CSR Building Products Ltd v Fairfield City Council

Catchwords: APPEAL – development application for subdivision – development application for storage facility – no contentions remaining concerning the storage facility application – issue in subdivision concerning isolation of contaminated land – whether deferred commencement condition should be imposed

Legislation Cited: Contaminated Land Management Act 1997
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, s 39
Protection of the Environment Operations Act 1997, ss 45, 54, 83
Fairfield Local Environmental Plan 2013
State Environmental Planning Policy (Industry and Employment) 2021, Ch 2, ss 2.9, 2.20, 2.21, 2.23, 2.24
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited: CSR Building Products Ltd v Fairfield City Council [2015] NSWLEC 1284
HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135
Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Kulin Holdings Pty Ltd v Penrith City Council [1999] NSWLEC 157
Parrott v Kiama [2004] NSWLEC 77
TL & TL Tradings Pty Ltd v City of Parramatta Council [2019] NSWLEC 16

Texts Cited: Western Sydney Employment Area – Fairfield Development Control Plan 2016

Category: Principal judgment

Parties: CSR Building Products Ltd (Applicant)
Fairfield City Council (Respondent)

Representation: Counsel:
M Hall SC (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Dentons Australia (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2024/00046112, 2024/00046123

Publication restriction: Nil

Judgment

1. COMMISSIONER: In Horsley Park, an old Brickworks facility has been redeveloped for an industrial precinct, following the grant of development consent in 2015. The initial subdivision was for 14 lots for employment purposes and a conservation lot, with a U-shaped public road now known as Johnston Crescent providing access to the lots. The subdivision has largely been carried out and industrial uses have been established on many of the lots. One of the remaining undeveloped lots, Lot 306 DP 1275011 (Lot 306), contains two separate parcels within the precinct. CSR Building Products Limited (CSR) seeks development consent for the subdivision of that lot so that each parcel is a separate lot, and for the construction of a storage premises on one of the parcels. CSR lodged a development application for the storage premises on 5 October 2022, which was refused by Fairfield City Council (the Council) on 19 December 2023. Proceedings 2024/46112 are an appeal against that decision. CSR lodged a development application for the subdivision on 3 November 2023. Following the expiry of the period after which a development application is deemed to be refused, CSR appealed against that decision in proceedings 2024/46123. Both appeals are lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The development application for the proposed storage premises (storage premises DA) includes the construction of an external hardstand area, onsite shed, carpark, and amenities building, for use as an open storage premises for building materials on the part of Lot 306 that is to the west of Johnston Crescent. The parcel of land on which it is proposed is a former non-putrescible landfill site which is the subject of an Environmental Protection Licence (EPL), number 123. In relation to the storage premises DA, the Council no longer raises any contention on which it says the application should be refused. Nonetheless, I am required to carry out an assessment under s 4.15 of the EPA Act to determine if it is lawful and appropriate to grant consent.

3. The development application for the subdivision of land (subdivision DA) seeks consent for a Torrens Title subdivision of Lot 306 into two allotments, in which the subdivided lots reflect the existing parts of Lot 306. The subdivision proposes that one lot, proposed Lot 400, contains the landfill site and the other lot, proposed Lot 401, contains a developable area for industrial development as well as a conservation area. The Council opposes the subdivision of the land on the basis that it would sever the constrained landfill site from the developable land, which is contrary to the orderly and economic use of the land. The Council says that this can be resolved through the imposition of a deferred commencement condition on the subdivision consent, which requires the occupation certificate with respect to the storage premises DA to be issued prior to the commencement of the subdivision consent. CSR opposes the imposition of such a condition.

4. For the reasons that are set out below, I have determined that it is appropriate to grant development consent with respect to both the storage premises DA and the subdivision DA. I am also satisfied that the deferred commencement condition is not required.

The site and the locality

5. The site is legally described as Lot 306 in DP 1275011 and is known as 6 Johnson Crescent, Horsley Park. The site is in two parts, with a total area of 212,200m2. An aerial image showing Lot 306 is in Figure 1.

6. The part of Lot 306 to the west of Johnston Crescent has an area of 55,200m2, and an eastern street frontage of 220m. This is the former landfill site the subject of the EPL. It currently contains a grassed bund and a perimeter biofiltration trench, with a drainage swale and stormwater drainage system, constructed pursuant to a development consent granted in 2017 (437.1/2017). The EPL requires that the land be managed in accordance with the Landfill Monitoring Plan dated 29 June 2021, although this has now been superseded by a Landfill Monitoring Plan dated 19 August 2024 (the LMP). The LMP is endorsed by a NSW accredited site auditor (see Ex K). Whilst a development consent was granted in 2020 for a gas collection and flare system (20.1/2020), this consent has not been commenced.

7. The part of Lot 306 that is to the east of Johnston Crescent has a total area of 157,000m2, and comprises both a cleared area of developable land that is 41,900m2 and an area of 115,100m2 that is vegetated which is the subject of a biodiversity stewardship agreement (environmental conservation area).

8. The immediate locality is characterised by industrial development, although there is vacant land to the west of the former landfill part of Lot 306. Large lot residential properties are located to the southeast of the site, in land zoned RU4 Primary Production Small Lots pursuant to the Fairfield Local Environmental Plan 2013 (FLEP).

The planning framework

9. The site and surrounding land are identified as land within the Western Sydney Employment Area, to which Ch 2 of the State Environmental Planning Policy (Industry and Employment) 2021 (SEPP IE) applies. The site is within Precinct 8, which is known as the South of Sydney Catchment Authority Warragamba Pipelines.

10. Pursuant to s 2.9 of the SEPP IE, the site is within the IN1 General Industrial zone, with the environmental conservation area zoned C2 Environmental Conservation. Development for the purpose of storage premises is permissible with consent in the IN1 zone pursuant to Ch 2 of the SEPP IE.

11. Section 2.20 concerns the height of buildings, and provides that:

2.20 Height of buildings

The consent authority must not grant consent to development on land to which this Chapter applies unless it is satisfied that—

(a) building heights will not adversely impact on the amenity of adjacent residential areas, and

(b) site topography has been taken into consideration.

12. There are no adjacent residential areas, given that none of the areas adjacent to the former landfill site are zoned residential. The site topography for the storage premises DA is considered in the civil plans and the landscape plans.

13. Section 2.21 requires adequate arrangements for rainwater harvesting, but has no operation in circumstances where the Secretary has not approved a rainwater harvesting scheme.

14. Section 2.23 concerns development involving the subdivision of land, and provides the following:

2.23 Development involving subdivision

The consent authority must not grant consent to the carrying out of development involving the subdivision of land unless it has considered the following—

(a) the implications of the fragmentation of large lots of land,

(b) whether the subdivision will affect the supply of land for employment purposes,

(c) whether the subdivision will preclude other lots of land to which this Chapter applies from having reasonable access to roads and services.

15. Section 2.24 concerns public utility infrastructure, and prevents the grant of consent unless there is satisfaction that “any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required.” The report dated 20 September 2024 and attachments (Ex L Tab 7) confirms that this infrastructure will be available when required, in relation to both developments.

16. The Western Sydney Employment Area – Fairfield Development Control Plan 2016 (FDCP) is a precinct specific development control plan that applies to the site. Section 3.3 concerns cut and fill, and although the proposed storage premises DA includes batter slopes and finished levels greater than the DCP controls, no issue is raised by the Council in that regard nor is there any impact identified, and the proposed development complies with the objectives of those standards. Further, Section 4.1 concerns subdivision and Section 4.2 concerns landscape design, and the subdivision DA and the storage premises DA comply with the relevant controls therein.

The objector submissions

17. The owner of the adjoining property to the west of the former landfill site, has made written submissions to the Council and also attended the site view, at which Mr Lalich, solicitor, spoke on their behalf. They have raised issues concerning the migration of landfill gasses, relationship with existing development consents and the EPL, insufficient stormwater details to ensure that there is adequate stormwater drainage, and off-site contamination impacts. In their written submission, they also raised issues concerning noise and traffic impacts, visual impact and non-compliant batter slopes.

18. None of the issues raised by the objector warrant refusal of either of the development applications. The storage premises DA does not cause any unacceptable noise, traffic or visual impacts, particularly in light of its context in an industrial precinct and the low frequency of truck movements it will generate. Although the batter slopes do not comply with the FDCP, the landscaping and fencing will mitigate any visual impact. Further, the parties agree, and I accept, that the stormwater management system is adequate to deal with stormwater runoff from the site, and the management of the site in accordance with the LMP ensures that there is no risk of off-site contamination impacts.

The EPA position

19. The licensing authority for the EPL is the Environment Protection Authority (EPA) who is also responsible for managing compliance with the EPL conditions and has enforcement powers under the Protection of the Environment Operations Act 1997 (POEO Act).

20. In relation to the storage premises DA, the EPA on 8 December 2022 communicated that during hardstand construction, environmental concerns will be regulated under the EPL by the EPA. The EPA confirmed that site contamination is currently managed under the EPL and the Contaminated Land Management Act 1997 (Ex 8, Tab 15). In a further letter dated 14 September 2023, the EPA made a number of comments concerning the storage premises DA, as follows:

“1. The clay liner capping layer that covers the landfill must not be disturbed during construction.

2. Exhumation of any waste material is prohibited without prior EPA consent.

3. The flexible pavement hardstand must be constructed in such a way as to prevent the likelihood of differential settlement of the landfill and/or clay liner capping layer.

4. The development, both in construction and operation, must not damage or inhibit access to any of the leachate/gas monitoring wells located on site.

5. Other than the driveway, the development, both in construction and operation, must not damage or negatively effect the operation of the biofiltration trench.

6. The construction and operation of the driveway must be done in such a way as to ensure that the functionality of the biofiltration trench is maintained and ensure that no sedimentation is allowed to enter into the trench.

7. A landfill management plan and site audit statement (provided by a NSW accredited Site Auditor) is provided to Council and EPA at the completion of the development. The management plan and Site Audit Statement must consider any impacts or changes to the management of the site due to the construction of the truck hardstand area and its operation.”

21. The expert evidence, summarised below, is that each of these requirements can be met.

22. In relation to the subdivision DA, the EPA communicated its position on 15 November 2023, in which it states that the EPA raises no objections to the approval of the application. It also made the following comment, requiring the registration of a public positive covenant on the former landfill site:

“Public Positive Covenant

It is important that responsibility for the ongoing management and monitoring of the landfill is not compromised if, at some point in the future, ownership of Lot 302 DP1244594 changes from CSR to a new entity. Placing a Public Positive Covenant (PPC) on the land title would provide additional certainty that any future landowners would be aware of their obligation to adhere to the requirements of the LMP.

The EPA intends on placing a condition on the licence requiring a PPC to be put in place, as permitted under Section 74 of the POEO Act, before it is surrendered.

The PPC would only be applicable to the former landfill site (Part Lot West of Johnston Crescent) as identified in Attachment 1.”

23. On 4 April 2025, following the hearing, the EPA varied the EPL in anticipation of the EPL being surrendered in the future. The variation includes requirements for a payment of a bond and the creation of a public positive covenant.

The expert evidence

Environmental Management

24. Expert evidence on the environmental management issues concerning the storage premises DA, including contamination management, was given in an expert report by Mr Ashton Hincksman, an engineer engaged by CSR. The evidence of Mr Hincksman is that the proposed development will not impact any of the current environmental and monitoring controls required under the EPL, and that each of the environmental requirements set out in the EPA’s letter of 14 September 2023 can be met in the carrying out of the proposed development.

25. Mr Hincksman’s evidence is that the addition of a hardstand layer across sections of the capping layer will “improve overall containment of the landfill through reduction of potential infiltration of surface water and protection of the underlying clay capping layer”. He also points out that the location of all leachate/gas monitoring wells is outside of the footprint of the development, and that the biofiltration trench will be maintained and protected in both the construction process and the final development.

Geotechnical engineering

26. Expert evidence on the geotechnical issues associated with the storage premises DA was given in a joint report by Mr Chris Kline, an engineer engaged by CSR, and Mr Ralph Erni, a geotechnical engineer engaged by the Council. Mr Kline and Mr Erni agree that, based on the Report on Geotechnical Assessment and Pavement Thickness Design, dated 26 February 2025 and the Memorandum M.003 Hardstand Monitoring and Maintenance Plan dated 26 February 2025, the pavement design is acceptable and the monitoring and maintenance plan is appropriate. They also agree that surface and subsurface drainage provision has also been included.

27. Mr Kline and Mr Erni agree that the proposed storage premises is suitable from a geotechnical perspective where appropriate ongoing inspection and maintenance is undertaken, and subject to limiting truck movements to 25 per working day.

Town Planning

28. Expert evidence on the town planning issues was given in a joint report, and in oral evidence, by Mr Jeff Mead, a town planner engaged by CSR, and Mr Liam Hawke, a town planner employed by the Council. Their evidence concerned whether the subdivision DA results in an outcome that is consistent with the orderly and economic use of land.

29. Mr Mead and Mr Hawke agree that the proposed subdivision is orderly from a subdivision design perspective. They agree that the proposed lot sizes, shapes and subdivision pattern “are appropriate and compatible with the existing pattern of subdivision in the locality” (Ex 6, p.4).

30. However, Mr Mead and Mr Hawke disagree as to whether the ongoing costs of monitoring and maintaining the former landfill area of the site ought to be detached from the developable area of the site to the east. Whereas Mr Mead opines that there is an economic use of the former landfill site, such that it ought not remain attached to another developable parcel of land, Mr Hawke instead opines that the former landfill site would be isolated and at risk of no longer being managed. Their evidence is outlined in more detail below.

Each of the contentions concerning the storage premises have been resolved

31. As a result of the expert evidence on environmental management and geotechnical engineering, each of the contentions concerning the storage premises DA raised by the Council in its Amended Statement of Facts and Contentions filed on 12 February 2025 has been resolved.

Pavement and Driveway Design

32. The Council raised a contention that the proposed pavement and driveway are unacceptable and inappropriate for the proposed use (contention 1). It raised issues concerning whether there would be pavement failure and subgrade degradation, conflicts with the biofiltration trench and resultant leakages.

33. However, in the joint report of Mr Kline and Mr Erni, they agree that the pavement design is acceptable and will not result in failure and subgrade degradation, as long as the proposed monitoring and maintenance plan is in place. They also agree that there is adequate provision for surface and subsurface drainage.

34. The evidence of Mr Hincksman is that there is no conflict between the biofiltration trench and the driveway, for the reasons set out in his expert report. This evidence is not challenged or contradicted in any way.

35. For those reasons, none of the matters raised in the contention concerning pavement and driveway design warrant refusal of the storage premises DA.

Inadequate information on Geotechnical Design

36. The Council also raised a contention, in its Amended Statement of Facts and Contentions, that there is inadequate information concerning geotechnical engineering (contention 2). This contention raises issues concerning batter instability, additional loading by the fill platform, ground surface movement, subgrade strength and impact on the capping layer.

37. Each of the matters raised in this contention have been addressed by the geotechnical engineers in their joint report dated 6 March 2025. Mr Kline and Mr Erni agree that the Stability Assessment Report dated 28 February 2025 demonstrates that the batters will be stable post-construction, that the fill platform will be acceptable and stable subject to the monitoring and maintenance plan, and that the subgrade strength is satisfactory.

38. Accordingly, none of the matters raised in this contention warrant refusal of the storage premises DA.

Contrary to restriction on title

39. The Council raises a contention that the storage premises DA should be refused because it would be inconsistent with the restriction registered on the title of Lot 306 (contention 3). That restriction states that:

“No development or land use shall be permitted for any purpose that is inconsistent with meeting the objectives of any environmental protection license that applies to the land denoted (LFR) on the plan”.

40. The land denoted LFR is the former landfill site. The EPA has varied the EPL to incorporate terms requiring ongoing management in accordance with the LMP and terms suitable for the eventual surrender of the EPL, including the creation of a public positive covenant and the payment of a bond (Ex T, Tab 14). In addition, the evidence of Mr Hincksman is that the storage premises DA will not affect the management of the land in accordance with the LMP.

41. Accordingly, the restriction on title is not a basis upon which to refuse the storage premises DA.

Absence of concurrence from the EPA

42. The fourth contention raised by the Council in its Amended Statement of Facts and Contentions is that there is no concurrence from the EPA with respect to the storage premises DA.

43. However, CSR points out that the operation of storage premises is not a licensed activity under the POEO Act, and concurrence of the EPA is not in fact required. Further, the matters raised by the EPA in its letter dated 14 September 2023 have been addressed by the expert evidence, and none of those matters raise an issue that would warrant refusal of the storage premises DA.

44. Even if concurrence of the EPA was required, I can proceed to grant development consent pursuant to s 39(6) of the Land and Environment Court Act 1979.

45. Therefore, this contention does not warrant refusal of the storage premises DA.

Does the subdivision result in the orderly and economic use of land?

46. The subdivision DA seeks the subdivision of Lot 306 into Lot 400 and 401, representing what is currently the separate parts of Lot 306. This is shown in Figure 2.

47. The Council raises a single contention with respect to the subdivision DA: that the subdivision DA should be refused as it will result in the isolation of the former landfill site from the developable parcel of land that forms part of Lot 306. The Council contends that the subdivision will be contrary to one of the objects of the EPA Act, for the “orderly and economic use and development of land”.

48. As described above at [6] to [7], Lot 306 comprises the former landfill site, the land zoned C2 Environmental Conservation and developable land zoned IN1 General Industrial. The Council’s position is that the connection of the former landfill site to developable land on a single title provides an incentive for the ongoing management of the former landfill site in accordance with the EPL. The Council says that the approval of the subdivision will result in the landfill site being located on its own lot, which would have no value and would have ongoing costs as a result of its management requirements, with no financial incentive for that management to be carried out.

49. The Council acknowledges that the EPA has the power to enforce the conditions of the EPL, but submits that it is not appropriate to leave enforcement of a planning issue to another regulatory authority. In support of this submission, the Council relies on the decision in Kulin Holdings Pty Ltd v Penrith City Council [1999] NSWLEC 157, in which Bignold J found, with respect to the liquor licencing regime and the questions on the grant of development consent (at [40]):

“…conventional wisdom is to leave to themselves the respective statutory regimes upon the basis that neither regime eclipses or undermines the other, and that neither relevant decision-maker under each separate regime abdicates its statutory responsibility to the other.”

50. The Council says that the Court, exercising the functions of the consent authority, needs to be persuaded that the grant of consent does not create a lot that has little incentive to ensure that it is maintained and monitored in a way that does not cause environmental issues. The Council submits that there is no certainty that the storage premises DA, once granted, would ever be carried out, to offset the costs associated with maintaining and monitoring the land.

51. The Council submits that it is common and best planning practice for land that is constrained, that is the subject of ongoing management obligations, to be tied to unconstrained land that can be developed, to increase the likelihood that management measures will be delivered. The Council relies on the decision of Commissioner Morris concerning the C2 land that now forms part of Lot 306, in CSR Building Products Ltd v Fairfield City Council [2015] NSWLEC 1284, in which she accepted the Council’s position that the conservation land should be consolidated with another developable industrial lot.

52. The Council’s position is supported by the evidence of Mr Hawke that the former landfill site is a significantly constrained site, with environmental risks if it is not properly managed, and the ongoing management of the site is not guaranteed if it is under separate ownership as a separate lot. Accordingly, Mr Hawke opines that there is a risk that, if a new owner is not able to develop the site in a manner that is productive, it would not be able to sustain the ongoing costs associated with the management of the site. The Council also points out that the bond required by the EPL variation only covers a 10 year period, which brings uncertainty as to what will occur after the 10 year period passes.

53. The Council seeks to cure this issue by requiring the imposition of a deferred commencement condition on a consent for the subdivision DA, which requires an occupation certificate to be issued for the storage premises DA before the subdivision DA becomes operative. The deferred commencement condition is as follows:

“This is a “Deferred Commencement” consent that is granted subject to a condition under Section 4.16(3) of the Environmental Planning and Assessment Act 1979 (EP&A Act). This “Deferred Commencement” consent is not to operate until the Applicant satisfies the deferred commencement conditions as set out in Schedule A. The period within which the Applicant must produce evidence to Fairfield City Council (Council) that is sufficient to enable it to be satisfied as to the matter in Schedule A is three (3) years from the date this “Deferred Commencement” consent is granted.

If the Applicant produces evidence to the Council within the period specified above that is sufficient to enable the Council to be satisfied as to the matters set out in Schedule A and the Council notifies the applicant in writing that it is satisfied as to the matters and of the date from which the consent operates, the development consent shall become operative from that date subject to compliance with the conditions set out in Schedule B.

SCHEDULE A

A1. Completion of the Hardstand Storage Development (DA 296.1/2022)

A final Occupation Certificate has been issued for the development on proposed Lot 400 that is the subject of the development consent granted to Development Application No. 296.1/2022 for the construction of an external hardstand area, landscape works, drainage works including the installation of a gross pollutant trap (GPT), onsite shed, carpark and amenities building, for the purpose of an open storage premises.”

54. The Council says that the deferred commencement condition provides certainty that an economic use of the former landfill site will be in place prior to the subdivision of the land to allow the former landfill site to be subdivided for separate disposition from the other areas of the lot.

55. On the other hand, CSR argues that the deferred commencement condition is not required or appropriate, in circumstances where: firstly, through the storage premises DA, it is fully demonstrated that there is a use to which the environmentally constrained land can be put to if it is subdivided for separate disposition; and secondly, the Court can assume that a person bound by the provisions of an EPL will comply with the requirements of the same, consistent with the principle in Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99.

56. CSR submits that questions concerning the funding for management of contaminated land are not relevant planning considerations, and that, even if the former landfill site remains part of the same lot, the same issues concerning ongoing management arise with respect to the transfer of land into new ownership. Further, compliance with the terms of the EPL is protected by a bond and the creation of a positive covenant on the subdivided lot, and the licence holder, PGH Bricks & Pavers Pty Ltd (PGH), is bound by those terms. CSR points out that PGH remains bound by the terms of the EPL even if the land passes to another owner, and that the transfer of the EPL to another licensee requires the EPA to consider “whether the person concerned is a fit and proper person”, which includes “whether the person has demonstrated to the EPA the financial capacity to comply with the person’s obligations under or in connection with the licence or proposed licence” (POEO Act, ss 54, 45(f), 83(2)(p)).

57. CSR’s position is supported by the evidence of Mr Mead, who opines that the proposal for the subdivision is orderly and economic development, and that the absence of any remaining contention concerning the storage premises DA demonstrates that the former landfill site can be put to an economic use. He opines that, as the former landfill site continues to stabilise, the potential uses of the site will likely widen. He opines that it is unusual in any consideration of a development application to consider the viability of use of land, including, in this case, whether the development is capable of generating an income that would fund the ongoing management of the land. Mr Mead points out that the former landfill site has been remediated, the EPL imposes the obligation to manage the land, and there is now a requirement for a public positive covenant for ongoing management in accordance with the LMP. He concludes, therefore, that the obligation to manage the land exists regardless of whether the subdivision occurs, and the subdivision will allow the separate development of each of the parcels of land that currently form Lot 306.

The subdivision DA should be granted

58. I consider that the subdivision DA should be granted, without any requirement for a deferred commencement condition. The subdivision is appropriate in the circumstances, it is consistent with the orderly and economic use and development of land, and issues concerning the funding or carrying out of environmental management do not warrant the imposition of a deferred commencement condition. I reach this conclusion for the following reasons.

59. Firstly, I accept the agreed evidence of Mr Mead and Mr Hawke that the subdivision design is acceptable, and that the proposed lot sizes and shapes are appropriate and consistent with the existing pattern of subdivision in the area. The proposed subdivided lots, Lot 400 and 401, are both lots that will have frontage to Johnston Crescent and it is appropriate that they are subdivided for separate disposition and development, rather than them being a single lot split across two parts.

60. Secondly, both proposed subdivided lots are developable. In relation to proposed Lot 401, it contains a cleared area of developable land that is 41,900m2 in addition to the area of 115100m2 that is vegetated and subject to a biodiversity stewardship agreement. In relation to Lot 400, which contains the former landfill site, the former landfill has been remediated and is being managed, and the land is capable of redevelopment for another purpose. I accept the evidence of Mr Mead that the absence of remaining contentions in the storage premises DA demonstrates that the former landfill site is capable of redevelopment, and that the continued management and stabilisation of the site will broaden the potential development that could occur on the site. As such, there is no need to impose a deferred commencement condition that requires the carrying out of the storage premises DA before the subdivision of the land.

61. This is not a case where constraints need to be imposed on the subdivided lot in order to avoid impacts associated with the environmentally sensitive nature of the site, such as in Parrott v Kiama [2004] NSWLEC 77. The storage premises DA is one use to which the former landfill site could be put, but there is no reason to restrict Lot 400 to that use and development.

62. The circumstances are also readily distinguishable from those before Commissioner Morris in CSR Building Products Ltd v Fairfield City Council, which was concerned with ensuring that a developable area of industrial land was within the same lot as a vegetated area subject to a Vegetation Management Plan. A vegetated area subject to a Vegetation Management Plan is required to be managed in accordance with that plan, which generally involves maintaining and improving plantings, which would prevent the area being used for an industrial or commercial use. This is not the case in the present circumstances, where the former landfill site requiring management is capable of being redeveloped for an industrial or commercial use, such as that proposed in the storage premises DA.

63. Thirdly, questions concerning how the management of contaminated land will be funded or incentivised are generally not relevant to the matters required to be considered pursuant to s 4.15(1) of the EPA Act. At the heart of the Council’s concern is a question about how the management of the former landfill site will be funded if it is severed from the developable parcel to the east. In circumstances where the former landfill site is capable of redevelopment, as demonstrated by the storage premises DA, I am not persuaded that questions concerning the funding of managing that land are determinative of the subdivision DA or render it appropriate to make the subdivision consent dependent on the carrying out of the development proposed by the storage premises DA.

64. Fourthly, I consider that, an assessment of the subdivision DA can be carried out on a reasonable assumption that the terms of the EPL will be complied with, and that PGH will continue managing the land in accordance with the terms of the EPL and the LMP. In planning assessment, the Court has generally found that the assessment should be made with the assumption that people will behave lawfully. In TL & TL Tradings Pty Ltd v City of Parramatta Council [2019] NSWLEC 160, Robson J made it clear that “it should be assumed that the party who enjoys the benefit of the consent will observe conditions imposed in (or attached to) a development consent” (at [13]). In HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135, Preston CJ of LEC found that, the impact on an intersection “needs to be evaluated in light of the reasonable assumption that motorists will, as a whole, comply with the road rules and obey road markings and signage” (at [107]). In the same way, I consider that the subdivision DA needs to be evaluated in the context of an assumption that the holder of the EPL will continue to comply with the terms of the EPL. This obligation remains even if the land is passed to another landowner. Therefore, the uncertainty raised by the Council concerning whether the former landfill site will continue to be managed in accordance with the EPL does not arise. This, in turn, means that the deferred commencement condition is not required, as it was advanced to cure the uncertainty.

65. Fifthly, the parties have agreed to conditions requiring public positive covenants to be registered on the land in favour of the EPA, which state that the landowner is responsible for the ongoing management and monitoring of the former landfill site in accordance with the LMP and that financial assurance is to be provided in relation to the requirements of the LMP (conditions 11 and 12 of Annexure A to the orders in 2024/46123 below). The public positive covenants will put any prospective purchasers on notice of the obligations with respect to management of the former landfill site.

66. For those reasons, I consider that the subdivision DA is consistent with the orderly and economic use and development of land and that a deferred commencement condition ought not be imposed. I have considered the matters in s 2.23 of the SEPP IE, and I am of the view that the subdivision results in two lots that are capable of separate development, which improves the supply of land and removes the fragmentation that currently arises from a lot split across two parts. The subdivision will not prevent any other lots from having reasonable access to roads and services. The subdivision proposed by the subdivision DA is therefore acceptable.

Development consent should be granted

67. The Council agrees that there is no contention that warrants refusal of the storage premises DA, and, for the reasons set out above, I consider that the subdivision DA should be granted without a deferred commencement condition. In addition, there is no jurisdictional matter raised by either party that would preclude the grant of development consent. With respect to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, the proposed use of the former landfill site is suitable in the context of its continued management in accordance with the EPL and the LMP. This is confirmed by a Site Audit Statement dated 11 May 2022.

68. Each of the development consents should therefore be granted, subject to appropriate conditions of development consent.

Final orders

69. In proceedings 2024/46112, the Court orders that:

70. The appeal is upheld.

71. The development application 296.1/2022 for the construction of an external hardstand area, landscape works, drainage works including the installation of a gross pollutant trap, onsite shed, carpark and amenities building, for the purpose of an open storage premises, at an existing landfill site at Part Lot 306 DP 1275011, known as 6 Johnston Crescent, Horsley Park, is determined by the grant of consent subject to the conditions at Annexure A.

72. Exhibits 2-8 and A, K, O and T are returned, the remaining exhibits are retained.

73. In proceedings 2024/46123, the Court orders that:

74. The appeal is upheld.

75. The development application 337.1/2023 for the Torrens title subdivision of Lot 306 DP 1275011 known as 6 Johnston Crescent, Horsley Park, into two lots is determined by the grant of consent subject to the conditions in Annexure A.

J Gray

Commissioner of the Court

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46112.24.Amended Annexure A.257 KB.pdf

46123.24.Amended Annexure A.158 KB.pdf

Amendments

17 June 2025

"Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule), a corrected version of the conditions of consent are uploaded as “46112.24 Amended Annexure A," and "46123.24 Amended Annexure A."