Land and Environment Court

New South Wales

Case Name: Hunter Development Brokerage Pty Limited trading as

HDB Town Planning and Design v Singleton Council

Medium Neutral Citation: [2022] NSWLEC 64

Hearing Date(s): 14, 15, 16, 17, 20 and 21 December 2021

Further submissions 11 and 14 February 2022

Date of Orders: 3 June 2022

Decision Date: 3 June 2022

Jurisdiction: Class 1

Before: Duggan J

Decision: See paragraphs 101 and 102

Catchwords: ENVIRONMENT AND PLANNING — class 1 appeal

— application to modify a development consent
pursuant to s 4.56 Environmental Planning and
Assessment Act 1979 (NSW) — electricity generating
power plant — coal tailings used as fuel — addition of
biomass as fuel source — whether proposed
development substantially the same — not
substantially the same — appeal dismissed

Legislation Cited: Environmental Planning and Assessment Act 1979

(NSW)

Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85

Greenpeace Australia Ltd v Redbank Power Company
Pty Ltd and Singleton Council (1994) 86 LGERA 143
Hunter Industrial Rental Equipment Pty Ltd v Dungog
Shire Council (2019) 101 NSWLR 1
Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248
LGERA 300
Moto Projects (No 2) Pty Ltd v North Sydney Council
(1999) 106 LGERA 298
 North Sydney Council v Michael Standley &
Associates Pty Ltd (1998) 43 NSWLR 468
Reading Properties Pty Ltd v Auburn Council (2007)
158 LGERA 116
Sydney City Council v Ilenace Pty Ltd [1984] 3
NSWLR 414
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8

Category: Principal judgment

Parties: Hunter Development Brokerage Pty Limited trading as

HDB Town Planning and Design (Applicant)
Singleton Council (Respondent)

Representation: Counsel:
P Tomasetti SC and M Astill (Applicant)
T Robertson SC and J Walker (Respondent)

Solicitors:
Fishburn Watson O’Brien (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2021/128111

Publication Restriction: No

JUDGMENT
Nature of proceedings
1 These proceedings are a class 1 appeal brought by Hunter Development
Brokerage Pty Limited trading as HDB Planning and Design (the Applicant)
against the deemed refusal by Singleton Shire Council (Council) of an
application to modify a development consent to permit biomass to be utilised
as a fuel source in an existing electrical generating power plant, known as the
Redbank power plant.

The development consent

2 By orders made on 10 November 1994 this Court granted development
consent, subject to conditions, to development application no. 183/93. The
terms of the orders and the conditions are contained in Greenpeace Australia
Ltd v Redbank Power Company Pty Ltd and Singleton Council (1994) 86
LGERA 143 at 157ff. The development was generally described in order 2 as
 comprising the “construction and operation of a 120 megawatt power plant”
and the “construction of an ancillary slurry pipeline over adjacent land as
specified in the development application no. 189/93 and subject to the
conditions…” (1994 DC).

3 The land to which the 1994 DC related was described therein as part of lots 1-3
of DP 247820 and lots 4-5 DP 247820 at Long Point Road and Jerrys Plains
Road, Warkworth. The site is now legally described as lot 450 of DP 1119428
and has an area of about 18.03 ha (the Site).

4 Prior to the commencement of the construction of the development in 2000, the

1994 DC was modified by the Court on 27 March 1997 to (inter alia): limit the
source of tailings to the Warkworth Mine; remove the slurry pipeline; and allow
for the use of beneficiated dewatered tailings (BDT) over tailings in slurry form
as the fuel source (1997 Modification).

5 Upon completion of construction of the Redbank power plant on the Site, the
plant commenced commercial operation and supplying electricity to the grid in
October 2001. The Redbank power plant had ceased operation in October
2014 when an alternate market for coal tailings became viable rendering the
price for coal tailings uncommercial for use in the Redbank power plant. Since
2014, the Site has been in care and maintenance mode and has been staffed
by a skeleton workforce.

The Modification Application

6 The original modification application was lodged with Council on 3 November
2020.

7 The Applicant commenced these class 1 proceedings appealing against

Council’s deemed refusal on 7 May 2021.

8 On 18 August 2021, the Applicant was granted leave to amend the modification
application and to rely upon amended plans and documents in the
proceedings. The modification application (as amended) was then re-exhibited
between 31 August 2021 and 27 September 2021.

9 On 29 October 2021, the Applicant was granted leave to further amend the
modification application and rely upon further amended and additional
 documents in the proceedings. The amended class 1 application was filed with
the Court on 8 November 2021. The modification application (as further
amended) was then re-exhibited between 9 November 2021 to 7 December
2021. The further amended modification application is the application to which
the determination of this appeal relates and references to the Modification
Application refer to the application in the form of the further amended
Modification Application for which leave was granted (Modification
Application).

10 The Council filed a Further Amended Statement of Facts and Contentions

identifying the background facts and the contentions in the proceedings as they
related to the Modification Application on 24 November 2021 (SOFAC). The
Applicant filed its reply to the SOFAC on 30 November 2021 (Reply SOFAC).

Proposed modifications
11 As expanded upon below, the primary modification proposed by the
Modification Application is the introduction of biomass as a supplementary
source of fuel for the operation of the Redbank power plant. Other
modifications that are proposed arise from the proposal to introduce the
additional fuel source or to facilitate the use of the additional fuel source.

12 No modifications are proposed to be made to the site administration buildings,

boiler plant, steam turbine, ash handling plant, switchyard and electrical
transmission equipment, cooling water systems, steam and water systems,
Hunter River water make-up and discharge systems, control system
equipment, the electrical generation capacity of the power station, hours and
operation and shifts, and the connection to the electricity grid.

13 The Modification Application proposes to expand the permissible source of fuel

so that either coal washery tailings (in BDT form as was approved by the 1997
Modification) or biomass from “forestry and sawmilling residues” or
“uncontaminated wood waste” according to the EPA’s Eligible Waste Fuel
Guidelines can be utilised. Whilst the conveyor system for bringing coal tailings
and run-of-mine (ROM) coal will remain in place, coal tailings and biomass are
not able to be utilised simultaneously.
14 The feedstock for the biomass is generally proposed to be sourced from within
300 km of the Site, although according to documents contained in the
Modification Application, this radius could expand depending on economic
considerations.

15 Paragraphs [3]-[6] of the SOFAC describe the proposed modifications in the

following terms:

3.   Modification Application No. 5.1993.183.2 proposes to modify the

development consent to allow biomass material to be burned as an additional
fuel source for the electricity power plant, including for up to 100 per cent of
the fuel for the power plant (“the modification application”).
4.   The Planning Report prepared by Urbis dated 25 October 2021
accompanying the modification application (as amended) identifies that it is
proposed to amend the description of the development, Conditions 1, 16 and
34 (as amended by the Court on 27 March 1997) to read as follows (with
deletions marked in strike through and insertions marked in bold):
(a)   Description of the development:
“Development consent is granted to the construction and
operation of a power plant on land being part lots 1-3 DP
247820 and lots 4-5 DP 247820 at Long Point Road and Jerrys
Plains Road, Warkworth, and to the construction and operation
of ancillary tailing collection, fuel delivery and storage,
preparation and transportation facilities and ancillary water and
ash transportation facilities on site and adjacent land including
land within consolidated coal lease 753 as specified in
development application No. 183/93 as modified in the
information contained in the prepared statements of Roy Alper
and Thor Hibbler of February 1997, and as modified in the
information referenced in condition 1 and subject to the
conditions annexed hereto and marked “A”.
(b)   Condition 1:
“The development being carried out generally in accordance
with the Amended Environmental Impact Statement prepared
by the National Power Company and ESI Energy Inc. dated
November 1993 and the additional clarification contained in the
responses to comments prepared by the National Power
Company and ESI Energy Inc. dated 21 February 1994 and the
information regarding improvements to the development
contained in the prepared statements of Roy Alper and Thor
Hibbler of February 1997 as amended by:1. The
modifications to the plant and equipment to enable
Biomass fuel firing, including the receival, storage and
materials handling of Biomass fuel, as described in the
Redbank Power Station – Description of Proposed
Modifications for Conversion to Fire Biomass Fuels by
B&PPS dated 20 October 2021 and as shown in green on
B&PPS engineering drawings No. C12198-000-010;
C12189-000-100, C12198- 000120, C12198-000-130, C12198-
 000-140, C12198-121-105, C12198-121-110, and C12198-
121-111; and
2.   The modifications to traffic management arrangements
on the site to limit the direction of traffic flow to one
direction rather than two as described in the Operational
Traffic Management Plan by Ason Group dated 20 October
2021.
3.    The modifications to manage stormwater on the site
as described in the Water Cycle Impact Assessment of
Changing Biomass Fuel at Redbank Power Station by
Sustainability Workshop Ltd dated 21 October 2021.
4.    The modifications to lighting described in the
Lighting Assessment by Tigerlight dated 21 October 2021’;
Where there is any inconsistency between the Amended
Environmental Impact Statement and associated
documents and those referenced above then the latter
documents will prevail.”
(c)   Condition 16:
“At least the majority of the fuel burnt at the power plant in any
one year after commercial operation, on a dry tonnes basis, is
to be derived from either:
(a)   coal washery tailings obtained either directly from the
Warkworth mine washery washeries or indirectly from tailings
storage dams on the Warkworth mine lease. Coal washery
tailings are not to be obtained from mines other than the
Warkworth without the further approval of Council, or
(b)   biomass fuel classified as Biomass from Forestry and
Sawmilling Residues or Uncontaminated Wood Waste in
the EPA’s Eligible Waste Fuel Guidelines (2016).”
(d)   Condition 34:
“Satisfactory arrangements are to be made with the
Department of Mineral Resources and Warkworth Mine for final
rehabilitation of ash emplacement at Warkworth Mine.”
5.   It is also proposed to delete Condition 33 concerning the removal of ash
from the site.
6.   The specific details of the proposed modified development are
summarised as follows.
Source of the biomass
(a)   A maximum of 850,000 tonnes of biomass are to be burned at the
plant per annum.
(b)   The proposed biomass feedstock will comprise “forestry and
sawmilling residues” and “uncontaminated wood waste” as identified in
the NSW EPA Eligible Waste Fuel Guidelines. The feedstock is
generally proposed to be sourced from within 300km of the site.
(c)   Biomass fuel is proposed to be prepared to meet plant
specifications at off-site locations and then transported to the site.
(d)   It is not proposed to co-fire biomass and coal tailings.
(e)   The submitted Redbank Power Station QA/QC, Supply Chain and
Material Handling Report (“QA/QC Report”) estimates that
approximately 70 per cent of the biomass to be sourced for the plant
can be obtained from “approved forestry residues”, 15 per cent from
sawmill operations and 15 per cent from uncontaminated wood wastes
by weight.
(f)   The Planning Report identifies that the plant will retain the ability to
use coal tailings as fuel and that it is expected that no changes to the
plant will be required to re- commence the use of coal tailings.
Deliveries to/from site
(g)   Biomass is proposed to be delivered to the site by B-double trucks
up to 70 times per day (140 movements) (with potentially an additional
4 truck movements for the transport of ash from the site as discussed
in Contention 5 below).
(h)   Ash from biomass is proposed to be taken from the site by B-
double trucks up to 3 times per day.
(i)   Ash from the burning of beneficiated dewatered tailings (“BDT”)
and run-of-mine (“ROM”) is also proposed to be trucked from the site.
Modifications to plant operations and infrastructure
(j)   Biomass will be delivered to the site 6 days per week (excluding
Sundays and public holidays) between the hours of 6:00am and
6:00pm.
(k)   Conveyor CV 76 will be extended from the existing crusher house
to feed existing Conveyor CV 34.
(l)   Conveyor CV 34 will be modified to feed Boiler Unit 1 only, and CV
35 will be modified to feed Unit 2 only.
(m)   Coal chutes will be replaced with reversing conveyors in the
boiler silo area.
(n)   The boiler storage silos will be modified by removing the bottom
section and trouser legs, which will be replaced with a cylindrical
section inclusive of rotating discharge augers.
(o)   The furnace fuel feeders will be modified by removing the current
stock feeders and replacing them with screw feeders, as well as
reopening the pneumatic fuel distributors to their original dimension.
(p)   The tailings crushing plant will be removed because coal tailings
received on site in the future will be required to meet site specifications
upon delivery,
(q)   The existing fire detection and protection system will be extended.
(r)   Additional dust collection will be installed and the existing dust
suppression system will be upgraded.
(s)   Incoming and outgoing vehicular weigh bridges will be installed.
 (t)   Asphalt pavement and equipment to facilitate the unloading of B-
double trucks will be provided adjacent to the current coal tailings
stockpile area, including 2 mobile dual lane truck unloaders, 2 radial
tele stackers feeding into the stockpile facility and 2 moving floor bulk
loader bins.
(u)   The tailings stockpile area will be used as the unloading and
stockpile facility for biomass.
Residual ash management
(v)   It is estimated that the burning of biomass in the plant will produce
ash at a volume of approximately 3 to 5 per cent of the feedstock,
which equates to approximately 134 tonnes of ash or 3 truckloads per
day.
(w)   The burning of coal would produce an estimated volume of
115,776 tonnes per annum (or 321 tonnes per day) of ash based on
past performance.
(x)   It is proposed that B-doubles delivering biomass to the site be
configured to carry ash generated from both biomass and coal
tailings/ROM coal to approved off-site location(s) to be re-used as a
soil or fertiliser amendment in accordance with the NSW EPA’s The
Ash from Burning Biomass Order 2014 and The Coal Ash Order 2014,
respectively. The QA/QC Report (and Waste Management Plan
prepared by Jackson Environment and Planning dated 15 October
2021 (“Waste Management Plan”)) notes that if the ash from coal
tailings is found not to meet the requirements of The Coal Ash Order
2014, an application will be made for a resource recovery order and
exemption to allow the “beneficial reuse of ash in appropriate
applications to ensure that human health and the environment are
protected at all times.”
16 In addition to the matters identified above, works are proposed to be
undertaken on the internal roadways at the Site to accommodate the
movement of biomass delivery trucks on the Site including new traffic
management arrangements to limit the direction of traffic flow to one direction
rather than the existing two-way movements.

Issues in dispute
17 The Council has by way of the SOFAC raised a number of issues for
determination contending that a consideration of those contentions (either
alone or together) would warrant refusal of the Modification Application.
Contention 1 raises the question as to whether the proposed development is
substantially the same, the remaining contentions raise matters going to the
merits of the Modification Application.
18 Both parties accepted that satisfaction that the Modification Application was
substantially the same was a precondition to the consideration of the merits
and determination of the Modification Application. It is appropriate that such an
issue be determined first and, if so satisfied, then turn to the determination of
the merits of the application. If the development is not substantially the same
the statutory precondition to the exercise of power has not been met and,
therefore, a consideration of the merits will not arise.

19 Contention 1 of the SOFAC provides:

Development Not Substantially the Same

1.   The modification application must be refused because the development as
proposed to be modified will not be substantially the same development as the
development for which the consent was originally granted as required by
section 4.56(1)(a) of the EP&A Act.
Particulars
(a)   Section 4.56(1)(a) of the EP&A Act provides as follows (with
emphasis added):
“4.56 Modification by consent authorities of consents
granted by the Court (cf previous s 96AA)
(1)   A consent authority may, on application being made by
the applicant or any other person entitled to act on a consent
granted by the Court and subject to and in accordance with the
regulations, modify the development consent if—
(a)   it is satisfied that the development to which the
consent as modified relates is substantially the same
development as the development for which the
consent was originally granted and before that
consent as originally granted was modified (if at all)
…”
(b)   Section 4.56(1)(a) requires that the consent authority be satisfied
that the development as proposed to be modified (in this application,
the “proposed modified development”) is “substantially the same
development” as the development the subject of the consent granted
by the Court on 10 November 1994 (“the original development”), and
not the modified consent granted on 27 March 1997.
(c)   When compared to the original development, the proposed
modified development has the following significant differences:
(i)   The introduction of biomass as a fuel source, which was
not contemplated by or assessed in the granting of the
development consent. Biomass and coal tailings are entirely
different feedstocks, with the former being derived broadly from
the forest ecosystem and the latter being from geosphere
reservoirs.
(ii)   The potential (and likely) use of 100 per cent biomass to
fuel the plant to the complete exclusion of coal tailings.
(iii)   Where coal tailings are to be used, they cannot practically
be sourced from the Warkworth and Lemington mines having
regard to what is said in the QA/QC Report and the Redbank
Power Station QA/QC, Supply Chain and Material Handling
Addendum Report dated 15 October 2021 (“QA/QC Addendum
Report”).
(iv)   There will therefore be no amelioration of the problem of
coal tailings disposal at the Warkworth and Lemington mines,
which was the principal claimed environmental benefit of the
original development.
(v)   Greenhouse gas emissions from the burning of biomass
that will have a greater unacceptable impact on the
atmosphere because they are instantly emitted but not
concurrently removed (as described in Contention 8 below) in
circumstances where the climate presently has a far reduced
tolerance for emissions.
(vi)   The proposed modified development involves the haulage
of biomass fuel by road, where the original development
involved the transport of tailings fuel primarily by pipelines from
the Warkworth and Lemington mines, with only supplementary
fuel being delivered by road haulage.
(vii)   The proposed modified development would be dependent
for supply upon the forestry industry, which is subject to
ongoing policy change and inconsistent supply. This is
acknowledged in various documents accompanying the
modification application (as amended) where it is noted that
suppliers will vary from year to year, and particularly in the
QA/QC Report and QA/QC Addendum Report as discussed in
Contention 4 below.
(viii)   The proposed modified development will produce
significantly different and unquantified impacts associated with
the delivery of biomass to the site via road haulage as opposed
to the delivery of coal tailings to the site via direct pipeline,
including greenhouse gas emissions arising from the operation
of delivery trucks and impacts upon the operation and integrity
of various State and local roads (as discussed in Contentions 5
and 8 below).
(ix)   The proposed modified development will require an
increase in the amount of fuel required from approximately
700,000 tonnes of tailings annually to a maximum of 850,000
tonnes of biomass annually (with potentially more being
required depending on the moisture content of the fuel to be
used as discussed in Contention 10 below).
(x)   The proposed modified development will involve
fundamentally altered arrangements for the treatment of waste
products (comprising ash), which had previously been
conveyed to the mines for rehabilitation works/emplacement.
Condition 33 of the development consent had also specified
 that any alternative arrangement for the regular transfer of ash
by road haulage was required to be subject to separate
approval by the Respondent. The ash from both biomass and
coal tailings is now proposed to be conveyed by road haulage
to unspecified locations for use as a fertiliser.
(d)   The use of coal tailings obtained from the Warkworth and
Lemington mines for fuel and the associated environmental benefits
was a fundamental, if not inherent, component of the originally
approved development that is sought to be undone by the modification
application.
20 The determination of this Contention requires an examination of the
development consent as originally granted (before the later modifications),
namely the development the subject of the 1994 DC and then a comparison of
that consent to what is proposed in the Modification Application.

Relevant legislative provisions

21 The source of the power to enable the application to be approved is s 4.56 of
the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act)
which relevantly provides:

(1)   A consent authority may, on application being made by the applicant or

any other person entitled to act on a consent granted by the Court and subject
to and in accordance with the regulations, modify the development consent if
—
(a)   it is satisfied that the development to which the consent as
modified relates is substantially the same development as the
development for which the consent was originally granted and before
that consent as originally granted was modified (if at all), and
…
(1A)   In determining an application for modification of a consent under this
section, the consent authority must take into consideration such of the matters
referred to in section 4.15(1) as are of relevance to the development the
subject of the application. The consent authority must also take into
consideration the reasons given by the consent authority for the grant of the
consent that is sought to be modified.
Evidence
22 An inspection of the Site of the existing Redbank power plant was undertaken
in the company of the parties’ representatives and their experts.

23 A number of submissions had been received in connection with the exhibition

of the Modification Application. The written submissions were tendered in
evidence. In addition, oral evidence was adduced from the following witnesses
who gave evidence primarily in connection with the merits of the Modification
 Application, and to some extent touched on matters relating to the issues for
consideration under Contention 1:

(1) Jacqui Mumford, representing the Nature Conservation Council of New

South Wales;
(2) Dailan Pugh representing the North East Forest Alliance;
(3) Virginia Young representing the Colong Foundation for Wilderness;
(4) Frances Pike representing the Australian Forests and Climate Alliance
Inc;
(5) Jan Davis representing the Hunter Environment Lobby; and
(6) Martin Faulding in his private capacity as a local resident.
24 Evidence was adduced from a number of experts relating to matters going to
the merits of the Modification Application. To the extent that the evidence
touched upon factors that enabled an assessment of whether the development
as proposed to be modified was substantially the same as that originally
approved that evidence was given by:

(1) For the Applicant:

(a) Clare Brown on town planning;
(b) Ken Hollyoak on traffic;
(c) Ronan Kellaghan on air quality and greenhouse gas emissions;
(d) Dr Annette Cowie on ecologically sustainable development;
(e) Mark Jackson on fuel supply and waste management;
(f) Professor Mark Adams on forest science;
(g) Dr Rhidian Harrington on ecology; and
(h) Dr Victor Fattoretto on acoustics.
(2) For the Council:
(a) Stuart McDonald on town planning;
(b) David England on traffic;
(c) Professor Brendan Mackey on climate and ecologically
sustainable development;
(d) Hugh Saddler on greenhouse gas emissions; and
(e) Dr Stephen Phillips on ecology.
25 There was disputed evidence between the parties’ experts as to whether
biomass was ‘waste’ produced and also whether it produced the
 same/more/less greenhouse gas when burned as fuel. For the reasons upon
which I have determined the issue relating to Contention 1 it has not been
necessary for me to resolve the disputes insofar as they relate to this evidence.
Such matters will remain live issues for determination in the event that the
Applicant seeks to pursue a development application for the use of biomass as
a fuel source.

26 The evidence relating to the terms of the 1994 DC and the scope of the
Modification Application was largely documentary.

What was the development for which development consent was originally
granted?
Evidence – original consent
27 It was the common position of the parties that the scope of the 1994 DC
comprised: the order of the Court and conditions together with the documents
that were incorporated in that development consent by express reference.

28 Order 2 of the Court’s orders described the development to which development

consent was granted as:

2.   Development consent is granted to the construction and operation of a 120

megawatt power plant on land being part of lots 1-3 DP 247820 and lots 4-5
DP 247820 at Long Point Road and Jerrys Plains Road, Warkworth, and to the
construction of an ancillary slurry pipeline over adjacent land as specified in
development application No 183/93, and subject to the conditions annexed
hereto and marked "A".
29 The conditions to which Order 2 referred included condition 1 which provided:

1. Scope of Development
The development being carried out generally in accordance with the Amended
Environmental Impact Statement prepared by the National Power Company
and ESI Energy Inc dated November 1993 and the additional clarification
contained in the responses to comments prepared by the National Power
Company and ESI Energy Inc dated 21 February 1994.
30 The documents to which express reference was made in the 1994 DC were, in
particular, those identified in condition 1. From that material, whilst voluminous,
the parties took the Court to a limited number of the documents tendered. Of
those documents, particular attention was placed upon the matters that follow.

31 The Amended Environmental Impact Statement (EIS) referred to in condition 1

identified the proposed development as:
 1.1 The Project *
The Project, which is planned to be located near the Warkworth and
Lemington Mines (refer to Figures 1.1-1 and 1.1-2), would use coal washery
tailing as fuel. Combustion converts the tailing into a lesser quantity of inert
soil-like material useful, among other things, for restoring areas disturbed by
mining. Subject to final commitment from each mine, the fuel would be
supplied from Warkworth and Lemington. If committed, this would provide the
mines with an alternative means of permanent tailing disposal. It is proposed
that electricity generated by the plant would be sold under long-term contract
to Shortland Electricity.
Subject to final commitments on behalf of Warkworth and Lemington Mines
and Shortland Electricity, and the obtaining of all necessary planning and
environmental permits and authorisations, it is proposed to commence
construction of the Redbank Project in the second half of 1994.
1.2 Project Objectives *
There are three major objectives of the Project:
Efficient utilisation of natural resources - coal tailing, which has a
usable energy content, is currently discarded. The Project would use
this energy to produce approximately 120 megawatt (MW) of
electricity, the net output of which (currently estimated at about 100
MW) would be sold to Shortland Electricity. This is enough energy to
supply approximately 100,000 homes with electric power on a
continuous basis.
Introduction of an alternative, environmentally responsible
method of tailing disposal - Commencing in 1996 the Project would
consume 80% and 100% of the daily tailing production of the
Warkworth and Lemington Mines respectively. This would significantly
reduce the amount of new tailing requiring emplacement in tailing
dams and help reduce the inventory of old tailing stored in current
dams. In addition, the application of fluidised bed combustion would
produce a dry (stable) ash for use in land reclamation.
Design and operation in a manner that minimises environmental
impacts - the Project would incorporate a number of features to
reduce impacts to the environment. These include air emissions
control (and monitoring of sulphur dioxide emissions) as well as noise
abatement.
32 The clarification in the Responses to Comments on the Amended
Environmental Impact Statement to which condition 1 referred provided no
material change to the proposal as identified in the EIS but did provide
comments responding to submissions and, inter alia, the following comments
(at p 4):

The primary reason for implementing the Redbank Project is that it provides an
improved method of tailing usage (efficient utilisation of energy resources) and
ultimate deposition (stable, long-term emplacement). On net the Project
provides significant environmental benefits and will demonstrate that the use
of a clean combustion technology can help to eliminate a serious long-term
 environmental problem while providing minimal environmental impacts of its
own.
33 The EIS then proceeded to detail the manner and processes that would be
undertaken to achieve the described project and project objectives. There were
no plans approved as part of the development consent other than some
generalised schematics and indicative drawings that formed part of the EIS.
However, the EIS did include a process flow schematic.

34 It is also apparent from the EIS and the conditions imposed upon the original
consent that with respect to some aspects of the proposed development:

(1) Concept or performance-based controls were proposed with the precise

details as to how such goals were to be met to be determined through
later applications to other authorities;
(2) Alternative means of addressing certain impacts or providing for
elements of the plant were identified but an election as to which
alternative would be adopted was not made.
By way of illustration of this fact the Applicant’s town planner Ms Clare Brown
observed at [1.67-1.69] of Exhibit 6:

1.67   CB considers that neither the development application nor the approval
as issued provide a high degree of certainty regarding the operation or layout
of the Project many aspects of the Project were preliminary and subject to
commitments of others (Warkworth and Lemington mines) or further
approvals. While the major features of the Project are set out in section 2.5 of
the amended EIS they are based on conceptual level engineering and it is
stated at page 2-9 that “As engineering efforts proceed, changes or
adjustments may be made in plant layout and arrangement, equipment and
processes.”
1.68   CB notes that the process drawing details in Figure 2.5-1, 2.7-1, 2.7-2,
2.9-1 are schematic drawings only showing engineering processes. CB further
notes that Figures 2.10-1, 2.10-2, 2.10-3 and 2.10-4 showing the plant layout
and site arrangements are schematic, do not include legends or scales and
are not labelled.
1.69   CB further notes that elements of the Project were not set in terms of
the consent. For example, the stack height which is identified in the amended
EIS as being between 50- 60 metres was as stated by condition 25 to be in
accordance with the requirements of the Environment Protection Authority. In
terms of ash emplacement, it is noted that condition 34 requires that
satisfactory arrangements are to be made with the Department of Mineral
Resources and Warkworth mine.
35 Section 2.0 of the EIS contained the Project Description which identified factors
such as the selection of: the combustion system; fuel resource and project
sizing; and project siting. Each of these factors, with the exception of the
 project siting, discussed the factor as it related to coal tailings. As to the project
siting the proximity to the mine sites and proximity to transmissions lines as
well as other considerations were discussed. Thereafter, the EIS identified the
basic design of the project observing (inter alia) at section 2.5:

The descriptions of the major features of the Redbank Project provided below
are based on conceptual-level engineering completed to date. As engineering
efforts proceed, changes or adjustments may be made in plant layout and
arrangement, equipment and processes.
Fuel for the plant would consist, primarily, of coal washery tailing supplied
directly from the coal preparation plants, supplemented as necessary from the
existing tailing dams and supplemental fuel stockpile. Fuel would be
transferred by slurry pipeline from the Warkworth and Lemington washeries
(and, as needed, from the Warkworth and Lemington tailing dams) to the
Project site via slurry pipeline.
The major equipment was identified with the observations relating to fuel
supply and materials handling stating (inter alia) at section 2.6.1:

Fuel Supply and Materials Handling

The tailing management and dewatering system would furnish the operating
power plant with its requirements of fuel in accordance with its needs,
including reliability of supply. The fuel supply system would consist of:
Continuous delivery of dewatered tailing to the boilers at a design
capacity of 120-140 tonnes per hour (dry solids basis) at concentration
of at least 68% solids by weight;
On-site tailing live slurry storage adequate for approximately 96 hours
of operation at nominal plant output;
On-site storage of low grade coal or selected coarse reject or other
solid fuel as supplemental fuel, reclaimable by front-end loader.
Typically, this "supplemental fuel" would be used to supplement or
substitute for a part of the tailing during equipment malfunctions and/or
due to low-quality tailing. The supplemental fuel or similar low-grade
coal would also be used for startup of the boilers and, thus, the power
plant. The startup coal would be used after initial firing with oil or
Liquified Propane Gas (LPG) for a few hours when heating or
reheating the boiler system for startup.
The anticipated processes and project requirements was thereafter outlined in
the remaining parts of section 2 of the EIS.
36 In addition to these matters, the following conditions imposed upon the original
consent:

16   Fuel Source
At least the majority of the fuel burnt at the power plant in any one year
after commercial operation, on a dry tonnes basis, is to be coal
washery tailings obtained either directly from the Warkworth and/or
 Lemington mine washeries or indirectly from tailings storage dams on
the Warkworth and/or Lemington mine leases. Coal washery tailings
are not to be obtained from mines other than the Warkworth and
Lemington Mines without the further approval of Council.
17   Start Up and Supplementary Fuel
Start up and supplementary fuel, other than diesel, is to be obtained
only from the Warkworth Mine. Alternative sources may be utilised in
emergency situations with the approval of the Director Environmental
Services.
18   Project Siting
The plant is to be sited on Site 2, the centre site, as recommended in
the EIS.
33   Removal of Ash
Any proposal to transfer ash by road on a regular basis is to require
the separate approval of Council.
34   Arrangements for Rehabilitation of Ash Emplacement
Satisfactory arrangements are to be made with the Department of
Mineral Resources and Warkworth Mine for the final rehabilitation of
ash emplacement.
Evidence – Modification Application
37 The evidence of the changes proposed by the Modification Application were
also largely documentary.

38 The Applicant provided, in tabular form, summaries of the evidence indicating

the relevant changes to the processes and plant as a comparison between: the
1994 DC; the development as modified in 1997 and as constructed; and the
Modification Application. Whilst there was little dispute between the parties as
to the factual elements of these physical features and process features of the
Redbank power plant as identified in the different stages of its approval
process, the fundamental dispute remained as to whether the changes
comprised an alteration such that the Modification Application was not
substantially the same as the 1994 DC.

Applicant’s submissions
39 The Applicant submitted that in order to undertake the necessary task required
by s 4.56 it is essential that the focus be on a comparison of the whole of the
development as originally granted and compare that development to the whole
of the development as proposed to be modified, including a consideration of
those elements that do not change. It is an error to focus solely on one element
 of the development, namely fuel type, as to do so is to undertake a task not
authorised by the relevant legislative provisions.

40 Inherent in the power to permit a development consent to be modified is that

there will be a consequential change from that which was originally approved,
otherwise there would be no need to modify the consent. The provision that
permits the modification has been observed to be both beneficial and
facultative.

41 The relevant “test” for determining whether a modification should be modified is

that contained in the legislation itself, and judicial decisions are not
substitutions for the legislative texts, however some relevant judicial guidance
can assist in understanding the legislative text: see Arrage v Inner West
Council [2019] NSWLEC 85 at [18]-[22] (Arrage). Decisions of the Court have
suggested that substantially the same means essentially or materially having
the same essence. The verb “modify” in context means “to alter without radical
transformation”: see Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR
414 at 421 (Ilenace).

42 The identification of the essential elements, however, should be determined

having regard to the development itself and not from the circumstances or
context in which the original consent was granted. The resultant comparison
requires a consideration of the whole of the development as originally granted
and as proposed by the modification.

43 In this case, the essence of the whole of the development remains unchanged.
It is and will remain an electricity generating work – a power station in which
super-heated steam is produced from combusting calorific fuels to turn a
turbine that generates electricity fed into the Singleton to Kurri 132kVA
transmission line to power at least 100,000 homes.

44 Approval of this application means the essential processes involved in the

generation of electricity and its supply to the grid are not modified. The parts of
the power station that need to be physically modified are minor. The
environmental impact of the modification is not transformed let alone radically
so. Change in air quality is not issue; there is no change in water balance or
 treatment; staffing; hours of operation; noise impact; power output; visual
impact; stormwater runoff; and there is no clearing of vegetation.

45 It is only the range of permissible calorific fuels to provide the heat to the two
boilers that is proposed to be modified. With that change there will be a
change to the fuel delivery method from conveyor and truck for coal tailings to
truck only for biomass. Whilst it is true that trucks will travel state roads to
collect and deliver biomass, using the lawful routes for B-double trucks, the
local roads in Singleton Shire will not be impacted and have the capacity to
carry the trucks. Long Point Road and the Golden Highway have the capacity
to support B-double truck traffic and the intersection of those two roads has
already been upgraded under the 1994 DC.

46 On-site handling of fuel to be able to unload biomass from trucks and transfer it
to stockpiles is a de minimis change. Stockpiles of supplementary coal become
stockpiles of biomass. They are in the same place and of similar footprint and
height.

47 The right to combust coal tailings from Warkworth, Lemington or other coal
mines remains unmodified.

48 As the physical nature of the development is not modified the environmental

impacts, such as the visual impacts, the noise created, the water management
systems, the waste management systems, dust generation and the like, are
each unchanged.

49 The fact that different fuel may be delivered and combusted gives rise to the
possibility that stack emissions and air quality impacts might be different.
However, whilst the stack emissions will continue, the impact upon ambient air
quality is improved when the plant burns biomass as compared to coal.

50 If the proposed development uses biomass, the vehicular traffic generation

would be modified. Under the 1994 DC, the majority of the fuel for the
development was required to come from the Warkworth or Lemington Mines in
the form of tailings by condition 16. Fuel was also permitted to be brought from
other mines, in that instance by road, with “further approval of Council”. The
Council presumably wanted to retain some control over traffic routes used by
 trucks in that event. Thus, the original development contemplated and allowed
importation of fuel by truck using the road network, subject only to “further
approval”. The requirement to obtain further approval did not involve obtaining
development consent under the EP&A Act. Therefore, the position has not
materially changed.

51 The situation is similar to that in Reading Properties Pty Ltd v Auburn Council
(2007) 158 LGERA 116, where consent was granted to development of a
cinema and retail complex, but a condition required further approval from
council for the occupation of individual shops. Shops subsequently became a
prohibited use, but it was held that the council could nevertheless still grant the
approvals required under the condition. The right to seek further approval was
preserved. The approval was not one consequent on making a statutory
application to modify the consent under the EP&A Act.

52 Similarly, under the Development Consent as it stands and without any

modification, condition 16 always permitted fuel to be brought to the Site by
road. Whilst that fuel would be coal tailings or supplemental fuel and not
biomass, for the purpose of comparing the environmental impact of traffic
generated under the original consent, bringing biomass to the Site by road is
no different to bringing coal to the Site by road. The alternate source of the fuel
in the form of coal tailings and supplemental fuel was not identified in the 1994
DC.

53 Even with the change to the traffic, the expert evidence of the traffic engineers
does not identify any traffic impact that would deprive the Court of jurisdiction
to grant the modification sought. Nor do the experts identify a merit matter that
would persuade the Court to refuse consent.

54 The only other potentially different environmental impact arising from granting
the modification is the change in greenhouse gas CO2 emissions. The
Applicant relies on the evidence of Dr Cowie.

55 Notwithstanding the physical modifications to the plant, it is a relatively simple

matter to reconfigure the conveyor systems to take coal tailings from
Warkworth Mine again in the future. A construction certificate may be required
to reconfigure the conveyors – that is all. The ability to take coal tailings is price
 dependant. If the tailings are too expensive then the Applicant cannot produce
power at a profit and the development would go into care and maintenance
mode. At present tailings are exported overseas at a high price. Given the
provisions of s 4.56 are beneficial and facultative the Court ought to be
positively satisfied that the development will be substantially the same if
modified, as that which was originally approved.

Council’s submissions
56 This state of satisfaction must be based on a correct understanding of the
development that was approved under the original 1994 DC. In the present
case, there were no stamped plans approved under the original consent.
Instead, the original consent required that the development was to be carried
out “generally in accordance with the Amended Environmental Impact
Statement”. It also contained some specific conditions which further defined
the scope of the development, including condition 16 which required that at
least the majority of the fuel burnt at the power plant was to be coal washery
tailings, and condition 17 which specified that supplemental fuel could only be
obtained from the Warkworth Mine.

57 The EIS authoritatively describes the development to which consent was

granted, because condition 1 expressly requires that the development be
carried out “in accordance with” the EIS. This is not a case like Hunter
Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101
NSWLR 1 (HIRE) in which the EIS was not expressly referred to in the
consent, but even where the EIS is not expressly referred to, it is appropriate to
look at an EIS for designated development to determine the scope, nature and
operation of the development. As Preston CJ of LEC said in HIRE at 68:

….An environmental impact statement is not merely information supporting a

development application for designated development, but is a critical part of
the development application necessary to enliven the power of the consent
authority to determine the development application…
…[R]eference may legitimately be made to… [the EIS]… in order to identify
the nature, extent and other features of the development…to which consent
has been granted.
58 When that was done, the Court of Appeal declined to characterise the
development as a quarry (by reference to the works involved in extracting the
 resource) but instead as a quarry “for the purpose of winning material primarily
for railway ballast”.

59 In the present case, the purpose of the development is to dispose of coal

tailings by using them as fuel and disposing of the residue ash for remediating
the mines, not merely to generate power, and to source the fuel from the
adjoining mines, either as a washery product or from existing tailing dams. No
description of the approved development would be complete without reference
to this purpose, and the works (conveyors, pipes etc) to achieve it.

60 The absence of approved plans under the original consent means that the
Court cannot, as it usually would, compare two sets of plans to quickly
ascertain the differences between the two proposals, but this does not remove
or make uncertain any finding under s 4.56(1).

61 Beyond purpose, the Court can compare the two proposals by comparing the
reasonably well-defined characteristics of the original proposal as set out in the
original EIS against the final set of characteristics which the proposal will have
if the modification is granted. Characteristics which can be compared without
the benefit of plans include the type of fuel which will be burned, how the fuel
will be transported to the Site, how fuel will be handled on the Site, whether the
fuel will be processed on the Site and the addition or deletion of pieces of
infrastructure such as the slurry pipelines and thickeners. The Respondent’s
Development Comparison Schedule itemises these changes.

62 The expression “substantially the same” has been held to mean “essentially or
materially having the same essence”: Vacik Pty Ltd v Penrith City Council
[1992] NSWLEC 8 at 4 (Vacik).

63 In Arrage Preston CJ of LEC also endorsed the view expressed by Bignold J in

Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
at 309 [62] that comparing the environmental impacts of the two proposals was
a permissible way of identifying whether two development proposals were
substantially the same.

64 It follows that in the present case, it is relevant for the Court to not only
compare the purpose of the development, or the physical differences between
 the original and modified proposals, but also the context in which the original
consent was granted and the different environmental impacts of each proposal.

65 It was an essential characteristic of the power plant the subject of the original
consent that it involved the burning of coal tailings as fuel. This aspect was
given prominence in the environmental assessment documents lodged with the
original development application. For example, the second paragraph of the
Executive Summary of the Amended EIS states:

The Redbank Project would burn coal washery tailing supplied by the
Warkworth and Lemington Mines as fuel in a pair of fluidised bed combustion
boilers. The Redbank Project would provide an alternative means of
permanent tailing disposal. Electricity generated by the Project would be sold
under long-term contract to Shortland Electricity.
It is notable that in this description, the objective of providing an “alternative
means of permanent tailing disposal” is mentioned before the objective of
generating electricity. It is also notable that the proposal is described
throughout as a “Project” rather than as a power station. This is consistent with
the proposal being an integrated set of activities directed both at disposing of
coal washery tailings and generating electricity, rather than as a power station
per se.

66 This impression is reinforced by the “objectives” of the proposal: see [31]

above. These objectives give prominence to the disposal of coal washery
tailings. Electricity generation is only mentioned in the first objective as a
beneficial means of using the energy from coal tailings rather than as an
objective in its own right. There is further, more detailed discussion of the
mining operations from which the tailings will be sourced, and volume of
available coal tailings at pp 1-5 to 1-6 and 2-2 of the EIS (Exhibit 1).

67 Section 5.0 of the EIS addresses “alternatives to the proposed project”. All of
the alternatives discussed in this section are alternative methods of tailing
disposal, rather than alternative methods of electricity generation. This shows
that the main driver of the proposal was tailings disposal rather than electricity
generation.

68 In physical terms, the transporting of coal washery tailings through slurry

pipelines, and the processes of thickening and dewatering necessary to make
 the tailings suitable for use as fuel formed an important aspect of the original
proposal. These operations are described in the EIS at pp 2-2, 2-9 to 2-13 and
pp 2-24 to 2-28. A schematic including this process can be seen at Figure 2.5-
1 of the EIS. The slurry pipelines were approved as part of the original consent,
notwithstanding that the proponent had not committed to a final route for either
pipeline. Regardless of the route taken, they were large and significant pieces
of infrastructure. The Lemington to Redbank pipeline was proposed to be 6.65
km long, while the Warkworth to Redbank pipeline was proposed to be 1.33 km
long.

69 Neither of these pipelines were ever built because when the fuel source
changed from tailings in slurry form to beneficiated dry tailings (BDT), pipelines
ceased to be a feasible method of transport. The proposal to use tailings from
the Lemington Mine was also deleted as part of the 1997 Modification.
Nevertheless, the pipelines formed part of the original proposal for the
purposes of s 4.56(1).

70 The deletion of the slurry pipelines means that the modified proposal as a
whole will not be located on the same “land” as the original proposal. The
original consent was granted for Part of Lots 1-3 DP 247820 and Lots 4-5 DP
247820 and “adjacent land”. The general size and shape of the approved
power plant site in the original consent roughly corresponds to the land on
which the plant has actually been constructed and on which it is proposed to
operate under the 1997 Modification. However, approval of the slurry pipelines
on “adjacent land” extended the development site for the original consent many
kilometres beyond the boundaries of the current site.

71 The location of the Site relative to its fuel sources is also an important
characteristic. The site of the original proposal was obviously chosen primarily
based on proximity to the Warkworth Mine, both as a source of fuel and the
location to which the ash waste would be returned. Three possible sites were
considered in the EIS, but all of them adjoined the boundary of the Warkworth
Mine as it then was. While other factors were considered in choosing between
these three sites, no sites were considered which were not adjacent to this
boundary. By contrast, no evidence has been adduced that the Site offers any
 advantage over any other site in the north coast forestry region for access to
forest residues. Fuel for the modified proposal is to be sourced from a radius of
up to 300 km, and the destination of waste ash has not been specified.

72 In addition to the slurry pipelines, the original proposal involved thickening and
dewatering units, which were designed to concentrate the coal washery slurry
to at least 65-70% solids by weight, to make it rich enough to sustain
combustion. These pieces of equipment were in fact never installed, due to the
substitution of BDT fuel approved by the 1997 Modification. The removal of
these processes from the Site is shown by a dotted line around them in the
Process Flow Schematic at p 11 of the Statement of Roy Alper and Thor
Hibbler (Exhibit 1). The absence of these important pieces of equipment forms
another point of difference between the original and the modified development.

73 Since the primary fuel for the original proposal came by pipeline from adjacent
mining operations, the original proposal was predicted to have negligible traffic
impacts. The only regular daily trips likely to be generated by the original
proposal were employee vehicles, tradespeople and salespeople, and the
occasional delivery of spare parts. This was predicted to result in 60-85
movements per day, most of them light vehicles. Periodic deliveries of
supplemental fuel were predicted to add another 100 return truck trips per day
during delivery periods, but only for about 40 days each year. By contrast, all of
the biomass proposed to be burnt in the modified power station will need to be
delivered by truck. This is predicted to generate up to 148 truck movements per
day, six days per week, in addition to employee vehicles.

74 That the proposal would provide an environmentally responsible method for

disposing of coal tailings was a factor heavily relied upon by Pearlman CJ in
deciding to approve the original proposal. Her Honour described this as the
“principal reason” for the project when summarising the proponent’s arguments
at p 149. Her Honour also quoted from a NSW Office of Energy Report which
advocated the generation of energy from coal tailings as a means to solve
some of the State’s most serious waste disposal problems, and to avoid the
sterilisation of up to 600 ha of land per annum in tailings dams.
75 In her conclusion, Pearlman CJ carefully considered whether the proposal
should be refused on the grounds of greenhouse gas emissions. Her Honour
accepted that there was national and international concern with the enhanced
greenhouse effect, and with the energy sector’s contribution to it. Her Honour
also accepted that the precautionary principle applied and warranted a
cautious approach. Nevertheless, her Honour decided to approve the proposal
because of its countervailing environmental benefits. These benefits were
described as follows:

(1) Redbank pointed to the beneficial environmental effects of the project.

It will use tailing as fuel, thereby avoiding the detrimental environmental
effects of tailing disposal in dams. It will produce lower emissions of
SO2 and NOx in comparison with the coal-fired power stations which it
is likely to displace.
(2) There are other beneficial effects as well. The project will reduce the
amount of land sterilised by tailing dams. It will convert a waste product
into a usable one. It will permit more efficient use of energy resources
by recovering coal currently discarded in tailing.
(3) All of these benefits, with the possible exception of lower SO2 and NOx
emissions, rely on the fuel source of the plant being coal tailings. They
will all be lost if the fuel source changes to biomass. This is another
important factor which shows that the original proposal and the modified
proposal are not substantially the same development.
76 The physical changes associated with the proposed modification are not
insignificant. In the B&PPS Report Appendix C, the Applicant has presented a
series of drawings in which the proposed modifications are marked up on plans
of the Redbank power plant as built. However, these plans do not accurately
depict the extent of the changes between the original proposal and the
modified proposal, because the proposal was built in accordance with the 1997
Modification. However, the B&PPS plans do show some of the additions to the
physical plant which will be brought about by the proposed modification.

77 The plan titled “Biomass Conversion Project Key Plan” shows that a new two-
lane roadway is to be built around the southern edge of Boiler 2. The roadway
will lead to four new loading bays positioned under two truck unloaders, each
of which will be able to unload two trucks at a time. From there, two new
telestackers will transfer biomass into a stockpile. The easternmost unloader
also enables biomass to be transferred from the trucks into two new moving
 floor bulk loader bins, from where it may be transferred via the existing BDT
Conveyor to the six supplementary fuel silos, which feed directly into the
boilers.

78 Even though the modified proposal will involve a fuel stockpile in the same
location as the original proposal and will use some of the same fuel silos, an
essential difference between the two proposals is that, whereas previously this
stockpile and these silos were only used for supplementary fuel, in the modified
proposal they will be used for the plant’s only fuel while the plant is burning
100% biomass.

Substantially the same development

79 As was observed by the Applicant the provisions of s 4.56 are beneficial and
facultative. Such observation, however, does not mean that the power to
modify exists without constraint. The legislative power to modify is subject to
the specific gateways expressed for each of the relevant powers of amendment
provided for in s 4.56 and through which those who seek to invoke the power
must first proceed: Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA
300 at [54]. In this case, that gateway is that the development must remain
substantially the same once amended as that which was originally approved.

80 The relevant test is that set by the statutory language: Arrage at [18]. Judicial
interpretations of the statutory language of “substantially the same” have
approved of the formula adopted in Vacik at 4 of “essentially or materially or
having the same essence”: see North Sydney Council v Michael Standley &
Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and 481-482. The term
“modify” in this context has been held to mean “to alter without radical
transformation”: Ilenace at 421.

81 As was also usefully observed by Stein J in Vacik at 6, which observations I

adopt as apt for the circumstances of this case:

In approaching the s 102 exercise one should not fall into the trap of saying
that the development was for a certain use – extractive industry – and, as
amended, it will be for precisely the same use and accordingly is substantially
the same development. What is important is that a development, particularly
extractive industry, must be assumed to include the way in which the
development is to be carried out. Otherwise, there may be little purpose in s
102.
82 In its approach to the relevant task the Applicant, in its submissions, sought to
identify the 1994 DC as: “an electricity generating work – a power station - in
which super-heated steam is produced from combusting calorific fuels to turn a
turbine that generates electricity fed into the Singleton to Kurri 132 kVA
transmission line to power at least 100,000 homes.” This identification is drawn
from both the description of the development in the Orders of the Court and the
conditions of consent together with one of the stated objectives of the project in
the EIS as recited at [31] above. For the reasons that follow, I consider that the
identification of the 1994 DC in terms that limits it, or prioritises it, to the
generation of power fails to properly identify the material and essential
elements of the 1994 DC.

83 As has been observed at [33] above, the 1994 DC did not approve plans for
the actual form or layout of the plant. Accordingly, the extent of changes
proposed to the existing form or layout of the existing plant to accommodate
the modification – small or great – are of little assistance in determining
whether the development the subject of the 1994 DC is substantially the same
as the modification, as the form and layout of the plant formed no part of the
1994 DC development.

84 The 1994 DC did identify by words, and to a lesser degree by schematics, the
intent or purpose of the development proposed. Those words are contained in
the EIS, and the 1994 DC required the development to be carried out generally
in accordance with that EIS. It is generally permissible to have regard to an EIS
for the purposes of identifying the scope and nature of the proposed
development: HIRE at [57], [64], [80] and [311].

85 This must be particularly so when the only source for the ascertainment of the
particular features of the development to which the consent refers is the EIS
rather than, as is more often the case, a set of plans.

86 An examination of the EIS and the other referenced documentation indicates

that the development the subject of the 1994 DC was one that was delineated
in broad concept rather than specific detail. As was observed by the Applicant’s
town planner Ms Brown at [34] above.
87 It is therefore necessary to identify the concept that was being approved as the
bounds of the concept or purpose of the development became the benchmarks
or the boundaries within which the development was to be measured or limited.
If a use fell largely within what was envisaged in the broadly construed
concept, it was the subject of the approval, if it did not it was not approved.
Where there were necessary physical facilities that would be required to give
effect to that purpose (which were not identified as part of the development
consent) such facilities would be the subject of further consideration,
investigation and approval at a later date.

88 Upon a consideration of the EIS and the other documentary material expressly
incorporated into the 1994 DC, contrary to what was contended by the
Applicant, the 1994 DC did not have a single purpose that was material or
essential, being the generation of power, but rather two co-dependent
interrelated purposes: being the disposal of coal tailings; and the consequential
generation of electricity from the process of the disposal of the coal tailings.

89 This duality of purpose is illustrated in the express reference of the

identification of the project and its objectives as is recited above at [31]. It may
be that the development was ultimately characterised, for planning purposes,
as a power plant, but the essence or material elements of the development for
which the 1994 DC was granted was not solely (nor materially or essentially)
for that purpose, it was for the treatment and reuse of a mine waste product
and the sale of the by-product (electricity) of that treatment.

90 The interrelationship between these purposes was reinforced by the following

factors as provided for in the 1994 DC:

(1) The location of the Redbank power plant in proximity to the two
nominated mine sources of coal tailings;
(2) The delivery of tailings by slurry pipe from mines on an on-demand
basis rather than stockpiled for later use;
(3) The return of ash to the mine for use in the rehabilitation of the mine
site;
(4) The return of excess water to mine sites;
(5) The sourcing of emergency fuel from nominated mines; and
(6) Stockpiling only of start-up fuel.
 Of note is that from the beginning to the end of the process the only material
brought onto or that left the Site (apart from products that could not be reused
and were therefore waste emissions) that were not received from or returned to
the nominated mines was the electricity generated by the burning of the coal
tailings. The process was designed to be largely a closed system in
conjunction with the mines apart from the electricity and waste products.

91 The conditions that were imposed upon the 1994 DC operated to reinforce this
concept by: linking the fuel source to the nominated mine sites (conditions 16
and 17); and requiring the majority of the fuel to comprise coal washery tailings
(condition 16).

92 The conditions, contrary to the submissions of the Applicant, did not envisage
or allow: the importation of fuel from other mines; the change in fuel or waste
transport to permit significant truck movements; or a change to ROM coal over
coal tailings as a fuel, merely because the reference in conditions 16, 17 and
33 to a further or separate approval of the Council. It was submitted that those
conditions operated to approve a form of development pursuant to Pt 4 of the
EP&A Act such that no further development consent was required to undertake
such development, rather a permission (being something less than
development consent) was required in order to undertake the further
development anticipated by the conditions. The Applicant cited the decision of
Reading as authority in support of this submission. I do not accept this
submission.

93 The terms of the conditions do not approve something for which development
consent was not sought. At the relevant time the 1994 DC was granted
conditions could be imposed pursuant to s 91 of the EP&A Act. In particular, s
91(3)(a) permitted conditions that related to any matter referred to in s 90(1) of
relevance to the development the subject of the consent. It is apparent from the
terms of the EIS that it was no part of the development proposed that fuel was
to be sourced from mines other than those nominated or that trucks were to be
used to transport fuel or waste except in emergencies or that ROM coal was to
be used other than as supplementary fuel. The reference in the conditions to
 the further approval of the Council in that context can only be a confirmation
that the consent is so limited.

94 The reliance upon Reading as authority for the proposition that such words in a
condition do not require the making of a development application is misplaced.
Reading was a case relating to a continuing use arising under s 109B where
consent had been granted subject to a condition that the premises were to be
used for “the storage, distribution and sale of sporting goods only and is not to
be altered for another use without the prior consent of Council”: at [16]. A
number of subsequent applications were made to change the nature of the use
including an application after the relevant LEP was changed to render the use
of the premises for a shop as a prohibited use. As Biscoe J observed at [32]:

The “applications” referred to in condition 3 of the 1997 Consent are not

expressed to be development applications. In my view, an application pursuant
to condition 3 does not necessarily have to be a development application.
However, if it is labelled as a “development” application it is nonetheless an
application under condition 3. I was informed, without dispute, that the subject
application, at least, was made as a development application on the advice of
the council. The 2001 Consent post-dated LEP 2000 which prohibited shops in
this zone. This suggests that it was, and was understood by the parties to be,
an application under condition 3 of the 1997 Consent. The subject application
and the application to which the 2001 Consent related were, in my opinion,
applications under condition 3 of the 1997 Consent even though they were
labelled “development” applications.
95 From this passage I understand his Honour to be concerned that a
development application was unable to be approved by a development
application as the use was at the time prohibited and, therefore, the application
was to be treated as something other than a development application. The
fundamental basis of his Honour’s reasoning was, however, the relationship of
the continuing operation of the development consent under s 109B and the
continuing rights that accrued thereunder. This factor of construction does not
arise in connection with the 1994 DC and is clearly distinguishable from
Reading even if Reading does stand for the proposition for which the Applicant
contends.

96 Accordingly, for the foregoing reasons I also do not accept the submissions of
the Applicant that the 1994 DC inherently envisaged changes of the type
consequential upon the implementation of the Modification Application insofar
as it related to the increase in truck traffic, change in fuel sources or fuel mixes.
 Accordingly, it cannot be said that such changes are not consequences of the
Modification Application.

97 Having regard to the totality of the 1994 DC, for the reasons outlined above,
the disposal of coal tailings was an essential component of the development
the subject of the 1994 DC. The Applicant contends that it is impermissible to
“focus” upon a single element of the development in determining whether it is
substantially the same and that the totality of that approved must be compared
to the totality of that modified. That is so, but this exercise cannot be
undertaken in a numeric “tick a box” approach. The significance of a particular
feature or set of features may alone or in combination be so significant that the
alteration is such that an essential or material component of the development is
so altered that it can no longer be said to be substantially the same
development – this determination will be a matter of fact and degree depending
upon the facts and circumstances in each particular case. Such an exercise is
not focussing on a single element, rather it is identifying from the whole an
element which alone has such importance it is capable of altering the
development to such a degree that it falls outside the jurisdictional limit in s
4.56.

98 In this case, for the reasons I have found, the disposal of coal tailings was a
fundamental element of the proposal, which if altered to a material degree
would have the potential to alter an essential or material component of the
development the subject of the 1994 DC. The replacement of the fuel source of
coal tailings with biomass would be such a change. However, that is not what
the Modification Application proposes in this case. The fundamental question
here is whether the change proposed is so material that the modified
development as proposed in the Modification Application is no longer
substantially the same development.

99 The Applicant has taken great care to ensure that the Modification Application
does not preclude the burning of coal tailings as fuel even though it
acknowledges that at the present time it is not commercially viable for it to do
so. So, it is true to say, as the Applicant does, that it is not seeking to replace
coal tailing with biomass, but rather to provide for an additional fuel source,
 namely biomass. The Redbank power station will remain functionally capable
of burning coal tailings. But is that enough to maintain the Modification
Application as substantially the same as the 1994 DC? The answer must be
no.

100 The 1994 DC had as an essential requirement the burning of coal tailings. The
Modification Application leaves open to the operator an absolute discretion –
as provided for in the proposed condition 16 – as to whether to burn biomass
or coal tailings as fuel. As a consequence, the relationship between the coal
mines and the disposal of coal tailings which was a fundamental aspect of the
1994 DC may be abandoned at the decision of the operator. The inherent
discretion renders the continued capacity to burn coal tailings as fuel as an
illusory maintenance of the essence of the 1994 DC. There being no longer an
obligation to carry out the development to achieve the purpose for which it was
developed there is no continual manifestation of the essence of the
development. Accordingly, notwithstanding the retention of the physical
capacity to burn coal tailings as fuel, the Modification Application in the form
proposed alters the development in such a fundamental manner that it loses
the essential and material relationship to the disposal of coal tailings and the
associated mine operations that it cannot be characterised as being
substantially the same development as the 1994 DC.

Conclusion and orders

101 For the reasons outlined above, I am not satisfied that the development to
which the Modification Application relates is substantially the same
development as the development for which the development was originally
granted. Accordingly, I have no power to grant the approval sought pursuant to
s 4.56 of the EP&A Act and the appeal must be dismissed.

102 The Court orders that:

(1) The Appeal in proceedings 2021/128111 is dismissed;

(2) The exhibits are returned; and
(3) I direct the parties to contact my Associate to make arrangements to
collect the exhibits within 7 days from the date of these orders.
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