Land and Environment Court New South Wales Medium Neutral Citation: Pegela Pty Ltd v Oberon Earthmoving Pty Limited; Walter Graham Turnbull v Oberon Council [2018] NSWLEC 1624 Hearing dates: Conciliation conference on 29 – 30 October 2018 and 15 November 2018 Date of orders: 03 December 2018 Decision date: 03 December 2018 Jurisdiction: Class 1 Before: Bish C Decision: See [12] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Oberon Local Environmental Plan 2013 Protection of the Environment Operations (Waste) Regulation 2014 Category: Principal judgment Parties: Proceedings 2018/129047 Pegela Pty Ltd (Applicant) Oberon Earthmoving Pty Ltd (First Respondent) Oberon Council (Second Respondent) Proceedings 2018/132872 Walter Graham Turnball (Applicant) Oberon Council (First Respondent) Oberon Earthmoving Pty Ltd (Second Respondent) Representation: Counsel: Proceedings 2018/129047 A Pickles SC (Applicant) D Miller SC and Dr J Smith (First Respondent) J Reid (Second Respondent) Proceedings 2018/132872 J McKelvey (Applicant) J Reid (First Respondent) D Miller SC and Dr J Smith (Second Respondent) Solicitors: Proceedings 2018/129047 B Fuller, Gilbert + Tobin Lawyers (Applicant) A Beale, Minter Ellison (First Respondent) P Crennan, Crennan Legal (Second Respondent) Proceedings 2018/132872 P J Donnellan & Co (Applicant) P Crennan, Crennan Legal (First Respondent) A Beale, Minter Ellison (Second Respondent) File Number(s): 2018/129047; 2018/132872 Publication restriction: No Judgment 1. COMMISSIONER: These are appeals against approval by the Western Joint Regional Planning Panel (WJRPP) to grant Development Application (DA) 10.2016.38.1 for an extractive industry and waste management facility on Lot 2 DP 112479, also known as 50 Sewells Creek Road, Oberon. 2. The appeals lodged by Pegela Pty Ltd (First Applicant) and Walter Graham Turnball (Second Applicant) seek to amend and add conditions in the consent of the DA, to specifically address contended issues relating to visual amenity, traffic and zone objective consistency. Further to this, The First Applicant seeks to address issues relating to waste management and public interest. The Second Applicant additionally seeks to address amenity impacts of air quality and noise, which is not pressed following the site inspection. 3. These Class 1 (objector) appeals are made under s 8.8 of the Environmental Planning and Assessment Act 1979 (EP&A Act 1979). The Court is required to make a determination, to the conditions of consent, pursuant to s 4.16(1) of the EP&A Act 1979. 4. The Court arranged a conciliation conference onsite under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 29 – 30 October 2018. I have presided over the conciliation conference. There were no third party objections to these appeals made at the conference. 5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeals and amend conditions of consent for the DA relating to the specified issues of contention. 6. The original approval by the WJRPP of the DA was made pursuant to s 4.15 of the EP&A Act 1979. The parties have advised the Court that the s34 agreements are made consistent with advice, by email correspondence, from the WJRPP that grants delegation to Oberon Council (as First Respondent) to resolve these appeals, pursuant to s 4.14(6)(a) of the EP&A Act 1979. 7. Under s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The Court is satisfied that the appeals made are consistent with the requirements of s 8.8(2) of the EP&A Act 1979, as both applicants provided submissions during the exhibition period of the original DA. 8. The parties' decision in reaching these agreements involves the Court exercising its function under s 4.16(1)(a) of the EP&A Act 1979 to grant consent to the development application with conditions. Conditions of DA consent as imposed in the s34 agreements are amended pursuant to s 4.17(1)(a) of the EP&A Act 1979. 9. With respect to the DA conditions of consent under appeal, the parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EP&A Act 1979, as consistency with the Oberon Local Environmental Plan 2013 (OELP 2013). Specifically, the parties explained that the amended rehabilitation and landscape plan will address potential visual impact, together with additional conditions for air quality/noise amenity protection including limitation on days/hours for noise emitting activities. The traffic issue was addressed by way of conditions that relate to hours of operation, as well as a limitation on truck movements with auditing and code of conduct. The waste issue was addressed by requiring a chain of custody condition for import/export of waste materials that are defined under the Protection of the Environment Operations (Waste) Regulation 2014. By satisfactory resolution of the contentions above, the contentions relating to public interest and consistency with zone objectives are agreed as resolved. 10. I am therefore satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act 1979. 11. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act 1979 to dispose of the proceedings in accordance with the parties' decision. 12. The Court orders: 1. Oberon Earthmoving Pty Ltd is granted leave to rely on the amended plans and documents set out under condition 1 of the conditions of consent annexed hereto and marked "A". 2. The appeals, being 2018/00129047 and 2018/00132872, are upheld. 3. Development consent is granted to Development Application No. DA-10.2016.38.1, for an extractive industry and waste management facility on Lot 2 DP 112479, also known as 50 Sewells Creek Road, Oberon subject to the conditions of consent annexed hereto and marked "A", and Rehabilitation and Landscape Plan, annexed hereto and marked "B". 4. No cost order is made. …………………….. S Bish Commissioner of the Court Annexure A (261 KB, pdf) Annexure B (5.05 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 December 2018