The Goulburn Mulwaree Council general manager has taken a swipe at the state planning department, accusing it of opening itself to bias claims in its treatment of a controversial waste to energy plant.
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In a strongly worded letter to the NSW Department of Planning, Industry and Environment (DPIE), Warwick Bennett, criticised the authority for characterising Jerrara Power's $600 million proposal at Bungonia as "an electricity generating" development and effectively, "creating a permissability pathway."
The department has rejected the claims.
The council and residents argue it is 'a waste and resource management recovery facility' under its Local Environmental Plan and is not permitted in the RU2 zone. Further, it maintains the electricity is minimal, with just 30 per cent of the company's income derived from power.
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The project, pegged for 974 Jerrara Road, was proposed in April to process up to 330,000 tonnes of mainly Sydney municipal residual, commercial and industrial waste annually and generate some 30 megawatts of power.
But the council and Bungonia district residents have strongly opposed it and challenged the legality of the company's reliance on the 2007 State Environmental Planning Policy (infrastructure) for permissability.
In mid July, the council wrote to the department stating it had received legal advice that if the 'waste facility' was not permitted in the zone under the LEP, the SEPP could not override this instrument. Mr Bennett said the project was best defined as a 'hazardous and offensive industry,' which was prohibited in the zone.
In late July, the department's deputy secretary David Gainsford advised Mayor Bob Kirk that planners intended to treat the project as 'electricity generating development.' He stated this was not prohibited in the RU2 zone under the council's LEP and was permissable with consent. It was also allowed under the SEPP.
It's this re-characterisation that is inflaming tensions.
Mr Bennett said the department's move raised serious concerns and was "very telling" of its position.
What is the difference other than DPIE appearing to try and minimise meaningful community consultation and input?
- Warick Bennett, council GM
"It makes the council and the community feel that DPIE has pre-determined the matter, as there is real doubt from a legal standpoint about it being classified as electricity generating work rather than a waste or resource recovery facility," he wrote.
"As a direct comparison, the proposed waste to energy project currently being proposed by Veolia at its Woodlawn site, also in the Goulburn Mulwaree LGA, is characterised as a waste or resource recovery facility, more specifically, a waste disposal facility.
"What is the difference other than DPIE appearing to try and minimise meaningful community consultation and input?"
Mr Bennett described the characterisation as "convenient" for the department because it wouldn't have to prove it was prohibited under the LEP
The GM also accused the department of being "inconsistent" because it had previously stated the project's definition couldn't be determined until a development application had been lodged.
"The simple and obvious question is why is DPIE, a government department, openly advocating a position which creates a permissability pathway for the applicant, contrary to the clear nature and use of the proposal?," Mr Bennett wrote.
This mattered because the department's secretary's environmental requirements, underpinning issues the company had to address in an EIS, would not reflect the prime purpose, which he said was waste incineration. As such, the community would not have the chance to consider its true nature.
He called on Mr Gainsford to rethink the characterisation, saying the current definition potentially exposed DPIE to bias, and "provided an avenue of legal appeal for any decision making from here on in."
Mr Bennett copied planning minister, Rob Stokes and Goulburn MP Wendy Tuckerman in to the correspondence.
Department 'in a corner'
Marulan district man and retired lawyer, Charles Mendel, has been assisting the council with its legal argument. He also wrote to the department stating that "it was clear what had occurred."
"DPIE has obviously finally sat down and taken in the substance of the materials we and the council have provided in our previous submissions...and has come to the conclusion that there is a real problem with the permissability of this proposal, which there is," Mr Mendel wrote.
"DPIE has then scrambled...to get itself out out of the corner it painted itself into by belatedly attempting to make an argument that the LEP allows and approval to be issued..."
He has also challenged the permissability of electricity generating works under the LEP and said the department's position "lacked validity and substance" and "reeked of desperation."
The community has also reacted with "white hot anger," according to Jerrara Action Group member, Alan Brady.
"People are aghast that a planning authority that's supposed to be protecting us is acting in such an egregious manner that seems to be favouring Jerrara Power," he told The Post earlier this week.
However the department has rejected any suggestion of favouritism. A spokeswoman said every application was assessed on its merits and this one was in its early stages. "Stringent requirements" would be applied regardless of its classification.
"In the scoping report, the development has been characterised as both 'electricity generating works' and a 'waste or resource management facility', which are permissible with consent in RU2 zones," she said in a statement.
"Where there are inconsistencies, SEPPs will usually override Local Environmental Plans (LEPs) and can prohibit or allow certain types of development in a certain zone. In this case, the Infrastructure SEPP overrides the LEP and either classification is permissible.
"If a development application is lodged, the applicant will need to demonstrate how the proposal meets the RU2 zone objectives."
In further correspondence to the council, Jerrara Power has refused to withdraw its application, which the council had requested.
Managing director Chris Berkefeld said the company would continue to meet its planning requirements.
"(We) remain confident that the community's questions and concerns will be addressed during the development and exhibition of the EIS," he wrote.
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Louise Thrower
If you have a story to tell, drop me a line at louise.thrower@austcommunitymedia.com.au or call 0418 229 678.
If you have a story to tell, drop me a line at louise.thrower@austcommunitymedia.com.au or call 0418 229 678.
