Sell & Parker Pty Ltd v Minister for Planning (No 2) [2023] NSWLEC 1661

Sell & Parker Pty Ltd v Minister for Planning (No 2) [2023] NSWLEC 1661

The appropriate conditions were those that best reflected the earlier findings in Sell and Parker (No 1), the evidence and policies referred to in the proceedings, and practical implementation requirements. On that basis, the Court resolved the disputed drafting points, including permitting delivery truck movements in specified shoulder periods, adopting the first respondent's timing for finalising noise wall design, requiring Planning Secretary endorsement where appropriate, using NPfI-based noise assessment and monitoring references with practical qualifications, requiring an ONMP with a TARP addressing cessation of non-compliant activities, and including suitable flood and surface...

Jurisdiction
Australia
Judgment Date
08 November 2023
Procedural Posture
Class 1 Appeal Concerning State Significant Development Application SSD 10396 for Increased Throughput to a Metal Recovery and Recycling Facility / On the Papers; Determination of Disputed Conditions of Consent Following Sell & Parker Pty Ltd V Minister for Planning [2023] NSWLEC 1523
Outcome
Appeal upheld and State significant development application SSD-10396 determined by the grant of consent subject to conditions.
Legal Topics
['state Significant Development' 'conditions of Consent' 'operational Hours' 'noise Impacts' 'flood Management' 'water Management']
['planning and Environment Law' 'development Consent'] ['state Significant Development' 'conditions of Consent' 'operational Hours' 'noise Impacts' 'flood Management' 'water Management']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning State Significant Development Application SSD 10396 for Increased Throughput to a Metal Recovery and Recycling Facility / On the Papers; Determination of Disputed Conditions of Consent Following Sell & Parker Pty Ltd V Minister for Planning [2023] NSWLEC 1523

Legal Issues

  1. 1 ['Whether movement of materials outside buildings between 6am and 7am and between 8pm and 9pm should include delivery trucks as well as front-end loaders.' 'How conditions for the design and construction of noise walls should be framed, including Planning Secretary involvement and flood-flow performance requirements.' 'How operational noise limits and monitoring requirements should be expressed, including assessment height, use of the NSW Environment Protection Authority Noise Policy for Industry, and procedures where access to receivers is unavailable.' 'What should be required in an Operational Noise Management Plan, including whether a trigger action response plan should address cessation of non-compliant noise-generating activities.' 'How flood management, water management, and review conditions should be framed.']

Ratio Decidendi

The appropriate conditions were those that best reflected the earlier findings in Sell and Parker (No 1), the evidence and policies referred to in the proceedings, and practical implementation requirements. On that basis, the Court resolved the disputed drafting points, including permitting delivery truck movements in specified shoulder periods, adopting the first respondent's timing for finalising noise wall design, requiring Planning Secretary endorsement where appropriate, using NPfI-based noise assessment and monitoring references with practical qualifications, requiring an ONMP with a TARP addressing cessation of non-compliant activities, and including suitable flood and surface...

Court Disposition

Appeal upheld and State significant development application SSD-10396 determined by the grant of consent subject to conditions.

Orders

  • ['The appeal is upheld.' 'State significant development application SSD-10396, for increased throughput to the metal recovery and recycling facility at 23-43 and 45 Tattersall Road, Kings Park, is determined by the grant of consent subject to the conditions in Annexure A.' 'Exhibits A, B and C are retained. The rest...