Statewide Development Pty Limited v Minister for Planning and Da Hui Wu & Ors [2007] NSWLEC 73

Statewide Development Pty Limited v Minister for Planning and Da Hui Wu & Ors [2007] NSWLEC 73

Because consent conditions requiring removal of contamination had not been fully documented as complied with, there remained a low but non-zero risk that potentially contaminated material beneath the Stage 2 basement slab might need to be disturbed. The Owners Corporation should not bear potential contamination-related costs that would not have arisen if the conditions had been fully complied with. A separate $20,000 contribution was therefore appropriate, while the existing $30,000 contribution was adequate for ongoing Environmental Management Plan monitoring. A condition allowing the site auditor to amend the Environmental Management Plan was inappropriate because changes should be...

Jurisdiction
Australia
Judgment Date
24 January 2007
Procedural Posture
Appeal/application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify Conditions of Development Consent / Ex Tempore Judgment After Hearing
Outcome
Appeal upheld; application to modify DA No 298-8-2002 approved in the manner set out in Annexure A.
Legal Topics
['modification of Development Consent Conditions' 'site Contamination' 'environmental Management Plan' 'financial Contribution for Potential Contamination Works' 'occupation and Subdivision Certificates']
['environmental Planning and Assessment' 'development Consent' 'contaminated Land'] ['modification of Development Consent Conditions' 'site Contamination' 'environmental Management Plan' 'financial Contribution for Potential Contamination Works' 'occupation and Subdivision Certificates']

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Procedural Posture

Appeal/application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify Conditions of Development Consent / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether conditions of consent for DA No 298-8-2002 should be modified in relation to contamination of the site.' 'Whether the applicant should provide an additional financial contribution for future disturbance or excavation of the potentially contaminated Stage 2 basement area.' 'Whether the contribution for ongoing monitoring under the Environmental Management Plan should be increased.' 'Whether a condition should permit the site auditor to amend the Environmental Management Plan.' 'Whether disputed conditions should be amended by an overarching condition or individually.']

Ratio Decidendi

Because consent conditions requiring removal of contamination had not been fully documented as complied with, there remained a low but non-zero risk that potentially contaminated material beneath the Stage 2 basement slab might need to be disturbed. The Owners Corporation should not bear potential contamination-related costs that would not have arisen if the conditions had been fully complied with. A separate $20,000 contribution was therefore appropriate, while the existing $30,000 contribution was adequate for ongoing Environmental Management Plan monitoring. A condition allowing the site auditor to amend the Environmental Management Plan was inappropriate because changes should be...

Court Disposition

Appeal upheld; application to modify DA No 298-8-2002 approved in the manner set out in Annexure A.

Orders

  • ['The appeal is upheld.' 'The application to modify DA No 298-8-2002 for the erection of a mixed use development at 10-16 Marquet Street, Rhodes is approved in the manner set out in Annexure A.' 'The exhibits are returned with the exception of exhibit A1.']