Muscat Developments Pty Ltd v Wollondilly Shire Council [2022] NSWLEC 1663

Muscat Developments Pty Ltd v Wollondilly Shire Council [2022] NSWLEC 1663

The appeal was upheld because the Court was satisfied, preferring the Applicant's expert contamination evidence, that the DSI, RAP and SAS demonstrated the site could be remediated and made suitable for an equestrian centre and roads, with conditions requiring remediation and a Section A2 Site Audit Statement before any occupation certificate. The onsite management of contaminated material was not prohibited re-use or recycling of asbestos waste under the POEO Act. The Court considered the earthworks matters required by cl 7.5 of LEP 2011 and was satisfied the proposed earthworks would not have unacceptable impacts. The DCP farm building controls did not apply to the equestrian centre,...

Jurisdiction
Australia
Judgment Date
01 December 2022
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 Hearing; Amended Application Allowed and Appeal Determined
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application for Equestrian Centre and Road Use' 'contamination and Remediation' 're Use and Recycling of Asbestos Waste' 'earthworks and Excavation' 'scale of Development']
['environmental and Planning Law' 'development Consent' 'contaminated Land'] ['development Application for Equestrian Centre and Road Use' 'contamination and Remediation' 're Use and Recycling of Asbestos Waste' 'earthworks and Excavation' 'scale of Development']

Case Brief

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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 Hearing; Amended Application Allowed and Appeal Determined

Legal Issues

  1. 1 ['Whether the Court could be satisfied under cl 4.6(1)(c) of State Environmental Planning Policy (Resilience and Hazards) 2021 that the contaminated land would be remediated before use for the proposed development' 'Whether the proposal involved re-use or recycling of asbestos waste prohibited by s 144AAB of the Protection of the Environment Operations Act 1997' 'Whether the proposed excavation and earthworks satisfied cl 7.5 of the Wollondilly Local Environmental Plan 2011' 'Whether the scale of the proposed equestrian centre was justified and appropriate for a maximum of 40 horses' 'Whether the proposal was in the public interest']

Ratio Decidendi

The appeal was upheld because the Court was satisfied, preferring the Applicant's expert contamination evidence, that the DSI, RAP and SAS demonstrated the site could be remediated and made suitable for an equestrian centre and roads, with conditions requiring remediation and a Section A2 Site Audit Statement before any occupation certificate. The onsite management of contaminated material was not prohibited re-use or recycling of asbestos waste under the POEO Act. The Court considered the earthworks matters required by cl 7.5 of LEP 2011 and was satisfied the proposed earthworks would not have unacceptable impacts. The DCP farm building controls did not apply to the equestrian centre,...

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The Applicant is granted leave to amend the application to rely on the documents listed under condition B(2) of the conditions of consent at Annexure A.' "The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to s 8.15(3) of the...