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.