Muscat Developments Pty Ltd v Wollondilly Shire Council

Land and Environment Court (NSW)|2022-11-11

Solicitors: Storey and Gough Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/39705 Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against deemed refusal of Development Application 2021/984/1 by the Wollondilly Shire Council (hereafter the Council) which, as amended, seeks a change of use for three existing sheds to a depot, construction of a new shed as a farm building, remediation works of existing unauthorised contaminated fill, earthworks to reshape existing mounds of unauthorised fill, use of mounds with unauthorised fill, and landscaping over/around new mounds on Lot 5 DP 260390, also known as 440 Cawdor Road, Cawdor (the site).
For the reasons explained below, I am not satisfied that the proposed development addresses the relevant jurisdictional and merit assessment requirements for the Court to determine to grant consent to Development Application (DA) 2021/984/1.

The (amended) application and hearing process

Development Application 2021/984/1 (hereafter the application) was submitted to Council on 26 October 2021. The (original) application was uploaded by the applicant to the NSW Planning Portal, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).
The (original) application was referred to relevant approval bodies, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act) including: NSW Environment Protection Authority (EPA); Sydney Water; Transport for NSW (TfNSW); Department of Primary Industries (DPI); Subsidence Advisory NSW (SANSW); NSW Rural Fire Services (RFS); Natural Resources Access Regulator (NRAR); and NSW Farmers Association.
With respect to the original application, General Terms of Approval (GTA's) were received from SANSW and RFS, which are incorporated into the draft conditions of consent. The EPA advised no further issue with the application, provided the volume of imported material was described and also that an Environment Protection Licence (EPL) would not be required for the proposed works. Sydney Water confirmed that the site is not serviced by water and sewage, and TfNSW sought additional information on traffic generation. DPI raised no objection, although identified a possible issue with the Biosecurity (Salmonella Enteritidis) Control Order 2020, related to an increase in truck movements from the site, although subsequently provided GTA's to address this issue, described in the draft conditions of consent. No response was received from NRAR and NSW Farmers Association.
It is noted that the amended application was also referred to TfNSW, SANSW, RFS and NRAR. No further issues were raised by relevant authorities.
The applicant appealed against the deemed refusal of the application, pursuant to s 8.7(1) of the EPA Act. Pursuant to s 34D of the Land and Environment Court Act 1979 (the LEC Act), the hearing commenced with a site view, by agreement of the parties and then proceeded in person, in Court. As part of the site view, I also drove around the area surrounding the site including along Westbrook and Cawdor Roads to observe the rural landscape character.
Prior to the commencement of the hearing, the applicant sought leave to rely on amended plans and documents that support the application, by a Notice of Motion (NoM) filed on 2 August 2022. Without opposition of the respondent, on 12 August 2022 the Court granted leave to rely on the amended documents to amend the application, tendered as Exhibits B1-B4. The primary amendments made to the application include:

Deletion of the proposed forth (4th) depot, to be replaced by construction of a 72m x 20m shed with hardstand to support the existing poultry farm;
Provision of two vehicular control points (with gates);
Reduction in staff numbers and hours of operation;
Amend earthworks design of proposed mounds with increased setback, reduced height and improved batter slopes;
Amend landscaping design; and
Amend stormwater management design.

By agreement of the respondent, the Court directed the applicant to upload the documents that amend the application onto the NSW Planning Portal, pursuant to cl 55 of the EPA Reg. The documents relevant to the NoM were uploaded to the NSW Planning Portal on 19 August 2022. In response to the application amendments, the Court also provided the respondent an opportunity to amend their Statement of Facts and Contentions (SoFC), which was filed on 6 September 2022, tendered as Exhibit 3.
During the hearing, the applicant sought leave to amend the Remediation Action Plan (RAP) and swept paths plan. The Court granted leave to rely on these documents, tendered as Exhibits E (RAP) and 7 (swept paths), without opposition of the respondent, although with the request for a costs order to be made to address the amended RAP. The Court directed the applicant to upload the documents to the NSW Planning Portal, which was done on 11 November 2022.
The amended application now before the Court under appeal is described as being for:

Change of use of three existing sheds to a depot, with construction of associated hardstand areas,
Construction of a new shed to be used as a farm building in support of the existing poultry farm with associated hardstand,
Onsite remediation of unauthorised fill (already onsite) to address asbestos waste contamination and removal of fuel tanks with soil remediation (causing hydrocarbon contamination), capping/covering of new mounds with 'clean' fill material and landscaping,
Earthworks involving re-working of (unauthorised filled) mounds to be located around the new shed, poultry farm and depot, and
Use of (existing) unauthorised filled mounds located around the existing poultry farm and dwelling residences.

The location and shape of the mounds on the site are shown in Figure 1, which describes mounds that are: already approved by consent (red); new to be re-worked/reshaped with capping (blue); and existing, unauthorised and not to be re-worked, although to remain and 'used' (green). It is noted that where the coloured lines converge, the blue line is the future shape of the mound with capping, and where the red and green lines extend beyond the blue line, this area of mound remains. Figure 1: Site Overview Plan
The proposed (mound) earthworks, the subject of the amended application, are described generally as creating a:

Northwest mound (also known as the northern mound, dam mound and mound 3A/3B) - an existing mound of unauthorised fill to be reshaped, located in the northwest of the site, proposed to be 96.37m AHD, oriented in an east-west direction, and setback from the nearest boundary by 5-10 m;
Central mound (also known as the J mound, southeast mound and mound 2) - an existing mound of unauthorised fill, located in the centre/east of the site, proposed to an elevation of 98.7 to 103 m AHD, oriented in a north-south direction; and
Northeast Mound (also known as mound 1) - is a new mound, constructed with 'clean' fill to 97 m AHD, oriented in a north-south direction, and to be located adjacent to the intersection of Westbrook and Cawdor Roads.

There are numerous other smaller mounds across the site that are not the subject of the proposed earthworks, although form part of the amended application for use or are already approved by consent, as shown in Figure 1.
The proposed northwest and northeast mounds are designed to physically separate the road/public space from the existing poultry farm and new depot, respectively, and the central mound is intended to physically separate the existing poultry farm from the new depot and existing residential dwellings on the site.
There are two (2) residential dwellings on the site currently tenanted and located south of the existing poultry farm, central to the site, and accessed directly from Cawdor Road.
Based on the supporting documents to the amended application, expert reports and agreed draft conditions of consent, the Council explained that it is satisfied that the contentions, as described in the amended SoFC which relate to traffic, biodiversity, depot permissibility, flooding and stormwater/wastewater management have been resolved. This is accepted, although it is noted that where there is a jurisdictional requirement, to grant consent, the Court must derive its own opinion of satisfaction, irrespective of whether it was pressed by the respondent.
The key issue that remains in contention between the parties relates to the unauthorised fill associated with the existing and proposed mounds, specifically whether: the remediation works are lawful and acceptable for the intended development purpose (uses) on the site; and the location of the proposed mounds to maintain the rural landscape character.
The amended application is not complex in its intention to create and use mounds on the site. However, complexity arises for the Court in its assessment (and for the parties giving evidence during the hearing) from the information and evidence supporting the amended application, and proposed reliance on unauthorised fill. The evidence has conflicting nomenclature of the existing and proposed mounds, insufficient description of the content of the mounds, and a lack of proper consideration of the existing and actual current uses on the site.
Below, as required in my determination of the amended application under appeal, I address the outstanding contention/s raised in the amended SoFC, and any relevant jurisdictional requirements, together with a merit assessment of the proposed development.

The Site

The total area of the site is 24.27 hectares (Ha). The site is an irregular, square shape, located adjacent to the Cawdor Road, which forms the eastern boundary, along a frontage of 404 m. The northern boundary of the site is adjacent to Westbrook Road, with a frontage of 546 m.
The site currently contains structures that include: two (2) residential dwellings; six (6) poultry sheds; four (4) sheds; water tanks; and hard stand areas for traffic circulation. There are two driveway entries to the site, with the entry from Westbrook Road to the poultry farm and its operations, and the entry off Cawdor Road to the residences.
There are isolated pockets of large established trees along the northern and eastern street frontages, and more extensively across the southern portion of the site. The area which relates to the existing poultry farm and sheds is generally cleared of vegetation.
The area surrounding the site is generally rural, dominated by a mixture of agricultural activity, including grazing and poultry farming on large lots generally containing a residential dwelling with sheds. The site is located approximately 1 km from the village of Camden South, and to the south of Camden High School.
The site contains a '2nd order' unnamed watercourse traversing the north-west corner, which flows northwards beneath Westbrook Road, and drains to Matahill Creek, in the catchment of the Nepean River. The area around the creek is prone to flooding. The north-west of the site also contains a dam.

Relevant history of the site

The site is currently used as a poultry farm, approved under consents DA10.2012.125.004 (known as the Broiler consent) and DA10.2017.174.1 (known as the Poultry Farm consent), granted by the Court on 6 June 2017 and 18 October 2018, respectively. As part of these consents, numerous (earth) mounds surrounding the poultry farm were approved (as shown in red in Figure 1).
The applicant seeks to retain these approved mounds in their approved and designed location. The earthworks relevant to the amended application (blue and green in Figure 1) encompass in part these approved mounds (red in Figure 1). The amended application seeks to rely on, as well as augment in areal and height dimension the approved mounds, and 'use' the remaining part of the (existing) unauthorised mounds.
There is no dispute that the applicant has brought additional fill (without consent) onto the site and commenced earthworks for the construction of unauthorised mounds on the site, starting around 24 September 2020. The Council sought for the applicant to cease these earthworks, which were not the subject of previous consents, although the applicant continued importing fill and construction of the unauthorised works through to 26 March 2021. The unauthorised fill is of unknown source and approximately 185,874 m3 in volume.
The unauthorised fill is shaped into mounds on the site, which are described as containing material contaminated with asbestos, as well as concrete, asphalt, plastic and steel.
The mounds (and 'northern pad') are sparsely covered by vegetation and highly eroded by uncontrolled drainage.
Class 4 consent orders of this Court (Exhibit 1) relating to the site and the unauthorised fill were published on 18 August 2022 (Court case number 2021/84012), and are summarised below:

No further earthworks or fill importation without consent,
If consent is not granted in this amended Class 1 application (now before the Court), then remediate and restore the site through a RAP, prepared by a suitably qualified person, and
Seek relevant approvals to remediate the site and demonstrate appropriate action has been taken to remediate the site, as per a consent or these consent orders.

Relevant Planning Controls

The site is identified in Council's mapping as being on bushfire prone land, therefore the requirements of s 4.14 of the EPA Act are relevant for the Courts consideration. The amended application relies on a bush fire assessment report, dated 31 August 2021 by Blackash Bushfire Consulting, and the Court is satisfied the requirements of s 4.14 are addressed.
The site is located within the Wilton Mine Subsidence District, and therefore subject to the provisions of the Coal Mine Subsidence Compensation Act 2017 (CMSC Act). Section 22 of the CMSC Act requires approval to make improvements on the site. The application was referred and assessed by the SA NSW, who provided GTA's in satisfaction of the CMSC Act.
The requirements of s 4.15 of the EPA Act are relevant for the Court's consideration to grant consent to the amended application under appeal, as described below: 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
A portion of the site is identified on the Biodiversity Values (BV) Map, prepared by the Department of Planning and Environment, pursuant to Part 7 of the Biodiversity Conservation Act 2016 (BC Act). Clearing of land mapped on the BV Map is to be assessed pursuant to 7.3 of the Biodiversity Conservation Regulation 2017 (BC Reg). The BC Reg supports the implementation of the Biodiversity Conservation Act 2016 (BC Act). The amended application relates to an area mapped on the BV Map, although within an area of previous earthworks. The amended application is supported by a Biodiversity Assessment Development Report (BDAR), prepared by Land Eco Consulting, dated 7 October 2021, pursuant to the provisions of the BC Act. The proposed works include the clearing of 0.98 ha of vegetation with biodiversity values, and the BDAR relies on biodiversity offset credits (5 credits for flora of the Cumberland Plains Woodlands), which are calculated pursuant to the BC Act. The parties' experts agree with the approach described in the BDAR. I accept that the general requirements of the BC Act are satisfied.
The north-eastern corner of the site is traversed by a '2nd order' unnamed watercourse. The Court is advised that a controlled activity approval, pursuant to s 91 of the Water Management Act 2000 is not required for the amended application.
The engagement of the Protection of the Environment Operations Act 1997 (PoEO Act), with regards to the proposed remediation of asbestos waste, is in dispute between the parties and a jurisdictional consideration of the Court.
Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of written consent from the owner of the site for works proposed by the amended application.
The amended application relates to a contaminated site, therefore subject to the relevant provisions of Chapter 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience). This remains a primary contention and a jurisdictional consideration of the Court.
The State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity) is also relevant for consideration of the amended application based on the site being located within the Nepean River catchment, pursuant to Chapter 9, specifically ss 9.7 and 9.9 are engaged.
The proposed development is situated over land zoned RU2 Rural Landscape, pursuant to cl 2.3 of the Wollondilly Local Environmental Plan 2011 (WLEP). The proposed change of use of the sheds to a depot and construction of a new shed as a farm building to support the poultry farm, is permissible in the zone. The Court is satisfied that the proposed depot is consistent with the objectives of the RU2 zone, however the proposed new mounds, the subject of the appeal, with respect to the rural landscape objective of the zone, remains in dispute and is a jurisdictional consideration for the Court.
The WLEP defines a depot as 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'. A farm building is defined as 'a structure the use of which is ancillary to an agricultural use of the landholding on which it is situated and includes a hay shed, stock holding yard, machinery shed, shearing shed, silo, storage tank, outbuilding or the like, but does not include a dwelling.' Fill is defined as 'the depositing of soil, rock or other similar extractive material obtained from the same or another site, but does not include - (a) the depositing of topsoil or feature rock imported to the site that is intended for use in garden landscaping, turf or garden bed establishment or top dressing of lawns and that does not significantly alter the shape, natural form or drainage of the land; or (b) the use of land as a waste disposal facility'. Reduced Level (RL) means the 'height above the Australian Height Datum, being the datum surface approximating mean sea level that was adopted by the National Mapping Council of Australia in May 1971'.
The Court assesses that the site or part thereof, is mapped in the WLEP as: 1. within the Metropolitan Rural Area, pursuant to cl 7.9, 2. being flood prone, pursuant to cl 5.21, 3. within the vicinity of heritage items (identified as I57, I58 and I61 in Schedule 5), pursuant to cl 5.10, and 4. on 'sensitive land' for natural resources - water map, pursuant to cl 7.3.
I am satisfied by the evidence supporting the amended application, expert reports and the agreed draft conditions of consent that the relevant requirements of cll 5.10, 5.21, 7.1, 7.3 and 7.9 of the WLEP are addressed.
The amended application relies on earthworks that require consideration pursuant to cl 7.5 of the WLEP. This issue remains in contention and is a jurisdictional consideration of the Court.
The Wollondilly Development Control Plan 2016 (WDCP) is relevant in consideration of the amended application, and the Court is satisfied there are no inconsistencies with the WDCP.
In consideration of the remaining contentions relating to the amended application, the parties and experts draw the Court's attention to the following policy documents and guidance for reference and assessment:

NSW EPA Waste Classification Guidelines, Part 1: Classifying waste 2014. (hereafter the Waste Guidelines)
National Protection (Assessment of Site Contamination) Measure 1999 - Volume 1 (hereafter NEPM).
NSW EPA Managing Land Contamination Guidelines (CLM Guidelines).

Experts

The Court was provided with joint expert reporting from the following experts: 1. Planning - Mr Scott Barwick and Mr James Lovell. 2. Traffic - Mr Paul Corbett and Mr Hayden Calvey 3. Contamination - Mr Jason Clay and Dr Ian Swane 4. Wastewater - Mr David McMahon and Dr Daniel Martens. 5. Flooding - Mr Mark Colegate and Dr Daniel Martens.
Oral expert evidence was also provided in the hearing by the flooding, planning and contamination experts. By agreement of the parties and concurrence of the Court, the other listed experts were not called to give oral evidence because the contentions relevant to their expertise had been resolved prior to (by amendments to the application) and/or during the hearing (by condition), and the Court had no further enquiries based on their joint expert reports, supporting documents to the amended application, and agreed draft conditions of consent.

Resident submissions

The (original) application was notified to surrounding residents, and Council received seven submissions in objection, as well as a submission from Camden Council, being an adjoining Local Government Area. The issues raised in the submissions included: impacts to rural landscape character; future development on the site; retrospective approval for filling; adverse traffic impact; dust; biosecurity; stormwater management; and inappropriate storage of contaminated material. These submissions are provided in Exhibit 1 and are a consideration in my assessment.
The amended application was not renotified by Council.

Issues for consideration

With regards to the issue of contamination and reworking/use of the unauthorised fill, the Court has two primary jurisdictional tests to consider. Firstly, whether the proposed onsite remediation of asbestos waste by reworking is lawful, pursuant to the PoEO Act; and secondly, whether the proposed remediation strategy is appropriate for the intended development purpose and use/s of the site, pursuant to the WLEP and SEPP Resilience.
Also, of consideration relating to the proposed mounds, as described in the amended application, is whether the proposed location and dimension of these mounds maintains the rural landscape character of the land, pursuant to the objective of the RU2 zone, as described in cl 2.3 of the WLEP.

Contamination: Is the proposed onsite reworking of asbestos waste lawful; and are the proposed remediation works appropriate to make the site suitable for the intended development purpose?

Jurisdictional requirements

With regards to the lawfulness of the onsite reworking (re-use) of asbestos waste to reshape mounds, the relevant provisions of the PoEO Act to be considered are specifically: 142A Pollution of land (1) A person who pollutes land is guilty of an offence. Maximum penalty - (a) in the case of a corporation - $2,000,000 (if the offence involves asbestos waste) or $1,000,000, and in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual - $500,000 (if the offence involves asbestos waste) or $250,000, and in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. .. (2) In this section - pollute land includes cause or permit any land to be polluted. 144AAB Re-use and recycling of asbestos waste prohibited A person must not cause or permit asbestos waste in any form to be re-used or recycled. Maximum penalty - (a) in the case of a corporation - $2,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual - $500,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. …
With regards to the proposed remediation works to make the site suitable for its intended development purposes, cl 4.6 of the SEPP Resilience is engaged, as described below: 4.6 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 subsection (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 subsection (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).
Table 1 of the Waste Guidelines, as referenced in cl 4.6 of SEPP Resilience describe asbestos waste, asbestos and special waste, as follows: 'Special waste' is a class of waste that has unique regulatory requirements. The potential environmental impacts of special waste need to be managed to minimise the risk of harm to the environment and human health. Special waste means any of the following: � clinical and related waste � asbestos waste � waste tyres � anything classified as special waste under an EPA gazettal notice. 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 waste means any waste that contains asbestos.
As the site is located within the catchment of the Nepean River, and subject to the provisions of the SEPP Biodiversity, pursuant to cl 4.8(d) of the SEPP Resilience, the proposed remediation works are identified as 'Category 1', and cl 4.10, described below is of consideration: 4.8 Category 1 remediation work: work needing consent For the purposes of this Chapter, a category 1 remediation work is a remediation work (not being a work to which section 4.11(b) applies) that is - (a) designated development, or (b) carried out or to be carried out on land declared to be a critical habitat, or (c) likely to have a significant effect on a critical habitat or a threatened species, population or ecological community, or (d) development for which another State environmental planning policy or a regional environmental plan requires development consent, or (e) carried out or to be carried out in an area or zone to which any classifications to the following effect apply under an environmental planning instrument - …. (f) carried out or to be carried out on any land in a manner that does not comply with a policy made under the contaminated land planning guidelines by the council for any local government area in which the land is situated (or if the land is within the unincorporated area, the Minister). 4.10 Refusal of consent to category 1 remediation work (1) The consent authority must not refuse development consent for a category 1 remediation work unless the authority is satisfied that there would be a more significant risk of harm to human health or some other aspect of the environment from the carrying out of the work than there would be from the use of the land concerned (in the absence of the work) for any purpose for which it may lawfully be used. (2) Nothing in this section prevents the consent authority from refusing consent to a development application if - (a) by operation of an environmental planning instrument or section 79B(3) of the Act, the development application may not be determined by the granting of consent without the concurrence of a specified person, and (b) that concurrence is not given. (emphasis added)
Clause 7.5 of the WLEP is also engaged based on the proposed earthworks (reworking of the mounds), as described below: 7.5 Earthworks (1) The objectives of this clause are as follows - (a) 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, (b) to allow earthworks of a minor nature without requiring separate development consent. (2) Development consent is required for earthworks unless - (a) the work is exempt development under this Plan or another applicable environmental planning instrument, or (b) the work is ancillary to other development for which development consent has been given. (3) Before granting development consent for earthworks, the consent authority must consider the following matters - (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the proposed development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the proposed development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area. (emphasis added)

Evidence

With regards to the site contamination assessment and proposed remediation works, the amended application relies on the following documents:

Preliminary Site Investigation by Martens Consulting Engineers, dated October 2021. (hereafter the PSI)
Stage 2 Detailed Site Investigation by Coleman & Adams Environmental, dated 27 July 2022. (hereafter the DSI)
Stage 3 Remedial Action Plan by Coleman & Adams Environmental, dated 8 November 2022. (hereafter the RAP)

In oral and written evidence, the experts agree that the site is contaminated by (unauthorised) imported fill material, which contains an unknown quantity of asbestos waste. However, they disagree on the likely extent of the asbestos contamination within the fill and its dispersion within the existing mounds.
It is acknowledged that this unauthorised fill, which currently forms part of the northern and central mounds, other small mounds and the northern pad was imported and placed on the site without consent, and that the source of the material has not been disclosed to either the Council or the Court, therefore is unknown.
The experts agree that 'fibrous' asbestos found on the site is a most serious concern to human health, and that any asbestos (including fibrous and bonded) found on the site is defined as 'Special Waste', as described in the Waste Guidelines and PoEO Act.
The experts also agree that the applicant does not currently have an environment protection licence (EPL) to deposit or import contaminated fill onto the site, pursuant to the PoEO Act. It is accepted that the EPA has not sought an EPL, based on review of the amended application, however the parties agree that the draft conditions of consent provide for an EPL, if required.
The experts agree that there are three intended purposes/uses for the site, being: commercial (poultry farm); industrial/commercial (depot); and residential. They also agree that the risk to human health is the most significant issue for consideration relating to the asbestos waste. They are satisfied that the environmental risks related to the unauthorised fill has been adequately assessed and are addressed in the amended RAP.
The primary concern of and dispute between the contamination experts relates to the amount, quality and placement of an unknown source of fill, that contains an unknown amount of asbestos material, and used to form the exposed mounds (around the approved mounds). The experts agree there is also 'hot spot' hydrocarbon contamination, however, accept that this contamination is adequately dealt with in the amended RAP and by draft conditions of consent.
The experts explained that they both found asbestos fragments on the surface of the central mound during their (separate) walkovers, although the DSI did not detect any asbestos contamination within this same mound. Further to this, an asbestos fragment was found by Mr Clay during a walkover of the northern pad, although the experts do not agree on its source. The experts agree that the DSI was prepared according to the relevant guidelines, and that the potential for asbestos waste at the surface or at depth in the central mound (and northern pad) remains uncertain. They agree the DSI identifies asbestos waste in the (existing) northern mound, which has informed the remediation methodology as described in the amended RAP.
The remediation works proposed for this site and relied on by the amended application are described in the amended RAP, Exhibit E as follows: hotpot removal of asbestos/hydrocarbon contamination; handpicking of asbestos waste from the surface (also known as 'emu picking'); 'borrowing' and stockpiling of uncontaminated fill; and capping (with clean fill from stockpile) of new mounds with landscaping to 'entomb' contaminated waste. The shape of the new mounds relies on the movement of existing unauthorised fill, described as 're-working', as shown in civil plans in Exhibit B1.
As part of the remediation works, three borrow pits (1, 2A and 2B) are to be excavated to (an RL of) 80.9 m AHD, equivalent to the natural (previous) ground surface. These pits are in the area beneath the future northeast mound and the existing (unauthorised) filled area near the dam (the northern pad). The material from the borrow pits will be stockpiled in areas located nearby, and will provide the 'clean' fill to form and cap the mounds.
The 'cap' (remediation cover) of the northeast, northwest and central mounds is to be completed with 'clean' (from the stockpiles) fill compacted to a 0.5 m thickness, then 0.3 m of topsoil and covered by 0.075 m of organic mulch. The capping material is then to be planted with a variety of flora species, as described in the landscape plan in Exhibit B1. It is noted that the applicant had not intended to 'cap' the southern portion of the central mound (green in Figure 1). However, after evidence of the experts that this area may contain asbestos waste, it was agreed to include a draft condition of consent which requires this area to also be capped, consistent with the remainder of the central mound (shown in blue in Figure 1).
Hot spot remediation is proposed by removing surface and shallow subsurface fill material from the existing northern mound which have observed occurrences of asbestos waste (fines/fibrous, AF/FA) and hydrocarbon (total recoverable hydrocarbon (TRH) contamination. 'Emu picking' and disposal of asbestos fragments where it is observed at the surface is also proposed. This will form part of the ongoing management of the site and unexpected finds protocol, as described in the amended RAP.
The experts fundamentally disagree on the proposal for 'onsite' treatment of the unauthorised fill containing asbestos waste, as preferred and described in the amended RAP, with Mr Clay seeking offsite treatment and Mr Swane finding onsite treatment of the asbestos waste as appropriate in this circumstance. Mr Lazarus further submits that offsite treatment would cause excessive financial burden to the applicant, with unnecessary truck movements and filling of a landfill.
Mr Clay disputes whether the proposed onsite remediation method is appropriate to adequately treat asbestos waste on the site and protect human health, based on the inaccurate baseline information on asbestos occurrence across the mounds (derived from the PSI, DSI and walkovers), and the amended RAP's reliance on an unexpected finds protocol to address any unforeseen (asbestos) discoveries. In oral evidence, Mr Clay advised the Court that he was not previously aware that there were existing (tenanted) residences on the site, and that with this knowledge he would have considered these residences were a sensitive receptor for any asbestos exposure, particularly because the southern part of the central mound (which was initially to remain uncapped) is closest to these dwellings and asbestos was observed at ground surface.
Based on the potential inaccuracy and/or errors of the site assessments to properly identify the presence of asbestos waste within the unauthorised fill across the site, Mr Clay considers that a site audit statement should accompany the application, as described in the CLM Guidelines, before consent is granted.
Dr Swane relies on the PSI and DSI, together with his walkover to inform himself that the proposed onsite remediation works, as described in the amended RAP, and the draft conditions of consent, are adequate and appropriate for this site because the information available sufficiently describes the location, depth and extent of known asbestos waste associated with the unauthorised fill, together with the unexpected finds protocol. Dr Swane explained that he was aware that the site had tenanted residences, however considers that this did not change his view on the sufficiency of the amended RAP to address risk to human health. He agreed that asbestos waste within the southern portion of the central mound would be an unacceptable health risk to these residents, particularly if the mound remained uncapped (as originally proposed). He considers that the amended RAP, with its unexpected find protocol, and the amended capping of the central mound (by condition) would sufficiently mitigate any health risk to residents on the site.
Dr Swane considers that the proposed draft condition to prepare a site audit statement prior to the construction certificate is appropriate, because the DSI is sufficiently accurate and the CLM guidelines do not mandate a site audit statement as being required before consent is granted.
It is also noted that the applicant has adopted a similar approach to the filling of their land with unauthorised fill, namely on a property adjacent to the site, as determined by Dixon SC in Muscat Developments Pty Ltd trading as Muscat Developments Pty Ltd v Camden Council [2021] NSWLEC 1486 (hereafter the Muscat v Camden judgment). The applicant directs the Court to this judgement and relies on these (adjoining) mounds to inform the rural character assessment, which is the only aspect of this judgement that the Court derives an assessment from.
In addition, the parties direct the Court to a determination by Clay AC in Muscat Developments Pty Ltd trading as Muscat Developments v Wollondilly Shire Council (No 2) [2022] NSWLEC 1012 (hereafter the Muscat judgment) which relates to a site filled with unauthorised and (asbestos waste) contaminated material, under similar circumstances as described in the appeal now before the Court. Consent was granted in that appeal seeking to remediate asbestos waste onsite, referenced and relied on by the applicant, by submission of Mr Lazarus to inform the legitimacy, pursuant to the PoEO Act of the proposed onsite reworking of asbestos waste. The respondent, by submission of Mr White disagrees with this determination of Clay AC and seeks the Court to find its own determination based on the amended application.

Is the proposed onsite 'reworking' of asbestos waste as part of the remediation strategy lawful?

It is accepted that the lawfulness of the original placement of the unauthorised imported fill onto the site is not the jurisdictional test in consideration of the amended application currently before the Court. There is sufficient caselaw to guide the Court from any misdirection by focusing on the unlawfulness of the act of importing the unauthorised and contaminated fill onto the site by the applicant, including in: Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28; Chami v Lane Cove Council [2015] NSWLEC 1003; and Jonah v Pittwater Council [2006] NSWLEC 99.
In submission to the Court, Mr White stated that the proposed reforming/re-working of the existing (unauthorised) mounds using fill that contains asbestos waste (already on the site) is prohibited, pursuant to s144AAB of the PoEO Act, because it effectively constitutes a 're-use' of asbestos waste on the site.
Further to this, he submits that the proposed onsite remediation works would result in pollution of the land, breaching s 142A, of the PoEO Act.
Mr White defines 're-use' as described in the Australian Oxford Dictionary as being to 'use again or more than once'. He therefore submits that the proposed reshaping/re-working of the existing unauthorised fill on the site, which is known to be contaminated with asbestos waste, is effectively re-using the asbestos waste, consistent with what is described (and prohibited) in s 144AAB of the PoEO Act. This proposed work constitutes pollution of the land, pursuant to s 142, subject to a criminal office. In support his position, Mr White cites Moss v Kiama Council [ 2003] NSWLEC 165 at [45] below: " [45] That consequence would bring the present case within the scope of the established authority in this Court that development consent should not, or cannot, be granted to sanction an unlawful or criminal activity: see Lee v Sydney City Council (1983) 50LGRA 382; Gray v Fairfield City Council (unreported 27 November 1987); Parramatta City Council v Locker (1989) 68 LGRA 334."
Mr Lazarus however submits that the effect of s 7 of the PoEO Act, below, requires the Court to reject any illegality of the proposed onsite remediation because the Court derives its relevant power from the (s 4.16) of the EPA Act to determine consent for the amended application under appeal: 7 General relationship with other Acts (1) Other Acts not affected Nothing in this Act affects any of the provisions of any other Act or any statutory rules, or takes away any powers vested in any person or body by any other Act or statutory rules. (2) This Act generally prevails However (subject to subsection (3)) - (a) this Act prevails over any other Act or statutory rule to the extent of any inconsistency, and (b) a regulation made under this Act prevails over any other statutory rule to the extent of any inconsistency.
Further to this, Mr Lazarus, submits that the proposed work is not a re-use, with the concept of asbestos waste 're-use' and relevance to s 144AAB of the PoEO Act in the Courts determination adequately addressed by Clay AC in the Muscat judgement at [175-176], whereby he determined that the proposed 're-working' of the fill with asbestos waste to reshape mounds on the site is not technically a re-use of the asbestos waste, as described in s 144AAB, because it is not for 'advantageous second use': "[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."
The assessment by Clay AC to describe the reworking of asbestos waste to (reshape) form new mounds as not being a 're-use', in the context of the PoEO Act, or for 'advantageous second use', is not an established 'Planning Principle', as described in Parrott v Kiama [2004] NSWLEC 77 at [17]. It therefore does not constrain my assessment of the appeal currently before the Court. My assessment of the amended application is made on its own merits, in consideration of the evidence before the Court and the relevant jurisdictional requirements. I disagree with the assessment of Clay AC in the Muscat judgement to distinguish the proposed reworking/re-use of asbestos waste from 'advantageous second use', as explained below.
It is accepted by the contamination experts, and the Court that the proposed development relies on the 'moving' around the site or re-working of existing unauthorised fill to form new and reshaped mound configurations on the site. This 're-working', a term adopted by the parties, of the unauthorised fill, is agreed by the experts to likely contain asbestos waste. The proposed mound configurations are sought to provide a visual and physical separation between the various intended uses on the site.
I prefer the definition of re-use adopted by Mr White and find that the term 're-working' (of the fill), in this context, is a 're-use' of asbestos waste on the site, consistent with s 144AAB of the PoEO Act. There is no evidence or in my reading of the PoEO Act that makes the distinction of re-use (of the asbestos waste) having to be for 'advantageous second use'.
The applicant does not provide a definition of 're-use', therefore I will rely on the definition described above.
To understand the intent of the provisions of the PoEO Act, I turn to its objects described in s 3, below: 3 Objects of Act The objects of this Act are as follows - (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, (b) to provide increased opportunities for public involvement and participation in environment protection, (c) to ensure that the community has access to relevant and meaningful information about pollution, (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following - (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, (g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001. (Emphasis added)
I am of the opinion that the proposed reworking (moving around) and retention of asbestos waste on the site, and used to reshape the mounds does not satisfy the objects of the PoEO Act, as described in s 3, specifically (d)(ii), (iia) and (iii). By retaining and reshaping the mounds containing asbestos waste, the application does not specifically seek to reduce to 'harmless levels' or eliminate harmful waste (being asbestos) that is already on the site, and does not reduce the use of the material, being the asbestos waste. There is no attempt in this application to reduce the levels of or reliance on the asbestos waste, except by a limited attempt through hot spot removal and emu-picking (of small obvious amounts of asbestos).
I consider the intention of s144AAB of the PoEO Act is to ensure that asbestos waste is properly remediated to eliminate harmful (to human and environment) waste and reduce it to harmless levels on an identified contaminated site. Moving the asbestos around the site without any substantial reduction in its load (levels) does not actually reduce the asbestos to harmful levels, and the proposed capping of the (asbestos) contaminated fill merely hides the asbestos at a depth that hopefully will not be exposed in the future. I am not satisfied this is sufficient, because retaining the asbestos waste on the site has the potential in the future, particularly where it is not accurately assessed as to its actual extent, to expose asbestos fragments to the air, ground and water (environment), which increases the risk to human health.
There is no dispute that the asbestos waste was originally imported to site without consent, from an unknown source, and is currently placed ('used') as mounds around and to screen the poultry farm sheds. It also not in dispute that the amended application relies on earthworks to retain and move this unauthorised fill around the site (i.e to re-work it) for the purpose of a (screening) mound/s. I am satisfied that the proposed treatment of the asbestos waste on the site, as described in amended RAP relies on the re-use of asbestos waste, because it is 'used again', within a mound in a different form and location, consistent with the definition of re-use described above.
In my consideration of the amended application, I agree with the proposition of the Council, as submitted by Mr White, that the proposed reliance on the 're-working' of fill on the site is a 're-use' of asbestos waste, and contrary to the provisions of the PoEO Act, specifically ss 142 and 144AAB. The retaining/moving/re-working (earthworks) of the fill containing asbestos waste on the site is a 're-use' and being advantageous or non-advantageous second use is not relevant to the consideration of the provisions of the PoEO Act.
I find the earthworks and remediation approach described in the amended application is therefore contrary to the objects and provisions of the PoEO Act. To approve consent to the amended application, could lead to pollution of the land and potentially expose the applicant to liability, pursuant to s 142A of the PoEO Act.
I accept the submission of Mr Lazarus that pursuant to s 7 of the PoEO Act, my determination of the application does not constrain my assessment, pursuant to s 4.15 of the EPA Act. Based on the evidence and my assessment above, namely the potential risk to human health, I find that the amended application is not in the public interest and contrary to s 4.15(1)(e) of the EPA Act.

Does the proposed remediation strategy make the land suitable for its intended development purpose/s?

It is not in dispute that the site now (and will) contain fill that is contaminated with asbestos waste. It is also not in dispute that the amended application relies on remediation works associated with the unauthorised fill currently present on the site, as described in the amended RAP (Exhibit E) and draft conditions of consent (Exhibit M). I understand that the proposed remediation works only apply to the unauthorised fill and not to the approved mounds, by the existing consents.
The parties agree, and the Court is of the same opinion, that the issue in contention primarily relates to the risk to human health, and that the environmental risk is considered in the amended RAP.
It is understood that the reworked mounds will encompass the existing approved mounds, as shown in Figure 1.
Mr Lazarus submitted to the Court that refusal of the development consent as sought in the amended application would likely result in a severe financial impact to the economic viability of the applicant's business, because the consent orders made in the Class 4 proceedings, as summarised previously, could have the effect of causing the applicant to go into liquidation and having to leave the site sterile (unremediated). The unbearable cost of complying with the Class 4 orders, requiring removal of all the unauthorised fill from the site, has therefore been a consideration in the proposal for onsite remediation works as relied on by the amended application.
I put minimal weight in my determination of the amended application to the economic cost that would be borne by the applicant in complying with the Class 4 consent orders. The amended application must stand and be assessed on its own merits, and it is not appropriate for the Court to question the reasonableness of the orders made by Robson J in the Class 4 proceedings.
To determine whether the site is or can be made suitable for use of its intended purpose, the Court must consider the relevant requirements described in Chapter 4 of the SEPP Resilience, and specifically ss 4.6 and 4.10.
I accept the site is contaminated, and the amended application relies on a PSI and a DSI, responding to ss 4.6(1)(a), (2) and (3) of the SEPP Resilience.
In consideration of the evidence, I accept that the site is not suitable for its existing and proposed development purpose (poultry farm/depot/residential) without remediation, pursuant to s 4.6(1)(b) of SEPP Resilience. I understand that the proposed remediation works described in the amended RAP intend that the land can be made suitable for the development purpose/s, pursuant to s 4.6(1)(c) of the SEPP Resilience.
It is assessed that the intended purpose of the development is as a poultry farm and depot, as well used as residences, and the mounds are constructed to shield the different purposes from each other. After enquiry of the Court, Mr Lazarus confirmed that residential dwellings will continue on the site, and it is therefore in the opinion of the Court, a relevant consideration in assessment of the development purpose and use for that purpose, pursuant to s 4.6 of the SEPP Resilience.
It should be noted that s 4.6(1)(c) of the SEPP Resilience requires remediation before the land is used for the (intended) purpose. The land is currently used for residential and poultry farm purpose, has existing (asbestos waste) contamination and therefore does not satisfy the requirements of s 4.6 (1)(c). I am of the opinion that the residents and workers of the poultry farm are currently at risk from asbestos waste on the site because the mounds of unauthorised fill are laid bare.
Pursuant to ss 4.7 and 4.9, of the SEPP Resilience, consent is required to undertake remediation work on the site and the Court is the consent authority to determine the amended application under appeal. Pursuant to s 4.8(d), the proposed remediation work is 'Category 1', as development on the site is subject to the provisions of the SEPP Biodiversity.
I prefer the evidence of Mr Clay that the unauthorised fill contains asbestos waste at variable depths including within the existing northern and central mounds, and the northern pad. The experts agree that asbestos waste is a harmful waste, particularly to human health. There is therefore a risk to human health if the unauthorised fill is not removed or properly remediated. I accept the evidence of Mr Clay that the proposed onsite remediation works are not sufficient to mitigate this risk and that the proposal for ongoing management of the site to observe, detect and remove any asbestos waste found at the surface is not sufficient.
Based on the evidence before me, and for the reasons described below, to the amended application poses an unacceptable risk to human health resulting from the asbestos waste remaining in the site. I assess that there is a more significant risk to human health from the proposed carrying out of the remediation works and retaining of the asbestos waste on the site, pursuant to s 4.10 of the SEPP Resilience.
I consider that the site cannot be made suitable before the site is used for residential purpose, because essentially, the site is already used for this purpose, as well for the poultry farm workers, and that the proposed remediation works would cause an unacceptable risk to human health by the movement(reworking) of asbestos contaminated fill across the site. It remains uncertain where the asbestos is located both at depth and in area.
I accept the evidence of the contamination experts that asbestos waste is likely present in the northern mound and at the surface of the central mound, and prefer Mr Clay's assessment that the northern pad is also likely contaminated with asbestos waste. Based on the evidence (specifically PSI, DSI and experts), I am not satisfied that there is sufficient, nor accurate understanding of the extent (both depth and areal) of the asbestos waste in the central mound (located closest to the residents), unauthorised (uncapped) mounds or the northern pad. The reliance on the unexpected finds protocol (as described in the amended RAP) is not sufficient to protect human health before, during and after the proposed remediation works.
The amended application is not supported by a site audit statement, which I consider would have assisted in providing a more concise understanding of the extent of asbestos waste contamination across the site and give more certainty to the Court that remediation works would be an effective response to reduce the risk to human health to harmless levels. Based on the evidence before the Court, I am not satisfied, and uncertainty remains on the potential impact to human health.
I assess that the potential impact to existing residents has not been adequately addressed in the amended RAP. The protection of human health including the workers, and residents on and surrounding the site is paramount, as agreed by experts. However, the resident's presence and health appear as an afterthought, being primarily addressed during the hearing, rather than fully investigated in the PSI and DSI as a sensitive receptor. The residents have the highest level of exposure due to their proximity to the unauthorised fill and their extended residence time on the site. The amended RAP (Exhibit E) does not identify the existing residents on the site as 'potential receptors', in Section 6.4, only considers site workers and visitors, deeming them as a 'short-term' risk. Therefore, I consider that the amended RAP is fundamentally flawed to protect human health.
The experts agree that asbestos fragments were identified on the surface of the central mound, as observed during their individual walkovers. They cannot confirm why the DSI did not identify potential asbestos waste in this same area. It is accepted that the DSI was undertaken according to the relevant guidelines, however, I consider that potentially due to the unknown nature of the fill and its indiscriminate mounding on the site, resulting in discrepancies and error in data collection, understanding of the reliable extent of asbestos on the site is difficult. There is a foundational gap in knowledge to inform the conceptualisation of the remediation strategy, as described in the amended RAP. I am not satisfied that the health of the residents on the site are sufficiently protected by relying on the unexpected finds protocol (Section 8.4 of the amended RAP), and through the ongoing management plan as implemented through an Environmental Management Plan.
I am not satisfied that there is sufficient understanding of the extent of asbestos waste contamination across the site and throughout the unauthorised fill, particularly to the northern pad, unauthorised (uncapped) mounds and the central mound. There is potential for asbestos in the material derived from the borrow pits (particularly 2A and 2B) to be used as 'clean fill' for capping, which I find has not been sufficiently assessed in the PSI, DSI or addressed in the amended RAP, to mitigate the risk to human health to harmless levels, because it is assumed in the application the northern pad is uncontaminated.
It is my opinion that the applicant has not sufficiently demonstrated that site can be made suitable for the purpose of development, before or after remediation works, pursuant to s 4.6(1)(c) of the SEPP Resilience. There is sufficient uncertainty on the extent of asbestos contamination within the unauthorised fill to be (reworked) used on the site, to reasonably inform the remediation works. There is a sufficient uncertainty as to whether the Category 1 remediation works proposed and relied on by the amended application will pose a more significant risk of harm to human health, during the carrying out of remediation works (and post remediation), pursuant to s 4.10 of the SEPP Resilience. The existing and continued presence (before, during and after remediation works) of the residents on the site is not sufficiently addressed in the contamination assessments or the amended RAP, and this issue is not appropriately addressed by the draft conditions of consent or by ongoing management.
I find that the applicants' remediation approach is flawed due to insufficient and inaccurate baseline data, relying on an amended RAP that is not well informed on the relevant health risks (to residents), and relies too heavily on an unexpected finds protocol and ongoing management. The remediation works are therefore potentially ineffective to reduce the risk to human health (to harmless levels) in the context of the existing and future conditions on site. The potential for asbestos waste (and impact to human health) in the unauthorised and uncapped mounds, which are located around the site, has not been addressed sufficiently in the contamination assessments or the amended RAP.
The onus of proof lies with the applicant to demonstrate that (existing and future) persons on the site and including surrounding residents can be adequately protected, and that appropriate and effective (remediation) measures can and will be adopted to sufficiently mitigate the risk to human health (and the environment).
Based on the evidence before the Court, I am not satisfied that the amended application has demonstrated there is an acceptable risk to human health from the proposed (Category 1) remediation works and that the land can be made suitable before, during or after for use of its intended purposes. Therefore, I consider that the requirements of ss 4.6 (1)(c) and 4.10(1) of the SEPP Resilience, and s 4.15(1)(a(i) of the EPA Act are not satisfied.
Pursuant to cl 7.5(3) of the WLEP, I find that the amended application does not sufficiently address the potential for an ongoing (asbestos related) contamination risk resulting from earthworks associated with the unauthorised fill remaining on the site, which may have a detrimental effect on the future use or redevelopment of the site, contrary to cl 7.5(3)(c). The source of the unauthorised fill remains unknown for reasons not explained to the Court, and which are a consideration in my assessment of cl 7.5(3)(e).
In consideration of the evidence, I am satisfied that the site is not suitable for the proposed development, pursuant to s 4.15(1)(c) of the EPA Act.

Are the mounds appropriately located and consistent with rural landscape character of the zone?

The contention as raised by Council, relates to whether the proposed mounds around the perimeter of the site maintain the rural landscape character, as described in an objective of the RU2 zone in cl 2.3 of the WLEP below: 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. • To support sustainable land management practices and local food production. (Emphasis added)
There is no dispute that the site has existing mounds that were approved as part of previous consents, or that these mounds are not inconsistent with the objectives of the RU2 zone. The issue in dispute relates primarily to the new and reshaped mounds, namely the proposed northeast and northwest mounds. The Council does not raise issue with the remaining unauthorised mounds.
The experts agree that adjacent to the site, at a property also owned by the applicant, is an earth mound that is an approved work described in the Muscat v Camden judgment. It was observed by the Court that this is a mound located behind the poultry sheds, rather than towards the street frontage, as proposed in the amended application before the Court.
Mr Barwick expressed concern that the proposed height, shape and proximity to the site boundary of the proposed mounds will cause adverse visual amenity to the streetscape and is not a feature that maintains the character of the surrounding rural landscape.
Mr Lovell considers that the proposed mounds provide a suitable screening of the intended uses of the site, being the depot and poultry farm, and although he accepts it is characteristic to see similar sized sheds in the surrounding area, the proposed mounds do not cause adverse visual amenity, particularly when considered together with the proposed extent of landscaping around and over the mounds.
Whilst I acknowledge that the site currently has (approved and unauthorised) mounds and the land adjacent to the site also has an approved mound, this alone does not ensure the proposed mounds as being characteristic in the broader context of the rural landscape of the surrounding land. The approved mounds, both on the site and adjacent to the site, are generally lower in height, constrained in width and do not seek to fully obscure the (poultry shed) structures they surround. I consider the approved mounds, both on the site and adjacent to the site are more discrete and less dominant in the rural landscape than compared to what is proposed on the site.
The effect of the proposed mounds is to completely obscure the sheds on the site, which are an expected feature in the streetscape and landscape, thereby creating a different landscape setting than would be anticipated for the (open) rural landscape, as observed around the site. The proposed mounds create a sense of enclosure not observed elsewhere in the landscape and are not consistent with the rural landscape context. I find the proposed mounds, being located in close proximity to the site boundary and street frontages, and elevated, will appear as dominant in the streetscape and likely cause an adverse visual amenity.
I am not satisfied that the proposed mounds maintain the rural landscape character (setting) of the land and therefore are contrary to the objective of the RU2 zone, as described in cl 2.3 of the WLEP. In consideration of the amended application, I assess that s 4.15(1)(a) of the EPA Act is not satisfied.

Costs

The respondent seeks for the Court to address its costs associated with amendments made to the application during the proceedings, specifically the amendments to the RAP (Exhibit E), pursuant to s 8.15(3) of the EPA Act, below: (3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies.
In response to the amendments made to RAP, which supports the application, the respondent agrees that issues in dispute between the experts were narrowed, and therefore the amendments were positive to the application. However, the amendments to the RAP (and the application), required further and unexpected assessment costs by Council's experts, specifically its contamination expert.
I accept that the changes to plans and documents granted leave before and during the hearing were generally positive in resolving key contentions and narrowed the issues between the experts.
However, I assess that the amendments to the RAP (Exhibit E), made on 10 November 2022, were not 'minor', substantially changed the application, and has caused the respondent's experts to spend additional, unexpected time in review and reporting.
I am satisfied that an order for costs thrown away, based on the amendments to the RAP granted on 10 November 2022 is appropriate and consistent with s 8.15(3) of the EPA Act.

Conclusion

The amended application has been considered, based on the evidence before the Court, including all (amended) supporting plans, documents, agreed draft conditions of consent, and expert reports and oral submissions. The amended application has been assessed against the relevant jurisdictional requirements and with a merit consideration.
In consideration of the amended application under appeal, I am not satisfied that DA 2021/984/1 sufficiently addresses the relevant jurisdictional requirements, established in s 4.15(1) of the EPA Act, and ss 142 and 144AAB of the PoEO Act. Pursuant to my consideration of s 4.15(1) of the EPA Act, I am not sufficiently satisfied that: the amended application has demonstrated the site can be made suitable for the use of the intended development purposes, due to an unacceptable risk to human health; and there the rural landscape character is maintained due to the proximity and dimension of the proposed mounds to the street frontages. Pursuant to PoEO Act, the proposed onsite remediation works of the unauthorised fill relies on re-use of asbestos waste on the site and does not reduce asbestos to harmless levels, contrary to the relevant provisions and objects.
I therefore refuse consent of Development Application 2021/984/1, pursuant to s 4.16(1)(b) of the EPA Act.

Orders

The Court notes that: 1. The Wollondilly Shire Council, as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to amending the application for development consent (DA 2021/984/1) and uploading to the NSW Planning Portal. 2. That the applicant has uploaded the amended application on the NSW planning portal and thereafter filed with the Court the documents relevant to the amended application.
The Court orders: 1. The appeal is dismissed. 2. Development Application 2021/984/1, as amended, seeking a change of use for three existing sheds, construction of a new shed, remediation works, earthworks to reshape existing mounds of unauthorised fill, use of mounds with unauthorised fill and landscaping on Lot 5 DP 260390, also known as 440 Cawdor Road, Cawdor, is refused. 3. The applicant is to pay the respondents costs thrown away as a result of the amendments of the Remedial Action Plan and application for development consent, granted leave on 10 November 2022, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 4. All exhibits are retained. Sarah Bish Commissioner of the Court

Amendments 08 December 2022 - Pursuant to rule 36.17 of the UCPR (the slip rule), correction is made to typographical errors at paragraphs [3], [6], [18], [59], [72], [81], [83], [92], [119] and [131]. 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: 08 December 2022

(2006) 144 LGERA 408

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