Sell & Parker Pty Ltd v Minister for Planning and Public Spaces [2021] NSWLEC 1563

Sell & Parker Pty Ltd v Minister for Planning and Public Spaces [2021] NSWLEC 1563

Condition B35D was imposed to resolve the inconsistency between the MOD 3 site plan and the stockpile plan, not to defer assessment of fire safety issues. Construing it as permitting a later fire safety reassessment would risk rendering the condition ultra vires or the modification invalid. The Final Plan was consistent with the MOD 3 site plan and fire services plan, adequately showed combustible stockpiles, circulation and access, and sufficiently indicated areas for non-combustible material. The FRNSW Guideline did not require further particularisation of non-combustible stockpiles, and the evidence did not justify requiring maximum heights for combustible stockpiles rather than...

Jurisdiction
Australia
Judgment Date
28 September 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(2)(a) of the Environmental Planning and Assessment Act 1979 / Appeal From the Deemed Refusal of the Secretary to Be Satisfied With the Final Stockpile Plan Required by Condition B35 D of State Significant Development Consent 5041
Outcome
The appeal was upheld and the Court was satisfied with the Final Stockpile Plan Revision 02 dated 28 July 2021 for the purposes of condition B35D of State Significant Development Consent 5041.
Legal Topics
['state Significant Development' 'modification of Development Consent' 'conditions Requiring Satisfaction of Decision Maker' 'interpretation of Development Consent Conditions' 'stockpile Plan for Waste Metal Recycling Facility' 'fire Safety Orders' 'joinder of Party']
['planning and Environment Law' 'development Consent' 'fire Safety Regulation'] ['state Significant Development' 'modification of Development Consent' 'conditions Requiring Satisfaction of Decision Maker' 'interpretation of Development Consent Conditions' 'stockpile Plan for Waste Metal Recycling Facility' 'fire Safety Orders' 'joinder of Party']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(2)(a) of the Environmental Planning and Assessment Act 1979 / Appeal From the Deemed Refusal of the Secretary to Be Satisfied With the Final Stockpile Plan Required by Condition B35 D of State Significant Development Consent 5041

Legal Issues

  1. 1 ['Whether condition B35D permitted or required a deferred assessment or reassessment of fire safety issues for the site.' 'Whether condition B35D should be interpreted as requiring a Final Stockpile Plan consistent with the MOD 3 site plan and MOD 3 fire services plan.' 'Whether the Final Stockpile Plan Revision 02 dated 28 July 2021 was satisfactory for the purposes of condition B35D.' 'Whether the FRNSW Guideline required additional particularisation of non-combustible stockpiles or maximum heights for combustible stockpiles.' 'Whether FRNSW should be joined to the proceedings.']

Ratio Decidendi

Condition B35D was imposed to resolve the inconsistency between the MOD 3 site plan and the stockpile plan, not to defer assessment of fire safety issues. Construing it as permitting a later fire safety reassessment would risk rendering the condition ultra vires or the modification invalid. The Final Plan was consistent with the MOD 3 site plan and fire services plan, adequately showed combustible stockpiles, circulation and access, and sufficiently indicated areas for non-combustible material. The FRNSW Guideline did not require further particularisation of non-combustible stockpiles, and the evidence did not justify requiring maximum heights for combustible stockpiles rather than...

Court Disposition

The appeal was upheld and the Court was satisfied with the Final Stockpile Plan Revision 02 dated 28 July 2021 for the purposes of condition B35D of State Significant Development Consent 5041.

Orders

  • ['The appeal is upheld.' 'The Court is satisfied with the Final Stockpile Plan Revision 02 dated 28 July 2021, attached to the Amended Class 1 Application, for the purposes of condition B35D of State Significant Development Consent 5041.' 'The exhibits are returned, except for Exhibits D and E.']