Warnervale Employment Zone Pty Ltd v Central Coast Council [2020] NSWLEC 1139

Warnervale Employment Zone Pty Ltd v Central Coast Council [2020] NSWLEC 1139

The appeal failed because the application did not satisfy three jurisdictional thresholds: owners consent was required for works on 44 Gindurra Road, Somersby to make vehicular access achievable; the proposal was designated development as a waste management facility or works within Sch 3 cl 32 of the Environmental Planning and Assessment Regulation 2000 and no environmental impact statement accompanied the application; and the Court could not be satisfied under cl 7 of SEPP 55 that the contaminated or potentially contaminated site was suitable for the proposed development or would be remediated. Consent therefore could not be granted.

Jurisdiction
Australia
Judgment Date
26 March 2020
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Principal Judgment After Conciliation Under S 34 of the Land and Environment Court Act 1979 Was Terminated and After Hearing
Outcome
Appeal dismissed and development application refused.
Legal Topics
['development Application for Warehouse and Distribution Centre' 'owners Consent for Works on Adjoining Land' 'designated Development' 'environmental Impact Statement' 'contaminated Land and SEPP 55' 'waste Management Facility or Works' 'vehicular Access' 'leave to Amend Development Application']
['planning and Environment' 'development Assessment' 'land and Environment Court Class 1 Proceedings'] ['development Application for Warehouse and Distribution Centre' 'owners Consent for Works on Adjoining Land' 'designated Development' 'environmental Impact Statement' 'contaminated Land and SEPP 55' 'waste Management Facility or Works' 'vehicular Access' 'leave to Amend Development Application']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Principal Judgment After Conciliation Under S 34 of the Land and Environment Court Act 1979 Was Terminated and After Hearing

Legal Issues

  1. 1 ['Whether owners consent from the owner of 44 Gindurra Road, Somersby was required for works to provide vehicular access to the site.' 'Whether the proposal was designated development as a waste management facility or works requiring an environmental impact statement.' 'Whether the Court could be satisfied under cl 7 of State Environmental Planning Policy No 55—Remediation of Land that the site was suitable or would be remediated for the proposed use.' 'Whether leave should be granted to amend the application during the hearing.' 'Whether the development application contained sufficient information to permit assessment of the proposal.']

Ratio Decidendi

The appeal failed because the application did not satisfy three jurisdictional thresholds: owners consent was required for works on 44 Gindurra Road, Somersby to make vehicular access achievable; the proposal was designated development as a waste management facility or works within Sch 3 cl 32 of the Environmental Planning and Assessment Regulation 2000 and no environmental impact statement accompanied the application; and the Court could not be satisfied under cl 7 of SEPP 55 that the contaminated or potentially contaminated site was suitable for the proposed development or would be remediated. Consent therefore could not be granted.

Court Disposition

Appeal dismissed and development application refused.

Orders

  • ['The appeal is dismissed.' 'Development Application No. 55744/2018 for a warehouse and distribution centre at 40 Gindurra Road Somersby is refused.' 'The exhibits, other than exhibits 1 and A, are returned.']