Muscat Developments Pty Ltd v Wollondilly Shire Council [2022] NSWLEC 1682

Land and Environment Court New South Wales

Medium Neutral Citation: Muscat Developments Pty Ltd v Wollondilly Shire Council [2022] NSWLEC 1682 Hearing dates: 9 to 11 November 2022 Date of orders: 7 December 2022 Decision date: 07 December 2022 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is dismissed. (2) Development consent for Development Application 2021/984/1, as amended, seeking a change of use for three existing sheds, construction of a new shed, remediation works, earthworks to reshape existing mounds of unauthorised fill, use of mounds with unauthorised fill and landscaping on Lot 5 DP 260390, also known as 440 Cawdor Road, Cawdor, is refused. (3) The applicant is to pay the respondents costs thrown away as a result of the amendments of the Remedial Action Plan and application for development consent, granted leave on 10 November 2022, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (4) All exhibits are retained. Catchwords: DEVELOPMENT APPLICATION – change of use of existing sheds to depots – remediation works relating unauthorised fill with asbestos waste – use of mounds with unauthorised fill – maintain rural landscape character – unacceptable risk to human health from asbestos waste left onsite Legislation Cited: Biosecurity Act 2015 Biodiversity Conservation Act 2016, Pt 7 Biodiversity Conservation Regulation 2017, cl 7.3 Biosecurity (Salmonella Enteritidis) Control Order 2020 Coal Mine Subsidence Compensation Act 2017, s 22 Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16,4.47, 8.7 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Land and Environment Court Act 1979, s 34 National Protection (Assessment of Site Contamination) Measure 1999 Protection of the Environment Operations Act 1997, ss 3, 7, 142, 142A, 144AAB State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 9.7, 9.9 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 4.6, 4.7, 4.8, 4.9, 4.10 Water Management Act 2000 s 91 Wollondilly Local Environmental Plan 2011, cll 2.3, 5.10, 5.21, 7.1, 7.3, 7.5, 7.9 Cases Cited: Chami v Lane Cove Council [2015] NSWLEC 1003 Jonah v Pittwater Council (2006) 144 LGERA 408; NSWLEC 99 Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 Moss v Kiama Council (2003) 127 LGERA 83; NSWLEC 165 Muscat Developments Pty Ltd trading as Muscat Developments Pty Ltd v Camden Council [2021] NSWLEC 1486 Muscat Developments Pty Ltd trading as Muscat Developments v Wollondilly Shire Council (No 2) [2022] NSWLEC 1012 Parrott v Kiama [2004] NSWLEC 77 Texts Cited: NSW Environmental Protection Authority, Managing Land Contamination Planning Guidelines (1998) NSW Environmental Protection Agency, Waste Classification Guidelines, Part 1: Classifying waste (2014) Wollondilly Development Control Plan 2016 Category: Principal judgment Parties: Muscat Developments Pty Ltd (Applicant) Wollondilly Shire Council (Respondent) Representation: Counsel: J Lazarus SC (Applicant) R White (Respondent)