Windang Kruger Resorts Pty Ltd ATF Windang Kruger Resorts Unit Trust v Wollongong City Council [2023] NSWLEC 1046

Land and Environment Court New South Wales

Medium Neutral Citation: Windang Kruger Resorts Pty Ltd ATF Windang Kruger Resorts Unit Trust v Wollongong City Council [2023] NSWLEC 1046 Hearing dates: 19-21 September 2022, 20 October 2022 Date of orders: 07 February 2023 Decision date: 07 February 2023 Jurisdiction: Class 1 Before: Walsh C Decision: The Court directs that: (1) By 10 March 2023, the parties are to confer and if possible agree on the particulars of conditions of consent, and amendments to other documents as may be necessary, relating to groundwater remediation which are to reflect the findings of this judgment, and file the agreed conditions and any other appropriate amended documents as necessary. (2) If the parties are not able to agree on the particulars of conditions of consent and other documentary amendments, as necessary, by 10 March 2023, each party is to file in Court and serve the party's version of the appropriate means of reflecting the findings of this judgment in relation to groundwater remediation. (3) Liberty to restore is available in the normal manner, and online Court submissions can be made should there be agreed modifications to the timetable above. Catchwords: DEVELOPMENT APPLICATION – consent sought for works only (not land use) on two sites – emplacement of fill on contaminated land –– proximity of sites to Lake Illawarra – coastal protection classification of sites – category 1 remediation – statutory provisions under State Environmental Planning Policy (Resilience and Hazards) 2021: s 4.10 restricting refusal powers for category 1 remediation works; s 4.14 requiring remediation work to be carried out in accordance with relevant guidelines – adequacy of detailed site investigation with respect to relevant guidelines – adequacy of remediation action plan with respect to relevant guidelines – remediation with respect to surface pathway of contaminants and airborne contaminants provides significant improvements to existing setting – whether statistical methods correctly applied to demonstrate site groundwater meets background groundwater contamination levels - flawed application of statistical methods – whether further cleaning up of groundwater required under relevant guidelines - unconvincing arguments in regard to remediation "best practical means" under relevant guidelines – inadequate responses to groundwater contamination under relevant guidelines – filling of flood prone land – permissible flood impacts under development control plan do not apply to land fill works as a development type – development control plan provisions restricting filling within the floodplain do apply and are breached - flexible application of development control plan Legislation Cited: Contaminated Land Management Act 1997, s 3 Environmental Planning and Assessment Act 1979, ss 1.5, 4.12, 4.15, 8.7, 10.7 Land and Environment Court Act 1979, s 12 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, ss 4.1, 4.11, 4.14, 4.3, 4.6, 4.7, 4.8, 4.10 Wollongong Local Environmental Plan 2009, cll 2.3, 4.3, 5.21, 7.6 Cases Cited: Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 Zaki Property Pty Ltd v Wollongong City Council [2022] NSWLEC 1526 Texts Cited: Cardno, Lake Illawarra Floodplain Risk Management Plan (2012b) Cardno, Lake Illawarra Floodplain Risk Management Study (2012a) Department of Environment and Conservation NSW, Guidelines for the Assessment and Management of Groundwater Contamination, 2007 NSW Environment Protection Authority, Guidelines for the NSW Site Auditor Scheme 3rd Edition, 2017 NSW Environment Protection Authority, Managing Land Contamination Planning Guidelines SEPP 55–Remediation of Land, 1998 Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Windang Kruger Resorts Pty Ltd ATF Windang Kruger Resorts Unit Trust (Applicant) Wollongong City Council (Respondent) Representation: Counsel: T To (Applicant) M Astill 19-21 September 2022 and J Reilly 20 October 2022 (Solicitor) (Respondent)