Muscat Developments Pty Ltd v Wollondilly Shire Council

Land and Environment Court (NSW)|2022-10-19

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2022/465/1 for a new equestrian centre and use of various roads (the proposal), at 115 Mount View Close, Razorback (the site), by Wollondilly Shire Council (the Council).

The application is amended

The Applicant, by Notice of Motion heard on 17 October 2022, sought to amend the application to rely on an amended proposal. The motion was unopposed and granted, subject to the Applicant paying the Council's costs thrown away as a result of the amendment, as agreed or assessed, pursuant to s 8.15(3) of the EPA Act.
The amended application was lodged on the NSW planning portal on 19 October 2022 pursuant to cl 37(2) of the Environmental Planning and Assessment Regulation 2021.

Contamination The parties agreed that the site is contaminated by fill containing asbestos and that the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out. The Council contends that a flawed and incomplete assessment of the contamination on the site has been carried out, with the consequence that the Court could not be satisfied of the matters that it is required to be satisfied about under cl 4.6 of SEPP Resilience and Hazards. The Council further contends that the application proposes the reuse and recycling of asbestos waste, being an activity that is prohibited under the POEO Act.

Whether the Court can be satisfied that the land will be remediated before the land is used for the purpose for the development is proposed to be carried out According to Mr Norris, a Remedial Action Plan (RAP) prepared by Martens Consulting Engineers and dated July 2021 (Ex A, tab 24) was prepared to detail how the site is to be made suitable for the proposal. The RAP is based on the findings of the Detailed Site Investigation (DSI). The DSI identifies six phases of investigation comprising 226 test pits, 52 bore holes and six groundwater monitoring wells (Muscat Developments Pty Ltd v Wollondilly Shire Council [2021] NSWLEC 1738 at [120]). The DSI concludes that areas of the site, including the proposed location of the development, are contaminated with asbestos contaminated fill material (Ex A, tab 24, p 15). The RAP, in summary, proposes encapsulation of contaminated material beneath an appropriately designed capping layer and development of a long-term Environmental Management Plan (LTEMP). The RAP proposes to excavate approximately 1,200m3 of material in Remediation Area 1, and to cap the material in Remediation Area 2 (Muscat Developments Pty Ltd v Wollondilly Shire Council [2021] NSWLEC 1738 at 145]). The RAP was the subject of a site audit prepared by an accredited site auditor, which resulted in the issue of a Section B Site Audit Statement (SAS) and an associated report (SAR) (Ex G) for the site. The SAS certifies that the site can be made suitable by implementing the RAP and conditions described in the SAS. The contaminated material at the site, containing asbestos fines/friable asbestos (AF/FA), was notified to the Environment Protection Authority (EPA), by the site auditor on 2 August 2021 under s 60 of the Contaminated Land Management Act 1997 (Ex 4, tab F). Following the receipt of the notification on 25 August 2021, the EPA determined that the contamination at the site does not warrant regulation under the Contamination Land Management Act 1997, because the risk to human health associated with AF/FA contamination outside of the site is considered to be low and acceptable based on the location of the site in a rural area, and the potential exposure to intrusive maintenance works can be managed through appropriate work health and safety procedures (Ex 4, tab D). Mr Clay has carried out his own testing and assessment to identify the extent of asbestos contamination on the site (Ex 3). Mr Clay is critical of the DSI, the RAP and the SAS. According to Mr Clay, the SAS is deficient on a number of grounds (Ex 3, p 2). I accept Mr Norris' response regarding those identified deficiencies (Ex 3, pp 5-6). I accept the agreement of the civil engineering experts (Ex 5) that the concept civil engineering plans are adequate and that the Council's contentions regarding engineering are addressed by the proposal and conditions of consent. According to Mr Clay, the vast majority of the asbestos on the site is a different sort of asbestos than AF/FA, and that contaminated material is not addressed by the EPA in the letter (Ex 4, tab D). In response, Mr Norris said that the EPA was provided with the DSI and the RAP by the site auditor, and so the EPA has not responded in ignorance of the actual contamination on the land, instead, the EPA had all the information necessary to fully consider the contaminated material on the site. In addition, Mr Norris noted that AF/FA is much more hazardous and hence the requirement for notification of AF/FA under the Contaminated Land Management Act 1997. Mr Clay agreed that the risk arising from the non-friable asbestos is much lower than the risk to human health from AF/FA. According to Mr Norris, the Court can be reasonably satisfied that the land is able to be made suitable for the proposal, on the bases of the RAP and SAS. The conditions of consent impose a requirement that the land is certified as remediated and suitable for the proposal prior to the issue of an occupation certificate, ensuring that the site will be remediated before the land is used for the purpose for which the development is proposed to be carried out. I accept the parties' agreement that pursuant to cl 4.6(1)(a) of SEPP Resilience and Hazards, the site on which the development is proposed is contaminated and the land requires remediation to be made suitable for the proposal. It is a jurisdictional threshold pursuant to cl 4.6(1)(c) of SEPP Resilience and Hazard that I must be satisfied that the land will be remediated before the land is used for the purpose for which the development is proposed to be carried out. I accept and prefer Mr Norris' evidence. I am satisfied by the DSI, RAP and SAS supporting the application that the site can be remediated and will be suitable thereafter for use as an equestrian centre with roads. The imposition of conditions F.5 and F.8 on the consent ensures that the site will be remediated to be made suitable for the proposal in accordance with the RAP and the SAS and conditions, and certified as such by a Section A2 SAS, prior to the issue of any occupation certificate.

Re-use and recycling of asbestos waste which is an offence under the POEO Act The Applicant submitted that this issue was pleaded by the Council in Muscat Developments Pty Ltd v Wollondilly Shire Council [2021] NSWLEC 1758 and rejected by Clay AC, at [170]-[183], as follows: 170 The Council argues that the development is in breach of s 144AAB of the POEO Act which is the following terms: [s 144AAB of the POEO Act quoted] 171 Asbestos and asbestos waste are defined in the Dictionary and Schedule 1 to the POEO Act respectively as follows: Asbestos means the fibrous form of those mineral silicates that belong to the serpentine or amphibole groups of rock-forming minerals, including actinolite, amosite (brown asbestos), anthophyllite, chrysotile (white asbestos), crocidolite (blue asbestos) and tremolite. Asbestos wase means any waste that contains asbestos. 172 There is no issue that the development includes the re-working of asbestos waste and that asbestos waste will remain on the site, albeit remediated and capped, effectively as a base for hard stand of various descriptions or part of the base for landscaping works. 173 The Council argues that the development therefore includes the re-use of asbestos waste contrary to s 144AAB of the POEO Act. The simple meaning of the word "re-use" is to use again or more than once, and so what is proposed is re-use. 174 Council then says that it is not in the public interest for development consent to be granted to carry out development which is otherwise unlawful. It is not entirely clear if the Council argues that if a condition is imposed requiring an EPL prior to the carrying out of work then it accepts that development consent can be granted, which it argues in relation to another provision of the POEO Act to which I will come. 175 The Applicant submits, correctly, that the term "re-use" must be considered in its context. It is part of the phrase "re-used or recycled" which confirms, the Applicant says, that the section is directed to preventing activities that involve some sort of advantageous second use of the asbestos waste. Remediating and capping imported fill which includes asbestos-containing material is not a "re-use" of asbestos waste within the meaning of the section the Applicant submits. If it were not so, then every remediation project in respect of asbestos containing land would involve the commission of a criminal offence. An enactment which imposes a criminal liability would not be read so broadly the Applicant further submits. 176 I agree with the Applicant. The proper meaning of "re-used" takes its colour from its immediate and broader context within the POEO Act. In its immediate context I accept the Applicant's argument that the section is directed to advantageous second use of the asbestos waste, rather than its remediation. It is true that here the asbestos waste is being "used" in that a consequence of its remediation is a change in the landform of the site, but the development is properly characterised as including the remediation of the asbestos waste. 177 It would appear to be the case that any remediation of asbestos waste by the common method of "capping" will inevitably involve the change in landform of the site at which it is disposed and so could be said to be "used" or "re-used". I accept the Applicant's submission that the legislature could not have intended that remediation in those circumstances would result in the commission of an offence. 178 In any event the Council accepted that the Court has power to grant a development consent the carrying out of which may be in breach of another law citing McDougall v Warringah Shire Council (1993) 30 NSWLR 258, but it submitted that the potential breach is a relevant consideration in determining whether to grant consent. That may well be the case as a matter of public interest, but here, even if I was satisfied that the carrying out of the development would result in a breach of s 144AAB of the POEO Act, I would not decline to grant consent. 179 It is accepted that the bringing onto the land of the waste material, including the asbestos waste, was unlawful. That is the foundation of any subsequent potentially unlawful activity. The environmental consequences of that unlawful act must be dealt with, and in this case are sought by the Applicant to be dealt with by the grant of development consent to this DA. If the waste is being dealt with in an environmentally acceptable manner, then it seems to me it is not in the public interest to refuse the DA. 180 To the extent that the Council submission refers to the "re-use" of any waste which is not being re-worked, then any "re-use" has already occurred. I do not consider that the placement of capping on waste material which is to remain in situ constitutes the "re-use" of that material. 181 The Council position carries with it the hint of taking into account the prior unlawful activity, which it agrees ought not be done, or a form of specific and general deterrence or discouragement to the Applicant and others who may consider bring contaminated material onto a site. 182 The province of punishment and deterrence are for the criminal law and in this case not determinative of the DA. 183 A further reason I would not decline to grant consent in the public interest is that it appears inevitable that an EPL will be required pursuant to s 48 of the POEO Act for the Applicant to carry out the remediation, as the Council submits. I will set out the reasons for that conclusion below. In those circumstances the regulator has the capacity to both approve the work and ensure it is carried out in accordance with any EPL granted. It would be an odd outcome to refuse to grant development consent to a proposal which includes the remediation of the site and which will be licensed under the POEO Act in order to carry it out. I respectfully adopt Clay AC's reasoning and his findings at [175]-[176] and [179]-[180]. I am satisfied that the proposal to manage the contaminated material onsite is not prohibited under the POEO Act. As the Applicant chose not to nominate the application as integrated development (s 4.46(1A) of the EPA Act), the parties agreed on a condition of consent requiring the Applicant to obtain an environmental protection licence (EPL) from the EPA under the POEO Act, or confirmation from the EPA that an EPL is not required, prior to the carrying out of any earthworks (condition D.12(1) of the conditions of consent at Annexure A).

Excavation The Council submitted, in summary:

The application proposes significant earthworks to level what is essentially a sloping site, and in doing so, the application quite clearly seeks to maximise the amount of earthworks to be undertaken.
The extent of earthworks proposed is a matter going to the Court's jurisdiction to determine the application, under cl 7.5 of LEP 2011.
For the reasons given by Mr Clay, the Court would not be satisfied as to the quality of the fill - the fill is asbestos waste.
The Court would not be satisfied that the proposal has been designed so as to minimise the extent of earthworks. The application makes no attempt to do so because the fill material has been imported to the site already (unlawfully, without any approval) and the purpose of the application is to obtain development consent for the retention of this unlawfully imported material. The Applicant submitted, in summary:
The Applicant is not seeking consent to 'regularise' any alleged unlawful past work, or any form of 'retrospective' development consent.
The quality of fill and excavated material within the site has been assessed in the DSI report and has been found to be suitable for the intended purpose subject to the implementation of the remediation works as described in the RAP and approved by the SAS.
The proposal will use existing onsite material with no importation of fill material, other than road base, landscaping, and horse arena construction material. The excess material shall be waste classified in accordance with the NSW EPA guidelines and disposed of to an appropriately licenced waste facility. It is a jurisdictional threshold pursuant to cl 7.5(3) of LEP 2011 that I must consider the quality of the fill or the soil to be excavated, or both, and the source of any fill material and the destination of any excavated material. I accept and prefer the Applicant's submissions. I have considered the quality of the fill to be excavated and used to create a level area for the equestrian centre and for the reasons set out above at [40], together with the proposed landscaping and revegetation, I am satisfied that the earthworks proposed, for which consent is required, will not have a detrimental impact on environmental functions and processes, neighbouring uses or features of the surrounding land.

Scale of the proposal The proposal is for a maximum of 40 horses (Statement of Environmental Effects at 3.2.1 Ex A, tab 13). The Council submitted that the scale of the proposal lacks any rational justification. Mr Barwick relied on the "farm building" controls under "Specific Land Use Controls", at Volume 8, Part 3, 3.5 of DCP 2016, "the maximum size of a farm building in zones… RU2 Rural Landscape… must not exceed 500m2, unless the Applicant can justify additional size is required to undertake the principle [sic] land use". According to Mr Barwick, the proposal exceeds the control by 528%.

The Council submitted that Volume 8 of DCP 2016 states, "This Volume provides controls for the development and use of land for the purposes of primary agricultural or rural land uses and any development ancillary to those uses and forms part of the Wollondilly Development Control Plan 2016" [emphasis added] and as an equestrian centre is a rural land use, the Court would consider the objectives of 3.5.1. Furthermore, leaving aside the question of whether an equestrian centre is definitionally an 'agricultural use of the landholding' it should not be seriously in dispute that the stables, barns, and vehicle sheds proposed on the site are 'the like' of a hay shed, machinery shed, shearing shed, or other farm outbuilding. Regardless of whether the buildings proposed on the site are strictly to be used for the purposes of a farm, it is clear that they are of 'the like' of such buildings in terms of their form and presentation. I accept and prefer the Applicant's submissions, which can be summarised as:

Once a determination of permissibility is made by categorising a purpose, the fact that it may also fall within another purpose is legally irrelevant (Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160 at 5).
The provisions under "farm buildings" in Volume 8, Part 3 of DCP 2016 has no application to the proposal, nor is it "appropriate to be guided" by those provisions in the assessment of an equestrian centre.

The provisions regarding farm buildings in Volume 8, Part 3, 3.5 Farm buildings, 3.5.2 Bulk and scale apply to farm buildings, as defined by the dictionary of LEP 2011. Farm building means a structure the use of which is ancillary to an agricultural use of the landholding. The proposal is for an equestrian centre, which is a different use to an agricultural use; it is an "recreation centre (outdoor)" as defined by the dictionary of LEP 2011. The stables, vehicle shed, and storage shed are structures that, together with the riding arena and horse yards, comprise the equestrian centre. Those structures are not ancillary to an agricultural use.
The provisions under "farm buildings" in DCP 2016 have no application to the proposal.
According to Mr Barwick, the horse float car parking capacity is for 20 floats, and a typical float can accommodate 2 horses, as so the float car parking potential alone could accommodate the maximum of 40 horses on the site. Mr Barwick's criticism of the scale of the proposal is that the brief requires an essentially level platform, and this is driving the extent of cut and fill.
I am satisfied that the proposal is for a maximum of 40 horses by the imposition of condition B(2) which refers to the Operation Plan of Management (as the Operation Plan of Management cites a maximum of 40 horses on the site, at 2.1 (Ex A, tab 12)). Conclusion
I am satisfied by the DSI, RAP and SAS supporting the application that the site can be remediated and will be suitable thereafter for use as an equestrian centre with roads. The imposition of conditions on the consent ensures that the site will be remediated to be made suitable for the proposal in accordance with the RAP and the SAS and conditions, and certified as such by a Section A2 SAS, prior to the issue of any occupation certificate. The proposal to manage the contaminated material onsite is not prohibited under the POEO Act. I am satisfied, based on all the evidence before me, that the accommodation proposed for the equestrian centre is appropriate to its purpose and size, and consistent with the rural character of the area. Orders The orders of the Court are: The Applicant is granted leave to amend the application to rely on the documents listed under condition B(2) of the conditions of consent at Annexure A. 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. The appeal is upheld. Development Application No. 2022/465/1 for a new equestrian centre and the use of various road works, at 115 Mount View Close, Razorback, is determined by the grant of consent, subject to the conditions of consent at Annexure A. The exhibits, other than exhibits 1, A, C and E, are returned.

Susan O'Neill Commissioner of the Court

Annexure A 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: 01 December 2022

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Judgment (9 paragraphs)

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