Flowers v Wollondilly Shire Council

Land and Environment Court (NSW)|2012-12-04|Before: Mr P

Mr P Jackson (Respondent) Solicitors Planning Law Solutions (Applicant)

Pikes and Verekers (Respondent) File Number(s): 10416 of 2012

Judgment 1This is an appeal against the refusal by Wollondilly Shire Council (council) of a development application under the Environmental Planning and Assessment Act 1979 (EPA Act) for "the continued use of site for depot, excavations, retaining walls, and construction of a new farm shed and retaining walls" at 85 Eagles Road, Razorback (site). 2The contentions raised by council are whether the proposed depot is prohibited (Contention 1) and whether the site is suitable for the proposed use due to potential contamination (Contention 2). The contention in relation to the impact of the proposal on the road network (Contention 3) was not pressed by council.

Site and locality 3The site is located on the northern side of Eagles Road and has an area of approximately 2 ha. A detached dwelling and outbuildings are located near the Eagles Road frontage. An excavated and filled area is at a lower level, which is currently used to park vehicles and store material. The site slopes steeply towards a watercourse at its rear and is landscaped. 4Eagles Road is used for rural residential purposes, with dwellings generally located on the flatter land, near the road.

Background and proposal 5Mr And Mrs Flowers own and live on the site and operate a tree lopping business, known as Fine Cut Tree Services Pty Ltd, which undertakes the lopping and removal of trees in the Macarthur area. 6The site has been used to park vehicles, store machinery and materials, including wood chip mulch and logs associated with the tree lopping business. Associated works have been undertaken without consent, including earthworks, the importation of about 247 tonnes of fill and construction of retaining walls. 7The application was lodged on 28 April 2011. The development application form describes the proposal as the "continued use of site for depot, excavations, retaining walls, and construction of a new farm shed and retaining walls ". The Statement of Environmental Effects and plans which accompanied the development application provided more details of the proposal. 8Council refused the application on 21 November 2011. The applicant requested a review of the determination under s 82A of the EPA Act on 2 February 2012, which was accompanied by a further Statement of Environmental Effects prepared by Michael Brown Planning Strategies and further plans. On 16 April 2012, council determined the s 82A review by upholding its refusal of the application. 9The applicant subsequently appealed against the refusal of the application and on 19 September 2012, was granted leave to rely on amended plans and reports, including a Preliminary Contamination Assessment prepared by Mr Hudson of Strategic Environmental Engineering Consulting (SEEC Report) and landscaping plans. 10The proposal, as described in the applicant's submissions, involves the following components: a) the storage of vehicles and machinery and associated tree lopping equipment in connection with a tree lopping business.....; b) the construction of a storage shed for domestic use measuring 16 m x 7 m x 4.2 m high, setback approximately 3.2 m from western boundary; c) the use of a room in the dwelling as an office for Fine Cut Tree Services Pty Ltd; d) the construction of a retaining wall adjacent to the Western boundary in the area of the proposed shed; e) Landscaping, storage of landscape materials for use on site, storage of domestic vehicles/machinery (boat, bob cat, trailer, ride on mower) and associated earthworks. 11Vehicles and equipment stored on site in connection with the business comprises: 2 small rigid trucks (1x6 tonne and 1x8 tonne) 1 wood chipper (approximately 4.5 m long] 1 stump grinder 1 hand stump grinder 1 trailer proximally 6 m long 1 bobcat 12Vehicular movements to and from the site in connection with the business are confined to the hours of 7 am to 6 pm Monday to Friday (ex public holidays). The business does not operate on Saturdays, Sundays or public holidays. 13The business employs 2 permanent staff and 1 casual employee. Employees of the business arrive at approximately 7 am, park their vehicles within the site and leave in the company trucks at approximately 7:15 am returning at approximately 5:45 pm. 14No woodchips or logs are to be stored on the site for commercial purposes. No oil or fuel is to be stored on the site and all maintenance of vehicles and machines is to be undertaken off-site.

Planning controls 15The site is in the Rural RU2 Zone under Wollondilly Local Environmental Plan 2011 (LEP) which provides: Zone RU2 Rural Landscape 1 Objectives of zone · To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. · To maintain the rural landscape character of the land. · To provide for a range of compatible land uses, including extensive agriculture. · To provide areas where the density of development is limited in order to maintain a separation between urban areas. 2 Permitted without consent Extensive agriculture; Home occupations 3 Permitted with consent Agriculture; Airports; Bed and breakfast accommodation; Boat repair facilities; Boat sheds; Cellar door premises; Cemeteries; Community facilities; Crematoria; Depots; Dwelling houses; Educational establishments; Environmental facilities; Environmental protection works; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Freight transport facilities; Funeral chapels; Funeral homes; Group homes; Home-based child care; Home businesses; Home industries; Home occupations (sex services); Hospitals; Information and education facilities; Landscape and garden supplies; Mortuaries; Places of public worship; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Research stations; Restriction facilities; Roads; Roadside stalls; Rural industries; Rural supplies; Rural workers' dwellings; Secondary dwellings; Signage; Transport depots; Veterinary hospitals; Water recreation structures; Water supply systems 4 Prohibited Stock and sale yards; Turf farming; Any other development not specified in item 2 or 3 16The use of the site for a 'depot' is permissible with consent. 'Depot' is defined under the LEP as: depot means a building or place used for the storage (but not sale or hire) of plant, machinery or other goods (that support the operations of an existing undertaking) when not required for use, but does not include a farm building. 17The parties disagree on whether the proposed use is for the purpose of a 'depot' and consequently whether it is prohibited, which is discussed further in this judgment. 18Wollondilly Development Control Plan 2010 (DCP) applies to the site. Clause 2.9 of Volume 1 relates to Contaminated Land and Land Filling. 19State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) is relevant. Clause 7 provides: Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is: (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital-land: (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge). 20The parties disagree whether the proposal satisfies cl 7 of SEPP 55, which is discussed further in this judgment. 21Sydney Regional Environmental Plan No 20 - Hawkesbury Nepean (SREP 20) applies to the site. Clause 11(4) requires consent for the remediation of contaminated land.

Evidence 22The Court visited the site and heard evidence from residents who objected to the proposal. They considered that the previous use of the site as a 'depot' had adversely impacted on their amenity through vehicle noise and activity on the site. In particular, they considered the storage of mulch on the site caused unacceptable odours and was a fire hazard. They were also concerned about the safety of trucks using Eagles Road, which is narrow and windy. The adjoining and nearby neighbours were concerned about the visual impact of the proposed shed and the loss of views. 23The Court heard expert planning evidence from Mr M Brown, for the applicant, and Mr G Rokobauer, for the council. Mr Rokobauer also provided evidence, for the council, on the contamination issues with Mr C Hudson, for the applicant.

Is the proposed 'depot' use prohibited? 24Mr Rokobauer and Mr Brown generally agree on the description of the proposal and the nature of the uses that would be carried out on the site. They also agree that the 'existing undertaking' for the purpose of the definition of 'depot' in the LEP is the tree lopping business and that a significant component of the tree lopping business would occur off site. 25Mr Rokobauer accepts that the component of the development which relates to the storage of vehicles and machinery would fall within the definition of 'depot' in the LEP. However, he considers that there are other activities which do not fall within the definition. In his opinion, the on-site parking of staff cars and administration are part of or ancillary to the tree lopping business, which is a 'commercial premises' that is not permissible in the RU2 zone under the LEP. 26Mr Brown considers that these other activities would either be ancillary to the 'depot' use or to the 'existing undertaking' and can be carried out in the RU2 zone.

The council's submissions 27Council submits that the proposed 'depot' use is prohibited development on the following bases: Characterisation As properly characterised the use is for commercial purposes which is a prohibited use of the land in the Rural RU2 zone. Construction As a matter of statutory construction for a use to be a "depot" within the meaning of the LEP it must be a use which supports an existing undertaking which is itself permissible in the zone.

Characterisation 28The council submits that Preston CJ in Chamwell v Strathfield Council [2007] NSW LEC 114 establishes the proper approach to characterisation. 29The facts of this case establish that the proposed use is for and in connection with an existing tree lopping business, which has its principal place of business at the site. The council submits: ....The proposed use does not fit the description of 'depot' having regard, to inter alia, the intention to use of the existing dwelling as part of the commercial activity being undertaken by the Company, and the land being used not merely for the storage of plant, machinery or other goods, when not required for use. The use of the land for commercial purposes cannot be avoided by labelling those uses as a "depot". 30Council submits that as properly characterised, the proposed use is for 'business premises' which is a form of 'commercial premises'. These uses are both prohibited as innominate uses in the RU2 zone under the LEP. The proposal is therefore prohibited.

Construction 31Further, the council submits that, even if the proposal is properly categorised as the use of the land for the purpose of a 'depot', it does not follow, having regard to the facts of this case, that it is a permissible use of the land in the RU2 Rural zone. 32In Council's submission, the proposed use of land as a 'depot' as defined in the LEP will only be permissible if the 'existing undertaking', the tree lopping business, which the 'depot' supports is itself a permissible use within the zone. The 'existing undertaking' of the tree lopping company is for commercial purposes which is prohibited within the RU2 Rural zone. 33To support this submission, council referred to the established principles relevant to the construction of environmental planning instruments (Project Blue Sky- v-ABA (1998) 194 CLR 355 at [69] and [78], Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321, Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [40]). 34Council submits that the objects set out in section 5 of the EPA Act are achieved in part by the making of environmental planning instruments. 35Division 1 of Part 4 of the Act provides for a threefold classification in regard to the carrying out of development, namely: ii. Development specified in a planning instrument which is permissible without consent, see s76 (1) of the E P A Act. ii. Development specified in a planning instrument which is permissible with consent, see s76A (1) of the E PA Act. iii. Development specified in a planning instrument which is prohibited, see s76 of the E P A Act. 36Council submits that: Thus the clear legislation intention is for a planning instrument to set out the threefold classification as referred to above. Thus, it would be an absurd result and contrary to the legislative framework of the EPA Act, if the proposed intended use of land as a depot was a permissible use of land in a situation where the existing undertaking which it supports is a prohibition in the zone. Put another way, the "existing undertaking" must be a permissible and lawfull use of the land to which the depot use relates.

The applicant's submissions 37The applicant submits that the following steps must be undertaken to determine whether the 'depot' is prohibited within the RU2 Zone under the LEP: Step 1: whether the proposed development falls within a purpose nominated as permissible with consent in the zoning table for the RU2 zone; Step 2: whether the proposed development is properly characterised as development for the purposes of a depot as defined in the dictionary to LEP 2010.

Step 1: Purposes nominated in the zoning table 38The applicant submits that: The correct way to apply the zoning table for the RU2 zone in LEP 2011 is to determine whether the proposed development, properly characterised, is development for a purpose that is expressly listed in the zoning table. It is not correct, or necessary, to determine whether or not the proposed development, properly characterised, is development for a purpose that is not expressly listed in the zoning table. 39The applicant submits that that the proper approach to the application of a zoning table is set out explained by the Pearlman CJ in Lonergan v Byron Shire Council [2000] NSWLEC 21 where Her Honour [at 12] states: It is important to bear in mind that the zoning table does not, as Mr Robertson pointed out, specify two mutually exclusive purposes, one of which is permissible and the other prohibited. Rather, it nominates those purposes which are permissible, and any purpose not so nominated falls into an innominate class of prohibited purposes. That is why the proper question for determination was simply whether or not the proposed use fell within a nominated purpose. 40The applicant explains that the zoning table for the RU2 zone in the LEP nominates certain purposes which may be carried out with and without development consent, including a 'depot'. The zoning table also nominates two purposes, stock and sale yards and turf farming that are prohibited. All other purposes are prohibited as innominate uses. 41The proposed development is not a stock and side yard or turf farming. Therefore, the question is whether it is for a purpose nominated as permissible with development consent, i.e. a 'depot'. If the proposed development, probably characterised is not a 'depot', then it is prohibited. 42The applicant submits that it is irrelevant that the proposed development might also be characterised as a 'business premises', because 'business premises' is not expressly nominated in the zoning table. 43The proper question is whether the proposed development is a 'depot', not whether the proposed development is a 'business premises'.

Step 2: Whether the proposed development is a depot 44The applicant submits that the vehicle and machinery component of the proposal meets the requirements of the definition of 'depot' in the LEP as it: i. involves the storage (but not sale or hire) of plant, machinery or other goods; ii. supports the operations of an existing undertaking, being the tree lopping business......., when not required for use in that business, iii. does not include a farm building. 45There are no limits to the nature, scale or intensity of the 'existing undertaking'. It may be an operation that is commercial or business like in nature. It may be an undertaking that is operated on the site of the 'depot' or elsewhere. 46The applicant also refers to the Chamwell as establishing the proper approach to characterisation of a proposed development. 47In applying these principles, the applicant submits that: The purpose of a depot contemplates that people employed in the depot will come and go from the depot, in their own vehicles, and require parking on site. It also contemplates that administrative tasks will need to be carried out which are associated with the vehicles and machinery coming and going from the depot. For example the allocation of jobs and employees to those jobs with the necessary equipment stored in the depot at the start of every working day. Those uses, the parking of employees vehicles and the home office, are means by which the purpose may be achieved. The sole purpose of the employee parking is to support the depot use. The sole purpose of the home office is to support the tree lopping business. The home office is required to administer the jobs to which the vehicles and machinery stored in the depot are allocated on a day-to-day basis. The employee parking is therefore characterised as development for the purposes of a depot. The home office is characterized either as development for the purposes of a depot or other home occupation. 48In the applicant's submission, it is not necessary to characterise the 'undertaking' supported by the 'depot' nor is it necessary to have or to obtain development consent for the 'undertaking' as the 'permissibility of one use does not rely on the permissibility of another use'. The wording of the definition does not require the 'undertaking' to be permissible within the zone.

Findings 49The approach to characterisation for planning purposes is set out in the decision of Preston CJ in Chamwell, which dealt with an application for a supermarket. His Honour relevantly states [at 27 and 28]: 27 In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534. 28 In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the "physical acts by which the land is made to serve some purpose": at 508. 50Further, His Honour states [at 33 to 36 and 45]: 33 The fact that the nature of the uses of different components or parts of the development may vary is not necessarily of importance. Obviously, the only part of the proposed development that will have a use of the specific nature of supermarket is that part of the building which incorporates the supermarket. The nature of the uses of other parts of the building, such as the car park, driveways, access ways, and landscaped forecourt, is different. 34 However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534, 535 and Warringah Shire Council v Raffles (1978) 38 LGRA 306 at 308. 35 In this case, the use of the car park, driveways, access ways and landscaped forecourt are each designed to serve the end of enabling the supermarket to be carried on. That is their purpose and that purpose imparts to the land on which those uses are pursued the character of shop, including the supermarket. The end to which the parts of the land in Lot D is to serve is not roads. 36 The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310. ......... 45 The characterisation of the purpose of development must also be done in a common sense and practical way... 51The general thrust of the findings in Chamwell is that the characterisation must focus on the purpose of the land. This must be done at a level of generality and in a commonsense and practical way that is sufficient to include the individual uses that make up the purpose. While there may be a number of different uses, these different uses may still serve the same purpose. 52The application seeks consent for 'the continued use of site for depot, excavations, retaining walls, and construction of a new farm shed and retaining walls'. The Statements of Environmental Effects, supporting reports and plans provide further information about the uses proposed on the site. The parties agree that the proposed shed and landscaping are ancillary to the approved use of the site for residential purpose. They disagree on whether the other proposed uses are for the purpose of a 'depot' or 'commercial/business premises'. 53I accept the applicant's submission that the first step to determine whether the proposal is prohibited is to establish whether the proposed development, properly characterised, is development for a purpose that is expressly listed in the zoning table. It is not correct, or necessary, to determine whether or not the proposed development, properly characterised, is development for a purpose that is not expressly listed in the zoning table. 54The task before the Court is therefore to determine whether, on its facts, the proposed uses are for the purpose of a 'depot' or another purpose that is permissible either with or without consent in the zoning table for the RU2 zone in the LEP. If it is not, then it is prohibited as an innominate use. It is not necessary to determine whether the proposal is for 'commercial premises' or 'business premises' for it to be prohibited, merely to establish that it is not a use that is permissible with or without consent. The council appears to have conceded this during its oral submissions. 55The next step is to establish whether the proposal is properly characterised as a 'depot' for which the application is seeking consent. 56The use of the land for the purpose of a 'depot' is permissible with consent in the RU2 Zone under the LEP. A 'depot' is defined in the LEP to mean: depot means a building or place used for the storage (but not sale or hire) of plant, machinery or other goods (that support the operations of an existing undertaking) when not required for use, but does not include a farm building. 57The key components of this definition are: (i)a building or place used for the storage (but not sale or hire) of plant, machinery or other goods; (ii)that support the operations of an existing undertaking, when not required for use; (iii)but does not include a farm building. 58The parties agree that the proposal meets the third component as it is not a farm building. They also agree that part of the proposal is a place used for the storage of plant, machinery and other goods, which are not for sale or hire that supports the operations of the tree lopping business, which is an 'existing undertaking'. However, the council submits that the proposed uses include additional activities, other than storage, such as the use of part of the dwelling house as an office and employees of the tree lopping business parking their cars on site. In council's submission, these activities are for and in connection with the tree lopping business which is a commercial enterprise that is prohibited in the zone. In the applicant's submission, the purpose of a 'depot' contemplates additional uses such as the parking of staff cars and administration which would be permissible as part of the depot. 59I accept that the component of the development that involves the storage, when not in use, of vehicles and plant that supports the operations of the tree lopping business would fall within the definition of 'depot'. However, the uses that are proposed on the site are broader than storage and are not for the purpose of a depot. The parking of staff cars and administration are activities directly associated with the tree lopping business, not the depot. The staff are employees of the tree lopping company and their cars are parked on site while they undertake work off site. The cars are not plant, machinery or other goods that support the operation of the existing undertaking, when not required for use. Similarly, the administration activities principally relate to the tree lopping business, not to the depot. These uses are for the purpose of the tree lopping business, not for the purpose of a 'depot'. 60The fact that the additional uses of staff parking and administration are for the purpose of the tree lopping business may be of no consequence if the tree lopping business is an 'existing undertaking'. However, the council contends that as a matter of statutory construction for a use to be a 'depot' within the meaning of the LEP it must be a use which supports an 'existing undertaking' which is itself permissible in the zone. 61Whereas, the applicant submits that there is no requirement for the 'existing undertaking' to be permissible within the zone or for it to occur on the same site as the 'depot'. Further, even if the 'existing undertaking' were required to be permissible within the zone, there is no evidence that the tree lopping business requires consent or is not permissible. 62'Existing undertaking' is not defined in the LEP and the parties provided little guidance as to its meaning but agree that it should assume its normal and everyday meaning. 'Undertaking' is defined in the Macquarie Dictionary to include: 1. the act of someone who undertakes any task or responsibility. 2. a task, enterprise, etc, undertaken 3. a promise; pledge or guarantee. 63In the circumstances of this case, an 'undertaking' would be an 'enterprise' which could occur either on or off the site. A significant component of the tree lopping business occurs off site and would and could not require development consent. However, the site is the registered address for the business and there are activities associated with and that constitute the 'existing undertaking' that occur on site, including its administration and parking for staff cars. There is currently no development consent for these activities and they are not ancillary to the residential use of the site or the proposed 'depot'. 64I do not accept that an 'existing undertaking' has to be limited to a use that is permissible within the zone. Given that the EPA Act regulates land use planning, an 'existing undertaking' that is occurring on the site should be a lawful use of the land, by either having a valid development consent, existing use rights, not requiring development consent or being a use for which consent could be granted, prior to any consent for a 'depot'. 65The proposal includes the use of a room in the house as an office for the tree lopping business and the applicant submits: The proposed development is for the purpose of a small scale depot and home office and for the purpose of domestic related landscaping and storage. 66'Home office' is not a use which is separately defined in the LEP. Rather the land use table for the RU2 zone includes 'home occupation' as permissible without consent and 'home business' as permissible with consent. 67'Home occupation' is defined under the LEP as: home occupation means an occupation that is carried on in a dwelling, or in a building ancillary to a dwelling, by one or more permanent residents of the dwelling and that does not involve: (a) the employment of persons other than those residents, or (b) interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, traffic generation or otherwise, or (c) the display of goods, whether in a window or otherwise, or (d) the exhibition of any signage (other than a business identification sign), or (e) the sale of items (whether goods or materials), or the exposure or offer for sale of items, by retail, but does not include bed and breakfast accommodation, home occupation (sex services) or sex services premises. 68The proposed 'home office' does not fall within the definition of a 'home occupation' as the tree lopping business employs staff (two permanent and one casual) who use the site to park their cars. Therefore, the 'home office' would require development consent. 69 'Home business' is defined in the LEP as: home business means a business that is carried on in a dwelling, or in a building ancillary to a dwelling, by one or more permanent residents of the dwelling and that does not involve: (a) the employment of more than 2 persons other than those residents, or (b) interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, traffic generation or otherwise, or (c) the exposure to view, from any adjacent premises or from any public place, of any unsightly matter, or (d) the exhibition of any signage (other than a business identification sign), or (e) the sale of items (whether goods or materials), or the exposure or offer for sale of items, by retail, except for goods produced at the dwelling or building, but does not include bed and breakfast accommodation, home occupation (sex services) or sex services premises. Note. See clause 5.4 for controls relating to the floor area used for a home business. 70Similarly, the 'home office' as currently proposed is not a 'home business' due to the number of staff employed by the tree lopping business. Therefore, it is not a use for which consent can be granted. 71The 'home office' is therefore not an 'existing undertaking' for the purpose of the definition of 'depot' as it is not a use that does not require development consent or a use for which development consent has been or can be granted in the RU2 zone. 72For the 'depot' to be permissible on the site it must support the operations of an 'existing undertaking'. I find that the tree lopping business is not an 'existing undertaking' for the purposes of the definition of 'depot' in the LEP as, in its current form, it is not a lawful use of the land as it requires consent and no consent has been granted. Therefore the proposal, on the facts of this case, is not permissible within the RU2 zone. However, an amended application which sought approval for firstly, a 'home business', and secondly, a 'depot', would appear to be permissible, subject to the criteria in these definitions being met, including the number of people employed and the floor area used by the tree lopping business.

Contamination 73The executive summary of the SEEC Report states: Investigation has revealed that in 2009 approximately 247 tonnes of Recovered Fines soil was purchased from Gow Street Recycling Pty Ltd. The soil was spread immediately north of the home at the head of a large depression and along the site's western boundary. This was done to form a levelled area for vehicle parking and turning and to provide vehicular access to the property. A copy of the soil test results accompanying the soil purchased from Gow Street Recycling was reviewed. All concentration values were compared with those provided in Table 2 of the Batch Process Recovered Fines Exemption (EPA 2010). With the exception of Benzo(a)pyrene and TPHs (C10 -C36) all values were below those listed (most were below detectable limits). The levels of Benzo(a)pyrene and TPHs (C10 -C36) exceeded the adopted criteria in one of three samples. Had the imported soil been contaminated, the risk to human health was greatest during the tipping and earthworks. However, the risk is now considered relatively low, as potential contaminants have been effectively covered with either crushed sandstone or mulch and native vegetation. The extent of contamination can not be determined from the limited soil tests available and would require a thorough Stage 2 Detailed Investigation. The cost for such an investigation will be considerable and the need for such will be at the discretion of the certifying authorities. 74Mr Rokobauer and Mr Hudson agree that a Stage 2 Detailed Investigation is necessary to demonstrate that the site is suitable for the proposed depot, which involves a change of use. Depending upon the results of the Investigation, remediation works may be required. Options for the remediation of the fill include: + remove and dispose; + treat and rectify; or + cap and contain. 75The key dispute between the parties is whether the Stage 2 assessment must be done prior to the consent being granted for the depot or whether it can be required as a deferred commencement condition. This dispute centres on the uncertainty relating to any remediation works and whether the requirements of cl 7 of SEPP 55 are met.

Findings 76The dispute between the parties relates principally to whether the requirements of cl 7(2) and (3) of SEPP 55 are met. Subclauses (2) and (3) relate to development 'that would involve a change of use' of land which has been filled. The experts agree that the proposal involves a change in use as it seeks to establish a new use, being the 'depot'. I have found that the proposal as currently proposed is not a 'depot' and is prohibited in the zone. Therefore, the requirements of subclause (2) and (3) are not called up and it is not necessary for me to adjudicate on whether it is appropriate or not to require the Stage 2 assessment as a deferred commencement condition. 77Clause 7(1) applies to any development on land, which would include the shed and landscaping works which are proposed as ancillary to the residential use of the site. Clause 7(1) provides: (1) A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 78The agreed evidence is that at least some of the soil imported to the site is contaminated but that the extent of contamination is not known and cannot be known without further investigation. The risk of exposure is currently low, as the soil has settled and been largely covered by vegetation. However, the SEEC report recommends that to ensure that the risk remains low 'any future disturbance of the imported soil be kept to an absolute minimum. If disturbance is essential human personnel must ensure they wear adequate personnel protective equipment (no less than chemical gloves and appropriate breathing apparatus)'. 79I cannot be satisfied that the land is suitable in its contaminated state for the proposed development of the shed or landscaping, which clearly would involve disturbance of the site. There is no proposal for remediation before the Court and, although it is likely that the site will be able to be remediated for the residential purpose for which for the shed and landscaping are proposed, the details of the remediation are not before the Court and would require approval under cl 11(4) of SREP 20. Therefore, I am not satisfied that the requirements of cl 7(1) of SEPP 55 are met.

Orders (1)The appeal is dismissed (2)The development application for "the continued use of site for depot, excavations, retaining walls, and construction of a new farm shed and retaining walls" at 85 Eagles Road, Razorback, is refused. (3)The exhibits, except Exhibits 1 and F, may be returned.

Annelise Tuor Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2012

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Judgment (19 paragraphs)

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