Toner Design Pty Ltd v Newcastle City Council

The Planning regime 6The site's zoning, under Newcastle Local Environmental Plan ('LEP') 2003, was partly 2(a) Residential and partly 7(c) Environmental Investigation, and, under the Newcastle Local Environmental Plan 2012 ('2012 LEP'), which was in draft at the time of Council's assessment of the project, partly E3 Environmental Management and partly E2 Environment Conservation. Under the 2003 LEP, the residential project component, as such, would be on the 7(c) land, but seniors housing is prohibited in both E2 and E3 zones under the 2012 LEP, and must rely on the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ('SEPP') for development consent. 7On 16 November 2010, the Director General of the Department of Planning issued a site compatibility certificate, pursuant to cl 25 of that SEPP. That certificate will expire on 16 November 2012, hence the expedition of the appeal, and the urgency of the present separate question. An application was made by the applicant for a new certificate, apparently around the time of the launching of the appeal, but no decision has yet been made.

The Project DA 8The relevant development application (DA 10753 - Exhibit T1) was lodged on 20 December 2010. It specified the "type of development" as "building or structure", "demolition", and "earthworks", and sought consent to: a. remediate a portion of the site to a standard suitable to support residential use; (Area A or 1 - for simplicity referred to herein as the RED area) b. use another portion of the site for the containment of contaminated soils excavated from the site in 2 capped mounds of contaminated material. Approximately 27,480 cubic metres of soil are proposed to be excavated and placed in the capped mounds; (on Areas B1/B2, to which I will refer as the WHITE areas) c. refill the excavated area with clean fill to the required flood level; (Areas 2, 3, and 4, to which I will refer as the GREEN area) d. erect a Seniors Living Development including 29 x 2 bed, 17 x 3 bed dwellings and community hall (staged development) on the remediated portion of the site. (the RED area) (The area numbering, and the colour "code" in the above, is drawn from figure 4.2 of the RAP, but the numbers, and the letters 'A", "B", etc, are used on various figures.)

The RAP 9The RAP of August 2010 indicates that the site has been comprehensively assessed. The underground fuel tanks were removed (from the RED area), but heavy metals and some asbestos remain (p10). 10The RAP says (p4) that, in its current state, the site poses no risk to the environment or neighbouring properties, and its remediation is not an "environmental imperative". Remediation options, both on-site and off-site, are canvassed (pp12-13), with "cap and contain" preferred. A detailed plan is developed for the work (pp13-15), and for the longer-term management of the site (p20).

The SEE 11A Statement of Environmental Effects ('SEE' - Exhibit C1) was prepared in June 2011. 12The SEE says (p10) that: The remediation will actually improve the site by containing the excavated material within compacted and vegetated mounds that are graded to increase the ration of run-off to infiltration. In its proposed future zoning and use, the site will not require further remediation. As stated in the ... RAP ... a long term management plan will be prepared following remediation, outlining any future monitoring and/or management requirements. It is likely that the only requirement for future monitoring is one which checks the integrity of the mound (i.e. addresses any potential erosion). Lots 2 and 111 will then both be owned by the owner of the seniors living development. 13In section 3.9.3 (at p16), the SEE continues: In its present state, the OneSteel property contains contaminated fill material dispersed over a reasonably large proportion of the site. Due to the dispersed nature of the pollutants (mainly metallic by-products from the lead and zinc smelting process and impurities associated with reject coal wash material), there is an ongoing risk of pollutant emissions from the site via the air (as dust), via groundwater, and via surface overflow. The risks translate into possible impacts on human health and the environment via pathways such as ingestion or absorption. While there are potential risks of adverse impacts to humans and the environment, the actual risks have been assessed as being very low ... and the site does not require remediation for it to remain unoccupied or to have its present temporary use by Energy Australia. However remediation is required for any residential occupation of the site. Also, the construction of the mound and the regrading of low spots on the site will further reduce the already low contamination risks of the non-residential area of the site. 14In section 3.9.4 (at p17), the SEE notes that "leaving the site unremediated is not considered to be the most desirable outcome for the community". 15In section 5.13 (at p41), the SEE continues: The Site Auditor has been involved in the initial discussion of the revised project, in the formulation of the additional groundwater investigation and has reviewed the groundwater reports findings. The Site Auditor fully supports the revised remediation proposal. As a result, the project will include the excavation of contaminated soil with subsequent re-filling, re-grading and surface stabilisation with imported fill (VEHM) as necessary, treatment of excavated materials as required, the emplacement of excavated material and possibly other on-site materials into a mound that will be sealed with appropriate environmental controls applied.

Council Assessment and Refusal 16Additional information was required, and Council officers had a series of negotiations or discussions with the applicant, eventually recommending approval (Exhibit T3). However, the Council resolved, on 13 March 2012, to refuse the DA, and the notice of determination states the following reasons for refusal (emphasis mine):

1. the site of the proposed development is not suitable for the proposed development due to contamination [Section 79C(1)(c) Environmental Planning and Assessment Act 1979];
2. the site of the proposed development is not suitable for the proposed development due to flooding [Section 79C(1)(c) Environmental Planning and Assessment Act 1979];
3. submissions received in response to public notification of the development application have raised issues of a nature and extent that establish that the proposed development will have unreasonable impacts [Section 79C(1)(d) Environmental Planning and Assessment Act 1979]; and
4. the proposed development is contrary to the public interest [Section 79C(1)(e) Environmental Planning and Assessment Act 1979] 17A new Council was elected at the 8 September 2012 Local Government elections and commenced operations only recently. The next meeting is scheduled for 13 November 2012.

The present appeal 18The Class 1 appeal was lodged on 17 September 2012, one day before the expiry of the statutory six month limitation period, and Council quickly briefed external experts on the complex contamination and flooding issues involved. 19On 5 October 2012, the applicant filed a motion for expedition of the hearing, and expedition was granted on 12 October by the Acting Registrar, who also gave a series of directions, including fixing a preliminary conference under s 34 for 29 October 2012, and a hearing for 8 November 2012. Commissioner Hussey was allocated to both fixtures.

The question of designated development is raised 20The Council had filed its Statement of Basic Facts and Contentions ('SFC') on 19 October 2012. Contention 1 relevantly asserted - the applicant says for the very first time - that the proposed development is "designated development", meaning that consent cannot be granted until/unless an environmental impact statement has been prepared and exhibited according to the Environmental Planning and Assessment Act 1979 ('the EPA Act').

The Section 34 process 21Commissioner Hussey conducted the preliminary s 34 conference on 29 October 2012, and accepted into evidence a joint statement on the questions of flooding prepared by Dr Phillip Haines, on behalf of the applicant, and Mr Mark Babister, on behalf of the respondent. 22The Commissioner prepared a conference report in the following terms: 1 Drainage contention discussed, resolved and deleted.

2 Contamination remains substantive issue, with particular reference to the status of the proposed "storage area" on which the contaminated soil is to be placed and capped, as to whether this constitutes Designated Development.

3 Motion to be lodged by A on Designated development question i.e. Contentions 1 and 2.

4 Matter listed for hearing 8, 9 Nov and parties agree to Hussey determining matter, if no s 34 Agreement in meantime.

5 S34 adjourned until 9.30, 8 November 2012, proceeding to determination if no agreement.

.1 Parties to file Joint Expert Contamination Report by 2/11/12.

The separate question arises 23A Notice of Motion ('NOM') was filed on the next day (30 October), on behalf of the Council, seeking an order that the question of whether or not the development application is an application in respect of designated development be determined as a separate question. 24If the answer to the separate question of law is determined in the affirmative, the NOM asked that the appeal be dismissed. 25The parties agreed on 31 October that I, as Duty Judge, should order the separate question, and I directed that the relevant experts (Mr Greyson for Council, and Dr Zines for the applicant) confer on a disagreement between counsel as to a proposed agreed statement of facts. The parties and experts came back to Court next afternoon (1 November), and I heard evidence and argument on the question, which will now be answered in what follows.

Designated Development 26In s 4 of the EPA Act, "development" means (emphasis added): (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, 27Section 77A (which s 4 calls up to define "designated development") provides as follows: 77A Designated development (1) Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations. (2) Designated development does not include State significant development despite any such declaration. 28The following particulars were provided by the SFC, in respect of Contention 1, which asserts that the development proposed in this matter is "designated development" (see [20] above): (a) The proposed development involves works for the on site treatment and storage of more than 30,000 cubic metres of contaminated soil originating exclusively from the site on which the development is located, namely

i. Approximately 27,480m3 of contaminated soil is to be relocated to the site of the proposed mounds;

ii. Approximately 14,700m3 of contaminated soil is already present at the location of the proposed mounds;

iii. Together approximately 42,180m3 of contaminated soil is proposed to be treated by capping and stored on site.

(b) The proposed development involves works for the on site treatment of contaminated soil originating exclusively from the site on which development is located which disturb more than an aggregate area of 3 hectares of contaminated soil, namely:

i. Approximately 2.93 hectares of contaminated soil is to be disturbed by the relocation of contaminated soil to the proposed mounds

ii. Approximately 1.47 hectares of contaminated soil at the location of the proposed mounds is to be disturbed by the preparation of the areas of the proposed mounds including removal of vegetation and levelling;

iii. Together approximately 4.4 hectares of contaminated soil is proposed to be disturbed. 29These numerical particulars are relevant to the Court's consideration of the application of Schedule 3 of the Environmental Planning and Assessment Regulation 2000 ('The Regulation'), dealing with "designated development". 30Essentially, as s 3.2 of the SEE makes clear, the triggers for the Schedule's application to the subject site requires the inclusion, in both the volumetric and area calculations, of the WHITE lands (the site proposed for the mounds). 31Clause 4 of the Regulation, which calls up Schedule 3, relevantly provides as follows: 4. What is designated development? (1) Development described in Part 1 of Schedule 3 is declared to be designated development for the purposes of the Act unless it is declared not to be designated development by a provision of Part 2 or 3 of that Schedule. ... 32The present proposal does not involve any contaminated material from other than the subject site. 33Part 1 of Schedule 3, which defines designated development, includes the following clause (emphasis mine): 15 Contaminated soil treatment works Contaminated soil treatment works (being works for on-site or off-site treatment of contaminated soil, including incineration or storage of contaminated soil, but excluding excavation for treatment at another site): ... (c) that treat contaminated soil originating exclusively from the site on which the development is located and: (i) incinerate more than 1,000 cubic metres per year of contaminated soil, or (ii) treat otherwise than by incineration and store more than 30,000 cubic metres of contaminated soil, or (iii) disturb more than an aggregate area of 3 hectares of contaminated soil. 34Part 3 of the Schedule is headed "What is excepted from designated development?", and includes (emphasis mine): 37A Ancillary development (1) Development of a kind specified in Part 1 is not designated development if: (a) it is ancillary to other development, and (b) it is not proposed to be carried out independently of that other development. (2) Subclause (1) does not apply to development of a kind specified in clause 29 (1) (a). (Clause 29 deals with sewage systems and sewer mining systems, not relevant to the present proceedings. Clause 29, in its present form, and cl 37A were added to the Schedule by amendments, gazetted on 1 March 2007, the purposes of which were stated to be: (a) to remove storage facilities for sewage or effluent and some small-scale sewerage systems or works (including those that reuse sewage or effluent) from the categories of development that are prescribed as designated development, and (b) to make it clear that (apart from some sewerage systems or works) ancillary development (which would otherwise be considered to be designated development) is not designated development if it is ancillary to other development and is not proposed to be carried out independently of that other development.) 35The relevant provisions of the Regulation were considered by Talbot J in WRF Property Pty Limited v Armidale Dumaresq Council [2003] NSWLEC 223 ('WRF'), to which both parties referred in their submissions to me on the question. 36In that case there were RAPs and other environmental management plans ('EMP') in place, a "capping and containment" remediation strategy had been adopted, and the ANZECC requirements were considered. There were "hot spots" to be removed, and one risk to be managed was presented by "gasworks wastes", which may cause "volatile emissions". An "engineered cap" was to be placed over a "containment cell", and gases were to be released at controlled external areas (see [20] - [22] of Talbot J's judgment). Clearly, on the facts, there were greater environmental challenges to be faced than in the present case. 37His Honour dealt with all the technical issues and then said (emphasis mine): 78 The first respondent seeks to establish that the proposal for the construction of the containment cell in Area 1 and the capping layer in Area 2 does not constitute treatment and storage of contaminated soil on the basis that the proposed works will not "treat" contaminated soil. Mr Craig's argument is that the soil will not be subject to any chemical or other process or action to eliminate or reduce the contaminants in the soil and there will be no physical or chemical change to the soil. This submission, in the Court's view, overlooks the natural process of attenuation over time, the movement of groundwater and the ventilation of gases which, together with the removal of hot spots, will have the effect in both the short and long term of changing the constituents in the soil and the level of contaminants. Mr Craig submits that while this may constitute "treatment" of the contaminants it is not treatment of the soil itself. It is difficult to understand how the treatment of contaminated soil can be regarded as distinct from a treatment of contaminants in soil when it is the latter that characterises the soil as contaminated soil. The two aspects are integrated and should not be treated in isolation.

79 Both parties made reference to the decision in Remath Investments [No. 6] Pty Limited v Botany Bay City Council [No. 2] (Talbot J, NSWLEC, 11 December 1996, unreported). There are two significant distinguishing factors between what the Court is now addressing and the circumstances as they applied in Remath. Firstly, the definition of contaminated soil treatment works in Sch 3 to the EPA Regulation has been amended. Secondly, the proposal at the Remath site is similar to what is presently proposed only to the extent that the applicant in that case proposed a cap over the site.

80 The Court is satisfied that the development consent granted by the first respondent authorises the on-site treatment of contaminated soil.

81 The Court is also satisfied that the construction of the purpose-built containment cell will provide a chamber for storage of contaminated soil. It is not inconsistent with the accepted meaning of the word "store" as a means of providing for the safe-keeping of material for an indefinite period. The noun "storage" can have a corresponding and consistent meaning of the fact of storing for the purpose of maintaining material in a separated state. Although the particulars provided with the points of defence assert that the remediation works do not involve the treatment and storage of more than 30,000 m3, the Court does not understand the first respondent to claim that there is less than 30,000 m3 of contaminated soil on the site. The evidence is to the contrary.

82 Notwithstanding that there will be no importation of materials from off-site, the Court is satisfied that the proposals are relevantly works for on-site treatment and storage of contaminated soil. The works will treat contaminated soil originating exclusively from the site by means other than incineration. The containment cell proposed for part of Area 2 will comprise storage of contaminated soil. The volume of soil which is contaminated and is to be the subject of treatment and storage exceeds 30,000 m3.

83 The Court is satisfied, on the balance of probabilities, that the development application is in respect of contaminated soil treatment works within the meaning of that term as it is used in cl 15 of Sch 3 to the EPA Regulation and therefore development consent is required. 38In the unreported 1996 Remath [No 6] judgment, to which his Honour referred (at [79] in the above extract), His Honour had said (at p 6), in concluding that he was not satisfied that the test of designated development was made out (emphasis mine): It is the council which asserts that what the applicant proposes will amount to designated development. The evidence does not disclose that more than 30,000 m3 will be excavated. The prospect is that minimal amounts of soil will be moved around the site. The pre-existence of the soil on the site disposes of any question of storing the contaminated soil. Accordingly, for the purposes of cl3(b) of the definition, contaminated soil will not be relevantly treated or stored on the site. It is equally certain that the proposal does not involve disturbing more than an aggregate area of 3 ha of contaminated soil.

The expert evidence 39The respective experts prepared a joint report (Exhibit T4 - presented in the form of a revised Statement of Agreed Facts), and they gave concurrent oral evidence. The joint report relevantly states as follows: 11. Figure 4.1 of the RAP depicts the area and depths of contaminated soil on the site the subject of the Application. That area is at least 4.4 hectares. The volume of contaminated soil is at least 42,180 cubic metres.

12. Figure 4.2 of the RAP depicts the areas and volumes of contaminated soil to be excavated. A total volume of 27,480 cubic metres is to be excavated, from a total area of 2.93 hectares.

14. After removal of the contaminated soil, the area previously excavated as shown in Figure 4.2 is proposed to be replaced with clean fill (being either ENM or VENM), as shown in Figure 5.1. The depths of the fill are depicted in Figure 5.1. The red areas on Figure 5.1 are areas where there is proposed to be the removal of 250mm of soil (to be placed in the mounds) followed by the replacement with 250mm of clean fill as a surface barrier reducing any potential exposure pathways between site users at the surface and the material underneath the 250mm of clean fill, and it is proposed that contaminated soil will remain underneath the red areas after completion of the development. In Area A, where there is deeper filling indicated in colours other than red, all of the contaminated soil is proposed to be removed. This area will be reinstated with imported clean material to achieve a final RL of 3.9m. The contaminated soil excavated as depicted on Figure 4.2, is eventually to be placed into the "Fill Zones" depicted on Figure 5.8. It is proposed first to clear the vegetation from the proposed fill zones and to level the proposed fill zones to ensure there are no vacant spaces (including voids which could result from decomposition of vegetation) at the bottom of the mounds which could otherwise be the future cause of subsidence in the mounds. This can be affected by filling without other earthworks or disturbance to the material below the mounds except for the removal of vegetation. The excavated contaminated soil derived from outside of the fill zones is proposed to be mounded, compacted, and then capped with a layer of clean fill. The area of the mounds is 1.47 hectares.
15. The volume of contaminated soil under the mounds, which originates within the area of the "Fill Zones" (ie, does not originate form the excavated area depicted in Figure 4.2) is at least 14,700 cubic metres.

16. Without prejudice to the contentions that the Council wishes to make, the Applicant agrees that: (a) the volume of contaminated soil excavated as depicted on Figure 4.2 is being "managed" and "stored"; (b) the effect of the proposal upon the volume of contaminated soil under the mounds, as described in paragraph 15, is that (by placing the mounds on top of that volume) the contaminated soil under the mounds will not be subject to direct exposure, and will benefit from any reduction in infiltration resulting from the overlying mounds; The Applicant maintains that material under the mounds does not require remediation for the purposes of this proposal and is not subject to regulation by the EPA (refer relevant correspondence). The positioning of the mounds above will reduce but not eliminate the potential for infiltration from rainfall events into the material below the mounds. The effects described above are consequential to the development but not a primary objective of the remediation of the site. The Respondent maintains that the remediation of Area B is part of the proposal, as stated in Section 1.2 paragraph 6 of the SEE "Area B would be suitable for use as either Open Space or some form of Environmental Protection". Also, it has not been demonstrated by any investigations reviewed by the Applicant that if Area B was not remediated it would be suitable for use as either Open Space or some form of Environmental Protection. The Applicant and Respondent acknowledge that, as agreed in joint conference on 29 October 2012, the Remediation goals for Area B are to be clarified in the Detailed Design Report. The land use scenario will be further defined, consistent with land uses approved under E2 and E3 zoning, and validation procedure established considering the area will be managed under an EMP as proposed. (c) The volume of contaminated soil under the mounds, as described in the paragraph 15, is likely to have similar contaminant characteristics to currently existing fill material present on much of the rest of the site.

17. The contaminants presently in: (a) the volume to be excavated, as described in paragraph 12; and (b) the volume of contaminated soil under the mounds, as described in the paragraph 15,

currently present a potential risk of causing harm to the environment by mobilisation, including by leaching to "perched" groundwater (if present), by physical disturbance, and by wind erosion; leading to potential risk to human health resulting from subsequent exposure. It has been demonstrated that the leachate is not impacting the underlying groundwater which lies beneath a layer of confining clay underlying the fill material, and there are elevated dissolved metal concentrations (above ANZECC 2000) naturally occurring in the deeper groundwater system. There is not reported use of groundwater and no use of groundwater is intended on site, and therefore the risk of exposure to human health from groundwater beneath the site does not exist. The environmental management measures during construction, as outlined in the RAP, will further minimise the potential of exposure to air borne contaminants (if any) arising from wind erosion.

18. The site is privately owned and therefore has limited risk arising from physical disturbance. Similarly, the risk of "mobilisation" by wind erosion is very low. In respect of both of the volumes of contaminated soil referred to in paragraph 17, the effects of the proposal is to effectively eliminate the contaminant mobilisation pathways of physical disturbance and wind erosion, and to greatly reduce the risk of leaching to groundwater. The contamination on the site which is there now will remain on the site but in a different configuration. The shape of the mounds reduces but does not completely eliminate the amount of infiltration into the on-site contamination, which subsequently reduces the amount of contact by infiltrating waters with the contaminated soil and reduces the potential for leaching. 40During their oral evidence, both experts adhered to what they had agreed in the preparation of the above. The RED area needs to be "safe" for residential development. None of the GREEN or WHITE areas will be public lands, but they will be available for recreational human use - by residents in the project and their visitors. 41All three areas of the site are to be dealt with differently, and there was much semantic debate during the evidence and submissions, regarding use of the words "treat", "store", "disturb" "work", "works", "process" etc. 42The whole of the subject site is contaminated, and it is proposed to deal with it by a range of what Mr Larkin described (at T p 39, LL 27-30) as "activities involving disturbance of a large area of contaminated soil or the treatment and storage of a large volume of contaminated soil [which] are by nature...capable of having great impact on the environment... [and] require particular levels of management", making the development of the site "designated development". 43The following "processes" are involved: (a)Removal of all vegetation; (b)Excavation of all contaminated soil from the RED area; (c)Excavation of the top 250mm of the GREEN areas; (d)Levelling of the WHITE areas for the proposed mounds; (e)Emplacement and compaction of all contaminated excavated material into the mounds; (f)Refilling of the RED area, and resurfacing of the GREEN areas, with VENM or ENM; and "capping" of the mounds. 44Clearing of vegetation and excavation of soil will require employment of mechanical means. Excavated materials will be moved on to the contaminated WHITE area, and compacted, and soil-covered mounds will be established to cover them. 45The fully remediated RED area will be clean-filled, and so will the shallow excavated GREEN areas, by ENN/VENM, to minimise, if not eliminate, any risk of a "pathway for human contact with contaminants", and reduce the "potential for mobilisation of contaminants into the environment". 46The WHITE area mounds will have the additional protection afforded by "capping", which would be, in Mr Gregson's view, of a "higher engineering standard" than that achieved by clearing and covering on flatter land, with a view to reducing water infiltration, contact between contamination and "the elements", and possible contaminant dispersal. Good practice requires such mounds to be "free draining", and the proposed sloping, shaping, and capping will eliminate ponding.

Consideration 47The real contest revolves around whether cl 37A provides, as Mr Howard argues, a "complete answer" to Mr Larkin's case that cl 15 is engaged by the DA before the Court. 48All the processes involved in the site preparation phase of the development are "works", and, in combination, involve bringing about some change to the contaminated soils, if not to the contamination itself, and, Mr Larkin argues, involve "treatment" and "storage" within the meaning of cl 15(c) of the Regulation. He also argues that those two processes are not mutually exclusive, and can overlap - "storage" can be, but is not always, "treatment", and "treatment" may or may not involve "storage". 49Mr Howard contends that cl 15(c) is not engaged, and that, consistent with Talbot J's reasoning in WRF (see [35] - [37] above), "storage" of soils, as in "containment", without any application of a process or substance to them, to bring about some change in them, cannot amount to "treatment", any more than leaving them in situ, as with the soils under the surface of the WHITE areas, amounts to a "treatment", even though Talbot J recognised that, in situ, natural processes occur. Mr Howard draws attention to the inclusion of the conjunctive "and" in cl 15(c)(ii). 50The creation of the mounds is a "storage" measure but the compaction of the materials, and their "capping", and their "shaping" to ensure "free drainage", amount to "treatment", and, contrary to Mr Howard's submissions, I believe that their establishment on top of existing contamination amounts to a "treatment" of that material as well, as it adds to the safety of humans and the environment. 51The actual wording of the statutory definition of "development" negates several of the submissions made by Mr Howard. He failed to carefully distinguish what was "a work", as mentioned in s 4, from what might be considered "a works", as in a premises or facility, establishment, or undertaking, with a purpose: Parramatta City Council v Brickworks Ltd [1972] HCA 21, 128 CLR 1, cf Merri Creek Quarry Pty. Ltd. v Foletta [1951] HCA 12, 82 CLR 347 (and see also T p 46, LL 15-18). 52He, in fact, descended to a level of specificity of "activities, transactions or processes", which was proscribed by Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305, upon which he relies. See also Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, 151 LGERA 400. 53True it is that all of the earthworks proposed are being undertaken to make the site suitable for development of the proposed seniors' living project, but, although they vary in intensity across the various sectors of the site, and in the areas of land affected, they are collectively substantial, none of them could be regarded as de minimis, and, they will "disturb" the whole of the site. 54The insertion of cl 37A in Schedule 3, on 1 March 2007, followed the Court of Appeal's decision in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323, 149 LGERA 360, which dealt with some conflicting authorities in this Court, following Pain J's decision in Maxwell v Hornsby Council [2002] NSWLEC 92, 120 LGERA 386, in the context of sewerage systems forming part of development proposals. 55That line of authority reviewed leading decisions on the characterisation of development, dating back to Glass JA's seminal decision in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157, and including CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270, Macquarie International Health Clinic Pty Ltd v University of Sydney, (1998) 98 LGERA 218, Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404, and others, many of which I also surveyed at length, in Bardsley-Smith v Penrith City Council [2012] NSWLEC 79, especially at [229] - [248]. 56Mr Larkin submits, and I accept, that cl 37A abrogated the decision in Chase, and reinstated and reinforced the appropriateness of the principles laid down in, particularly, O'Donnell, namely that the test of the concepts of "ancillary" and "independent" development/use (including any allegation that one might "subserve" another) is objective in character, is a question of fact and degree in all the circumstances, and is to be applied from a town planning perspective.

Conclusion 57The earthworks component of the proposal before the Court is "designated development". 58The Court file, including the exhibits before me, is returned to Commissioner Hussey. 59The costs of the separate question are reserved. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2012