Casley v Wagga Wagga City Council [2011] NSWLEC 1079

Land and Environment Court New South Wales

Medium Neutral Citation: Casley v Wagga Wagga City Council [2011] NSWLEC 1079 Hearing dates: 20, 21 December 2010, 16 March 2011 Decision date: 06 April 2011 Before: Pearson C Decision: Appeal dismissed Catchwords: Development application - asphalt batching plant and depot Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Rural Lands) 2008 Wagga Wagga Rural Local Environmental Plan 1991 Wagga Wagga Local Environmental Plan 2010 Wagga Wagga Development Control Plan 2005 Cases Cited: Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290 Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 Ratsep v Bathurst Regional Council [2007] NSWLEC 115 Collins v Wagga Wagga City Council [2008] NSWLEC 6 Michael Hesse Associates Pty Ltd v Parramatta City Council [2003] NSWLEC 313 Category: Principal judgment Parties: William Casley (Applicant) Wagga Wagga City Council (Respondent) Representation: Mr T To (Applicant) Mr M Staunton (Respondent) Mr M Fox, Friedlieb Byrne Solicitors (Applicant) Mr S Simington, Lindsay Taylor Lawyers (Respondent) File Number(s): 10522 of 2010

Judgment 1This is an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to a development application DA 10/0171 for a mobile asphalt batching plant and depot on Lot 5 DP 800863 known as 112 Gap Hall to Downside Road Downside (the site). 2The site is located approximately 13km north of the Wagga Wagga CBD, on the north western corner of the intersection of Gap Hall to Downside Road and Coolamon Road. The site has an area of approximately 4ha. There is one residence located approximately 220m to the east of the site on the opposite side of Coolamon Road, and a residence approximately 650m to the west along Downside Road. The surrounding land is used for agricultural purposes, mainly cropping and grazing. 3The site was previously used for rural industry uses including grain and fertiliser storage and handling operated by Graincorp, and the infrastructure on the site includes silos, storage sheds, site office, weighbridge, bunkers, vehicular movement areas, and perimeter fencing. The operation of the asphalt batching plant and depot commenced some time before December 2009, and works constructed on the site include installation of diesel storage tanks, construction of an internal sealed access road and sealing of internal roads, construction to two retention dams and an additional holding area, and a transportable laboratory building. 4On 3 March 2010 the Council served an order under s121B of the Act directing the applicant to cease operating the plant on the site. The Council commenced Class 4 proceedings against Wagga Hotmix Pty Ltd on 23 April 2010 seeking orders in relation to the conduct of the asphalt batching plant and depot on the site. The Class 4 proceedings have been adjourned pending the finalisation of this Class 1 application, subject to an undertaking that the mobile asphalt batching plant be removed from the site from 3 September 2010 and not brought to the site until such time as development consent is granted permitting such use of the site, and that the site not be used other than for the storage of equipment within existing improvements and administrative functions: Casley v Wagga Wagga City Council; Wagga Wagga City Council v Wagga Hotmix Pty Ltd [2010] NSWLEC 140. 5The issues between the parties are whether the proposed development is consistent with the aims and objectives of the Wagga Wagga Rural Local Environmental Plan 1991 (the 1991 LEP) which was in force when the development application was lodged, and whether it is consistent with the aims and objectives of the Wagga Wagga Local Environmental Plan 2010 (the 2010 LEP) which came into force after the development application was lodged. The Council contends that the development is not compatible with the surrounding rural environment; there is insufficient information on impact on the receiving environment of runoff from the site; there is excessive noise; there is insufficient information about airborne emissions from burning furnace oil; the application is not in keeping with principles of ecologically sustainable development; there is insufficient information as to whether existing electricity and water services are capable of accommodating the development; the application is not in the public interest; the application is not a suitable use for the site; there is appropriately zoned industrial land available; and the development is not consistent with the Wagga Wagga Development Control Plan 2005.