Enviro Blend Pty Ltd v Wollondilly Shire Council

Texts Cited: Wollondilly Development Control Plan 2016

Category: Principal judgment

Parties: Enviro Blend Pty Ltd (Applicant)
Wollondilly Shire Council (Respondent)

Representation: Counsel:
K Glassborow (Solicitor)(Applicant)
C Morton (Solicitor)(Respondent)
Solicitors:
G&B Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2025/85456

Publication restriction: Nil

JUDGMENT

1. These proceedings arise following an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the Council’s refusal of the applicant’s application for the modification of a development application (DA/2009/829/1) (DA) which approved a soil blending facility on land located at 205 Bents Basin Road, Wallacia NSW 2745 (Lot 141 in Deposited Plan 1083224) (the Site).

2. The proposed modifications relate to the following elements:

3. Regularisation of an existing temporary construction site inclusive of a 15m x 16m concrete slab, road base hardstand around the slab, trailer-mounted portable lunchroom and amenities building, 22 x 500 litre water tanks connected to the portable amenities, 31 x 400 litre free standing self-bunded diesel tanks and three shipping containers providing support for two igloo shelters;

4. Amendments to the permanent office building approved pursuant to a subsequent modification application (DA/2009/829/4 dated 16 August 2016). The proposed amendments include changes to the internal layout of the building, an extension of 13.2 metres to the ground floor at the southern end of the building, a 2 metre wide walkway/ramp to be located between the existing approved structure and the proposed extension, the addition of recycled brick veneer to the exterior of the ground floor resulting in a small increase in the exterior width of the building, change of roof form to a skillion roof, and addition of a 6.3 metre wide by 18.9 metre long awning with a minimum height of 5.39 metres;

5. Amendments to landscaping including deletion of the approved but not constructed median garden bed within the Site entrance driveway, deletion of a 60m long section of approved but not constructed 1 metre high earth mound located along the western property boundary and additional landscaping planting;

6. Realignment of the approved blending pad parallel with the northern boundary;

7. Amendments to the approved stormwater management, including the installation of a 5,000 litre inground water tank, grassed swale within the loop of the internal haul road adjacent to the office building, grated drains within a sealed section of the driveway, grated drains and swale flow to two 5,000 litre inground water tanks located to the east of the internal haul road with overflow to the existing earth dam on the Site, and a diversion drain around the western side of the soil blending pad that flows to the existing dam;

8. Installation of a 1 metre wide by 750mm high business identification sign to be located within the Site at the entry along the western boundary;

9. Installation of a 20,000 litre water tank in the south western corner of the Site to be used for static water supply for firefighting use only;

10. Installation of a new on-site sewage management system;

11. Amendment to the alignment of the internal haul road in the south-western area of the Site; and

12. Relocation of 6 car parking spaces closer to the entry of the Site.

13. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was first held on 30 July 2025. I presided over the conciliation conference.

14. At the conference the parties were able to reach an agreement as to the terms of a decision in the proceedings that would be acceptable to them. The parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s 34 written agreement dated 29 September 2025 (Agreement).

15. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The decision involves the Court exercising the functions under s 4.55(1A) of the EPA Act to approve the modification of the DA.

16. The pre-conditions that must be satisfied before the Court can exercise its functions are identified in a written submission prepared by the parties. After a consideration of the submission, I am satisfied on the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions for the following reasons.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

7. Under cll 4.4, 6.1, 6.6, 6.7, 6.9, 6.11, 6.12, 6.13, 6.20 and 13.1 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), the Site is within the Upper Nepean sub-catchment of the Hawkesbury-Nepean catchment. The parties are satisfied that the proposed development is consistent with the relevant objectives pertaining to the Biodiversity SEPP. (ASEE, Tab 1 of s 34 Bundle).

State Environmental Planning Policy (Resilience and Hazards) 2021

8. Under cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP), the consent authority cannot consent to carrying out any development on land unless it has considered whether the land is contaminated, and if so, it is satisfied that the land is suitable (or will be suitable after remediation) for the purpose for which the proposed development is to be carried out.

9. The only developments that have occurred on the Site have been for the purposes of a soil quarry (utilising an older historical approval) and a soil blending facility approved in 1983 and 2010 respectively.

10. An Amended Preliminary Site Investigation (PSI) (Tab 8 of s 34 Bundle) was prepared by the Applicant to consider the potential for contaminated land to exist within the proposed modification footprint. With previous filling on Site and a Clean-Up Notice issued by the NSW EPA in January 2017 to the previous owners, soil testing for the PSI had confirmed the presence of variable fill materials but did not detect any soil contamination.

11. The parties have agreed that an unexpected finds protocol be implemented during the construction and development phase of the proposed modification works, subject to the agreed conditions of consent.

12. Due to the proposed modifications sought, the potential for soil contamination to arise is negligible and the Site is considered suitable for industrial/commercial use, subject to the agreed conditions of consent (Tabs 1 and 8 of the s 34 Bundle).

State Environmental Planning Policy (Precincts—Western Parkland City) 2021

13. Under cl 4.19 of the State Environmental Planning Policy (Precincts—Western Parkland City) 2021 (Western Parkland City SEPP), the consent authority cannot consent to any development on land in the 13 km wildlife buffer zone unless it has considered whether the land presents a risk to the operation of the Western Sydney Airport. The Site is within the 13 km wildlife buffer zone, however the proposed modification is not a relevant development. Relevant development is defined at cl 4.19(4):

…

relevant development means development for the following purposes—

(a) agricultural produce industries,

(b) aquaculture,

(c) camping grounds,

(c1) cemeteries,

(d) eco-tourist facilities,

(e) garden centres,

(f) intensive livestock agriculture,

(g) intensive plant agriculture,

(h) livestock processing industries,

(i) plant nurseries,

(j) recreation facilities (major),

(k) recreation facilities (outdoor),

(l) sewage treatment plants,

(m) waste or resource management facilities that consist of outdoor processing, storage or handling of organic or putrescible waste,

(n) water storage facilities.

14. Similarly, under cl 4.22, development that is shown on the Obstacle Limitation Surface Map will be deemed a controlled activity within the meaning of Pt 12, Div 4 of the Airports Act 1996 (Cth). The height limit at the Site, as per the Obstacle Limitation Surface Map, is between 210m and 220m AHD. The proposed modification will not increase the height of the office building (as approved). The approved height of the building is 7.66m, giving it a maximum height of 52.88m AHD, well below the limit, and as such no part of the proposed modification will penetrate the prescribed airspace.

Wollondilly Local Environmental Plan 2011

15. The parties agree that the Court can be satisfied that the DA, as amended, satisfies the following relevant clauses within the Wollondilly Local Environmental Plan 2011 (WLEP):

Clause 2.1 – Land Use Zoning

16. The Site is zoned RU1 Primary Production which permits Rural Industry with consent. The objectives of the RU1 Primary Production are as follows:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To encourage diversity in primary industry enterprises and systems appropriate for the area.

• To minimise the fragmentation and alienation of resource lands.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To provide for a range of land uses (including tourism-related uses) that support the agriculture industry.

• To provide areas within which the density of development is limited in order to maintain a separation between urban areas.

• To support sustainable land management practices and local food production.

• To provide for tourist land uses in connection with environmental, scenic or agricultural uses of land.

17. The parties are satisfied that the proposed development is consistent with the relevant objectives of the RU1 Primary Production zone (Tab 1 of s 34 Bundle).

Clause 5.21 – Flood Planning

18. The objectives of this clause, at cl 5.21(1) are:

(a) to minimise the flood risk to life and property associated with the use of land,

(b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change,

(c) to avoid adverse or cumulative impacts on flood behaviour and the environment,

(d) to enable the safe occupation and efficient evacuation of people in the event of a flood.

19. The parties are satisfied that the proposed development is consistent with the relevant objectives of cl 5.21 governing flood planning (Tab 7 of s 34 Bundle).

Clause 7.1 – Essential Services

20. Clause 7.1 states:

(1) Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required –

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage.

21. The parties can therefore be satisfied that the proposed development is consistent with the relevant objectives of cl 7.1 of the WLEP (Tab 1 of s 34 Bundle).

Clause 7.2 – Biodiversity Protection

22. The objectives of this clause, at cl 7.2(1), are:

(a) protecting native fauna and flora, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the recovery of native fauna and flora and their habitats, and

(d) protecting water quality within drinking water catchments.

23. The parties are satisfied that the proposed development is consistent with the relevant objectives of cl 7.2 governing biodiversity protection (Tab 1 of s34 Bundle).

Clause 7.3 – Water Protection

24. The objectives of this clause, at cl 7.3(1), are to maintain the hydrological functions of riparian land, waterways and aquifers, including protecting the following:

(a) water quality;

(b) natural water flows;

(c) the stability of the bed and banks of waterways;

(d) groundwater systems.

25. The parties are satisfied that the proposed development is consistent with the relevant objectives of cl 7.3 pertaining to water protection (Tab 1 of s 34 Bundle).

Clause 7.5 – Earthworks

26. The objectives of this clause, at cl 7.5(1), are to ensure that earthworks (for which development consent is required) will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, and to allow earthworks of a minor nature to take place (without requiring a separate consent).

27. The parties are satisfied that the proposed development is consistent with the relevant objectives of cl 7.5 pertaining to earthworks (Tab 1 of s 34 Bundle).

Clause 7.9 – Development within metropolitan rural area

28. The objective of this clause, at cl 7.9(1), are to protect and enhance environmental, social and the economic values in metropolitan rural areas. Consent must not be granted to development on land to which the clause applies, unless the consent authority has considered the following (cl 7.9(3)):

(a) the impact of the proposed development on –

(i) the natural habitat and biodiversity, and

(ii) drinking water catchments, and

(iii) mineral and energy resources and extractive industries,

(b) whether the proposed development –

(i) preserves land for agriculture, including providing buffers, and

(ii) prevents incompatible uses, and

(iii) maintains and enhances the distinctive character of rural towns and villages, and

(iv) protects areas of cultural, heritage or scenic value, and

(v) appropriately manages the risk of hazards including bush fire or flooding.

29. The parties are satisfied that the proposed development is consistent with the relevant objectives of cl 7.9 pertaining to development within the metropolitan area (Tab 1 of s 34 Bundle).

Wollondilly Development Control Plan 2016

30. Although not a jurisdictional pre-requisite to the grant of consent, the parties are satisfied that the DA, as amended, has considered and addressed relevant provisions in the Wollondilly Development Control Plan 2016 (Tab 1 of s 34 Bundle).

Conditions of Consent

31. The parties agree that the agreed conditions of consent attached to the section 34 agreement are appropriate.

Conclusion and orders

32. As the parties’ decision is within power, I now dispose of the proceedings in accordance with that decision.

33. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

34. The Court notes that:

35. The Applicant is granted leave to rely on the amended plans and documents in the Schedule below.

| Architectural Plans prepared by JEP Environment & Planning | | Plan No. | Plan Name | Revision | Date | | Sheet 101 | Cover Sheet | | 10 September 2025 | | Sheet 102 | Survey Plan | | 10 July 2025 | | Sheet103 | Site Plan Showing Existing Approvals in Place | | 10 September 2025 | | Sheet104 | Site Plan - Proposed Modifications | | 10 September 2025 | | Sheet 105 | Site Plan - Temporary Construction Area | | 10 September 2025 | | Sheet 106 | Existing Site Office Plan | | 10 September 2025 | | Sheet 107 | Resource Recovery Facility - Existing Elevations | | 10 September 2025 | | Sheet 108 | Proposed Office Floor Plan | | 10 September 2025 | | Sheet 109 | Proposed Office Floor Plan | | 10 September 2025 | | Sheet 110 | Resource Recovery Facility – Proposed Elevations | | 10 September 2025 | | Sheet 111 | Proposed Elevations | | 10 September 2025 | | Sheet 112 | Proposed Static Water Supply Tank and Bin Room | | 10 September 2025 | | Sheet 113 | Wheelwash | | 10 September 2025 | | Sheet 114 | Weighbridge – Foundation Detail | | 10 September 2025 | | Sheet 115 | Weighbridge – Foundation Detail | | 10 September 2025 | | Sheet 116 | Weighbridge – Foundation Detail | | 10 September 2025 | | Sheet 117 | Weighbridge – Foundation Detail | | 10 September 2025 | | Sheet 118 | Weighbridge | | 10 September 2025 | | Sheet 119 | Weighbridge | | 10 September 2025 | | Documents | | Schedule of Amendments to architectural plan set Soil Blending Facility Development Modification prepared by Hayretti Yel | 10 September 2025 |

| Landscape Plans prepared by Terras Landscape Architects | | Plan No. | Plan Name | Revision | Date | | L000 | Cover | D | 22 August 2025 | | L101 | Design Report | D | 22 August 2025 | | L102 | Concept Landscape Plan | D | 22 August 2025 | | L103 | Proposed Tree Palette and Schedule | D | 22 August 2025 | | L104 | Mass Planting | D | 22 August 2025 |

| Civil Plans prepared by Finnco Civil Engineers | | Plan No. | Plan Name | Revision | Date | | Sheet CO | General Notes | D | 6 August 2025 | | Sheet C1 | Site Plan | D | 6 August 2025 | | Sheet C2 | Access Track Plan | D | 6 August 2025 | | Sheet C3 | Concept Stormwater Drainage Plan | D | 6 August 2025 | | Sheet C4 | Sediment Erosion Control Plan | D | 6 August 2025 | | Sheet C5 | Sections | D | 6 August 2025 | | Sheet C6 | Sections | D | 6 August 2025 | | Sheet C7 | Sections | D | 6 August 2025 | | Sheet CB | Sections | D | 6 August 2025 | | Sheet C9 | Sections | D | 6 August 2025 | | Sheet C10 | Sections | D | 6 August 2025 | | Sheet C14 | Details | D | 6 August 2025 | | Sheet C15 | Details | D | 6 August 2025 | | Sheet C16 | Details | D | 6 August 2025 | | Sheet C17 | Calculations | D | 6 August 2025 | | Sheet C18 | Historical Extraction Cross- Section Plan | D | 6 August 2025 | | Sheet C19 | Historical Extraction Cross- Section Plan | D | 6 August 2025 | | Sheet 20 | Historical Extraction Cross- Section Plan | D | 6 August 2025 |

| Other Documents | | Document Title | Revision | Date | | Amended Statement of Environmental Effects prepared by JEP Environment & Planning | | 31 August 2025 | | Assessment of noise emissions from proposed soil- blending operations prepared by Acoustic Directions | Version 1.1 | 12 August 2025 | | Flood Assessment Expert Report prepared by Kingfisher Hydro | | 31 August 2025 | | Air quality impact assessment prepared by Todoroski Air Science | | 10 July 2025 | | Report of expert opinion prepared by Eclipse Consulting Engineers | 2 | 9 July 2025 | | Visual Impact Assessment report prepared by Terras Landscape Architects | D | 11 July 2025 | | Amended Preliminary Site Investigation prepared by Geosyntec Consultants | 2.0 | 11 July 2025 | | Vegetation Management Plan prepared by Eco Logical Australia | V2 | 9 September 2025 | | Swept Path Analysis prepared by Traffix (Traffic & Transport Planners) | F | 31 July 2025 | | Weighbridge Queue Analysis prepared by Traffix (Traffic & Transport Planners) | V2 | 15 August 2025 |

35. The Court orders that:

36. The appeal is upheld.

37. Development Application DA/2009/829/6 for modification to DA/2009/829/1 under section 4.55(1A) of the Environmental Planning and Assessment Act 1979 (NSW), to approve existing temporary construction site, and proposed new changes including the addition of soil as a product imported for soil blending, modified site entrance location, location of car parking spaces, location of weighbridge, internal and external design of office building, landscape design and associated fencing, location of soil blending pad, internal haul road and stormwater management design, and the construction of a truck wheel wash bay, awning attached to the office building, outbuilding for the storage of waste bins, and installation of water tanks, and a business identification sign at 205 Bents Basin Road, Wallacia NSW 2745 (Lot 141 Deposited Plan 1083224) is determined by grant of consent, subject to the conditions of consent at Annexure A.

S Dixon

Senior Commissioner of the Court

85456.25 Annexure A

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