Court are brought pursuant to s 57 of the L&E Court Act. Under s 57(1), a party to proceedings, such as the appeals to the L&E Court, may appeal to the Supreme Court against an order or decision of the L&E Court on a question of law. Under s 57(2), on the hearing of such an appeal, the Supreme Court must either remit the matter to the L&E Court for determination in accordance with the decision of the Supreme Court, or make such other order in relation to the appeal as seems fit. Having regard to the limited nature of the right of appeal to this Court, certain issues litigated in the L&E Court will not arise on the hearing of the appeals to this Court.

Before dealing with the grounds of appeal, it is necessary to say something more about the statutory framework under which Moorebank’s application for approval was made. It is also necessary to describe in more detail the Proposal, the Moorebank Land and the surrounding land.

The principal relevant enactment is the Planning Act. It will be necessary to say something about consent for development under the Planning Act and to describe certain planning instruments made by the Council under the Planning Act.

Part 4 of the Planning Act deals with “development assessment”. Under s 76, which is in Div 1 of Pt 4, if an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on the land to which the provision applies. However, pursuant to s 76A, if an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry out that development on land to which the provision applies unless such a consent has been obtained and is in force, and the development is carried out in accordance with the consent. Section 76B provides that, if an environmental planning instrument provides that specified development is prohibited on land to which the provision applies or development cannot be carried out on land with or without development consent, a person must not carry out the development on the land. Division 1 of Pt 4 is subject to the other provisions of the Planning Act, unless express provision is made to the contrary.

Section 4 of the Planning Act contains definitions. Thus, the term development includes:

Division 4 of Pt 3 deals with local environmental plans (LEPs). Under s 53, which is in Div 4, the Minister may make LEPs for the purpose of environmental planning in each local government area. For the purposes of Pt 3, the Council for the local government area to which a proposed instrument is to apply is generally the relevant planning authority. Provision is made for the involvement of the local planning authority in the making of LEPs.

Division 10 of Pt 4 deals with “existing use”. In Div 10, the term “existing use” means the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument that would, but for Div 4 of Pt 4, have the effect of prohibiting that use. It also includes the use of a building, work or land for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure that the development consent would not lapse.

Section 107(1) of the Planning Act relevantly provides that nothing in the Act or an environmental planning instrument prevents the continuance of an existing use. However, nothing in that sub-section authorises any alteration or extension to or rebuilding of a building or work or any increase in the area of the use made of a building, work or land or the continuance of the use in breach of any consent in force under the Planning Act or any condition imposed or applicable to that consent.

Under s 75B in Pt 3A of the Planning Act, as relevantly in force, the kinds of developments that could be declared to be a project to which Pt 3A applied included major infrastructure developments that, in the opinion of the Minister, were of State or regional environment planning significance. Under s 75B, Pt 3A applied to the carrying out of development that was declared under s 75B to be a project to which Pt 3A applied. Under s 75D, it was forbidden for a person to carry out development that was a project to which Pt 3A applied unless the Minister had approved of the carrying out of the project under Pt 3A. Under s 75D(2), it was necessary to comply with any conditions to which such an approval was subject.

Section 75E provided that the person proposing to carry out development comprising all or any part of a project (the Proponent) might apply for the approval of the Minister under Pt 3A to carry out the project. Section 75I required the Director-General to give a report on a project to the Minister for the purposes of the Minister’s consideration of the application for approval to carry out the project. Section 75J relevantly provided that, if the Proponent made an application for the approval of the Minister under Pt 3A to carry out a project and the Director-General had given a report on the project to the Minister, the Minister might approve or disapprove of the carrying out of the project.

When deciding whether or not to approve the carrying out of a project, the Minister was required by s 75J(2) to consider the Director-General’s report on the project and the reports, advice and recommendations contained in that report. Section 75J(3) relevantly provided that, in deciding whether or not to approve the carrying out of a project, the Minister might, but was not required to, take into account the provisions of any environmental planning instrument that would not, by reason of s 75R of the Planning Act, apply to the project if approved. Section 75R(1) relevantly provided that Pt 4 and Pt 5 of the Planning Act did not, except as provided by Pt 3A, apply to or in respect of a project to the extent that it was approved by the Minister under Pt 3A. More significantly, s 75R(3) relevantly provided that environmental planning instruments, other than State environmental planning policies, were not to apply to or in respect of a project to the extent that it was approved by the Minister under Pt 3A. Pt 5 of the Planning Act was concerned with environmental assessment and with preparing environmental impact statements in relation to proposed activities.

The Liverpool Local Environmental Plan 2008 (NSW) (the Liverpool LEP) was made under Pt 3 of the Planning Act and was in force at all relevant times. It is in a form generally similar to other LEPs made for various local government areas.

The aims of the Liverpool LEP are stated as follows:

The Liverpool LEP specifies land use zones within the Council’s area. Clause 2.1 of the Liverpool LEP provides for a land zoning map and cl 2.2 provides that, for the purposes of the Liverpool LEP, land is within the zones shown on the land zoning map. Relevantly for present purposes, the Liverpool LEP provides for the following zones, among others:

Clause 2.3 of the Liverpool LEP provides that the land use table contained in the Liverpool LEP specifies for each zone:

Clause 2.5 of the Liverpool LEP deals with additional permitted uses for particular land. Clause 2.5(1) relevantly provides that development on particular land that is described or referred to in Sch 1 may be carried out with development consent or, if the schedule so provides, without development consent, in accordance with the conditions, if any, specified in that schedule in relation to that development. Clause 2.5 has effect despite anything to the contrary in the land use table or other provision of the Liverpool LEP.

Clause 11 of Sch 1 to the Liverpool LEP is specifically relevant for present purposes. Clause 11 applies expressly to the Moorebank Land and provides that development for the purposes of a resource recovery facility is permitted with consent. The term “resource recovery facility” is defined in the Liverpool LEP as meaning:

Critically, cl 11(3) of Sch 1 provides that the clause “is repealed on 1 September 2018”. The effect of that provision is an issue in these appeals.

The Moorebank Land was previously a landfill site. Landfilling ceased in 1979. Moorebank acquired the Moorebank Land in 1996 and, in 1998, carried out remediation of it. Following remediation, an independent site audit concluded that the Moorebank Land was suitable for commercial and industrial use, including use as a concrete recycling facility. The Moorebank Land consists of appropriately 20.5 hectares and is roughly rectangular in shape. It also includes an access road 810m long and 10m wide, described as the “pan handle”. The Moorebank Land is bounded:

The Moorebank Land is in Zone E2 Environmental Conservation (E2 Zone). Under the land use table of the Liverpool LEP, the objectives of the E2 Zone are:

The Tanlane Land is zoned partly R3 Medium Density Residential, partly B6 Enterprise Corridor, partly RE1 Public Recreational and partly RE2 Private Recreational. There are proposals for the redevelopment of the Tanlane Land, partly as a marina and associated facilities and partly as residential.

On 29 June 2006, the Council granted development consent for earthworks on part of the Moorebank Land. At the same time, the Council was facilitating the development of part of the Tanlane Land for residential uses. On 24 April 2007, the Council granted development consent for a road bridge over the pan handle and part of the Tanlane Land. Trucks operating from the proposed MRF could only use the bridge to obtain access to Brickmakers Drive by way of connecting ramps. The development consent for the bridge required that the bridge be designed and constructed to accommodate the ramps to be connected to it. Access to the Moorebank Land is proposed to be from Brickmakers Drive by way of the bridge and the ramps.

On 27 June 2013, Biscoe J, sitting in the L&E Court, imposed an easement in favour of Moorebank over part of the land owned by the Council to enable the construction and use of the access ramps for the proposed MRF. Following the imposition of that easement, the final design of access ramps for the MRF was agreed between Moorebank and Tanlane. Access to the proposed MRF would be in accordance with the agreed plan.

In November 2013, the Supreme Court imposed an easement benefiting the Tanlane Land over part of the pan handle for the construction and use of the bridge referred to above (the Tanlane Easement). The terms of that easement required that the bridge be constructed with a load bearing capacity to accommodate Moorebank’s trucks and that the bridge be designed and constructed so that it was consistent with any approval sought or obtained by Moorebank under Pt 3A of the Planning Act. On 5 August 2014, the Council approved the re-design of the bridge to accommodate the ramps and to ensure compliance with the terms of the Tanlane Easement.

The Proposal is for an MRF that would process 500,000 tonnes of masonry construction and demolition waste per year. The proposed MRF would receive concrete, brick, asphalt, sandstone and sand but no domestic loads would be received. The proposed development has been declared a major development under s 75B of the Planning Act and a formal development application was submitted in May 2006.

Subsequent to approval being granted by the Commission on 11 September 2015, these two appeals were brought pursuant to s 75L of the Planning Act. Both appeals to the L&E Court named the Minister and Moorebank as respondents, albeit in a different order. The two appeals to the L&E Court were heard together, the Court having directed that evidence in each of the proceedings be evidence in the other.

Section 75L of the Planning Act, which is in Div 2 of Pt 3A, provides for appeals by objectors. It is common ground that s 75L applied to the Proposal. Under s 75L, a person who makes a submission by way of objection to an application for approval under Div 2, who is dissatisfied with the determination of the Minister under Div 2 to give approval to carry out the project, may appeal to the L&E Court. If such an appeal is brought, the Proponent (Moorebank in this case) and the Minister, are to be given notice of the appeal, and are entitled to be heard at the hearing of the appeal as parties to the appeal.

Under s 17 of the L&E Court Act, the L&E Court has jurisdiction to hear and dispose of appeals under s 75L of the Planning Act. Under s 39(2) of the L&E Court Act, in addition to any of its other functions and discretions, the L&E Court has, for the purposes of hearing and disposing of such an appeal, all the functions and discretions that the person or body whose decision is the subject of the appeal had in respect of the matter that is the subject of the appeal. Under s 39(3), an appeal in respect of such a decision is to be by way of rehearing and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

Section 39(4) requires the L&E Court, in making its decision in respect of an appeal, to have regard to the L&E Court Act and any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. Under s 39(5), the decision of the L&E Court upon an appeal is, for the purposes of the L&E Court Act or any other Act or instrument, to be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and must be given effect to accordingly.

In the primary judge’s reasons of 8 May 2017, his Honour recorded that, while there were numerous issues raised in the Statements of Facts and Contentions filed in the two appeals to the L&E Court, the issues in dispute were narrowed during the hearing to the following:

The primary judge said that, in relation to each of the proceedings in the L&E Court, the Minister disagreed with all of the contentions raised by the Council and by Benedict and relied upon the Secretary’s Environment Assessment Report dated April 2015, the Commission’s Determination Report, dated 11 September 2015, and the approval of the Proposal, dated 11 September 2015. The Minister contended that approval should be given, subject to appropriate conditions, and made submissions primarily in relation to proposed conditions.

The primary judge considered that the Proposal could be supported primarily on the basis that the proposed land use was consistent with the Liverpool LEP, and other strategic and planning documents, and that, taking into account all relevant issues, the environmental and amenity impacts could be adequately managed by stringent conditions of consent. His Honour said that the conditions that he intended to impose provided for consistent and ongoing monitoring, went further than those that were imposed by the Commission and were based upon extensive further evidence marshalled in the appeals. His Honour considered that the conditions would ensure a tightly controlled development.

In the hearing in the L&E Court, the primary judge was assisted by a Commissioner under s 37(1) of the L&E Court Act. Section 37 relevantly provides that, where proceedings of the nature of the appeals in question are pending, the L&E Court may, in hearing the proceedings, be assisted by one or more Commissioners. A Commissioner assisting the L&E Court may assist and advise the L&E Court but must not adjudicate on any matter before the L&E Court.

The primary judge observed that subject to the Proposal being otherwise acceptable, a number of issues raised by the Objectors could be resolved by granting approval subject to certain conditions. Having regard to those issues and the concerns raised, his Honour considered that four primary issues required detailed consideration as follows:

In relation to the planning and community context of the proposed development, the primary planning issues related to the incompatibility of the proposal and the existing and future land use of the locality with the objectives of the E2 Zone under the Liverpool LEP. In relation to the question of acoustic impacts, the primary judge identified three separate questions as follows:

Opinion evidence adduced on behalf of the Objectors variously took the position that the proposed development was contrary to the legislative objects of the Planning Act as well as being contrary to the aims of the Liverpool LEP and the objects of the E2 Zone. Moorebank adduced opinion evidence to the contrary. The primary judge found that, whilst there may be some impacts, the Proposal would provide an environmental benefit through the recovery of concrete, brick, asphalt, sandstone and sand from the waste stream of the building and construction industry in the Sydney metropolitan area and that it would divert building and construction waste from the waste stream that might otherwise have been directed to landfill. His Honour accepted that the Proposal would provide incentives to recycle waste rather than dispose of that waste to landfill and that that itself would provide an economic incentive to recycle waste. His Honour considered that the proposed conditions of development represented adequate measures to meet any threats of serious or irreversible environmental damage. Finally, his Honour accepted that, while there may be some potential impacts to biological diversity and ecological integrity that are unknown, the potential for operational indirect impacts had been appropriately addressed in the opinion evidence adduced by the parties.

More particularly, the Council’s opinion evidence took the position that the proposed development was contrary to the aims of the Liverpool LEP. That evidence was that the Proposal was contrary to the social well-being of future residents by reason of the increased isolation likely to arise by interposing a regular flow of heavy vehicle movements along the northern section of Brickmakers Drive and along the main gateway to the area immediately north of the Moorebank Land. The evidence was also to the effect that the Proposal was likely to discourage use by residents of the Georges Fair and Moorebank precincts within the Council’s area and of existing and new recreational facilities along the Georges River and that, accordingly, the Proposal was inconsistent with efficient and equitable provision of public amenities. The evidence maintained that the Proposal had significant disbenefits by entrenching a high impact industrial use that effectively precluded any realistic prospect that the Moorebank Land would ever be restored as part of the riparian zone of the Georges River.

The opinion evidence adduced by the Objectors also asserted that the Proposal was inconsistent with the zone objectives of the Liverpool LEP. The primary judge found that the proposed development did not fit comfortably within the objectives of the E2 Zone and with a number of the aims of the Liverpool LEP. His Honour held that it was clear that any MRF with the capacity to process 500,000 tonnes of construction waste per year, which involved up to 324 truck movements per day, did not necessarily enable the use of the Moorebank Land for an environmental purpose and did not seek to protect, manage or, importantly, restore the environmental value of the Moorebank Land. However, his Honour referred to the benefit that would flow from the proposed remediation measures to be adopted by Moorebank. His Honour therefore considered that those matters should be given limited weight. His Honour observed that, while the L&E Court must have regard to planning instruments pursuant to s 39(4) of the L&E Court Act, by reason of the operation of s 75R(3) of the Planning Act, it was not bound by LEPs.

The primary judge concluded that, even if the aims of the Liverpool LEP and objectives of the E2 Zone were taken into account, it would not necessarily lead to the conclusion contended for on behalf of the Objectors. His Honour considered that no part of the Moorebank Land could be said to be in an area of high ecological, scientific, cultural or aesthetic values and it could not be said that the proposed MRF might adversely impact upon those values. His Honour considered that it was clear that there was agreement amongst the experts that the Proposal would not have adverse environmental outcomes, subject to the imposition of the extensive conditions agreed between the experts, particularly so in relation to the extensive conditions that required ongoing monitoring and validation. His Honour found that, with appropriate conditions and environmental safeguards, including ongoing monitoring, the MRF was not fundamentally inconsistent with the aims of the Liverpool LEP.

The primary judge also considered that it was clear, when the objects of the E2 Zone were read in the context of cl 11 of Sch 1 of the Liverpool LEP, that the Council intended that an MRF could be developed on the Moorebank Land regardless of the zoning. His Honour found that the fact that the Proposal might contravene one or more of the objects of the zoning was to be given marginal weight. His Honour accepted that substantial remediation works were to be undertaken on the Moorebank Land and that remediation was unlikely to occur but for the Proposal.

The primary judge held that the MRF was permissible with consent as a result of the operation of cl 11 of Sch 1 of Liverpool LEP, noting that there had been no suggestion that an MRF was impermissible. Somewhat obscurely, his Honour noted that submissions had been made earlier that that was not the case and that cl 11 of Sch 1 was a “sunset clause” restricting the operation of any MRF on the site. His Honour said that that was an incorrect interpretation of the relevant provision.

The primary judge then referred to a submission on behalf of the Objectors, which contended that it is not how cl 11 of Sch 1 is to be interpreted that is relevant but how it is to be applied. They submitted that the effect of cl 11(3) of Sch 1 was to rezone the Moorebank Land and that the L&E Court should therefore accept that, from 1 September 2018, an MRF would not only be impermissible but such use after that date would be incompatible with residential development in the locality. His Honour referred to the submissions on behalf of the Objectors to the effect that:

The primary judge concluded that, to the extent that the opinion evidence dealt primarily with the relationship with the surrounding development as it exists and proposed and the non-compliance with the objectives of the E2 Zone and, to a lesser extent, non-compliance with the aims of the Liverpool LEP, there was not such a significant non-compliance with the objectives of the E2 Zone or the aims of the Liverpool LEP as to warrant refusal.

The primary judge referred to opinion evidence as to amenity concerns in relation to acoustic impacts. Whilst his Honour accepted that there would be some not insignificant impacts as a result of increased traffic, increased noise and visual intrusion, his Honour found that sufficient safeguards were available to reduce any such impacts to an acceptable level.

In particular, the primary judge accepted that there would be some deleterious acoustic effects on the Tanlane Land, in particular from truck noise from the proposed ramps and access roads that are adjacent to the land in the R3 Zone. However, his Honour found that the acoustic mitigation measures proposed on behalf of Moorebank were sufficient and that it was not appropriate to require the further measures propounded on behalf of Benedict and Tanlane. His Honour considered that, whilst the measures proposed on behalf of Moorebank would be insufficient to protect the whole of the Tanlane Land in the R3 Zone, not all of that land was negatively affected. Further, the land is, at present, clearly undeveloped. His Honour found that it was appropriate to require adequate noise mitigation measures in any future residential development on land in the R3 Zone. While his Honour accepted that there was no firm evidence, his Honour considered that the likely cost of measures necessary to ameliorate truck noise on the relevant land would on one view render the Proposal unfeasible. His Honour did not consider that it was appropriate or feasible to adopt such measures where there was no firm timeline for the development of the land in the R3 Zone.

The primary judge observed that the source of the noise was primarily the truck movements adjacent to the Tanlane Land. However, the material produced in support of the development application for the marina showed that there would likely be some not dissimilar noise issues and concerns arising from the marina development, which would require amelioration measures either on their own or in the further development of the land in the R3 Zone.

The primary judge considered that, in the circumstances, and doing the best that he could, acceptance of the opinion evidence proffered on behalf of Moorebank struck a “feasible and reasonable balance”. Whilst his Honour accepted that the sensitivity to noise levels of particular receivers was primarily determined in accordance with the underlying land zoning, it was clear that the Proposal was permissible and that some noise effect must be expected. His Honour considered that the “feasible and reasonable balance” in the present circumstances was unlikely to be met by the implementation of the measures suggested on behalf of the Objectors.

In its notice of appeal filed on 7 August 2017, the Council relied on four grounds. In their notice of appeal filed on 31 August 2017, Benedict and Tanlane also relied on four grounds. However, they also adopted the grounds in the Council’s notice of appeal. In the course of the hearing of the appeals, the Council filed an amended notice of appeal adopting the grounds relied on by Benedict and Tanlane. Each of the Objectors also adopted the other’s submissions. As a consequence, there is a degree of overlap within the grounds.

The eight grounds of appeal may be restated as follows:

While the primary judge was not bound to take account of the provisions of the Liverpool LEP, he was, by the operation of s 75J of the Planning Act, permitted to do so and did so. The Objectors contend that, in taking the provisions into account, his Honour misconstrued the Liverpool LEP and failed to give consideration to all relevant provisions.

The substance of Ground 1 is that the primary judge erred by assuming that any resource recovery facility (as defined) or any MRF, that may be developed on the Moorebank Land, would contravene one or more of the objectives of the E2 Zone and, as a consequence, his Honour failed to take account of a relevant consideration, being the objectives of the E2 Zone. The essence of Ground 2 is that, in failing to consider the context, including the general purposes and policy, of cl 11 to Sch 1, his Honour construed and applied cl 11 improperly.

The Objectors contend that the primary judge erroneously assumed that any resource recovery facility would inevitably contravene the objectives of the E2 Zone and accordingly erred in assessing the objectives on the basis that any permissible development would inevitably contravene those objectives. They point out that his Honour did not refer to the definition of “resource recovery facility” in the Liverpool LEP.

The Objectors assert that it is apparent from that definition that, depending upon the type of resource recovery facility that was proposed, it was possible for such a proposal to be consistent with the objectives of the E2 Zone. Thus, for example, a facility that sought “energy generation from gases and water treatment” would likely be consistent with the E2 Zone objectives.

Moorebank contends that it was common ground before the primary judge that the proposed MRF fell within the definition of “resource recovery facility” and that none of the Objectors raised any issue concerning that definition or the significance to be accorded to it. Moorebank complains that it could have called opinion evidence as to that matter and, in particular, as to the range, functions and emissions of waste recovery facilities and the significance, if any, to be accorded to the fact, if it be the fact, that there was no necessary inconsistency between the objectives of the E2 Zone and any possible resource recovery facility, within the meaning of the definition, that might be constructed in that zone. It contends, therefore, that the Objectors should not be permitted to raise the matter on appeal.

The Objectors say that, since a resource recovery facility, as defined, was capable of meeting the objectives of the E2 Zone, such objectives were a fundamental element in the decision-making process and were entitled to significant weight. They assert that the inconsistency of the proposed development with the objectives of the E2 Zone was a fundamental issue in the proceedings and that they contended that the proposed development was incompatible with the existing and future use of the locality and inconsistent with various objects, aims and goals outlined in the relevant planning instruments and was generally inconsistent with the future use of the surrounding land and applicable zoning objectives.

I do not consider that the matter was fairly raised before the primary judge. However, I do not consider that the ground has any substance in any event.

The primary judge found that a proposed MRF, with the capacity to process 500,000 tonnes of construction waste per year involving up to 324 truck movements per day, would not necessarily involve the use of the Moorebank Land for an environmental purpose and would not have the objectives of protecting, managing or, importantly, restoring the environmental value of the Moorebank Land, as contemplated by the objectives of the E2 Zone. However, the Objectors assert, that that says nothing in relation to the fact that a resource recovery facility, as defined, could have the objective of protecting, managing and restoring the environmental value of the Moorebank Land. They contend that his Honour erred:

The Objectors complain that the primary judge declined to place any real weight on the objectives of the E2 Zone and the extent to which the Proposal failed to meet those objectives. They say that, if his Honour had had proper regard to the definition of “resource recovery facility” in the Liverpool LEP, he would not have limited his consideration of the relevance of the interaction between cl 11 of Sch 1 and the objectives of the E2 Zone.

When determining whether to grant approval, the L&E Court may consider and apply provisions other than direct prohibitions on the type of development. [26] Under cl 2.3(2) of the Liverpool LEP, regard must be had to the objectives for development in a zone when determining a development application in respect of land within the zone. On the other hand, cl 2.5 relevantly provides that development on land described or referred to in Sch 1 may be carried out with development consent in accordance with any conditions specified in Sch 1 in relation to that development. The Objectors say, however, that nothing in cl 2.5 suggests that the requirement of cl 2.3(2), to have regard to the objectives, does not apply for such additional permitted uses. Accordingly, they say, the primary judge ought to have had regard to the objectives of the E2 Zone when considering whether to grant approval to the proposal for a resource recovery facility within the meaning of that term in the Liverpool LEP.

The Objectors assert that consistency of the Proposal with the objectives of the E2 Zone was therefore the relevant matter and not one that should be allowed only marginal weight. They assert that that was particularly so because of the breadth of the definition of “resource recovery facility”, which would meet the objectives of the E2 Zone. They say that it was the particular proposal being considered by his Honour that did not sit comfortably with the objects of the E2 Zone and not just any resource recovery facility, as defined.

The Objectors assert that the primary judge erred in so far as his Honour said that the Moorebank Land was, in effect, zoned specifically for the MRF now proposed. They contend that to make that assertion, as his Honour did, is fraught with difficulty because:

Thus, the Objectors say, the planning history in relation to the Moorebank Land provides context, which includes the general purpose and policy of the relevant provisions, which is important because the task of the decision maker is to give the words the meaning that the legislature intended them to bear. They say that the text of the relevant provisions must be considered in their context, which includes the legislative history and extrinsic materials, and that an understanding of context has utility to the extent that it assists in fixing the meaning of the statutory text. The legislative intention expressed in the particular provisions is understood by reference to its function in the statutory scheme of which it is a part.

Next, the Objectors assert that the primary judge adopted an approach that was less nuanced than the currently accepted approach to context and purpose in so far as his Honour said:

The Objectors assert that the primary judge failed to approach the relevant provisions on the prima facie basis that various provisions are intended to give effect to harmonious goals and that reconciliation of the provisions was readily achievable by adjusting the meaning of the competing provisions to achieve that result which would best give effect to the purpose and language of the provisions, while maintaining the unity of the statute. [29] They assert that his Honour failed to construe the provisions in question so that no clause, sentence or word would prove superfluous, void or insignificant in circumstances where, by any other construction, they may be made useful and pertinent. [30]

Finally, the Objectors complain that the primary judge was in error in holding that the E2 Zone objectives were to be treated as a general provision that was subject to the specific provision as to permissibility of the proposed MRF. They assert that his Honour ought to have considered the provisions as interlocking provisions in which the E2 Zone objectives had work to do because of the range of permissible uses identified in the definition of “resource recovery facility” in the Liverpool LEP. They say that the planning history demonstrated the co-ordination that occurred within the making of the provisions and the interlocking nature of the provisions. Thus, they assert, the failure to consider the planning history contributed to the other errors made by his Honour.

The primary judge considered that the language of cl 11 of Sch 1 had a “clear natural [sic] and ordinary meaning”. While context is relevant to the task of statutory interpretation, the exercise of interpretation must begin with a consideration of the text of the statute itself. Context may assist in the process of construing the words but cannot be used to contradict them. While the planning purpose of an environmental planning instrument is to be determined by reference to the language of the instrument, considered in context, in the present circumstances, context includes the general purpose and policy of the provision and the surrounding textual material. It does not include the subjective intentions of those responsible for promulgating, promoting or disputing the relevant provisions.

Thus, the primary judge accepted the contention advanced by Moorebank to the effect that the question of whether the Proposal should be approved ought to be determined by an analysis of the technical evidence rather than by the suggestion in the Objectors’ opinion evidence that the zoning of the Moorebank Land was some form of historical mistake. His Honour was correct to reject the planning history as a means of interpreting cl 11 of Sch 1 where there was no doubt as to the meaning of the relevant provisions. His Honour correctly held that the effect of cl 11 of Sch 1 was that development consent must be obtained before 1 September 2018. The clause did not restrict a consent obtained before 1 September 2018 from permitting construction and use of a resource recovery facility after 31 August 2018. If consent were to be granted, upon the repeal after 31 August 2018, the use would become an existing use under s 108 of the Planning Act, which could then continue under s 107.

Under s 109B of the Planning Act, nothing in an environmental planning instrument prohibits or requires a further development consent to authorise the carrying out of development in accordance with consent that has already been granted and is in force. The holder of a consent to what becomes prohibited development can take advantage of both s 107 and s 109B. [31]

In saying, as the primary judge did, that the Court must have regard to relevant legislation, regulations, planning instruments and the circumstances of the matter, his Honour was doing no more than reciting the relevant provisions of s 39(4) of the L&E Court Act. His Honour subsequently qualified that statement by reference to the provisions of s 75J(3) and ss 75R(2)-(3). The express effect of those provisions was that the Court was permitted, but not required, to take into account the provisions of an environmental planning instrument such as the Liverpool LEP. Clearly, it is not every environmental planning instrument that must be taken into account, but only “relevant” environmental planning instruments. In any event, the very general provisions of s 39(4) must give way to the specific requirements of s 75J and s 75R of the Planning Act, to the extent that there might be inconsistency.

In any event, the primary judge did not give little weight to the zone objectives by reason of any view that his Honour took that “any MRF” would be contrary to those objectives. Rather, his Honour attributed little weight to the zone objectives because of the construction that his Honour accorded to cl 11 of Sch 1 to the Liverpool LEP, in addition to the operation of s 75R(3) of the Planning Act. Thus his Honour’s reasoning might be summarised as follows:

On the basis of that analysis, the primary judge did not ignore the objectives of the E2 Zone because of a perceived view that the objectives were irrelevant by reason of an inherent incompatibility between those objectives and “any MRF”. Rather, his Honour was observing that those objectives of the E2 Zone had little relevance in circumstances where a resource recovery facility was expressly made a permissible use on the Moorebank Land. The Objectors’ argument is no more than a complaint about the weight contributed by his Honour to the E2 Zone objectives. That does not constitute an error of law. It is insufficient to point to an error asserted to have occurred in the weighing of relevant matters. If matters to which regard is had do not fall within the category of those prohibited by relevant statutory provisions, they will be characterised as either mandatory or permissive considerations and a complaint as to the weight accorded to them will not constitute an error of law. [32]

Even a wrong finding of fact of itself is insufficient to constitute an error of law. [33] An ultimate finding of fact that is wrong can only constitute an error of law if there is no evidence to support that finding or if the finding was not reasonably open on the whole of the evidence. Where the rules of evidence do not apply, [34] there must be an absence of material, whether strictly admissible according to the rules of evidence or not, before it is possible to find an error of law based on absence of evidence. [35]

In any event, the Objectors’ contentions proceed on a misconstruction of the relevant provisions of the Liverpool LEP. Thus, Sch 1 use is not governed by the objectives of the E2 Zone. Clause 2.3 of the Liverpool LEP deals with zone objectives and the land use table. Clause 2.3 is expressly stated to be subject to the other provisions of the Liverpool LEP. Such an “other provision” of the Liverpool LEP is cl 2.5, which explicitly authorises specified uses on “particular land”, including a resource recovery facility on the Moorebank Land. Clause 2.5 authorises development to be carried out in accordance with the conditions, if any, specified in Sch 1 in relation to that development.

Clause 2.5 does not require that regard be had to the objectives of the relevant zone in determining whether development should be approved. Rather, cl 2.5(2) expressly provides that cl 2.5 has effect despite anything to the contrary in the land use table or other provisions of the Liverpool LEP. Accordingly, it follows that the Moorebank Land was “spot zoned” for a resource recovery facility. In determining whether a resource recovery facility use may be carried out on the Moorebank Land, anything contrary to that use in the land use table or any other provision of the Liverpool LEP, including the objectives of the E2 Zone, must be disregarded.

Even if greater weight should have been accorded to the objectives of the E2 Zone than was accorded by the primary judge, the findings made by his Honour, in relation to the question of whether the proposed MRF was, in fact, contrary to the objectives of the E2 Zone, had the consequence that no different result would have been produced. In any event, even if an error of law were established, it was not material to the ultimate determination.

Thus, the primary judge expressly held that, even if the aims of the Liverpool LEP and the objectives of the E2 Zone were taken into account it would “not necessarily lead to the conclusion” contended for in the opinion evidence adduced by the Objectors, because no part of the Moorebank Land could be said to be in an area of “high ecological, scientific, cultural or aesthetic” values and it was clear in the opinion evidence that the Proposal would not have adverse environmental outcomes if appropriate, extensive conditions were imposed. His Honour concluded that, to the extent that the opinion evidence dealt primarily with the relationship with the surrounding development, as it existed and as was proposed, and the non-compliance with the objectives of the E2 Zone, there was no significant non-compliance with the objectives of the E2 Zone or the Liverpool LEP, such as to warrant refusal. There was no error on the part of the primary judge.

The substance of Ground 3 is that the primary judge erroneously construed and misapplied cl 11 of Sch 1, in that he failed to differentiate between development that is permissible under cl 2.5, without recourse to cl 11, on the one hand, and development that is permissible only by reason of cl 11, on the other, in circumstances where the repeal of cl 11 after 31 August 2018 was imminent and certain. The essence of Ground 4 is that, when applying cl 11(2) of Sch 1, his Honour failed to have regard to the effect of cl 11(3), which was that cl 11(2) was repealed with effect from 1 September 2018.

The Objectors say that the primary judge’s finding that the proposed use of the Moorebank Land was consistent with the Liverpool LEP was based solely on the view that the proposed MRF was “permissible with consent” by reason of cl 11 of Sch 1. They point out that, but for cl 11 of Sch 1, his Honour would have found that the proposed MRF did not “sit comfortably with” the relevant provisions of the Liverpool LEP and that, accordingly, cl 11 was decisive in his Honour’s conclusion that the proposed MRF was “consistent with” the Liverpool LEP and that that conclusion, in turn, had decisive weight in his Honour’s decision to approve the Proposal.

The primary judge considered the areas around the Moorebank Land to determine whether the proposed MRF was compatible with the “existing and future surrounding locality”. Following that consideration, his Honour concluded that, to the extent that the opinion evidence dealt primarily with the relationship with the surrounding development as it exists and as proposed and the non-compliance with the objectives of the E2 Zone, and to a lesser extent non-compliance with the aims of the Liverpool LEP, there was no significant non-compliance with the objectives of the E2 Zone or the Liverpool LEP such as would warrant refusal. Thus, the Objectors assert, the primary judge gave significant, if not decisive, weight, to his finding that the proposed use of the Moorebank Land is consistent with the Liverpool LEP and, in doing so, relied solely on the operation of cl 11 of Sch 1.

As noted above, the Objectors complain that, in making those findings, his Honour considered only cl 11(2) of Sch 1 and failed to consider cl 11(3), by which cl 11 was to be repealed with effect from 1 September 2018. They assert that his Honour’s construction of cl 11 of Sch 1 rendered cl 11(3) nugatory with no work to do. The Objectors contend that, in circumstances where the primary judge placed significant weight on cl 11(2), consideration of cl 11(3) was mandatory and failure on the part of his Honour to consider cl 11(3) constituted an error law, in that it led his Honour to misapply or misconstrue cl 11.

The Objectors’ argument raises the question of how cl 11(3) of Sch 1 was intended to operate, having regard to s 75J of the Planning Act. The Objectors accept that the effect of cl 11 of Sch 1 is that development of a resource recovery facility on the Moorebank Land is permissible with consent, in accordance with conditions specified in cl 11. They complain, however, that the primary judge construed cl 11 as meaning that a resource recovery facility could be developed on the Moorebank Land regardless of the underlying zoning of the Moorebank Land, provided that approval was granted before 1 September 2018. They assert that that ignores cl 11(3) of Sch 1, which had the effect that, after 31 August 2018, the “development” of an MRF on the Moorebank Land would be prohibited.

Clearly enough, the Proposal consists of “development” within the meaning of s 4 of the Planning Act. That is to say, it involves the use of the Moorebank Land, the erection of a building on the Moorebank Land and the carrying out of work on the Moorebank Land. Therefore, the Objectors say, the erection of a building, the carrying out of work to construct an MRF and the use of such an MRF on the Moorebank Land, will be prohibited on and from 1 September 2018. They say that the effect of s 76B of the Planning Act is that, after 31 August 2018, a person must not carry out the development on the Moorebank Land.

The primary judge granted approval of the Project in July 2017, a little over 12 months before the repeal of cl 11 of Sch 1 was to take effect. The Objectors assert that the likelihood is that any “development” by constructing the proposed MRF will not commence until after 31 August 2018 or, at the earliest, shortly before that date, in circumstances where, after that date, such development on the Moorebank Land will be prohibited under the Liverpool LEP. The Objectors complain that the effect of the approval for the Proposal given by the primary judge will be to allow the proposed MRF to operate on the Moorebank Land in perpetuity. They say that, having regard to cl 11(3) of Sch 1, his Honour should have approached the question of approval on the basis that, under the Liverpool LEP, the use of an MRF on the Moorebank Land after 31 August 2018 would contravene the objectives of the Liverpool LEP. They assert that his Honour ought to have determined the question having regard to the fact that the proposed use would be prohibited after 31 August 2018 and that his Honour erred by not considering those matters.

The Objectors contend that the failure of the primary judge to consider cl 11(3) of Sch 1 is exemplified by his Honour’s failure to consider or deal with the opinion evidence adduced on behalf of the Objectors to the effect that cl 11(3) “raises a flag” as to whether the proposed development would be appropriate after 31 August 2018, in circumstances where such use of the Moorebank Land after 31 August 2018 was incompatible with residential development in the locality. The Objectors adduced opinion evidence to the effect that, whilst there would have been a sound planning rationale in allowing an MRF to operate whilst the surrounding locality transitioned away from its previous industrial uses (as illustrated by the time limitation in cl 11(3) of Sch 1), that rationale has now ceased given that the area is largely characterised by residential, conservation and recreational land uses. Moorebank adduced opinion evidence to the effect that the time restriction in cl 11(3) of Sch 1 was put in place only so that issues relating to site access could be adequately resolved, and that the MRF, with appropriate controls in place, was compatible with the existing and future surrounding locality. The Objectors complain that his Honour failed to resolve the competing opinion evidence and that the failure to do so constituted an error on a question of law.

However, it is important to bear in mind that the primary judge’s determination was being made at a time when cl 11 of Sch 1 was still in force. Its automatic repeal was not to be effective until more than 12 months had passed. As his Honour observed, by promulgating the Liverpool LEP on 5 May 2008, the Council had decided to rezone the Moorebank Land as E2 Environmental Conservation but, by cl 11 of Sch 1, to permit the development of a resource recovery facility on the Moorebank Land on the basis that the effect of cl 11 was limited to a period of ten years. That rezoning was put in place after the Council had granted consent, in 2006, for earthworks that were the precursor of the proposed MRF. The original application under Pt 3A of the Planning Act had been submitted in May 2006, two years before the rezoning in 2008. Thus, at the time when his Honour made the determination, a resource recovery facility, such as the proposed MRF, was permitted under cl 11 of Sch 1, albeit that that provision was to be “repealed” some 15 months later. His Honour was clearly aware of the provisions of cl 11(3) of Sch 1 and did not ignore them. There was no misapprehension on his Honour’s part as to the proper construction and effect of cl 11(3).

Ground 5 asserts that the primary judge did not give adequate reasons for concluding that the Proposal is consistent with the Liverpool LEP. However, the primary judge gave extensive consideration to the relevant provisions. Thus, his Honour fully explained his reasoning process as follows:

All parties adduced evidence from acoustic experts. The primary issue in dispute between the Objectors, on the one hand, and Moorebank, on the other, was the acoustic impact of the Proposal on the part of the Tanlane Land in the R3 Zone and, in particular, the noise generated by trucks operating on the access ramps and the road to and from the proposed MRF.

The Objectors contend that the decision of the primary judge was unreasonable having regard to the matters relied on in relation to cl 11 of Sch 1 of the Liverpool LEP, in addition to his Honour’s treatment of the acoustic impact of the Proposal. They rely on the proposition that reasonableness is not limited to what is, in effect, an irrational decision. Thus, they say, an inference of unreasonableness may be drawn objectively, even in cases where a particular error in reasoning cannot be identified. [36] Thus, a distinction may possibly be drawn between a rational decision and a reasonable decision on the basis that not every rational decision is reasonable. They assert that legal unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred. [37]

In support of the proposition that the decision of the primary judge was unreasonable, the Objectors begin with the matters referred to above and then refer to the situation of the Moorebank Land at the eastern edge of the suburb of Moorebank in the E2 Zone. Immediately to the north of the Moorebank Land is part of the Tanlane Land zoned RE2 Private Recreational, and further to the north is land zoned R3 Medium Density Residential. The Objectors refer to the observation by the primary judge that the Proposal does not fit comfortably within the objects of the E2 Zone and point to the fact that up to 500,000 tonnes per year of construction waste would be transported by up to 324 truck movements on any given day, which would make a considerable amount of noise.

The Proposal does not involve construction of any noise attenuation measures to shield the land within the R3 Medium Density Residential Zone from operational noise, in particular, noise from articulated trucks. All of the opinion evidence in relation to acoustic impact supported the proposition that the conditions proposed would be insufficient to protect all of the land within the R3 Zone from some adverse impact.

Further, the intrusive criteria provided for in the NSW Industrial Noise Policy (the Noise Policy) will be exceeded in relation to the land in the R3 Medium Density Residential Zone. It can be assumed that the land in the R3 Medium Density Residential Zone will, in time, be the subject of residential sub-division, even though there is no current proposal for such development. The Objectors assert that the evidence to that effect before the primary judge leads overwhelmingly to the conclusion that the Proposal, if implemented, would result in adverse acoustic impacts on people who would be going about their lives on the land in the R3 Medium Density Residential Zone.

The primary judge accepted that there was no firm evidence as to the likely cost of measures necessary to ameliorate truck noise on the land in the R3 Zone and in the RE2 Zone, but concluded that the likely cost of those measures would render the Proposal unfeasible. The Objectors complain that that conclusion says nothing as to the financial inability of Moorebank to provide suitable acoustic screening to prevent the otherwise acoustically intrusive development. The Objectors assert that, therefore, it was not a reasonable decision to approve the Proposal involving the operation of an acoustically intrusive development without suitable acoustic screening in the E2 Zone.

In addition, the Objectors assert that the primary judge erred in the way in which his Honour disposed of the contentions concerning the acoustic impacts of the Proposal. First, they say, there was no evidence for his Honour’s finding and, additionally or alternatively, his Honour failed to give adequate reasons for the finding that the noise impacts of the Proposal on the land in the R3 Zone were able to be managed by the conditions imposed by his Honour.

The Objectors summarise as follows the reasoning of the primary judge about which they complain:

The Objectors assert that that reasoning was erroneous because:

The Objectors complain that, not only did Moorebank not adduce any evidence as to the cost of noise attenuation measures to protect the Tanlane Land, but neither was there any evidence of the likely economic return to Moorebank generated by the MRF over the life of the proposed MRF. Thus, they say, there was no basis upon which a finding could be made that the proposed cost of any noise attenuation measures to protect the Tanlane Land would or might render the proposal unfeasible, since that would require a comparison of the cost measures, on the one hand, and the returns from the MRF, on the other. Only after such an analysis could there be a finding of economic unfeasibility.

The Objectors assert that the primary judge found that the proposed cost of any noise attenuation measures to protect the Tanlane Land would or might render the Proposal unfeasible where there was no evidence upon which his Honour could properly make that finding. They say that, to the extent that his Honour’s reasons could be read as finding that noise mitigation measures to protect the Tanlane Land were economically unfeasible, there was no evidence to support the finding and the finding thus constituted an error of law.

Finally, the Objectors assert that the primary judge failed to give any adequate reasons for his findings that the noise impacts of the proposed MRF on the Tanlane Land could be managed by the conditions being imposed and that Moorebank had proposed all reasonable, sufficient and feasible and reasonable measures to protect the Tanlane Land. They say that, in those circumstances, where the Noise Policy criteria are exceeded and Moorebank did not propose any noise mitigation measures at all, his Honour was required to give some reasons for those conclusions but failed to do so.

The submissions advanced on behalf of the Objectors concerning the consideration by the primary judge of acoustic issues proceeded on a misapprehension as to the evidence concerning the mitigation measures proposed on behalf of Moorebank and his Honour’s acceptance of the agreement among those who gave opinion evidence on that topic. The relevant evidence may be summarised as follows:

The Objectors focussed on the finding that it was common ground among the opinion evidence that the acoustic treatment and amelioration measures proposed by Moorebank would be insufficient to protect all of the land in the R3 Zone from some adverse impacts. However, that finding must be understood in the context of the acknowledgment in the previous sentence that the Proposal does not suggest the construction of any noise attenuation measures to shield the land in the R3 Zone from operational noise. That is to say, the primary judge correctly summarised the effect of the evidence that the suite of noise mitigation measures proposed by Moorebank was not designed to control noise on the land in the R3 Zone and was therefore insufficient to ensure an acceptable level of acoustic amenity on at least part of that land. His Honour concluded that the acoustic mitigation measures proposed by Moorebank were sufficient and that it was not appropriate to require the further measures propounded on behalf of Benedict and Tanlane for all of the reasons that his Honour provided.

It is clear enough that the primary judge appreciated that the measures that were proposed on behalf of Moorebank were not designed to deal with noise mitigation in respect of the land in the R3 Zone and that his Honour accepted Moorebank’s position that no further mitigation measures were necessary. That is not an error of approach and, a fortiori, is not an error of law.

Further, even if the primary judge misdirected himself in some way by erroneously considering that there were some mitigation measures designed to address impacts on the land in the R3 Zone, such an error would not be material to the ultimate conclusion, having regard to his Honour’s reasoning. Thus, his Honour resolved the conflict between the opinion evidence of the Objectors, on the one hand, and the opinion evidence of Moorebank, on the other, by accepting the position propounded on behalf of Moorebank that it was not appropriate for the Court to impose any mitigation measures specifically designed to address impacts on the land in the R3 Zone.

The Objectors challenge the finding that the primary concerns raised by them relating to the management of noise impacts as a result of truck traffic to be generated by the Proposal, were able to be managed by the conditions being imposed. That finding is explained by his Honour’s further finding that the responsibility to attenuate or mitigate noise had been the subject of reasonable measures proposed to be adopted by Moorebank and there would undoubtedly be a requirement for the development of the land in the R3 Zone to take into account the changed noise environment.

The mitigation measures proposed on behalf of the Objectors involved closing in the ramps on Brickmakers Drive and the unnamed road intersection to reduce the noise levels at future residences, as well as the installation of a six metre high acoustic barrier immediately adjacent to, and on both sides of, the access road. The Objectors contend that Moorebank was required to adduce evidence, not only of the estimated cost of such measures but also of the likely economic returns from the project over the life of the development, in order to make good its argument on the question of the economic feasibility of those measures.

The primary judge quoted the opinion evidence adduced on behalf of Benedict and Tanlane that the implementation of the noise mitigation measures proposed by it could, particularly in the marina residential case, prove highly impractical, unfeasible and unreasonable from a cost and engineering perspective. The Council’s expert opinion evidence was to the effect that it would presumably be possible to mitigate noise to the Tanlane Land but that it would be expensive to do so. Moorebank’s opinion evidence was to the effect that it would be significantly more cost effective and practically effective to address noise on the Tanlane Land, as the cost of such a noise barrier on the Moorebank Land would be extremely high and the benefits would be extremely low, when contrasted with a 4.5 metre barrier on the escarpment located on the Tanlane Land, which would bring the relevant contour right in.

Thus, on the evidence before the primary judge, his Honour could not have made any finding other than the one that he made, consistent with the agreed position advanced in the opinion evidence adduced by all three parties. It was unnecessary for the costs of such measures to be quantified, given the agreed position that they would be so expensive as to make them impractical. Imposition of such measures by the Court would have been tantamount to a refusal of the application. It was not necessary for Moorebank to call evidence on those questions in light of the clear agreement on the question within the opinion evidence.

The ground that the failure by the primary judge to impose mitigation measures in respect of the land in the R3 Zone was legally unreasonable is really an attempt to revisit the merits of his Honour’s decision. That is plainly outside the grounds upon which this Court could intervene in reviewing his Honour’s decision. It is necessary for the Objectors to establish that the decision was outside the area of “decisional freedom” within which reasonable minds might differ. [38] The area of “decisional freedom” is determined by reference to, amongst other things, the relevant statutory power. In this case, the power to approve the Proposal under s 75J of the Planning Act was virtually unfettered.

In the absence of a challenge to certain specific findings made by the primary judge, the Objectors cannot simply point to the outcome and contend that it is legally unreasonable. There is no basis upon which to impugn his Honour’s decision, having regard to his Honour’s careful consideration of each of the matters raised on behalf of the Objectors and his cogent reasons for rejecting their arguments on that question. The relevant findings made by his Honour are as follows:

The primary judge accepted the opinion evidence adduced on behalf of Moorebank that it was unnecessary for any further noise mitigation measures to be imposed in light of the ability for residential development on the land in the R3 Zone to incorporate its own mitigation measures. That position is consistent with the position taken by the L&E Court and this Court in the past. [39] There was no error on the part of his Honour.

The Objectors have not made out any of their grounds of appeal. It follows that both appeals should be dismissed with costs.