NSW Land and Environment Court has ruled that changing the fuel used at Redbank power station from coal to biomass (wood) was not permissible under their existing approval.
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The decision, handed down by Justice Sandra Duggan earlier this month, means the future operations, of the mothballed generator located at Warkworth, remains unknown.
Its owner Verdant Energy would now be required to submit a new development application to make the switch in fuel use at the facility.
Redbank began producing coal powered electricity in 2001. In 2014 it ceased operations and was placed in the hands of the receivers Korda Mentha the station has been in care and maintenance ever since.
Singleton Council received a modification application for the approved Redbank Power Station in October 2020 to allow the use of biomass as the fuel source.
These proceedings in the Land and Environment Court (LEC) were brought by Hunter Development Brokerage Pty Limited on behalf of Verdant Earth Technologies, against the deemed refusal by Singleton Shire Council of an application to modify a development consent to permit biomass to be utilised as a fuel source at the Redbank power plant.
Previously the plant used coal tailings from nearby open cut mines to generate electricity. The tailings were transported to the site by a conveyor 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.
In her judgement Justice Duggan said 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 Development Consent.
She concluded "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."
Commenting the the ruling Singleton Council, General Manager, Jason Linnane said "In May 2021, HDB, on behalf of Verdant Earth Technologies, lodged a Class 1 Appeal in the Land and Environment Court for the deemed refusal of a modification application to allow the use of biomass materials as a fuel source in the Redbank Power Station.
"The action related to a development application for a modification to the Redbank Power Station to allow the use of biomass as a fuel source for the power source.
"Justice Duggan of the Land and Environment Court handed down a judgement determining that the application was not substantially the same development and the appeal was dismissed.
"Council supports and respects the court's decision and is awaiting review of the full judgment."
Nature Conservation Council Chief Executive Chris Gambian said: "The court's decision is very welcome but this project still poses a very live threat to native forests and wildlife.
"It takes decades to grow trees and centuries to grow forests but only seconds to burn them. This proposal will destroy forests and fast-track the extinction of forest species.
"Biomass from native forest timber has no social license in NSW, and never will. The community campaign against this proposal will be relentless - we will not rest until this proposal is withdrawn."