Davis v Gosford City Council [2012] NSWLEC 1368

Land and Environment Court New South Wales

Medium Neutral Citation: Davis v Gosford City Council [2012] NSWLEC 1368 Hearing dates: 29-30 October 2012 Decision date: 21 November 2012 Jurisdiction: Class 1 Before: Brown C and Fakes C Decision: 1. The appeal is dismissed. 2. Development Application No. 40918/2011 for a waste resource recovery facility at 168 Somersby Falls Road, Somersby is refused. 3. The exhibits are returned. Catchwords: DEVELOPMENT APPLICATION: waste resource recovery facility - abuse of process - unacceptable impact on threatened flora and fauna Legislation Cited: Environmental Planning and Assessment Act 1979 Threatened Species Conservation Act 1995 Gosford Local Environmental Plan 22 Gosford Local Environmental Plan 457 Cases Cited: Davis v Gosford City Council [2007] NSWLEC 795 Davis v Gosford City Council [2012] NSWLEC 62 Russo v Kogarah Municipal Council (1999) 105 LGERA 290 Category: Principal judgment Parties: Raymond Davis and Suzanne Davis (Applicants) Gosford City Council (Respondent) Representation: Mr A Pickles, barrister (Applicants) Mr M Fraser, barrister (Respondent) Michael Flaherty (Applicants) PJ Donnellan & Co (Respondent) File Number(s): 11217 of 2011

Judgment 1COMMISSIONERS: This appeal, made under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) is against Gosford City Council's deemed refusal of Development Application No. 40918/2011 for a waste resource recovery facility at 168 Somersby Falls Road, Somersby (the site). The site is within the Somersby Industrial Park (SIP). 2The facility will recycle construction and demolition waste for use in the construction and building industry. Materials to be processed include up to 75,000 tonnes per annum of brick, sandstone, soil, asphalt, timber, metal and other materials. The development includes: * installation of a crusher, screen and associated grates and sumps; * storage areas for processed and waste materials; * an access road from Somersby Falls Road; * parking areas, weighbridge, on-site refuelling facilities; * a 6m high acoustic wall, dust suppression measures, and stormwater drainage systems; * three transportable buildings for office and staff amenities; * landscaping around the perimeter; and * six permanent staff.