Matthew Arthur Harrison trading as All Town Skips v Central Coast Council

[2022] NSWLEC 1244

Land and Environment Court

New South Wales

Medium Neutral Citation:

Matthew Arthur Harrison trading as All Town Skips v Central Coast Council [2022] NSWLEC 1244

Hearing dates:

Conciliation conference on 4 May 2022

Date of orders:

11 May 2022

Decision date:

11 May 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application DA/914/2019 for the construction of a waste or resource transfer station and ancillary works at 5 Mooramba Avenue, Tuggerah, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – waste or resource transfer station and ancillary works – suitability of a particular road in providing road access to the development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.16, 7.11, 8.7

Land and Environment Court Act 1979, s 34

Standard Instrument (Local Environmental Plans) Order 2006, cl 8

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

Wyong Local Environmental Plan 2013, cll 7.1, 7.9

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.152

Texts Cited:

Wyong District Development Contributions Plan

Category:

Principal judgment

Parties:

Matthew Arthur Harrison trading as All Town Skips (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
PBL Law Group (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2021/245479

Judgment

1. These proceedings arise following the Hunter and Central Coast Regional Planning Panel’s refusal of the applicant’s development application 914/2019 (DA) for a waste or resource transfer station and ancillary works (the proposal) at 5 Mooramba Avenue, Tuggerah (the site).

2. The proposal involves the recycling of up to 6,000 tonnes of (non-putrescible) waste per annum at the site, and the construction of a concrete hardstand area, site office and amenities block, material shed, storage shed, ancillary drainage and landscaping works.

3. The proceedings started onsite as a hearing but were ultimately resolved in a conciliation conference convened under s 34(1) of the Land and Environment Court Act 1979 (LEC Act).

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement provided I have jurisdiction. In this case the parties’ decision involves the Court exercising the functions under s 4.16 of the EPA Act to grant development consent to the amended application on a conditional basis. The parties identified the jurisdictional prerequisites of relevance in a written submission dated 4 May 2022. Having considered that submission and the evidence before me, including the traffic report of Mr McClaren, I am satisfied that I have power to make the orders as agreed by the parties at the conference. In that regard it is to be noted that:

Owner’s consent

5. The DA was lodged on 25 September 2019 on behalf of Matthew Harrison, who is the owner of the land.

Wyong Local Environmental Plan 2013 (LEP)

6. By operation of cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006, the relevant LEP provisions for this application are those in force as at 25 September 2019.

7. The site is zoned IN2 Light Industrial under the LEP and development for the purpose of a waste or resource transfer station is permissible with consent in that zone. The proposed development is also permissible with consent under s 2.152 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (formerly cl 121 of State Environmental Planning Policy (Infrastructure) 2007).

8. The site is classified as Class 3 and Class 4 on the Acid Sulphate Soils Planning Map and the applicant has provided an acid sulphate soils management plan for the proposal in accordance with the requirements of the clause 7.1 of the LEP. The proposed conditions require the development is carried out in accordance with the plan so cl 7.1 is not an impediment to the grant of consent.

9. Clause 7.9 of the LEP requires that essential services to the development be available. The provision is in the following terms:

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access

10. The evidence is that those services are, or will be, available when required by the development. The proposed conditions require road widening and other works to Mooramba Avenue to be carried out to ensure it provides suitable vehicular access. In that regard, I accept the parties’ traffic experts’ assessment that if the road is widened in the several places as identified in the deferred commencement condition and the identified vegetation is removed that this will satisfactorily address the requirement for vehicles to safely pass. On that basis cl 7.9 is not a basis to refuse this application.

State Environmental Planning Policy(Resilience and Hazards) 2021 – s 4.6 (formerly cl 7 of State Environmental Planning Policy No 55—Remediation of Land)

11. The application was accompanied by a contamination assessment which confirms that the site in its current state is appropriate and suitable for the intended land use. I accept that report satisfactorily addresses the issue of contamination.

Bushfire prone land – s 4.14 of the EPA Act

12. The site is bushfire prone land. The Bushfire Report of Graham Swain concludes that the development, if carried out in accordance with the recommendations of the report will comply with Planning for Bushfire Protection as required by s. 4.14 of the EPA Act. Based on Mr Swain’s expert assessment I am satisfied that the issue of bush fire is appropriately addressed.

Ecology

13. Council-owned land to the south and west contains of the site contains Alluvial Floodplain Swamp Forest which forms part of an endangered ecological community. Within that adjoining land there are numerous Melaleuca biconvexa, a species listed as vulnerable under the Biodiversity Conservation Act 2016. The applicant’s ecology reports concludes that the development, and any road widening proposed by the traffic experts, will not have a significant impact on any threatened species or ecological communities and the Council submits that ecology is no longer raised as a contention. I accept the ecologist’s expert assessment about the impact of the development on the EEC and the Melaleuca biconvexa, and I am satisfied that this matter is satisfactorily addressed by the proposed conditions of consent.

14. As I am satisfied, as required by s34 of the LEC, that I have the requisite jurisdiction to dispose of the matter in accordance with the parties’ decision I make the following orders.

15. The Court notes:

1. That the Hunter and Central Coast Regional Planning Panel, as the relevant consent authority, has pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, consented to the applicant amending the development application DA/914/2019 made on 2 May 2022 to rely on the documents and plans specified at paragraph 1(a)-(g) in the Notice of Motion dated 29 April 2022 (the amended application).

2. That Central Coast Council has uploaded the amended application on the NSW planning portal on 4 May 2022.

3. That the applicant has subsequently filed the amended application with the Court on 4 May 2022.

16. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application DA/914/2019 for the construction of a waste or resource transfer station and ancillary works at 5 Mooramba Avenue, Tuggerah, subject to the conditions at Annexure A.

………………………

Susan Dixon

Senior Commissioner of the Court

Annexure A (225602, pdf)

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Decision last updated: 12 May 2022