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 (No 2) [2023] NSWLEC 1339 Hearing dates: 15 May 2023 Date of orders: 04 July 2023 Decision date: 04 July 2023 Jurisdiction: Class 1 Before: Walsh C Decision: In Proceedings 2021/360822: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application No. DA-2021/564 for earthworks involving the emplacement of fill and site remediation at Lot 501 DP 809609, Kruger Avenue Windang, subject to the conditions of consent at Annexure A. (3) The exhibits are returned with the exception of the following exhibits which are retained: Ex 1, 2, 6, 14, A, B, C, D, E, F, G, L, M, N, O and P. In Proceedings 2021/360845: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application No. DA-2021/565 for earthworks involving the emplacement of fill and site remediation at Lot 429 DP 809614, Kruger Avenue Windang, subject to the conditions of consent at Annexure B. (3) The exhibits are returned with the exception of the following exhibits which are retained: Ex 1, 2, 6, 14, A, B, C, D, E, F, G, L, M, N, O and P. Catchwords: DEVELOPMENT APPLICATION – finalising conditions of consent following directions in primary judgement – groundwater contamination mitigation details – permeable reactive barrier – numerous disputed conditions Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.17 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 4.9, 4.10, 4.14 Texts Cited: Department of Environment and Conservation NSW, Guidelines for the Assessment and Management of Groundwater Contamination, 2007 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) J Reilly (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Wollongong City Council (Respondent) File Number(s): 21/360822 21/360845 Publication restriction: Nil Judgment 1. On 7 February 2023, the primary judgement was handed down in relation to these two development application appeals which are being heard together (Windang Kruger Resorts Pty Ltd ATF Windang Kruger Resorts Unit Trust v Wollongong City Council [2023] NSWLEC 1046, henceforth Windang No 1). 2. Appeal proceedings 2021/360845 relates to Development Application DA-2021/565 and Lot 429 DP 809614. Proceedings 2021/360822 relates to Development Application DA-2021/564 and Lot 501 DP 809609. The sites are adjacent in an east-west direction and located just north of, and accessible from, Kruger Avenue, Windang. Lot 501 is the westernmost parcel and fronts Windang Road. Each of the development applications would involve emplacement of fill and remediation works. 3. The primary judgement found that development consent should be granted in regard to these matters. However directions were given to the parties in regard to assistance in the resolution of certain conditions of consent. This subsequent judgement attends to this matter of conditions. Context 1. The essential context of this subsequent judgement is as follows. 2. In Windang No 1, I determined that development consent should be granted to each of the development applications, subject to conditions of consent. It was relevant to my findings that s 4.10 of State Environmental Planning Policy (Resilience and Hazards) 2021 (henceforth SEPP Resilience and Hazards) provides a conditional, "must not refuse" provision for category 1 remediation works, such as proposed with these applications. At the same time, s 4.14 of SEPP Resilience and Hazards provides that remediation work needs to be carried out in accordance with relevant guidelines. The relevant guideline in regard to groundwater contamination can be cited as: Department of Environment and Conservation NSW, Guidelines for the Assessment and Management of Groundwater Contamination, 2007 (henceforth Groundwater Contamination Guidelines). It was a finding of Windang No 1 that further groundwater remediation works were required to meet the requirements of the Groundwater Contamination Guidelines and better protect inflows to Lake Illawarra, which lies very immediately, across Windang Road, to the west of the sites. 3. More particularly, evidence from contamination experts from both sides referred to, what is known as, a "permeable reactive barrier" (PRB) as a potential means of improving groundwater outflow quality. PRB systems were indicated to be in place elsewhere in Windang to address groundwater problems. 4. My findings in Windang No 1 included (at [177]) that: "… one of the conditional requirements of the grant of consent is the provision of a suitable permeable reactive barrier (and/or other suitable remedial technology were it to be agreed by the parties) to absorb heavy metals or otherwise improve the downgradient groundwater contamination effects from the sites." 1. In Windang No 1, I found that it was necessary for the contamination experts to confer further on the particulars of conditions of consent and amendments to documents relating to the further groundwater remediation requirements. That is, in terms of a suitable PRB or other suitable response (but beyond the effects of site capping on groundwater, which was already proposed). I also sought that other experts be involved so that any wider implications of this further groundwater remediation system were adequately assessed. 2. An agreed communication from the parties to the Court dated 9 March 2023 indicated that: "The Applicant has prepared a Scoping and Preliminary Permeable Reactive Barrier Study and provided this to the Respondent on 22 February 2023. Following the preparation of the Study, the parties experts met to confer and have confirmed that they are satisfied with the proposed strategy and outcomes." Introduction to parties' submissions 1. The submissions of the parties fell within two groupings. The first grouping of submissions was filed on 1 and 2 May. It included the parties' differing versions of proposed (relevant) conditions of consent. The differences were significant, and I will return to them below. These submissions also included a listing of the documentary material behind the position adopted by the parties. 2. The second grouping of submissions followed an Online Court (OLC) communication from me to the parties on 3 May 2023. In this communication I noted the requirement for the Court, itself, to take into consideration "the likely impacts of (the) development …", including any further groundwater remediation works now proposed, mindful of s 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act). I indicated that while it appeared that some assessment of the impacts of the now proposed PRB had been undertaken by the parties (at least through their experts) this material was not in evidence. I sought submissions from the parties on this question of likely impacts of the proposed PRB so that I could take the same into consideration. Two separate filings followed this OLC communication: (1) from the Council on 8 May 2023 (titled "Respondent's outline of submissions"), and (2) from the Applicant on 11 May 2023 (titled "Applicant's submissions – PRB & conditions"). I also heard oral submissions from the parties on 15 May, 2023 in person. Specialist documents 1. A series of specialist documents were then provided to the Court, which I understand to be, more or less, behind the experts' agreement on the proposed strategy. When the parties appeared before me on 15 May 2023, the following specialist documents were tendered and marked as exhibits to the proceedings as indicated: * Scoping and Preliminary Permeable Reactive Barrier Study, prepared by Reditus and dated 22 February 2023 (Ex L) * Biodiversity Assessment Letter, prepared by Biosis and dated 30 March 2023 (Ex M) * Revised Construction Traffic Management Plan, prepared by JN and dated 10 May 2023 (Ex N) * Amended Civil Drawings, prepared by JN and dated 6 April 2023 (Ex O) * Amended Landscape Plans prepared by Taylor Brammer, of varying dates as follows: LA01 dated 5 April 2023, LA02 dated 27 March 2023 and LA03 dated 5 April 2023 (Ex P) * Reditus letter dated 10 May 2023 (Ex Q). Assessment of likely impacts of development 1. As introduced above, under s 4.15(1)(b) of the EPA Act it is necessary for a consent authority to consider "the likely impacts of a development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality". Clearly, consideration was given to the likely impacts of the proposed emplacement of fill and remediation works on Lots 429 and 501, as then proposed, in Windang No 1. 2. My particular concern here is the likely impacts of amendments to the applications assessed in Windang No 1, relating to the proposed PRB and/or other suitable groundwater remedial technology which might have been agreed. 3. It is notable that my earlier findings referenced the possibility for there to be an alternative to a PRB. However, the applicant has made clear that it is seeking to amend its application to make way for a PRB as introduced in Ex L, and indicated in the new civil and landscape plans before the Court. Ex L indicates at Figure 5 the proposed location for the PRB. The PRB would be some 181 m in length, 1.5m in width and 5m in depth. The location is on Lot 501, generally along (and within) the proposed western development boundary of Lot 501. 4. These PRB particulars are then adopted, as I understand it, in Ex O and Ex P with respect to civil engineering and landscape planning implications, respectively. 5. The applicant would add a new Condition 1A (with respect to Lot 501 only, upon which the PRB works would occur) which makes reference to these civil and landscape plans, among other associated revised content (applicant's written submissions 11 May 2023 par 35). 6. It is clear from Ex L that there remains a possibility of an alternative remediation or management strategy coming about as the assessment work unfolds. While Ex L finds that the proposed PRB is "likely" be effective, as also put in Ex L (p 11): "Alternative groundwater remediation or management strategies may be more appropriate to site conditions which could be implemented in the location of the PRB trench once further detail of site conditions is obtained. 1. I agree with the applicant that "(any) departure of substance from the PRB (as proposed) would require a modification of any consent granted" (applicant's written submissions 11 May 2023 par 25). Assessing the likely impacts of proposed PRB 1. It is clear that the underlying intention of the provision of a PRB is to provide a positive environmental impact. This would be done through absorbing heavy metals or otherwise improving the downgradient groundwater contamination effects from the sites. The impact question is essentially one of whether there might be some other consequences arising not already attended to in Windang No 1. 2. Based on the material before me, it is my finding that no other adverse impacts can be expected. Here I rely on the other specialist advice, referenced above. In particular: 1. I note and accept the expert commentary contained in Ex M with respect to biodiversity. Ex M identifies that the proposed PRB would be located within an area that has been already assessed and offset under the biodiversity development assessment report prepared by Biosis and tendered into evidence (Ex G Tab 3). 2. I note and accept that the proposed alterations to the landscape scheme as proposed now with Ex P are satisfactory. The PRB would located outside of the new alignment of the landscaped buffer and as such would not significantly reduce the amount of landscaping provided. 3. I note and accept the calculations on the expected additional truck movements (associated with its excavation and backfilling) as a consequence of the proposed PRB (in Ex N) and that no unreasonable traffic management implications arise. It will be seen that I have a concern about the construction of access across the proposed PRB to provide for the filling of Lot 429. I attend to this when considering conditions. Disputed conditions 1. The documentation establishing the differences between the parties in regard to disputed conditions is outlined as follows: 1. Council's version of consent conditions applying to Lot 501 (tendered as Ex 20) 2. Applicant's version of consent conditions applying to Lot 501, via track-changes over Ex 20 content (Ex R) 3. Table comparing the position of the parties with respect to selected conditions applying to Lot 501, with commentary (Ex S) 4. Council's version of consent conditions applying to Lot 429 (Ex 21) 5. Applicant's (track-changes) version of consent conditions applying to Lot 429 (Ex T) 6. Table comparing the position of the parties with respect to selected conditions applying to Lot 429, with summary justifications on each part (Ex U). 1. There are four, sometimes inter-related, themes to the more significant points of dispute between the parties in regard to PRB-related conditions. In no particular order, the first is concerned with the relationship between Lot 501 (upon which the PRB would be located) and Lot 429 which abuts to the east. The second is concerned with responsibilities for the PRB and includes consideration of property encumbrances. The third is concerned with the sequencing of actions in regard to PRB-related conditions and includes the distinction between deferred commencement and operational conditions. The fourth is concerned with the review and approval function of Council. There are also some other miscellaneous points of disagreement which I come to. Proposed PRB and the relationship between Lots 429 and 501 1. As indicated above, and as proposed by the applicant in various tendered documents, the PRB would be located on Lot 501 (the downstream of the two parcels and the closer parcel to Lake Illawarra). In the broad, Council's position is that conditions relating to the PRB, other than the location of the PRB's construction, should relate to both Lots 429 and 501. On the other hand, the applicant argues that (applicant's written submissions 11 May 2023 par 30): "… Council's proposal (is) that an in-perpetuity obligation be imposed on the owner of Lot 429 to maintain the PRB, with an easement for this purpose (condition 56, Lot 429). This is not a reasonable condition; it neither relates to the development on Lot 429, nor is reasonable in the circumstances. It is appropriate that Lot 501 bear the obligation to maintain the PRB, as it is located on Lot 501. Nor is there any evidentiary or other (proper) basis to suggest that such an obligation imposed on Lot 501 will be ineffective." 1. On a related point, when arguing against Council's position that deferred commencement conditions relating to the working up of the particulars of the PRB should also apply to Lot 429 as well as Lot 501, the applicant argues that (Ex U p 1): "… there is no utility in imposing the requirement for a PRB on lot 429 as this will not achieve the objective, to remediate groundwater. In this regard, lot 429 is one of many upstream lots potentially contributing to the migration of groundwater contaminants. Providing an ongoing obligation to maintain and upgrade the PRB would unnecessarily generate a multitude of legal and liability issues. … If conditions are imposed on lot 429 requiring groundwater monitoring and the implementation of a PRB as put forward by Council, practically this would require testing to be undertaken on lot 501 with a PRB being implemented on 501 as well. The development application before the court seeks consent for the remediation of lot 429 independent of lot 501 accordingly the condition of consent cannot apply to land that is not the subject of the development application (i.e. lot 501). The most sensible location for a PRB is at the interface of lot 501 and Windang Road, given the extent of contamination across the site and that lot 429 is upstream of lot 501." Consideration 1. I do not see Lot 429 as just "one of many upstream lots …". The key reason is that the proceedings before me relate to proposed category 1 remediation works on Lot 429 (and of course Lot 501), and not any other upstream lots. As indicated in Windang No 1, the "must not refuse" provision for proposed category 1 remediation works under s 4.10 of SEPP Resilience and Hazards are in play in these proceedings. But in hand with those facultative provisions is s 4.14(1) of SEPP Resilience and Hazards, which requires the proposed works on Lot 429 to be carried out in accordance with the Groundwater Contamination Guidelines (among other guidelines): 2. Section 4.14 of SEPP Resilience and Hazards requires remediation work to be carried out in accordance with relevant guidelines: (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 (USELATER), prepared in accordance with the contaminated land planning guidelines. 1. What I see here is a dependency relationship between Lot 429 and Lot 501. The grant of consent to Lot 429 (with the applicant here distinguishing it from the grant of consent to Lot 501) is entirely dependent on the provision of appropriate groundwater contamination mitigation for Lot 429. That is, any grant of consent for Lot 429 is dependent on certain things occurring on Lot 501. For me this means that, generally, conditions upon future development of both Lots 429 and 501 relating to conception, and ensuring deployment and maintenance of the PRB, should be imposed on both lots. There were some submissions as to variance in the viability of development on either lot. This does not concern me overly at this point, as much can unfold which is unknown at this time in regard to commercial viability. The point for me is that the PRB be properly conceived, constructed and maintained and that both parcels of land are responsible in that regard. The arrangement needs to account for joint and individual responsibility to address any property development risks applying to either property. Responsibility for the PRB and related property encumbrances 1. The applicant is concerned about an in-perpetuity obligation on the owner of Lot 429 to maintain the PRB when it is sited on Lot 501. A number of the applicant's concerns raised in the section immediately above equally relate to this point. Consideration 1. As a consequence of what I have described above as the dependency of Lot 429 on Lot 501 (given the PRB would be located there and it is the PRB which is the vehicle proposed with respect to Lot 429, to meet the requirements of s 4.14(1) of SEPP Resilience and Hazards), the development and maintenance of the PRB on Lot 501 does relate to any grant of consent for Lot 429. To argue that "(it) is appropriate that Lot 501 bear the obligation to maintain the PRB, as it is located on Lot 501" does not assist Lot 429 in meeting its obligations in regard to s 4.14(1) of SEPP Resilience and Hazards. 2. The way to separate the parcels in regard to both the PRB works and maintenance would be to duplicate the PRB works. That is to have, say, a PRB system for each of the sites. I agree with the applicant that such a move is not aligned with common sense. It certainly is not the applications before me. 3. I agree with Council that, in regard to the applications before me, property encumbrances relating to the in-perpetuity maintenance of the PRB should apply to both Lots 501 and 429, and again both jointly and individually. 4. I do not place much weight on the applicant's point that "there is no utility in imposing the requirement for a PRB on Lot 429 as this will not achieve the objective, to remediate groundwater". The joining of responsibility for the PRB between the two lots may happen to provide some utility of provision (eg through the sharing of the costs etc), but the central concern, and conditional requirement applying to any grant of consent for either proposal, is that both parcels meet their obligations under s 4.14(1) of SEPP Resilience and Hazards. 5. I also do not agree with the applicant that a condition of consent cannot apply to land that is not the subject of the development application (s 4.17(f) of the EPA Act). 6. I do not agree that "an ongoing obligation to maintain and upgrade the PRB" (upon Lot 429) unnecessarily generates "a multitude of legal and liability issues". While I am sure there is a requirement for the drafting of appropriate legal instruments between the parcels, I believe there is a necessity for this due to the obligations upon both Lot 429 and Lot 501 under s 4.14(1) of SEPP Resilience and Hazards. If either lot happens to lag as an ongoing concern and its owner is not otherwise persuaded to participate in the PRB, then the provision responsibility falls to the other lot should its owner wish to act on any consent. 7. The ambition of the Court here is clear enough and it is reasonable for the consent authority to undertake the approval function in regard to the final particulars of the relevant property-related encumbrances. Conditions establishing the sequencing of PRB-related investigations and juxtaposition with works on both Lots 429 and 501 1. Council's version of the conditions of consent (Condition C in Ex 20 and 21) would apply a deferred commencement condition to both Lots 429 and 501, relating to the completion of certain preliminary groundwater assessment and associated studies for the PRB. The applicant agrees with the need for the studies (in relation to Lot 501) but disagrees that these requirements should be a deferred commencement condition. The applicant proposes that these requirements be an operational condition, applying to Lot 501, to be completed prior to issue of a construction certificate (Ex R Condition 15). 2. Further, and contrary to Council's view, the applicant argues that these PRB investigation requirements should not be required to be undertaken prior to site preparation works, such as the construction of the driveway crossover from Windang Road (Ex S p 2). 3. The applicant also submits that proposed capping works on Lot 429 should be able to commence concurrently with the PRB-related studies on lot 501. Under the applicant's scheme, the transport of loads of fill to Lot 429 would be delivered via a new access off Windang Road and over Lot 501. The applicant claims the construction of a driveway crossover across, what would eventually be, the PRB trench would not affect groundwater modelling, or the ultimate provision of a PRB. I understood a letter from Reditus dated 10 May 2023 (Ex X) sought to support this claim. Further, the applicant argues that capping of Lot 429 "would likely provide more relevant groundwater data as this will reflect the future site circumstances" (Ex U p 3). It is the applicant's suggestion that the following condition, on the consent to Lot 429, provides an appropriate hold point and would ensure completion of the PRB (Ex U p 2): 66A Completion of Permeable Reactive Barrier on adjoining property Prior to the issue of an Occupation Certificate, the Applicant must demonstrate to Council that a Reactive Barrier Remediation System (PRB System) on lot 501, Kruger Avenue, Windang as required under Development Consent DA-2021/564. 1. Among other things, Council is concerned that Lot 429 would be developed "forthwith" for residential purposes (according to the zoning), while development on Lot 501 may lag, due what Council infers to be a less commercially attractive zoning (Ex U p 1). Consideration 1. There seem to be six staging posts in relation to the subject consents and disputed conditions. The first involves deferred commencement conditions (already agreed in relation to certain stormwater management concerns, but in dispute for PRB-related concerns). The second involves matters to be attended to prior to any works commencing on the site. The third involves requirements prior to the issue of a construction certificate. The fourth involves requirements prior to building works commencing. The fifth involves requirements prior to submission of a Site Audit Statement (SAS). The sixth involves requirements relating to "occupation and ongoing use". 2. The PRB-related tasks (as documented in Exhibit L), which I take to be the "proposed strategy and outcomes" with which the relevant experts were mutually satisfied (see [9]), also involve a series of analytical steps. These steps provide the path to a final PRB system configuration. It is at Section 2 that Ex L nominates a six step "typical" process for PRB conception and deployment. The first three steps might be thought of as analytical (coming to a suitable PRB configuration based on detailed hydrogeological data among other things). The fourth step is a test of proof of concept. Step five details the design. Step six is deployment (construction, and then ongoing operation and maintenance). 3. While the transference might not be precise, the consent conditions as put by Council would have the analytical work (ie up to the PRB trial study conception) as subject to deferred commencement. Before the issue of the construction certificate, the PRB trial study would be conducted, and findings submitted to Council for review and approval. The mechanics of this include that the remediation action plan (RAP) would be updated to reflect the various analytical and PRB trial findings, and a "Long-Term Environmental Management Plan" (LTEMP) would be prepared for site auditor commentary and Wollongong City Council for review and approval (Ex T Condition 15, for example). There is little dispute in regard to sequencing beyond this point. 4. The applicant would attend to groundwater and PRB considerations through operational conditions. The analytical steps (the particulars are exactly as per those suggested for deferred commencement by Council) would be taken before the issue of a construction certificate, and subject to Council approval prior to commencement of works. The PRB trial study would also be conducted and findings submitted to Council (but not for approval, according to the applicant) prior to construction certificate. 5. I prefer Council's approach, generally, on the sequencing of conditions, which I see to be reasonable and moderate. In line with my commentary above, the grant of consent for each of the lots is entirely dependent on the provision of appropriate groundwater contamination mitigation, in this case being the proposed PRB. The data gathering and analytical steps concerned with coming to a PRB configuration which is worth putting to a trial can be reasonably adjudged as deferred commencement matters. While the applicant is seeking consent for the PRB as proposed, there is considerable investigatory and analytical work required before the path is clear for the PRB as proposed. I note the commentary in Ex L in relation to alternatives (see [18]). While the commentary indicates that an alternative "could be implemented in the location of the PRB trench", it should be acknowledged that through the time of the investigatory and conception work there will be no 185m trench. It seems significantly more reasonable to me that options be kept open, including in relation to both Lots 501 and 429, during this investigatory stage and in any determination that alternatives may not better address the requirements of s 4.14 of SEPP Resilience and Hazards, and the Groundwater Contamination Guidelines. 6. I note that Council might have, but didn't, argue that the PRB trial (and its findings) should also be required before the opening up to wider operational consents. I might have found favour with such a position, which would essentially bring about the resolution of any significant uncertainties in regard to the proposed groundwater remediation strategy, prior to the consents becoming operational. In the circumstances of this case, and mindful of s 4.14(1) of SEPP Resilience and Hazards, it might not have been unreasonable to expect a proof-tested groundwater remediation strategy to accompany the DAs in the first instance. Council's position seems to me to be that matters will be clear enough in regard to the delivery of the proposed PRB, or whether an alternative is needed, at the point where the particulars of the trial are decided. I accept Council's position, not having heard from either party in relation to any widening of deferred commencement provisions. 7. I am not convinced by the applicant's arguments that there is no risk associated with construction of a trafficable route over Lot 501 and the prospective PRB trench in finalising the ultimate scheme. It is too early to know this. I agree with the Council on (Ex U p 2): "(a) the inherent practical conflict in utilising Lot 501 for truck access whilst designing and constructing the PRB on that same lot; and (b) the fact that the studies and analysis may lead to a different approach that may be compromised or forestalled by the commencement of work on the site." Approval function in relation to relevant investigations and works – Council or site auditor 1. There is a dispute between the parties at various points of the conditions relating to who might approve or endorse the various studies and works of relevance to the PRB. Council's position is that the appointed EPA-accredited site auditor (site auditor) would play an important expert and review function, but Council should play the approval function in these studies and, ultimately, the works involved. The applicant submits that "Council's role is not to supervise, much less replace, the statutory site auditing process established under the Contaminated Land Management Act 1997" (applicant's written submissions 11 May 2023 par 29). 2. I accept Council's position on this point. First, I note the following provisions of SEPP Resilience and Hazards. Section 4.9 provides the following in regard to consent authorities in relation to remediation works: (1) The consent authority in relation to a development application for consent to carry out a remediation work is— (a) the person or authority that, in accordance with a provision made by an environmental planning instrument that applies to the land, is the consent authority for the development, or (b) in default of any such provision— (i) the council for the local government area in which the land is situated, or (ii) the Minister, if the land is within the unincorporated area. 1. Then at s 4.14: (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. 1. Section 4.9(1) makes clear that Council is the relevant consent authority for category 1 remediation work. Section 4.14(c), in turn, requires category 1 remediation work to be carried out in accordance with a plan of remediation as approved by the consent authority. 2. Generally, this suggests that the responsibility for approving the various studies leading to the remediation plan for the site, including in relation to groundwater remediation and the PRB, can reasonably rest with Council. 3. Further, it is clear from Ex L that there are a number of discretionary points along the PRB conception steps, prior to the final deployment step. Ex L indicates that the analytical steps could evoke a number of different outcomes. Ex L also makes clear that cost-benefit analysis is involved in the PRB conception process (Ex L Section 2.4) and suggests a process of "agreement among stakeholders" on the adoption of a final approach (Section 4.2). I am concerned about the practicalities of the proposed "agreement among stakeholders" (eg which stakeholders would be included and who would decide?) and, relatedly, prospects for an outcome in accordance with s 4.14(1) of SEPP Resilience and Hazards, with this suggested approach. While it would depend on the circumstances at the time, of some note here at least is that certain findings in Windang No 1 found directly and substantively against the advice of certain of the stakeholders involved (see Windang No 1 [144]-[148], [168]-[171]). There is a need for: (1) clarity in regard to process responsibility and authority, and (2) an assurance of a public interest weighting. In my view it is necessary and appropriate for the consent authority (in this case Council) to undertake the approval function at these discretionary points of cost-benefit analysis and stakeholder exchange towards a final PRB-based groundwater remediation scheme adoption. Other matters relating to conditions 1. I generally accept the conditions as drafted when not in dispute. 2. There is a separate point of dispute relating to the wording of the description of the development, an early commentary area in consent documents generally. The description of development proposed by the applicant is "Earthworks involving the placement of fill over the site". As suggested by Council, it would make sense for there to be reference to site remediation in the description of the development as it is a foundational element of the development. But agreeing with the applicant, I see no need for the reference to any particular environmental planning instrument in the development description. Summary commentary on specific disputed conditions Concerning conditions of consent for Lot 501 1. The principal reference document I use for the explanation of my findings in relation to consent conditions relating to Lot 501 is Ex 20. The actual conditions to the grant of consent in relation to Lot 501 are provided at Annexure A to this judgement. 2. My finding in support of deferred commencement Condition C aligns with my findings above in relation to the sequencing of PRB-related investigations. In regard to the particular question of whether the "Surface and Groundwater Hydrological Model" should provide for "seasonal" variation (seen as "unnecessary, excessive and burdensome" by the applicant (Ex S p 2)), I would prefer the position of Council. For a proposed hydrological model, in these circumstances, to include seasonal variations does not of itself seem excessive. It seems entirely reasonable and necessary given that seasonal conditions would be expected to be a significant variable in such modelling. 3. Deferred commencement Condition D accommodates the 36 month period for compliance, in relation to deferred commencement matters, as requested by the applicant. 4. A Condition 1A has been included, making reference to revised documents to accommodate the PRB. 5. My finding on contested Condition 4 aligns with Council's position and my findings on the consent authority responsibilities in relation to approving site remediation plans. I do not accept the applicant's argument that approval of modifications to the RAP does not arise because of my findings in Windang No 1. The RAP will need to be modified to accommodate the PRB. 6. This finding, in relation to the consent authority function for approving more detailed investigations and works, also applies to contested Condition 15 (in relation to the PRB Trial), Condition 55 (in relation to the Long Term Environmental Management Plan), Condition 59 (in relation to Site Contamination Validation Report and Site Contamination Audit Statement) and Condition 65 and 84 (in relation to consent authority approval of amendments to environmental management plan). 7. There are two Conditions 37 in Ex 20. The second of these is renumbered Condition 37A. 8. I understand the parties are in agreement that Condition 54A, concerned with earthworks and geotechnical certification, should accord with the applicant's version. I also adopt the applicant's position on a similar point at Condition 60. 9. I generally accept the applicant's arguments with respect to Conditions 56, 57, 61, 62, 63 and 64. Such that these conditions should focus on the proposed PRB system and any related implications. The matter of the ongoing management of the capping system is not the subject of this judgement. I do note it is appropriate to include Condition 64e as proposed by Council (concerned with an easement for access and right to carry out repairs and maintenance to the PRB in favour of Lot 429) as a consequence of my findings on the dependency relationship between Lots 429 and 501 with respect to the PRB. Concerning conditions of consent for Lot 429 1. The principal reference document I use for the explanation of my findings in relation to consent conditions relating to Lot 429 is Ex 21. The actual conditions to the grant of consent in relation to Lot 429 are provided at Annexure B to this judgement. 2. My finding on deferred commencement Condition C aligns with my findings, above, in relation to the relationship and shared responsibilities between Lots 429 and 501 in regard to the PRB and the sequencing of PRB-related investigations. 3. For reasons of coherence it is appropriate that Condition 1A as agreed by the applicant with respect to Lot 501 should also apply to Lot 429. That is to say, and beyond the shared obligations for PRB provision, the relevant landscape and civil drawings nominated in Condition 1 already apply to both lots, as do the revision plans. I note for example that Section 1 in civil drawing C 101 Revision 7 applies to both lots. The landscape drawings also apply to both lots, with the notable inclusion of a 5m shared landscape strip (with shared planting matrix) between the lots. This condition is also required to be imposed on Lot 429 because construction of the PRB is a requirement of the grant of consent to this lot, and these additional documents outline the proposed PRB, otherwise referenced in the conditions applying to Lot 429. 4. The applicant strikes through Conditions 3, 4 and 7, although I am unclear in regard to explanations. The equivalent conditions were accepted in regard to Lot 501, with the exception that for Condition 4, the applicant contested the Council approval role. My findings in respect to these three conditions align with those made in respect to Lot 501. It seems to me Condition 4 is essentially a reminder of the provisions of s 4.14(1)(c) of SEPP Resilience and Hazards, relating to the consent authority role in regard to remediation plans, a topic which has been under some scrutiny in submissions to this hearing. 5. Condition 7's equivalent is indicated as agreed in Ex S but not in Ex U. My finding on contested Condition 7 reflects my view on consent authority responsibilities in relation to approving waste management. 6. My finding on contested Condition 13 (concerned with notice of commencement of remediation work) is to retain the condition but have it relate to the PRB on Lot 501 only. This reflects my view that at the centre of interest for me here is the PRB system (and potentially related implications). The finding otherwise aligns with my finding on joint responsibilities of Lots 429 and 501 with respect to its provision. 7. My finding on contested Condition 15, that the PRB trial (on Lot 501) be undertaken prior to construction certificate issue for works on Lot 429, aligns with my finding on joint responsibilities of Lots 429 and 501 with respect to its provision. I note that the applicant has agreed that the PRB trial should be completed prior to the issue of a relevant construction certificate for capping of the site in respect to Lot 501 (see Ex U p 3). 8. There are two conditions numbered 54 in Ex 21. I have renumbered the first of these Condition 53A. 9. My understanding is that there is now agreement with respect to the latter Condition 54 (concerning supervision of engineering works), adopting the applicant's wording. 10. Contested Condition 55-64 involve a series of requirements prior to the submission of a Site Audit Statement. The applicant would strike out each of these conditions. I understand the reasoning to be twofold. First is the argument that conditions relating to the PRB generally (including any property-related encumbrances) should not apply to Lot 429. Second is on the reach of the conditions. That is, that they go beyond the PRB which is the central subject matter of this judgement. Consistent with earlier findings, I am generally against the applicant on the first argument. As discussed, the responsibility for investigation, provision, review and maintenance of the PRB should be borne together and individually by Lots 429 and 501. 11. In relation to Conditions 55, 56, 57, 58, 59, 61, 63 and 64, I believe the applicant is correct in the argument that these conditions (were they to be applied) should be specific to the PRB and directly related components, and not the capping system more generally. Although at times it may eventuate that for a coherent response, it makes more sense to all concerned that a more consolidated response across both lots apply. Here I also note Condition 16 (which already deals with the capping system) and the prospects for any unexpected requirements to be able to be managed through the environmental management approvals for the site. 12. Consistent with earlier findings the consent authority would have an approval role for the more detailed investigations and works, as relevant; and the detailing of property encumbrances. 13. I note that Condition 65 was not contested other than Council's approval function for the LTEMP which I agree with. There is also the applicant's disagreement with a provision with respect to "Condition 50A" at the fifth bullet point to this condition. There is no Condition 50A. I would understand that the appropriate reference is to Condition 55 (in general alignment with a similar typographical error and response in relation Ex 20). 14. In respect to Condition 72, I note the applicant agrees to the condition in its comments with respect to Lot 501. There are no arguments presented against the condition with respect to Lot 429, as proposed by Council. The condition is retained. 15. My finding on contested Condition 84 aligns with my findings on Condition 55. Orders 1. Accordingly, the following orders are made in respect of the two proceedings. Proceedings 2021/360822 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application No. DA-2021/564 for earthworks involving the emplacement of fill and site remediation at Lot 501 DP 809609, Kruger Avenue Windang, subject to the conditions of consent at Annexure A. 3. The exhibits are returned with the exception of the following exhibits which are retained: Ex 1, 2, 6, 14, A, B, C, D, E, F, G, L, M, N, O and P. Proceedings 2021/360845 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application No. DA-2021/565 for earthworks involving the emplacement of fill and site remediation at Lot 429 DP 809614, Kruger Avenue Windang, subject to the conditions of consent at Annexure B. 3. The exhibits are returned with the exception of the following exhibits which are retained: Ex 1, 2, 6, 14, A, B, C, D, E, F, G, L, M, N, O and P. P Walsh Commissioner of the Court. Annexure A (387372, pdf) Annexure B (373296, pdf) ********** 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: 04 July 2023