Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4

Land and Environment Court New South Wales

Medium Neutral Citation: Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 Hearing dates: 19, 20, 23, 24, 25, 26, 27, 30 November, 1, 2, 3, 4, 7, 8, 9, 10, 11, 15, 16, 17, 18 December 2015 and 10, 11, 14 and 15 March 2016 Date of orders: 24 January 2017 Decision date: 24 January 2017 Jurisdiction: Class 5 Before: Pepper J Decision: All charges dismissed. Catchwords: ENVIRONMENTAL OFFENCES: whether construction of a bund was prohibited development – whether the construction of a bund was development permissible with consent – purpose of construction of bund – whether bund constructed to dispose of waste – whether construction of bund ancillary to lawful quarrying activity – whether there was development consent granted by the council or some other regulatory authority to carry out extractive activity – charge dismissed.

ENVIRONMENTAL OFFENCES: whether trees and bushland vegetation injured contrary to a tree and bushland vegetation preservation order – whether injured vegetation was "bushland vegetation" for the purpose of the order – principles applicable to construction of subordinate legislation – injury of trees and bushland vegetation ancillary to construction of bund – charges dismissed.

DEVELOPMENT CONSENT: principles of construction of development consent – principles of characterisation of use of land – whether development constitutes ancillary development under planning instruments – inconsistency between planning instruments.

EVIDENCE: application of presumption of regularity to infer existence of development consent – whether prosecutor's expert evidence reliable and impartial. Legislation Cited: County of Cumberland Planning Scheme Ordinance, cls 4, 5,6, 23(1)(a) and (2), 26, 29, 32, 33(a), 41(2)