Muscat Developments Pty Ltd v Wollondilly Shire Council

; [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)

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

JUDGMENT

1. 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.
2. 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.
3. 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.

Overview of the development application

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

The SEPP Resilience grounds

1. 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.

The s 4.6 (1) grounds

1. 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."
2. 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.
3. 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."
4. 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."

The s 4.14(1) grounds

1. 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."
2. 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).
3. 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.
4. 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.
5. 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.

The risk to human health and uncertainty grounds

1. 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.
2. 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).

The s 4.10(1) grounds

1. 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."
2. 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].
3. 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).
4. 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).
5. 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."

The POEO Act grounds

1. 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.
2. 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].
3. 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.
4. 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].

The EPA Act and LEP grounds

1. The third set of grounds, grounds 18 to 27, concern the EPA Act and LEP, an environmental planning instrument made under the EPA Act.

The s 4.15(1)(e) EPA Act grounds

1. 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.
2. 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."
3. 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.
4. 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.
5. 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."

The LEP grounds

1. 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.
2. 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."
3. 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."
4. 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)."

Materiality of established errors on questions of law

1. 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).
2. 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).
3. 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.
4. 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.
5. 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.

Form of remitter order

1. 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].
2. 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.
3. The Council submitted that an exclusionary remitter was not required in the circumstances.
4. 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.

Orders

1. 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.

Amendments 10 November 2023 - Removed paragraph numbering from heading (in previous [6]). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2023