115 Constitution Road Pty Limited v Marrickville Council - [2007] NSWLEC 418

Land and Environment Court

of New South Wales

CITATION: 115 Constitution Road Pty Limited v Marrickville Council [2007] NSWLEC 418

PARTIES:
APPLICANT
115 Constitution Road Pty Limited
RESPONDENT
Marrickville Council

FILE NUMBER(S): 10113 of 2007

CORAM: Tuor C

KEY ISSUES: Development Application :- Cap and contain on site contamination
Adequacy of Site Audit Report and Environmental Management Plan
Conditions of approval

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environment Planning Policy 55 - Remediation of Land
Marrickville Local Environmental Plan 2001

DATES OF HEARING: 15/06/2007

EX TEMPORE JUDGMENT DATE: 18 June 2007

LEGAL REPRESENTATIVES:
APPLICANT
Dr S Berveling, barrister
instructed by Ms C Georgiou of
Levitt Robinson, Solicitors
RESPONDENT
Mr G Christmas, solicitor
Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

18 June 2007

10113 of 2007 115 Constitution Road Pty Limited v Marrickville Council
JUDGMENT

1 This is an appeal against the refusal by Marrickville Council (the council) of a Development Application (200500296) to cap and contain on site contamination at 115-117 Constitution Road, Dulwich Hill (the site).

2 The Statement of Issues contained the following issues:

1) As at the date of this Amended Statement of Issues, the appointed Site Auditor has not issued a final Site Audit Statement stating that the site is suitable for its intended use.

2) As at the date of this Amended Statement of Issues, an Environmental Management Plan satisfactory to both the appointed Site Auditor and the Council has not been finalised.

(3) There has been inadequate testing of soil gases under the basement slab. Such testing should be carried out to determine the extent of the risk which will then enable appropriate mitigation strategies to manage that risk.

3 At the date of the hearing these issues had been resolved between the parties. The only outstanding issue remained a dispute about the wording of condition 20 in the draft conditions of approval.

4 The site, its context, the background to the application and the statutory controls are set out in the Statement of Basic Facts.

5 Briefly, the site has an area of approximately 6239 sq m, which was largely contaminated. The site was rezoned from Light Industrial “B” to Residential “C” under Amendment No.18 to Marrickville Local Environmental Plan 2001 (LEP 2001).

6 On 14 July 2003, council approved a Development Application (200200467) subject to conditions for a residential development with 95 dwellings, a convenience store and basement parking (the 2003 consent). The conditions included a requirement that a Remediation Action Plan be submitted to council before the commencement of the work. Other conditions required that the remediation work be carried out in accordance with Marrickville Development Control Plan 29 - Contaminated Land Policy and Development Controls (DCP 29).

7 Section 6.16 – Containment/Capping of Contaminated Soil of DCP 29 provides:

No contaminated soil shall be encapsulated or capped on the site that contains concentrations of contaminants that are above the soil investigation levels for urban development sites in NSW for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 115 Constitution Road Pty Limited v Marrickville Council

Details

AGLC: 115 Constitution Road Pty Limited v Marrickville Council [2007] NSWLEC 418
Case: [2007] NSWLEC 418
Decision Date: 18 June 2007

CaseChat Overview and Summary

The applicant, 115 Constitution Road Pty Limited, appealed against the Marrickville Council's refusal of a Development Application to cap and contain on site contamination at 115-117 Constitution Road, Dulwich Hill. The primary issue was whether the contamination on the site posed a significant risk to human health or the environment that would outweigh the risks of not proceeding with the remediation works. The applicant argued that the capping and containment of the contamination was an effective method of managing the risks, and that the refusal of the application was not justified under the relevant legislation.

The court considered the evidence provided by the DECC accredited Site Auditor, Dr Ian Swane, who issued a Site Audit Statement certifying that the site was suitable for residential use with minimal soil access, subject to compliance with the Environmental Management Plan. The Site Audit Statement highlighted that a large volume of contaminated soil remained on the site, but Dr Swane stated that the risks to future residents would be much higher if the contaminated soils had not been encapsulated in the manner they were. The court accepted Dr Swane's evidence and found that the proposal, as outlined in the Site Audit Statement and the Environmental Management Plan, would reduce the risk to an acceptable level, and a level that was less than if the work were not undertaken.

The court found that the refusal of the application was not justified under the relevant legislation, and upheld the appeal. The court approved the development application subject to certain conditions, including requirements that the development be carried out in accordance with the Site Audit Statement and the Environmental Management Plan, and that the Environmental Management Plan may only be amended with the approval of council. The court also ordered that a positive covenant on the title of the land and the bi-laws require the current and future owners to comply with the Environmental Management Plan, and that a restrictive covenant on the use of the land to prevent damage to the slab be included. The applicant and the council were ordered to amend the wording of certain conditions to ensure that the obligation on the current and future owners to comply with the Environmental Management Plan was articulated in the covenant and the bi-laws.

Orders