[2003] NSWCA 189
Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116
[2013] NSWLEC 147
Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52
Source
Original judgment source is linked above.
Catchwords
[2011] NSWCA 107
Arrage v Inner West Council [2019] NSWLEC 85
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321[1990] HCA 33
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Baulkham Hills Shine v Basemount Pty Ltd (2003) 126 LGERA 339[2003] NSWCA 189
Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116[2013] NSWLEC 147
Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52[2007] NSWLEC 164
Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[2000] HCA 63
Forgall Pty Ltd v Greater Taree City Council (2015) 209 LGERA 160[2021] NSWLEC 73
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390[2010] HCA 32
McDougall v Warringah Shire Council (1993) 30 NSWLR 258
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421[2019] HCA 3
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99[2013] FCA 317
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323[2001] HCA 30
Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 274 CLR 398[2021] HCA 41
Moss v Kiama Council (2003) 127 LGERA 83[1999] NSWLEC 283
Ralph Lauren Pty Ltd v Transitional Coastal Panel (2018) 235 LGERA 345
[2022] EWCA Civ 1417
Segal v Waverley Council (2005) 64 NSWLR 177
[2005] NSWCA 310
The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126
[2014] NSWCA 105
Woollahra Municipal Council v SJD DB2 Pty Limited (2021) 250 LGERA 340
[2020] NSWLEC 115
Zhang v Canterbury City Council (2001) 51 NSWLR 589
Judgment (17 paragraphs)
[1]
; [2021] HCA 41
Moss v Kiama Council (2003) 127 LGERA 83; [2003] NSWLEC 165
Muscat Developments Pty Ltd v Wollondilly Shire Council [2021] NSWLEC 1758
Muscat Developments Pty Ltd v Wollondilly Shire Council [2022] NSWLEC 1682
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1955) 94 CLR 509
Preferred Projects (Buildings) Pty Ltd v Warringah Council (1999) 106 LGERA 144; [1999] NSWLEC 283
Ralph Lauren Pty Ltd v Transitional Coastal Panel (2018) 235 LGERA 345; [2018] NSWLEC 207
Randwick Municipal Council v Manousaki (1988) 66 LGRA 330
Reznitsky v District Court of New South Wales [2015] NSWCA 194
R (on the application of Thurston Parish Council) v Mid Suffolk District Council v Bloor Homes Limited [2023] JPL 494; [2022] EWCA Civ 1417
Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310
The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126; (1940) 14 LGR (NSW) 149
Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9
Universal Property Group Pty Ltd v Blacktown City Council (No 2) (2014) NSWLEC 115
Veterinary Surgeons' Board of Western Australia v Alexander [2013] WASC 136
Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105
Woollahra Municipal Council v SJD DB2 Pty Limited (2021) 250 LGERA 340; [2020] NSWLEC 115
Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167
Category: Principal judgment
Parties: Muscat Developments Pty Ltd (Appellant)
Wollondilly Shire Council (Respondent)
Representation: Counsel:
Mr J Lazarus SC with Dr J Smith (Appellant)
Mr M Wright SC with Mr R White (Respondent)
[2]
Solicitors:
Storey & Gough Lawyers (Appellant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2022/384424
Decision under appeal Court or tribunal: Land and Environment Court of NSW
Jurisdiction: Class 1
Citation: [2022] NSWLEC 1682
Date of Decision: 07 December 2022
Before: Bish C
File Number(s): 2022/39705
[3]
JUDGMENT
Muscat Developments Pty Ltd (Muscat) lodged a development application with Wollondilly Shire Council (the Council) seeking development consent for a change of use of existing sheds, construction of a new shed and hardstand, remediation works, earthworks and landscaping at 440 Cawdor Road, Cawdor. Muscat appealed against the deemed refusal of the development application to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Commissioner Bish heard the appeal. She determined that the appeal should be dismissed and the development application refused: Muscat Developments Pty Ltd v Wollondilly Shire Council [2022] NSWLEC 1682. Muscat appealed against the Commissioner's decision under s 56A of the Land and Environment Court Act 1979 (NSW) (Court Act). An appeal under s 56A is limited to questions of law.
Muscat raised 27 grounds of appeal contending that the Commissioner's decision to dismiss the appeal and refuse the development application is vitiated by error on questions of law. Muscat sought and was granted leave at the first day of the hearing to file an amended summons. The amendments were clarificatory and did not amend the scope of the appeal. All 27 grounds were pressed at the hearing.
At the hearing of the appeal, Muscat's senior counsel grouped the grounds of review into seven main categories. Grounds 1 to 4 contended that the Commissioner erred on questions of law in her construction and application of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (NSW) (SEPP Resilience). Grounds 5 to 7 contended that the Commissioner erred on questions of law in her construction of s 4.14 of the SEPP Resilience. Grounds 8 to 10 contended that the Commissioner erred in making findings concerning risk to human health and uncertainty of risks without evidence. Grounds 11 to 15 contended that the Commissioner erred on a question of law in her application and construction of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). Grounds 16 and 17 contended that the Commissioner erred in her application and construction of the requirements of s 4.10 of the SEPP Resilience. Grounds 18 and 19 contended that the Commissioner erred in her assessment and findings on the public interest under s 4.15(1)(e) of the EPA Act. Ground 20 contended that the Commissioner erred in her application of cl 7.5(3)(c) and cl 7.5(3)(e) of the Wollondilly Local Environmental Plan 2011 (LEP). Grounds 21 to 27 contended that the Commissioner erred in her construction and application of the zone objectives in cl 2.3 of the LEP.
[4]
Overview of the development application
The development application sought consent for four developments. First, Muscat sought consent to change the use of three existing sheds currently used for the poultry farm to a depot and to construct associated hardstand areas. The purpose for which this development was proposed to be carried out was as a depot. The depot was to be used for the storage of farm equipment.
Second, consent was sought to construct a new shed to be used as a farm building in support of the existing poultry farm and associated hardstand areas. The purpose for which this development was proposed to be carried out was as a poultry farm.
Third, Muscat sought consent to undertake remediation works to address asbestos waste contamination in existing mounds of unauthorised fill already placed on the land and hydrocarbon contamination arising from the removal of fuel tanks; capping and covering with clean fill material of new mounds on the land created by the remediation and reworking of the unauthorised fill; and associated landscaping. The new mounds of unauthorised fill would be relocated to be around the new shed, poultry farm and depot. The purposes for which these remediated and reworked mounds were to be carried out were poultry farm and depot.
Fourth, Muscat sought consent to use existing mounds of unauthorised fill located around the existing poultry farm and existing dwellings. Muscat could not seek consent to construct the mounds, as this had already been done unlawfully, but it could seek consent for the future use of the mounds. The purpose for which these existing mounds would be used was as a barrier separating and screening the poultry farm and the dwellings from one another.
Currently on the land are six existing sheds (the use of three of which was proposed to be changed); three existing dwellings to the south of these sheds; and a poultry farm in the southwest corner of the property. There are two existing mounds. The first mound is between the sheds and the dwellings, referred to as the central mound. This was sought to be reworked in certain respects but mainly in the northern part of it. The second mound is to the north-west of the poultry farm, referred to as the northwest mound. This was sought to be moved significantly to the north and its slope reduced. A new mound was proposed to be constructed on the corner of Westbrook and Cawdor Road, referred to as the northeast mound. In between the northeast mound and the central mound, the depot and hardstand were proposed to be constructed.
[5]
The SEPP Resilience grounds
The first category of grounds of appeal relate to the SEPP Resilience. This category comprises grounds 1 to 10, 16 and 17 as pleaded in the summons. These grounds fall into four groups: the grounds concerning s 4.6(1) of the SEPP Resilience; the grounds concerning s 4.14(1) of the SEPP Resilience; the grounds concerning the risk to human health and uncertainty of the proposed remediation works; and the grounds concerning s 4.10(1) of the SEPP Resilience.
[6]
The s 4.6 (1) grounds
Section 4.6(1) of the SEPP Resilience provides:
"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."
Muscat challenged the Commissioner's interpretation and application of s 4.6(1). The parties agreed, and the Commissioner found, that the land was contaminated, that the land would need to be remediated, and that Muscat had applied for consent to carry out remediation works (as proposed in the amended RAP. The parties disagreed whether the land will be suitable, after remediation, for the purpose for which the development is proposed to be carried out.
The Commissioner found 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": at [114]. Similarly, the Commissioner found at [117]:
"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."
Critical to the Commissioner's findings was her identification of "the purpose of development" and "its intended purpose" as not only being poultry farm and depot, but also residential. That is clear in [102] where the Commissioner identified the "proposed development purpose (poultry farm/depot/residential)" and in [103] where the Commissioner stated: "It is assessed that the intended purpose of the development is as a poultry farm and depot, as well as residences, and the mounds are constructed to shield the different purposes from each other."
[7]
The s 4.14(1) grounds
Three grounds of appeal, grounds 5, 6 and 7, concern s 4.14(1) of the SEPP Resilience, which provides:
"4.14 Guidelines and notices: all remediation work
(1) All remediation work must, in addition to complying with any requirement under the Act or any other law, be carried out in accordance with -
(a) the contaminated land planning guidelines, and
(b) the guidelines (if any) in force under the Contaminated Land Management Act 1997, and
(c) in the case of a category 1 remediation work - a plan of remediation, as approved by the consent authority, prepared in accordance with the contaminated land planning guidelines."
The "contaminated land planning guidelines" referred to in paragraphs (a) and (c) are the Managing Land Contamination Guidelines SEPP 55 - Remediation of Land 1998 (CLM Guidelines). The guidelines under the Contaminated Land Management Act 1997 referred to in paragraph (b), are the National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM).
The Commissioner referred to the CLM Guidelines and NEPM at [47], as "policy documents and guidance" to which the parties and experts drew the Court's attention. The Commissioner made passing reference to the CLM Guidelines in the context of summarising the parties' experts' evidence that referred to the CLM Guidelines: at [73] and [75]. The Commissioner did not otherwise evaluate or apply the CLM Guidelines or NEPM in considering the remediation work proposed to be carried out.
Muscat contended that s 4.14(1), and the CLM Guidelines and NEPM referred to, were mandatory relevant considerations pursuant to s 4.15(1)(a)(i) of the EPA Act. The Commissioner was required to, but failed to, evaluate whether the proposed remediation work would be carried out in accordance with the CLM Guidelines, NEPM and a plan of remediation prepared in accordance with the CLM Guidelines.
This failure founds grounds 5, 6 and 7. Ground 5 is the failure to consider the CLM Guidelines and NEPM. Ground 6 is the failure to assess the RAP against the requirements of the CLM Guidelines. Ground 7 is the failure to assess the asbestos contamination in the unauthorised fill against the criteria in the NEPM. The Commissioner's assessment of the amended RAP and the proposed remediation of asbestos contamination (such as at [109]-[115]) was not done by reference to the CLM Guidelines or NEPM.
[8]
The risk to human health and uncertainty grounds
Grounds 8, 9 and 10 challenge the factual findings of the Commissioner concerning the risks of harm to human health from the asbestos waste and the level of contamination of the land. These findings were made in the Commissioner's consideration of ss 4.6 and 4.14(1) of the SEPP Resilience. On an appeal limited to errors on questions of law, factual findings are ordinarily non-reviewable. Muscat seeks to avoid this barrier to appellate review by framing its challenges to the factual findings in terms of errors of law. Grounds 8 and 9 contended that the factual findings were "without evidence and contrary to the expert evidence", while ground 10 contended that the Commissioner denied Muscat procedural fairness in disposing of the appeal on a ground abandoned by the Council and not raised by the Commissioner at the hearing.
In relation to ground 8, Muscat submitted that the evidence of both of the parties' contamination experts was that the remediation of the asbestos waste on the site was acceptably low. Muscat summarised in its written submissions the evidence of its expert, Dr Swane, and the Council's expert, Mr Clay as follows:
"45. Consistent with the evidence of Dr Swane, in the worst-case scenario, the concentration of asbestos fibres in the air would be less than the workplace exposure standard of 0.1 fibres/mL of air specified by the NSW Work Health and Safety Regulation 2017 (NSW) and SafeWork Australia, and the Control Level of 0.01 fibres/mL specified by the Australian Government National Occupational Health and Safety Commission. Asbestos only poses a risk to human health when asbestos fibres are made airborne and inhaled. If asbestos is bound in a matrix such as cement or resin, it is not readily made airborne except through substantial physical damage. However, there were only low levels of bonded asbestos on the site (below the 0.05% commercial/industrial NEPM soil criteria) and the RAP provided for a capping material of uncontaminated fill of a minimum thickness of 500mm to be placed over the mounds. The implementation of the capping layer would prevent any asbestos rising to the surface.
46. So much was ultimately accepted by the Council's contamination expert Mr Clay in cross-examination, when he agreed:
1) that the risk from airborne asbestos was "acceptably low".
2) "I've seen all the data that's been collected and I've said in my evidence that I don't think AF/FA is a significant issue on the site.
3) "so really the risk from bonded asbestos is minor" and "some amount of ACM, because the risk is generally considered to be low, is acceptable".
4) "in order to adhere to the guidelines then provided that that landscaping incorporated an element of cover, a suitable thickness of cap, and to meet the guidelines, then yes that would be appropriate".
5) "the dwelling house is probably half made of asbestos anyway, you know. So the risk is you know, risk from ACM, good condition, is generally speaking, low"
6) further "if there were a fence between the house and the mound and some form of physical restriction then that would be appropriate"
7) The 500mm of clean topsoil, hydro-mulching, review by a site auditor and conditions of consent was a sufficient "solution" for remediation of the site and the RAP was otherwise "reasonable"" (footnotes omitted).
[9]
The s 4.10(1) grounds
Muscat raised two grounds, grounds 16 and 17, relating to s 4.10(1) of the SEPP Resilience. That provides:
"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."
The Commissioner found that the proposed remediation works were category 1 remediation works as defined in s 4.8 of the SEPP Resilience: at [57], [105]. The Commissioner identified and quoted s 4.10(1) as obliging her not to refuse development consent unless she was 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 remediation work than there would be from the use of the land, in the absence of the work, for any purpose for which it may lawfully be used: at [57].
Muscat contended, however, that the Commissioner erred in her interpretation and application of s 4.10(1). Ground 16 contended that the Commissioner erred in two ways. First, while the Commissioner made a finding that there were risks of harm to human health in carrying out the proposed remediation works (at [107], [108], [111], and [115]), the Commissioner did not assess the risks involved in using the land for any lawful purpose "in the absence of the work", as required by s 4.10(1).
That provision requires a comparison between the risks from carrying out the remediation work and the risks from not carrying out the remediation work and using the land for any lawful purpose. The Commissioner undertook the first risk assessment but not the second risk assessment. In this circumstance, Muscat submitted, the Commissioner could not properly be satisfied under s 4.10(1).
The second way Muscat contended that the Commissioner erred in her consideration of s 4.10(1) flowed from her finding in [114]. There, the Commissioner found:
"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."
[10]
The POEO Act grounds
The second set of grounds of appeal concern the interpretation and application of certain provisions of the POEO Act. These are grounds 11 to 15. Grounds 11 and 12 concern the Council's contention made to the Commissioner, which was accepted by the Commissioner, that the Court could not grant development consent for the proposed remediation works as that would amount to a criminal activity under s 144AAB of the POEO Act. Ground 13 contended that the Commissioner misconstrued s 144AAB. Ground 14 concerned the Commissioner's finding that the proposed remediation works would breach s 142A of the POEO Act. Ground 15 contended that the Commissioner misdirected herself in finding that the proposed remediation works were required to satisfy the objects in s 3 of the POEO Act.
Starting with grounds 11 and 12, the Council had contended, and the Commissioner accepted, that whether the proposed onsite remediation of asbestos waste by reworking is lawful under s 144AAB of the POEO Act was a jurisdictional requirement for the grant of development consent under the EPA Act for the remediation: at [37], [52].
The Council had submitted 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 s 144AAB of the PoEO Act because it effectively constitutes a 're-use' of asbestos waste on the site": at [79]. The Council submitted that "re-use" is defined as to "use again or more than once". Hence, "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": at [81]. The Council submitted that development consent should not be granted to sanction an unlawful activity, citing Moss v Kiama Council (2003) 127 LGERA 83; [2003] NSWLEC 165 at [45]: at [81] of the judgment.
In response, Muscat had firstly submitted that the power to grant consent to the proposed remediation works derives from s 4.16 of the EPA Act and nothing in the POEO Act affects that power in the EPA Act to grant consent, as s 7(1) of the POEO Act clearly states: at [82]. Further, Muscat submitted that the proposed remediation works would not involve "re-use" of the asbestos waste. Muscat relied on Clay AC's interpretation of "re-used" in s 144AAB of the POEO Act in Muscat Developments Pty Ltd v Wollondilly Shire Council [2021] NSWLEC 1758 at [176] that the "re-use" of asbestos waste refers to the "advantageous second use" of the asbestos waste: at [83].
[11]
The EPA Act and LEP grounds
The third set of grounds, grounds 18 to 27, concern the EPA Act and LEP, an environmental planning instrument made under the EPA Act.
[12]
The s 4.15(1)(e) EPA Act grounds
Grounds 18 and 19 concern the Commissioner's consideration of the public interest in s 4.15(1)(e) of the EPA Act. Ground 18 contended that the Commissioner erred in law by not considering a matter falling within the public interest, while ground 19 contended that the Commissioner erred in law by considering a matter not falling within the public interest.
The matter Muscat contended in ground 18 the Commissioner should have considered, but did not consider, was "the uncontested evidence and submissions regarding the environmental impacts which would arise (including impacts from traffic noise, dust and vibration, potential risks to safety and loss of available landfill volume) if all the relevant material was exported from the site pursuant to the orders made in the class 4 proceedings, as opposed to being remediated in accordance with the proposed development."
The Council had brought Class 4 proceedings seeking orders for the removal of the unauthorised fill Muscat had placed on the land in breach of the EPA Act. The Court made orders, by consent, for the removal of the unauthorised fill, but these orders are conditional on development consent not being obtained to retain and use the unauthorised fill on the land.
Muscat contended before the Commissioner, and in ground 18, that consideration of the public interest required a comparison of the environmental impacts of granting consent to the development application and the environmental impacts of refusing consent to the development application, whereupon Muscat would be required by the Court order to remove the unauthorised fill. Muscat contended that the Commissioner failed to undertake this comparative assessment of the environmental impacts.
The Commissioner briefly noted Muscat's counsel's submission "that offsite treatment would cause excessive financial burden to the applicant, with unnecessary truck movements and filling of a landfill": at [71]. The Commissioner later addressed the first of these matters, the financial burden, in [98] and [99]. The Commissioner concluded in [99]:
"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."
[13]
The LEP grounds
Muscat's grounds of appeal concerning the LEP fall into two groups. Ground 20 contended that the Commissioner erred in her application of cl 7.5(3)(c) and cl 7.5(3)(e) of the LEP. Grounds 21 to 27 contended that the Commissioner erred in her application of cl 2.3(2) of the LEP, which required the Commissioner to have regard to the objectives for development in the applicable RU2 zone when determining the development application.
Starting with ground 20, cl 7.5(3) of the LEP provides:
"(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."
Muscat focused on paragraphs (c) and (e), both of which use the word "fill" as a noun. The Commissioner quoted the definition of the verb "fill" in the Dictionary of the LEP:
"fill means 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."
The Commissioner's consideration of cl 7.5(3) of the LEP culminated with this conclusion at [118]:
"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)."
[14]
Materiality of established errors on questions of law
I have found that the Commissioner erred on questions of law in her consideration and findings on:
1. s 4.6(1) of the SEPP Resilience (grounds 1 to 4);
2. s 4.14(1) of the SEPP Resilience (grounds 5 to 7); and
3. ss 3, 142A and 144AAB of the POEO Act (grounds 11 to 15).
I have found that the Commissioner has not been established to have erred on questions of law in her consideration and findings on:
1. the risk of harm to human health and uncertainty of environmental impacts (grounds 8 to 10);
2. s 4.10(1) of the SEPP Resilience (grounds 16 and 17);
3. s 4.15(1)(e) of the EPA Act concerning the public interest (grounds 18 and 19);
4. cl 7.5(3)(c) and (e) of the LEP (ground 20); and
5. cl 2.3 of the LEP concerning consistency with the zone objectives (grounds 21 to 27).
The question that arises from these findings is whether the errors I have found established are material so as to vitiate the Commissioner's decision.
On one view, the Commissioner's decision to refuse consent to the development application might be seen to be based on numerous, independent grounds, including the provisions of the SEPP Resilience, POEO Act, EPA Act and LEP. On this view, the established errors in the Commissioner's consideration and findings based on the provisions of the SEPP Resilience and the POEO Act would not affect the Commissioner's consideration and findings based on the EPA Act and the LEP. The Commissioner's decision to refuse the development application would not be vitiated by the errors in relation to the provisions of the SEPP Resilience and the POEO Act.
That view, however, does not pay sufficient attention to the interdependence of the Commissioner's consideration and reasoning with regard to the provisions of the SEPP Resilience, POEO Act, EPA Act and LEP. The Commissioner approached her consideration of the principal contested issues of the extent and acceptability of the risks of harm to human health and the environment and the environmental impacts of the proposed development, especially the remediation works and earthworks, by using the analytical frames of the provisions of the SEPP Resilience, POEO Act, EPA Act and LEP. Those different provisions framed her consideration and findings. But the consideration and findings under one statutory regime shaped the consideration and findings under another statutory regime. For example, the Commissioner's findings on the proposed reworking of the mounds of unauthorised fill containing asbestos waste to form new mounds, made when addressing the provisions of ss 3, 142A and 144AAB of the POEO Act, influenced the Commissioner's consideration of and findings on the provisions of the SEPP Resilience, especially ss 4.6(1) and 4.10(1), and both the consideration and findings on the POEO Act and SEPP Resilience influenced the Commissioner's consideration and findings on s 4.15(1)(e) of the EPA Act and cl 2.3 and cl 7.5(3) of the LEP.
[15]
Form of remitter order
Muscat submitted that, if the Commissioner's decision is set aside, the matter should be remitted to a Commissioner other than Commissioner Bish. Muscat submitted that the errors on questions of law committed by the Commissioner made an exclusionary remitter just and appropriate in the circumstances: Preferred Projects (Buildings) Pty Ltd v Warringah Council (1999) 106 LGERA 144; [1999] NSWLEC 283 at [24], Baulkham Hills Shine v Basemount Pty Ltd (2003) 126 LGERA 339; [2003] NSWCA 189 at [23], Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWLEC 164 at [83]-[85], Initial Action Pty Ltd v Woollahra Municipal Council at [134]-[143].
Muscat submitted that, although on remittal the Commissioner would be obliged to re-determine the matter according to law, including correctly interpreting and applying the relevant provisions of the SEPP Resilience and referring only as lawful and appropriate to the provisions of the POEO Act, there is a reasonable apprehension that the Commissioner might not decide the matter impartially in the sense that she has pre-judged the issues of fact she would be required to determine afresh.
The Council submitted that an exclusionary remitter was not required in the circumstances.
I find that it is appropriate, in the circumstances of this case, to make an exclusionary remitter order. As I stated when addressing the issue of the materiality of the errors I have found established, the Commissioner's consideration of and findings on the issues of fact about the extent and acceptability of the risks of harm to human health and the environment and the environmental impacts of the proposed development, especially the remediation works and the earthworks, were inter-related and inter-dependent. Although on remittal, the Commissioner would be required only to re-consider and re-determine the findings vitiated by error, relating to the provisions of the SEPP Resilience and the POEO Act, other findings not shown to involve error on questions of law, including on s 4.15(1)(e) of the EPA Act and cl 2.3 and cl 7.5(3) of the LEP, were influenced by the findings vitiated by error. Any change in the findings vitiated by error on rehearing would require revisiting the other findings influenced by those findings vitiated by error. That might prove difficult. The Commissioner would have to determine the same issues of fact that the Commissioner has prejudged.
[16]
Orders
The Court orders:
1. The appeal is upheld.
2. The decision and orders of Commissioner Bish of 7 December 2022 are set aside.
3. The proceedings are remitted to a Commissioner, other than Commissioner Bish, to be determined in accordance with law and these reasons for judgment.
4. The respondent is to pay the appellant's costs of the appeal.
[17]
Amendments
10 November 2023 - Removed paragraph numbering from heading (in previous [6]).
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Decision last updated: 10 November 2023
These expansive grounds of appeal can be more succinctly grouped by reference to the applicable legislation or legislative instrument as (1) the Resilience SEPP grounds (grounds 1 to 10, 16 and 17); (2) the POEO Act grounds (grounds 11 to 15); and (3) the EPA Act and LEP grounds (grounds 18 to 27).
Before dealing with these grounds of review, I will briefly explain the nature of the development application. Extensive detail and material were provided throughout the course of the hearing. Only those which are necessary for determining the appeal will be outlined.
Included as part of the development application was a Remedial Action Plan (RAP), which detailed and assessed the proposed remediation works. The RAP identified the areas of concern amongst the proposed earthworks and the health hazard arising from the presence of asbestos in the stockpiles of fill to be used to construct the new mounds. The remediation works proposed by the RAP involved major landform changes.
The Commissioner found that the land is currently used for residential purpose (at [104]), that residential dwellings will continue on the site (at [103]), and that residents are currently at risk from asbestos waste on the site because the mounds of unauthorised fill are laid bare (at [104]).
As a consequence, the Commissioner's assessment under s 4.6(1)(b) and (c) of "the purpose for which development is proposed to be carried out" included residential purpose. That is what the Commissioner stated in [103]:
"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."
The development purpose and use for that purpose to which the Commissioner was referring was the residential purpose of the dwellings that will continue on the land.
Muscat identified this approach as leading to four errors on questions of law. Ground 1 was that the Commissioner erred by misconstruing the phrase in s 4.6(1)(b) and (c), "the purpose for which the development is proposed to be carried out", as including the residential purpose of the existing dwellings on the land. The purposes for which the developments, the subject of the development application, were proposed to be carried out were limited to poultry farm (the purpose of the new shed and hardstand area) and depot (the purpose of the change of use of three existing sheds).
The development application did not seek consent to carry out any development in relation to, or for the purpose of, the existing dwellings on the land. Accordingly, the Commissioner misdirected herself by including residential purpose as a purpose for which the development is proposed to be carried out.
Muscat submitted that this affected the Commissioner's evaluation under s 4.6(1)(b) and (c) of whether the land will be suitable after remediation for the purpose for which the development is proposed to be carried out. This was ground 2. Critical to the Commissioner's finding that the land will not be suitable after remediation was her finding of the unacceptable risk to human health of residents of the dwellings on the land from the proposed remediation works: at [108]-[117].
Muscat submitted that these two errors led to a third error of misdirection. Section 4.6(1)(c) requires the consent authority to consider and be satisfied that, "the land will be remediated before the land is used for that purpose". The words "that purpose" refer to "the purpose for which the development is proposed to be carried out". Because the Commissioner erroneously identified residential purpose as a purpose for which the development, the subject of the application, is proposed to be carried out, she found that s 4.6(1)(c) could not be satisfied.
The residential purpose of the current use of the dwellings on the land necessarily exists before the land will be remediated. Hence, it was impossible for the Commissioner to be satisfied that the land will be remediated "before" the land is used for the residential purpose. This is what the Commissioner found at [104]:
"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)."
The Commissioner similarly stated in [108]:
"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."
Muscat contended the Commissioner, in so finding, misdirected herself as to the meaning and application of s 4.6(1)(c). This was ground 4.
In addition to these three errors of law by misdirection as to s 4.6(1), Muscat contended, in ground 3, that the Commissioner erred in law in making a finding of fact that failed to take account of cogent evidence. The Commissioner found that the land could not be made suitable for the purpose for which the development is proposed, but in doing so the Commissioner erred in:
1. accepting the written evidence of the Council's contamination expert, Mr Clay, without considering critical concessions made by him in his oral evidence;
2. ignoring the fact that the contamination experts both agreed that the land would be suitable for the proposed use following remediation; and
3. failing to explain why she rejected the evidence of both contamination experts on the topic.
Mr Clay did state in his written evidence filed before the hearing that the remediation works then proposed will not make the land suitable for the purpose for which the development is proposed to be carried out, but he changed his opinion, firstly, after joint conferencing with Muscat's contamination expert, Dr Swane and, secondly, in cross examination at the hearing. In the joint experts' report, Mr Clay accepted that issues he had raised in his written report had been partially resolved but other issues with the RAP, such as design volume and materials balance, were still outstanding. These issues with the RAP were proposed to be addressed by imposing a condition of consent requiring a NSW Environment Protection Authority accredited site auditor approving the amended RAP. The parties' experts agreed that it was sufficient for the site audit process to be undertaken prior to occupation, provided this was secured by way of a condition of consent.
At the hearing, the Commissioner asked the experts whether they are "satisfied by what's proposed in the RAP with the conditions of consent that the land will be suitable for its purpose, which is depot, poultry farm and residential use." (T 11/11/22, 157.24-26). Muscat's counsel corrected the Commissioner to note that it was not seeking consent for residential use. The Commissioner asked again: "So what's proposed by the RAP and the condition of consent, does it make the land suitable for those purposes?": (T 11/11/22, 157.49). Both parties' experts answered the Commissioner's question in the affirmative. Muscat's expert, Dr Swane, said: "My answer would be yes because the deficiencies in the RAP would be revised and addressed through this site audit process": (T 11/11/22, 158.1) The Council's expert, Mr Clay agreed:
"WITNESS CLAY: So the conditions that are proposed are that before construction certificate is provided, that the proponent get an auditor-approved RAP. Part of that process requires the auditor to ensure that the appropriate rules and regulations have been followed. One of those would include determining whether or not an environmental protection licence is required. And I think under those conditions, the Court could have reasonable certainty that the site would be suitable at the end of--
COMMISSIONER: Couldn't, did you say?
WITNESS CLAY: Could. Yep.
COMMISSIONER: Could?
WITNESS CLAY: Yep. And that process would lead to the production of a section A2 site audit statement at the end of the process, prior to occupation.
COMMISSIONER: So it doesn't really matter that the auditor hasn't been engaged yet. They will be engaged, and they will have input into remediation of the site.
WHITE: Yes.
WITNESS CLAY: Provided there's a force that installs that condition, then yes.
COMMISSIONER: What do you mean "There's a force"? That's a consent, isn't it?
WITNESS CLAY: That that's a condition. Yep.
COMMISSIONER: Which is already a condition in there. Right. Okay."
In this response, Mr Clay clearly changed his position from what he had said in his written report and the joint expert report. He now said that "the Court could have reasonable certainty that the site would be suitable at the end of… the process, prior to occupation" (at T 11/11/22 158.15-25).
Muscat contended that the Commissioner's finding that the site would not be suitable after remediation, relying on Mr Clay's earlier written report, ignored Mr Clay's later evidence that the site would be suitable at the end of the remediation process before the land is used for the purpose for which the development is proposed. That involved error of law.
Mr Clay's later evidence was of determinative significance on a jurisdictional point on which the Commissioner found against Muscat. There will be jurisdictional error where a decision-maker "ignores relevant material": Reznitsky v District Court of New South Wales [2015] NSWCA 194 at [46] citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]. The overlooking of critical evidence can be described as an error of law: Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [68].
A decision-maker will constructively fail to exercise jurisdiction and commit jurisdictional error if the decision-maker fails to take account of cogent evidence providing substantial support to a person's case: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [13] citing Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [103]-[115]. This principle has been applied where a Tribunal fails to take into account agreed expert evidence: Veterinary Surgeons' Board of Western Australia v Alexander [2013] WASC 136 at [107].
The Council contended that the Commissioner had not erred in the ways Muscat contended in grounds 1 to 4, but even if she did, those errors would not vitiate the Commissioner's decision because of her other findings in support of refusal of consent.
For grounds 1, 2 and 4, the Council submitted that the Commissioner's reference to the residential purpose of the land was merely an acknowledgment that the existing use of the residential dwellings would continue on the land if development consent were to be granted. The result would be that the land would be used for three purposes: poultry farm, depot and residential. In any event, the proposed central mound would separate the poultry farm use from the residential use, so that the purpose of the central mound could be said to be residential use.
For ground 3, the Council submitted that the Commissioner was not bound to agree with the evidence of the contamination experts, but could inform herself, citing s 38(2) of the Court Act and Universal Property Group Pty Ltd v Blacktown City Council (No 2) [2014] NSWLEC 115 at [57], [58] and [65]. The Council submitted that the Commissioner gave sufficient reasons to explain her thought process for not accepting the evidence of the parties' experts on this issue and the Commissioner was not obliged to refer specifically in her reasons to the oral evidence of the experts: Universal Property Group Pty Ltd v Blacktown City Council (No 2) at [107].
I find that the Commissioner did err in law in the ways claimed in grounds 1 to 4. On a proper and fair reading of the Commissioner's reasons, it is plain that the Commissioner found that the purposes for which the development was proposed to be carried out included not only poultry farm and depot but also the residential purpose of the existing dwellings. That involved error in the interpretation and application of s 4.6(1) of the SEPP Resilience.
Muscat sought consent in its development application for four developments:
1. Change of use of three existing sheds to a depot, with construction of associated hardstand areas - the purpose of this development would be a depot.
2. Construction of a new shed to be used as a farm building in support of the existing poultry farm - the purpose of this development would be a poultry farm.
3. Onsite remediation of unauthorised fill and earthworks involving reworking of unauthorised fill into mounds around the new shed, poultry farm and depot - the purpose of this development would be as a barrier separating and screening the poultry farm and depot.
4. Use of existing mounds of unauthorised fill located around the existing poultry farm and existing dwellings - the purpose of this use of the mounds would be as a barrier separating and screening the poultry farm and dwellings from each other.
The fourth development - the future use of existing mounds of unauthorised fill - did not involve carrying out any earthworks. Those mounds were not proposed to be remediated or reworked by carrying out earthworks; only landscaping of the existing mounds was proposed. For this reason, the use of these existing mounds was not the subject of the Commissioner's assessment of the remediation works under s 4.6(1), although she did consider the acceptability of not remediating but merely landscaping these existing mounds, which might be contaminated by asbestos waste, and relying on the unexpected finds protocol (see for example [112]).
The assessment under s 4.6(1) that was required to be undertaken by the Commissioner, and that she purported to undertake, concerned the first three developments. This assessment focused on the suitability of the land "for the purpose for which the development is proposed to be carried out". Section 4.6(1) requires a three-step assessment. The first step, in paragraph (a), is whether the land is contaminated. If the land is contaminated, the second step, in paragraph (b), is whether the land is either suitable in its contaminated state or will be suitable after remediation for the purpose for which the development is proposed to be carried out. If the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, the third step, in paragraph (c), is whether the land will be remediated before the land is used for that purpose.
Both the second and third steps, in paragraphs (b) and (c), frame the questions to be addressed by reference to "the purpose for which the development is proposed to be carried out". This refers to the purpose for which consent is sought in the development application. The assessment of suitability of the land, either in its contaminated state or after remediation, is by reference to the purpose for which the development application is to be carried out.
For Muscat's development application, the purposes of the three developments of change of use of three existing sheds to a depot and construction of associated hardstand areas, erection and use of a new shed and associated hardstand area for poultry farm, and remediation and reworking of unauthorised fill to be located around the poultry farm and depot, are restricted to poultry farm and depot. None of these developments was proposed to be carried out for a residential purpose.
The Commissioner, therefore, erred in undertaking the assessment required by s 4.6(1)(b) and (c) by reference to a purpose, residential purpose, for which the developments were not proposed to be carried out. It was not to the point, as the Council argued, that the existing dwellings on the land had been used, and would in the future be used, for a residential purpose. The development application did not propose any development of the existing dwellings, by rebuilding or reuse or otherwise. A residential purpose was not, therefore, a purpose for which any of the developments proposed in the development application was to be carried out. In undertaking the assessment required by s 4.6(1)(b) and (c) by reference to the residential purpose, the Commissioner erred in the ways contended in grounds 1, 2 and 4.
This is not say that the Commissioner was not permitted to consider and evaluate the significance of the risk of harm to human health and the environment by carrying out the proposed remediation work. That clearly is a relevant matter to be considered, not only under s 4.10(1) of the SEPP Resilience but also under s 4.15(1) of the EPA Act. But s 4.6(1) of the SEPP Resilience calls for a particular consideration, framed by reference to the suitability of the land, after remediation, for the purpose for which the development is proposed to be carried out. The Commissioner was required to, but failed to, undertake that consideration in that analytical frame.
The Commissioner also erred in the way contended in ground 3. The Commissioner overlooked the critical oral evidence of the parties' contamination experts given at the hearing that the site will be suitable, after remediation in accordance with the site auditor-approved RAP, for the purposes for which the development was proposed to be carried out. As I have noted, those purposes did not include the residential purpose of the use of the existing dwellings, which would not change.
The Commissioner's overlooking of this evidence was a result of her misinterpretation and misapplication of s 4.6(1)(b) and (c) of the SEPP Resilience. This evidence was central to the jurisdictional questions raised by s 4.6(1)(b) and (c). The Commissioner was bound to consider it. Her reasons disclose that she did not consider it, not only because there is no reference in her reasons to it, but also because of her reliance on Mr Clay's earlier written evidence and evaluation of the evidence in a way that is inconsistent with both experts' concluded opinions in their oral evidence that the land will be suitable, after remediation, for the purpose for which the development was proposed to be carried out.
This is not a case, such as that of Universal Property Group Ltd v Blacktown City Council (No 2) referred to by the Council, where the decision-maker considered, but rejected, the experts' agreed evidence. Here, the Commissioner's reasons do not reveal that she considered the experts' concluded opinions on this question of the suitability of the site after remediation. This overlooking of critical evidence is an error of law, as Muscat submitted by reference to the authorities cited.
The Commissioner's errors on questions of law, in the ways contended in grounds 1-4, are material, for the reasons I will explain at the end of the judgment.
The Council contested that the Commissioner was bound to give specific consideration to the CLM Guidelines or NEPM pursuant to s 4.14(1) of the SEPP Resilience. The section governs how remediation work is to be carried out, after the grant of development consent. The section does not prescribe a mandatory relevant consideration for the purpose of s 4.15(1) of the EPA Act. The Commissioner was, therefore, not required to consider s 4.14(1), or the CLM Guidelines and NEPM referred to, in her determination as to whether development consent should be granted.
In any event, the Council noted that the Commissioner did refer to the CLM Guidelines in [47], [73] and [75] and the NEPM in [47] of her judgment. The Council submitted, therefore, that ground 5 is not established.
The Council likewise submitted that ground 6 is not established as there was no legal obligation for the Commissioner to assess the RAP against the requirements of the CLM Guidelines. Section 4.14(1)(c) does require all remediation work to be carried out in accordance with a plan of management prepared in accordance with the CLM Guidelines. But this governs the carrying out of the remediation work once development consent has been granted, not the consideration of whether to grant development consent for the remediation work.
In any event, the Council submitted that the Commissioner did evaluate the RAP and found it to be deficient for the reasons given at [109]-[117].
The Council submitted that ground 7 is not established as, again, there was no legal obligation on the Commissioner to assess the remediation of the asbestos contamination on the land against the criteria in the NEPM or even to consider the NEPM. In any case, the Council submitted that the NEPM was not applicable to the land.
I consider there was an obligation on the Commissioner, exercising the function of the consent authority on appeal, to consider whether the proposed remediation work for which development consent was sought would, if carried out, be in accordance with the CLM Guidelines, NEPM and a plan of remediation prepared in accordance with the CLM Guidelines. A person cannot carry out remediation work, including category 1 remediation work, without firstly obtaining development consent for the remediation work, and secondly, carrying out the remediation work in accordance with not only any development consent granted but also s 4.14(1) of the SEPP Resilience: see s 4.2(1) of the EPA Act. This means that in order to comply with s 4.14(1) of the SEPP Resilience when carrying out the remediation work, the remediation work that is the subject of the development consent must be itself in accordance with the CLM Guidelines, NEPM and a plan of remediation prepared in accordance with the CLM Guidelines.
This imposes a requirement on the consent authority to consider whether, and only to grant consent to, remediation work which will be in accordance with the CLM Guidelines, NEPM and a plan of remediation prepared in accordance with the CLM Guidelines. If development consent were to be granted to remediation work that was not in accordance with the CLM Guidelines, NEPM and a plan of remediation prepared in accordance with the CLM Guidelines, the holder of the consent, in carrying out the remediation work in accordance with the development consent, would breach s 4.14(1) of the SEPP Resilience. This would entail breaching s 4.2(1)(b) of the EPA Act.
Once this is understood, the Commissioner can be seen to have failed to consider whether the proposed remediation work, if development consent were to be granted, would be carried out in accordance with the CLM Guidelines, NEPM or a plan of remediation prepared in accordance with the CLM Guidelines. The Commissioner's consideration of the RAP and the remediation works, including remediation of asbestos contamination, was not done by reference to the CLM Guidelines or NEPM. Those guidelines needed to have served as "a focal point for, or constituted a fundamental element in", the Commissioner's evaluation of the remediation works, by reason of s 4.14(1)(a) and (b), and the RAP, by reason of s 4.14(1)(c) of the SEPP Resilience: see analogously Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [77]. The Commissioner failed to evaluate the remediation works and the RAP by reference to the CLM Guidelines and NEPM, and thereby erred in law in the ways contended in grounds 5 to 7. These errors are material, as I explain later in the judgment.
Muscat submitted that this evidence was significant as the NEPM, which the Commissioner was required to consider under s 4.14(1)(b) of the SEPP Resilience, states that: "It is an inappropriate response to declare a site a human health risk on the basis of the premise of bonded ACM alone."
Muscat submitted that in light of the parties' experts' evidence, it was not open on the evidence for the Commissioner to make the following findings concerning the risks to human health from asbestos waste and the level of contamination of the site:
"a. moving the asbestos around the site without any substantial reduction in its load (levels) does not actually reduce the asbestos to [non]-harmful levels (J [90]);
b. the proposed capping of the (asbestos) contaminated fill merely hides the asbestos at a depth that hopefully will not be exposed in the future (J [90]);
c. 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 (J [90]);
d. 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 (J [104]); and
e. the proposed remediation works would cause an unacceptable risk to human health by the movement (reworking) of asbestos contaminated fill across the site (J [108])": at 48-(c) of Muscat's written submissions.
In relation to ground 9, Muscat submitted that the Commissioner's findings in relation to the alleged uncertainty of the environmental impacts were without evidence or contrary to the parties' expert evidence. The Detailed Site Investigation (DSI) that accompanied Muscat's development application identified the risk of harm to future residential uses on the land, nominating residential "receptors" in section 5.3 of the DSI. The DSI concluded that "the site poses no risk to human health and/or the environment and is suitable for the environment and is suitable for the proposed development", subject to a RAP being approved. The DSI was reviewed by Muscat's expert, Dr Swane, and found to be sufficient. The Council's expert, Mr Clay, also reviewed the DSI and undertook his own sampling. He did not expressly state that there was uncertainty as to the presence or distribution of asbestos. The RAP, which was informed by the DSI, identified that the "site is currently occupied by two rural residential dwellings". The Construction Environmental Management Plan, which formed part of the RAP, identified that one of its stated purposes was to "ensure a safe environment for onsite workers and visitors, and surroundings residents".
In light of this evidence, Muscat submitted that the Commissioner made findings without evidence and contrary to the expert evidence in relation to the alleged uncertainty of environmental impacts, including:
"a. the extent of asbestos has not been accurately assessed (J [90], [108], 109]), including the unauthorised fill to be reworked on the site (J [114]);
b. uncertainty remains on the potential impact to human health (J [110]);
c. there is a foundational gap in knowledge to inform the conceptualisation of the remediation strategy (J [112]);
d. the applicant's remediation approach is flawed due to insufficient and inaccurate baseline data (J [115]) (which was contrary to the oral evidence of the contamination experts); and
e. 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 (J [115])": at 55-(e) of Muscat's written submissions (footnotes omitted).
The Council submitted that the Commissioner's findings concerning the risks to human health were factual and based on evidence before her. The Commissioner was not bound to accept the identified evidence of the parties' experts on which Muscat relied but could make her own findings on all of the evidence before her. There was evidence before her from which she could find that there were risks to human health and that the DSI and RAP were deficient in various respects.
In particular, the Council submitted that the following findings were reasonably open to the Commissioner on the evidence:
1. the RAP had not adequately addressed the potential impact to existing residents, for the reasons she gave, and as a result was "fundamentally flawed to protect human health" (at [111]);
2. there was a "foundational gap in knowledge to inform the conceptualisation of the remediation strategy, as described in the amended RAP" (at [112]);
3. there was not "sufficient understanding of the extent of asbestos waste contamination across the site and throughout the unauthorised fill" (at [113]);
4. there was "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" (at [114]);
5. 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" (at [114]); and
6. "the applicant's 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" (at [115]).
Muscat replied that, although the Council submitted there was evidence that was capable of supporting the Commissioner's findings, the Council has not assayed the task of pointing to any such evidence, not even "a skerrick of evidence": Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 at [17].
I reject grounds 8 and 9. Muscat has not established that the Commissioner's findings of fact concerning the inadequacy of the RAP and the remediation approach to address the risks to human health were not open on the evidence before the Commissioner. It is not sufficient for Muscat to point to some evidence, in the DSI and the RAP and the written and oral evidence of the parties' experts, arguably to the contrary of the Commissioner's findings. Muscat's challenge is that there is no evidence in support of the Commissioner's findings and needs to establish that fact.
Whilst a finding of fact for which there is no evidence in support will involve an error of law (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91]), provided there is some evidence in support for a finding of fact, no error on a question of law will arise. A finding that is perverse or against the weight of the evidence is wrong in fact, but not in law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 and Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333-334.
Hence, even if the Commissioner's findings were wrong in fact, that would not involve an error of law. The Commissioner did not make a legal error simply by making a wrong finding of fact or drawing some faulty inference of fact: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; [1990] HCA 33. Even if the findings were to be perverse or against the weight of evidence, they would only be wrong in fact, not law.
The onus of establishing that there was no evidence in support of the Commissioner's finding rested on Muscat as the challenger; there was no onus on the Council to establish that there was some evidence in support of the Commissioner's findings. Muscat has not discharged that onus. The Commissioner's reasons, read as a whole, disclose that her findings involved an evaluation of the evidence before her, including the evidence summarised at [59]-[77], and hence were founded on some evidence.
Muscat's challenges in grounds 8 and 9 to the Commissioner's findings are, at base, that the Commissioner made findings contrary to certain evidence it identified and hence made wrong findings of fact. No error of law arises in this circumstance. Grounds 8 and 9 are rejected.
Ground 10 challenged the Commissioner's findings as also involving a denial of procedural fairness. Muscat contended that the Commissioner disposed of the appeal due to what she determined to be the uncertainty of environmental impacts.
Muscat submitted that that issue was specifically abandoned by the Council in its Amended Statement of Facts and Contentions (being Contention 1(a)-(c) and Insufficient Information Contention 2.3). To the extent that the Council later sought to raise the issue during the hearing, Muscat objected to it (see T 11/11/22 154.25 and 155.22-26). The Council did not seek leave to further amend its contentions to raise the issue again. Muscat submitted that the Council remained bound by its Amended Statement of Facts and Contentions: Gales-Kingscliff Pty Ltd v Tweed Shire Council (No 2) [2007] NSWLEC 817 at [20] and [36].
Muscat accepted that, although the Council could not raise the issue for this reason, the Commissioner was not bound by the Council's contentions and could have determined the appeal on this issue. But before the Commissioner could do so, the Commissioner was obliged to raise the issue with the parties and give them an opportunity to be heard: Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 at [101]; Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [132].
Muscat contended that the Commissioner did not raise the issue with the parties or give them an opportunity to be heard on the issue. Indeed, insofar as the Council sought to raise the issue after having abandoned it in the Amended Statement of Facts and Contentions, Muscat objected to the issue being raised and the Council did not seek to pursue it. At this juncture, if the Commissioner wished to raise the issue herself, regardless of whether the Council wished to pursue it, she needed to have done so in order to accord procedural fairness to Muscat.
In these circumstances, Muscat submitted that the Commissioner denied Muscat procedural fairness by disposing of the appeal on the basis of her determination of the issue of the uncertainty of environmental impacts, which was not pressed in the Council's contentions or raised by the Commissioner at the hearing.
The Council contested that the Commissioner did not raise the issue of the uncertainty of environmental impacts at the hearing. That issue was one of the many concerns the Commissioner identified that she had about the adequacy of the assessment carried out in the RAP and the remediation approach proposed to address asbestos contamination.
During the oral evidence of the parties' experts on the acceptability of the remediation approach to address asbestos contamination, the Commissioner expressed concern that the remediation approach "needs to be in the RAP" (T 10/11/22 129.16). The Commissioner, after directing the experts to provide "specifics" not "generalities", asked where the RAP explains that existing areas of fill contaminated by asbestos waste, which are not to be capped, are to be covered by 500 mm of soil (T 10/11/22 130.1, 130.25). Counsel for the Council took the Commissioner to the relevant parts of the RAP to answer the Commissioner's questions. The Commissioner followed up with another question of "where in the RAP does it describe how that is remediated?" The "that" referred to an area in the southern part of the central mound (T 10/11/22 132.18).
Muscat's expert, Dr Swane, replied that: "It doesn't say explicitly, but there is provision for it" (T 10/11/22 132.27). He then referred to "section 7 in the CEMP, the contingency plan and also unexpected finds" (T 10/11/22 132.32). The Commissioner remained unconvinced, asking:
"What I heard from Mr Clay, and I understood that you had agreed, but correct me if I'm wrong, was in that southern area where you both found bonded asbestos, despite Coleman not finding it, an appropriate strategy would be to apply 500 millimetres of soil and landscape it. That's what I understood. The question is where is that? That should be in the CEMP or the RAP. It should be documented somewhere. Where is that because it's not an unexpected find? We're aware it's an issue. You agree that it needs to be dealt with. It should be explained. Where is that?" (T 10/11/22 133.10-17).
An attempt was made to answer the Commissioner's question, with Mr Clay observing:
"It's a bit of a shemozzle really and Dr Swane and I both agree that the RAP isn't quite the thing and really if you've got asbestos in one part of a mound and asbestos in another part of a mound and you're covering one part of the mound with a cap, then really, kind of simply, common sense would suggest that when you are effectively creating something that's destined to live for time immemorial that you would approach the whole mound in the same manner really and it kind of points to the--" (T 10/11/22 133.38-44).
Mr Clay summarised his concerns about the adequacy of the remediation approach, saying:
"You've got a plan to remediate certain parts of the mound with asbestos popping out all over it in one way and then no remediate [sic remediation] plan at all, other than hoping that somebody picks this up down the track and somebody is smart enough, who can't spot asbestos lying on the surface of the mound in the first place, to then go and re-spot it and then change all the remedial plans after the fact. That is not the way to approach something like this" (T 10/11/22 134.14-20).
Mr Clay continued:
"You've got - you have a mound of kind of possibly ostensibly the same material as other parts of the site. We, Dr Swane and I, both walked over it and found asbestos in it. You've got a house just over the other side of the - over the other side of the mound. You've got a crazy remediation plan that says "We're going to cap a bit of it, but not another bit of it, we've got some vague plan to do a landscape design, and don't worry, we'll treat it as an unexpected find". We know that there's asbestos in the mound. We've agreed that we think the RAP needs a bit of a - if it were that we actually liked this whole remedial philosophy in the first place. We've agreed that the RAP needs a bit of a shake up. Because it's all waste it's going to need a licence anyway. In order to get a licence there's going to have to be a whole approval process they'll have to go through with the EPA. They might not even like a half a metre of cover. Who knows what the EPA might come up with. They might want it to be designed in accordance with the landfill construction size" (T 10/11/22 134.39- 135.4).
Indeed, Mr Clay described the remediation approach, adopting the terminology used in a question by Muscat's counsel, as "half-baked":
"And the asbestos repository is an engineered design with a half a metre of cap on it. The cap is going to come out of the northern pad that we walked over. That northern pad is made of, it would seem, crushed sandstone. Is crushed sandstone an appropriate thing to make a cap on out of an angle of one in two or one in three. Can you grow plants on that? If it rains will it slough off and the beautiful landscape design end up looking like the other mound of rubbish, other mound of soil we saw on the other side of the fence which has got bit sloughs out of it and looks like no one loves it and you know it's been allowed to fall to pieces. And you image that in that type of circumstance the landscape plan has not really spoken to the fact that this is an engineered cell with half a metre of cover material which is, who knows what kind of material, it's not really specified. We don't know how it's going to be laid or compacted or whether the material will even hold a landscape in time. So when I say half-baked, the landscape design needs to talk to the engineering design, the engineering design needs to say this is the maximum slope that you can build it to, this is how we'll build the slope, this is how we'll construct it to make sure it's solid. These are the types of plants that you can plant on a slope constructed like that. Not kind of fluffy green pictures of trees and shrubs and what have you" (T 10/11/22 135.15-36).
Later, the Commissioner sought to clarify her understanding of the remediation approach as being that no earthworks are proposed for the existing mounds that are remaining, the central mound or the J-shaped mound; that Muscat is seeking consent only for the use of those mounds after landscaping; and that "the treatment of the area is put off to an unexpected find" (T 10/11/22 138.10-34).
During the experts' oral evidence, the Commissioner expressly raised concern about the adequacy and quality of the information in the DSI and RAP. In response to Muscat's counsel's assertion that the issues about the adequacy of the DSI and RAP had been abandoned by the Council in its Amended Statement of Facts and Contentions, the Commissioner noted: "They're not just contentions of the council; it's the jurisdiction requirements the Court has to be satisfied by. That's why I'm asking the questions I'm asking." (T 11/11/22 155.40).
The Commissioner then asked Mr Clay to take her through the expert reports where he expressed concern about the quality of the information that supports the DSI or other evidence (T 11/11/22 156.1). Mr Clay endeavoured to do so, although was interrupted by Muscat's counsel who sought to do so instead (T 11/11/22 156).
This evidence about the uncertainty of the remediation approach and its environmental impacts was referred to by counsel for the Council in his closing submissions.
The Council submitted that in these circumstances Muscat was put on notice that the Commissioner had concerns about the adequacy and uncertainty of the remediation approach proposed in the RAP and its environmental impacts. There was no denial of procedural fairness by the Commissioner determining the appeal on this basis of the uncertainty of the remediation approach and its environmental impacts.
Muscat responded that the "concerns" expressed by the Commissioner during the hearing were no more than questions as to the form of the RAP, which were answered by Muscat's draft conditions of consent and the parties' experts in their oral evidence. Muscat submitted that the Commissioner's questions were not sufficient to demonstrate that the Commissioner adequately discharged the requirements of procedural fairness.
I find ground 10 has not been established. As the Council submitted, Muscat was on notice that the Commissioner was concerned about the adequacy and quality of the information in the RAP and in other evidence on the proposed remediation approach and its environmental impacts. That is clear in the extracts of oral evidence and closing submissions that I have earlier quoted. It mattered not that the Council might not have articulated the concerns in the Amended Statement of Facts and Contentions in the precise terms discussed in the evidence or by the Commissioner in her reasons for judgment. That issue was a sub-issue of the general issue joined between the parties as to the adequacy of the remediation approach proposed by Muscat. As the Commissioner observed during the hearing, the adequacy of the remediation approach was relevant to the Commissioner being satisfied of the jurisdictional requirements under the SEPP Resilience. These requirements are those in s 4.6(1), including that the land, after remediation, will be made suitable for the purpose for which the development is proposed, and s 4.14(1), that the remediation work to be carried out will be in accordance with the CLM Guidelines, NEPM and a plan of remediation prepared in accordance with the CLM Guidelines.
Muscat bore the onus of establishing the facts upon which the Commissioner's consideration of the jurisdictional requirements under the SEPP Resilience could be undertaken. Muscat had the responsibility to adduce such evidence and make such submissions concerning these requirements as it thought would best advance its case and would persuade the Commissioner to grant development consent: see Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [112]; Forgall Pty Ltd v Greater Taree City Council (2015) 209 LGERA 160; [2015] NSWLEC 61 at [78] upheld in Forgall Pty Ltd v Greater Taree City Council [2015] NSWCA 340 at [7]. Responsibility for Muscat to do so flowed from the requirements of s 4.6(1) and s 4.14(1) of the SEPP Resilience themselves and did not need to be triggered by the Council or the Commissioner raising as an issue the need for the Commissioner to consider, and be satisfied of, the matters in s 4.6(1) and s 4.14(1): Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102 at [124]-[125].
In any event, the Council and the Commissioner did raise concerns about the adequacy and uncertainty of the remediation approach proposed by Muscat and its environment impacts, as demonstrated by the extracts from the evidence and submissions quoted above. That was sufficient to put Muscat on notice. The Council and the Commissioner did not need to frame those concerns expressly as an issue that Muscat should address by evidence and submissions. Muscat made a forensic decision as to how it would deal with the concerns raised by the Council and the Commissioner. The Commissioner did not deny Muscat procedural fairness.
Muscat contended that this finding had the necessary consequence that the Commissioner could not refuse development consent to the remediation work proposed. The risk comparison required by s 4.10(1) requires a positive assessment that the risks from carrying out the remediation work are greater than the risks of not carrying out the work remediation. Because the Commissioner found that there was sufficient uncertainty that the risks of carrying out the remediation work "will pose a more significant risk of harm to human health" than the risks of not carrying out the remediation work, the Commissioner could not form the requisite satisfaction under s 4.10(1) so as not to be precluded from refusing development consent to the remediation work.
Ground 17 challenged the Commissioner's finding as being legally unreasonable. Muscat contended that, having regard to the analysis of the proposed remediation works in the RAP and the evidence of Dr Swane and the agreed evidence of the parties' experts that the land poses less risk once the proposed remediation measures were carried out, it was not reasonably open to the Commissioner to make a positive finding of satisfaction that there would be a more significant risk of harm to human health or some other aspect of the environment from carrying out the work than there would be from the use of the land in the absence of the work, for any lawful purpose.
The Council contested Muscat's argument that the Commissioner had misinterpreted and misapplied s 4.10(1) or made a legally unreasonable decision under s 4.10(1).
The Council first took issue with what Muscat said was what the Commissioner decided. Whilst the Commissioner did express herself in [114] in terms of "sufficient uncertainty", that language was a repetition of how the Commissioner had been describing other concerns she identified in that paragraph. One was that Muscat had not "sufficiently demonstrated" that the land could be made suitable, after remediation, for the purpose of development, pursuant to s 4.6(1)(c). A second was that there was "sufficient uncertainty" on the extent of asbestos contamination within the unauthorised fill that is to be reworked to reasonably inform the remediation works. A third was that the continued presence of residents on the land was not "sufficiently addressed" in the contamination assessments or the RAP. It is in this context that the Commissioner's choice of language of "a sufficient uncertainty" with respect to the remediation works needs to be understood.
But more importantly, the Commissioner's inexact language to express her finding in [114] needs to be read together with her exact language to express her clear and unequivocal finding in [107]:
"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."
That was the finding of positive satisfaction that the Commissioner was aware she needed to make in order to be relieved of the requirement in s 4.10(1) not to refuse development consent to the proposed remediation works.
The Commissioner was aware that the consent orders made in earlier Class 4 proceedings for removal of the unauthorised fill on the land, required the existing unlawful fill to be removed if development consent was not granted: at [31]. The Commissioner knew, therefore, that if she refused development consent for the remediation works, the unauthorised fill would need to be removed from the land.
The Council did raise, by notice of contention, an alternative argument that the Commissioner erred in making her equivocal finding in [114], which was contrary to her unequivocal finding in [107]. This notice of contention only needs to be addressed if the Council's primary argument that the unequivocal finding in [107] prevails over the equivocal finding in [114] fails.
Once the Commissioner's factual finding is understood to be in the terms of s 4.10(1), the Council submitted there is no error in the second way alleged by Muscat in ground 16.
The Council submitted that the Commissioner has not been shown to have erred in the first way alleged by Muscat in ground 16. The Commissioner's findings in [107] clearly involved the comparative risk assessment required by s 4.10(1). That is evident, firstly, by her express statement in [107] that her assessment of risk was "pursuant to s 4.10 of the SEPP Resilience" and, secondly, by her use of the phrase "there is a more significant risk". The Commissioner compared the risk "from the proposed carrying out of the remediation works and retaining of the asbestos waste on the site" to the risk of not doing that. The risk from the first was identified expressly but the risk from the second was implied by her language of "more significant risk". The relevant comparator pursuant to s 4.10(1) was the risk from the use of the land in the absence of the remediation work.
The Council submitted that, viewed in context, the Commissioner did not misinterpret or misapply s 4.10(1) in making her finding in [107].
The Council further submitted that Muscat's argument in ground 16 was flawed by using the wrong comparator in the risk comparison required by s 4.10(1). Section 4.10(1) requires a comparison of the risks of harm to human health and the environment from the carrying out of the remediation work with the risk of such harm from the use of the land in the absence of the remediation work, "for any purpose for which it may lawfully be used". Muscat's development application sought consent for remediation works to remediate certain mounds of unauthorised fill and for the future use of other mounds of unauthorised fill that would not be remediated or reworked.
None of these mounds of unauthorised fill constitutes a lawful use of the land and hence is a relevant baseline for the risk comparison required by s 4.10(1). The Council submitted that Muscat's construction of s 4.10(1) to allow comparison of the risks from carrying out the remediation works and the risks of using the mounds of unauthorised fill on the land would impermissibly permit Muscat to take advantage of the unlawful mounds: Ralph Lauren Pty Ltd v Transitional Coastal Panel (2018) 235 LGERA 345; [2018] NSWLEC 207 at [72], [73], [128] and [129].
Once the relevant baseline for the risk comparison required by s 4.10(1) is appreciated, the Council submitted the Commissioner's finding in [107] cannot be shown to be legally unreasonable. Muscat's argument in ground 17 is dependent on its argument that the comparison is with the current use of the existing mounds for the purposes of poultry farm and dwellings. But that current use of the mound is unlawful.
In any event, the Council submitted it was reasonably open on all of the evidence for the Commissioner to be satisfied that the risks of carrying out the remediation work would be greater that the risks of not carrying out the remediation work. The Commissioner was not bound to accept the analysis of the remediation work in the RAP or by Dr Swane, or the agreed oral evidence of the experts. Provided there is some evidence in support of a finding or inference of fact no error of law arises. That is the situation with the Commissioner's finding in [107] as to s 4.10(1). There was evidence to support the finding, including that which was referred to by the Commissioner in her reasons at [108]-[115].
I find Muscat has not established grounds 16 and 17, for the reasons given by the Council summarised above. The Commissioner did not misinterpret or misapply s 4.10(1) in making her finding in [107] that there would be a more significant risk from carrying out the remediation work than there would be from not carrying out the remediation work. The unequivocal finding in [107] is the Commissioner's operative finding, not the equivocal statement in [114]. Muscat has not established that in making the finding in [107], the Commissioner did not undertake the risk comparison required by s 4.10(1). The comparative language used by the Commissioner in [107] supports a finding that the Commissioner did undertake the required risk comparison. The Commissioner's finding has not been shown to be unsupported by any evidence. Provided there was some evidence in support of the finding, the Commissioner did not err in law in not accepting the analysis in the RAP, the evidence of Dr Swane or particular oral evidence of the parties' experts, which Muscat submitted established to the contrary of the Commissioner's finding. There was no legal unreasonableness in the Commissioner's finding.
The Commissioner disagreed "with the assessment of Clay AC in the Muscat judgment to distinguish the proposed reworking/re-use of asbestos waste from 'advantageous second use', as explained below": at [84]. The Commissioner then provided her explanation at [85]-[87]:
"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".
The Commissioner continued at [89]-[92]:
"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."
The Commissioner's disagreement with Clay AC's interpretation of "re-use" in s 144AAB founds ground 11. Muscat contended that the Commissioner erred, as a matter of judicial comity, in not following Clay AC's decision or finding that the decision was plainly wrong. Muscat submitted that where a previous Commissioner of the Court has made a determination on a question of law, it should be followed as a matter of judicial comity unless the Commissioner considers it is plainly wrong: Intrapak Skennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 1006 at [106].
In this case, Muscat submitted the Commissioner did not address the question of whether she should follow Clay AC's decision as a matter of judicial comity, and thereby erred on a question of law.
In ground 12, Muscat challenged the Commissioner's finding that development consent could not be granted under the EPA Act to development that would be unlawful under s 144AAB of the POEO Act. Muscat submitted that the statutory regimes under the EPA Act and the POEO Act are separate and the power to approve development or activity under one is not dependent on the lawfulness of the development or activity under another. Hence, the potentiality for the proposed remediation works to be unlawful under s 144AAB of the POEO Act does not deny the Court's power to grant development consent to the works under s 4.16(1) of the EPA Act: see analogously, McDougall v Warringah Shire Council (1993) 30 NSWLR 258 at 276-277.
That is made clear by s 7(1) of the POEO Act, which states that:
"7 General relationship with other Acts
(1) 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."
Muscat made this submission to the Commissioner (noted at [82]). The Commissioner stated at [94] that:
"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."
Notwithstanding, the Commissioner nevertheless found 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" (at [92]) and "the earthworks and remediation approach described in the amended application is therefore contrary to the objects and provisions of the POEO Act" (at [93]).
Muscat submitted the Commissioner erred in so finding. Whether there would be or not be a breach of s 144AAB of the POEO Act by the proposed onsite remediation of asbestos waste could not take away the power under s 4.16 of the EPA Act to grant development consent to such remediation.
Ground 13 contested the Commissioner's interpretation of "re-used" in s 144AB of the POEO Act. The Commissioner accepted the Council's definition that "re-used" means "used again". She found that "the proposed treatment of the asbestos waste, … 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": at [91] and see also [92]. Muscat submitted that the Commissioner's interpretation was wrong and instead Clay AC's interpretation was correct.
Ground 14 concerned s 142A, another provision of the POEO Act that the Commissioner found would be breached by undertaking the proposed onsite remediation works. Section 142A(1) of the POEO Act provides: "A person who pollutes land is guilty of an offence".
The Council had submitted before the Commissioner that the proposed onsite remediation works would result in pollution of the land, breaching s 142A of the POEO Act: at [80], [81]. The Commissioner agreed: at [92] and [93].
Muscat challenged that conclusion for various reasons. The first was the same as the challenge to the Commissioner's finding that the remediation works would breach s 144AAB of the POEO Act. Whether or not the remediation works would lead to a breach of s 142A of the POEO Act cannot take away the power under s 4.16 of the EPA Act to grant development consent to the remediation works.
The second was that the Commissioner gave no reasons for her conclusion that "the earthworks and remediation approach" would be contrary to s 142A of the POEO Act.
The third was that the Commissioner failed to consider and apply the definition of "land pollution" in the Dictionary to the POEO Act. "Land pollution" is defined to be:
"Land pollution or pollution of land means placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous -
(a) that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial, or
(b) that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,
but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations."
Muscat submitted that there was no evidence before the Commissioner, and the Commissioner did not refer to any evidence, that the remediation works proposed in the RAP would "degrade the land" or cause "actual or potential harm" of the kind referred to in the definition.
Ground 15 challenged the Commissioner's reliance on the objects of the POEO Act. The Commissioner stated that: "To understand the intent of the provisions of the PoEO Act, I turn to its objects described in s 3": at [88]. The provisions to which the Commissioner referred were presumably ss 142A and 144AAB. The Commissioner quoted s 3 of the POEO Act: at [88]. The Commissioner then analysed whether the proposed remediation works would satisfy the objects of the POEO Act. The Commissioner found that the remediation works did not satisfy the objects in s 3, specifically (d)(ii), (iia) and (iii): at [89] and see also [93].
Muscat submitted that the Commissioner misdirected herself in finding that the proposed remediation works were required to satisfy the objects of the POEO Act. There was no requirement under s 4.15 of the EPA Act or the POEO Act itself for the Commissioner to be satisfied that the proposed development would satisfy the objects of the POEO Act in granting development consent to the development. The Commissioner thereby erred as a matter of statutory construction in her consideration and determination of the development application.
The Council addressed grounds 11 to 15 individually. As to ground 11, the Council submitted that there was no error on a question of law in the Commissioner not coming to the same conclusion as another Commissioner in another merit appeal. The Commissioner was not obliged to refer to Clay AC's decision in Muscat Developments Pty Ltd v Wollondilly Shire Council in order to distinguish it on its facts or otherwise to find that it was wrong. The Commissioner also was not obliged to give reasons for not following Clay AC's earlier decision: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [56], [64], [94], [99(f)] and [99(g)] and Arrage v Inner West Council [2019] NSWLEC 85 at [70].
The Council submitted that the decision of Intrapak Skennars Head Pty Ltd v Ballina Shire Council, relied on by Muscat as authority for the proposition that the Commissioner was bound by judicial comity to follow Clay AC's earlier decision, was itself a decision of a Commissioner (again, Clay AC) and is contrary to the decision of the Court of Appeal in Segal v Waverley Council and the Chief Judge in Arrage v Inner West Council. The Council submitted that judicial comity is a practice, not a rule of law, and a failure to observe considerations of comity, as opposed to precedent, could never constitute an error of law.
In any event, however, the Commissioner did refer expressly to Clay AC's earlier decision, stated that she disagreed with it, and gave reasons for that disagreement. The Commissioner thereby adhered to the practice of comity.
As to ground 12, the Council accepted that the Commissioner did state that "whether the proposed onsite remediation of asbestos waste by reworking is lawful, pursuant to the PoEO Act" is one of the "jurisdictional tests to consider" in determining Muscat's development application for the proposed remediation works: at [52] and see also [37]. Nevertheless, the Council submitted that the Commissioner, in the way she actually decided the appeal, did not consider any unlawfulness under the POEO Act as sufficient to deny the Court's jurisdiction to grant development consent under the EPA Act for the remediation works. Rather than viewing compliance with the provisions of the POEO Act as a jurisdictional requirement, the Commissioner considered compliance with the provisions of the POEO Act as a matter in the exercise of her discretion to determine the development application.
The Council noted that the Commissioner had recorded the Council's submission at the hearing that the Court should not, in the exercise of its discretion, grant development consent to sanction an unlawful or criminal activity, citing Moss v Kiama Municipal Council: at [81] of the judgment. That is what the Commissioner said at [94] that she accepted Muscat's counsel's submission that, pursuant to s 7 of the POEO Act, her assessment of the development application pursuant to s 4.15 of the EPA Act was not constrained by any potential liability under s 142A and s 144AAB of the POEO Act.
The Commissioner had earlier set out Muscat's counsel's submission at [82] 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."
Cognisant of this, the Commissioner determined that the development application should be refused because it was not "in the public interest and contrary to s 4.15(1)(e) of the EPA Act": at [94]. The public interest, the Commissioner accepted, included the finding that the proposed remediation works were "contrary to the objects and provisions of the POEO Act": at [93]. But this determination was an exercise of discretion, not the result of non-satisfaction of a jurisdictional test.
The Council submitted that the Commissioner's consideration of the provisions of the POEO Act was permissible. Section 39(4) of the Court Act provides that: "In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest". Pursuant to this provision, the Commissioner was entitled to have regard to the provisions of the POEO Act in making her decision in respect of the appeal.
As to ground 13, the Council submitted the Commissioner's finding that the reshaping and reworking of the unauthorised fill involved a "re-use" for the purpose of s 144AAB of POEO Act raised a question of fact, not law. When a Court is confronted with a statute that uses words according to their common understanding, and the question is whether the facts fall within those words, the question is one of fact, not law: NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 511-512; Hope v Bathurst City Council (1980) 144 CLR 1 at 8.
The Council noted the term "re-use" in s 144AAB of the POEO Act is not defined in the POEO Act and does not have any special meaning. It bears its ordinary meaning. The question of whether the reshaping and reworking of the unauthorised fill containing asbestos waste fell within the ordinary meaning was therefore a question of fact. Any error of the Commissioner in finding that these actions fell within the ordinary meaning of "re-use" was an error of fact, not reviewable on an appeal limited to error on a question of law: The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126; (1940) 14 LGR (NSW) 149 at 127, 138.
As to ground 14, the Council noted that it is not clear that the Commissioner did in fact find that the proposed remediation works would contravene s 142A of the POEO Act: see at [92] (the reference to "s 142" is presumably meant to be a reference to s 142A) and [93]. But in so far as the Commissioner did so find, the Council submitted that it was open to her to find that the earthworks and remediation approach described in the RAP would "degrade the land" (by spreading the asbestos contamination over a wider area of the land) or that they would cause "actual or potential harm" (by exposing residents and workers on the land to potential asbestos contamination). The Commissioner's reasons, whilst not framed in the language of the definition of "land pollution" in the Dictionary to the POEO Act, nevertheless dealt with the substance of that definition. These reasons support the finding she made at [92] and [93] that the carrying out of the earthworks and remediation approach could lead to pollution of the land, contrary to s 142A of the POEO Act.
As to ground 15, the Council submitted that Muscat misunderstands the Commissioner's reasons. The Commissioner did not determine that the proposed remediation works were required to satisfy the objectives of the POEO Act. The Commissioner said she referred to the objects of the POEO Act in s 3 "[t]o understand the intent of the provisions of the POEO Act": at [88]. The Commissioner assessed the proposed remediation works against the objects, finding that the works did "not satisfy" the objects, specifically those in (d)(ii), (iia) and (iii) (at [89]) and were "contrary to" the objects (at [93]). This was finding of fact that cannot be impugned on the appeal.
I find that the Commissioner did err in her consideration of the provisions of the POEO Act by asking herself the wrong questions. The Commissioner was entitled, at least by s 39(4) of the Court Act, to have regard to the POEO Act in making a decision in respect of the appeal, as to whether to grant or refuse consent to Muscat's development application. The issue was how the Commissioner could have regard to the POEO Act.
The Commissioner framed her consideration of the POEO Act in terms of jurisdiction to determine the development application under the EPA Act. That might have been a response to the Council's contentions at the hearing raising the issue that the carrying out of the proposed remediation works would result in breaches of s 142A and s 144AAB of the POEO Act. But whatever was the prompt, the Commissioner understood that the lawfulness of the proposed remediation works under the POEO Act was "a jurisdictional consideration of the Court" (at [37]). The Commissioner entitled a part of her reasons for judgment as "jurisdictional requirements". The first jurisdictional requirements she referred to in this part were ss 142A and 144AAB: [54]. That paragraph commenced: "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" and ss 142A and 144AAB were then quoted. The Commissioner analysed the lawfulness of the proposed remediation works with respect to these provisions in the part of her judgment entitled "Is the proposed onsite 'reworking' of asbestos waste as part of the remediation strategy lawful?": at [54].
In this part, the Commissioner first put aside any consideration of the lawfulness of the original placement of the unauthorised fill on the land. She accepted that that "is not the jurisdictional test in consideration of the amended application currently before the Court": at [78]. Rather, the jurisdictional test "in consideration of" the development application was whether the proposed onsite reworking of asbestos waste was lawful under s 142A and s 144AAB of the POEO Act.
The Commissioner set about answering that question in [79]-[94]. The Commissioner concluded that the reworking of the asbestos waste would be "contrary to the provisions of the POEO Act, specifically ss 142 [sic, 142A] and 144AAB" (at [92]) and "contrary to the objects and provisions of the POEO Act" (at [93]). That finding was made to answer the "jurisdiction consideration" or "jurisdictional requirements" of the lawfulness of the onsite reworking of the asbestos waste.
In so inquiring and finding, the Commissioner asked herself the wrong question. The power in s 4.16 of the EPA Act to determine a development application seeking consent for remediation works is not conditioned on the lawfulness of the remediation works under the POEO Act. The jurisdictional requirements for the determination of such a development application are only to be found in the EPA Act and regulations and environmental planning instruments made under that Act. The POEO Act does not fix any jurisdictional requirement for the determination of such a development application under the EPA Act.
That is plain as a matter of statutory construction of the provisions of the EPA Act and regulations dealing with the making and determination of development applications. But it is corroborated by s 7(1) of the POEO Act which expressly provides that: "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."
It is also corroborated by the arrangements under the statutory schemes of planning and environmental laws. Each statutory scheme establishes a separate process for making and determining applications for some form of approval to undertake activity regulated by the scheme. The EPA Act establishes a process for making and determining development applications seeking consent to carry out development. The POEO Act establishes a process for making and determining applications for environment protection licences authorising scheduled activities. Each statutory scheme operates independently from the other statutory schemes. That was recognised in McDougall v Warringah Shire Council, where Cripps JA at 276-277 observed that the circumstance that development of a particular type would be in breach of other laws does not deny to the consent authority the power under the EPA Act to grant consent to that development.
The Commissioner therefore erred on a question of law in framing as a jurisdictional requirement for the determination of the development application for the proposed remediation works, the lawfulness of those remediation works under s 142A and s 144AAB of the POEO Act and in thereafter undertaking the inquiry and making the findings that the remediation works would be in breach of s 142A and s 144AAB of the POEO Act. I find that grounds 11 to 15 are established in this regard, insofar as they are each based on this error of asking the wrong question regarding the lawfulness under the POEO Act of the remediation works.
I do not otherwise find that the Commissioner erred in the way contended in ground 11 by not following the earlier decision of Clay AC in Muscat Development Pty Ltd v Wollondilly Shine Council, for the reasons advanced by the Council.
I do not find it necessary to determine whether the Commissioner misconstrued the word "re-used" in s 144AAB of the POEO Act, as contended in ground 13, as the relevant error was the antecedent error of the Commissioner asking the question of whether the remediation works would breach s 144AAB, not how she answered that question.
I find that the Commissioner also erred as contended in ground 15, by asking the wrong question of whether the proposed remediation works satisfied the objects in s 3 of the POEO Act. That inquiry was not relevant to the exercise of the power in s 4.16 of the EPA Act to determine the development application, for the reasons I have given earlier.
The Commissioner's errors on questions of law, in the ways I have found established in grounds 11 to 15, are material, for the reasons I explain at the end of the judgment.
Muscat submitted, however, that the Commissioner did not address the other two matters of unnecessary truck movements and filling of a landfill, or any other environmental impacts of removing the unauthorised fill from the land in accordance with the court orders.
Muscat submitted that in failing to consider the environmental impacts of the removal of the unauthorised fill the Commissioner failed to refer to evidence and make findings on a principal contested issue joined between the parties: Segal v Waverley Council at [44], [45], [93], [99].
Muscat further submitted, as a sub-issue under ground 18, that the Commissioner misconstrued Muscat's argument on this consideration of the public interest as involving questioning the reasonableness of the orders made in the Class 4 proceedings: see at [99] of the judgment.
Ground 19 was the converse of ground 18 - the error was the Commissioner's consideration of an irrelevant matter. This error is said to appear in [94] of the Commissioner's judgment:
"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."
Muscat contended that the Commissioner erred in three ways. First, the potential risk for human health was not a contention raised by the Council. Second, the finding was made erroneously, for the reasons raised in grounds 1 to 10. Third, s 7(1) of the POEO Act required the Commissioner to regard the Council's allegations of breach of the POEO Act as not affecting her assessment of the development application under s 4.15 of the EPA Act.
The Council contested that the environmental impacts of Muscat having to remove the unauthorised fill in accordance with the Court's order were a relevant matter that the Commissioner was bound to consider under s 4.15(1)(e) of the EPA Act. The matters the Commissioner was bound to consider under s 4.15(1) were restricted to "matters as are of relevance to the development the subject of the development application". The development the subject of Muscat's development application involved the onsite remediation of the unauthorised fill, not the removal and disposal offsite of the unauthorised fill. Hence, the environmental impacts of the removal and disposal offsite of the unauthorised fill in accordance with the Court's orders were not matters the Commissioner was bound to consider in determining the development application for the onsite remediation of the unauthorised fill. The environmental impacts of the removal and disposal of the unauthorised fill were not matters falling within the public interest under s 4.15(1)(e). Accordingly, the Commissioner could not, and did not, err in not considering those environmental impacts under s 4.15(1)(e).
The Council submitted the Commissioner did not err, as contended in ground 19, by finding that, by reason of the potential risk to human health, the proposed remediation works would not be in the public interest and contrary to s 4.15(1)(e) of the EPA Act. The Commissioner was bound to consider the public interest in determining Muscat's development application and the appeal, by reason of s 4.15(1)(e) of the EPA Act and s 39(4) of the Court Act. The fact that the Council's Amended Statement of Facts and Contentions did not specifically raise as a contention the public interest and the potential risk to human health as an aspect of the public interest did not take away from the obligation on the Commissioner to consider the public interest and any relevant aspect of it.
Moreover, the potential risk to human health was squarely raised by the Council as a central concern under many of the Council's contentions relating to the proposed remediations works, especially concerning s 4.10(1) of the SEPP Resilience which requires consideration of the risk of harm to human health from carrying out the proposed remediation works.
I reject grounds 18 and 19, for the reasons advanced by the Council. The Commissioner was not obliged to consider the environmental impacts of a development not the subject of a development application before the Court. The removal and disposal offsite of the unauthorised fill, which would be required by the Court's order in the Class 4 proceedings, was not a development for which Muscat sought consent in the development application before the Commissioner. The development for which Muscat's development application sought consent was for the onsite remediation of the unauthorised fill. The Commissioner was obliged, under s 4.15(1) of the EPA Act, to consider the environmental impacts of the development the subject of the development application - the onsite remediation of the unauthorised fill. The Commissioner was not obliged to consider the environmental impacts of a development not the subject of the development application - the removal and disposal offsite of the unauthorised fill. Ground 18 is misguided.
Ground 19 is also misguided, for a different reason. The Commissioner was obliged, by s 4.15(1)(e) of the EPA Act and s 39(4) of the Court Act, to consider the public interest relevant to the development the subject of the development application. That development included the onsite remediation of asbestos waste in the unauthorised fill. The potential risks of undertaking the onsite remediation works included the risk of harm to human health of residents living in the dwellings on the land and workers working in the poultry farm and depot as well as to the workers undertaking the remediation works themselves. The risk of harm to human health was expressly required to be considered by s 4.10(1) of the SEPP Resilience, but it was impliedly required by various other mandatory considerations such as s 4.6(1) and s 4.14(1) of the SEPP Resilience, cl 7.5(3) of the LEP and s 4.15(1)(a), (b) and (e) of the EPA Act. The Council raised the risk of harm to human health as part of its contentions, and it was a central concern of the contamination experts' evidence. In these circumstances, the Commissioner was obliged to consider the risk of harm to human health, whether as part of the public interest or otherwise. The Commissioner did not err in considering that risk.
Muscat contended the Commissioner erred in her application of the definition of "fill". Muscat noted that the definition requires the "depositing" of fill material "obtained from the same or another site". Here, the fill material that would be the subject of the proposed earthworks had already been deposited on the land. That deposition of fill material was unlawful, hence the Class 4 proceedings for orders to remove the fill. However, that prior depositing on the land of fill obtained from another site was not the subject of the development application to carry out earthworks. Rather, the development application sought development consent for earthworks involving moving the fill already deposited on the land to other locations on the land. This involved "depositing" fill "obtained from the same … site".
Muscat submitted that once this was understood, the error in the Commissioner's approach becomes plain. The Commissioner's concern that "the source of the unauthorised fill remains unknown" (at [118]) was founded on the Commissioner's belief that the source of the unauthorised fill was from "another site" and not "the same site". In fact, the source of the fill to be moved around the land was known, being the existing mounds of unauthorised fill and the borrow pits on the land. This was recognised elsewhere by the Commissioner: at [67]-[69]. Muscat submitted that the Commissioner thereby erred in her consideration of cl 7.5(3)(e) of the LEP.
Muscat submitted the Commissioner also erred in her consideration of cl 7.5(3)(c) of the LEP. Muscat asserted that the quality of the unauthorised fill on the land had been fully assessed and hence the finding that the original source of the fill was unknown could not be a valid reason for refusal of the development application for earthworks on the land.
Muscat finally submitted that the Commissioner failed to provide reasons as to why the proposed earthworks "may have a detrimental effect on the future use or redevelopment of the site" (at [118]). Muscat asserted that consideration of that detrimental effect was not required by cl 7.5(3)(c) or (e) of the LEP.
The Council submitted at the outset that ground 20 raises an alleged error of fact, not an error of law. The ground contends that the Commissioner incorrectly applied the definition of "fill" in her consideration of cl 7.5(3)(c) and (e) of the LEP, not that she misinterpreted either the definition or these provisions.
In any event, however, the Council contested that the Commissioner incorrectly applied the definition of "fill". The Commissioner well understood that the proposed earthworks involved the reworking the unauthorised fill mounds on the land and the capping/covering of new mounds with fill material obtained from borrow pits on the land: see, for example, at [11], [67]-[69].
The Commissioner also correctly recognised that the unauthorised fill on the land was obtained from an unknown source. That was a fundamental cause of the uncertainty regarding the efficacy and adverse effects of the proposed earthworks and remediation works. The Commissioner's statement in [118] that the original source of the unauthorised fill on the land was unknown was correct and common ground between the parties: see at [28], [61] and [91]. The fact that the original source of the unauthorised fill was unknown affected the consideration under cl 7.5(3)(c) and (e) of the quality and source of the unauthorised fill proposed to be moved around the land. The Commissioner was well aware that the unauthorised fill material to be moved was already located on the land, but because the original source and quality of that fill material was unknown, there was uncertainty about the nature of the fill material to be moved.
The Council submitted that the Commissioner was also well aware that the material to be used to cap and cover the new mounds created by moving the unauthorised fill would be obtained from borrow pits on the land: see for example at [68]-[69]. Although Muscat had described that material as "clean fill", the Commissioner noted that the area in which the borrow pits were proposed "may contain asbestos waste": at [69]. The Commissioner found at [113]:
"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."
The Council submitted that in these circumstances the Commissioner has not been shown to have misapplied the definition of "fill" in her consideration of cl 7.5(3)(c) or (e) of the LEP.
The Council submitted that Muscat has misunderstood the Commissioner's reference to the potential contamination risk resulting from the unauthorised fill, although being moved around the land, remaining on the land having a detrimental effect on the future use or redevelopment of the site. That effect was a relevant consideration under cl 7.5(3)(b) of the LEP. The Commissioner was required, before granting development consent for the proposed earthworks, to consider "the effect of the proposed development on the likely future use or development of the land": cl 7.5(3)(b). The Commissioner referred to this consideration in [118], finding that the development application did not sufficiently assess the potential for an ongoing contamination risk to have a detrimental effect "on the future use or redevelopment on the site". Although the Commissioner referenced "cl 7.5(3)(c)", the language was taken from cl 7.5(3)(b).
The Council submitted that elsewhere in her reasons leading up to this conclusion in [118], the Commissioner explained why she found there would be "an ongoing (asbestos related) contamination risk resulting from earthworks associated with the unauthorised fill remaining on the site" and her concern about the risk of harm to human health of residents and workers on the land from the proposed remediation works. Read together, these provide adequate reasons for the Commissioner's conclusion in [118].
Ground 20 is not established, for the reasons advanced by the Council. Ground 20 does not raise an error on a question of law. The claimed errors all concern the Commissioner's alleged misapplication of the definition of "fill" in her consideration of cl 7.5(3)(c) and (e) of the LEP. But any error in the application of the definition or these provisions is an error of fact, not law. Only the misinterpretation of the definition or the provisions would constitute an error of law for the Court to correct on an appeal limited to errors on questions of law. The wrong application of the definition in the consideration of the provisions in the circumstances of the proposed earthworks is not an error of law such as to permit the Court to interfere with the Commissioner's exercise of planning judgment: see analogously R (on the application of Thurston Parish Council) v Mid Suffolk District Council v Bloor Homes Limited [2023] JPL 494; [2022] EWCA Civ 1417 at [43], [54]-[56], [63].
In any event, however, Muscat has not established that the Commissioner did misapply the definition of "fill" in her consideration of cl 7.5(3)(c) and (e) of the LEP. The Commissioner was well aware of the sources of the fill to be used in the proposed earthworks. The first source was certain existing mounds of unauthorised fill on the land, which were proposed to be moved to form new mounds at other locations on the land. The second source was the borrow pits on the land from which material was to be obtained to cap and cover the new mounds. The Commissioner identified these sources of fill, including in [11], [12] and the site overview plan showing these sources, [13], [27]-[29], [61], [65], [67]-[69], [79], [81], [85], [89], [91], [95], [97], [109], [113], [114] and [118]. Muscat's submission that the Commissioner misunderstood the sources of fill to be used for the earthworks proposed in the development application is untenable in light of the manifold references in the Commissioner's judgment to the sources of fill all being on the land.
There was also no want of logic in the Commissioner's comment in [118] that "[t]he source of the unauthorised fill remains unknown". The Commissioner was clearly referring there to the original source of the unauthorised fill. It was common ground between the parties that the unauthorised fill on the land had been obtained from unknown source(s) and was of unknown quality. The Commissioner recorded that common understanding at [28], [61] and [91]. The relevance of this fact was that it led to there being uncertainty as to the quality of that unauthorised fill on the land, which was to be moved and shaped into new mounds as part of the proposed earthworks. Uncertainty as to the quality of the fill, including the extent and degree of contamination by asbestos waste, clearly had consequences for the assessment of the risk of harm to human health or some other aspect of the environment from carrying out the proposed earthworks.
The Commissioner's reasons, read as a whole, do not reveal that the Commissioner misconstrued the development application or misapplied the definition of "fill" in her consideration of cl 7.5(3)(c) and (e) of the LEP.
Muscat also has not established that the Commissioner erred in considering the detrimental effect an ongoing (asbestos-related) contamination risk may have on the future use or redevelopment of the site. That was a relevant matter for the Commissioner to consider under cl 7.5(3)(b) of the LEP. The Commissioner's consideration of that matter did not miscarry for the reasons advanced by the Council.
Grounds 21 to 27 concern the Commissioner's consideration, under cl 2.3 of the LEP, of the objectives of the applicable Zone RU2 Rural Landscape. These objectives, quoted by the Commissioner at [120], are:
"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."
The Commissioner identified that the second objective, "to maintain the rural landscape character of the land", was in issue. The Commissioner found at [125] - [127] that the proposed development would be contrary to this objective:
"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".
Muscat contended that the Commissioner erred in so finding in seven ways:
1. in confining her consideration to the second objective and in failing to consider the other objectives (ground 21);
2. in failing to consider that there were other permissible uses permitted in the RU2 zone which were relevant to assessing the rural character of the land (ground 22);
3. by applying the wrong test that s 4.15(1)(a) of the EPA Act was "not satisfied" because of a finding that the development was contrary to the objectives of the RU2 zone (at [127]) or that cl 2.3 of the LEP required her to be "satisfied" that the proposed new mounds are consistent with the rural character of the land as a "jurisdictional consideration" (at [41]) (ground 23);
4. in considering "the rural landscape of the surrounding land" instead of "the rural landscape character of the land" as required by the second objective (ground 24);
5. in her assessment of the second objective by considering "the proposed mounds" in isolation in the absence of the proposed landscaping, farm buildings, hardstand areas and depot use (ground 25);
6. in failing to consider Muscat's photomontages of the proposed mounds, the fact that the proposed mounds are consistent with Wollondilly Development Control Plan 2016 (WDCP) and the fact that any adverse visual impact of the proposed mounds would be experienced by passing motorists for only a few seconds (ground 26); and
7. in failing to provide adequate reasons for finding that the proposed development was "likely to cause an adverse visual amenity" (at [126]) (ground 27).
As to the first error, alleged in ground 21, Muscat submitted that cl 2.3 of the LEP required the Commissioner to have regard to "the objectives for development" in the RU2 zone. This required consideration of each of the objectives, not just the second objective. Muscat submitted the third objective was also relevant, "to provide for a range of compatible land uses, including extensive agriculture". Muscat submitted that the Commissioner's reasons reveal that she considered only the second objective and not the other objectives, including the third objective.
Muscat submitted this error was material as the objectives of the RU2 zone are not mutually consistent, as there is an inherent inconsistency in maintaining the rural landscape character of the subject land and providing for a range of compatible land uses. The potentiality for the objectives of a zone to be inconsistent was recognised by the Court of Appeal in Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 at [42].
The Council submitted that ground 21 is factually wrong because the Commissioner did not confine her consideration only to the second objective of the RU2 zone. The Commissioner set out in full the objectives of the zone in [120]. She had found earlier at [41] that:
"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."
On a fair reading, this paragraph establishes that the Commissioner did have regard, under cl 2.3 of the LEP, to the objectives of the RU2 zone when considering the development application; found that the proposed development other than the proposed new mounds would be consistent with the objectives of the RU2 zone; and found that the proposed new mounds would be consistent with the objectives other than "the rural landscape objective of the zone" (which is the second objective).
The Council submitted that the Commissioner's focus on the consistency of the proposed new mounds with the second objective of the RU2 zone was consistent with the way in which the parties had identified the principal contested issue and ran their cases on this issue. The Commissioner recognised at [120] that: "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". The Council noted that the joint report of the parties' town planners also confined itself to the second objective of the RU2 zone. Muscat itself limited its case before the Commissioner on this issue of consistency with the zone objectives to the "alleged inconsistency with maintaining the rural landscape character" (T 11/11/22 174.38, 175.1). In Muscat's Outline of Closing Submissions, Muscat's counsel stated that:
"The matters in dispute between the town planning experts are of very limited compass, ie as to whether the proposed earth mounds and associated landscaping are compatible with the character of the area. That issue arises in the context of a single zone objective ("[t]o maintain the rural landscape character of the land")…" (at [88] and [89]).
In circumstances where the parties having confined the issue of consistency with the zone objectives to this contention of consistency with the second objective, the Council submitted the Commissioner was justified in focusing her consideration and determination of the issue on this contention.
The Council submitted that insofar as there could be said to be any inconsistency between the various objectives of the RU2 zone, the Commissioner was not required to resolve it. That was not put in issue by the parties, or by the town planning evidence. The Commissioner was not obliged to resolve an inconsistency that Muscat failed to identify.
Ground 21 has not been established, for the reasons given by the Council. The Commissioner did have regard to the objectives for development in the RU2 zone when determining the development application, as she was required to do under cl 2.3(2) of the LEP. The Commissioner quoted the objectives in full (at [120]) and recorded her finding that the development proposed in the development application was consistent with the objectives, with the exception that the proposed new mounds were not consistent with the second objective to maintain the rural landscape character of the land (at [41]). The consistency of the proposed new mounds with the second objective was the only issue in contention (at [41], [53], [120]). The parties restricted the issue of the consistency of the development with the zone objectives to this contention (at [120]). The parties' town planners restricted their evidence to this contention. The Commissioner was justified in focusing her consideration of the issue to this contention. The Commissioner gave reasons for her evaluation that the proposed new mounds would not be consistent with the second objective of the RU2 zone. No error of law has been established.
As to the second error in ground 22, Muscat submitted that the Commissioner failed to properly engage with, for the purpose of the second objective of the RU2 zone, what actually constituted the "rural landscape character" of the land. Muscat submitted that the meaning of the phrase "rural landscape character" of the land is to be derived from the text and context of the provisions in which the phrase is used and other provisions of the LEP that frame the rural landscape character of the area. These provisions include the zoning of the land (cl 2.2 and the Land Zoning Map), the zone objectives (cl 2.3), the Land Use Table (at the end of pt 2 of the LEP) and the development standards in pt 4 of the LEP. Together, these provisions of the LEP shape the rural landscape character: see analogously Woollahra Municipal Council v SJD DB2 Pty Limited (2021) 250 LGERA 340; [2020] NSWLEC 115 at [52].
Muscat noted that there are 52 nominate permissible uses in the Land Use Table for the RU2 zone. Land uses identified as being permitted with consent are assumed to be consistent with the objectives of the zone, subject to the specific design of the development: Jeffrey v Canterbury Bankstown Council (2021) 250 LGERA 340; [2021] NSWLEC 73 at [64].
Muscat submitted that the Commissioner did not have regard to these other provisions of the LEP and the range of uses permitted with consent in the RU2 zone and thereby failed to engage with what is the "rural landscape character".
The Council submitted that ground 22 seeks impermissibly to review the Commissioner's evaluative findings of what is the rural landscape character of the land and whether the proposed new mounds would be consistent with that rural landscape character. Those are findings of fact. No error of law arises from the Commissioner making findings of fact with which Muscat disagrees or not making other findings which might have been made had other considerations been taken into account.
The Council submitted that the Commissioner was not required to address whether and how other uses permitted with consent in the RU2 zone might impact on the rural landscape character of the land in the future. The Commissioner was aware of the zoning of the land as RU2 Rural Landscape, the objectives of that zone, and the Land Use Table identifying the uses which are permitted without consent and with consent and which are prohibited (see, for example, [41] of the judgment).
The Council submitted the Commissioner had the benefit of visiting the site and surrounding area to observe the current rural landscape character and had the evidence of the town planners on the current and future rural landscape character of the area. These considerations informed the Commissioner's assessment of not only "the broader context of the rural landscape of the surrounding land" ([125]) but also of the rural landscape character of the land in that context. The Commissioner made the evaluative findings that the proposed mounds on the land would not be "characteristic in the broader context of the rural landscape of the surrounding site" ([125]); would be less discreet and more dominant in the rural landscape than the existing approved mounds ([125]); would "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" ([126]); would "create a sense of enclosure not observed elsewhere in the landscape and are not consistent with the rural landscape context" (at [126]); and, "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 [sic]" (at [126]). These are findings of fact open to be made by the Commissioner on the evidence and her observations of the site and surrounding area.
Ground 22 is not established, for the reasons given by the Council. The Commissioner's findings are factual and open on the evidence and her observations of the site and surrounds. No error on a question of law is raised.
Ground 23 contended that the Commissioner misunderstood cl 2.3 of the LEP to raise a "jurisdictional consideration" that she be "satisfied" that the proposed development was not contrary to the objectives of the RU2 zone. Muscat submitted this was evidenced by the way the Commissioner expressed herself in [41] and [127].
The Council contested that the Commissioner misdirected herself in this way. Her statement in [41] that "the proposed new mounds… with respect to the rural landscape character of the zone, remains in dispute and is a jurisdictional consideration for the Court" was simply a reference to cl 2.3 of the LEP which requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The Commissioner was aware that the operation and effect of cl 2.3 was to require relevant matters to be considered in, not to establish a jurisdictional precondition to, the determination of the development application. This is what the Commissioner did - she had regard to the matters as required by cl 2.3 of the LEP.
The Commissioner's consideration of cl 2.3 of the LEP was required by s 4.15(1)(a) of the EPA Act. The Commissioner was required under s 4.15(1)(a) in determining the development application to take into consideration the provisions of any environmental planning instrument. The LEP is an environmental planning instrument. The Commissioner, in stating in the second sentence of [127], that "I assess that s 4.15(1)(a) of the EPA Act is not satisfied", was merely summarising what she had explained in the first sentence that, in taking into consideration cl 2.3 of the LEP, as she was required to do by s 4.15(1)(a), she was "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".
Ground 23 is not established, for the reasons advanced by the Council. Muscat has misconstrued what the Commissioner said in [41] and [127]. She was not elevating the requirement in cl 2.3 of the LEP to consider relevant matters to be a jurisdictional precondition to the exercise of the power to grant consent to the development application. The Commissioner understood cl 2.3 required her to consider the objectives of the RU2 zone in determining the development application and that is what she did. No error of law is established.
Ground 24 contended that the Commissioner erred by having regard to "the landscape of the surrounding land" (at [125]) instead of "the rural landscape character of the land", being the phrase used in the second objective of the RU2 zone. In so doing, Muscat submitted, the Commissioner misconstrued the second objective and took into account an irrelevant consideration under cl 2.3(2) of the LEP.
The Council submitted Muscat has misunderstood what the Commissioner was saying. The Commissioner was well aware of the terms in which the second objective of the RU2 zone is expressed. She not only quoted the objectives in [120] but also italicised for emphasis the terms in which the second objective is expressed. The Commissioner's evaluation of the consistency of the proposed mounds with the second objective in [125]-[127] distinguished between "the site", by which the Commissioner meant "the land" referred to in the second objective, and "the surrounding land", by which the Commissioner was referring to other land "around the site". This was done to place the impact of the proposed mounds on the rural landscape character of the land in context. The Commissioner described this context variously as "the broader context of the rural landscape of the surrounding land" ([125]); the streetscape and landscape", "landscape setting" and "rural landscape context" ([126]); and "rural landscape character (setting)" ([127]).
The Council submitted that the Commissioner's evaluation of the rural landscape character of the land by reference to the context was consistent with the way in which Muscat put its case at the hearing before the Commissioner, which was to focus on the rural landscape character of the area. Muscat's town planner accepted that the second objective referred to the need to maintain the rural character of the "locality". Muscat's senior counsel's cross examination of the Council's town planner referred to the "rural character of the locality". Muscat's written submissions asserted that "the Court would conclude that, if approved, the proposed development will not have any unacceptable impact for the rural character of the area". The Council submitted that Muscat did not put to the Commissioner that the objective of maintaining the rural landscape character of the land was confined to the site and that no regard could be had to the surrounding land.
I reject ground 24, for the reasons given by the Council. The Commissioner did not misconstrue or misapply the second objective of the RU2 zone. The Commissioner's evaluation that the proposed new mounds would not maintain the rural landscape character (setting) of the land contrary to the second objective of the RU2 zone, was factual and does not reveal error on a question of law.
Ground 25 contended that the Commissioner's assessment that the proposed mounds would not maintain the rural landscape character of the land did not have regard to the proposed landscaping, farm buildings, hardstand areas and depot use of the land.
The Council contested that contention. The Commissioner was aware that the proposed mounds were to be landscaped. That is evident from her summary of Muscat's planner's evidence in [124], who opined that "the proposed mounds do not cause adverse visual amenity, particularly when considered together with the proposed extent of landscaping around and over the mounds". The Commissioner was aware of the existing and proposed buildings. That was the foundation for one of her concerns that the proposed mounds would completely obscure the sheds on the site (at [126]), a concern accepted by Muscat's town planner (at [124]).
In any event, the Council submitted the Commissioner's evaluation of the impact of the proposed mounds on the rural landscape character of the land was one of fact. Even if it be wrong, no error of law arises.
I reject ground 25, for the reasons given the Council. The Commissioner did not consider the proposed mounds in isolation, but had regard to the landscaping proposed and the sheds and structures on the land, both existing and proposed. In any event, the Commissioner's finding was one of fact and even if wrong, no error of law arises.
Ground 26 challenged the Commissioner's factual finding that the proposed mounds will likely cause adverse visual impacts for failing to refer to certain evidence (in particular photomontages tendered by Muscat) or draw inferences of fact from that evidence concerning the view from passing motorists. Those are grounds 26(a) and (c). Ground 26(b) was different, challenging the Commissioner's statement in [46] that "the Court is satisfied there are no inconsistences with the WCDP". Muscat noted that s 3.3.5 of WDPC has as an objective of the landscaping controls "to minimise the visual impacts of the development on the surrounding landscaping". Further, the landscaping controls specify what, how and where vegetation is to be established. Muscat submitted that its proposed landscape plan achieved these requirements. Muscat submitted that the Commissioner failed to apply her finding in [46] in the context of her consideration of the visual impact of the proposed mounds.
The Council submitted that ground 26 does not assert any error of law. Each of the three ways Muscat contended the Commissioner erred involve factual evaluation. Even if the Commissioner were to have made findings of fact without considering the photomontages, drawing the inferences of fact urged about the views from passing motorists, or applying the objective and controls of the WDCP as suggested, that would involve error of fact, not of law.
The Council submitted that, in any event, the Commissioner did consider each of these matters. During the hearing the Commissioner was shown, and heard evidence about, the photomontages which replicated the viewpoints from which a passing motorist or other viewer, might observe the site. The Commissioner visited the site and observed the site from the viewpoints in the photomontages. The Commissioner had regard to the WDCP. She recorded that the WDCP was "relevant in consideration of the amended application" and found that "the Court is satisfied there are no inconsistencies with the WDCP" (at [46]). That shows the Commissioner considered the relevant provisions of the WDCP, which included s 3.3.5 on landscaping.
The Council submitted that the landscaping controls referred to by Muscat are a "design control" regulating the vegetation to be established and maintained and say nothing about the proposed mounds impact on the rural landscape character of the land.
I reject ground 26, for the reasons given by the Council. No error of law has been established. The Commissioner has not been shown to have failed to have had regard to the matters alleged in ground 26(a), (b) and (c). The Commissioner's findings on the likely adverse visual impact of the proposed mounds were open on the evidence, including that to which she expressly referred in her reasons. Provided there was some evidence to support the Commissioner's findings, no error of law arises.
Ground 27 contended that the Commissioner failed to provide adequate reasons for finding that the proposed mounds will likely cause "an adverse visual amenity" (at [126]). The Council countered that the Commissioner did provide adequate reasons.
Ground 27 is without merit. The language used by the Commissioner, "adverse visual amenity", might be inelegant but its meaning is plain. It refers to the visual impacts of the proposed mounds and their effect on the amenity of the land and surrounding land. The Commissioner's reasons leading up to the conclusion in [127] are adequate to explain why she made that finding. Ground 27 is rejected.
This inter-relatedness of the Commissioner's consideration and findings is illustrated expressly:
1. where the Commissioner's assessment of non-compliance with the POEO Act shapes her finding that the development application is not in the public interest and contrary to s 4.15(1)(e) of the EPA Act: at [94]; and
2. where the Commissioner's assessment of non-compliance with ss 4.6(1) and 4.10(1) of the SEPP Resilience shapes her findings that:
1. the provisions of s 4.15(1)(a)(i) and (c) of the EPA Act are not satisfied: at [117], [119]; and
2. the development will be contrary to cl 7.5(3)(c) and (e) of the LEP: at [118].
In these circumstances, the Commissioner's errors on questions of law in her consideration of the provisions of the SEPP Resilience and the POEO Act infect the Commissioner's consideration of s 4.15(1)(e) of the EPA Act and cl 2.3 and cl 7.5(3) of the LEP. The errors in relation to the SEPP Resilience and the POEO Act are therefore material and vitiate the Commissioner's decision as a whole. The Commissioner's decision should be set aside.
In these circumstances, a fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the same issues on the rehearing of the matter: see analogously Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [7]. Saying that there might be a reasonable apprehension that the Commissioner might not bring an impartial mind to the resolution of the issues, requires no prediction about how the Commissioner would in fact approach the matter if it were to be remitted to the Commissioner. The question is one of possibility (real and not remote), not probability: Ebner v Official Trustee in Bankruptcy at [7].
In relation to costs, the parties accepted that the usual order for costs on a s 56A appeal should apply, namely that costs follow the event.