Goulburn Mulwaree Council is taking on the state government's legal authority to issue environmental requirements for a waste to energy facility at Bungonia.
Councillors at their meeting on Thursday authorised general manager Warwick Bennett to launch NSW Land and Environment Court action if Jerrara Power's $600 million plan proceeded any further.
It will argue that the Department of Environment, Planning and Industry has no legal basis to issue Secretary's Environmental Requirements (SEARS) for the development, proposed for 974 Jerrara Road. The company does not agree.
But if successful, the challenge could create a precedent for other regional councils objecting to similar plants designed to handle Sydney's waste.
The council has reinforced its "total opposition" to the company's plan to thermally treat up to 330,000 tonnes of Sydney's residual municipal, commercial and industrial waste per annum. It would be converted into 30 megawatts of electricity and fed to the grid via a 20km transmission line to Goulburn's Eastgrove substation.
This is the crux of the matter for councillors and a large majority of objectors. Some spoke passionately at Thursday's meeting about the impact the plan was having on their lives and their fears for human, animal, environmental, economic and tourism effects.
Mayor Bob Kirk said just 30 per cent of Jerrara Power's income would come from electricity generation and 70pc from waste receipt.
"We believe that the Jerrara Power project is contrary to the provisions of the State Environmental Planning Policy (Infrastructure) and the Goulburn Mulwaree Local Environmental Plan, and therefore SEARS should not be issued," he said in a statement.
"The council is prepared to go to the Land and Environment Court if necessary to fight for our community and prove this.
"This is a pristine rural environment close to Bungonia National Park, and on a school bus route. We cannot see the logic in placing a large industrial plant generating toxic emissions in beautiful regional area like this."
The plant would sit in a RU2 rural landscape zone which prohibits electricity generating works and waste and resource management facilities. But it is relying on a the 2007 SEPP (infrastructure) for consent.
General manager Warwick Bennett said he'd received legal advice on Wednesday and Thursday that the project met neither of the definitions for electricity generating works and waste and resource management facilities under the SEPP.
"We say it is not for the principal purpose (for either of those two things)," he said.
"The principal purpose is to get waste from Sydney and that's where most of their money will be made. We as a council totally oppose the incineration of waste and being inundated with Sydney's rubbish."
Instead, the council argues the development is more appropriately defined as a 'hazardous and offensive industry', both of which are prohibited in the RU2 zone. As such, it would require rezoning to industrial to proceed. Mr Bennett said the council would have to agree to this and it would be difficult in a rural area.
While the community has previously questioned the proposal's permissability, the council obtained legal advice in June that it could not legally stop the State planning department issuing SEARS. This document outlines the environmental issues Jerrara Power must address in an environmental impact study.
Last minute legal opinion
But all this changed in the past few days. Mr Bennett said a lawyer in the area had scrutinised the planning legislation and "formed a very strong opinion" that the proposal was contrary to the SEPP. This advice was provided free of charge. However further legal counsel will be sought.
With elections looming and the council going into caretaker mode on August 5, Mr Bennett will have authority to launch court action if the State issues SEARS. He was meeting with state planners via Zoom on Friday to reiterate the legal stance.
Councillors also endorsed a letter to the Ministers for planning and environment stating that greater Sydney's "inability to effectively manage its waste through recycling and avoidance should not result in developments of this nature in regional NSW."
Moreover, the council will write to Jerrara Power reiterating its opposition and seeking the application's withdrawal. In addition, Goulburn MP Wendy Tuckerman and Hume MP Angus Taylor will be advised of the resolution.
In what Cr Andrew Banfield described as a "plan b and c," the council has issued a long list of issues the company must address if SEARS were issued. These picked up on points raised in community written submissions and in verbal addresses on Thursday night, as well as council planners' concerns.
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They were issued "without prejudice" and included: impacts on human, agricultural, aquatic and environmental health due to waste incineration; the "unnecessary stress and anxiety" the DA was having on the community; its proximity to Bungonia National Park; the site's unsuitability due to transport, flooding and biodiversity concerns; the presence of dioxins in emissions "that would accumulate in soils over time, destroying agricultural businesses"; and the "significant and irreversible" impacts of the transmission line.
They (Jerrara Power) have absolutely misjudged the intelligentsia that lives in and around that area, let alone the wider region.Mayor Bob Kirk
Finally, the council said it was "misleading" for Jerrara Power to state in its scoping report that other waste would come from Goulburn Mulwaree. Mr Bennett said this undertaking was never given. Jerrara Power managing director Chris Berkefeld has previously conceded this point.
The decision came after lengthy debate. Deputy Mayor Peter Walker said the estimated 50 associated truck movements daily were a major concern along Jerrara Road, already heavily used by quarry heavy vehicles.
"We need to put up as many things as possible to make them change their mind," he said.
"...There are still so many questions that are unanswered. The community consultation has been disappointing."
After the meeting, Cr Kirk said the company had chosen the area for its proximity to Sydney, accessibility and affordability and seemingly, low population and expected low level of opposition.
"They have absolutely misjudged the intelligentsia that lives in and around that area, let alone the wider region," he said.
"They (the community) have added their contribution and knowledge on a range of levels, including medical and scientific, and that has enabled us to form such a strong view."
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Jerrara Action Group member Leisha Cox-Barlow told The Post the council's support had been "amazing."
"I'm elated at their work and performance," she said.
"If we can remove the oxygen from it now, I'll be super excited...I think Jerrara Power has a big fight on its hands because if it gets to the next level, we'll take it to the next level too. We won't back down."
Meantime, Mr Berkefeld said while he respected the council's view, Jerrara Power had received "top line" advice that the plant was permissable under the SEPP.
"We have had this reconfirmed today," he said on Friday.
Mr Berkefeld said it was still early in the planning process and the EIS would present much fuller information. He was confident in the technology and that it wouldn't have health and emission impacts.
The company expects the SEARS to be issued by the end of next week.
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