Land and Environment Court New South Wales Medium Neutral Citation: Australian Native Landscapes Pty Ltd v Lake Macquarie City Council (No.2) [2018] NSWLEC 1095 Hearing dates: 3, 4, 6, 7, 10 & 11 April 2017 Date of orders: 28 February 2018 Decision date: 28 February 2018 Jurisdiction: Class 1 Before: Dixon SC Decision: (1) The appeal is upheld. (2) Development consent is granted to Development Application DA792/2016 in respect of land at Lot 84 DP 9632 known as 60 Crawford Road, Cooranbong, approved subject to the conditions set out in Annexure A. Catchwords: APPEAL – development application for a leachate dam, surcharge storage area, bunding – impacts from leachate and odour arising from the operations on the site – Res Judicata – whether issue estoppel in respect of size and capacity of the temporary surcharge overflow area arising from findings in related class 4 judgment Legislation Cited: Protection of the Environment Operations Act 1997 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Cases Cited: Australian Native Landscapes Pty Limited v Lake Macquarie City Council (No 5) [2016] NSWLEC 134 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (No 2) [2010] NSWLEC 104 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 Weston Aluminium Pty Ltd v Environment Protection Authority and Anor; Weston Aluminium Pty Ltd v Alcoa Australia Rolled Products Pty Ltd (2007) 156 LGERA 283 Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225 Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171 Carr v Minister for Land & Water Conservation (2000) 109 LGERA 175 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30 Allen Commercial Constructions Pty Ltd v The Council of the Municipality of North Sydney (1970) 123 CLR 490 Municipal Council of Sydney v Campbell [1925] AC 338 Council of the Shire of Werribee v Kerr (1928) 42 CLR 1 Texts Cited: Handley K, Spencer Bower and Handley – Res Judicata, (4th ed 2009, LexisNexis) Category: Principal judgment Parties: Australian Native Landscapes Pty Ltd (Applicant) Lake Macquarie City Council (Respondent) Representation: Counsel: Mr T Howard SC (Applicant) Mr T To ( Respondent) Solicitors: McCabes Lawyers (Applicant) Moray & Agnew (Respondent) File Number(s): 2016/219940 Publication restriction: No Judgment 1. In my judgment in Australian Native Landscapes Pty Ltd v Lake Macquarie City Council [2018] NSWLEC 1006 published on 11 January 2018 in determining the application I ordered that the Council provide to the Court a copy of the conditions of consent consistent with my reasons for judgment. That direction has been satisfied with the receipt of the Council's conditions of consent on 29 January 2018; the consequence being that the matter is now complete. That said, I wish to make abundantly clear for the purpose of defining the time for commencement of the deferred commencement conditions in Part A of the conditions of consent that time is to run from the date of the publication of this judgment being 28 February 2018. 2. Accordingly, the Court orders: 1. The appeal is upheld. 2. Development consent is granted to Development Application DA792/2016 in respect of land at Lot 84 DP 9632 known as 60 Crawford Road, Cooranbong, approved subject to the conditions set out in Annexure A. __________________________ Susan Dixon Senior Commissioner of the Land & Environment Court Annexure A (103 KB, 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: 28 February 2018