Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd

Case •

[2015] NSWLEC 40

•

18 March 2015

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40
Hearing dates:9-12 February 2015
Date of orders: 18 March 2015
Decision date: 18 March 2015
Jurisdiction:Class 4
Before: Preston CJ
Decision:

Orders as set out at [199]

Catchwords: Judicial review – determination to grant development consent to marina development – site had history of potentially contaminating activities – preconditions to granting consent under cl 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) – contamination and remediation to be considered before determining development application – whether preliminary investigation of land and report on it provided to the consent authority – whether consideration by consent authority of report specifying findings of a preliminary investigation – no investigation or report and no consideration – whether consideration of contamination of land, suitability of land after remediation for proposed use, and remediation before land is used – consideration of contamination, but not suitability or remediation – preconditions to granting consent not satisfied – breach of SEPP 55 – relief to be granted to remedy and restrain breach – whether Court should in its discretion not declare consent invalid and direct alternative process of investigation and consideration of contamination and remediation – orders made declaring consent invalid and restraining carrying out of marina development.
Legislation Cited: Contaminated Land Management Act 1997
Environmental Planning and Assessment Act 1979 ss 24(1), 80(1), 79C, 123, 124, 145C, Sch 4A
Land and Environment Court Act 1979 ss 20(2), 23, 25B, Pt 3 Div 3
Protection of the Environment Operations Act 1991
Environmental Planning and Assessment Regulation 2000 cl 7(1) of Sch 2, cl 23 of Sch 3
State Environmental Planning Policy No 55 – Remediation of Land
Cases Cited: Arnold v Minister Administering the Water Management Act 2000 [2014] NSWCA 386
Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33; (2011) 182 LGERA 370
Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110
Chisholm v Pittwater Council [2001] NSWCA 104
Cariste Pty Ltd v The Council of the City of Blue Mountains [1996] NSWCA 92
DEXUS Funds Management Ltd v Blacktown City Council (No 3) [2011] NSWLEC 230
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
GPT RE Ltd v Belmorgan Property Development Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647
Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; (2012) 190 LGERA 119
Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429
Jolly v District Council of Yorketown [1968] HCA 55; (1968) 119 CLR 347
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 1521; (2008) 251 ALR 80
R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407
Tickner v Chapman (1995) 57 FCR 451; (1995) 89 LGERA 1
Category:Principal judgment
Parties: Moorebank Recyclers Pty Ltd (Applicant)
Benedict Industries Pty Ltd (First Respondent)
Tanlane Pty Ltd (Second Respondent)
Sydney West Joint Regional Planning Panel (Third Respondent)
Liverpool City Council (Fourth Respondent)
Representation:

Counsel:
Mr T F Robertson SC with Mr J E Lazarus (Applicant)
Mr T S Hale SC with Mr D Hume (First and Second Respondents)
No appearance (Third Respondent)
No appearance (Fourth Respondent)

Solicitors:
Mark McDonald and Associates Lawyers (Applicant)
Minter Ellison (First and Second Respondents)
Department of Planning and Environment, Legal Services Branch (Third Respondent)
Sparke Helmore (Fourth Respondent)
File Number(s):40850 of 2014
Publication restriction:No

Judgment

Nature of case and conclusion

  1. On 22 August 2014, Sydney West Joint Regional Planning Panel (‘JRPP’) granted development consent to development application No DA - 846/2012 (‘the consent’) made by Benedict Industries Pty Ltd (‘Benedict’) for the construction of a marina and related facilities on land at 146 Newbridge Road, Moorebank, being Lot 7 in DP1065574 (‘the land’), owned by Tanlane Pty Ltd (‘Tanlane’).

  2. An adjoining landowner, Moorebank Recyclers Pty Ltd (‘Moorebank’), has brought judicial review proceedings challenging the consent on grounds that the JRPP failed to comply with cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (‘SEPP 55’) in various respects.

  3. I find that the JRPP did fail to comply with cl 7 of SEPP 55 in the grant of the consent, and thereby breached the Environmental Planning and Assessment Act 1979 (‘EPA Act’). The appropriate relief to remedy and restrain the breach are orders declaring the consent invalid and restraining the carrying out of the development. I am not persuaded that the circumstances justify a discretionary refusal of such relief or the embarking on the process of review, alteration or regrant of the consent by the JRPP advocated by Benedict.

The grant of development consent for the marina

  1. The land proposed for the marina development is the southern portion of a larger site adjacent to the Georges River at Moorebank. The northern portion of the site has been filled between six to eight metres with fill and waste. This area was rezoned to permit residential development.

  2. The southern portion of the site has been, and still is being, used for sand extraction by dredge to depths of 15 m. It contains large dredge ponds and reject material from the sand washery. The sand extraction has been and is being undertaken under the authority of a development consent issued by the Land and Environment Court on 31 March 1993 in an appeal (‘the 1993 consent’). The terms of this consent became relevant when the JRPP made its decision to grant consent to the marina development.

  3. In January 2012, Benedict lodged with Liverpool City Council (‘the Council’) a development application for a marina on the Tanlane land. Development for the purposes of a marina is classified as designated development under cl 23 of Sch 3 of the Environmental Planning and Assessment Regulation 2000 (‘EPA Regulation’). Designated development for the purpose of marinas is development for which a regional panel may be authorised to exercise the functions of a council as a consent authority under Sch 4A of the EPA Act and State Environmental Planning Policy (State and Regional Development) 2011. The Benedict development application was, therefore, subsequently referred to the JRPP for determination.

  4. The proposed marina development comprised the following elements:

  1. maritime building including dry berth facility;

  2. function centre and associated kiosks, tourist, entertainment, recreation and club facilities;

  3. wet berth facility including casual berths in a marina basin, public recreation facilities on the foreshore, associated works and infrastructure;

  4. construction of a private marina clubhouse; and

  5. construction of three carparking areas, including a basement carpark.

  1. Construction of the marina basin to build the wet berth facility including filling and shaping the existing sand quarry; cutting and shaping an access channel from the Georges River; and stabilising, embellishing and revegetating the river foreshore along the Georges River frontage. The latter works were to be carried out in accordance with a voluntary planning agreement made between Tanlane and the Council dated 11 June 2008.

  2. The development application was accompanied by an environmental impact statement (‘EIS’) which appended reports on various issues. The EIS and reports discussed aspects of the contamination of the site by past and future activities. The EIS contained a particular subsection discussing SEPP 55. This subsection provided:

3.4.2 State Environmental Planning Policy No 55 – Remediation of Land

The portion of the site on which the proposed development will be located makes the application of SEPP 55 inappropriate as the landform is yet to be constructed ie it is just a large dredge pond.

A Stage 1 Contamination Investigation has been undertaken which focuses largely on the adjoining raised portion of the site which is above the 1:100 flood level and confirms that it was suitable to be rezoned for medium density residential purposes. Council has subsequently rezoned this land R3 (medium density residential).

However, for all intents and purposes the final landform for the marina development does not exist and cannot therefore be assessed. This is because the site has been excavated as a result of the extractive industry operations undertaken via dredging which have removed the sand resource and created 6 ha of dredge ponds. These ponds will be utilised to form the basis of the final marina basin. It is noted that extractive industry operations have not been completed and additional materials will be removed from the site.

Accordingly, it is proposed that a condition of consent require a validation protocol for materials imported onto the site to create landform structures that will form the marina basin. These materials will either meet the criteria for:

• Virgin excavated natural materials (VENM), or

• The exemptions for materials issued by DECCW pursuant to the Protection of the Environment Operations Act 1997.

  1. In the discussion of Liverpool Development Control Plan 2008 (‘DCP’), there was another short subsection on “Contaminated Land Risk”:

3.4.7.9 Contaminated Land Risk

Issues of contamination and suitability of the landform to be constructed for the proposed development are discussed elsewhere in this report. In summary, protocols will be put in place to ensure that imported materials imported to create the marina basin and associated landforms are certified and tested as being suitable for such purposes i.e. they meet the legislative criteria as being:

• Virgin excavated natural material (VENM) or;

• Materials meeting the legislative exemptions for construction materials.

Accordingly, the proposed development satisfies this requirement of the DCP.

  1. In the section “4.0 Overview of Affected Environment”, there was a subsection on “Contamination and Geotechnical Assessment” that repeated verbatim the discussion of SEPP 55 quoted earlier.

  2. In the section “6.0 Environmental Impacts and Safeguards”, there was a discussion of water quality impacts and impacts on aquatic ecology, but these were limited to the impacts from the construction and operation of the marina, not from any contamination of the existing land. There was another short subsection on “Contamination and Geotechnical Assessment” that provided:

6.7 Contamination and Geotechnical Assessment

As discussed in previous sections the landform upon which the marina development will be constructed currently does not exist. Therefore the undertaking of a traditional contamination Stage 2 assessment to confirm that the “lands” are suitable or can be made suitable for the proposed development is not possible. It is therefore proposed that an acceptance protocol be implemented in respect of future materials to be imported onto the site as part of the construction process undertaken in order to ensure that these materials are:

• Virgin excavated natural materials; or

• Otherwise meet the requirements for exempted materials under Section 51A [sic] of the Protection of the Environment Operations Act.

  1. One of the reports appended to the EIS was an environmental assessment by Worley Parsons, particularly assessing the impacts of the construction and operation of the marina on water quality (‘the Worley Parsons report’). The Worley Parsons report included results of water quality monitoring of the existing water bodies. The report concluded that the breakthrough of the bank from the marina to the Georges River would not significantly affect the water quality of either bodies and that the development of the marina would not have a significant effect on water quality in either body.

  2. Another appended report by Marine Pollution Research Pty Ltd assessed the impacts of the development on aquatic ecology (‘the aquatic ecology report’). The aquatic ecology report referred to site water quality data collected in 1994 and again in 2006 and 2007, and discussed the results of the 2006 and 2007 sampling program. The report assessed the impacts of the construction and operation of the marina on aquatic ecology.

  3. The EIS also appended the voluntary planning agreement made in 2008 between Tanlane and the Council. The voluntary planning agreement designated a 50 m wide corridor of river foreshore land along the length of the frontage of the Tanlane land to the Georges River. Tanlane agreed to dedicate and transfer the designated land to the Council and to carry out and complete specified works in accordance with the agreement. These works included embellishment of the river foreshore by “removal of waste and fill to existing or otherwise approved finished ground level; removal of visible surface waste on foreshore; removal or other appropriate management of site contamination; stabilisation of the river bank/wall”. The amount of the bank guarantee for these works was $779,400.

  4. The development was processed and publicly exhibited according to the usual statutory procedures for designated development. The JRPP considered the development application on a number of occasions. On 19 July 2012, the JRPP had a briefing session on the marina development. A powerpoint presentation described the background as including:

• Extractive industries approved by the NSW Land and Environment Court in 1992 [sic]. Approval for:

- Rehabilitation of the site on cessation of extractive industries;

- importation of waste materials to return the site to its natural landform.

  1. The powerpoint presentation included the approved rehabilitation plans under the 1993 consent showing the landform levels to which the land would be rehabilitated.

  2. On 3 April 2014, the JRPP held a further briefing meeting at which one of the agenda issues to be discussed was “contamination report”.

  3. On 22 August 2014, the JRPP met to consider and determine Benedict’s development application. In preparation for the JRPP meeting, Council officers prepared a report assessing the proposed development and recommending the grant of development consent on conditions (‘the Council report’). The Council report was made publicly available before the JRPP meeting, by at least 15 August 2014.

  4. The Council report noted the background to the development application, including the 1993 consent for sand extraction and the 2008 voluntary planning agreement. In relation to the former, the Council report stated:

The site currently conducts extractive industries which are reaching the end of their economic life. Sand extraction had been granted by the NSW Land and Environment Court in Maron Investments Pty Limited v Liverpool City Council [1993] NSWLEC 25 of 31 March 1993. The approval requires the rehabilitation of the site on cessation of extractive industries with the importation and processing of waste materials permitted to fill empty cells and return these areas to their natural landform.

  1. In relation to the latter, the Council report summarised the contributions and works agreed under the voluntary planning agreement.

  2. The Council report described the development proposal and included the plans of the development.

  3. In the section on “Planning Assessment”, the Council report identified SEPP 55 as one of the relevant environmental planning instruments against which the proposed development had to be assessed. The subsection on SEPP 55 stated:

(c)   State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) provide[s] aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment.

Council must consider Clause 7 of SEPP 55 as follows: -

“7   Contamination and remediation to be considered in determining development application

(1)   A consent authority must not consent to the carrying out of any development on land unless:

(a)   it has considered whether the land is contaminated, and

(b)   if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c)   if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.”

The site is noted to have conducted extractive industry for a number of decades. An examination of Table 1 to the Planning Guidelines for Contaminated Land identifies ‘extractive industries’ as a potential contaminating activity.

Section 7(3) of the SEPP states the following: -

“The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.”

Extractive industries activities are ongoing at the site, however as noted, these activities will cease in the short term. The applicant has noted that since these activities are occurring and the extent of area of the site, that such confirmation of contamination could be carried out on cessation of the use and required testing can be carried out.

The applicant has noted that during the Strategic Planning stage in respect to the rezoning of the site and surrounds; that a contamination investigation was made on the raised portion of the site which is above the 1:100 year flood level. It was noted that this area was considered suitable for uses of a residential nature and consequently zoned to R3 Medium Density Residential.

Notwithstanding, the proposed development was referred to the NSW Environmental Protection Authority (EPA) for the purposes of the Protection of the Environment Operations Act 1997. The EPA have issued their General Terms of Approval of which it should be noted that prior to any earthworks or dredging, the applicant is required to carry out:

1.   Acid Sulfate Soil Management Testing;

2.   Sampling and Analysis of sediment in the existing dredging ponds; and

3.   Sampling of the marina lake water prior to the break through to the Georges River.

With respect to the above requirements, it is considered that the provisions of SEPP 55 can be met having regard to the physical and spatial constraints of the site. A condition is to be imposed for further consideration of contamination of the site to be made.

  1. In the discussion of the zone objectives of the applicable Recreation Zone in the Liverpool Local Environmental Plan 2008 (‘LEP’), the Council report stated:

The rehabilitation of the site to its landform as approved in the Development Consent issued for extractive industries is to be realised in respect to achieving the final landform height, and noting that existing settlement basins would be used in the formation of the marina basins.

  1. In the discussion of cl 7.31 of the LEP concerning earthworks, the Council report noted:

The site has been subject to extractive industry for a number of years and in its current state is highly degraded. As part of the original Development Consent granted for extractive industry activities at the site, the rehabilitation of the land was also approved in ensuring that the site be returned to a restored landform. The proposed development utilises part of the existing landform to create the marina basins as well as some works to accommodate the proposed development of both the natural and built environment.

  1. In the section discussing the DCP, there was an entry in a table to “Contamination Land Risk” referring back to “comments made in SEPP 55” (quoted earlier) and answering “yes” to the question “complies”.

  2. There was no particular discussion of any contamination of the land or remediation of any contamination in the section assessing the likely impacts of the development under s 79C(1)(b) of the EPA Act. However, in the section assessing the suitability of the site for the development under s 79C(1)(c) of the EPA Act, the Council report noted:

The proposed development represents an opportunity to rehabilitate the highly degraded site which is currently used for extractive industry. The cessation of this industrial use and expedition of the rehabilitation of the site is a significant benefit for the land and would fast track the use of the land for the benefit of the community.

  1. The Council report recommended the grant of development consent subject to conditions. Of importance to the issue of contamination of the site and remediation were the following conditions:

16. The report by the contaminated land consultant must be reviewed by a contaminated land auditor accredited under the DECC (EPA) Contaminated Land Management Act 1997. The accredited auditor must provide Council with a copy of the Site Audit Statement.

36. Assessment of contamination of the site shall have regard to Section 105 of the Contaminated Land Management Act 1997, Guidelines for Consultants Reporting on Contaminated Sites (EPA, 2000), Guidelines for the NSW Site Auditor Scheme – 2nd edition (EPA, 2006), Sampling Design Guidelines (EPA, 1995), National Environment Protection (Assessment of Site Contamination) Measure 1999 (or update). The following matters are to be carried out by a suitably qualified consultant:

(a)   An assessment should provide the details on how the site contamination will be remediated and/or managed so that the site is, or can be, made suitable for the proposed use.

(b)   All reports should be prepared in accordance with the Guidelines for Consultants Reporting on Contaminated Sites (EPA, 2000).

(c) The report should specify whether or not a site auditor, accredited under the Contaminated Land Management Act 1997, has been or will be engaged to issue a site audit statement to certify on the suitability of the current or proposed uses.

(d)   The contamination assessment shall include an assessment of potential contamination in the sediments to be disturbed during the proposed development works and operation of the facility. The assessment is to consider potential impacts on water quality associated with the disturbance of sediments. The contamination assessment will also outline measures to mitigate any such impacts that are identified through the assessment.

83. The development, including all civil works and demolition, must comply with the requirements of the Contaminated Land Management Act, 1997, State Environmental Planning Policy No 55 – Remediation of Land, and Managing Land Contamination – Planning Guidelines (Planning NSW/EPA 1998).

92.   All fill introduced to the site must undergo a contaminated site assessment. This assessment may consist of either:

(a)   a full site history of the source of the fill (if known) examining previous land uses or geotechnical reports associated with the source site to determine potential contamination as per the NSW DECCW ‘Waste Classification Guidelines’ April 2008; or

(b)   clearly indicate the legal property description of the fill material source site;

(c)   provide a classification of the fill material to be imported to the site in accordance with the ‘NSW DECCW ‘Waste Classification Guidelines’ April 2008.

(d)   a chemical analysis of the fill where the site history or a preliminary contamination assessment indicates potential contamination or contamination of fill material; and

(e)   must provide Council with copies of validation certificate verifying the material to be used is free of contaminants and fit for purpose re use in residential, commercial or industrial use.

93.   Records of the following must be submitted to the principal certifying authority monthly and at the completion of earth works:

(a)   The course (including the address and owner of the source site), nature and quantity of all incoming loads including the date, the name of the carrier, and the vehicle registration;

(b)   The results of a preliminary contamination assessment carried out on any fill material used in the development.

(c)   The results of any chemical testing of fill material.

108.   After completion of the remedial works, a copy of the Validation Report shall be submitted to the PCA. This Report shall be prepared with reference to the EPA guidelines, Consultants Reporting on Contaminated Sites, and must:

(a)   describe and document all works performed;

(b)   include results of validation testing and monitoring;

(c)   include validation results of any fill imported on to the site;

(d)   outline how all agreed clean-up criteria and relevant regulations have been complied with; and

(e)   include clear justification as to the suitability of the site for the proposed use and the potential for off-site migration of any residual contaminants.

  1. There was also a condition that all General Terms of Approval issued by other government agencies (including the Environment Protection Authority (‘EPA’) and the Department of Primary Industries – NSW Fisheries (‘DPI-NSW Fisheries’)) be complied with (recommended Condition 2).

  2. The General Terms of Approval of the EPA included special conditions dealing with acid sulfate soil management (S1), sampling and analysis of the sediment in the dredge ponds (S2), and sampling of the marina lake water prior to the breakthrough to the Georges River (S3). The General Terms of Approval of the DPI-NSW Fisheries included a condition requiring high level site specific acid sulfate soil investigations and site specific implementation of the acid sulfate soil management plan (Condition 5).

  3. Moorebank instructed a consultant planner, Mr Kennan, to attend the JRPP meeting on 22 August 2014 and make a submission objecting to the approval of Benedict’s development application. In preparation for the meeting, Mr Kennan prepared a written submission.

  4. At the JRPP meeting, Mr Kennan was permitted to address the JRPP but was told by the JRPP that he had only three minutes in which to do so. Mr Kennan objected that three minutes was insufficient time to deal with all of the issues. He said that Moorebank was only made aware of the issues once the Council report had been placed on the JRPP website a week or so before the meeting. He sought to hand up the written submissions he had prepared. The Chair of the JRPP refused to accept the written submissions. Accordingly, Mr Kennan read out aloud his written submissions to the JRPP.

  5. The section on “Site Contamination” commenced with a quotation of the whole of cl 7 of SEPP 55. Mr Kennan then stated:

As noted at p 24 of the 22 August 2014 Council report:

The site is noted to have conducted extractive industry for a number of decades. An examination of Table 1 to the Planning Guidelines for Contaminated Land identifies ‘extractive industries’ as a potential contaminating activity.

In light of the above, the site is land to which sub-clause 7(4) of SEPP 55 applies. Following from that, sub-clause 7(2) of SEPP 55 applies and, as such:

Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in sub-clause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

A review of the Environmental Impact Statement which was submitted with this application reveals that the report required to be undertaken pursuant to sub-clause 7(2) of SEPP 55 has not been provided.

The 22 August 2014 report of the Council does not address sub-clause 7(2), however, that report does state:

Extractive industries activities are ongoing at the site, however as noted, these activities will cease in the short term. The applicant has noted that since these activities are occurring and the extent of area of the site, that such confirmation of contamination could be carried out on the cessation of the use and required testing can be carried out.

The applicant has noted that during the Strategic Planning stage in respect to the rezoning of the site and surrounds that a contamination investigation was made on the raised portion of the site which is above the 1:100 year flood level. It was noted that this area was considered suitable for uses of a residential nature and consequently zoned to R3 Medium Density Residential.

Notwithstanding, the proposed development was referred to the NSW Environmental Protection Authority (EPA) for the purposes of the Protection of the Environment Operations Act 1997. The EPA have issued their General Terms of Approval of which it should be noted that prior to any earthworks or dredging, the applicant is required to carry out:

1.   Acid Sulfate Soil Management Testing;

2.   Sampling and Analysis of sediment in the existing dredging ponds; and

3.   Sampling of the marina lake water prior to the break through to the Georges River.

With respect to the above requirements, it is considered that the provisions of SEPP 55 can be met having regard to the physical and spatial constraints of the site. A condition is to be imposed for further consideration of contamination of the site to be made.

Following from the above comments, Conditions 16 and 36 are recommended as follows:

Site Contamination

16. The report by the contaminated land consultant must be reviewed by a contaminated land auditor accredited under the DECC (EPA) Contaminated Land Management Act 1997. The accredited auditor must provide Council with a copy of the Site Audit Statement.

36. Assessment of contamination of the site shall have regard to Section 105 of the Contaminated Land Management Act 1997, Guidelines for Consultants Reporting on Contaminated Sites (EPA, 2000), Guidelines for the NSW Site Auditor Scheme - 2nd edition (EPA, 2006), Sampling Design Guidelines (EPA, 1995), National Environment Protection (Assessment of Site Contamination) Measure 1999 (or update). The following matters are to be carried out by a suitably qualified consultant:

(a)   An assessment should provide the details on how the site contamination will be remediated and/or managed so that the site is, or can be, made suitable for the proposed use.

(b)   All reports should be prepared in accordance with the Guidelines for Consultants Reporting on Contaminated Sites (EPA, 2000).

(c) The report should specify whether or not a site auditor, accredited under the Contaminated Land Management Act 1997, has been or will be engaged to issue a site audit statement to certify on the suitability of the current or proposed uses.

(d)   The contamination assessment shall include an assessment of potential contamination in the sediments to be disturbed during the proposed development works and operation of the facility. The assessment is to consider potential impacts on water quality associated with the disturbance of sediments. The contamination assessment will also outline measures to mitigate any such impacts that are identified through the assessment.

Having regard to the above, at the 10 October 2013 Meeting of the Panel, we provided the Panel with a copy of the judgment of Justice Pain in Dexus Funds Management Limited v Blacktown City Council (No 3) [2011] NSWLEC 230 (30 November 2011) (Dexus). In Dexus, Justice Pain examined the provisions of cl 7 of SEPP 55 where the Council had imposed a condition of consent similar to above. Justice Pain found that the resolution of whether the site in its entirety, was contaminated was vital and found that the Council’s failure to consider this relevant matter was held to be a legal basis on which the development consent can be declared invalid and also void [30]-[43].

In reliance of the above authority (Dexus), a condition “…. for further consideration of contamination of the site to be made” at some time in the future does not absolve the consent authority from complying with the provisions of SEPP 55. As such, there may be an argument that any development consent granted by the JRPP for the Marina would potentially be invalid if it imposed a condition that required Benedict Industries to undertake contamination assessment which is required to be considered pursuant to SEPP 55.

It is our submission that, until such time as the provisions of SEPP 55 have been complied with, “A consent authority must not consent to the carrying out of any development on [the] land”.

  1. After Mr Kennan concluded reading his submission, the Chair of the JRPP changed her mind and asked for, and Mr Kennan handed up, the written submission.

  2. After this, Benedict’s solicitor expressed concern that the issue of compliance with SEPP 55 had been raised at such a late time. The Chair of the JRPP asked Benedict’s solicitor “do you consider that SEPP 55 has been addressed considering that the Council officer’s report indicates that only part of the site has been assessed?” to which Benedict’s solicitor replied “I consider the assessment to be satisfactory”.

  3. After this conversation, the JRPP adjourned for approximately 1.5 hrs. Following the adjournment, the JRPP reconvened and the Chair declared to the meeting:

The panel has been advised by Council staff that a Court consent for extraction on the site where the marina is proposed granted in 1993 has a condition attached to it which requires the site to be remediated at the completion of extraction.

  1. The Chair then asked an officer of the Council present at the meeting “Will that remediation be such that any permitted use of the site be accommodated?” to which the Council officer replied “Yes”.

  2. Later on in the meeting on 22 August 2014, the JRPP determined to grant consent to the marina development subject to conditions that differed from those recommended in the Council report. Of importance to the issue of contamination and remediation of the land, recommended conditions 16 and 36 were deleted but recommended conditions 83, 92, 93 and 108 were retained but renumbered as 72, 81, 82 and 96 respectively. Condition 2 requiring compliance with the general terms of approval was retained.

  3. The JRPP provided in writing a “Determination and Statement of Reasons”. In the section “Panel consideration”, the JRPP stated:

The panel considered: the matters listed at item 6, the material listed at item 7 and the material presented at meetings and the matters observed at site inspections listed at item 8 in Schedule 1.

  1. The matters listed at item 6 in Schedule 1 included SEPP 55. The material listed at item 7 in Sch 1 was as follows:

7.   Material considered by the panel:

Council Assessment Report dated 8 August 2014 as clarified at the meeting on 22 August 2014.

Written submissions during public exhibition: six

Verbal submissions at the panel meeting: Against – Neil Kennan; On behalf of the applicant - Luke Walker and David White

  1. The meetings and site inspections listed at item 8 in Sch 1 were:

8.   Meetings and site inspections by the panel:

Briefing meeting on 19 July 2012; site inspection on 10 October 2013, briefing meeting on 10 October 2014, public meeting on 10 October 2014, final briefing meeting on 22 August 2014.

  1. The “Reasons for the panel decision” included the following regarding SEPP 55:

In relation to the comments on SEPP 55, the panel notes the advice of council officers that the existing consent for the extractive industries on site requires the site to be remediated, and this information together with the advice of council officers in the report, the panel is satisfied that the requirements of Clause 7 of SEPP 55 are met.

The statutory requirements to consider contamination and remediation

  1. SEPP 55 was one of the environmental planning instruments that applied to the proposed marina development on the land. SEPP 55 provides a State wide planning approach to the remediation of contaminated land (cl 2(1)). SEPP 55:

aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment:

(a)   by specifying when consent is required, and when it is not required, for a remediation work, and

(b)   by specifying certain considerations that are relevant in rezoning land and in determining development applications in general and development applications for consent to carry out remediation work in particular, and

(c)   by requiring that a remediation work meet certain standards and notification requirements. (cl 2(2)).

  1. Of relevance to this case, cl 7 of SEPP 55 requires contamination and remediation to be considered in determining development applications. Clause 7 provides:

(1)   A consent authority must not consent to the carrying out of any development on land unless:

(a)   it has considered whether the land is contaminated, and

(b)   if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c)   if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

(2)   Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

(3)   The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

(4)   The land concerned is:

(a)   land that is within an investigation area,

(b)   land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c)   to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land:

(i)   in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii)   on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

  1. Clause 7 of SEPP 55 establishes two sets of preconditions to the exercise of the power under s 80(1) of the EPA Act by a consent authority to determine a development application for consent to carry out development on land.

  2. First, cl 7(2) of SEPP 55 establishes a precondition to the exercise of the power to determine a development application for consent to carry out development that would involve a change of use on any of the land specified in s 7(4) of SEPP 55. The precondition is consideration of “a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines”.

  3. The “contaminated land planning guidelines” are defined in cl 4(1) of SEPP 55 to mean guidelines under s 145C of the EPA Act. The current planning guidelines under s 145C of the EPA Act are “Managing land contamination planning guidelines: SEPP 55 – remediation of land”, NSW, 1998.

  1. Clause 7(4) of SEPP 55 specifies categories of land that have the potential to be contaminated. One of the categories is “land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out”.

  2. Table 1 to the contaminated land planning guidelines lists different activities that may cause contamination of land. One of the listed activities is “mining and extractive industries”. The land proposed by Benedict for the marina development has been and is still being used for sand extraction under the 1993 consent, which falls within the activities of “mining and extractive industries”. Accordingly, the land on which Benedict proposed to carry out the marina development was land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out. The land was, therefore, land specified in cl 7(4) of SEPP 55.

  3. In addition, adjoining areas to the north of the land had been used for the purpose of landfill, another activity that may cause contamination listed in Table 1 to the contaminated land planning guidelines. Although this area was not land on which it was proposed to carry out the marina development, and hence was not land concerned for the purposes of cl 7 of SEPP 55, as it was land on which a landfill activity that may cause contamination has occurred, it was a potential source of contaminants that might adversely affect the adjoining land on which the marina development was proposed to be carried out.

  4. Benedict’s development application for the marina development involved a change of the use of the land from the current extractive industry to the proposed marina development. Clause 7(2) of SEPP 55 was therefore engaged.

  5. Clause 7(3) of SEPP 55 requires the applicant for development consent to carry out the investigation required by cl 7(2) and to provide a report on it to the consent authority. The investigation required by cl 7(2) is a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. A “preliminary investigation” is defined in cl 4(1) to mean, in relation to land, “a preliminary investigation referred to in the contaminated land planning guidelines”.

  6. The contaminated land planning guidelines require a preliminary investigation of land on which an activity listed in Table 1 is being, or is known to have been, carried out. The reason is that past use of the land for any of these activities is an indicator of potential contamination. The main objectives of a preliminary investigation are “to identify any past or present potentially contaminating activities, provide a preliminary assessment of any site contamination and, if required, provide a basis for a more detailed investigation” (s 3.4.1, p 14 of the contaminated land planning guidelines).

  7. A “preliminary investigation” is referred to as “Stage 1” while a “detailed investigation” is referred to as “Stage 2” under the contaminated land planning guidelines. The Stage 1 – preliminary investigation is described in the contaminated land planning guidelines as follows:

3.5.2 Stage 1 - Preliminary Investigation

The preliminary investigation contains a detailed appraisal of the site’s history

and a report based on a visual site inspection and assessment. It is important that all relevant information about the site is assessed to determine the potential for site contamination.

Where contaminating activities are suspected to have had an impact on the land, sampling and analysis will be required to confirm and support any conclusion reached from the site history appraisal. Through the assessment of sampling results, an assessment of contamination can be established.

A preliminary investigation is an important step in deciding whether a more detailed investigation is needed. Where the results of a preliminary sampling program demonstrate the potential for, or the existence of contamination, a detailed investigation should be undertaken; not necessarily immediately after the preliminary investigation but before the new use commences. Where the preliminary investigation shows a history of non-contaminating activities at a site and, in the absence of other contrary evidence, there will be no need for further investigation.

Issues to consider

•    Is the information about the site’s history adequate:

- are the descriptions of activities on the site detailed enough to identify a use listed in Table 1?

- are there any big gaps in the history that might hide a use listed in Table 1?

- are the sources reliable?

- is the information verifiable?

•   Does the information conform with the relevant EPA guidelines?

•    If contamination or a contaminating activity, whether previous or existing, is confirmed should the proponent conduct a detailed investigation to further define the extent and degree of contamination?

•    If the site history suggests that the site is unlikely to be contaminated but there are gaps in the history and Table 1 uses were permissible under the zoning during those periods, is limited site sampling needed to confirm the site is not contaminated? Consult a site auditor if necessary.

•    Does this site pose a significant threat to human health or the environment? If so, refer to the CLM Act in relation to duty to notify the EPA.

•    Is a site audit of the preliminary investigation necessary? See section 3.6.1.

If there is sufficient information to satisfy the planning authority that the site is suitable for the proposed use, the planning process should proceed in the normal way.

  1. The Stage 2 – detailed investigation is described in the contaminated land planning guidelines as follows:

3.5.3 Stage 2 - Detailed Investigation

A detailed investigation should provide information about the extent and degree of contamination. It should also include an assessment of the risk posed by the contaminants to health and the environment. Generally, the risk can be assessed by comparing the levels of residue on-site with appropriate predetermined thresholds such as the soil investigation levels specified in the EPA’s guidelines (1998a). The risks can also be determined by a site-specific risk assessment undertaken by the proponent’s consultant.

Issues to consider

•   Is the sampling program that has been undertaken by the consultant adequate to identify hot spots of contamination on the site? Does it conform with the relevant EPA guidelines? Check the sampling program against the EPA’s guidelines or consult a site auditor if necessary.

•    Have appropriate thresholds and criteria been used for the assessment? Compare with appropriate criteria or consult a site auditor if necessary.

•    Do the levels of contamination on the site need to be reduced in order for the site to be suitable for the proposed use? If so, progress to Stage 3 - Site Remedial Action Plan.

•    Does this site pose a significant threat to human health or the environment? If so, refer to the CLM Act in relation to duty to notify the EPA.

•    Is a site audit of the detailed investigation necessary, or required under the CLM Act? See section 3.6.1.

  1. As these extracts from the contaminated land planning guidelines explain, one of the purposes of the preliminary investigation is to provide a basis for determining whether a more detailed investigation should be undertaken. Hence, cl 7(3) of SEPP 55 provides that:

The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

  1. To enable the consent authority to determine whether a detailed investigation is warranted, the applicant must provide to the consent authority “a report specifying the findings of the preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines”. The consent authority may only require a detailed investigation if it considers that “the findings” of the preliminary investigation specified in “the report” warrant such an investigation. This emphasises the importance of there being a document or documents that answer the description of being “a report specifying the findings of the preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines”.

  2. Secondly, cl 7(1) of SEPP 55 establishes further preconditions to the exercise by the consent authority of the power to determine a development application by granting consent. The preconditions are sequential and inter-dependent: first, consideration by the consent authority of whether the land on which development is proposed to be carried out is contaminated; secondly, if the land is contaminated, satisfaction of the consent authority that the land either is suitable in its contaminated state, or will be suitable after the remediation, for the purpose for which the development is proposed to be carried out; and thirdly, if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, satisfaction of the consent authority that the land will be remediated before the land is used for that purpose.

  3. “Contaminated land” is defined in cl 4(1) of SEPP 55 to have the same meaning as it has in Pt 7A of the EPA Act. Section 145A (in Pt 7 of the EPA Act) defines “contaminated land” to mean:

land in, on or under which any substance is present at a concentration above the concentration at which the substance is normally present in, on or under (respectively) land in the same locality, being a presence that presents a risk of harm to human health or any other aspect of the environment.

  1. “Remediation” is defined in cl 4(1) of SEPP 55 to mean:

(a)   removing, dispersing, destroying, reducing, mitigating or containing the contamination of any land, or

(b)   eliminating or reducing any hazard arising from the contamination of any land (including by preventing the entry of persons or animals on the land).

  1. For the land specified in cl 7(4) of SEPP 55, and for a development application for consent to carry out development that would involve a change of use on such land, the consent authority’s consideration of and satisfaction about the matters in cl 7(1) may be informed by the report specifying the findings of a preliminary investigation of the land concerned, provided to the consent authority by the applicant under cl 7(3) of SEPP 55.

  2. If the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, the contaminated land planning guidelines provide that the required remediation may be enforced by different means, depending on whether the remediation work needs development consent under SEPP 55 or not (s 4.3, pp 25-26 and Fig 3 of the contaminated land planning guidelines). Consent of the consent authority is required for remediation work that is a category 1 remediation work (cl 8(2) of SEPP 55) but not for remediation work that is a category 2 remediation work (cl 8(3) of SEPP 55).

  3. Category 1 remediation work includes remediation work that is designated development or development for which another State environmental planning policy or a regional environmental plan requires development consent. In this case, Moorebank submitted, any remediation work on the land might be a category 1 remediation work because it might be designated development (cl 9(a) of SEPP 55), being either for the purpose of remediating contamination of the land by the existing extractive industry (which is a designated development) as required by the 1993 consent or for the purpose of the proposed marina development (which is also a designated development), or because it is development for a which another State environmental planning policy or regional environmental plan, namely the Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment, requires development consent (cl 9(d) of SEPP 55).

  4. However, if the remediation work would of itself be a category 2 remediation work but is ancillary to designated development that requires development consent, an applicant can choose to make the remediation work part of the subject of the development application for the designated development instead of being made the subject of a separate development application, or treat the remediation work as a category 2 remediation work (cl 15(1) of the SEPP 55).

  5. If the remediation work is not of a kind described in cl 9(a)-(f) of SEPP 55 or is of other specified kinds, it will be category 2 remediation work (cl 14(a) and (b) of SEPP 55).

  6. If the remediation work is category 1 remediation work, the applicant would need to apply for and obtain development consent to carry out the remediation work. This could be by amending the development application for the proposed use to include the remediation work or by lodging a new development application for the remediation work before the development application for the proposed use is considered.

  7. If the remediation work is category 2 remediation work and may be carried out without consent under SEPP 55, the contaminated land planning guidelines provide that remediation of the land to make it suitable for the proposed use may be enforced by:

- imposing conditions on the development consent for the use, requiring remediation to be carried out and validated either before other work commences or before occupation of the site, or

- issuing a deferred commencement consent for the use, and requiring remediation to be carried out and validated before other work commences. (p 25 of the contaminated land planning guidelines).

  1. In either case, the remediation work must be carried out in accordance with the contaminated land planning guidelines and any guidelines in force under the Contaminated Land Management Act 1997 and in the case of category 1 remediation work, a plan of remediation, as approved by the consent authority, prepared in accordance with the contaminated land planning guidelines (cl 17(1) of SEPP 55).

  2. Written notice of completion of remediation work on any land must be given to the local council (cl 17(2) of SEPP 55). The notice must meet certain criteria, including:

(g)   specify the uses of the land, and the substances, that contaminated it in such a way as to present a risk of harm to human health or some other aspect of the environment, and

(h)   specify the uses of the land immediately before the work started, and

(i)   briefly describe the method of remediation used in the work, and

(j)   specify the guidelines that were complied with in the work, and

(k)   specify the standard of remediation achieved (in the light of the use proposed for the land), and

(l)   show in what manner the work (if a category 1 remediation work) complied with the conditions of the relevant development consent, and

(m)   state what action must be maintained in relation to the land after the completion of the remediation work if the standard of remediation achieved is to be maintained.

  1. This notice provides the validation that the land has been remediated to make it suitable for the purpose for which the development is proposed to be carried out (p 18 of the contaminated land planning guidelines).

Failure to comply with cl 7(2) and (3) of SEPP 55

Competing arguments on breach of cl 7(2) and (3)

  1. Moorebank contended that there had been a failure to comply with both cl 7(2) and (3) of SEPP 55. The land on which Benedict proposed to carry out the marina development was land specified in cl 7(4), being land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines (namely “mining and extractive industries”) is being, or is known to have been, carried out. Benedict’s development application sought consent to carry out development for the purpose of a marina, which involved a change of use of the land from the existing use of extractive industries. The JRPP was, therefore, required under cl 7(2), before determining Benedict’s development application, to consider a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines. Benedict was required under cl 7(3) to carry out that preliminary investigation of the land, in accordance with the contaminated land planning guidelines, and to provide a report specifying the findings of that preliminary investigation to the Council.

  2. Moorebank contended that Benedict did not carry out the preliminary investigation of the land in accordance with the contaminated land planning guidelines, or provide a report specifying the findings of such a preliminary investigation to the JRPP, in breach of cl 7(3). As a consequence, the JRPP could not and did not consider a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines. The JRPP, therefore, failed to consider whether the findings of any preliminary investigation warranted a detailed investigation (as referred to in the contaminated land planning guidelines), as required under cl 7(3), and failed to consider a report specifying the findings of the preliminary investigation of the land, before determining Benedict’s application for consent to carry out the marina development that involved a change of use of the land, in breach of cl 7(2).

  3. Benedict did not dispute that it had not provided to the JRPP and the JRPP had not considered, a document entitled or otherwise describing itself as “a report specifying the findings of a preliminary investigation of the land concerned”. Nevertheless, Benedict contended that there had been a preliminary investigation of the land concerned and that Benedict had provided to the JRPP, and the JRPP had considered, a variety of documents that contained findings of investigations of the land concerned in a manner that was consistent with the contaminated land planning guidelines. That is to say, Benedict contended that there had been compliance with cl 7(2) and (3) of SEPP 55 in substance, even if not in form.

  4. Benedict submitted that there was a “preliminary investigation” of the relevant kind, being either the broad investigation carried out by Benedict which underlay the EIS or the Stage 1 investigation reported on in the EIS and the Council report. As to the broad investigation underlying the EIS, Benedict submitted that there was an assessment of the site history, a visual assessment and a Stage 1 contamination investigation, these being matters that the contaminated land planning guidelines specify that a preliminary investigation should contain. As to the Stage 1 contamination investigation, Benedict submitted that, while the EIS does not in detail describe the nature of that investigation, in circumstances where on the face of the EIS it plainly related to SEPP 55, it can be inferred that it was a preliminary investigation of the kind described in SEPP 55 and the contaminated land planning guidelines. Further, Benedict submitted that the JRPP considered that cl 7 of SEPP 55 had been complied with so it must have been satisfied that there had been an investigation of the relevant kind.

  5. Benedict submitted that there was a “report” on the findings of these investigations, being either the Council report to the JRPP meeting on 22 August 2014 or the EIS and its appended reports.

  6. As to the Council report, Benedict submitted that it contained:

  1. “a detailed appraisal of the site’s history”: in s 1.7 (p 3) (the two sentences referring to the two activities being carried out at the site for the purposes of extractive industries and resource recovery); s 2.1 (p 6) (the five sentences referring to the current operations for an extractive industry and resource recovery and that the site “has been highly degraded having regard to the extractive industries” and “a number of refuge stockpiles are scattered throughout the site”; p 24 (one sentence noting that an extractive industry has been conducted on the site for a number of decades); and p 25 (two sentences noting “extractive industries activities are ongoing on the site” but will cease in the short-term and that “confirmation of contamination could be carried out on cessation of the use and required testing can be carried out”); and

  1. “a visual site inspection and assessment”: in Fig 1 (p 5) (an aerial photograph of the site) and p 18 (photograph looking across the Georges River into the site with an artist impression of the development superimposed); but

  2. “sampling and analysis”: was not included in the Council report.

  1. As to the EIS and appended reports, Benedict submitted that they contained:

  1. “a detailed appraisal of the site’s history”: in the EIS, s 1.0 (p 1) (one sentence noting that the site “has been utilised for sand extraction/dredging/recycling operations”); s 1.3 (p 5) (five sentences noting that the Land and Environment Court granted consent in 1992 “for the extraction of sand via dredging and dry extraction methods”, final extraction operations will be completed within 18 months, the consent permitted restoration of the site back to natural surface levels via the importation of waste materials, a small quantity of Virgin Excavated Natural Material (‘VENM’) has been used to assist in restoring landforms, however “for all intents and purposes no restoration of the site has commenced and the dredge ponds created from the sand extraction operations remain”); s 3.4.2 (p 38) (two sentences noting that the site has been excavated as a result of extractive industry operations via dredging creating six hectares of dredge ponds, that extractive industry operations have not been completed and that additional materials will be removed from the site); s 4.2 (p 48) (two sentences noting that there is a large six hectare dredge pond and sand extraction operations by dredging were still occurring and are expected to be completed within the next 12-18 months);

  2. “a visual site inspection and assessment”: in the EIS, Fig 5 (p 7) (an aerial photograph with site boundaries superimposed); s 4.8 (pp 57-58) assessing the visual character of the site and the impact that the proposed development might have on that visual character (only certain sentences of which are relevant to the contamination of the site, including that the northern portion of the site is used for the processing and recycling activities and accommodates stock piles of raw and processed materials while the southern portion of the site is presently used for sand extraction which is then processed at the northern end and the landform has been extensively modified as a result of the extractive activities, “[t]he site is significantly degraded as a result of clearing and land uses including extractive industry and recycling”, and “[n]o restoration of the quarry has been commenced as it is still operational”); and in the aquatic ecology report appended to the EIS (pp 5, 16, 17, 21-23, 25-28, 30-38) (an aerial photograph of the site with the dredge pond and numerous photographs of the dredge ponds and adjoining drains and creeks and the Georges River; description of the water movement and behaviour through the existing pond system; description of weather and conditions at the time of undertaking water quality measurements in the dredge ponds and adjacent river shallows in 2007; description of the Georges River riverbank and the engineered rubble bank treatment); and

  3. “sampling and analysis”: in the aquatic ecology report (pp 13-19) (results from the 2006 water quality sampling program and analysis, and 2007 water quality profile measurements and analysis); and the Worley Parsons report appended to the EIS (pp 18-23) (referring to the same water quality testing in 2006 in the aquatic ecology report as well as additional monitoring in the adjacent river in 2008 and analysis of the results).

  1. Benedict submitted that cl 7(2) of SEPP 55 does not require the report on the investigation to take any particular form. What is a report of the kind identified in cl 7(2) will depend on all the circumstances, including the totality of all the information otherwise before the consent authority and the relevant decisions the consent authority is called upon to make. In this case, Benedict submitted, there was sufficient information before the JRPP for it to exercise its functions under cl 7(1) and (3) of SEPP 55. The JRPP was in a position where it suspected that there was contamination but wished to call for further investigation (by condition 96) and was satisfied that the site would be remediated. In these circumstances, the Council report or the EIS were sufficient for the purposes of cl 7(2).

  2. Moorebank submitted in reply that the Council report could not be a report on the investigation required by cl 7(2) and (3) of SEPP 55 because it was not provided by the applicant for development consent to the consent authority in accordance with cl 7(3) and was not authored by the applicant for development consent on investigations carried out by the applicant, as required by cl 7(2).

  3. Moorebank submitted that the EIS and the appended aquatic ecology report and the Worley Parsons report, relied upon by Benedict, also could not be the report required by cl 7(2) and (3) of SEPP 55 because the JRPP never actually considered these reports. Clause 7(2) and (3) require the applicant for development consent to provide a report on the preliminary investigation carried out by the applicant in accordance with the contaminated land planning guidelines to the consent authority and the consent authority to consider that report, including considering whether the findings of the preliminary investigation warrant requiring the applicant to carry out a detailed investigation. Moorebank submitted that the consent authority must itself consider the report provided by the applicant and determine whether a detailed investigation is warranted.

  4. In this case, the JRPP did not itself consider the EIS, the aquatic ecology report or the Worley Parsons report. The JRPP listed in its Determination and Statement of Reasons the material it considered and this material did not include those reports. The JRPP did list the Council report to the 22 August 2014 meeting as having been considered by the JRPP, however, the Council report did not reproduce the references in the EIS, aquatic ecology report and Worley Parsons report relied on by Benedict as making up the report required by cl 7(2) of SEPP 55, or identify those references as being findings of the preliminary investigation specified by the report, or give any consideration as to whether those references warranted requiring Benedict to carry out a detailed investigation (as referred to in the contaminated land planning guidelines).

  5. In any event, Moorebank submitted, the EIS, aquatic ecology report and Worley Parsons report did not meet the required description of being “a report specifying findings of a preliminary investigation” in cl 7(2) and (3) of SEPP 55. First, Moorebank submitted that the patchwork of paragraphs, photographs and sample results relied on by Benedict, drawn from the EIS, aquatic ecology report and Worley Parsons report, could not be the report on the preliminary investigation required by cl 7(2) and (3). Moorebank submitted that the intent underlying cl 7(2) and (3) is that the report on the investigation “must be readily discernible as a single entity even though it may be made up of one or more documents or parts of documents. For example, a patchwork of paragraphs drawn from several documents created over a period of several years and not specifically identified would be neither a single entity, nor a [report]. Such a hodgepodge could not constitute” a report required by cl 7(2) and (3): citing and applying Chisholm v Pittwater Council [2001] NSWCA 104 at [41].

  6. Moorebank submitted that there is a good reason for the report required by cl 7(2) and (3) of SEPP 55 to be readily discernible as a single entity. The findings of the report are the foundation for the consent authority to exercise its power under cl 7(3) to require a detailed investigation. The consent authority can only require the applicant to carry out and provide a report on a detailed investigation if it considers that the findings of the preliminary investigation warrant such a detailed investigation.

  7. Secondly, Moorebank noted that although Benedict gave references to the EIS and appended reports where Benedict said information is provided that fell within the descriptions of a site history, visual inspection and assessment, and sampling and analysis, Benedict did not indicate what were the “findings” that were “specified” in those reports. The report that cl 7(2) and (3) of SEPP 55 require the applicant to provide to the consent authority and the consent authority to consider is “a report specifying the findings of a preliminary investigation”. In order for the report to specify findings, it must state the matters found or ascertained in the investigation of the land in accordance with the contaminated land planning guidelines “in explicit terms” and with “clarity and precision”: Tickner v Chapman (1995) 57 FCR 451 at 457, 480-481, 491 and cases cited therein and Jolly v District Council of Yorketown [1968] HCA 55; (1968) 119 CLR 347 at 351. The reports relied on by Benedict did not specify the findings of the preliminary investigation in explicit terms or with clarity and precision.

  8. Thirdly, Moorebank submitted that the references in the EIS, aquatic ecology report and the Worley Parsons report relied on by Benedict did not contain “a detailed appraisal of the site’s history”, “a report based on a visual site inspection and assessment” or “sampling and analysis … to confirm and support any conclusions reached from the site history appraisal”, as required by the contaminated land planning guidelines, and hence could not constitute “a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines”.

  9. Moorebank submitted that there was no detailed examination of site history. The contaminated land planning guidelines emphasise the importance of obtaining and assessing “all relevant information about the site” (p 15) to determine the potential for site contamination. The contaminated land planning guidelines identify, as issues to consider, whether the information about the site’s history is adequate, in particular whether the descriptions of the activities on the site are detailed enough to identify a use listed in Table 1, whether there are any big gaps in the history that may hide a use listed in Table 1, whether the sources are reliable, whether the information is verifiable, and whether the information conforms with the relevant EPA guidelines. Moorebank submitted that the EIS, aquatic ecology report and the Worley Parsons report did not address these issues.

  10. As a matter of fact, there was evidence of a use of the site for an activity listed in Table 1 of the contaminated land planning guidelines, other than the extractive industry referred to in the EIS, aquatic ecology report and the Worley Parsons report, namely as a “landfill site”. The EIS noted that, pursuant to the 1993 consent and environmental protection licences, a small quantity of VENM has been used to assist in restoring landforms on the site (EIS, p 5). However, the EIS did not assess the activity of landfilling to determine the potential for site contamination or determine whether sampling and analysis was required. There was also no assessment of whether a site audit of any preliminary investigation was necessary, this being one of the issues the contaminated land planning guidelines suggests should be considered.

  11. Moorebank submitted that the sampling and analysis by the marine scientist (referred to in the aquatic ecology report and the Worley Parsons report) were undertaken for a different purpose – to ascertain whether the breakthrough to the river would pollute it because of pollutants in the dredge pond water, and whether the marina in operation would impose risks to water quality from run-on of stormwater and release of sewage and copper pollutants from boats. These impacts had nothing to do with previous activities on the site. They were impacts of the future use, not the past uses, of the site.

  12. Furthermore, the sampling and analysis required by the contaminated land planning guidelines is to confirm and support any conclusions reached from the site history appraisal. The sampling and analysis in the EIS, aquatic ecology report and the Worley Parsons report were not done to confirm and support any conclusion reached from the site history appraisal. The detailed site history appraisal that was required by the contaminated land planning guidelines was never undertaken and hence no conclusions reached from a site history appraisal could be confirmed and supported by sampling and analysis in accordance with the contaminated land planning guidelines.

  13. Fourthly, Moorebank submitted that the contaminated land planning guidelines required that a preliminary investigation, in order to be in accordance with the contaminated land planning guidelines, address more than “a detailed appraisal of the site’s history”, “a visual site inspection assessment” and “sampling and analysis”. The contaminated land planning guidelines also set out numerous “issues to consider” for a preliminary investigation (in s 3.5.2, p 16). Moorebank submitted that the EIS, the aquatic ecology report and the Worley Parsons report did not address “these issues to consider”.

Finding of failures to comply with cl 7(2) and (3)

  1. I find that there was neither the preliminary investigation of the land nor the report of the preliminary investigation required by cl 7(2) and (3) of SEPP 55.

  2. The Council report to the JRPP meeting on 22 August 2014 could not be the report required to be provided to, and considered by, the JRPP as the consent authority under cl 7(2) and (3) of SEPP 55. Clause 7(3) requires the applicant for development consent to carry out the preliminary investigation required by cl 7(2) and to provide a report on it to the consent authority. Clause 7(2) requires the consent authority to consider the report provided to it by the applicant on the preliminary investigation carried out by the applicant. The Council report was not a report provided to the consent authority (JRPP) by the applicant for development consent (Benedict) on the applicant’s preliminary investigation of the land concerned. Rather, it was a report of the Council officers.

  3. The EIS and the appended aquatic ecology report and the Worley Parsons report, individually or collectively, did not meet the statutory description in cl 7(2) of SEPP 55 of being “a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines”.

  4. First, the investigations referred to in the EIS, aquatic ecology report and Worley Parsons report did not involve “a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines”. None of the EIS, aquatic ecology report or the Worley Parsons report asserted that it specified the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines.

  5. The EIS itself actually stated that the Stage 1 contamination investigation that had been undertaken focussed largely on the adjoining raised portion of the site to the north of the land that was proposed for the marina development. The EIS did not state that there had been a Stage 1 contamination investigation of the land on which the marina development was proposed to be carried out. Indeed, the EIS stated that because extractive industry activities are continuing on the land proposed for the marina development, the final landform upon which the marina development will be constructed currently does not exist and cannot therefore be assessed (EIS, p 38 and p 58). The EIS noted that “[t]herefore the undertaking of a traditional contamination Stage 2 assessment to confirm that the ‘lands’ are suitable or can be made suitable for the proposed development is not possible” (p 88). Although the EIS referred to the assessment of the suitability of the land for the purpose for which the development is proposed to be carried out as “Stage 2”, this did not mean that there had been a Stage 1 assessment – there had not been any investigation of the portion of the site on which the marina development was to be carried out as it was still being used for the extractive industry activities.

  6. Both the Council officers and the JRPP also understood that the applicant for development consent had not undertaken a preliminary investigation of the land on which the marina development was proposed to be carried out, but rather only of the raised portion of the site to the north. The Council report noted the applicant’s advice that “during the Strategic Planning stage in respect to the rezoning of the site and surrounds, that a contamination investigation was made on the raised portion of the site which is above the 1:100 year flood level” and that in relation to the southern portion of the site proposed for the marina development, since extractive industries activities are ongoing on the site, a contamination investigation cannot be carried out but that “such confirmation of contamination could be carried out on cessation of the use and required testing can be carried out.” (p 25).

  7. Moorebank’s planner, Mr Kennan, in his oral and written submissions to the JRPP at its meeting on 22 August 2014, referred to these statements in the Council report that there had not been a preliminary investigation under cl 7 of SEPP 55 of the land on which the marina development was proposed to be carried out. The Chair of the JRPP at its meeting on 22 August 2014 noted that “the Council officer’s report indicates that only part of the site has been assessed” under SEPP 55.

  8. Furthermore, the investigations discussed in the EIS and appended reports were not undertaken for the purpose of, or in accordance with, cl 7 of SEPP 55 and the contaminated land planning guidelines.

  9. The few statements in the EIS noting the current extractive industry activities being carried out on the land, relied on by Benedict, do not constitute “a detailed appraisal of the site’s history” in accordance with the contaminated land planning guidelines. They are not “detailed” but rather involve a minimal description of only the current extractive industry activity. There is not an assessment of “all relevant information about the site” or a consideration of the “issues to consider” raised in the contaminated land planning guidelines about the adequacy of the information on the site’s history, including past filling of the land. The statements relied on by Benedict do not contain any “appraisal” of the site’s history. They are also not made for the purpose of determining “the potential for site contamination”. The minimal description of the current activities of the extractive industry in the EIS was undertaken for purposes other than to assess the site contamination in accordance with the contaminated land planning guidelines.

  10. The few statements and the photographs from the air and the ground of the site and surrounding lands in the EIS and the appended aquatic ecology report relied on by Benedict do not constitute a “visual site inspection and assessment” according to the contaminated land planning guidelines. It is not enough to undertake a visual site inspection and recount what has been seen on the inspection. The visual site inspection and assessment required by the contaminated land planning guidelines is to be undertaken for the purpose of determining the potential for site contamination. A visual site inspection and assessment for other purposes, including to undertake the various environmental impact assessments required to satisfy the content requirements for an environmental impact statement (see for eg cl 7(1) of Sch 2 of the EPA Regulation), are not for the purpose of cl 7 of SEPP 55 or in accordance with the contaminated land planning guidelines. An obvious example is that undertaking a visual site inspection for the purpose of assessing the existing visual character of the site and the impact that the proposed marina development might have on that character (the references relied on by Benedict at pp 57-58 of the EIS and the visual impact assessment report) is an entirely different exercise to a visual site inspection and assessment to determine the potential for site contamination in accordance with cl 7 of SEPP 55 and the contaminated land planning guidelines.

  1. In this case, the advice about the 1993 consent was clearly mistaken in law in a number of respects. First, the 1993 consent did not require “remediation” of any contamination of the land on which the marina was proposed to be carried out, within the meaning of that term in cl 4(1) of SEPP 55. Instead, the 1993 consent required “rehabilitation” of the land by backfilling the excavation with imported materials to the approved landform levels. Condition 4 required the dredging and filling sequence to be as shown on the attached plan. The attached “Plan of Operation of the Subject Site” identified that the rehabilitation involved, for most of the site, “topsoil replaced and grassed following progressive fill completion” and along the Georges River frontage a “40 m buffer established and tree planting carried out”. Conditions 28-34 regulated the nature and placement of the fill materials to be used to backfill the excavation for rehabilitation purposes. The fill was required to be “only clean demolition and excavation materials, including fill, soil and rock” (condition 28). Condition 25 required the restored final surface levels of the land to approximate the natural floodplain level. Condition 11 required the rehabilitation works to be completed within 12 months of completion of the filling works.

  2. None of these conditions required “remediation” of any contamination of the site, as defined in cl 4(1) of SEPP 55. There was no removing, dispersing, destroying, reducing, mitigating or containing the contamination of the land or eliminating or reducing any hazard arising from the contamination of the land. Rather, the 1993 consent only required rehabilitation of the landform, which is different from remediation.

  3. Secondly, the excavated areas were to be filled with the imported fill materials to natural floodplain levels, then have the topsoil replaced and be grassed for use as grazing land. No dredge ponds would remain that could be utilised to form a marina basin. Hence, even the “rehabilitation” required by the 1993 consent would not make the site suitable for the purpose of marina for which the development was proposed to be carried out. Rather, the rehabilitation was to make the land suitable for use for the purpose of grazing land.

  4. Thirdly, the 1993 consent did not require the land to be remediated “such that any permitted use of the site could be accommodated”. Rather, it only required rehabilitation so that the one use for grazing land could be accommodated.

  5. The 1993 consent, therefore, did not require the site to be remediated to make it suitable for the purpose of marina for which the development was proposed to be carried out. The advice of the Council officers that the 1993 consent for the extractive industry on the site did require the site to be so remediated was mistaken in law.

  6. This mistake in law materially affected the JRPP’s satisfaction under cl 7(1)(b) of SEPP 55 that the land will be suitable, after remediation under the 1993 consent, for the purpose for which the development was proposed to be carried out of marina. Because the satisfaction actually reached by the JRPP was not a satisfaction made with a correct understanding of the law under which the JRPP was required under cl 7(1) of SEPP 55 to act, then the necessary opinion of satisfaction did not exist. Accordingly, the precondition in cl 7(1)(b) of SEPP 55 was not satisfied and the JRPP had no power to grant consent to the carrying out of the marina development on the land.

  7. Similarly, the JRPP’s satisfaction under cl 7(1)(c) of SEPP 55 miscarried for the same reason. The JRPP was satisfied that the land required remediation to be made suitable for the purpose for which the development is proposed to be carried out. This triggered the requirement for the JRPP to consider and be satisfied of the matter in cl 7(1)(c) that the land will be remediated before the land is used for that purpose. The JRPP was satisfied that the land will be remediated before the land is used for that purpose because of the advice of the Council officers that the land was required to be remediated at the completion of extraction by a condition of the 1993 consent. This was a misconstruction of the 1993 consent. This mistake in law vitiated the JRPP’s satisfaction under cl 7(1)(c). The precondition in cl 7(1)(c) was therefore also not satisfied and the JRPP had no power to grant consent to the carrying out of the marina development on the land.

  8. I do not accept Benedict’s submission that it is impermissible to look to the terms of the 1993 consent because that consent was not before the JRPP. Where the alleged error is that there has been a mistake in law by misconstruction of a statutory instrument, it is necessary to refer to and construe the statutory instrument to determine whether a mistake of law has occurred. It is, therefore, permissible to examine and construe the 1993 consent.

  9. However, even if regard is had only to the materials before the JRPP, the oral advice of the Council officers relied on by the JRPP can still be shown to be mistaken in law. The Council report considered by the JRPP advised that the 1993 consent required “the rehabilitation of the site on cessation of extractive industries with the importation and processing of waste materials permitted to fill empty cells and return these areas to their natural landform” (p 6). The Council report included a copy of the approved rehabilitation plan under the 1993 consent showing the final surface levels to which the site, including the southern portion proposed for the marina development, was to be rehabilitated. The JRPP also had been similarly briefed earlier, on 19 July 2012, that the 1993 consent required “Rehabilitation of the site on cessation of extractive industries” and “importation of waste materials to return the site to its natural landform” and provided with a copy of the approved rehabilitation plans showing the filled land form levels. These descriptions of the rehabilitation that the 1993 consent required established that the oral advice of the Council officers relied on by the JRPP was materially inadequate and misleading in the three respects I have earlier identified.

  10. I also do not accept Benedict’s submission that, aside from the advice of the Council officers, there was ample material upon which the JRPP could have formed the relevant satisfactions under cl 7(1)(b) and (c). The simple answer is that the JRPP did not base its satisfaction on other material. The JRPP was clear in its statements at the meeting and its reasons for determination that it relied on the advice of the Council officers that the 1993 consent required the site to be remediated in coming to its conclusion that the requirements of cl 7 of SEPP 55 were met. Indeed, the conditions on which the JRPP determined to grant consent are consistent with the JRPP relying on that advice that the site would be remediated at the completion of extraction, rather than on the conditions of consent themselves. The JRPP determined to delete the recommended condition 36 requiring assessment of how the site contamination will be remediated so that the site can be made suitable for the proposed use. Imposition of that condition on the consent could have been the means by which the JRPP was satisfied of the matters in cl 7(1)(b) and (c). However, the JRPP determined not to use that means. Instead the JRPP relied on the means of the site being remediated under the 1993 consent at the completion of extraction. Hence, the conditions of consent do not provide material upon which the JRPP could form the relevant satisfactions.

  11. In conclusion, I find that the JRPP failed to form legally effective satisfactions under cl 7(1)(b) and (c) of SEPP 55 and, as a consequence, the JRPP’s decision to grant consent to the carrying out of Benedict’s marina development on the land was in breach of cl 7(1) of SEPP 55.

Relief to be granted to remedy and restrain breaches

  1. I have found that the applicant for development consent, Benedict, failed to comply with the requirements of cl 7(3) of SEPP 55 to carry out the preliminary investigation required by cl 7(2) and provide a report on it to the consent authority, the JRPP. Those failures caused the JRPP to fail to comply with the requirement in cl 7(3) to consider whether the findings of the preliminary investigation warranted a detailed investigation (as referred to in the contaminated land planning guidelines) as well as the requirement in cl 7(2) to consider a report specifying the findings of a preliminary investigation. By failing to consider such a report before determining Benedict’s application for consent to carry out the marina development, the JRPP contravened cl 7(2) of SEPP 55. I also found that the JRPP’s satisfactions about the matters in cl 7(1)(b) and (c) of SEPP 55 were legally ineffective and that, by granting consent to the carrying out of Benedict’s marina development without first forming the legally effective satisfactions required by cl 7(1)(b) and (c), the JRPP contravened cl 7(1) of SEPP 55.

  2. A contravention or failure to comply with an environmental planning instrument, such as SEPP 55, is a breach of the EPA Act: s 122(a)(i) and (b)(ii) of the EPA Act.

  3. The proceedings brought by Moorebank under s 123 of the EPA Act seek orders to remedy and restrain these breaches of the EPA Act. Section 124(1) of the EPA Act provides that:

Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

  1. The orders that the Court may make to remedy or restrain a breach of the EPA Act include, where the breach comprises a use of any building, work or land, restraining that use: s 124(2)(a) of the EPA Act.

  2. The functions of the Court under s 124 of the EPA Act to remedy or restrain a breach of the EPA Act are in addition to, and not in derogation from, any other function of the Court: s 124(4) of the EPA Act.

  3. Under s 20(2) of the Land and Environment Court Act 1979 (‘the Court Act’), the Court has the same civil jurisdiction as the Supreme Court would, but for s 71, to hear and dispose of proceedings:

(a)   to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract,

(b)   to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract,

(c)   to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function,

(d) whether or not as provided by section 68 of the Supreme Court Act 1970—to award damages for a breach of a development contract.

  1. Under s 23 of the Court Act, the Court has power to make orders of such kinds that it thinks appropriate. The Court is also required to grant all remedies as the Court thinks just, to ensure all matters in controversy between the parties are completely and finally determined: s 22 of the Court Act.

  2. The Court, therefore, has power to declare the JRPP’s decision to grant consent to the carrying out of Benedict’s development on the land to be invalid and to restrain Benedict from carrying out that development. Moorebank seeks these declaratory and injunctive orders to remedy and restrain the established breaches of the EPA Act.

  3. Benedict accepted that the Court should make an order restraining Benedict from carrying out the development pursuant to the consent granted by the JRPP, but submitted that such restraint should be until further order.

  4. Benedict submitted that the Court has a discretion whether to declare the consent to be invalid. Benedict submitted that a breach of the EPA Act in the granting of development consent may, but does not necessarily, result in invalidity of the impugned consent: GPT RE Ltd v Belmorgan Property Development Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647 at [90], [93].

  5. Benedict submitted that, in this case, the Court should exercise its discretion not to declare the consent to be invalid. Instead, Benedict proposed, that the Court should, exercising the discretion inherent in the power under s 124(1) of the EPA Act or the powers under Pt 3 Div 3 of the Court Act, make orders specifying terms compliance with which will validate the consent. The Court would then make a further order vacating the order restraining Benedict from carrying out the development. The orders Benedict proposed were as follows:

Orders

1.   Until further order, the first and second respondents be restrained from carrying out the development (the Development) in respect of DA-846/2012 (DA) which was consented to (the Consent) pursuant to the Sydney West Joint Regional Planning Panel (JRPP) determination dated 22 August 2014 (the Determination).

2. The applicant is to provide to the JRPP for the JRPP’s consideration a report (the Report) specifying the findings of a preliminary investigation of the land the subject of the Development carried out in accordance with the contaminated land planning guidelines published under s 145C of the Environmental Planning and Assessment Act 1979 (NSW) (the Act).

3. After considering the Report, and the matters in s 79C of the Act in respect of the Development, the JRPP is to communicate to the Court whether it is satisfied that:

(a)   the DA should have consent on the terms of the Determination;

(b)   the DA should have consent on the terms of the Determination subject to specified conditions different to those in the Determination; or

(c)   the DA should not have consent.

4.   The parties to have liberty to apply on three days’ notice.

Notes

5.   It is noted that, if the JRPP forms the opinion that the DA should have consent on the terms of the Determination subject to specified conditions different to those in the Determination, then:

(a)   the first and second respondents may apply to modify the Consent under s 96 of the Act;

(b)   the first and second respondents may apply to the Court for a declaration of invalidity in respect of the Consent;

(c)   the first and second respondents may surrender the Consent.

6. It is further noted that, if the JRPP forms the opinion that it requires a detailed investigation (within the meaning of cl 7(3) of State Environmental Planning Policy No 55) before the JRPP can form a satisfaction as to whether the DA should or should not have consent, the first and second respondents may apply to the Court for a declaration of invalidity in respect of the Consent.

  1. Benedict submitted that the Court would not declare the consent to be invalid but would instead make orders as Benedict had proposed, for two reasons. First, Benedict submitted, the regulatory purposes to be served by the requirements of cl 7 of SEPP 55 were adequately achieved in the events that happened. For example, in relation to the requirement of cl 7(2) of SEPP 55 that the JRPP consider a report on the findings of a preliminary investigation, Benedict submitted that the regulatory purpose of that requirement was adequately achieved: first, by the JRPP imposing conditions 2 and 96, the JRPP requested further reporting on contamination and remediation of the land, and secondly, the JRPP was able to form the relevant cl 7(1)(b) and (c) satisfactions by having regard to the Council officers’ advice and by the conditions the JRPP imposed on the consent.

  2. Secondly, Benedict submitted that the JRPP should be taken to have formed the view that the final landform for the development could not presently be assessed (because of the ongoing extractive industry activities on the site), and so any additional preliminary investigation of the land would be incapable of achieving the regulatory purpose. It would be perverse to invalidate the JRPP’s decision in circumstances where it reasonably formed the view that any further investigation would (at the moment) be futile.

  3. Alternatively, Benedict submitted, that the Court should consider making an order under s 25B of the Court Act instead of declaring the consent to be invalid. Benedict submitted that any breach of cl 7(1) or (2) of SEPP 55 is appropriately described as “technical” because the regulatory objects of consideration were already achieved. Benedict submitted that this is not a case where there would need to be reopening of the whole process of consideration and determination of the development application (referring to the circumstance in which an exercise of the s 25B discretion may be inappropriate referred to in Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; (2012) 190 LGERA 119 at [40] and cases therein cited). The relevant order should be that Benedict must submit a preliminary investigation to the JRPP for the JRPP’s consideration. If, after considering a report on that preliminary investigation, the JRPP considers that a more detailed investigation is required, it can exercise its cl 7(3) power to require one. Nothing in SEPP 55 requires that such a detailed investigation be prepared and considered by the consent authority prior to the granting of consent. As part of reconsideration of the development consent, the JRPP could, if necessary, mould any additional conditions concerning such a detailed investigation and its consequences.

  4. In the end, however, Benedict proposed orders requiring an alternative process, although with similarities, to the process under s 25B of the Court Act.

  5. In reply, Moorebank accepted that the Court has a discretion to grant or decline declaratory relief but submitted that ordinarily a declaration of invalidity will be granted, unless there are particular discretionary considerations justifying declining relief, such as an absence of utility: Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429 at [103].

  6. Moorebank submitted that the breaches of cl 7 of SEPP 55 in this case are “egregious”; they concerned preconditions to the exercise of the power to grant consent and as such were jurisdictional. Further, the breaches undermine the purpose and scheme of SEPP 55. The purpose of cl 7 is to ensure that there is adequate information before the decision-maker on the important questions about the contamination of the land and the remediation required to make the land suitable for the purpose for which the development is to be carried out. Clause 7 prescribes the manner in which the information on these questions is to be obtained, the content of the information, and the form in which the information is to be provided to the decision-maker. These process requirements are centrally relevant to the task which was to be assayed. The investigation and information requirements of cl 7 are also foundational to the proper exercise of the functions under SEPP 55, in particular the provisions dealing with the carrying out of remediation work.

  7. Moorebank submitted that the two reasons given by Benedict do not, on examination, justify declining declaratory relief. The first reason was said to be that the regulatory purpose of cl 7 of SEPP 55 has been served because the JRPP was provided with sufficient information. Moorebank countered that the failures to comply with the investigation and information requirements of cl 7, which constitute the breaches, are not merely technical but rather are substantive. The JRPP was not provided with and did not consider the report on the investigation required by cl 7(2) so as to properly discharge its functions under cl 7(1), (2) and (3), and its consideration of the information about the matters in cl 7(1) miscarried in law. Hence, the regulatory purpose of cl 7 was not served by what occurred. But in any event, Moorebank submitted, the whole purpose of the highly prescriptive process mandated by cl 7 and the contaminated land planning guidelines would be set at nought if an applicant for development consent could bypass them by providing cursory information on potential contamination to the consent authority. The rigour of decision-making on such an important subject matter would suffer if that were the outcome.

  1. The second reason was said to be that the JRPP can be taken to have formed the view that no additional investigation would be of any utility. Moorebank submitted, firstly, that that is not what the JRPP did. Rather the JRPP believed, based on the Council officers’ advice, that no investigation of contamination of the land would be required because the land would be remediated under the 1993 consent at the completion of extraction so as to make it suitable for the proposed use. Secondly, Moorebank submitted the whole purpose of the preliminary investigation is to determine whether further investigation is required, or whether the consent authority has sufficient information to enable it to determine the DA. That purpose would be frustrated if a consent is able to be granted in the absence of any proper assessment of contamination issues associated with the land. If the true position was that it was too early to say whether there were contamination issues that warranted further investigation, then it was incumbent on the JRPP not to grant consent at all, as none of the provisions of cl 7 could be satisfied in those circumstances. That is no doubt the reason why the JRPP rejected that approach, advocated by the Council officers.

  2. I consider the appropriate relief that should be granted to remedy the established breaches is an order declaring the consent granted by the JRPP to be invalid and an order restraining Benedict from carrying out the development pursuant to that consent. Although the Court has discretion whether to declare invalid a consent granted in breach of the EPA Act, I consider the breaches involved in this case make it inappropriate to exercise that discretion not to declare the consent invalid.

  3. As Moorebank submitted, the contraventions of and failures to comply with the requirements of cl 7(1), (2) and (3) of SEPP 55 are jurisdictional – they go to the jurisdiction of the JRPP as the consent authority to exercise the power to determine the development application by the grant of consent to the carrying out of the development on the land. The matters in cl 7(1), (2) and (3) are not merely matters to be considered by the JRPP but are preconditions to a valid exercise of the power to determine the development application by granting consent.

  4. The fundamental nature of the requirements is also emphasised by their purpose and place in the regulatory scheme of SEPP 55. SEPP 55 aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health and the environment. One of the principal means by which this aim is to be achieved is by specifying certain considerations that are relevant in determining development applications for consent to carry out development on land that might be contaminated. Remediation of contaminated land cannot occur unless and until there is an investigation, carried out in accordance with the contaminated land planning guidelines, of whether land proposed to be developed is contaminated and, if it is contaminated, whether the land is suitable in its contaminated state or will be suitable after remediation for the purpose for which the development is proposed to be carried out and, if the land requires remediation to be made suitable, whether the land will be remediated so as to make it suitable before the land is to be used for that purpose. Clause 7 of SEPP 55 specifies these considerations as being preconditions to the determination of development applications for consent to carry out development on land concerned. To contravene or fail to comply with the requirements of cl 7 of SEPP 55 frustrates the attainment of the aim of promoting the remediation of contaminated land.

  5. Furthermore, cl 7 does not merely specify the matters required to be considered, but also specifies the manner in which information on the matters must be obtained (a preliminary investigation carried out by the applicant for development consent in accordance with the contaminated land planning guidelines), the content of the information on the matters (the findings of the preliminary investigation carried out in accordance with the contaminated land planning guidelines) and the form in which the information on the matters must be presented to the consent authority for its consideration (a report specifying the findings of the preliminary investigation provided to the consent authority). Compliance with these process requirements is fundamental to achieving the regulatory purpose of cl 7 of SEPP 55. Information obtained by other persons or by other means, with different content, and presented in a different form, would not achieve the regulatory purpose of cl 7 of SEPP 55.

  6. I therefore do not accept that submission to and consideration by the JRPP of the other investigations and reports referred to by Benedict did achieve the regulatory purpose of cl 7 of SEPP 55. The JRPP’s consideration of the matters in cl 7 of SEPP 55 was fundamentally vitiated by the failure to consider the report on the investigation required by cl 7(2) and by the mistake of law as to the meaning and effect of the 1993 consent. The decision to grant consent and to impose the particular conditions of consent the JRPP decided to impose were dependent on the JRPP’s ignorance of the findings of a preliminary investigation of the land and on the JRPP’s mistaken belief about the legal meaning and effect of the 1993 consent.

  7. I also do not accept that there would be no utility in requiring the JRPP to re-consider and re-determine the development application according to law, in particular in accordance with cl 7 of SEPP 55. I reject Benedict’s submission that the JRPP was of the view that further investigation would be of no utility. For the reasons given earlier, that was not the view of the JRPP. It decided not to require by a condition of consent further investigations of contamination because it believed the land would be otherwise remediated under the 1993 consent at the completion of extraction. I consider there would be clear utility in requiring the process of investigation and consideration of contamination and remediation of the land that cl 7 of SEPP 55 requires before the JRPP again determines Benedict’s development application for consent to carry out the marina development on the land.

  8. The contraventions of and failures to comply with the requirements of cl 7 of SEPP 55 cannot be remedied by not declaring the consent invalid but instead ordering a process of investigation, consideration and determination as advocated by Benedict or under s 25B of the Court Act. Such a process of investigation, consideration and determination is wholly different to that mandated by cl 7 of SEPP 55 and s 79C(1) of the EPA Act. The JRPP’s future consideration and determination of the development application would be crimped and tainted by the impugned but not declared invalid decision to grant consent. There would not be the consideration and determination required by cl 7 of SEPP 55.

  9. The process of investigation, consideration and determination advocated by Benedict could also face legal difficulties. If a consent authority’s determination of a development application is declared invalid, the development application becomes undetermined and the consent authority again has power to consider and determine the development application, this time according to law: GPT RE Ltd v Belmorgan Property Pty Ltd at [90]. But if the Court does not declare the development consent to be invalid, the consent authority no longer has any power to exercise to consider and determine the development application – it is functus officio.

  10. In this case, therefore, if the consent were not to be declared invalid, the JRPP would have no power to consider a report on a preliminary investigation under cl 7(2) or (3) of SEPP 55; to require Benedict to carry out a detailed investigation (as referred to in the contaminated land planning guidelines) under cl 7(3); or to consider whether the land is contaminated, whether it will be made suitable after remediation for the purpose for which Benedict’s development is proposed to be carried out, or whether the land will be remediated before the land is used for that purpose, under cl 7(1) of SEPP 55. It would not be proper for the Court to order the JRPP to do these things which it has no power to do.

  11. Instead, the appropriate course is to declare the consent invalid and to force Benedict to carry out the preliminary investigation of the land required by cl 7(2) of SEPP 55 and provide the report on it to the JRPP, and the JRPP to undertake the consideration it is required to undertake under cl 7(1), (2) and (3) of SEPP 55 before determining Benedict’s development application for consent to carry out development on the land.

  12. The parties accepted that the appropriate order as to costs was that costs follow the event. Accordingly, as Moorebank has been successful in establishing the invalidity of the consent and obtaining declaratory and injunctive relief, Benedict should be ordered to pay Moorebank’s costs of the proceedings. The JRPP and the Council made submitting appearances. Neither Moorebank nor Benedict suggested that an order for costs should be made against the JRPP or the Council.

  13. Accordingly, I make the following orders:

  1. Declare the determination of development application no DA – 846/2012 by Sydney West Joint Regional Planning Panel on 22 August 2014 to give approval for a marina on Lot 7 in DP 1065574 being land at 146 Newbridge Road, Moorebank, is invalid.

  2. Order Benedict Industries Pty Ltd and Tanlane Pty Ltd, their servants and agents, be restrained from taking any action or carrying out any works in pursuance of or in reliance on the purported determination referred to in order (1).

  3. Order Benedict Industries Pty Ltd and Tanlane Pty Ltd to pay the costs of the proceedings of Moorebank Recyclers Pty Ltd.

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Decision last updated: 18 March 2015

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Cases Citing This Decision

11

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304
Woollahra Municipal Council v Cameron [2024] NSWLEC 27
Denny v Optus Mobile Pty Ltd [2023] NSWLEC 27
Cases Cited

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Statutory Material Cited

6

Dexus Funds Management Limited v Blacktown City Council (No 3) [2011] NSWLEC 230
Chisholm v Pittwater Council [2001] NSWCA 104
Jolly v Yorketown District Council [1968] HCA 55