Davis v Gosford City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Davis v Gosford City Council [2012] NSWLEC 1329

Hearing dates:

29-30 October 2012

Decision date:

21 November 2012

Jurisdiction:

Class 1

Before:

Brown C and Fakes C

Decision:

1. The appeal is dismissed.

2. Development Application No. 40918/2011 for a waste resource recovery facility at 168 Somersby Falls Road, Somersby is refused.

3. The exhibits are returned.

Catchwords:

DEVELOPMENT APPLICATION: waste resource recovery facility - abuse of process - unacceptable impact on threatened flora and fauna

Legislation Cited:

Environmental Planning and Assessment Act 1979
Threatened Species Conservation Act 1995
Gosford Local Environmental Plan 22
Gosford Local Environmental Plan 457

Cases Cited:

Davis v Gosford City Council [2007] NSWLEC 795
Davis v Gosford City Council [2012] NSWLEC 62
Russo v Kogarah Municipal Council (1999) 105 LGERA 290

Category:

Principal judgment

Parties:

Raymond Davis and Suzanne Davis (Applicants)
Gosford City Council (Respondent)

Representation:

Counsel
Mr A Pickles, barrister (Applicants)
Mr M Fraser, barrister (Respondent)
Solicitors
Michael Flaherty (Applicants)
PJ Donnellan & Co (Respondent)

File Number(s):

11217 of 2011

Judgment

1. COMMISSIONERS: This appeal, made under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) is against Gosford City Council's deemed refusal of Development Application No. 40918/2011 for a waste resource recovery facility at 168 Somersby Falls Road, Somersby (the site). The site is within the Somersby Industrial Park (SIP).

1. The facility will recycle construction and demolition waste for use in the construction and building industry. Materials to be processed include up to 75,000 tonnes per annum of brick, sandstone, soil, asphalt, timber, metal and other materials. The development includes:

• installation of a crusher, screen and associated grates and sumps;
• storage areas for processed and waste materials;
• an access road from Somersby Falls Road;
• parking areas, weighbridge, on-site refuelling facilities;
• a 6m high acoustic wall, dust suppression measures, and stormwater drainage systems;
• three transportable buildings for office and staff amenities;
• landscaping around the perimeter; and
• six permanent staff.

The contentions

1. The council raises the following contentions in the Amended Statement of Facts and Contentions that warrant the refusal of the application:

(1)   abuse of process as the development application is almost identical to and materially the same as the appeal dismissed by the Land and Environment Court in 2007 (Contention 1).

(2)   unacceptable impact on threatened fauna, specifically the Eastern Pygmy Possum (Contentions 2 and 4).

(3)   unacceptable impact on threatened fauna, specifically the Hibbertia procumbens. The council modified its position on the incursion into the Hibbertia procumbens management zone by accepting that the proposed incursion would be acceptable if the applicant provided a suitable offset area. The applicant advised that no offset was required and none was offered (Contentions 2 and 3).

1. The council did not press contentions relating to the proposal being prohibited use Draft Gosford Local Environmental Plan 2009 (Contention 5), water management (Contention 6), waste management (Contention 7) and air quality (Contention 8).

Additional contentions raised by objectors on the site inspection and during the advertising…