Muscat Developments Pty Ltd v Wollondilly Shire Council

Cases Cited: Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343
GBP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77
Muscat Developments Pty Ltd v Wollondilly Shire Council [2022] NSWLEC 1682
Muscat Developments Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 121
Pitty v Bega Valley Shire Council [2012] NSWLEC 24
Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSW LEC 315

Texts Cited: Planning for Bushfire Protection

Category: Principal judgment

Parties: Muscat Developments Pty Ltd (Applicant)
Wollondilly Shire Council (Respondent)

Representation: Counsel:
J Lazarus SC with J Smith (Applicant)
R White (Respondent)
Solicitors:
Storey & Gough Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2022/39705

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent’s deemed refusal of the applicant’s development application DA/2021/984/1 (Development Application) seeking consent for the change of use of three existing sheds, construction of a new shed, earthworks, landscaping and tree removal on land legally identified as Lot 5 in Deposited Plan 260390, known as 440 Cawdor Road, Cawdor (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. This matter has a long and convoluted history.

4. The Subject Land is approximately 24.27ha and zoned RU2 Rural Landscape under the Wollondilly Local Environmental Plan 2011 (WLEP). It is owned by the applicant.

5. The Subject Land has a frontage of approximately 546m to Westbrook Road and 404m to Cawdor Road. The Subject Land presently contains six poultry sheds, four rural sheds, water tanks, circulation areas and two dwellings.

6. The Subject Land has the benefit of a number of operative development consents. As set out in the Applicant’s Written Submissions (AWS) at [28], these development consents can be summarised as follows:

7. Development Consent No. 10.2012.125.004 (Modification of DA 10.2012.125.001 for the construction and use of an intensive Livestock Agriculture – Poultry (Broiler) Farm granted by the Land and Environment Court on 6 June 2017 (Broiler Farm Consent). This consent also authorised the construction of an earth mound in the north-east of the Site as well as the construction of the South East (Central) mound to a maximum height of 5m.

8. Development No 10.2017.174.1, granted by the Land and Environment Court on 18 October 2018 for the construction and use of an intensive livestock industry (poultry) facility, including 8 poultry sheds, 2 machinery sheds, composting and litter sheds, office workers amenities, bulk earthworks and associated infrastructure (Poultry Farm Consent). This consent authorised the construction of an earth mound in the northwest of the Land (North West Mound) to a maximum height of not more than 5.75m above ground level and a width of approximately 20m… this consent also approved a detailed landscape plan (PS02-G200) that includes provision for, inter alia, extensive perimeter landscaping in order to screen the proposed development from being able to be seen… and the planning of tall trees on top of the mounds.

9. The mounds approved by the Broiler Farm Consent and Poultry Farm Consent (Approved Mounds) are indicated in red on the “Mounds Overview Plan” (Ex O, p 2774), extracted below:

10. It is agreed between the parties that between approximately September 2020 and 26 March 2021, the applicant carried out earthworks on the Subject Land which included the importation, placement and spreading of material and the construction of mounds (Ex 17, p 575).

11. It is further agreed that (see Ex 17, pp 575-577):

12. this material was placed without consent and is not authorised by the Poultry Farm Consent or any other consent applying to the Subject Land (hereafter referred to in this judgment as Unauthorised Fill);

13. the amount of Unauthorised Fill placed on the Subject Land is approximately 185,874m3 or 334,573 tonnes and contains broken fragments of asphalt bricks, broken concrete, plastic, crushed glass conduit, plastic fragments, pieces of steel reinforcement and asbestos;

14. the Unauthorised Fill was generally placed in two mounds, being:

(a) the North-West mound, being approximately 15m high at its highest point (108.2m); (b) the South-East mound, being approximately 10m high at its highest point (102.8m); and

4. the applicant did not keep any documentary records of the source or origin of the Unauthorised Fill.

5. The Unauthorised Fill is depicted in green on the Mounds Overview Plan extracted above at [7].

6. On 25 March 2021, the respondent (in these proceedings) commenced Class 4 civil enforcement proceedings against the applicant in respect of the Unauthorised Fill (Class 4 Proceedings).

7. In the intervening period on 26 October 2021, the Development Application the subject of these proceedings was lodged.

8. The parties ultimately reached agreement in the Class 4 Proceedings and consent orders were made by the Court on 18 August 2022 to dispose of the proceedings (Class 4 Orders).

9. The Class 4 Orders relevantly noted that the respondent in the Class 4 Proceedings (being the applicant in these proceedings) had lodged the Development Application (see Ex 17, p 579) which relevantly sought to retain and in part, rework, the Unauthorised Fill so that it would remain on the Subject Land in perpetuity.

10. The Court then relevantly ordered that (Ex 17, p 580):

[4] In the event that the Muscat DA is finally determined by way of refusal of development consent, the Respondent is within 30 days to obtain and submit to the Applicant for the Applicant’s approval, a remediation plan prepared by a suitably qualified consultant to remove all Fill Material unlawfully imported on the Property and remediate and restore the Property to the condition that it was in prior to the unlawful development.

16. In the event the Development Application is refused, the Class 4 Orders go on to relevantly state that the “Fill Material” must be removed and the Subject Land remediated within two years of obtaining approval from the council of the remediation plan (see Ex 17, p 580).

17. In the alternative, if the Development Application is approved, the Orders relevantly require the approved earthworks and remediation work to commence within 30 days of the grant of consent (subject to certain exclusions) and to be completed within 12 months of commencement (see Ex 17, p 581).

18. The Development Application as lodged, was notified between 5 November 2021 to 3 December 2021. Seven objections were received in response to the notification.

19. The Development Application was also referred to relevant approval and concurrence bodies, including Subsidence Advisory NSW (SANSW), NSW Rural Fire Service (RFS), NSW Environmental Protection Authority (EPA), Sydney Water, Transport for NSW (TfNSW), Department of Primary Industries (DPI), Natural Resources Access Regulator (NRAR) and the NSW Farmers Association.

20. General Terms of Approval (GTAs) were provided by SANSW and comments and recommended conditions of consent were provided by RFS and the EPA. Sydney Water confirmed that the Subject Land was outside its service area and would need to rely upon on-site effluent disposal and rainwater tanks for potable water supply. TfNSW requested additional information and DPI did not raise objections but identified a potential conflict between the depot operation and the continued operation of the poultry farm relating to on-going compliance with the Biosecurity (Salmonella Enteritidis) Control Order 2020. NRAR and the NSW Farmers Association did not provide a response.

21. On 10 February 2022, the applicant commenced proceedings against the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

22. The appeal of the deemed refusal of the Development Application was initially heard by a Commissioner of the Land and Environment Court (Bish C) and judgment delivered on 7 December 2022. Bish C dismissed the appeal (see Muscat Developments Pty Ltd v Wollondilly Shire Council [2022] NSWLEC 1682) (2022 Decision). The applicant appealed the 2022 Decision pursuant to s 56A of the LEC Act (see Muscat Developments Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 121 (2023 Decision). Preston CJ, in hearing the s 56A appeal, determined that the applicant had established some of the errors of law asserted by the applicant, set the 2022 Decision aside, and remitted the matter to a different Commissioner for re-hearing according to law.

23. This decision concerns that remitted re-hearing which commenced on site with an inspection of the Subject Land and surrounding streets on 9 December 2024.

24. The parties agree that the evidence before the Court in its consideration of the 2022 Decision remains evidence in these proceedings, in addition to the new evidence and material tendered in these proceedings.

The proposal

25. The development the subject of the Development Application, and this appeal, can be characterised as comprising four components as set out by Preston CJ in the 2023 Decision (at [38]):

26. The 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.

27. 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.

28. Onsite remediation of unauthorised fill and earthworks involving reworking or the unauthorised fill into mounds around the new shed, poultry farm and depot – the purpose of this development is as a barrier separating and screening the poultry farm and depot.

29. Use of the 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.

30. There have been numerous amendments to the Development Application, both before, during and after the 2022 Decision. The amendments considered in the 2022 Decision are set out in the Further Amended Statement of Facts and Contentions filed 6 December 2024 (FASOFAC) at [5.13]-[5.16] and in the 2022 Decision at [8]-[10] (collectively, the 2022 Amendments).

31. After the 2022 Decision, the applicant was granted leave to further amend the Development Application on 12 September 2024 as follows (see FASOFAC at [5.17]):

(a) Northwest mound

i. setback from northern site boundary of 10m;

ii. setback to highest point of mound at approximate setback of 3.50m from northern (Westbrook Road) boundary;

iii. reduction in height of mound from 106.583mto 95.739m AHD at highest point;

iv. mound to Westbrook Road at 1:2 batter slope at base for approximately 10.0m, then transitioning to batter slope of 1.3 to the top of the mound which is then level for approximately 55.0m;

v. internal batter slope at 1:3 terminating at a 1.8m high retaining wall.

(b) Northeast mound

i. A new mound setback 10.0m on the parallel alignments with Cawdor and Westbrook Roads. From the intersection of these two roads the mound runs at an approximate 45 degree angle with a maximum setback from the intersection of 38.0m;

ii. The new mound has a batter slope of 1:2 to a maximum mound height of RL 96.855m (approx.. 4.0m in height);

iii. The top of the mound is level for a distance of approximately 25.0m;

iv. The internal batter slope is 1:2 and terminates at a 1.8m high retaining wall.

(c) Central mound

i. The central mound is added to on the eastern face with [sic] the new material having a batter slope of 1:2 to a design level of RL 98.371m;

ii. The additional mound has a maximum height of approximately 5.8m.

(collectively, the September 2024 Amendments).

28. Finally, on 5 December 2024, the applicant was granted leave to further amend the Development Application to rely on the following:

29. Visual Impact Assessment and photomontages prepared by Urbaine Design Group dated 30 October 2024 (VIA);

30. Remediation Action Plan prepared by Martens & Associates dated 7 November 2024 (RAP);

31. Contaminated Site Audit Report prepared by Mr Tim Chambers dated 8 November 2024 (SAR); and

32. Site Audit Statement prepared by Mr Tim Chambers dated 8 November 2024 (SAS),

33. (collectively, December 2024 Amendments).

34. The Development Application, as amended by the 2022 Amendments, September 2024 Amendments and December 2024 amendments, comprise the Amended Development Application the subject of these proceedings.

Issues

30. Notably, the first two elements of the proposal, being the change of use of three existing sheds to a depot and associated works, and construction of a new shed as a farm building to support the poultry farm use, were not contested by the respondent (see T 9 December 2024, p 5 line 20-24). It is the second two elements, being the remediation and reworking of the Unauthorised Fill into mounds and subsequent use of these mounds for screening proposes, that form the basis of the disagreement between the parties.

31. The outstanding issues at hearing that require determination can be summarised as follows:

32. Whether the Subject Land will be suitable, after the remediation proposed by the Amended Development Application, for the purpose for which the development is proposed to be carried out (s 4.6(1)(b) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP), and whether the Subject Land will be remediated before the land is used for that purpose (s 4.6(1)(c) of the RH SEPP). This necessarily includes a consideration of whether the remediation methodology proposed is adequate in the circumstances.

33. Whether the Court is obliged to grant development consent to the Amended Development Application having regard to s 4.10 of the RH SEPP.

34. Whether the proposed “remediation work” will be carried out in accordance with the requirements in s 4.14(1) of the RH SEPP.

35. Whether the Amended Development Application should be refused having regard to the earthworks considerations specified in cl 7.5 of the WLEP.

36. Whether the Amended Development Application has unacceptable adverse visual impacts and is incompatible with the character of the locality.

37. Whether the Amended Development Application should be approved having regard to the heads of consideration in s 4.15(1)(b), (c) and (e) of the EPA Act.

38. Having regard to the facts and evidence in this case, I have determined to approve the Amended Development Application for the reasons set out in this judgment.

Public submissions

33. The Development Application, as lodged, was notified from 5 November 2021 to 3 December 2021. Seven objections were received in response to the notification objecting to the proposed development, raising issues including:

34. unacceptable impacts on the rural landscape character due to the overdevelopment of the site and visually dominant earth mounds;

35. concerns regarding the true intentions of the developer with consideration of previous developments;

36. concerns regarding the developer seeking approval for works already completed;

37. inadequate traffic impact assessment and adverse traffic impacts;

38. adverse acoustic impacts and insufficient acoustic impact assessment;

39. inadequate consideration of the potential storage of hazardous and flammable materials

40. public health and biosecurity concerns of the poultry farm;

41. excess and incompatible proposed hours of operation;

42. unacceptable biodiversity impacts;

43. unacceptable increase in large vehicle usage of load restricted roads;

44. contaminated soils including asbestos and concerns regarding proposed capping and further imported and contaminated material deposited on the land; and

45. dust nuisance and diversion of overland stormwater flows from existing and proposed earth mounds.

Expert evidence

34. The applicant relied on the expert evidence of Dr Ian Swane (contamination), Mr Paul Corbett (traffic), Mr James Lovell (town planning), Dr Daniel Martens (stormwater/flooding) and Ms Jennifer Hill (heritage).

35. The respondent relied on the expert evidence of Mr Jason Clay (contamination), Mr Hayden Calvey (traffic), Mr Scott Barwick (town planning), Mr Christopher Thomas (stormwater/flooding) and Mr Michael Edwards (heritage).

36. As set out in the Respondent’s Written Submissions (RWS) at [16], “[a]s this matter is before the Court on remitter, the evidence which was before Bish C remains before the Court”.

37. The following joint reports were filed and tendered in either the 2022 Proceedings or present proceedings and are therefore in evidence in these proceedings:

38. Joint Contamination Report prepared by Dr Swane and Mr Clay filed 25 October 2022 (Joint Contamination Report) (Ex 5);

39. Joint Town Planning Report prepared by Mr Lovell and Mr Barwick filed 2 November 2022 (Joint Town Planning Report) (Ex 6);

40. Joint Traffic Report prepared by Mr Corbett and Mr Calvey filed 31 October 2022 (Joint Traffic Report) (Ex 7);

41. Joint Stormwater and Hydrological Report prepared by Dr Martens and Mr Thomas (Joint Stormwater Report) (Ex 8);

42. Joint Heritage Report prepared by Ms Hill and Mr Edwards (Joint Heritage Report) (Ex 9);

43. Second Joint Contamination Report prepared by Dr Swane and Mr Clay filed 9 November 2022 (Second Joint Contamination Report) (Ex 10);

44. Third Joint Contamination Report prepared by Dr Swane and Mr Clay filed 2 December 2024 (Third Joint Contamination Report) (Ex 13);

45. Second Joint Town Planning Report prepared by Mr Lovell and Mr Barwick filed 28 October 2024 (Second Joint Town Planning Report) (Ex 14); and

46. Third Joint Town Planning Report prepared by Mr Lovell and Mr Barwick filed 4 December 2024 (Third Joint Town Planning Report) (Ex 15).

47. In addition, the single expert report entitled “Statement of Evidence of Jason Clay” filed 12 August 2022 (Clay Report) (Ex 17, tab 15) was also prepared and tendered for the purposes of these proceedings.

The role of the Court on appeal

39. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether consent should be granted to the proposed development. Section 39 of the LEC Act provides as follows:

39 Powers of Court on appeals

….

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

40. Section 8.14(1) of the EPA Act similarly gives the Court broad powers on an appeal against the refusal or deemed refusal of a development application, as follows:

41. In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

42. Section 4.15(1) of the EPA Act relevantly sets out the matters that must be taken into consideration as are of relevance by a consent authority in determining a development application as follows:

4.15 Evaluation

(cf previous s 79C)

(1) Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

42. Section 4.16 of the EPA Act relevantly provides that:

(1) General A consent authority is to determine a development application by –

(a) granting consent to the application, either unconditionally or subject to conditions, or

(b) refusing consent to the application.

Legislative and planning framework

43. The FASOFAC lists the following Acts, Regulations and instruments as being relevant to the assessment and determination of the Amended Development Application (at [4.1]):

44. Biosecurity Act 2015;

45. EPA Act;

46. Environmental Planning and Assessment Regulation 2000 (EPA Regulation);

47. Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act);

48. Coal Mine Subsidence Compensation Act 2017;

49. Biodiversity Conservation Act 2016 (BC Act);

50. Water Management Act 2000 (WM Act);

51. State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP);

52. State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP);

53. RH SEPP;

54. Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (SREP 20);

55. WLEP;

56. Wollondilly Development Control Plan 2016 (WDCP);

57. Managing Land Contamination Guidelines SEPP 55 – Remediation of Land 1998 (CLM Guidelines);

58. National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM);

59. Guidelines for consultants reporting on contaminated sites (NSW EPA (2020); and

60. Guidelines for the NSW Site Auditor Scheme, 3rd Edition (NSW EPA, 2017).

Will the Subject Land be suitable, after the remediation proposed by the Amended Development Application, for the purpose for which the development is proposed to be carried out for the purposes of s 4.6(1) of the RH SEPP?

Section 4.6(1) of the RH SEPP

44. Section 4.6(1) of the RH SEPP relevantly 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.

Proposed remediation strategy

45. In order to determine whether the requisite state of satisfaction under s 4.6(1)(b) is met, it is necessary to understand the remediation strategy proposed by the applicant.

46. The RAP is the primary document put forward by the applicant that sets out the remediation strategy proposed and the strategy for which the Amended Development Application seeks consent to implement.

47. The RAP identifies three key areas which require remediation in order to make the Subject Land suitable for the proposed development, being (Ex P, p 210):

48. Remediation Area A – The Northern Mound, where both bonded asbestos containing material (ACM) and asbestos fines/friable asbestos (AF/FA) impacts have been identified.

49. Remediation Area B – The Eastern Mound, where bonded ACM has been identified.

50. Remediation Area C – A TRH impacted ‘hotspot’ identified adjacent to exiting fuel storage tanks.

51. The remediation areas are depicted on the following map appended to the RAP (Ex P, p 273):

52. The remediation acceptance criteria adopted in the RAP, being the standard to which these areas must be remediated, is set out at table 3 (extracted below):

53. Notably, Section C of the Eastern Mound is assigned the remediation criteria of “Health Screening Level (HSL) A – Residential land use with access to soil” due to it being in closest proximity to residences located on the Subject Land. Sections A and B of the Eastern Mound and the Northern Mound are assigned the remediation criteria of HSL D – Commercial/industrial use, due to their location on the Subject Land being used for commercial purposes (namely, the poultry farm, depot and associated uses).

54. As can be seen from the above table, the remediation criteria assigned changes the amount of bonded ACM that can remain by weight, with the obvious outcome that less bonded ACM can remain for those parts of the Subject Land for which the HSL A criteria has been adopted (0.01% w/w), than for those parts for which the HSL D criteria has been adopted (0.05% w/w). Both HSLs have the same 0.001% by weight criteria for AF/FA.

55. The general remediation strategy can be summarised as follows:

56. The creation of “borrow sites” which will be excavated, tested and validated, to provide clean material for use as a capping layer on top of entombed asbestos contaminated material.

57. Excavated material from the borrow sites will be stockpiled temporarily in nominated “storage stockpiles”.

58. The entombed asbestos containing material will be placed in the excavated borrow sites and/or placed/reconfigured/regraded into proposed “design mounds” and then capped in Remediation Area A (Northern Mound) and Section A of Remediation Area B (Eastern Mound).

59. Sections B and C of the Eastern Mound will not be capped due to “earthwork limitations” including slope topography (Sections B and C) and dense ecologically significant vegetation that has established itself following the placement of the material (Section C).

60. With respect to Section B of the Eastern Mound, it is proposed that surface asbestos contamination to 100mm depth will be removed utilising the process outlined in s 4.9 of the RAP (Ex P, p 236) (although this evolved during the hearing to include the use of gypsum to break down the clay soils to allow for raking and asbestos removal in the top 100mm of fill material– discussed later in this judgment). This approach was the subject of extensive cross examination and proposed refinement through conditions of consent (see for example, condition 10(4) in the agreed conditions provided by the parties to the Court on 29 April 2025 (Agreed Conditions).

61. With respect to Section C of the Eastern Mound, it is proposed to retain the dense vegetation, essentially utilising the vegetation as its own type of capping layer. This approach was similarly discussed at length during cross examination.

62. Excavation and offsite disposal of the TRH impacted hotspot from Remediation Area C.

63. Validation of the remediation works to ensure the Subject Land is suitable for the proposed development.

64. Implementation of a legally enforceable Long Term Environmental Management Plan (LTEMP) to address residual asbestos contamination and its management into the future.

65. Preparation of a Section A2 Site Audit Statement under the provisions of the Contaminated Land Management Act 1997 (CLM Act) confirming that the Subject Land has been remediated in accordance with the approved RAP and that the site is suitable for its approved use – this requirement is not set out in the RAP but is contained within Condition 12 of the Agreed Conditions.

66. Relevant plans can be found within the RAP as follows:

67. proposed borrow sites and storage stockpiles - Map 5 (Ex P, p 276);

68. proposed design mounds - Map 4 (Ex P, 275); and

69. Sections A, B and C of the Eastern Mound – Map 6 (Ex P, p 277).

70. The RAP is informed by numerous environmental reports listed in section 3. Of particular relevance are the following:

71. Senversa Asbestos Investigation prepared by Mr Clay dated 6 August 2022 (annexed to the Clay Report) (Senversa Report) (Ex 17, p 650). The RAP states (at 3.4) that “investigations confirmed the presence of asbestos in the Northern Mound and identified three fragments of potential asbestos containing material (PACM) at the surface of the Eastern Mound, as well as a single fragment to the north of the Northern Mound”. The RAP goes on to incorrectly state that analytical results for the testing of the PACM had not been provided. These fragments were in fact confirmed to comprise asbestos.

72. Detailed Site Investigation prepared by Coleman and Adams Environmental (CAE) dated August 2024 (DSI) (Ex O, tab 1). The RAP summarises the investigations and findings of the DSI at 3.3. Notably, the investigations included:

(a) excavation of 167 test pits and 3 boreholes across the Subject Land; (b) collection of soil samples from each test pit and borehole, as well as “grab” samples from near surface soils; (c) collection of 198 samples for gravimetric asbestos in soil analysis including field sieving of 10L soil samples and collection of samples for AF/FA laboratory analysis; (d) collection of one groundwater sample from a previously installed onsite monitoring well; (e) laboratory analysis of 740 primary soil samples and 1 groundwater sample for comparison against relevant human and environmental site acceptance criteria (SAC). (f) The results of the above testing can be summarised as follows: (g) Northern Mound: one soil sample identified AF/FA exceeding the weight for weight w/w% SAC near the surface soils. (h) Eastern Mound: no concentrations of asbestos above the laboratory reporting limit identified. (i) Borrow sites: no significant anthropogenic inclusion, odours, soil staining or other signs of potential contamination were reported in the borrow site fill material. All primary samples collected from the borrow sites reported contamination concentrations below the adopted SAC.

3. Human Health Risk Assessment prepared by enRisks dated 27 August 2024 (HHRA) (Ex P, p 282). The HHRA is annexed to the RAP and relevantly states that it has been prepared to assist in the development of the remedial strategy for the Eastern Mound, particular those areas that will remain “uncovered” either as bare earth or covered in vegetation.

4. The RAP concludes that (Ex P, p 267):

“Through the successful completion of remedial works, validation of the Site, and preparation and implementation of a LTEMP, MA consider that the Site can be made suitable for the proposed depot development, and that the consent authority may be satisfied that the Site is suitable for the proposed land use in accordance with SEPP R&H clause 4.6(1).”

56. In turn, the RAP is considered by Mr Tim Chambers, a site auditor accredited under the CLM Act who was briefed by the applicant to prepare a Section B SAS (being an audit to relevantly “determine the nature and extent of contamination” and “determine the appropriateness of a remediation plan”). The SAS (contained in Ex P, p 191) states that the purpose of the plan the subject of the audit (being the RAP) is the “remediation of the site to manage asbestos impacted soil” (see Ex P, p 201).

57. The SAS relevantly certifies that (at Ex P, pp 201-202):

58. The nature and extent of the contamination has been appropriately determined.

59. The investigation, remediation or management plan is appropriate for the purpose stated above.

60. The site can be made suitable for the “operation as a poultry farm (current use) and depot as per development proposed in Wollondilly Shire Council DA DA/2021/984/1 (approval pending)” if the site is remediated in accordance with the RAP.

61. The SAS goes on to state that this certification is subject to compliance with the following condition:

“Implementation of a long term environmental management plan (EMP) as described in the remedial action plan. The EMP is to be implemented at the site in conjunction with a mechanism of legal enforceability. The mechanism of enforceability will need to be endorsed by Wollondilly Shire Council in accordance with the requirements of NSW EPA (2017) Contaminated Land Management: Guidelines for the NSW Site Auditor Scheme, 3rd Edition.”

59. The SAS is accompanied by the SAR (as required under s 53B of the CLM Act) which sets out Mr Chamber’s analysis of the RAP and underlying documents/investigations and his reasons for issuing the SAS.

Applicant’s position

60. The applicant relies on the contamination documents provided in support of the Amended Development Application, including the DSI, RAP, HHRA, SAR and SAS and evidence of Dr Swane to submit that the requirements of s 4.6(1) of the RH SEPP have been satisfied.

61. The applicant submits that the Court only needs to be satisfied that the remediation proposed will make the land able to be safely used for the purposes of the proposed depot and other uses, stating “suitability does not require that the selected method of remediation be the best or the most effective in eliminating the source of contamination” (AWS at [59]). The RAP has been considered by Dr Swane, and found to propose an appropriate remediation methodology, and has been signed off by Mr Chambers in the form of a Section B SAS.

62. The applicant further relies on the concessions made by Mr Clay in the proceedings the subject of the 2022 Decision, namely that the Subject Land could be made suitable once the proposed remediation, as confirmed by agreed conditions of consent, was carried out (see AWS at [66]-[71]) and Mr Clay, and the respondent, should not be able to depart from these views.

63. In relation to the requirement for a LTEMP to be considered prior to the grant of consent, the applicant submits that the principles in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSW LEC 315 (Renaldo) are not engaged in this case. The applicant relies on the evidence of both Dr Swane and Mr Clay that the exact form of LTEMP is not required to be submitted prior to the grant of consent and is an appropriate matter for conditions. The applicant further submits that the LTEMP will be legally enforceable and known to future purchasers of the land.

64. The applicant finally submits that the Agreed Conditions provide sufficient certainty to ensure that the required remediation will be undertaken and cl 4.6(1) of the RH SEPP is satisfied.

Respondent’s position

65. The respondent submits that this matter involves a significant quantum of fill, the source of which is entirely unknown. The respondent further submits that the investigations carried out on behalf of the applicant to date, do not adequately delineate the fill material or investigate the presence of asbestos and that this is fatal to the application, in circumstances where part of the Unauthorised Fill is proposed to be moved to different parts of the Subject Land and some parts will remain uncapped. In support of this position, the respondent relies on those test pit results in the DSI which were in similar locations to the test pits in the Senversa Report. In a number of instances, asbestos was identified in the test pits in the Senversa Report, but not in the test pits in the DSI (see for example, T 11 December 2024 pp 123-125). The respondent describes these anomalies as “a significant problem with the DSI” (T 17 April 2025 p 37 line 16). The respondent concludes that as the RAP is informed by the findings of the DSI, the approach adopted for the Eastern Mound has proceeded on an “entirely incorrect factual basis” and is “fundamentally flawed” (T 17 April 2025 p 37 line 1-17).

66. The respondent states that any concessions made by Mr Clay in the proceedings the subject of the 2022 Decision have been superseded by the amendments to the proposal, “and in particular the remediation strategy in respect of the central mound” (referred to in this judgment as the Eastern Mound) (T 17 April 2025, p 31 line 5-23) which was initially proposed to be capped.

67. The respondent also submits that the remediation strategy is flawed as “it has not been demonstrated that the proposed batter slopes of the capping layer are geotechnically appropriate” (RWS at [72(1)] and relies on the evidence of Mr Clay in this regard (see Ex 13 at p 17).

68. The respondent criticises the fact that the Amended Development Application does not include a LTEMP (indicative or otherwise) and that the Court therefore cannot form the requisite state of satisfaction that the site will be made suitable for the proposed use under s 4.16(1) of the RH SEPP. The respondent further submits that the LTEMP cannot be used as a substitute for the proper investigation of the contamination on the Subject Land. In support of its position, the respondent relies on the planning principle espoused in Renaldo which sets out the principles required to be considered in a management plan. The applicant submits that these principles would be applicable to a LTEMP and cannot be satisfied in the absence of such a document.

69. Ultimately, the respondent submits that the remediation strategy proposed in the RAP is an inappropriate response to dealing with asbestos waste that has been unlawfully placed on the Subject Land and inadequately investigated, and that the Court cannot be satisfied that the Subject Land will be made suitable for the proposed use for the purpose of s 4.6(1) of the RH SEPP.

Consideration

70. In order to determine whether the requirements in cl 4.6(1) of the RH SEPP have been satisfied, it is necessary to consider whether the proposed remediation strategy will make the Subject Land suitable for the proposed development, being the four components identified by Preston CJ extracted at [25] above. It is worth noting that most of the remediation works proposed are to render the Unauthorised Fill suitable for the purpose of forming a barrier separating and screening the existing and proposed poultry farm and depot uses.

71. As different remediation approaches are proposed for different parts of the Subject Land, I have considered each area the subject of proposed remediation to determine whether I am satisfied the approach will render the Subject Land suitable for the development proposed by the Amended Development Application. I have then addressed the respondent’s criticisms of the investigations leading to the preparation of the RAP.

72. Starting with the Northern Mound and Section A of the Eastern Mound, it appears to be agreed between the contamination experts that the proposed remedial approach of removing the friable asbestos within the Northern Mound and regrading/reshaping and capping the Northern Mound and Section A of the Eastern Mound is suitable. This position was agreed in the proceedings the subject of the 2022 Decision (see Ex S, T 11 December 2022, p 157 line 1-50 and p 158 line 1-46) and Mr Clay made further comments that it was suitable in the remitter hearing (see T 11 December 2025 p 116 line 7-8). Although the remediation strategy has evolved since the 2022 Decision, the proposed treatment and capping of the Northern Mound and Section A of the Eastern Mound remains largely unchanged. I am therefore satisfied that the proposed remediation strategy for the Northern Mound and Section A of the Eastern Mound will make the Subject Land suitable for the purposes of the development set out at [25] above.

73. In respect of the borrow pits, being the location of material proposed to be excavated to comprise the clean material for the capping of the Northern Mound and Section A of the Eastern Mound, I accept the applicant’s position that these have been adequately tested to confirm that they are chemically suitable for capping. In cross examination, Mr Clay made the following concessions (T 11 December 2024, p 137 line 8-46):

LAZARUS: If you make the assumption that, on the basis of your investigations as well as the Coleman investigations, it's a fair assumption, isn't it, that that norther fill pad doesn't contain anthropogenic waste of any material level; you agree with that?

WITNESS CLAY: I'd say that's reasonable.

LAZARUS: If you make that ‑ or on the basis of that answer, you would have to agree, wouldn't you, with the evidence given by Dr Swane on the last occasion that the single ACM fragment that you found was likely caused by ‑ in effect, a stray fragment caused by the movement of trucks associated with the filling of the northern fill mound. That's a reasonable hypothesis, isn't it?

WITNESS CLAY: It is.

LAZARUS: If you, therefore, make those assumptions ‑ I shouldn't say, "assumptions". On the basis of the answers you've just given, there's no reason for you to hold the opinion that the material in the northern fill pad, up to the depth that is proposed to be taken, is suitable for capping. Perhaps I put that badly. I withdraw the question. There's no reason for you to hold the opinion that the northern fill pad is not suitable for capping.

WITNESS CLAY: Well, there's capping and there's capping, and so, that material, from a chemical standpoint, has been reasonably tested, and I think there's a reasonable amount of information there to suggest, on the balance of probability, that it's chemically suitable for capping material, yep.

LAZARUS: You don't express a view anywhere in any of your reports in these proceedings that that material would be unsuitable for capping for any other reason, do you?

WITNESS CLAY: I do draw attention to the auditor's need to ensure that the long‑term stability of the‑

LAZARUS: I understand that, and we'll come to that, but just in terms of the composition of the material, there's no reason for you to hold the opinion that that material in the northern fill pad isn't suitable for capping?

WITNESS CLAY: No.

74. I accept the evidence of Dr Swane, being also a geotechnical engineer, that the material is both chemically and geotechnically suitable for capping, stating “the materials that are available on site are eminently suitable for constructing the mounds as designed in the RAP” (T 11 December 2025, p 146 line 40-41). In respect of Mr Clay’s concerns regarding the angle and steepness of the sides of the mounds, I accept that the approach set out in the RAP is adequate to be satisfied that the Subject Land will be suitable for its proposed use following remediation.

75. The RAP sets out the capping layer design principles and establishment methodology at s 4.8 (Ex P, p 235) which includes requiring the final design of the capping layer for each design mound to be reviewed by an experienced geotechnical engineer to ensure that the use of the marker layer will not cause any slope stability issues and the use of slope stability improvement solutions may be required subject to geotechnical advice. I accept the applicant’s submission that it is not inappropriate to grant consent (or issue a Section B SAS) prior to the finalisation of the capping design and that this is not a novel concept (see T 11 December 2024, p 142 line 27-50 and p 143 line 1-44).

76. I further note that the RAP contains significant testing and validation requirements for the proposed works, including the excavated capping material proposed to be used on the Subject Land (see for example, s 5.7 of the RAP commencing at Ex P, p 249). It further contains contingency measures including for example, if asbestos or other unsuitable contaminants are identified in the material proposed to be used for capping or there is insufficient capping material available from the Subject Land (see s 5.6 of the RAP, commencing at Ex P, p 245). I accept the applicant’s submission that these validation and contingency measures are sufficient and acceptable for the purposes of the SAS being issued in respect of the RAP.

77. Turning to Section B of the Eastern Mound. Having regard to the RAP, SAR, SAS, evidence of the contamination experts, and Condition 10(4) of the Agreed Conditions, I am satisfied that the proposed remediation approach of:

78. breaking up clay surface with gypsum;

79. manually raking soils or using a long reach excavator if required, to remove visible asbestos in the top 100mm of surface soil;

80. covering those areas of the slope surface that cannot be raked with a geoweb, anchor and backfill with 100mm clean topsoil;

81. validating the top 100mm of soil as being free from asbestos to the nominated HSLs; and

82. laying biodegradable environmental blankets to prevent soil erosion while vegetation becomes established,

83. is acceptable in the circumstances to render the Subject Land suitable for the proposed development.

84. This is because it is accepted by both contamination experts to be a feasible approach, although the experts disagree as to the practicality and ease by which it might be achieved. In respect of the “excavator and bucket” component of the remedial approach, Mr Clay provided the following oral evidence (T 11 December 2024, p 148 line 9-21):

LAZARUS: I understand that's your view. But when you said earlier, the reference in the RAP to the excavator and bucket, and you said that would be more feasible. Is that your view as to an appropriate means of dealing with section B?

WITNESS CLAY: Painfully, yes. But as a process, it just ‑ it's so fraught with hazard, and different elements that are required to work, and people to do their jobs properly. It's ‑ you know, it's not a straightforward thing, and it's far from as practical, I think, as Dr Swane would suggest.

LAZARUS: But it's feasible?

WITNESS CLAY: It is feasible, yes.

79. Mr Swane was of the view that the excavator and bucket approach was “practical and feasible”, stating (at T 11 December 2024, p 148 line 42 and p 149 line 1):

WITNESS SWANE: Sorry, thank you. Section B. The use of long‑reach excavators is eminently feasible, to undertake this work. Obviously, it's more involved than using conventional equipment. But it's suitable for the purpose, and I've had quite a few projects where such equipment has had to be used to achieve the required outcome. So it's commonly available. Working on steep slopes of the nature, is something that is eminently feasible, is done. The fact that some contractors ‑ remediation contractors ‑ may not have done it, I recognise that that may be the case. But I'm sure other companies that have had to do landscaping on steep slopes would be able to say that it's a very practical and feasible approach.

80. In respect of the applicant’s later proposal to break up the “clayey” material with gypsum (as is reflected in the current Agreed Conditions at Condition 10(4)), Mr Swane was of the view that (T 11 December 2024, p 150 line 37-41):

WITNESS SWANE: If it's a concern, then don't use it. One could use other compounds, however. Gypsum, for instance, is often used to break up clay, and it's certainly not an acidic compound. So one could maybe specify if compounds need to be added to the slope that they're not an ‑ of an acidic nature, for instance.

81. Mr Clay’s evidence in respect of the proposal to use gypsum to break down the clayey material to allow for raking and removal of asbestos in the top 100mm of soil using an excavator and bucket for Section B of the Eastern Mound was primarily that he had not seen this approach utilised before, it will be “tricky to achieve” and “require a significant amount of diligence” (T 11 December 2025 p 115 line 1-3 and 32-35). Mr Clay went on to criticise the utility of the approach, stating (at T 11 December 2025 p 152 line 10-15):

There is a potential risk, right, that if we go to the section B, and we do our screening and we find that the asbestos in a 10 centimetre depth exceeds 0.05%, that we have to remove that material and take it away to a landfill, and then we do the next 10 centimetres, and there is somewhat of a risk that, you know, we remove the whole stockpile to landfill on the basis of 10 centimetre tranches.

82. It is important to note that s 4.6(1) of the RH SEPP does not require the most practical or desirable remediation approach to be implemented to satisfy the provision. Rather, s 4.6(1)(b) of the RH SEEP requires the consent authority to be satisfied that the site in question will be suitable, after remediation, for the purpose for which the development is proposed to be carried out. This means that even if the proposed remediation approach is costly, difficult or labour intensive, as long as it will render the site suitable and generally meets the requirements set out in cl 4.6(1) of the RH SEPP, it will be sufficient, even if a superior remediation strategy could have been adopted.

83. As set out above, Mr Clay gave evidence that if asbestos is identified in the top 100mm (10cm) of material as the mound is progressively screened for asbestos, it may well be that the entire mound is removed off site. It would appear from the testing results undertaken to date that this outcome is unlikely, however, this is what the RAP requires (see s 4.9 of the RAP at Ex P, p 236). Therefore, I am satisfied that either the top 100mm of soil will be cleared for asbestos as required in order to achieve validation, or else it will be removed in 100mm+ layers until the top 100mm is cleared for asbestos. If this process ultimately involves the removal of the entirety of Section B of the Eastern Mound and a potential modification application to address the changes to the design of the Eastern Mound and its screening properties, then this is what the RAP requires and will be at the applicant’s risk. Either way, I am satisfied on balance, having regard to the evidence in this matter, that this area will become suitable for the proposed development for the purposes of s 4.6(1)(b) of the RH SEPP.

84. Turning to Section C of the Eastern Mound, having regard to the RAP (including the HHRA), SAR, SAS and evidence of the contamination experts, I am satisfied that the remediation approach of managing contaminated fill in this area by way of retention of the vegetative cover and associated requirements in the LTEMP, is adequate in the circumstances to render the Subject Land suitable for the proposed development into the future.

85. In this regard, I have placed significant weight on both the HHRA and oral evidence from both contamination experts. The HHRA relevantly states that “exposure to bonded ACM in soil in this area of the mound is not likely, as the vegetation will prevent disturbance of the ACM and this area is not proposed to be emu picked” (Ex P, p 304) and “ACM present will remain entrained by the vegetation” (Ex P at p 306).

86. This position is confirmed by the contamination experts as follows (T 11 December 2024, p 114 line 1-42):

LAZARUS: … And you accepted, didn't you, that if you landscape the mounds, the risk of a piece of ACM becoming airborne and fibrous, and therefore a risk, is acceptably low. Didn't you?

WITNESS CLAY: There is a low risk of that, yes.

LAZARUS: You didn't find any fragments of ACM in section C, did you?

WITNESS CLAY: I don't think I looked in section C.

LAZARUS: But the point is, isn't it, that if you go back to the document that I provided you, 2005 enHealth document. And if you go back to p 24. It's correct, isn't it, that ‑ if you go to the first dot point ‑ that the existence of the vegetation is likely to have the effect of stabilising the ACM, and preventing its disturbance and release. Do you agree with that?

WITNESS CLAY: So if you have a complete vegetive cover over the mound, then yes, that would be reasonably successful in reducing the risk of generation of airborne asbestos particles.

LAZARUS: Right, but there is ‑ we saw from the photos yesterday ‑ a complete vegetation cover of section C, isn't there?

WITNESS CLAY: I don't recall the photos ‑ I'm happy to take it that yes, there is asbestos on section C, yes. Asbestos, vegetation.

LAZARUS: So the risk of fibres becoming airborne are, on section C, acceptably low?

WITNESS CLAY: I would say that today, yes, the risks are acceptably low, yes.

LAZARUS: Do you agree with that last bit of evidence from Mr Clay, Dr Swane?

WITNESS SWANE: That the risk of bonded asbestos of the surface on section C, currently with a vegetation cover in place?

LAZARUS: Yes.

WITNESS SWANE: Yes, it's a very low risk.

87. Noting that the remediation strategy for the Subject Land, including Section C of the Eastern Mound, includes compliance with a LTEMP, it is necessary to consider whether the approach proposed by the applicant is adequate to satisfy s 4.6(1) of the RH SEPP. The RAP sets out at sections 4.10 and 5.8 the requirements the LTEMP insofar as what it needs to address and contain. Section 6 of the HHRA (which forms an annexure to the RAP) also sets out requirements for the LTEMP, including in particular, for Section C of the Eastern Mound (see Ex P, p 306). Condition 10(3) of the Agreed Conditions states that the LTEMP must be prepared detailing the ongoing management of the Subject Land as described in the RAP, and approved by the SAS, and also requires the LTEMP to incorporate remediation measures required by any earlier environmental management plans applying to the Subject Land (see 3.2 of the RAP at Ex P, p 221).

88. The requirement for a LTEMP is set out at Condition 10(3) of the Agreed Conditions and includes that it must be:

89. approved by the respondent and site auditor;

90. once approved, be complied with by the consent holder;

91. be noted on any certificate issued under s 10(7) of the EPA Act; and

92. be registered on the property title, and enforced by way of a positive covenant under s 88E of the Conveyancing Act 1919.

93. In my view, this is sufficient to understand the general tenor and requirements of the LTEMP going forward, noting that it will be audited by an accredited site auditor and is also required to be approved by the respondent.

94. The decision in Renaldo at [53] states that “management plans (or similarly named documents) provide further details on the operation of a particular use that may not necessarily be appropriate as conditions of consent”. In my view, having regard to:

95. sections 4.10 and 5.8 of the RAP and section 6 of the HHRA;

96. Condition 1(4) of the Agreed Conditions which relevantly requires compliance with the recommendations in the RAP (to which the HHRA is annexed) and SAR; and

97. Condition 10(3) of the Agreed Conditions which requires the LTEMP to be prepared in accordance with the RAP (particularly ss 4.10 and 5.8) and for the LTEMP to be noted on any certificate issued under s 10(7) of the EPA Act and registered on the property title, and enforced by way of a positive covenant;

98. there is sufficient certainty as to what is required to maintain the site’s suitability for its proposed use.

99. I accept the evidence of both contamination experts that it is not unusual for the preparation of a LTEMP to be required by a condition of consent following approval and for the LTEMP to be required to be reviewed and approved by a site auditor. I further accept the evidence of both contamination experts that this is sufficient as long as the proposed LTEMP will be reasonably and practically achievable (T 11 December 2024, p 121 line 29-50, and p 122 line 1-17). Having regard to the facts of this case, I consider it appropriate to condition the preparation of, and compliance with, the LTEMP (as proposed by the applicant) rather than require its preparation prior to the grant of consent.

100. For completeness, I note that no contentions have been raised regarding the proposed remediation approach for Remediation Area C – being the removal and disposal of the TRH hotspot. I therefore accept that this remedial approach is appropriate in the circumstances and will render the Subject Land affected by this contamination suitable for the proposed poultry farm and depot uses set out in the Amended Development Application.

101. I will now consider the respondent’s criticisms of the DSI and investigations leading to the development of the applicant’s proposed remediation methodology.

102. I accept the applicant’s submission that as the RAP assumes that the Northern and Eastern Mound contain asbestos and proposes a remediation approach on this basis, any alleged deficiencies in the DSI in respect of identifying whether the Eastern Mound contains asbestos is not fatal to the remediation approach proposed. In this respect, I have placed significant weight on the evidence of Mr Clay in cross examination (T 10 December 2024, p 91 line 25-35):

LAZARUS: It doesn't matter, I want to suggest to you, that the DSI think to use your word ‑ cleared the central mound for asbestos, if the RAP is making the assumption that the central mound contains asbestos and is seeking to remove the top 100 mil of it on the surface.

WITNESS CLAY: That's a reasonable concept, yes.

95. Although I note the respondent spent some time taking the Court through test pit locations in the DSI and their corresponding results in the Senversa Report, there is no cogent claim that the DSI authors were negligent or fraudulent in their investigations or reporting. Any alleged deficiencies by the respondent are addressed by the RAP treating the Northern and Eastern Mounds as containing asbestos. To this end, I have also placed significant weight on the HHRA which similarly acknowledges that further pieces of ACM may be present in the surface soil of the Eastern Mound (Ex P at p 305) and determines that the remediation approach is still acceptable from a human health perspective.

96. For completeness, I have also placed weight on the following:

97. Mr Clay was satisfied in the hearing the subject of the 2022 Decision that the DSI before the Court in that matter (being an earlier version with less information than the DSI before the Court in the remitter hearing) was sufficient to be reasonably relied on other than for the Eastern Mound (Ex S, T 11 November 2022, p 151, lines 14-20); and

98. The SAR states that “the Auditor is satisfied that the data obtained is adequate to allow determination of an appropriate remedial methodology to manage the identified impacts” (Ex P, p 68).

99. In addition, Condition 10(1) and 12 of the Agreed Conditions relevantly require the Subject Land to be remediated and validated in accordance with the RAP and SAS and signed off by a site auditor for the purposes of issuing a Section A2 SAS. I accept that these validation measures are adequate to ensure that the remediation work will be effective to render the Subject Land suitable for the proposed use for the purposes of s 4.6(1)(b) of the RH SEPP (despite any deficiencies in the investigative work leading to the preparation of the proposed remediation strategy).

100. An important requirement in s 4.6(1)(c) of the RH SEPP is that any remediation works required to be carried out to make the site suitable after remediation, will be carried out “before the land is used for that purpose”. To this end, I have carefully considered, and proposed amendments to the conditions of consent (which were accepted by the parties) to ensure that the remediation works will be carried out prior to the proposed uses of the Subject Land if approval is granted to the Amended Development Application.

101. Condition 10(1) of the Agreed Conditions requires the Subject Land to be remediated and validated in accordance with the RAP and SAS prior to the issue of any occupation certificate. Further condition 12 entitled “Section A2 Site Audit Statement” requires a Section A2 SAS to be prepared by an accredited site auditor and submitted to the respondent to confirm that the Subject Land has been remediated in accordance with the approved RAP prior to the use of the site as a depot. In my view, this is sufficient to ensure that the Subject Land will be remediated so that it is suitable for the proposed development before the land is used for that purpose (i.e. before an occupation certificate is issued/the site is used as a depot).

102. Therefore, I am of the view that significant investigations were carried out on behalf of the applicant to inform both the contamination status of the Subject Land, and an appropriate remediation strategy that would render the Subject Land suitable for its proposed uses. Despite agreed and alleged deficiencies in the investigations carried out to date, I am satisfied, that for the purposes of s 4.6(1) of the RH SEPP:

103. The Subject Land is contaminated.

104. The Subject Land requires remediation in order to make the site suitable for the uses proposed by the Amended Development Application (being those summarised at [25] above, but particularly for the purpose of rendering the Unauthorised Fill suitable to form a barrier separating and screening the poultry farm and depot).

105. The RAP relied on by the applicant, if implemented (including the validation works required, contingency measures proposed, and implementation of the LTEMP), will make the Subject Land suitable for those individual and collective uses.

106. The remediation works required by the RAP will be carried out prior to the use of the Subject Land for the purpose for which the development is proposed to be carried out as a result of the proposed conditions of consent (including in particular, Conditions 10(1) and 12).

Is the Court obliged to grant development consent to the Amended Development Application having regard to s 4.10(1) of the RH SEPP?

101. The second primary issue in dispute during the remitter hearing is whether s 4.10(1) of the RH SEPP requires the Court to grant consent to the Amended Development Application.

102. Section 4.10(1) relevantly 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.

103. The parties agree that the Amended Development Application comprises “Category 1 remediation work” under s 4.8 of RH SEPP as the proposed development requires development consent under another State Environmental Planning Policy (see [184]-[185] below) and that s 4.10(1) of the RH SEPP is a relevant consideration. The parties disagree as to the interpretation of this provision and whether the Court is obliged to grant consent having regard to its terms.

104. It is noted that this issue was considered in the 2022 Decision and on appeal in the 2023 Decision, and these findings are relevant to the parties’ submissions as to the interpretation of s 4.10(1) of the RH SEPP in the remitted hearing.

105. In the 2022 Decision, it was relevantly determined that:

[107] Based on the evidence before me, and for the reasons described below, to the amended application poses an unacceptable risk to human health resulting from the asbestos waste remaining in the site. I assess that there is a more significant risk to human health from the proposed carrying out of the remediation works and retaining of the asbestos waste on the site, pursuant to s 4.10 of the SEPP Resilience.

106. In the 2023 Decision, the Chief Judge considered the findings in the 2022 Decision at [104]-[117] and summarised the arguments made by the respondent in relation to this issue before Bish C, including, relevantly at [113]-[115]:

[113] 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.

[114] 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].

[115] 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.

107. His Honour concluded that:

[117] 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.

Applicant’s position

108. The applicant submits that the respondent has misconstrued Preston CJ’s findings and that:

109. Commissioner Bish made a typographical error in [107] and the word “and” should be replaced with “than”.

110. The Chief Judge did not embrace Council’s submission at [114] of the 2023 Decision and the reference in [117] of the 2023 Decision to “for the reasons given by the Council summarised above” does not include the reasons summarised at [114]. His Honour “did not need to resolve the “baseline” alternative submission raised by the Council in light of his acceptance of Council’s primary submission that the Commissioner had undertaken the risk comparison required by s 4.10(1)” (AWS at [178]).

111. The respondent’s interpretation of his Honour’s findings in the 2023 Decision would be inconsistent with his Honour’s findings in Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 (Goldcoral), namely at [53] that “there is no legal principle that development consent cannot be sought to carry out development to erect a building… or to carry out works that would amend a building or works that are unlawful, and then to use in the future the amended building or works”. The argument being that the words “for any purpose for which it may lawfully be used” includes the future potential for the lawful use of the Unauthorised Fill (i.e. the use of the Unauthorised Fill is not prohibited in the RU2 zone and could be regularised – see AWS at [179]).

112. Once s 4.10(1) of the RH SEPP is interpreted in the manner asserted, the Court must grant development consent to the Amended Development Application and it is not necessary to consider other merit issues (for example, inconsistency with zone objectives, visual impact or earthworks) as the RH SEPP prevails over the WLEP to the extent of any inconsistency (AWS at [187]-[188]).

Respondent’s position

109. Conversely, the respondent submits that the purpose for which the land may lawfully be used, are the poultry farm use and use of the Approved Mounds that existed prior to the placement of the Unauthorised Fill. The respondent maintains that the use of the Unauthorised Fill, without development consent, is not a purpose for which the Subject Land may lawfully be used and that there is a clear distinction between permissibility under land use provisions in Local Environmental Plans, and lawfulness, being development with consent (T 17 April 2025, p 46 line 42-47).

110. Therefore, the respondent argues that there is a more significant risk of carrying out the proposed remediation works than there would be from the lawful use of the land assuming the absence of the Unauthorised Fill. The respondent relies on the findings of Preston CJ in the 2023 Decision (and in particular [114] and [117]) as being determinative of this issue.

Consideration

111. Firstly, I do not accept that Bish C made a typographical error at [107] in the 2022 Decision. I am of the view that the use of the word “and” in the context of “proposed carrying out of the remediation works and retaining of the asbestos waste on the site” (emphasis added) was a clear reference to her understanding that it was proposed to retain asbestos on the Subject Land following remediation. This continues to be the remediation approach advanced by the applicant in the remitter hearing.

112. Secondly, in the 2023 Decision, his Honour listed multiple reasons given by the respondent council as to the correctness of the approach adopted by Bish C in the 2022 Decision. His Honour then concluded that Muscat had not established its grounds of appeal in relation to s 4.10(1) of the RH SEPP “for the reasons given by the Council summarised above” (at [117]) which necessarily includes [113]-[115]. His Honour does not exclude any of the reasons “outlined above” in the 2023 Decision nor indicate that the reasons he had accepted were only partial or limited. In fact, the wording “for the reasons given by the Council summarised above” would necessarily indicate all of the reasons given by the Council as summarised above.

113. Therefore, I accept the respondent’s submission that the interpretation of s 4.10(1), and in particular, the words, “for any purpose for which it may lawfully be used” has been determined in the 2023 Decision to exclude unlawful uses of the land even if those uses could be regularised through a development application in the future (as is the case here).

114. In the event that I am wrong, and the applicant is correct that it was actually only the reasons given in [104]-[107] that led to his Honour’s findings at [117] and the issue of the correct baseline for the application of s 4.10(1) was not in fact determined in the 2023 Decision, then I accept the respondent’s arguments as to the appropriate construction of this section.

115. If s 4.10(1) of the RH SEPP was directed to permissibility in a planning context only, then it would have been so drafted. I do not accept that this provision is directed to land use permissibility, such that consent must be granted to a development application for unlawful works provided that consent could conceivably be granted to the use of those works in the future if characterised as a use permissible in the relevant zone. This would, to quote the respondent’s argument in the 2022 Decision as summarised at [114] of the 2023 Decision, “impermissibly permit Muscat to take advantage of the unlawful mounds”. This would also invite others to unlawfully place material on similarly zoned land and then rely on s 4.10(1) of the RH SEPP to force the grant of development consent to retain that material on site where the “use” might be permissible from a planning perspective if development consent was eventually granted for that use.

116. The words of s 4.10(1) are “for any purpose for which it may lawfully be used” – this must necessarily include the existence of development consent if development consent is required. I do not consider this interpretation to be inconsistent with the decision in Goldcoral. Namely, there is no impediment to the applicant seeking development consent to augment and use the Unauthorised Fill (as it has done here).

117. Finally, assuming that the relevant baseline in s 4.10(1) of the RH SEPP is the absence of the Unauthorised Fill, then I find that there is a more significant risk of harm of carrying out the proposed remediation work than using the land for the existing poultry farm and Approved Mound uses absent the Unauthorised Fill.

118. Notwithstanding that I have not formed the state of satisfaction that would oblige me to not refuse development consent under s 4.10(1) of the RH SEPP, there is nothing in this provision that stops me from approving the Amended Development Application in any event. Provided I am otherwise satisfied as to the jurisdictional and merit matters relevant to the Amended Development Application, I may still grant development consent to the proposal if appropriate having regard to the facts of the case.

Will the proposed “remediation work” be carried out in accordance with the requirements in s 4.14(1) of the RH SEPP?

119. In determining the Amended Development Application, it is necessary to consider whether the proposed remediation work will be carried out pursuant to s 4.14(1) of the RH SEPP (2023 Decision at [59]-[60]).

120. Section 4.14(1) of the RH SEPP provides as follows:

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.

121. It is agreed that the:

122. “contaminated land planning guidelines” referred to at 4.14(1)(a) and (c) of the RH SEPP are the “Managing Land Contamination Planning Guidelines SEPP 55 – Remediation of Land 1998” (CLM Guidelines); and

123. the guidelines in force under the CLM Act referred to at s 4.14(1)(b) of the RH SEPP relevantly include the National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM).

124. The parties disagree as to the interpretation of the term “remediation work” and therefore application of the provision, and whether the proposed “remediation work”, once construed, will be carried out in accordance with the required guidelines.

Applicant’s position

123. The applicant submits that firstly, the term “remediation work” refers to exactly that, and “not the steps taken to investigate contamination” (AWS at [90]). This means that the respondent’s criticisms of the DSI in the context of s 4.14(1) of the RH SEPP are misplaced and irrelevant.

124. At most, the requirements in s 4.14(1) would apply to the RAP and the Court can be satisfied that the RAP has been prepared in accordance with the CLM Guidelines and NEPM. The RAP assumes asbestos contamination in the Northern and Eastern Mounds and proposes remediation measures contemplated by the NEPM to achieve the standard set out in the NEPM, being no visible asbestos for surface soil. The NEPM relevantly prescribes (Ex C, tab 7, p 287):

There are various acceptable means to provide confidence that the soil surface is free of visible asbestos including, but not limited to, multi-directional raking of soil to about 10cm depth and handpicking of asbestos fragments or covering with a durable hard copy. This requirement for the soil surface to be free of visible asbestos applies to both assessment and remediation phases.

125. The applicant further submits that s 4.14(1) requires the remediation work to be carried out in accordance with the relevant guidelines and guidelines by their very nature do not impose prescriptive requirements but are directory and strict compliance is not required (AWS at [93]).

126. In any event, the DSI would be found to be sufficient having regard to the CLM Guidelines and NEPM. As submitted previously, it is not necessary for a DSI to quantify the full extent of asbestos distribution within the mounds when only the surface of the mounds is required to be remediated in order to achieve the required NEPM criteria and that this was conceded by Mr Clay in oral evidence (see [94] above).

127. The applicant relies on the SAR, SAS and evidence of Dr Swane that the investigative work carried out to inform the RAP was sufficiently in accordance with the CLM Guidelines and NEPM to have confidence that the remediation work proposed is adequate in the circumstances.

Respondent’s position

128. The respondent submits that the DSI, as well as RAP, and their consideration against the relevant guidelines under s 4.14(1) of the RH SEPP are entitled to significant weight and are a focal point or fundamental element for assessment (RWS at [79]).

129. The FASOFAC sets out numerous alleged deficiencies in both the RAP and DSI for the purposes of s 4.14(1) of the RH SEPP.

130. Primary criticisms of the DSI that are argued to not conform to the requirements of the NEPM include insufficient investigation of the lateral and vertical extent of contamination, lack of rationale for adopted assessment criteria, and insufficient evidence that the remediation work consisting of using “clean fill” from the borrow pits is not also contaminated with asbestos (RWS at [80]).

131. The respondent submits that Dr Swane’s evidence on these issues defers to Mr Chambers and the SAS and SAR. Mr Chambers has not given evidence in these proceedings and the Court should give little or no weight to Dr Swane’s evidence on this basis.

Consideration

132. I accept the applicant’s submission that the term “remediation work” applies only to the remediation works proposed, and not the investigation work that underlies those proposed works. The term “remediation work” is used many times in Ch 4 of the RH SEPP and would produce a nonsensical result if interpreted to apply to investigative work and investigative documents. However, I accept that the investigative work which informs remediation work will obviously be relevant to the quality and reliability of the remediation work in question.

133. I have dealt with the respondent’s argument regarding deficiencies in the DSI at [93]-[97] above. For completeness, in the event that s 4.14(1) was determined to apply to the DSI and investigation documents in general, I accept the submissions of the applicant as to the DSI’s acceptability under s 4.14(1) of the RH SEPP for the reasons set out in the AWS at [77]-[83].

134. With respect to the RAP, which sets out the “remediation work” proposed by this application, and its compliance or otherwise with the CLM Guidelines and NEPM, I note, and have placed weight on the fact that:

135. The RAP itself states that it has been prepared in general accordance with multiple documents which include the CLM Guidelines and NEPM (see Ex P, p 216).

136. Dr Swane addresses the particulars outlined at Contention 2(b) of the FASOFAC dealing with the RAP and its compliance with s 4.14(1) of the RH SEPP in the Third Joint Contamination Report (at Ex 13, p 6-8).

137. The SAR states that “the Auditor is satisfied that the CSM [conceptual site model] meets the NEPC (2013) requirements and is technically accurate” (SAR, Ex P, p 75) and goes on to consider the RAP’s adequate compliance with the CLM Guidelines at s 10.4 (Ex P, pp 75-77).

138. Having considered the CLM Guidelines and NEPM insofar as they are relevant to the remediation work proposed by the Amended Development Application, and having regard to the RAP itself, SAR, and evidence of Dr Swane, I am satisfied that the remediation work proposed by the RAP will be carried out generally in accordance with the CLM Guidelines and NEPM.

139. I have placed particular weight on:

140. NEPM: Vol 1: s 6(16) “Attainment of environmental outcome” which sets out the preferred hierarchy of options for clean up and/or management of contamination (Ex C, tab 6, p 240). This section contemplates consolidation and isolation of the soil by containment with a properly designed barrier if onsite destruction of the contamination or offsite disposal is not practicable, and implementation of an appropriate management strategy where the assessment indicates remediation would have no net environmental benefit or would have a net adverse environmental effect. I am satisfied that the remediation strategy proposed in respect of the Northern and Eastern Mound (capping and containing or else retention of vegetation and management) is in general conformance with this section of the NEPM.

141. NEPM: Vol 2: Sch B1: s 4.8 “Health screening levels for asbestos in soil”. I am satisfied that the HSLs adopted in the RAP are in conformance with the requirements set out in table 7 (Ex C, tab 7, p 288), including 0.01% bonded ACM by weight for HSL A, 0.05% bonded ACM by weight for HSL D, and no visible asbestos for surface soil for all HSLs. I further note the endorsement of multi-directional raking of soil to about 10cm depth and hand picking of asbestos fragments or covering with a durable hard cover at p 287, which has similarly been adopted in the RAP.

142. CLM Guidelines: s 3.5.4: Stage 3 – Site Remedial Action Plan. I am satisfied that the RAP adequately addresses the issues listed for consideration in this section.

143. For completeness, although the parties directed the Court to the NEPM for the purposes of s 4.14(1)(b) of the RH SEPP, I note that there are other guidelines presently in force under s 105 of the CLM Act which are set out in Ex C, tab 5. Insofar as the guidelines listed in Ex C, tab 5 are relevant to the assessment and determination of the Amended Development Application, I confirm that they have been considered and do not provide an impediment to the grant of consent to the proposal.

144. Therefore, the Amended Development Application is capable of being granted development consent having regard to the requirements under s 4.14(1) of the RH SEPP.

Should the Amended Development Application be refused having regard to the earthworks considerations specified in cl 7.5 of the WLEP?

139. Clause 7.5 of the WLEP relevantly provides as follows:

7.5 Earthworks

(1) The objectives of this clause are as follows—

(a) to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land,

(b) to allow earthworks of a minor nature without requiring separate development consent.

(2) Development consent is required for earthworks unless—

(a) the work is exempt development under this Plan or another applicable environmental planning instrument, or

(b) the work is ancillary to other development for which development consent has been given.

(3) Before granting development consent for earthworks, the consent authority must consider the following matters—

(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

(b) the effect of the proposed development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the proposed development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.

Note—

The National Parks and Wildlife Act 1974, particularly section 86, deals with disturbing or excavating land and Aboriginal objects.

140. The parties disagree as to whether consideration of the provisions in cl 7.5(3) of the WLEP should necessitate the refusal of the Amended Development Application. In particular, as set out in the FASOFAC, the respondent raises issue with cl 7.5(3)(b), (c) and (e).

Applicant’s position

141. The applicant relies on the document titled, Assessment Table of Clause 7.5 of Wollondilly Local Environmental Plan 2011, prepared by Dr Martens dated 29 August 2024 (Earthworks Assessment) (Ex O, tab 5) for the purposes of the consideration of cl 7.5 of the WLEP.

142. Relevant to cl 7.5(3)(c), the applicant submits that the fill or soil to be excavated relates to the borrow sites, which have been thoroughly investigated and accepted by both experts to be chemically suitable for capping purposes.

143. Relevant to cl 7.5(3)(e), the applicant relevantly argues that the unknown original source of the Unauthorised Fill is not a reason to refuse the Amended Development Application as the fill has been thoroughly investigated. Further, any excavated material that cannot be used on site will be removed to a licensed waste facility in accordance with the RAP.

Respondent’s position

144. The respondent submits that the Amended Development Application should be refused as the “construction of proposed mounds, the use of existing earthworks, and the introduction and retention of fill, will result in an unacceptable impact on the environmental functions and processes of the Site” (RWS at [175]).

145. In respect of cl 7.5(3)(b), the respondent relies on the evidence of Mr Barwick that the proposed mounds will be a permanent addition to the Subject Land, preclude any other uses of that part of the Subject Land, and subsequently limit the range of the site’s possible future uses.

146. In respect of cl 7.5(3)(e), the respondent submits that as the source of the fill remains unknown, this means that the Court “is unable to conduct any assessment or give any meaningful consideration to the source of the fill as it relates to the environmental functions and processes of the Site” (RWS at [180]).

147. The respondent submits that the Earthworks Assessment relied on by the applicant is of no assistance generally because it does not elucidate the source of the fill or provide further detail to assist with the consideration of cl 7.5(3) of the WLEP.

Consideration

148. In determining the Amended Development Application, I confirm that I have considered the matters listed in cl 7.5(3) of the WLEP. I am satisfied that the matters for consideration do not lead to a finding that the Amended Development Application must be refused.

149. This is primarily because although it is a fact that the source of fill remains unknown and I accept that this is less than desirable, I also accept the applicant’s argument that the fill has been adequately investigated to understand the quality of the fill and to determine an appropriate remediation/management strategy for the Subject Land. This head of consideration should not preclude the grant of development consent in these circumstances.

150. I have also considered the effect of the proposed development on the likely future use or redevelopment of the land, and note that the proposed development facilitates (or does not hinder) the applicant’s use or proposed use of the Subject Land as a poultry farm and depot (including the visual screening of the poultry farm and depot uses), being permissible uses in the zone. I similarly find that this head of consideration should not preclude the grant of development consent.

Does the Amended Development Application have unacceptable adverse visual impacts and is it incompatible with the character of the locality having regard to the zoning objectives in the RU2 zone and heads of consideration under cl 7.9(3) of the WLEP?

151. The objectives of the RU2 Rural Landscape zone under the WLEP are extracted below:

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.

• To provide for tourist land uses in connection with environmental, scenic or agricultural uses of land.

152. Clause 7.9(3) of the WLEP relating to “development within metropolitan rural area” relevantly provides:

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered the following—

(a) the impact of the proposed development on—

(i) the natural habitat and biodiversity, and

(ii) drinking water catchments, and

(iii) mineral and energy resources and extractive industries,

(b) whether the proposed development—

(i) preserves land for agriculture, including by providing buffers, and

(ii) prevents incompatible uses, and

(iii) maintains and enhances the distinctive character of rural towns and villages, and

(iv) protects areas of cultural, heritage or scenic value, and

(v) appropriately manages the risk of hazards including bush fire or flooding.

Applicant’s position

153. The applicant submits that the uses proposed by the Amended Development Application are permissible with consent in the RU2 zone and relies on the planning principle espoused in GBP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [115]-[119]:

“in most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.”

154. The applicant argues that the RU2 zoning objectives and considerations listed under cl 7.9 of the WLEP are provisions required to be “considered” and not “satisfied”. Further, the zoning objectives in the RU2 zone are internally inconsistent and it is not always possible, or necessary, to satisfy all of those objectives having regard to the decision in Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343 (Abret) at [42] and Pitty v Bega Valley Shire Council [2012] NSWLEC 24 (Pitty) at [121] (see AWS at [193]-[195]).

155. The applicant submits that the prior consents granted by the Court in respect of the Subject Land are relevant to determine “the rural landscape character of the land” (which the applicant asserts refers to the Subject Land itself, and not the area generally) (see AWS at [200]-[202]). The applicant asserts that the Subject Land’s prior consents “establish the baseline against which the impacts of the current DA are to be assessed” as accepted by Mr Barwick (AWS at [202]). The proposed mounds are about 3-4m higher than those previously approved, however, the landscaping also previously approved would have obscured the approved mounds in much the same way as the proposed landscaping will obscure the proposed mounds under this proposal as per the evidence of Mr Lovell (AWS at [205]).

156. The applicant relies on the VIA and associated visual montages (Ex P, tab 1) to support the argument that the visual impact of the proposed mounds will be significantly reduced following the completion and maturing of the approved and proposed landscaping works.

157. The applicant further relies on the evidence of Mr Lovell that:

158. The proposed development will not have a material impact on the “openness” of vistas to the extent that the approved landscaping (once implemented) would already close some of the vistas alleged to be impacted.

159. The proposed mounds and landscaping works that would apply to the mounds render the impact of the development and the rural character acceptable and consistent with s 3.3.5 of WDCP.

160. The proposed mounds and use of those mounds assist in screening and filtering views of the depot structures and contribute to separation between the poultry farm activities and depots.

161. There are existing approved landscaped mounds both on the Subject Land and directly across the road at 90 Westbrook Road, Bickley Vale (Bickley Vale Mound) which are now representative of the character of the locality.

162. Further, the applicant relies on the concession it says was made by Mr Barwick in oral evidence that the proposed mounds would only be noticeable (in the absence of footpaths or direct lines of sight from any dwellings) to passing motorists travelling at 80kph for a few seconds on a low speed road.

Respondent’s position

159. The respondent submits that “the proposed mounds are unduly intrusive, incompatible with and uncharacteristic of the existing landscape character, and do not protect the scenic values of the locality” (RWS at [149]). The respondent contends (at FASOFAC p 24) that the proposed development is:

160. contrary to the objectives of the RU2 zone insofar as it does not enhance the rural resource base and seeks to introduce uncharacteristic landforms and does not maintain the rural character of the land; and

161. contrary to the considerations in cl 7.9 of the WLEP relating to “development within metropolitan rural area”.

162. The respondent relies on the evidence of Mr Barwick, including:

163. the locality is dominated by extensive agricultural land uses which have established a generally open landscape vista;

164. the predominant characteristic is that the views are expansive and long range;

165. the proposed mounds will close off and foreshorten the existing views and introduce an element that is uncharacteristic of the landscape character of the area; and

166. the previously approved and proposed planting is not indicated or required to be visually impenetrable.

167. The respondent submits that:

168. The planting approved by the Poultry Farm Consent has not generally been implemented in any case and the planting which has been approved but not implemented cannot contribute to the character or desired future character of an area.

169. The visual montages appended to the VIA relied on by the applicant in Ex P (tab 1) are agreed not to accurately reflect the approved landscaping, nor proposed landscaping and should be given no weight.

170. The Bickley Vale Mound is located behind farm buildings when viewed from the road so has no visual screening purpose from the public domain.

171. The only purpose of the proposed mounds is to “use the fill material, which has been unlawfully imported to the Site, and to avoid the need to remove that material and pay the costs of doing so” (RWS at [168]).

Consideration

162. I confirm that I have had regard to the RU2 zone objectives and the heads of consideration under cl 7.9(3) of the WLEP in the determination of the Amended Development Application.

163. Having regard to these prescribed considerations, I am satisfied that development consent can be granted to the Amended Development Application.

164. I have placed significant weight on the fact that large landscaped mounds have already been approved in the locality (both on the Subject Land itself and the Bickley Vale Mound) and that the Approved Mounds and Bickley Vale Mound form part of the character of the area. I accept the applicant’s submission that the Approved Mounds are a relevant consideration to the character of the area, having regard to the decisions in Abret and Pitty. The proposed mounds are therefore not inconsistent with the character of the area, which now necessarily includes large landscaped mounds.

165. I have also placed weight on the fact that it was agreed by Mr Barwick that if the landscaping had been implemented in accordance with the previous consents, the vistas would only be available as gaps and glimpses to passing motorists travelling at 80kph for a few seconds (T 10 December 2024, p 52 line 50 to p 53 lines 1-26) and the termination of the viewpoint would be at approximately 70m (T 10 December 2025, p 55 line 1-15).

166. I therefore accept the applicant’s argument that the proposed landscaped mounds will not materially affect the vistas that would be available if all works under the existing consents had been implemented and it is appropriate to approve the Amended Development Application having regard to the zoning objectives in the RU2 zone and considerations under cl 7.9(3) of the WLEP.

Consideration of s 4.15(1)(b), (c), (d) and (e) of the EPA Act

167. The parties disagree as to whether the Amended Development Application should be approved having regard to s 4.15(1)(b), (c) and (e) of the EPA Act. I will address each head of consideration as well as the submissions made by objectors as referred at [33] above.

Applicant’s position

168. The applicant submits that the proximity of the proposed mounds comprising part of the Amended Development Application to residences located on the Subject Land should not lead to the refusal of the proposal and that the Subject Land is suitable for the proposed development. This is because (see AWS at [137]- [148]):

169. the residences will be separated from the proposed mounds by way of proposed fence and various biosecurity measures;

170. the residents on the Subject Land will be temporarily relocated during the earthworks if the proposal is approved;

171. the risk from airborne asbestos at the Subject Land is “acceptably low” as conceded by Mr Clay in oral evidence; and

172. the HHRA prepared concludes that the risks to human health from the proposed mounds is acceptable based on the guidance in the NEPM.

173. With respect to the public interest, the applicant contends that no positive contention has been raised by the respondent.

174. The applicant goes on to assert that the significant truck movements and traffic implications from disposal of the Unauthorised Fill in accordance with the Class 4 Orders if the proposal is not approved are relevant to the public interest. Further, the applicant claims that the cost of this removal would be prohibitive, lead to the liquidation of the applicant, and would ultimately mean that the works ordered in the Class 4 Proceedings would never be carried out.

Respondent’s position

171. The respondent conversely contends at Condition 3 in the FASOFAC that the Amended Development Application “should be refused as there has been an inadequate analysis of the impacts of the proposed remediation work on the existing residential uses on the Site and the Applicant has been unable to establish that there will not be unacceptable impacts on those residential uses or that the suite is suitable for the remediation work”.

172. The respondent asserts that the deficiencies in the DSI and RAP, scale and movement of asbestos waste, and proximity of residences to the proposed final mounds demonstrates that the Subject Land is not suitable to accommodate the proposed development.

173. The respondent submits that the applicant’s asserted matters of relevance to the consideration of the public interest under s 4.15(1)(e) of the EPA Act, namely the cost of removing the Unauthorised Fill, are irrelevant. These costs are not impacts arising from the development the subject of the development application (as is the test in s 4.15(1)), but would in fact be costs arising from the refusal of the development application. This matter was authoritatively dealt with by Preston CJ in the 2023 Decision (at [178]).

174. Finally, notwithstanding this position:

175. the potential future costs of the applicant if the proposal is refused are personal to the applicant and similarly irrelevant to the public interest; and

176. potential traffic movements etc associated with disposing of the Unauthorised Fill offsite were the subject of the Class 4 Proceedings, with orders made on this basis.

Consideration

175. With respect to s 4.15(1)(b) and (c) of the EPA Act which I consider to be closely related in this case, I accept the applicant’s submissions that the Subject Land is suitable for the proposed development, including having regard to the consideration of the potential impacts on adjoining residents for the reasons set out at [168] above. I have placed significant weight on the findings of the HHRA which states that (at Ex P, p 305):

There would need to be around 70kg of bonded ACM present within the surface soil of the mound, before the calculated risks are [sic] over the acceptable level, which as noted above, is equivalent to background. This is over 4,000 pieces of bonded ACM where each piece weighs 17g. It is very unlikely that this level of bonded ACM has not been identified to date.

176. I further accept that the additional proposed mitigation measures are appropriate in the circumstances including the temporary relocation of residents (RAP p 240) and the proposed fence required by Condition 17(22) of the Agreed Conditions.

177. The only impacts pleaded by the respondent, other than contamination related, are visual, which I have dealt with above. I have considered the likely impacts of the development including environmental impacts on both the natural and built environments and social and economic impacts in the locality, and noting my earlier findings regarding the acceptable visual impacts of the proposal, find no reason to prevent the grant of development consent under this head of consideration.

178. With regard to s 4.15(1)(e) of the EPA Act, I reject the applicant’s submission that the costs to the applicant of the Court refusing the Amended Development Application are relevant to any head of consideration under s 4.15(1) of the EPA Act for the reasons given by the respondent. Further, I place no weight on the threatened position of the applicant that the works ordered by the Class 4 Orders would not be carried out if the proposal the subject of these proceedings is refused. It is worth noting here that the Class 4 Orders were agreed to by the applicant, so it is rather extraordinary for the applicant to now threaten non-compliance with those agreed orders as a matter that should be factored into the public interest.

179. Notwithstanding this, I have considered the public interest and have determined that development consent may be granted to the Amended Development Application primarily on the basis of its permissibility in the RU2 zone and my findings as to acceptability of the:

180. remediation strategy proposed;

181. human health risks;

182. visual impacts; and

183. other merit considerations (including traffic, biodiversity, bushfire, heritage and stormwater – considered further below).

184. Section 4.15(1)(d) of the EPA Act also requires the consideration of any submissions made in response to the notification of a development application. As set out at [33], the Development Application was notified from 5 November 2021 to 3 December 2021 and seven submissions in objection were received.

185. In considering and determining the Amended Development Application, I confirm that the objections to the proposal set out at [33] (many of which overlapped with the respondent’s contentions) have been considered and addressed where relevant.

Remaining jurisdictional and merit issues

182. No jurisdictional or merit issues other than those considered above were raised by the respondent in the remitted hearing.

183. The parties agree that the BC Act applies to the Amended Development Application. I am satisfied that it is appropriate to grant development consent to the proposal having regard to the provisions of the BC Act on the basis that:

184. the Amended Development Application is accompanied by a Biodiversity Development Assessment Report prepared by LandEco Consulting dated 7 October 2022 (BDAR) (Ex A, tab 4) in accordance with ss 7.7(2) and 6.12 of the BC Act;

185. the BDAR addresses the likely impact of the proposed development on biodiversity values in accordance with s 7.13(2) of the BC Act which I have considered; and

186. the Agreed Conditions require the applicant to retire biodiversity credits in accordance with the BDAR (see Condition 22) in accordance with s 7.13(3) of the BC Act.

187. The Subject Land is located in the Hawkesbury-Nepean River catchment for the purposes of (now repealed) SREP 20. Having regard to ss 1.4 and 6.5 of the BC SEPP, the relevant provisions of SREP 20 continue to apply to the Amended Development Application as transferred into the BC SEPP on 2 December 2021 in Chapter 9. I confirm that I have considered the matters required to be considered in Pt 2 of SREP 20 (Pt 9.2 of the BC SEPP) having regard to pp 10-11 of Ex U. I have also considered the controls set out in Pt 3 of SREP 20 (Pt 9.3 of the BC SEPP) to the extent they are relevant, having regard to pp 11-12 of Ex U.

188. Similarly, Ch 3 of (now repealed) Koala SEPP (now relevantly contained in Ch 3 of the BC SEPP – see s 1.4) is also engaged due to the location of the Subject Land. It does not appear to be disputed, and I accept that, the proposed development will not impact upon any core koala habitat and there is no local population of koala in the locality.

189. The parties also agree that the WLEP and WDCP apply to the Amended Development Application. I accept the undisputed assessment of the matters required to be considered and/or satisfied under the WLEP as set out in Ex U insofar as they relate to the following provisions of the WLEP:

190. 5.10 heritage conservation;

191. 5.21 flood planning;

192. 7.1 essential services; and

193. 7.3 water protection.

194. I similarly accept the undisputed assessment of the matters required to be considered under the WDCP as set out in Ex U.

195. I rely on the documents comprising the Amended Development Application, the assessment carried out in Ex U, and the views of the relevant experts in the Joint Traffic Report, Joint Stormwater Report and Joint Heritage Report. I also rely on the respondent’s submission that the principal issue in this case is the acceptability of the reuse of the mounds by reference to the provisions of the RH SEPP and that “Council does not have any issue with the proposed depot use or the other ancillary aspects of the development application” (T 9 December 2024, p 5 line 20-24).

196. For completeness, although not raised in Ex U, I confirm that s 4.14(1) of the EPA Act applies to the Amended Development Application as the Subject Land is mapped as bush fire prone land. I am satisfied that the proposed development conforms to the specifications and requirements of Planning for Bushfire Protection having regard to the Bushfire Risk Assessment prepared by Blackash Bushfire Consulting dated 31 August 2021 (Ex A, tab 5) and advice and requirements of the NSW RFS which have been included at Condition 1(5) of the Agreed Conditions.

197. I am satisfied that all relevant jurisdictional and merit issues have been addressed and there is no impediment to the grant of consent to the Amended Development Application.

Conditions

191. As set out above, the parties have provided Agreed Conditions in the event that development consent is granted to the Amended Development Application. With the exception of correcting three numerical typographical errors (namely to Condition 1(1) and Condition 10(3) and (4)), I am satisfied that the Amended Development Application should be approved subject to the Agreed Conditions.

Conclusion

192. Finally, it is important to state that this matter involves the placement of Unauthorised Fill on the Subject Land in circumstances where the applicant has not provided information as to its origin or history. The placement of fill on land without lawful approval is not to be congratulated or encouraged. The conduct of the applicant rightly raises questions regarding the concept of “waste” and potentially triggers provisions or considerations under the Protection of the Environment Operations Act 1997 (POEO Act).

193. However, these proceedings concern the Amended Development Application and the planning regime established under the EPA Act. This is not a prosecution or appeal under the provisions of the POEO Act. The EPA was notified of the Unauthorised Fill on at least two occasions (see for example, Ex C, tab 10) and elected not to take any action. This is a matter for the EPA, and not these proceedings.

194. Ultimately, I have considered the matters that are required to be considered under s 4.15(1) of the EPA Act (to the extent they are of relevance) and have determined, for the reasons set out above, that the Amended Development Application should be approved.

Orders

195. The Court orders that:

196. The appeal is upheld.

197. Development consent is granted to Development Application DA/2021/984/1, as amended, for the change of use of three existing sheds, construction of a new shed, earthworks, landscaping and tree removal on land legally identified as Lot 5 in DP 260390, known as 440 Cawdor Road, Cawdor, subject to the conditions in Annexure A.

198. The exhibits are returned, except for Ex 12, 13, 17, A, O, P, S and U.

N Targett

Commissioner of the Court

Annexure A (383 KB, pdf)

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Amendments

16 July 2025

Annexure A attached.