Ferrier Hodgson v Lake Macquarie City Council

[2018] NSWLEC 1585

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ferrier Hodgson v Lake Macquarie City Council [2018] NSWLEC 1585
Hearing dates:	Conciliation conference 2 November 2018
Date of orders:	13 November 2018
Decision date:	13 November 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) The development application DA/716/2016 seeking the amalgamation of Lot 599 DP 1228699 (2A Main Road, Boolaroo NSW) and Lot 1 DP 225720 (1A First Street, Boolaroo) and the staged 13 lot subdivision of the amalgamated site, is refused. (3) Exhibit 1 is returned. The Court notes the agreement of the parties that the applicant pay the respondent’s costs in the amount of $12,000.
Catchwords:	APPEAL – conciliation – parties agreed to a decision being made on the basis of what occurred at conciliation – former Cockle Creek Smelter and Incitec site – site specific clause applies requiring Planning Secretary certification – no known date by which certification could be obtained – no power to grant development consent
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy Amendment (Remediation of Land) 2018 State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Ferrier Hodgson (Applicant) Lake Macquarie City Council (Respondent)
Representation:	Solicitors: D McGregor, Minter Ellison (Applicant) M Winram, Maddocks Lawyers (Respondent)
File Number(s):	18/244753
Publication restriction:	No

Judgment

1. COMMISSIONER: At 2A Main Road and 1A First Street, Boolaroo, is the site of the former Pasminco Cockle Creek Smelter, which operated predominantly as a lead and zinc smelter from 1897 to 2003. Ferrier Hodgson seeks development consent to consolidate the lots and subdivide the consolidated lot. The development application, which was initially lodged with Lake Macquarie City Council (“the Council”) on 5 May 2016, has been amended and now seeks a 13 lot subdivision through a four stage development. The period after which a development application is deemed to be refused has expired, and accordingly Ferrier Hodgson appeals to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”).

2. The appeal was listed before me for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (“LEC Act”), which commenced on 2 November 2018. The parties did not enter into an agreement at the conciliation. By an online court request on 5 November 2018, the parties agreed to me disposing of the proceedings on the basis of what occurred at the conciliation, pursuant to s 34(4)(b)(ii) of the LEC Act. The Council’s Bundle of Documents, furnished at the conciliation, became Exhibit 1. In accordance with s 34(5) of the LEC Act, I am required to give reasons when giving a decision under subs (4)(b).

3. The parties agree that, as a result of cl 22 of State Environmental Planning Policy No 55—Remediation of Land (“SEPP 55”), there is presently no power for development consent to be granted. Accordingly, Ferrier Hodgson concedes that the appropriate outcome is for the appeal to be dismissed and the development application refused.

A site specific clause was added to SEPP 55

4. SEPP 55 applies to the site. On 31 August 2018, the State Environmental Planning Policy Amendment (Remediation of Land) 2018 inserted cl 22 into SEPP 55, which is a site specific clause affecting the entirety of the site the subject of the appeal. Pursuant to cl 22(10), the clause applies to a development application that has been made, but not finally determined, before the commencement of the clause on 31 August 2018.

5. Clause 22(1) outlines the objective of the clause as being “to ensure that adequate arrangements are in place to minimise and manage the risks associated with the containment cell on the site of the former Cockle Creek zinc and lead smelter and Incitec fertiliser factory (and other land within that site that has not been fully remediated) so as to protect human health and the environment in perpetuity”.

6. Pursuant to clause 22(3) of SEPP 55, a consent authority must not consent to a development application to carry out development on the former Cockle Creek Smelter and Incitec site unless certification is given by the Planning Secretary. Specifically, subcll (2) and (3) provide:

22 Perpetual care arrangements required for development at former zinc and lead smelter and fertiliser production site at Boolaroo, Lake Macquarie

...

(2) Land application

This clause applies to the land identified as “former Cockle Creek Smelter and Incitec site” on the Cockle Creek Smelter Land Map (the former Cockle Creek Smelter and Incitec site).

(3) Adequate arrangements for perpetual care required

A consent authority must not consent to a development application to carry out development on the former Cockle Creek Smelter and Incitec site unless the Planning Secretary has certified to the consent authority that, in the Planning Secretary's opinion, adequate arrangements are in place for the perpetual care of the following:

(a) the containment cell at the former Cockle Creek Smelter and Incitec site and its associated infrastructure,

(b) the land on which that cell and infrastructure is located,

(c) land on the former Cockle Creek Smelter and Incitec site that has not been remediated,

(d) the land on the former Cockle Creek Smelter and Incitec site that immediately before the commencement of this clause was within Zone E2 Environmental Conservation under Lake Macquarie Local Environmental Plan 2014.

...

7. As such, cl 22 prevents a consent authority, and the Court its role in exercising the functions of the consent authority, from granting consent to the present development application (DA/716/2016) unless the Planning Secretary has certified that adequate arrangements are in place for the perpetual care and maintenance of specific aspects of the site to which the application relates.

The certification required by cl 22(3) has not been provided

8. The certification required by clause 22(3) of SEPP 55 has not been provided and there has been no indication to Ferrier Hodgson or to the Council that the certification will be provided at any time prior to the hearing of the appeal, which is listed in February 2019. Ferrier Hodgson considers that the certification will not be forthcoming within any known period. Pursuant to cl 22(3), I am therefore precluded from consenting to the development application. There is therefore, at present, no power to grant the development consent.

9. Accordingly, by consent, the parties request that I make orders dismissing the appeal and refusing the development application. The parties have also agreed that Ferrier Hodgson pay the Council's costs of the proceedings, in the amount of $12,000.

Orders

10. The Court orders that:

1. The appeal is dismissed.

2. The development application DA/716/2016 seeking the amalgamation of Lot 599 DP 1228699 (2A Main Road, Boolaroo NSW) and Lot 1 DP 225720 (1A First Street, Boolaroo) and the staged 13 lot subdivision of the amalgamated site, is refused.

3. Exhibit 1 is returned.

11. The Court notes the agreement of the parties that the applicant pay the respondent’s costs in the amount of $12,000.

________________

Commissioner Gray

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Decision last updated: 13 November 2018