Toner Design Pty Ltd v Newcastle City Council [2012] NSWLEC 248

Toner Design Pty Ltd v Newcastle City Council [2012] NSWLEC 248

The proposed earthworks were substantial works involving excavation, relocation, emplacement, compaction, shaping and capping of contaminated soil. Those works would treat and store contaminated soil within cl 15(c), including the contaminated soil placed in mounds and the existing contaminated soil beneath those mounds, because the works reduced exposure, infiltration and contaminant mobilisation pathways and provided containment. The relevant volumes and disturbed areas exceeded the regulatory thresholds, and cl 37A did not except the earthworks from designated development. Accordingly, the earthworks component of the proposal was designated development.

Jurisdiction
Australia
Judgment Date
07 November 2012
Procedural Posture
Class 1 Appeal; Separate Question / Urgent Ruling on Whether Elements of the Development Application Are Designated Development Requiring an Environmental Impact Statement
Outcome
The separate question was answered in the affirmative: the earthworks component of the proposal is designated development.
Legal Topics
['designated Development' 'contaminated Soil Treatment Works' 'remediation Action Plan' 'on Site Treatment and Storage of Contaminated Soil' 'ancillary Development' 'seniors Living Development']
['environmental and Planning Law' 'land and Environment Court Proceedings'] ['designated Development' 'contaminated Soil Treatment Works' 'remediation Action Plan' 'on Site Treatment and Storage of Contaminated Soil' 'ancillary Development' 'seniors Living Development']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal; Separate Question / Urgent Ruling on Whether Elements of the Development Application Are Designated Development Requiring an Environmental Impact Statement

Legal Issues

  1. 1 ['Whether the earthworks and remediation component of the proposed development constituted designated development under Pt 1 of Sch 3 to the Environmental Planning and Assessment Regulation 2000.' 'Whether the proposed excavation, relocation, compaction, mounding, capping and containment of contaminated soil amounted to treatment and storage of contaminated soil within cl 15(c) of Sch 3 to the Environmental Planning and Assessment Regulation 2000.' 'Whether cl 37A of Sch 3 to the Environmental Planning and Assessment Regulation 2000 excepted the earthworks from designated development as ancillary development.']

Ratio Decidendi

The proposed earthworks were substantial works involving excavation, relocation, emplacement, compaction, shaping and capping of contaminated soil. Those works would treat and store contaminated soil within cl 15(c), including the contaminated soil placed in mounds and the existing contaminated soil beneath those mounds, because the works reduced exposure, infiltration and contaminant mobilisation pathways and provided containment. The relevant volumes and disturbed areas exceeded the regulatory thresholds, and cl 37A did not except the earthworks from designated development. Accordingly, the earthworks component of the proposal was designated development.

Court Disposition

The separate question was answered in the affirmative: the earthworks component of the proposal is designated development.

Orders

  • ['The earthworks component of the proposal before the Court is "designated development".' 'The Court file, including the exhibits before me, is returned to Commissioner Hussey.' 'The costs of the separate question are reserved.']