Muscat Developments Pty Ltd trading as Muscat Developments v Wollondilly Shire Council [2021] NSWLEC 1758

Muscat Developments Pty Ltd trading as Muscat Developments v Wollondilly Shire Council [2021] NSWLEC 1758

Development consent was appropriate because, despite prior unlawful filling and contamination, the development had to be assessed on its merits; the expert evidence, Site Audit Statement and Site Audit Report established that the site could be made suitable for the proposed depot use after remediation under enforceable conditions; the remediation and capping did not constitute prohibited re-use of asbestos waste; any necessary POEO Act licensing could be addressed by condition; the visual, heritage, traffic, acoustic and geotechnical impacts were acceptable; Amendment 40, SREP 20 and strategic planning material did not prohibit the permissible depot use or establish unacceptable loss of...

Jurisdiction
Australia
Judgment Date
10 December 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of DA 2019.688.1 / Principal Judgment After Hearing; Court Directed Parties to File Agreed Conditions in Accordance With Reasons
Outcome
Development consent found appropriate subject to conditions; final orders deferred pending agreed conditions.
Legal Topics
['development Application Appeal' 'change of Use From Poultry Farm to Depots' 'unlawfully Imported Fill' 'asbestos Contamination' 'sepp 55 Remediation Satisfaction' 'environment Protection Licence' 'visual Impact and Rural Landscape Character' 'loss of Agricultural Land' 'outer Sydney Orbital Corridor' 'conditions of Development Consent']
['environmental Planning and Assessment' 'land and Environment Court Proceedings' 'contaminated Land and Remediation' 'protection of the Environment Operations' 'heritage and Scenic Landscape Planning'] ['development Application Appeal' 'change of Use From Poultry Farm to Depots' 'unlawfully Imported Fill' 'asbestos Contamination' 'sepp 55 Remediation Satisfaction' 'environment Protection Licence' 'visual Impact and Rural Landscape Character' 'loss of Agricultural Land' 'outer Sydney Orbital Corridor' 'conditions of Development Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of DA 2019.688.1 / Principal Judgment After Hearing; Court Directed Parties to File Agreed Conditions in Accordance With Reasons

Legal Issues

  1. 1 ['Whether the proposed change of use to two depots with sheds, hardstand, earthworks and remediation should be approved despite prior unlawful filling and contamination' 'Whether the Court could be satisfied under cl 7 of State Environmental Planning Policy 55 – Remediation of Land that the contaminated site would be suitable after remediation for the proposed depot use' 'Whether the proposed remediation involved prohibited re-use of asbestos waste under s 144AAB of the Protection of the Environment Operations Act 1997' 'Whether an environment protection licence was required under s 48 of the Protection of the Environment Operations Act 1997 and whether a condition should address licensing' 'Whether the development would unacceptably affect scenic and cultural landscape values, rural character and heritage setting' 'Whether the proposal caused an unacceptable loss or sterilisation of agricultural land' 'Whether the proposal would unacceptably affect the proposed Outer Sydney Orbital corridor' 'Whether public interest and objector concerns warranted refusal']

Ratio Decidendi

Development consent was appropriate because, despite prior unlawful filling and contamination, the development had to be assessed on its merits; the expert evidence, Site Audit Statement and Site Audit Report established that the site could be made suitable for the proposed depot use after remediation under enforceable conditions; the remediation and capping did not constitute prohibited re-use of asbestos waste; any necessary POEO Act licensing could be addressed by condition; the visual, heritage, traffic, acoustic and geotechnical impacts were acceptable; Amendment 40, SREP 20 and strategic planning material did not prohibit the permissible depot use or establish unacceptable loss of...

Court Disposition

Development consent found appropriate subject to conditions; final orders deferred pending agreed conditions.

Orders

  • ['The parties shall within 7 days file an agreed set of conditions in accordance with the reasons for judgment.']