Blacktown City Council v Aria [2023] NSWLEC 83

Land and Environment Court New South Wales

Medium Neutral Citation: Blacktown City Council v Aria [2023] NSWLEC 83 Hearing dates: 5, 6 and 7 July 2023 Date of orders: 17 August 2023 Decision date: 17 August 2023 Jurisdiction: Class 4 Before: Moore J Decision: See declaration at [139] and orders at [140] Catchwords: CIVIL ENFORCEMENT ‑ importation and placement of 15,000 cubic metres of asbestos‑contaminated waste ‑ Applicant seeks order for removal and remediation ‑ Respondent seeks six‑month adjournment to obtain development consent ‑ development prohibited ‑ adjournment refused ‑ site mapped as high‑risk flood‑prone land ‑ high risk to the environment ‑ no discretionary basis to refuse proposed remediation order ‑ declaration appropriate to be made ‑ remediation orders made CIVIL ENFORCEMENT ‑ storage of more than 150 vehicles on flood‑prone land ‑ activity prohibited ‑ Applicant seeks order requiring removal of vehicles ‑ Respondent seeks six‑month adjournment to obtain development consent ‑ no functional residence on the land ‑ vehicle storage activities incapable of characterisation as either "home occupation" or "home industry" even if there was a functional and occupied residence on the land ‑ no basis upon which vehicle storage activities could be approved ‑ consent not possible ‑ storage of vehicles on flood‑prone land risks downstream water pollution ‑ high risk to the environment ‑ appropriate to order the removal of vehicles ‑ Applicant accepts that up to nine vehicles could be stored on the land for repair or restoration ‑ no reason to refuse removal order ‑ appropriate to order removal of vehicles ‑ removal order made COSTS ‑ Applicant seeks costs of proceedings ‑ costs conventionally follow the event ‑ no disentitling conduct by Applicant ‑ Respondent ordered to pay Applicant's costs as agreed or assessed Legislation Cited: Blacktown Local Environmental Plan 2015, cll 5.4, 5.21 and Dictionary Blacktown Development Control Plan 2015 Environmental Planning and Assessment Act 1979 ss 4.2, 9.45 and 9.46 Protection of the Environment Operations Act 1997 Protection of the Environment Operations (Waste) Regulation 2014 State Environmental Planning Policy (Resilience and Hazards) 2021 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011 Cases Cited: Dincel Construction System Pty Ltd v Penrith City Council [2021] NSWCA 133 Warringah Shire Council v Sedevic (1987) NSWLR 335 Texts Cited: Code of practice ‑ 'How to manage and control asbestos in the workplace' - SafeWork NSW 2016 'How to Safely Remove Asbestos' - SafeWork NSW 2016 'Managing Asbestos in or on Soil' - WorkCover NSW 2014 National Environment Protection (Assessment of Site Contamination) Measure 1999 Category: Principal judgment Parties: Blacktown City Council (Applicant) Mohammad Aria (Applicant) Representation: Counsel: Mr Robert White, barrister (Applicant) Mr Mohammad Aria, self‑represented (Respondent)