Boral Resources (NSW) Pty Ltd v The Council of Camden trading as Camden Council

[2023] NSWLEC 1562

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Boral Resources (NSW) Pty Ltd v The Council of Camden trading as Camden Council [2023] NSWLEC 1562

Hearing dates:

Conciliation conference on 9 August 2023

Date of orders:

25 September 2023

Decision date:

25 September 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application for development consent in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to development application no. DA/2022/831/1, as amended, for increased production volume at the existing concrete batching plant from 125,000 tonnes per annum to 480,000 tonnes per annum, extended hours of operation and acoustic wall on land legally described as Lot 100 in DP 1203966 known as 80 Greendale Road, Bringelly, subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – existing concrete batching plant – proposed increase in production volumes – conciliation conference – agreement between the parties – orders

Legislation Cited:

Camden Local Environmental Plan 2010, cll 2.3, 5.21, 5.23, 6.1

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.15(3)

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy Amendment (Water Catchments) 2022

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 6, 9, 12, s 6.65

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Ch 3, ss 3.21, 3.22

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Resources and Energy) 2021, ss 2.9, 2.19, 3.11, Sch 3 Div 1 s 4

Category:

Principal judgment

Parties:

Boral Resources (NSW) Pty Ltd (Applicant)
The Council of Camden trading as Camden Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
M Astill (Respondent)

Solicitors:
Minter Ellison (Applicant)
Holding Redlich (Respondent)

File Number(s):

2023/135650

Publication restriction:

Nil

JUDGMENT

1. On 5 December 2018, the Court granted a conditional development consent to the applicant’s development application no. DA2016/578/1 for the establishment of a concrete batching plant and associated buildings (CBP) at Lot 100 in DP 1203966, also known as 80 Greendale Road, Bringelly (site) (2018 Consent).

2. The applicant now seeks development consent to its DA/2022/831/1 for an increase in production volumes at the site and an extension of the hours of operation under the 2018 Consent, and the construction of a noise wall along the northern bund of the CBP.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 August 2023. I presided over the conciliation conference.

4. During the conciliation conference, the applicant was granted leave to amend the DA to rely on the following additional information:

1. A letter prepared by the applicant justifying the increased hours of operation proposed by the DA dated 1 August 2023;

2. A letter prepared by EMM Consulting providing additional information to address the Council’s acoustic contentions dated 26 July 2023;

3. A letter prepared by Todoroski Air Sciences providing additional information to address the Council’s air quality contentions in its Statement of Facts and Contentions dated 31 July 2023;

4. Additional air quality information prepared by Todoroski Air Sciences dated 18 August 2023; and

5. An addendum to the Environmental Impact Assessment report prepared by EMM Consulting dated 29 August 2023.

5. The parties now inform me that the amending documents and agreed conditions of consent have satisfactorily addressed the contentions raised by the Council and where relevant the concerns expressed by the local residents. Moreover, that they have now reached agreement as to the terms of a decision in the proceedings that would be acceptable to them.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court upholding the appeal and exercising the function under s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the DA, subject to conditions.

7. There are jurisdictional preconditions that must be satisfied before this function can be exercised. And, after a consideration of the evidence filed with the s34 agreement, I accept the parties’ joint written submission that the proposed development satisfies all jurisdictional preconditions for the following reasons.

State Environmental Planning Policy (Resources and Energy) 2021 (Resources SEPP)

8. The proposed use, being an industry, is prohibited on the site under cl 2.3 of the Camden Local Environmental Plan 2010 (CLEP), as the land is zoned RU1 Primary Production. However, under s 2.9(4) of the Resources SEPP, if an extractive industry is being carried out with development consent on any land, development for the purposes of concrete works may also be carried out with development consent on that land.

9. On 3 March 2015, the Minister for Planning (Minister) granted consent to State significant development application SSD 5684 (SSD Consent) for the Bringelly Brickworks Extension Project at the site (Brickworks). The Brickworks is operating at the southeast portion of the site. Therefore, the parties agree, and I accept that the proposed development is permissible with development consent under s 2.9(4) of the Resources SEPP.

10. As the proposed development is in the vicinity of an existing extractive industry, before determining the DA, the consent authority must assess the application against s 2.19(2) of the Resources SEPP. Having carried out that assessment and the evaluation required under s 2.19(2)(b) and (c) of the Resources SEPP, the parties agree, and I accept that the amended DA adequately addresses the matters required to be considered under s 2.19(2)(a) of the Resources SEPP, and that the proposed development can be approved subject to the conditions of consent.

11. Section 3.11(1) of the Resources SEPP also applies to the site, as it is in the vicinity of land described in s 4 of Sch 3, Div 1. Pursuant to s 3.11(2) of the Resources SEPP, the parties agree, and I accept that the proposed development, as amended and subject to the agreed conditions of consent will not:

1. be adversely affected by noise, dust, vibration or reduced visual amenity from the Brickworks; or

2. adversely affect any existing nearby extractive industry or prevent any known future expansion of nearby extractive industry, namely the application to further modify the SSD Consent for the Brickworks to expand production (SSD Modification 2), currently under assessment by the Department of Planning and Environment.

State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Western Parkland SEPP)

12. Chapter 3 of the Western Parkland SEPP applies to the site, as it is located in the South West Growth Centre.

13. The consent authority is not to grant development consent on land within a growth centre unless it has taken into consideration the criteria under s 3.21 of the Western Parkland SEPP.

14. Again, the parties agree, and I accept that the amended DA satisfactorily addresses the relevant matters for consideration under s 3.21 of the Western Parkland SEPP.

15. In accordance with s 3.22 of the Western Parkland SEPP, the DA was referred to the Planning Secretary for comment. The parties agree and I accept that an assessment of the DA against s 3.21 of the Western Parkland SEPP appropriately takes into consideration the comments given by the Department (exercising the functions of the Planning Secretary under s 3.22 of the Western Parkland SEPP).

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP)

16. The State Environmental Planning Policy Amendment (Water Catchments) 2022 commenced on 21 November 2022. It repealed the previous Chs 6 to 12 of the Biodiversity SEPP and inserted a new Ch 6 (Water Catchments). However, s 6.65 saves the application of the former provisions to this amended DA because it was lodged and not finally determined before the commencement of the State Environmental Planning Policy Amendment (Water Catchments) 2022.

17. The site is located within the Hawkesbury-Nepean Catchment for the purposes of Ch 9 of the Biodiversity SEPP prior to its amendment by the State Environmental Planning Policy Amendment (Water Catchments) 2022.

18. There were no jurisdictional prerequisites in Ch 9 of the Biodiversity SEPP relevant to the amended DA prior to the commencement of the State Environmental Planning Policy Amendment (Water Catchments) 2022.

19. The parties are in agreement, and I accept that the amended DA and, where necessary, the conditions of consent in Annexure A satisfactorily address the relevant matters for consideration under the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP)

20. The parties have considered whether the land is contaminated and are satisfied that the land is suitable in its existing state for the purpose of the proposed development, in accord with s 4.6(1) of the Resilience SEPP. I accept this to be the fact on the evidence before me.

CLEP

21. The parties agree and I accept that the amended DA satisfies all relevant sections of the CLEP and, where required, this satisfaction is supported through the imposition of conditions of consent in Annexure A. Specifically:

1. the site is within the Upper South Creek Catchment, as shown in the Camden LGA - Catchment Map and the amended DA now satisfies the flood planning requirements under cl 5.21 of the CLEP.

2. the amended DA will not disturb, and is not reasonably likely to disturb, public bushland for the purposes of cl 5.23 of the CLEP.

3. the site is not within an urban release area shown on the Urban Release Area Map for the purposes of cl 6.1 of the CLEP.

Owner’s consent

22. In accordance with s 23(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the DA was lodged by Elissa Martino of Boral Resources (NSW) Pty Ltd with the written consent of the owners of the land, PGH Bricks & Pavers Pty Limited. A copy of the owner’s consent is at Tab 1A of the Class 1 Application filed on 28 April 2023.

Submissions and public interest

23. Under s 4.15(1)(d) and (e) of the EPA Act, the consent authority is required to take into consideration any submissions made in accordance with the EPA Act or EPA Regulation, and the public interest.

24. The DA was publicly notified for a period of twenty-eight (28) days from 23 September 2022 to 20 October 2022. Thirteen (13) submissions were received, eleven (11) of which were objecting to the proposed development.

25. At the conciliation conference, the parties heard oral submissions from three local residents objecting to the DA.

26. I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

27. However, the parties agree that the public interest and the public submissions have been satisfactorily addressed by the amended DA and the conditions of consent in Annexure A.

28. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I am required to dispose of the proceedings in accordance with their decision.

29. The Court notes:

1. Pursuant to s 38(1) of the EPA Regulation, the Council has approved the applicant amending the DA (DA/2022/831/1) to include the further and amended plans and documents listed at [4] above.

2. The applicant has filed the amended DA listed at [4] above with the Court on 1 September 2023.

30. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application for development consent in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to development application no. DA/2022/831/1, as amended, for increased production volume at the existing concrete batching plant from 125,000 tonnes per annum to 480,000 tonnes per annum, extended hours of operation and acoustic wall on land legally described as Lot 100 in DP 1203966 known as 80 Greendale Road, Bringelly, subject to the conditions in Annexure A.

…………………

S Dixon

Senior Commissioner of the Court

Annexure A (246484, pdf)

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Amendments

26 September 2023 - Correction to Representation

Decision last updated: 26 September 2023