Land and Environment Court New South Wales Medium Neutral Citation: Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 3) [2017] NSWLEC 83 Hearing dates: 10 to 14 October, 17 to 20 October, 25 to 26 October and 11 and 18 November 2016 (written submissions) Date of orders: 14 July 2017 Decision date: 14 July 2017 Jurisdiction: Class 1 Before: Robson J Decision: See orders at [6] Catchwords: APPEAL – objector appeal under s 75L against approval of a material recycling facility – conditions of approval Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Cases Cited: Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254 Ironstone Community Action Group Inc v NSW Minister for Planning and Duralie Coal Pty Ltd [2011] NSWLEC 195 Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 2) [2017] NSWLEC 53 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (No 2) [2010] NSWLEC 104 Category: Procedural and other rulings Parties: Proceedings 00159652 of 2016 Liverpool City Council (Applicant) Moorebank Recyclers Pty Ltd (First Respondent) Minister for Planning (Second Respondent) Proceedings 00157848 of 2016 Benedict Industries Pty Ltd (First Applicant) Tanlane Pty Ltd (Second Applicant) Minister for Planning (First Respondent) Moorebank Recyclers Pty Ltd (Second Respondent) Representation: Counsel: C J Leggat SC (Applicant in 2016/00159652) T S Hale SC with D Robertson (Applicants in 2016/00157848) T F Robertson SC with J E Lazarus (First Respondent in 2016/00159652 and Second Respondent in 2016/00157848) S Duggan SC with D Beaufils (First Respondent in 2016/00157848 and Second Respondent in 2016/00159652) Solicitors: Swaab Attorneys (Applicant in 2016/00159652) Minter Ellison (Applicant in 2016/00157848) Mark McDonald & Associates (First Respondent in 2016/00159652 and Second Respondent in 2016/00157848) Department of Planning and Environment (First Respondent in 2016/00157848 and Second Respondent in 2016/00159652) File Number(s): 2016/00159652; 2016/00157848 Judgment 1. On 8 May 2017 I delivered judgment in two third party objector appeals indicating that approval for the construction and operation of a materials recycling facility at Moorebank ought to be granted, however, the conditions of approval needed to be revised to take into account the findings in the judgment, Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 2) [2017] NSWLEC 53. 2. The matter was set down before the Court for a further hearing in relation to disputed conditions on 14 July 2017. I have been informed, and I accept, that the parties have, as at 13 July 2017, agreed on proposed conditions. As such it is unnecessary to hold a hearing in relation to the earlier disputed conditions. 3. The two third party objector appeals before the Court were brought pursuant to the former s 75L of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'), as the proposed development had been declared a major development under s 75B of the EPA Act. 4. This project application is being approved in a somewhat different form to that originally approved by the Planning Assessment Commission as delegate of the Minister for Planning. This is largely as a result of extensive further expert evidence marshalled in the proceedings, and expanded conditions which, as I have found at [215] of the judgment, address a number of the legitimate concerns raised in opposition to the proposal. Accordingly, in accordance with the approach adopted in Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254 at [5]-[6]; Ironstone Community Action Group Inc v NSW Minister for Planning and Duralie Coal Pty Ltd [2011] NSWLEC 195 at [224] and Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (No 2) [2010] NSWLEC 104 at [14], it is necessary for the Court, whilst granting approval, to uphold the appeal in each matter. 5. Accordingly, I make the following orders in each of proceedings 2016/00159652 and 2016/00157848: 1. The appeal is upheld. 2. Approval is granted to the project application 05-0157 referred to in Schedule A, subject to the conditions referred to in Schedules B-D of the approval in Annexure A. Orders 1. The Court makes the following orders: In proceedings 2016/00159652: 1. The appeal is upheld. 2. Approval is granted to the project application 05-0157 referred to in Schedule A, subject to the conditions referred to in Schedules B-D of the approval in Annexure A. In proceedings 2016/00157848: 1. The appeal is upheld. 2. Approval is granted to the project application 05-0157 referred to in Schedule A, subject to the conditions referred to in Schedules B-D of the approval in Annexure A. ********** Annexure A - Conditions of Approval (495 KB, pdf) Appendix A - Project Plans (9.23 MB, pdf) Appendix B - Statement of Commitments (136 KB, pdf) Appendix C - Receiver Locations (93.9 KB, pdf) Appendix D - Noise Barriers Plan (1.75 MB, 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: 03 August 2017