Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 2) [2017] NSWLEC 53

Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 2) [2017] NSWLEC 53

The preferable decision was to approve the materials recycling facility because the use was expressly permissible under cl 11 of Sch 1 to the Liverpool Local Environmental Plan 2008 (NSW), the site and planning history supported giving limited weight to inconsistency with the E2 zone objectives, the project would advance waste recovery objectives, and the traffic, noise, visual, air quality, contamination, ecological, stormwater, sewage and flooding impacts could be reduced to acceptable levels through stringent approval conditions and ongoing monitoring. The applicants were not precluded by issue estoppel, the Tanlane Easement or the Tanlane Undertaking from advancing their contentions,...

Jurisdiction
Australia
Judgment Date
08 May 2017
Procedural Posture
Class 1 Objector Appeals Under S 75 L of the Environmental Planning and Assessment Act 1979 (nsw) Against Approval of a Material Recycling Facility / Principal Judgment Following Merits Review; Approval Proposed Subject to Final Conditions
Outcome
Approval to the project proposed subject to conditions; parties directed to confer and finalise conditions, with liberty to restore if conditions remain contested.
Legal Topics
['objector Appeal' 'part 3 a Major Project Approval' 'materials Recycling Facility' 'compatibility With Existing and Future Locality' 'traffic Impacts' 'noise Impacts' 'visual Impact and Urban Design' 'air Quality' 'contamination and Waste Management' 'aquatic Ecology' 'stormwater, Sewage and Flooding Management' 'issue Estoppel' 'conditions of Approval']
['planning and Environment' 'land and Environment Court Merits Review' 'environmental Assessment' 'development Consent Conditions'] ['objector Appeal' 'part 3 a Major Project Approval' 'materials Recycling Facility' 'compatibility With Existing and Future Locality' 'traffic Impacts' 'noise Impacts' 'visual Impact and Urban Design' 'air Quality' 'contamination and Waste Management' 'aquatic Ecology' 'stormwater, Sewage and Flooding Management' 'issue Estoppel' 'conditions of Approval']

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Procedural Posture

Class 1 Objector Appeals Under S 75 L of the Environmental Planning and Assessment Act 1979 (nsw) Against Approval of a Material Recycling Facility / Principal Judgment Following Merits Review; Approval Proposed Subject to Final Conditions

Legal Issues

  1. 1 ['Whether the proposed materials recycling facility was compatible with existing and future uses of the locality and relevant planning objectives.' 'Whether traffic impacts from additional heavy vehicle movements on Brickmakers Drive and at the proposed unnamed road intersection were acceptable and capable of management.' "Whether operational and road noise impacts, including impacts on Benedict's R3 and RE2 land, were acceptable and subject to reasonable mitigation requirements." 'Whether visual and urban design impacts, including acoustic barriers and landscaping, were acceptable.' 'Whether air quality, geotechnical, contamination and waste management, aquatic ecology, sewage, stormwater and flooding impacts could be adequately managed by conditions.' 'Whether issue estoppel, abuse of process, the Tanlane Easement or the Tanlane Undertaking prevented Benedict or Council from advancing traffic or planning contentions.']

Ratio Decidendi

The preferable decision was to approve the materials recycling facility because the use was expressly permissible under cl 11 of Sch 1 to the Liverpool Local Environmental Plan 2008 (NSW), the site and planning history supported giving limited weight to inconsistency with the E2 zone objectives, the project would advance waste recovery objectives, and the traffic, noise, visual, air quality, contamination, ecological, stormwater, sewage and flooding impacts could be reduced to acceptable levels through stringent approval conditions and ongoing monitoring. The applicants were not precluded by issue estoppel, the Tanlane Easement or the Tanlane Undertaking from advancing their contentions,...

Court Disposition

Approval to the project proposed subject to conditions; parties directed to confer and finalise conditions, with liberty to restore if conditions remain contested.

Orders

  • ["The parties are directed to confer and finalise conditions of consent reflecting the Court's findings and provide final conditions to the Registrar by 22 May 2017." 'In the event that the parties are unable to agree on all matters, liberty is granted to restore the matter for further short hearing in respect of...