State planners have flatly rejected Goulburn Mulwaree Council's bid to stop the issuing of environmental requirements for a controversial waste to energy plant at Bungonia.
Council general manager Warwick Bennett has accused the department of "arrogance" following a zoom meeting with Department of Planning, Industry and Environment (DPIE) representatives on Monday.
Mayor Bob Kirk also sat in the meeting, which argued the council's case that the state did not have legal authority to issue secretary's environmental requirements (SEARS) for Jerrara Power's $600 million proposal.
The council has taken up the fight about its permissability on the community's behalf.
"The sad part about it was that DPIE wouldn't listen to our concerns and dismissed them off-hand in an arrogant way," Mr Bennett said.
"They have told us our position was unrealistic and there was no way we would obtain a barrister to support our argument."
The representatives declined a council request to delay issuing of the SEARS for three weeks to enable further legal advice.
Planning representatives said they would issue them this week, paving the way for Jerrara Power to prepare an environmental impact study for public exhibition. However SEARS haven't been issued yet and the council is determined to stop the process.
It is seeking a Land and Environment Court declaration that the department's issuing of SEARS is invalid. Mr Bennett said the council had dropped the idea of an injunction as it carried a higher cost risk to ratepayers. A declaration would take longer but achieve the same outcome with less financial risk.
It will argue that the department is ignoring its own legislation in granting a permissability pathway.
"The key issue is section 4.38(2) which states that state significant development consent cannot be granted if the development is wholly prohibited by an environmental planning instrument," Mr Bennett said.
"That planning instrument is our LEP and hazardous and offensive industry is prohibited in a rural zone."
However the department maintained that the LEP was overridden by the 2007 State Environmental Planning Policy (Infrastructure), under which consent could be granted for the waste to energy plant.
Retired lawyer and Marulan man Charles Mendel has been providing legal guidance, commercial and strategic advice to the council.
In a submission to the department following Monday's meeting, Mr Mendel stated there were "problems in the department's chain of reasoning.
"The DPIE cannot ignore the provisions of the very Act which governs its operations and which sets out the law - in this case the legal requirement prohibiting permissability for the development," he stated.
"...DPIE should end this process now and the angst which it is imposing on the community, rather than continuing to permit the applicant to engage in a futile and misconceived approval pathway, when the EPAA prohibits the proposal."
The council maintains that the project is better characterised as hazardous and offensive industry, which is prohibited in the rural zone in which the site at 974 Jerrara Road sits.
Mr Mendel wrote that the department was wasting public resources by continuing down its present path.
While the council has relied on Mr Mendel's guidance, Mr Bennett said he'd be speaking to a barrister on Friday.
"We were told by the department on Monday that they had never been legally challenged on the issuing of SEARS and we shouldn't start now. Instead (they suggested) we should challenge (permissability) at the other end of the process," Mr Bennett said.
"But.. I don't think it's reasonable to put the community through so much stress and anxiety, which will have a great impact on their mental health.
"The EIS could take 18 months to two years so for the department to have that attitude is arrogant.
"When you buy a property you do your due diligence. You look up the LEP and see that industrial developments are prohibited in the rural zone, so for a government department to come in and even consider a large incinerator next door to rural properties is pretty tough for people to take.
"Nobody would step back and ignore it and it's our role as a council to challenge it on the community's behalf because it is simply wrong."
Jerrara Power managing director Chris Berkefeld said this week he was confident in the company's legal advice, which he had reconfirmed, that the project had a permissability pathway.
He also rejected suggestions he hadn't done due diligence on the land or the plant's technology.
"There will always be people for and against and we will keep marching through so everyone can be fully informed."
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