Barca v Wollondilly Shire Council - [2015] NSWLEC 1124

Land and Environment Court

New South Wales

Medium Neutral Citation: Barca v Wollondilly Shire Council & Ors [2015] NSWLEC 1124
Hearing dates: 8, 9 April 2015
Date of orders: 28 April 2015
Decision date: 28 April 2015
Jurisdiction: Class 1
Before: Pearson C
Decision:
1. The appeal is upheld.
2. Development Application No 10.2012.281.1 for a metal resource recovery and waste management facility at Lots 30 and 31 DP 826690, 390-400 Picton Road Maldon is approved subject to the conditions in Annexure A.
3. The exhibits are returned except for exhibits A, B, C, D, E, F, G, H, C5, C6, C7 and AM6.

Catchwords: DEVELOPMENT APPLICATION – Resource recovery and waste management facility – Owner’s consent - Access to site - Traffic generation and vehicle movements – Acoustic impacts – Air Quality – Risk assessment and management
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Mine Subsidence Compensation Act 1961
Protection of the Environment Operations Act 1997 Water Management Act 2000
Environmental Planning and Assessment Regulation 2000
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy No 33- Hazardous and Offensive Development
Wollondilly Local Environmental Plan 2011
Cases Cited: Barca v Wollondilly Shire Council [2014] NSWLEC 118
Category: Principal judgment
Parties: Rosaria Maria and Mimma Barca (Applicants)
Wollondilly Shire Council (First Respondent)
Allied Mills Pty Ltd (Second Respondent)
Sell and Parker Pty Ltd (Third Respondent)
Representation:
Counsel:
Mr J Robson SC with Mr G Newport (Applicants)
Mr S Simington, Solicitor (First Respondent)
Mr C McEwen SC with Mr S Nash (Second Respondent)
Mr P Lalich, Solicitor (Third Respondent)
Solicitors:
Bartier Perry (Applicants)
Lindsay Taylor Lawyers (First Respondent)
Gadens Lawyers (Second Respondent)
Allens (Third Respondent)

File Number(s): 11246 of 2012

Judgment

Rosaria Barca and Mimma Barca have appealed under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the Wollondilly Shire Council (Council) of consent to development application No 10.2012.281.1 for a metal resource recovery and waste management facility at Lots 30 and 31 DP 826690, 390-400 Picton Road Maldon (the site).
The site is located on the southern side of Picton Road, and is triangular in shape, with the eastern boundary being Picton Road, the southern boundary being the main Southern Rail Line, and the western boundary being the facility operated by Allied Mills Pty Ltd (Allied Mills) at 330 Picton Road.
The site comprises two allotments with a combined area of 8.94ha. Each allotment currently contains a dwelling house with the remainder of the land being used as open grazing land. Vehicular access to the site from Picton Road is by Right of Carriageway over the Allied Mills site, Lot 1 DP 1128013.
The site is the eastern extremity of a band of land between Picton Road and the Southern Railway line. Land uses in this area include the Allied Mills flour mill, a go cart track, rural residential and public utility infrastructure. The land on the opposite side of the rail line is…

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.

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Details

Case: [2015] NSWLEC 1124
Decision Date: 28 April 2015

CaseChat Overview and Summary

In the case of Barca v Wollondilly Shire Council, the applicant, Barca, sought approval for a development application related to the establishment of a metal resource recovery and waste management facility. The proposed location was at Lots 30 and 31 DP 826690, situated on 390-400 Picton Road in Maldon. Wollondilly Shire Council initially refused the application, leading to an appeal by Barca. The dispute reached the Supreme Court of New South Wales.

The primary legal issues before the court involved whether the council's refusal of the development application was lawful and whether the applicant had demonstrated a sufficient basis for approval. This included assessing the compliance of the proposal with the relevant planning schemes, environmental impact, and public interest considerations. The court also needed to determine if the conditions attached to the approval were appropriate and if any additional conditions were necessary.

The court found that the council's refusal was not justified, as the applicant had adequately demonstrated the merits of the development in line with the planning policies and objectives. The court emphasised the importance of sustainable waste management practices and recognised the potential benefits of the facility for the community. The judge concluded that the proposal was consistent with the planning schemes and did not pose significant environmental harm. Consequently, the court approved the development application, subject to specific conditions designed to mitigate any adverse impacts. The exhibits were returned, except for a defined list, to ensure the proper documentation of the case.

Orders

Orders of the court

1. The appeal is upheld.

2. Development Application No 10.2012.281.1 for a metal resource recovery and waste management facility at Lots 30 and 31 DP 826690, 390-400 Picton Road Maldon is approved subject to the conditions in Annexure A.

3. The exhibits are returned except for exhibits A, B, C, D, E, F, G, H, C5, C6, C7 and AM6.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Barca v Wollondilly Shire Council & Ors [2015] NSWLEC 1124
Hearing dates:	8, 9 April 2015
Date of orders:	28 April 2015
Decision date:	28 April 2015
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	1. The appeal is upheld. 2. Development Application No 10.2012.281.1 for a metal resource recovery and waste management facility at Lots 30 and 31 DP 826690, 390-400 Picton Road Maldon is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits A, B, C, D, E, F, G, H, C5, C6, C7 and AM6.
Catchwords:	DEVELOPMENT APPLICATION – Resource recovery and waste management facility – Owner’s consent - Access to site - Traffic generation and vehicle movements – Acoustic impacts – Air Quality – Risk assessment and management
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Mine Subsidence Compensation Act 1961 Protection of the Environment Operations Act 1997 Water Management Act 2000 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 33- Hazardous and Offensive Development Wollondilly Local Environmental Plan 2011
Cases Cited:	Barca v Wollondilly Shire Council [2014] NSWLEC 118
Category:	Principal judgment
Parties:	Rosaria Maria and Mimma Barca (Applicants) Wollondilly Shire Council (First Respondent) Allied Mills Pty Ltd (Second Respondent) Sell and Parker Pty Ltd (Third Respondent)
Representation:	Counsel: Mr J Robson SC with Mr G Newport (Applicants) Mr S Simington, Solicitor (First Respondent) Mr C McEwen SC with Mr S Nash (Second Respondent) Mr P Lalich, Solicitor (Third Respondent) Solicitors: Bartier Perry (Applicants) Lindsay Taylor Lawyers (First Respondent) Gadens Lawyers (Second Respondent) Allens (Third Respondent)
File Number(s):	11246 of 2012