Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (No 2)

[2017] NSWLEC 186

Land and Environment Court

New South Wales

Medium Neutral Citation:	Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (No 2) [2017] NSWLEC 186
Hearing dates:	6-7, 14-15 September 2017
Date of orders:	21 December 2017
Decision date:	21 December 2017
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) The Applicant’s summons is dismissed. (2) The Applicant is to pay the First Respondent’s costs of the proceedings unless a notice of motion seeking alternative orders is filed within 30 days of this judgment. (3) The exhibits be returned.
Catchwords:	JUDICIAL REVIEW – application of State Environmental Planning Policy No 55 in context of local environmental plan amendment – whether a council in preparing a planning proposal has to comply with SEPP 55 – whether in making a gateway determination SEPP 55 must be complied with – summons dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4, Pt 3 Div 2, Pt 3 Div 4, 79C, 83, Pt 6, Pt 7A, Sch 6 cl 120 Environmental Planning and Assessment Amendment Act 2008 Greater Sydney Commission Act 2015 Land and Environment Court Act 1979 s 20 Liverpool Local Environmental Plan 2008 Pt 2, Land Use Table, Pt 7 Div 2, Sch 1 Local Government Act 1993 Standard Instrument (Local Environmental Plans) Order 2006 State Environmental Planning Policy No 55 – Remediation of Land cll 2, 4, 6, 7 State Environmental Planning Policy (Major Development) 2005 Statute Law (Miscellaneous Provisions) Act (No 2) 2009 Sch 1
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 Blue Mountains City Council v Laurence Browning Pty Ltd (2006) 67 NSWLR 672; [2006] NSWCA 331 Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc (2011) 185 LGERA 429; [2011] NSWCA 378 Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 2) [2017] NSWLEC 53 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2017] NSWLEC 97 Teys Australia Southern Pty Ltd v Burns (2015) 206 LGERA 186; [2015] NSWLEC 1
Texts Cited:	New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 12 August 2008 Managing Land Contamination: Planning Guidelines, SEPP 55 – Remediation of Land (1998) Department of Urban Affairs and Planning, Environment Protection Authority
Category:	Principal judgment
Parties:	Moorebank Recyclers Pty Ltd (Applicant) Tanlane Pty Ltd (First Respondent) Greater Sydney Commission (Second Respondent) Liverpool City Council (Third Respondent)
Representation:	COUNSEL: T Robertson SC and J Lazarus (Applicant) T Hale SC and D Robertson (First Respondent) Submitting appearance (Second Respondent) Submitting appearance (Third Respondent)   SOLICITORS: Mark McDonald & Associates (Applicant) Minter Ellison (First Respondent) Department of Planning (Second Respondent) Shaw Reynolds (Third Respondent)
File Number(s):	17/172252

Judgment

1. Moorebank Recyclers Pty Ltd (Moorebank) challenges two decisions concerning a planning proposal lodged by the First Respondent Tanlane Pty Ltd (Tanlane) in relation to its land at 146 Newbridge Road Moorebank (the Planning Proposal). The Second Respondent Greater Sydney Commission (GSC) and Third Respondent Liverpool City Council (Council) have filed submitting appearances save as to costs.

2. Tanlane’s 22 ha parcel of land is situated on the banks of the Georges River. Under the Liverpool Local Environmental Plan 2008 (LLEP) the northern portion is zoned R3 Medium Density Residential where Tanlane intends to undertake residential subdivision and development. On the southern portion zoned RE1 Public Recreation and RE2 Private Recreation Tanlane intends to construct a marina and related recreational and residential facilities. Moorebank owns a 20.5 ha parcel of land to the immediate south of the Tanlane land.

3. The two decisions concerning the Planning Proposal challenged by Moorebank in these proceedings are as follows:

1. The resolutions of the Council made on 31 August 2016 to support “in principle” the Planning Proposal and to forward it to the GSC for gateway determination pursuant to s 56 of the Environmental Planning and Assessment Act 1979 (EPA Act) (the Council Resolutions). Subsequent actions by the Council to adopt amendments to the Planning Proposal are also in issue.

2. The making of a gateway determination by a delegate of the GSC (the Delegate) on 9 March 2017 that the Planning Proposal should proceed subject to conditions (the Gateway Determination).

4. The primary basis upon which Moorebank alleged that both the Council Resolutions and Gateway Determination are invalid is the purported failure to comply with cl 6 of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). Moorebank seeks declarations that the impugned decisions are invalid and other consequential orders. Moorebank as the moving party has the onus proof to the civil standard of establishing its case.

5. In Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2017] NSWLEC 97 (Interlocutory Judgment) leave was granted to Moorebank to commence these proceedings out of time.

Summary of grounds of challenge

6. Moorebank's grounds of challenge may be summarised as follows:

1. in preparing and/or adopting the Planning Proposal, the Council failed to comply with cl 6(2) of SEPP 55 (Ground 1);

2. in preparing and/or adopting the Planning Proposal, the Council failed to comply with cl 6(1) of SEPP 55 (Ground 2);

3. the Gateway Determination is invalid because of the Council's breaches of SEPP 55 (Ground 3);

4. in making the Gateway Determination, the Delegate failed to comply with cl 6(2) of SEPP 55 (Ground 4);

5. in making the Gateway Determination, the Delegate failed to comply with cl 6(1) of SEPP 55 (Ground 5); and

6. the Gateway Determination is invalid because the Delegate made the determination under a misapprehension of material matters of fact and/or law (Ground 6).

7. According to Moorebank Grounds 1, 2 and 3 are related. If Grounds 1 and 2 are unsuccessful so is Ground 3 and vice versa. Alternatively Grounds 4 and 5 are discrete challenges to the Gateway Determination. Ground 6 stands alone. Separately Tanlane identified a number of issues which incorporate or are additional to these grounds. The issues raised by Tanlane reflected an alternative statutory construction of the relevant legislation which was fundamental to the operation of SEPP 55 in the context of the processes for making an environmental planning instrument (EPI) under the EPA Act. As will be identified below these issues will be answered at the outset before considering Moorebank’s individual grounds.

8. There was debate during the hearing as to whether these were judicial review proceedings or should more properly be characterised as civil enforcement alleging a breach of the EPA Act. Given the provisions of Pt 6 (Implementation and enforcement) of the EPA Act and the Land and Environment Court Act 1979 (Court Act) in s 20 these can be characterised as judicial review proceedings. These proceedings bear some similarity to litigation between the same parties concerning cl 7 of SEPP 55, Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40 (Moorebank cl 7 SEPP 55 challenge).

Relevant legislation

Environmental Planning and Assessment Act 1979

9. Part 3 Div 4 of the EPA Act, which was substantially amended in 2009 by the Environmental Planning and Assessment Amendment Act 2008 (Amendment Act 2008), concerns the preparation, making and amendment of local environmental plans (LEPs). This is extracted below with other parts of the EPA Act referred to in argument.

Part 1 Preliminary

4 Definitions

(1)   In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

…

environmental planning instrument means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force.

…

Part 3 Environmental planning instruments

...

Division 4 LEPs

…

53A Greater Sydney Commission may make LEPs for local areas in Greater Sydney Region

(1)   The Greater Sydney Commission may make environmental planning instruments for the purposes of environmental planning in each local government area in the Greater Sydney Region. Any such instrument may be called a local environmental plan (or LEP).

(2)   For the purposes of the making of LEPs that apply to local government areas in the Greater Sydney Region, a reference to the Minister in section 15, 33B(4) or (5), 54(1), (2)(a), (c) or (d) or (4), 56, 58, 59, 73A(1)(c), 74D(5)(b) or 74F is to be construed as a reference to the Greater Sydney Commission.

…

54 Relevant planning authority

(1)   For the purposes of this Part, the relevant planning authority in respect of a proposed instrument is as follows:

(a)   the council for the local government area to which the proposed instrument is to apply, subject to paragraph (b),

…

55 Relevant planning authority to prepare explanation of and justification for proposed instrument—the planning proposal

(1)   Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal).

(2)   The planning proposal is to include the following:

(a)   a statement of the objectives or intended outcomes of the proposed instrument,

(b)   an explanation of the provisions that are to be included in the proposed instrument,

(c)   the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will comply with relevant directions under section 117),

(d)   if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land—a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument,

(e)   details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument.

(3)   The Secretary may issue requirements with respect to the preparation of a planning proposal.

56 Gateway determination

(1)   After preparing a planning proposal, the relevant planning authority may forward it to the Minister.

(2)   After a review of the planning proposal, the Minister is to determine the following:

(a)   whether the matter should proceed (with or without variation),

(b)   whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal),

(c)   community consultation required before consideration is given to the making of the proposed instrument (the community consultation requirements),

(d)   any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument,

(e)   whether a public hearing is to be held into the matter by the Planning Assessment Commission or other specified person or body,

(f)   the times within which the various stages of the procedure for the making of the proposed instrument are to be completed.

(3)   A determination of the community consultation requirements includes a determination under section 73A (or other provision of this Act) that the matter does not require community consultation.

(4)   The regulations may provide for the categorisation of planning proposals for the purposes of this section, and may prescribe standard community consultation requirements for each such category.

(5) The Minister may arrange for the review of a planning proposal (or part of a planning proposal) under this section to be conducted by, or with the assistance of, the Planning Assessment Commission or a joint regional planning panel:

(a)   if there has been any delay in the matter being finalised, or

(b)   if for any other reason the Minister considers it appropriate to do so.

(6)   The relevant planning authority may, at any time, forward a revised planning proposal to the Minister.

(7) The Minister may, at any time, alter a determination made under this section.

(8)   A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under section 57, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that section.

57 Community consultation

(1)   Before consideration is given to the making of a local environmental plan, the relevant planning authority must consult the community in accordance with the community consultation requirements for the proposed instrument.

(2) The planning proposal (as revised to comply with the determination under section 56 and in a form approved by the Secretary) is to be made publicly available during the period of community consultation. Detailed provisions may be summarised instead of being set out in full if the Secretary is satisfied that the summary provides sufficient details for community consultation.

(3)   During the period of community consultation, any person may make a written submission to the relevant planning authority concerning the matter (other than any matter that is mandatory under an applicable standard instrument under section 33A).

(4)   The relevant planning authority may (but need not) make publicly available, in accordance with the community consultation requirements, the submissions made concerning a matter (or a summary of or report on any such submissions).

(5)   If:

(a)   a person making a submission so requests, and

(b)   the relevant planning authority considers that the issues raised in a submission are of such significance that they should be the subject of a hearing,

the relevant planning authority is to arrange a public hearing on the issues raised in the submission.

(6)   The relevant planning authority may arrange a public hearing on any issue whether or not a person has made a submission concerning the matter.

(7)   A report of any public hearing is to be furnished to the relevant planning authority and may be made publicly available by that authority.

(8)   The consultation required by this section is completed when the relevant planning authority has considered any submissions made concerning the proposed instrument and the report of any public hearing.

58 Relevant planning authority may vary proposals or not proceed

(1)   The relevant planning authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason.

(2)   If it does so, the relevant planning authority is to forward a revised planning proposal to the Minister.

(3) Further community consultation under section 57 is not required unless the Minister so directs in a revised determination under section 56.

(4)   The relevant planning authority may also, at any time, request the Minister to determine that the matter not proceed.

59 Making of local environmental plan by Minister

(1)   The Secretary is to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the relevant planning authority. The Secretary is to consult the relevant planning authority, in accordance with the regulations, on the terms of any such draft instrument.

(2) The Minister may, following completion of community consultation:

(a)   make a local environmental plan (with or without variation of the proposals submitted by the relevant planning authority) in the terms the Minister considers appropriate, or

(b)   decide not to make the proposed local environmental plan.

(3) The Minister may defer the inclusion of a matter in a proposed local environmental plan.

(4)   If the Minister does not make the proposed local environmental plan or defers the inclusion of a matter in a proposed local environmental plan, the Minister may specify which procedures under this Division the relevant planning authority must comply with before the matter is reconsidered by the Minister.

…

Part 4 Development assessment

...

Division 2 The procedures for development that needs consent

…

79C Evaluation

(1)   Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a)   the provisions of:

(i)   any environmental planning instrument, and

(ii)   any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority, and

(iii)   any development control plan, and

(iv)   the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

that apply to the land to which the development application relates,

(b)   the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)   the suitability of the site for the development,

(d)   any submissions made in accordance with this Act or the regulations,

(e)   the public interest.

...

83 Date from which consent operates

…

(2)   Subject to subsection (3), if a determination is made by the granting of consent or the granting of consent subject to conditions, and an appeal has been made under section 97(1) or 98, the consent:

(a)   ceases to be, or does not become, effective pursuant to subsection (1), and

…

Part 7A Liability in respect of contaminated land

145A Definitions

In this Part:

contaminated land means 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.

contaminated land planning guidelines means guidelines notified in accordance with section 145C.

planning authority, in relation to a function specified in section 145B, means:

…

(b)   in the case of any other function—the public authority or other person responsible for exercising the function.

145B Exemption from liability—contaminated land

(1)   A planning authority does not incur any liability in respect of anything done or omitted to be done in good faith by the authority in duly exercising any planning function of the authority to which this section applies in so far as it relates to contaminated land (including the likelihood of land being contaminated land) or to the nature or extent of contamination of land.

(2)   This section applies to the following planning functions:

(a)   the preparation or making of an environmental planning instrument, including a planning proposal for the proposed environmental planning instrument,

…

(f)   anything incidental or ancillary to the carrying out of any function listed in paragraphs (a)–(e).

(3)   Without limiting any other circumstance in which a planning authority may have acted in good faith, a planning authority is (unless the contrary is proved) taken to have acted in good faith if the thing was done or omitted to be done substantially in accordance with the contaminated land planning guidelines in force at the time the thing was done or omitted to be done.

(4)   This section applies to and in respect of:

(a)   a councillor, and

(b)   an employee of a planning authority, and

(c)   a Public Service employee, and

(d)   a person acting under the direction of a planning authority,

in the same way as it applies to a planning authority.

145C Contaminated land planning guidelines

(1) For the purposes of section 145B, the Minister may, from time to time, give notice in the Gazette of the publication of planning guidelines relating to contaminated land and that a copy of the guidelines may be inspected, free of charge, at the principal office of each council during ordinary office hours.

…

10. Section 145B was amended by the Statute Law (Miscellaneous Provisions) Act (No 2) 2009 which provided:

Schedule 1 Minor amendments

...

1.6 Environmental Planning and Assessment Act 1979

...

[5] Section 145B Exemption from liability—contaminated land

Insert “, including a planning proposal for the proposed environmental planning instrument” after “instrument” in section 145B(2)(a).

[6] Section 145B(2)(c)

Insert “and any application under Part 3A” after “development application”.

Explanatory note

...

Exemption from liability relating to contaminated land

Section 145B of the EP&A Act provides for exemption from liability for contaminated land for actions in good faith taken in exercising a planning function under the EP&A Act. Items [5] and [6] include, as planning functions to which the exemption applies, the preparation of a planning proposal (required under the EP&A Act before the making of an environmental planning instrument) and (in addition to the existing function of processing and determination of development applications) the processing and determination of applications under Part 3A of the EP&A Act. The proposed amendments correct inadvertent admissions [sic - omissions].

Former Part 3 Division 4

11. Prior to amendments under the Amendment Act 2008 which came into force in 2009, Pt 3 Div 4 of the EPA Act prescribed a different process for making an LEP as follows:

Part 3 Environmental planning instruments

...

Division 4 Local environmental plans

53 Definition

Where 2 or more councils decide to join in the preparation of a draft local environmental plan under section 54(2), a reference in this Division:

(a)   except in section 54, to a council includes a reference to those councils, and

(b)   to an area includes a reference to the areas of those councils.

54 Decision to prepare draft local environmental plan

(1)   A council may decide to prepare a draft local environmental plan in respect of the whole or any part of the land within its area.

(2)   Two or more councils may decide to join in the preparation of a draft local environmental plan in respect of the whole or any part of the land within their areas.

(3)   Where 2 or more councils decide to join in the preparation of a draft local environmental plan under subsection (2), they shall enter into an agreement for the purpose of preparing that draft local environmental plan.

(4)   A council or councils, as the case may be, shall inform the Director of the decision to prepare a draft local environmental plan and of the land to which it is intended to apply.

(5)   Following the decision to prepare a draft local environmental plan, the council or councils may, subject to and in accordance with this Division, prepare the plan.

55 Directions from Minister for the preparation of local environmental plan

(1) The Minister may direct a council, or 2 or more councils jointly, to perform any function conferred or imposed on it or them under section 54 or any other provision of this Division within such time or period as is specified in the direction.

(2)   Where a direction is given under subsection (1), no function performed after the expiration of any time or period specified in the direction shall thereby be rendered void or otherwise ineffective.

(3)   Nothing in this section affects the operation of section 117.

(4)   Following the direction to prepare a draft local environmental plan, the council or councils shall, subject to and in accordance with this Division, prepare the plan.

56 (Repealed)

57 Preparation of environmental study

(1)   Where a council decides to prepare a draft local environmental plan or is directed to do so by the Minister under section 55, it shall prepare an environmental study of the land to which the draft local environmental plan is intended to apply.

(2)   A council shall prepare an environmental study in accordance with such specifications, if any, relating to the form, content and preparation of the study as have been notified to the council by the Director and are then applicable.

(3)   (Repealed)

(4)   The environmental study referred to in subsection (1) shall be prepared with regard to such matters, relating to the environment of the area to which the draft local environmental plan is intended to apply, as the council, subject to the specifications, determines.

(5)   Where, in relation to a request or submission made by or on behalf of a person to a council, an environmental study referred to in subsection (1) of particular land is prepared by the council for the purposes of a draft local environmental plan to enable the carrying out of development on the land, the council may, subject to and in accordance with the regulations, recover the costs and expenses, determined in accordance with the regulations, incurred in the preparation of the environmental study, from the person.

58–60 (Repealed)

61 Council’s responsibilities in preparing draft local environmental plan

The council shall prepare a draft local environmental plan having regard to the environmental study prepared by the council under section 57.

62 Consultation

In the preparation of an environmental study or a draft local environmental plan, the council shall consult with:

(a)   such public authorities or bodies (including authorities of the Commonwealth or other States) as, in its opinion, will or may be affected by that draft local environmental plan,

(b)   where the draft local environmental plan applies to land adjoining a boundary between the council’s area and another area—the council of that other area, and

(c)   such other persons as the council determines.

…

64 Submission of copy of draft local environmental plan to Department

When a draft local environmental plan has been prepared, the council shall submit a copy of the draft plan to the Director, together with a statement specifying the names of the public authorities, bodies and other persons the council has consulted with pursuant to section 62.

65 Certificate of Director

(1)   Where the Director receives a copy of a draft local environmental plan from a council under section 64, the Director may cause to be issued to the council a certificate certifying that the draft plan may be publicly exhibited in accordance with section 66.

(2)   A certificate issued under this section may be granted subject to the condition that the draft local environmental plan be amended in the manner specified in the certificate before it is publicly exhibited in accordance with section 66.

(3)   Where a certificate is not issued under this section, the Director shall return the draft plan to the council, giving the reasons why the certificate was not issued, and directing the council to amend the draft plan in such a manner as to enable a certificate to be issued, or to take such other action as is appropriate.

(4)   The council shall comply with a direction given under subsection (3).

66 Public exhibition of draft local environmental plan

(1)   Where a council receives a certificate under section 65 with respect to a draft local environmental plan, it shall, after complying with any condition subject to which the certificate was granted and subject to the regulations:

(a)   give public notice, in a form and manner determined by the council, of the place at which, the dates on which, and the times during which, the environmental study prepared by the council under section 57 of the land to which the draft local environmental plan applies and the draft local environmental plan may be inspected by the public,

(b)   publicly exhibit at the place, on the dates and during the times set out in the notice:

(i)   a copy of that environmental study and draft local environmental plan,

(ii)   a copy of any State environmental planning policy, regional environmental plan, or relevant direction under section 117, applying to the land to which the draft local environmental plan is intended to apply, and

(iii)   if such a policy, plan or direction does so apply—a statement to the effect that the policy, plan or direction referred to in subparagraph (ii) substantially governs the content and operation of the draft local environmental plan and that any submission made pursuant to section 67 should be made having regard thereto,

(c)   specify, in the notice, the period (being a period which is or includes the period referred to in subsection (2)) during which submissions may be made to the council in accordance with section 67, and

(d)   publicly exhibit such other matter as it considers appropriate or necessary to better enable the draft plan and its implications to be understood.

…

68 Consideration of submissions

(1)   Where:

(a)   a person making a submission so requests, and

(b)   the council considers that the issues raised in a submission are of such significance that they should be the subject of a hearing before the council decides whether and, if so, what alterations should be made,

the council shall, in the prescribed manner, arrange a public hearing in respect of the submission.

(2)   A report of the public hearing shall be furnished to the council and the council shall make public the report.

(3)   The council shall consider the submission and the report furnished pursuant to subsection (2) and may make any alterations it considers are necessary to the draft local environmental plan arising from its consideration of submissions or matters raised at any public hearing.

69 Report by Director

The Director shall furnish a report to the Minister as to:

(a)   whether the draft local environmental plan submitted under section 68 (4) is inconsistent with any State environmental planning policy, regional environmental plan, or relevant direction under section 117, applying to the land to which the draft plan applies,

(b)   if there is such an inconsistency—whether the inconsistency is justifiable in the circumstances,

(c)   whether the provisions of sections 66, 67 and 68 relating to public involvement in the preparation of the draft plan have been complied with,

(d)   the relationship between the draft plan, and other proposed and any existing environmental planning instruments, and any relevant directions under section 117, applying to the land to which the draft plan applies, and

(e)   such other matters (if any) relating to the draft plan as the Director thinks appropriate.

70 Making of local environmental plan

(1)   After considering the Director’s report made under section 69, the Minister may:

(a)   make a local environmental plan:

(i)   in accordance with the draft local environmental plan as submitted by the council under section 68(4), or

(ii)   in accordance with that draft plan with such alterations as the Minister thinks fit relating to any matter which in the opinion of the Minister is of significance for State or regional environmental planning,

(b)   direct that action be taken in accordance with subsection (3), or

(c)   decide not to proceed with the draft local environmental plan.

…

State Environmental Planning Policy No 55 — Remediation of Land

12. SEPP 55 which entered into force on 28 August 1998 relevantly provides:

2 Object of this Policy

(1)   The object of this Policy is to provide for a Statewide planning approach to the remediation of contaminated land.

(2)   In particular, this Policy 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 a remediation work in particular, and

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

...

4 Definitions

(1) In this Policy:

...

contaminated land has the same meaning as it has in Part 7A of the Act.

contaminated land planning guidelines means guidelines under section 145C of the Act.

...

preliminary investigation, in relation to land, means a preliminary investigation referred to in the contaminated land planning guidelines.

...

6 Contamination and remediation to be considered in zoning or rezoning proposal

(1)   In preparing an environmental planning instrument, a planning authority is not to include in a particular zone (within the meaning of the instrument) any land specified in subclause (4) if the inclusion of the land in that zone would permit a change of use of the land, unless:

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

(b)   if the land is contaminated, the planning authority is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for all the purposes for which land in the zone concerned is permitted to be used, and

(c)   if the land requires remediation to be made suitable for any purpose for which land in that zone is permitted to be used, the planning authority is satisfied that the land will be so remediated before the land is used for that purpose.

Note. In order to satisfy itself as to paragraph (c), the planning authority may need to include certain provisions in the environmental planning instrument.

(2)   Before including land of a class identified in subclause (4) in a particular zone, the planning authority is to obtain and have regard to a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines.

(3)   If a person has requested the planning authority to include land of a class identified in subclause (4) in a particular zone, the planning authority may require the person to furnish the report referred to in subclause (2).

(4)   The following classes of land are identified for the purposes of this clause:

(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).

(5)   In this clause, planning authority has the same meaning as it has in section 145A of the Act.

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.

(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).

State Environmental Planning Policy savings provision

13. Savings provisions were added to Sch 6 of the EPA Act in 2009 under the Amendment Act 2008 as follows:

120 Continuation in force of existing SEPPs and REPs

All existing State environmental planning policies and existing regional environmental plans are, on the relevant commencement day, taken to be environmental planning instruments made by the Governor under Division 2 of Part 3 of this Act, as amended by the amending Act.

14. The parties agree that SEPP 55 continued in force.

Liverpool Local Environmental Plan 2008

15. Relevant provisions of the LLEP, which is based on the Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument), are set out as follows:

Part 2 Permitted or prohibited development

…

2.1 Land use zones

…

2.2 Zoning of land to which Plan applies

…

2.3 Zone objectives and Land Use Table

…

2.4 Unzoned land

…

2.5 Additional permitted uses for particular land

(1) Development on particular land that is described or referred to in Schedule 1 may be carried out:

(a)   with development consent, or

(b)   if the Schedule so provides—without development consent,

in accordance with the conditions (if any) specified in that Schedule in relation to that development.

(2)   This clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan.

2.6 Subdivision –consent requirements

…

2.6A, 2.6B (Repealed)

2.7 Demolition requires development consent

…

2.8 Temporary use of land

…

Land Use Table

...

Zone R3 Medium Density Residential

1 Objectives of zone

•   To provide for the housing needs of the community within a medium density residential environment.

•   To provide a variety of housing types within a medium density residential environment.

•   To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•   To provide for a concentration of housing with access to services and facilities.

•   To provide for a suitable visual transition between high density residential areas and lower density areas.

•   To ensure that a high level of residential amenity is achieved and maintained.

2 Permitted without consent

Home-based child care; Home occupations

3 Permitted with consent

Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dwelling houses; Educational establishments; Environmental facilities; Environmental protection works; Exhibition homes; Exhibition villages; Flood mitigation works; Group homes; Home businesses; Home industries; Hostels; Hotel or motel accommodation; Multi dwelling housing; Neighbourhood shops; Places of public worship; Public administration buildings; Recreation areas; Residential care facilities; Respite day care centres; Roads; Secondary dwellings; Semi-detached dwellings; Seniors housing; Shop top housing

4 Prohibited

Any development not specified in item 2 or 3.

…

Zone RE2 Private Recreation

1 Objectives of zone

•   To enable land to be used for private open space or recreational purposes.

•   To provide a range of recreational settings and activities and compatible land uses.

•   To protect and enhance the natural environment for recreational purposes.

•   To enable land uses that are compatible with, and complimentary to, recreational uses.

2 Permitted without consent

Environmental protection works; Home occupations

3 Permitted with consent

Animal boarding or training establishments; Boat sheds; Building identification signs; Business identification signs; Camping grounds; Car parks; Caravan parks; Centre-based child care facilities; Charter and tourism boating facilities; Community facilities; Entertainment facilities; Environmental facilities; Flood mitigation works; Function centres; Hotel or motel accommodation; Information and education facilities; Kiosks; Landscaping material supplies; Marinas; Mooring pens; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Registered clubs; Respite day care centres; Roads; Stock and sale yards; Veterinary hospitals; Water recreation structures

4 Prohibited

Any other development not specified in item 2 or 3.

…

16. Part 7 Div 2 of the LLEP provides additional local provisions which are not included in the Standard Instrument. Schedule 1 is a list of additional permitted uses applying to specified land within the Liverpool local government area.

Managing Land Contamination: Planning Guidelines 1998

17. Managing Land Contamination: Planning Guidelines, SEPP 55 – Remediation of Land (1998) Department of Urban Affairs and Planning, Environment Protection Authority (Contaminated Land Planning Guidelines) are intended to assist planning and consent authorities to undertake their responsibilities under the EPA Act. The parties agree the Guidelines are those which are referred to in the definition of “contaminated land planning guidelines” in cl 4 of SEPP 55. Relevant extracts of these Guidelines are as follows:

3.   What information is needed to make a decision?

3.1.    INTRODUCTION

This chapter focuses on the process for evaluating and assessing contamination issues.

Before carrying out a planning function, it is essential to consider whether the

issue of contamination is relevant. If it is, investigations might be needed to

provide information about the land to enable that function to be carrying out in

good faith.

When defining the area to be investigated, all land subject to the planning

decision must be considered. For example, a council’s decision to accept a

dedication of land for open space as part of a development proposal might need an investigation into its suitability, and because it involves a change of use even if no development is proposed on the land at the time.

...

Table 1. Some Activities that may cause contamination

…

•landfill sites

…

•   mining and extractive industries

…

3.5   EVALUATION OF THE INFORMATION PROVIDED BY THE PROPONENT

The EP&A Act and SEPP 55 require a planning authority to consider the suitability of land for a proposed development. Ultimately, a planning authority needs to be satisfied that a site is suitable for its proposed use or can and will be made suitable, based on what they know of the site. This will involve an evaluation or review of the information submitted by the proponent.

...

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.

Statement of Agreed Facts

18. The parties agreed the following Statement of Agreed Facts (SOAF) in the course of the hearing which it is useful to set out in full:

1. In January 2012, Benedict Industries Pty Ltd lodged a development application with Liverpool City Council (Council) for a marina on Lot 7 in DP 1065574 (Tanlane land) (the Marina DA). The Marina DA was subsequently referred to the Sydney West Joint Regional Planning Panel (JRPP) for determination in accordance with Schedule 4A of the Environmental Planning and Assessment Act 1979 (EP&A Act).

2.   On 22 August 2014, the JRPP approved the Marina DA (Marina Approval).

3.   On 6 January 2015, EMM on behalf of Tanlane prepared a planning proposal entitled “Planning proposal LEP amendment at 146 Newbridge Road” (Planning Proposal prepared 6 Jan 2015).

4.   On 12 January 2015, the Planning Proposal prepared 6 Jan 2015 was lodged by or on behalf of Tanlane with the Council.

5.   On 18 March 2015, Preston CJ declared the Marina Approval invalid (Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40).

6.   In July 2015, a report entitled “Preliminary Investigation of Contamination” (PI) was prepared by EMM.

7.   On 17 August 2015, Benedict Industries Pty Ltd lodged a further development application with the Council for a marina on the Tanlane Land, being DA-781/2015.

8.   On 11 March 2016, a report entitled “Supplementary Preliminary Investigation Proposed Georges Cove Marina” (SPI) was prepared by EMM.

9.   On 12 July 2016, a modified Planning Proposal was prepared (Planning Proposal prepared 12 July 2016).

[This Planning Proposal was comprised of a Modification to Planning Proposal prepared 12 July 2016, which had annexed to it a Planning Proposal prepared 20 June 2016 (which was an amended version of the Planning Proposal prepared 6 Jan 2015).]

10.   On 13 July 2016, the Planning Proposal prepared 12 July 2016 was submitted to the Council by or on behalf of Tanlane.

11.   On 31 August 2016, the Council made resolutions supporting the Planning Proposal in principle, with modifications, and delegated to the Acting CEO the power to forward the updated proposal to the Department of Planning and Environment (Department) seeking gateway determination (the Resolutions).

[The parties agree that the version of the Planning Proposal before the meeting of councillors on 31 August 2016 is the Planning Proposal prepared 12 July 2016.]

12.   On 29 September 2016, the JRPP approved the marina DA (DA-781/2015) (Marina Approval).

13.   On 7 October 2016, a further modified Planning Proposal was prepared (Planning Proposal prepared 7 Oct 2016).

14.   On 4 November 2016, the Council forwarded the Planning Proposal prepared 7 Oct 2016 to the Department of Environment and Planning (Department).

[The parties agree that the copy of the Planning Proposal prepared 7 Oct 2016 at is identical to the Planning Proposal prepared 7 Oct 2016.]

15.   On 15 November 2016, the Department sent an initial assessment of the Planning Proposal to the Council.

16.   On 29 November 2016, Moorebank commenced objector proceedings against the Marina Approval (proceedings no. 16/357347).

17.   On 13 December 2016, a further modified Planning Proposal was prepared (Planning Proposal prepared 13 Dec 2016).

18.   Between 17 and 24 January 2017, the Council attempted to send a copy of the Planning Proposal prepared 13 Dec 2016 to the Department.

19.   On 14 February 2017, a Planning Team Report was prepared in respect of the Planning Proposal prepared 13 Dec 2016.

20.   On 9 March 2017, Stephen Murray, the delegate of the Greater Sydney Commission (GSC) determined that the Planning Proposal prepared 13 Dec 2016 should proceed, subject to the conditions contained in the determination (Gateway Determination).

21.   The documents that were before the Delegate when he made the Gateway Determination were the documents at tabs 20(b)-(h) of the Evidence Book.

22.   On 22 March 2017, a further modified Planning Proposal was prepared (Planning Proposal prepared 22 March 2017).

23.   On 29 March 2017, the Council submitted the Planning Proposal prepared 22 March 2017 to the Department.

24.   On 30 March 2017, a further modified Planning Proposal was prepared (Planning Proposal prepared 30 March 2017).

Therefore, in summary, 6 different versions of the Planning Proposal have been prepared, and appear at the following places in the Court Book:

(1)   Planning Proposal prepared 6 Jan 2015.

(2)   Planning Proposal prepared 12 July 2016 (which had annexed to it a copy of a Planning Proposal prepared 20 June 2016).

(3)   Planning Proposals prepared 7 Oct 2016.

(4)   Planning Proposal prepared 13 Dec 2016.

(5)   Planning Proposal prepared 22 March 2017.

(6)   Planning Proposal prepared 30 March 2017.

19. There is a history of litigation between these neighbouring parties regarding development on their respective lands. In Moorebank cl 7 SEPP 55 challenge Moorebank successfully challenged in judicial review proceedings the failure of the Sydney West Joint Regional Planning Panel (JRPP) to comply with cl 7 of SEPP 55 in relation to the first development application for the proposed marina (SOAF at [5]). The approval of that development application was declared invalid. Following the preparation of a preliminary investigation (PI), supplementary preliminary investigation (SPI) and environmental impact statement (EIS) Tanlane’s second development application for a marina (the Marina DA) was approved by the JRPP on 29 September 2016 (SOAF at [12]). That approval is the subject of a Class 1 objector appeal by Moorebank which is currently pending before the Court. Construction is yet to commence on any part of the proposed marina site.

20. On 8 May 2017 this Court conditionally approved Moorebank’s development application for the construction and operation of a materials recycling facility on its land, Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 2) [2017] NSWLEC 53. That approval is currently the subject of an appeal to the Court of Appeal by the Council, Tanlane and a related company Benedict Industries Pty Ltd.

Evidence Book

21. The Evidence Book consisting of six volumes formed the majority of evidence in these proceedings. The first four volumes were tendered by Moorebank and became Exhibit B. The fifth and sixth volumes were tendered by Tanlane and became Exhibit 1. I will only have regard in this judgment to those documents which the parties directed me to during the hearing. A substantial amount of material tendered was not referred to.

Planning Proposal

22. On 12 January 2015 Tanlane first lodged the Planning Proposal prepared by EMM Consulting Pty Ltd (EMM) with the Council. The Planning Proposal as subsequently modified addressed two aspects of anticipated development on Tanlane’s land through proposed amendments of the LLEP. The first amendment enables residential development as an additional permitted use within approved buildings on the marina site which is zoned RE2. Part 7 Div 2 and Sch 1 of the LLEP would be amended in accordance with cl 2.5 (Sch 1 Amendment). The residential development proposed consists of 17 terrace dwellings in the private marina clubhouse and 108 apartments in the maritime building. The following text would be added to both Pt 7 Div 2 and Sch 1 of the LLEP as part of the Planning Proposal:

Use of certain land in Moorebank for residential development in Zone RE2.

(1)   This clause applies to land shown coloured green on the key sites map (Figure 2.1).

(2)   Residential development should comply with the existing controls for the RE2 zoning.

(3)   Development for the purposes of residential development is permitted with consent if:

(a)   the total gross floor area of all residential development on the site does not exceed 21,675 m2.

23. The second proposed amendment to the LLEP permits a boundary adjustment between the residential subdivision and marina sites by rezoning 0.41 ha of Tanlane’s land from RE2 Private Recreation to R3 Medium Density Residential (Rezoning Amendment).

24. Exhibit B contained six different versions of the Planning Proposal all of which were prepared by EMM for Tanlane. The original version of the Planning Proposal (v 1) was dated 6 January 2015. It proposed only the Sch 1 Amendment to the LLEP. Relevantly, the site’s existing land use was recorded as including extraction of sand by dredging and dry extraction as well as resource recovery activities. These activities have been undertaken by Tanlane since 1992 pursuant to a development consent. Rehabilitation and landscaping of large areas of the site are envisaged as part of the approval for the marina development. Environmental effects as a result of the Planning Proposal were considered to be “largely the same as the effects of the marina development” which had been assessed and approved. Concerning consistency with SEPP 55 the Planning Proposal (v 1) stated:

Conditions attached to the consent for the approved marina require remediation of land where needed. Thus [sic], plus the fact that there will be no habitable development on ground floor level means that the proposal is consistent with this SEPP. Full details will be provided in the SEE accompanying a later development application for residential purposes.

25. Following consultation with the Council a modified Planning Proposal (v 2) dated 12 July 2016 was prepared. The Rezoning Amendment was included as well as a modified Sch 1 Amendment. Addressing SEPP 55 the Planning Proposal was amended to read as follows:

It is expected that as a condition of consent, the proponent will be required to remediate the land where needed. This, plus the fact that there will be no habitable development on ground floor level means that the proposal is consistent with this SEPP. Full details will be provided in the SEE accompanying a later development application for residential purposes.

The Planning Proposal (v 2) was before the Council when it made the Council Resolutions of 31 August 2016. In addition the Council had before it a report by its executive planner which recommended that the Council support the Planning Proposal in principle (Planning and Growth Report).

26. A second modified Planning Proposal (v 3) dated 7 October 2016 was forwarded to the Department of Planning and Environment (the Department) on 4 November 2016 seeking a gateway determination in accordance with s 56 of the EPA Act. The Department indicated in emails to the Council dated 15 November 2016 that the Planning Proposal would not proceed until several issues were addressed. One of these was that the Planning Proposal did not contain a “contamination assessment or remediation plan that shows residential development can occur on the site as opposed to the proposed [m]arina”.

27. A third modified Planning Proposal (v 4) dated 13 December 2016 included a significant expansion of the section addressing SEPP 55. The section refers to conclusions reached following a PI and SPI which were undertaken to assess the contamination potential of the marina site. The Planning Proposal (v 4) is described in more detail at par 42 below.

28. The Planning Proposal (v 4) was before the Delegate when the Gateway Determination was made on 9 March 2017. The other documents before the Delegate when he made the Gateway Determination were:

1. a briefing note about the Planning Proposal prepared by the Department;

2. a report of the Department’s planning team dated 14 February 2017 (Planning Team Report); and

3. various maps showing the subject site and illustrating the proposed rezoning amendment to the LLEP.

29. The briefing note referred to the PI, SPI and a remediation action plan (RAP) (although it did not specify which RAP, see par 31 below) and their conclusions, and recommended that the Planning Proposal proceed. The Planning Team Report recommended the Planning Proposal proceed subject to specified conditions. It summarised the conclusions of the SPI noting that contamination issues would not preclude the proposed future land use as a marina and high density residential development. The report stated that the Planning Proposal is consistent with applicable SEPPs.

30. After the Gateway Determination the Council was required to update the Planning Proposal prior to placing it on public exhibition. A fourth and fifth modified Planning Proposal (v 5, v 6) dated 22 and 30 March 2017 respectively were produced. These versions of the Planning Proposal are not relevant to the present proceedings.

31. Exhibit 1 also contained an EIS for the proposed marina dated July 2015, the PI which was annexed to the EIS, a copy of the SPI attached to the Planning Proposal (v 4), a RAP prepared by EMM dated 11 March 2016 for the proposed marina (Marina RAP) (I note that the Court was not taken to this plan) and a RAP prepared by Douglas Partners dated May 2016 for the proposed residential development on the northern portion of Tanlane’s land (Residential RAP). These documents were (presumably) prepared to address the requirements of cl 7 of SEPP 55 following the decision in Moorebank cl 7 SEPP 55 challenge. Relevant extracts of the EIS, PI and SPI are set out below.

32. Exhibit 1 also contained the NSW Environment Protection Authority’s (EPA) general terms of approval (General Terms) issued on 15 July 2016 in respect of the Marina DA. The General Terms authorise the carrying out of two scheduled activities: contaminated land and water treatment, and marinas and boat repairs. The EPA had regard to, inter alia, the PI, SPI and Marina RAP in the preparation of its General Terms. It imposed specific conditions concerning remediation of the site and sampling of the lake water adjacent to the proposed marina.

33. The draft conditions of consent relating to the Marina DA prepared by the Council on 26 September 2016 referred to the PI, SPI, Marina RAP and General Terms. The draft conditions addressed contamination including the requirement for a site contamination assessment for any fill introduced to the site. Validation and site audit reports would also be required following the completion of remedial works in accordance with the Marina RAP but prior to the commencement of construction works. The draft conditions required an independent environmental audit of the project to be commissioned within 12 months of the commencement of marina operations.

34. The Marina DA was approved by the JRPP on 29 September 2016. Exhibit 1 contained the record of the final briefing meeting, determination and statement of reasons of the JRPP relating to this development application.

35. Exhibit C was the LLEP and Standard Instrument.

36. Tanlane tendered one additional document, an email from a Council planner to EMM who prepared the Marina DA on behalf of Tanlane dated 28 May 2015, which became Exhibit 2. The email stated:

As discussed, my recommendation to Council will be to support the proposal, subject to flood and traffic studies being confirmed from the relevant council officers, and seek Gateway with the conditions that SEPP 55 Stage 1 and Stage 2 reports be provided before the planning proposal is publically exhibited.

Marina environmental impact statement

37. The EIS dated 30 July 2015 prepared for the Marina DA referred to by the parties stated:

EXECUTIVE SUMMARY

…

ES6.3 Contamination

The Preliminary Investigation of Contamination did not identify contamination issues that are considered to present an unacceptable risk to human and/or environmental health in the context of the proposed future land use. Recent sampling did not identify any exceedances of the NEPM (2013) human health based guideline values. A small number of exceedances of ecological assessment criteria were identified, that were either considered to be irrelevant, or present a low and acceptable risk, in the context of the proposed future land use.

The elevated ammonia concentrations in the groundwater and dredge pond are not considered to represent a risk to human health at the proposed marina development based on the lack of health-based assessment criteria for ammonia in water, and the limited exposure scenarios associated with the proposed future land use (ie ingestion of groundwater and pond water is unlikely in the context of a commercial marina). It is proposed to implement all of the recommendations of the Preliminary Investigation.

The marina site is suitable for the proposed future land use (the marina development) or will be suitable for this use with minor remediation that may be the outcome of the recommended investigations.

…

Preliminary investigation for Marina DA

38. The Court was taken to extensive extracts of the PI dated 28 July 2015 which was attached to the EIS. The PI was prepared to address cl 7 of SEPP 55. As my finding on the issues does not require consideration of this material I have not extracted it in full:

1 Introduction

…

Environmental monitoring has been undertaken on the marina site since 1993 and parameters related to potential contamination were considered in various technical assessments. Surface water samples were also collected in the northern portion of Lot 7 and from the Georges River. However, the previous frequency of sampling and the analytical suites do not allow a complete assessment of the current potential site contamination, consistent with the requirements of cl 7(2) of SEPP 55. In addition, the potential for contamination migration from the landfill to the immediate north, south and west, has not been considered in previous assessments.

This PI report has been prepared to satisfy the requirements of cl 7(2) of SEPP 55. The PI was undertaken in May to July 2015, and encompassed a desktop review of all available historic information, a site inspection and a field investigation program assessing soil, dredge pond sediment and dredge pond surface water. The investigation was undertaken in accordance with the Guidelines for Consultants Reporting on Contaminated Sites (OEH 2011).

…

3 Site history

...

3.3 Land use

The aerial photography and historical land ownership confirms that the land has been used for vegetable farming prior to 1965 and as a dairy from 1960 to 1972.

The previous EIS (Benedict Industries 2012) notes that prior to the grant of the 1993 consent and issue of the EPL, a small quantity of VENM [virgin excavated natural materials] was used to assist in restoring landforms on the marina site. The source and the exact location of the VENM fill is unknown. It is also understood that one to two metres of topsoil has also been stripped and sold from the marina site. This is consistent with observations made during the PI. However, fill material including anthropogenic debris was observed in several test pits, see Section 8.2.1).

There is also evidence to suggest that parts of the marina site were used as a landfill between 1972 and 1993, likely for construction and demolition waste. Approximately 1,000 tonnes of potential ASS [acid sulfate soils] (PASS) has been disposed of on marina site (pers comms Mark Morris, Production Manager, 29 May 2015).

Development consent was granted in 1993 to the current owners, Tanlane, to extract sand by dredging and fill the dredged void with “clean fill” back to natural ground level. This required the surrender of the 1972 land-filling consent that permitted the use of Lot 7 as a landfill. Since the sand dredging consent was issued in 1993, Tanlane have indicated that there has been no waste deposited onto the proposed marina site, and that in 1992 stockpiles of waste were removed.

Manufacturing and industrial processes have not occurred on the marina site. There is no evidence of underground storage tanks (USTs) in the marina site. Benedict personnel indicated that fuel and chemicals for use in the recycling operations are stored on the northern portion of Lot 7 (ie north of the marina site). It is our understanding that there is no chemical or fuel storage on marina site, which is consistent with the results of a search of the WorkCover NSW stored chemical information database. There is a bio-septic sewerage system on the northern portion of Lot 7, approximately 300 m to the north of the marina site.

3.3.1 Waste recycling facility to the north

The northern portion of Lot 7 has been used for the purpose of landfill. Land-filling is listed in Table 1 of the Contaminated Land Planning Guidelines (DUAP/EPA 1998) as an activity with the potential to cause contamination. As with the marina site, the historical land uses of the north adjacent land included vegetable farming prior to 1965 and use as a dairy from 1960 to 1972. The northern portion of Lot 7 was used as a landfill between 1972 and 1990. It is not known if land-filling occurred continuously.

The northern portion of Lot 7 (ie the north adjacent property) is currently used as a waste disposal and recycling centre. The waste described on the current EPL is waste tyres, wood waste, paper waste, plaster board, building and demolition waste, asphalt waste and general waste. There is some resource recovery and waste storage at the waste recycling facility.

Although the landfill is not on the marina site, it was considered as a potential off-site source of contamination that might adversely affect the site given the groundwater flow direction. This area was rezoned to permit residential development and landfill activities are no longer taking place.

…

3.7 NSW EPA POEO public register (environmental protection licences)

Benedict Industries holds a current EPL (license number 4612) for the marina site (and off-site areas), with resource recovery and waste storage as the scheduled activities (Appendix C) Additional activities relate to:

•   crushing, grinding or separating, and

•   extractive activities (land and water based)

…

4 Site condition and surrounding environment

4.1 Site condition and signs of contamination

A site inspection was performed on 29 May by Philip Towler and Lange Jorstad (Principal Environmental Scientists) and Sean Cassidy (Hydrogeologist) to assess the current site condition and to provide a visual assessment of potential contamination sources. The marina site is mostly occupied by stockpiles and the main dredge pond (see Photograph 4.1 and 4.2, and Figure 4.1). Un-paved access roads connect a workshop to the north with the marina site. There is dense vegetation on the eastern boundary of the marina site, along the Georges River western bank. Dense vegetation, predominantly grasses and medium sized trees, surrounds the marina site to the south and west.

Discarded pipes, assumed to be associated with dredging operations, are located along the western boundary of the dredge pond, with isolated occurrences of rubbish observed across the marina site. There were no hydrocarbon stains or odours noted during the site inspection.

A number of large stockpiles were observed on the marina site during the inspection. According to Benedict personnel, these consist of soil and overburden from on-site dredging activities. The stockpiles in the centre/north of Lot 7, to the north of marina site, typically cover an area of 10-20 m2 and are 2 to 3 m tall. The stockpiles onsite to the east of the dredge pond are smaller (ie >3 m2) (see Photograph 4.2).

There is a large mound (as opposed to a temporary stockpile) measuring approximately 140 m by 60 m, and 10 m high across the south-west corner of the marina site. The mound, originally constructed of fill, stripping and overburden, is now vegetated with grasses and small shrubs. Discussions with Mark Morris of Benedict Industries indicate that the mound has been in its present location for approximately five years and has remained largely unchanged, although it is intended to remove this mound in preparation for the proposed marina development (pers. comm. Mark Morris July 2015).

…

5 Basis for assessment

5.1 Potential contamination sources

Based on the review of available information and a site inspection, the following potential contaminating i sources were identified at the marina site and surrounds:

•   historic land use as dairy;

•   the introduction of fill, the source and quality is uncertain;

•   operation and storage of quarry machinery;

•   potential for acid generation and metal mobilisation from the disturbance of ASS;

•   potential for contaminants to absorb onto dredge pond sediments;

•   storm water discharges at the marina site; and

•   the operation of a landfills in the vicinity of the marina site, which has the potential to affect the site via migration and discharge of landfill leachate and gas.

Quarrying is listed as a potentially contaminating activity in the Planning Guidelines for Contaminated Land (DUAP/EPA 1998). In addition the land to the north, which is hydraulically upgradient, has been used as a landfill and presents a contamination risk. There are visible signs of rubbish on marina site as well as storm water discharge to the Georges River downgradient of the dredge pond.

No asbestos has been recorded on the marina site, nor are there any contamination issues noted on the planning certificate. The EPA contaminated lands registers and WorkCover database do not indicate any site contamination.

…

8 Results

8.1 Historic results

…

Environmental monitoring at the marina site commenced in 1993, in conjunction with the commencement of sand mining. Regular groundwater monitoring (as opposed to periodic monitoring) has been ongoing since 1998. An overview of the previous environmental site assessments is detailed in Table 8.1, with the locations shown in Figure 8.1.

Table 8.1 Previous contamination assessments

Reference	Sample type and number	Number of sampling events and period
Laboratory reports (Watertest)	5/6 x groundwater 1x dredge pond water 2x Georges River water 1 x stormwater	Frequent intervals between 1998-2014 (inclusive), with varying analytical suites
Worley Parsons (2010) & Marine Pollution Research (2010)	4 x groundwater 1 x dredge pond water 2 x Georges River water	Four events in 2006 (same results reported by different consultants)
Dames and Moore (1994b)	6 x groundwater	Five events in 1993
Unpublished (2015)	3 x soil 1 x dredge pond sediment	One event in 2015

…

10 Conclusions and recommendations

A marina is proposed to be developed on the marina site and this PI report forms part of the development application in accordance with cl 7(2) of SEPP 55 and has been prepared in accordance with the Guidelines for Consultants Reporting on Contaminated (OEH 2011).

The marina site is located adjacent to the Georges River, in Western Sydney, is dominated by a dredge 1 pond created by quarry activities that commenced in 1993. Prior to quarrying activities, the marina site was used for vegetable farming and as a dairy. Some disposal of waste (largely dredge tailings, bricks/masonry placed on access roads and some waste types that cannot be verified) occurred within the marina site. Land-filling previously occurred in the vicinity of the marina site on adjoining areas of land.

Regular (at least quarterly) environmental monitoring has been undertaken at the marina site since 1993. However, the previous frequency of sampling and the analytical suites resulted in data gaps with regard to assessing the current contamination status of the marina site, in a manner consistent with the requirements of cl 7(2) of SEPP 55. Further, the potential for contamination migration from the landfill to the immediate north, south and west, has not been considered in previous assessments.

A PI, comprising a desktop review and strategic sampling program, was undertaken in May to July 2015 to address data gaps and determine the overall site condition to provide an assessment of site contamination. A detailed appraisal of the marina sites current and historic sampling results have been the basis for this assessment into potential site contamination.

10.1 Contamination status

…

However the PI results indicated that contaminants were limited in number and extent at the marina site. Recent sampling did not identify any exceedances of the NEPM human health guideline values. A small number of exceedances of ecological assessment criteria were identified, that were either considered to be irrelevant, or present a low and acceptable risk, in the context of the proposed future land use.

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Supplementary preliminary investigation for Marina DA

39. Extracts of the SPI dated 11 March 2016 are as follows:

1 Introduction

...

The PI was submitted to Liverpool City Council (the Council) for review, with a follow up meeting held with the Council and the Environment Protection Authority (EPA) on 30 October 2015. At the meeting, it was agreed that further investigation should be undertaken to evaluate the nature and potential risk of ammonia in the dredge pond sediment and water. In addition, a higher sampling density for all mediums (soil, groundwater, dredge pond water and dredge pond sediment) was requested to definitively determine the sites suitability for its proposed use.

This supplementary preliminary investigation (SPI) reports the results of additional sampling to provide improved spatial and statistical confidence in the levels and distribution of potential contaminants on the site. The PI and SPI reports have been prepared to satisfy the requirements of cl 7(2) of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55). This SPI should be read in conjunction with the PI.

…

1.1 Overview of the Preliminary Investigation

Environmental monitoring has been undertaken on the marina site since 1993 and parameters related to potential contamination were considered in various technical assessments. However, the previous (ie prior to the PI) frequency of sampling and the analytical suites did not allow a complete assessment of the current potential site contamination, consistent with the requirements of cl 7(2) of SEPP 55.

The PI (EMM 2015a) was undertaken in May to July 2015, and encompassed a desktop review of all available historic sampling information, a site inspection and a field investigation program assessing soil, dredge pond sediment and dredge pond water. The investigation was undertaken in accordance with the Guidelines for Consultants Reporting on Contaminated Sites (OEH 2011).

The PI results did not identify any exceedances of the National Environment Protection (Assessment of Contamination) Measures (ASC NEPM) human health guideline values (NEPC 2013). A small number of exceedances of ecological assessment criteria were identified, that were either considered to be irrelevant, or present at a low and acceptable risk in the context of the proposed future land use.

Accordingly, the PI did not identify contamination issues that would preclude the proposed future land use as a proposed marina development as well as for high-density residential dwellings with minimal opportunities for soil access. However, the source of the ammonia enriched groundwater and dredge pond water was uncertain. Ammonia enriched groundwater was not considered to represent a risk to human health and the potential, long-term ecological risk was not considered to be increased by the proposed development.

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2.5 Assessment criteria

2.5.1 Soil

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i Health based assessment criteria

In consideration of the proposed future land uses for the site, which include residential, commercial and open space, the following health-based soil assessment criteria were adopted for the assessment of contamination within the site:

•   The ASC NEMP risk-based Health Investigation Levels (HIL) were adopted for selected organic and inorganic chemicals in Table 1A(1) of Schedule B(l) – “health investigation levels for soil contaminants”. For this investigation, a high-density residential exposure scenario (HIL B: residential with minimal opportunities for soil access) was conservatively adopted.

•   The ASC NEPM Health Screening Levels (HSL) in Table 1A(3) of Schedule B(l) – “soil HSLs for vapour intrusion” were adopted. For this investigation, the HSL A&B “low-high residential land use” criteria for assessing human health risk via the inhalation pathway were conservatively adopted. Given the sandy nature of the fill and natural soil at the site, HSLs for sandy soil at a depth of 0 m to <1 m were adopted. In addition, the non-volatile TRH fractions (>C16-C40) were assessed via the direct contact assessment criteria presented in the CRC CARE Technical Report no.10 (Friebel and Nadebaum 2011).

ii Ecological assessment criteria

The ecological soil assessment criteria adopted for the assessment of site contamination included the following:

•   The ASC NEPM Ecological Investigation Levels (EIL) “urban residential and public open space” exposure criteria in Tables 1B(1) to 1B(5) of Schedule B(l) were adopted.

•   The ASC NEPM Ecological Screening Levels (ESL) in Table 1B(6) of Schedule B(l) were adopted, for fine soil in an "urban residential and public open space" exposure scenario.

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2.5.2 Dredge pond sediment

The Australian and New Zealand Guidelines for Fresh and Marine Water Quality (Water Quality Guidelines) (ANZECC and ARMCANZ 2000) include Interim Sediment Quality Guidelines (ISQG) (Table 3.5.1).

...

2.5.3 Dredge pond water and groundwater

The Water Quality Guidelines have been used to assess the dredge pond water and groundwater quality. The application of the guidelines considers the environment type, environmental values and existing condition, as well as the level of change that is considered acceptable. The environmental values of the dredge pond water and groundwater are considered to be aquatic ecosystem (freshwater and marine), with recreational use for dredge pond water only (once it becomes the marina basin).

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3 Quality control and quality assurance

...

3.3 Quality assurance and quality control data evaluation

...

EMM notes that QA/QC information for historical environmental monitoring at the site was not available. The March 2015 Land and Environment Court order (Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd) indicated that all information relevant to the assessment of potential contamination of the site should be considered in the PI. While QA/QC results for historic data are not available, historic data has been considered in the PI and SPI. However, the conclusions in the PI and SPI are largely based on the results from the PI and SPI sampling events. Accordingly, reference to historical monitoring data is considered suitable for qualitative analysis (eg relative trends and patterns in historical data), but has not been relied upon for current quantitative interpretation or as the basis of management decisions.

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5 Site characterisation

5.1 Soil

Fill material, including anthropogenic debris, is widespread across the site to an average depth of approximately 2.5 m BGL, and was greater than 4 m thick in one test pit (TP-10, on the eastern border.; between Georges River and the dredge pond).

The combined PI and SPI soil analytical results indicated seven exceedances of soil assessment criteria. Two exceedances were for the ASC NEPM ESL for benzo(a)pyrene (0.7 mg/kg) in soil samples containing fill. The maximum concentration was 1.5 mg/kg at TP-15 (3.1 m BGL, near the southern site boundary) < and the other exceedance was 0.8 mg/kg at TP-3 (0.5 m BGL, near the western site boundary). Both of these test pits included anthropogenic debris such as plastic (Table 4.1). The remaining five exceedances were for the ASC NEPM EIL for copper and zinc at TP-3, TP-5 and TP-12. Again, these test pits contained anthropogenic debris.

Tanlane’s submissions

54. The process for making LEPs under Pt 3 Div 4 of the EPA Act was substantially changed in 2009 pursuant to the Amendment Act 2008. A local council no longer makes or prepares an LEP. Rather, its function is limited to the preparation of a planning proposal (s 55(1)) which is forwarded to the Minister or GSC who makes a gateway determination (s 56(2)). The wording of cl 6 of SEPP 55 has not changed since these amendments to the EPA Act.

55. Clause 6 of SEPP 55 applies to the preparation of an EPI not a planning proposal. SEPP 55 does not define the term “environmental planning instrument”. The term is defined in s 4 of the EPA Act as an instrument made under Pt 3 and in force, including a SEPP or LEP. That definition does not include a planning proposal prepared under s 55(1). This construction is supported by s 145B(2)(a) where a planning proposal is expressly included as an action in the preparation or making of an EPI. There would be no need for this provision if they were synonymous. Further, changes to the statutory process for making an EPI in 2009 had the effect that cl 6, which refers to the preparation of an EPI, does not apply until an EPI is made under s 59. A planning authority whether the Council or the Delegate in this case can comply with cl 6 at any time during the decision-making process, including the drafting of the EPI pursuant to s 59(1) prior to making the EPI under s 59(2), an approach supported by Huntlee.

56. The only action taken by the Council in respect of the Planning Proposal was to pass the Council Resolutions and forward the Planning Proposal (v 3) to the Department. Neither of these steps can properly be characterised as the preparation of an EPI. Consideration of cl 6 of SEPP 55 is not a statutory requirement under s 55(2). Nothing in the text, context or purpose of the EPA Act indicates a construction of ss 55(1) and 56(1) as imposing a mandatory requirement on a relevant planning authority to comply with cl 6 in preparing a planning proposal and forwarding that proposal to the GSC or Minister. To do so would be contrary to the text, structure and purpose of the relevant statutory provisions given the iterative, staggered decision-making process of Pt 3 Div 4. The preparation of a planning proposal does not impose any requirement on a council to comply with cl 6.

57. Clause 6 also does not apply to the Gateway Determination under s 56. The relevant decision-maker must comply with cl 6 during the process prescribed by Pt 3 Div 4 prior to an LEP being made under s 59(2). However, it is not mandatory for the decision-maker to do so at the gateway determination stage of the process. The decision made under s 56(2) is whether a planning proposal should proceed for further consideration. Other steps are required before the decision-maker decides whether an LEP should be made. It is clear from the language of s 56(2) that further information will be sought and provided in respect of the matter the subject of the planning proposal after a gateway determination is made. This could include information relevant to land contamination such as the provision of a preliminary investigation under cl 6(2).

SEPP 55 requirements separate to Pt 3 Div 4 planning proposal and gateway determination processes

58. The principles of statutory construction require that the ordinary meaning of words viewed in their statutory context be considered, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]. In this case the whole of Pt 3 Div 4 must be considered to provide that necessary context.

59. The process for making LEPs under Pt 3 Div 4 since 2009 is substantially different to the earlier regime. How SEPP 55 made in 1998 interacts, if at all, with the current Div 4 at the planning proposal and gateway determination stage of the process of preparing an amended LEP arises. Moorebank submitted that SEPP 55 continues to apply in relation to Div 4 in the manner it contends for, resulting in a failure to comply with SEPP 55 by the Council and the GSC by its delegate. Tanlane argued there was no such failure. No case considering this precise issue has been referred to by the parties.

60. The wording of the former Pt 3 Div 4 and cl 6(1) of SEPP 55 (preparing an environmental planning instrument) intersected explicitly. Under the former regime s 54(1) (Decision to prepare a draft local environment plan) provided that a council may decide to prepare a draft LEP for part of or the whole of its area of responsibility. Under s 55 the Minister could direct a council to prepare an LEP. Under s 57 (Preparation of environmental study) where a council decided to prepare an LEP it had to prepare an environmental study. Other steps required included the public exhibition of a draft LEP (s 66), the consideration of submissions from the public by the council (s 68) and the furnishing of a report of the Director-General of the Department of Urban Affairs and Planning to the Minister (s 69). The Minister made an LEP under s 70.

61. The wording of the current Pt 3 Div 4 and cl 6 of SEPP 55 do not intersect. There is no explicit reference in Div 4 to the key wording that appears in cl 6(1). “Preparing an environmental planning instrument” or similar wording no longer appears in Div 4. The current Div 4 provides for a relevant planning authority (defined in s 54(1)(a) as the Council in this case) to prepare a planning proposal, the purpose and contents of which are identified in s 55(2). The proposal is sent to the Minister or GSC who determines whether the matter should proceed by making a gateway determination under s 56. As Tanlane submitted a gateway determination is a first step in the process of making an LEP by the GSC. It is not the same as “preparing an environmental planning instrument” within the meaning of cl 6. This construction and the extent of the major change in the LEP-making process is emphasised in the Second Reading Speech for the Amendment Act 2008 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 12 August 2008 at 7696) which stated:

The key change is the introduction of the new Gateway process. As the name suggests, the Gateway will ensure there is sufficient justification early in the process to proceed with the planning proposal; this stops wasting time with planning proposals that are not credible. If it is agreed in principle, the planning proposal then can proceed to a full assessment. The Gateway determination settles what assessment is required to develop the details of the plan, including infrastructure needs, what community or agency consultation is required, and whether a public hearing is required. These provisions provide for flexibility and a strong emphasis on effective community consultation.

62. If the matter the subject of a planning proposal proceeds, community consultation occurs under s 57. Moorebank’s reliance on the statutory scheme for community consultation in s 57 as supporting its construction is not grounded in any provision of Pt 3 Div 4 or in cl 6. The relevant planning authority under Pt 3 Div 4 can modify a planning proposal at any time and return it to the Minister or GSC (s 58). An LEP is made under s 59 by the Minister or GSC following the Secretary of the Department making arrangements for the drafting of the LEP (s 59(1)).

63. The term “proposed instrument” appears in ss 54, 55, 56 and 57. For example, under s 57 before consideration is given to the making of an LEP community consultation must occur as required under s 56 for a proposed instrument. The reference to proposed instrument highlights the clear difference between the former Pt 3 Div 4 and the current regime. Previously a draft LEP was the subject of consideration during the preparation phase under Div 4. The preparation of an LEP included the drafting of a draft instrument. An explicit reference to drafting the instrument now occurs in s 59(1), a later step after a planning proposal has been prepared, a gateway determination made and any steps required by it undertaken as provided in s 57 (community consultation) or variation under s 58.

64. I agree with Tanlane that there is no implied intersection between the language in Pt 3 Div 4 and cl 6(1) or (2). No explicit or implied obligation to consider SEPP 55 arises from Pt 3 Div 4. It is necessary to look to additional statutory provisions as referred to by Moorebank.

65. The key issue of construction in determining the application of SEPP 55 in the manner contended for by Moorebank is the definition of “planning authority” in cl 6(5) which states the term has the same meaning as in s 145A of the EPA Act set out above. Section 145A is in Pt 7A (Liability in respect of contaminated land). The chapeau states that in this Part the planning authority in relation to a function specified in s 145B means the public authority responsible for exercising the function. Section 145B(1) provides that a planning authority does not incur any liability in respect of anything done or omitted to be done in good faith by the authority in duly exercising any planning function. Section 145B(2)(a) refers to “the preparation or making of an environmental planning instrument, including a planning proposal for the proposed environmental planning instrument”, an amendment made in 2009. There is no explicit indication in Pt 3 Div 4 or in Pt 7A that this provision in a separate part of the EPA Act is intended to inform the construction of Pt 3 Div 4 by referring to “planning proposal”. Nor is it obvious that it can inform the construction of Pt 4 Div 3 implicitly. Part 7A is directed to limitation of liability for contamination. The wording in s 145B(2)(a) recognises the preparation and making of an EPI as including the making of a planning proposal. That inclusion provides statutory recognition that contamination may be considered in a planning proposal and limits liability if it does. Part 7A does not expressly refer to SEPP 55 and is not drafted to reflect the obligations in cl 6(1) or (2). This is not surprising as it is addressing a different matter.

66. The explanatory note in Sch 1 cl 1.6 of the Statute Law (Miscellaneous Provisions) Act (No 2) 2009, set out in par 10 above, which amended s 145B identifies the change of wording to include the reference to a planning proposal but does not assist further in supporting Moorebank’s construction.

67. Nor does the change in the functions of a planning authority in s 145B(2) as applied in SEPP 55 have any implication in any relevant way to the operation of Pt 3 Div 4. Clause 6 continues to refer to the preparation of an EPI which for all the reasons already identified does not engage with Pt 3 Div 4 in the manner contended for by Moorebank.

68. Both the EPA Act and SEPP 55 refer to “environmental planning instrument” which is defined in s 4 of the EPA Act as “an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force”. As Tanlane submitted a planning proposal is not included in the definition. The reference in s 145B(2)(a) highlights that a planning proposal is not synonymous with preparing an EPI. This reasoning applies to the preparation of a planning proposal which was the responsibility of the Council. The same construction also effects a similar result for the Gateway Determination made by the Delegate under s 56. A gateway determination is not the preparation of an EPI.

69. It must follow from my reasoning above which largely adopts Tanlane’s submissions that any obligation to consider contamination by a planning authority arises by virtue of SEPP 55 separately to Pt 3 Div 4. Moorebank relied on all SEPPs being confirmed as continuing in 2009 as a recognition of the substantial amendments made to Pt 3 Div 4 in 2009. That all the SEPPs were confirmed relates to their continued application but no other statutory inference arises from that circumstance alone.

70. In the absence of any express or implied link with ss 55 and 56 there is no overlap between Pt 3 Div 4 of the EPA Act and SEPP 55. SEPP 55 continues as a standalone obligation which a planning authority must meet before making an LEP under s 59.

71. Tanlane’s approach to construction is supported by the Court of Appeal in Huntlee which considered the application of SEPP 55 in the context of an amendment to the State Environmental Planning Policy (Major Development) 2005 (Major Development SEPP). At issue inter alia was whether the Minister administering the EPA Act was a planning authority for the purposes of SEPP 55. The primary judge had so found. The Court of Appeal held that the Minister’s functions did not include “preparing” the relevant EPI, being the amendment of the Major Development SEPP. The definition of “planning authority” in cl 6(5) and necessary references to ss 145A and 145B were referred to in reaching that conclusion, at [53]-[55]. Importantly for this matter, Sackville AJA (Beazley JA and Tobias AJA agreeing) held at [100] the operation of cl 6 was not confined to or even concerned with the procedures involved in making a SEPP under s 37(1) of the EPA Act. Clause 6 could apply before the formal procedures for making a SEPP arose. An aggrieved person might well be able to obtain relief pursuant to s 123 read with s 122(b)(ii) of the EPA Act.

72. Part 3 Divs 2 and 4 are directed to different outcomes, namely the making of SEPPs and the making of LEPs. Huntlee identifies in the context of Div 3 the need to focus on the specific statutory terms allocating responsibility for the preparation of an EPI and, separately, the making of an EPI. Further, Sackville AJA held the obligation of a planning authority to comply with SEPP 55 can occur any time up to the making of a SEPP under Div 3. The equivalent step of making an LEP occurs under s 59 in Div 4.

73. I have accepted Tanlane’s construction of the lack of interaction between Pt 3 Div 4 and SEPP 55 leading up to the making of an LEP. I have not specifically addressed the Council Resolutions the subject of Moorebank’s challenge in construing Pt 3 Div 4 and do not need to at this point of the judgment. I will address the Council Resolutions in relation to another preliminary issue raised by Tanlane of whether these are amenable to judicial review below.

74. I observe that it appears from the evidence summarised in par 26 above that the Department considered that the Planning Proposal (v 3) sent by the Council must address SEPP 55 and required amendment on that issue. This resulted in the preparation of the Planning Proposal (v 4), which is briefly summarised at par 43 above in relation to contamination issues. This was placed before the Delegate. As well as the Planning Proposal (v 4), the Delegate when making the Gateway Determination had material addressing SEPP 55 before him such as the SPI for the Marina DA, briefing note from the Department and the Planning Team Report, see par 28 above. The SPI was prepared following the PI both being for the purposes of satisfying cl 7 of SEPP 55. In practice a council preparing a planning proposal and a decision-maker at the gateway determination stage can address contamination issues including by reference to SEPP 55. As the Council and GSC have filed submitting appearances I do not have the benefit of either of their views as to how they consider Pt 4 Div 3 and SEPP 55 operate in the context of the preparation of this Planning Proposal and Gateway Determination process.

Are the Council Resolutions and Gateway Determination amenable to judicial review?

75. Tanlane raised as preliminary issues that the Council Resolutions and Gateway Determination do not have a sufficient quality of finality and operative effect that a court will review the decisions for error. Neither decision affects legal rights per Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 at 159, Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 336-337. The Council Resolutions and Gateway Determination are not sufficiently connected to the ultimate decision of the GSC to make an LEP such that either could be said to be determinative of the later decision. They are preparatory and almost devoid of any content.

76. Moorebank submitted that the Council Resolutions and Gateway Determination are justiciable because if there has been a breach of SEPP 55 then relief may be granted under s 124 of the EPA Act. A breach of the Act includes a failure to comply with an EPI per s 122(a)(i) and (b)(ii). The relief sought is similar to that considered in Moorebank cl 7 SEPP 55 challenge. The decisions have operative effect even if they are preparatory in nature. This issue was determined by Molesworth AJ in the Interlocutory Judgment where his Honour concluded that they have operative effect. This is binding in respect of all matters of fact and law involved in that determination per Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [57].

77. Moorebank relied on the statutory regime that once a gateway determination is made a planning proposal becomes a mandatory relevant consideration under s 79C(1)(a)(ii) of the EPA Act after being the subject of public consultation pursuant to s 57, see Teys Australia Southern Pty Ltd v Burns (2015) 206 LGERA 186; [2015] NSWLEC 1 at [37]-[39]. The orders sought here seek to prevent this legal consequence from arising. Other decisions which have invalidated an anterior step in the process of making an LEP include Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 and Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137.

Conclusion on availability of judicial review of impugned decisions

78. Because of my finding that SEPP 55 does not operate in the manner contended for by Moorebank its arguments based on consideration of SEPP 55 being mandatory at the stages of Pt 3 Div 4 under challenge must fail. Whether the impugned decisions are justiciable is another issue which it is not strictly necessary to resolve given my earlier finding but I will make some observations concerning the construction of Pt 3 Div 4 relevant to that issue.

79. Moorebank relied on the Interlocutory Judgment at [34]-[36] rejecting an argument that Moorebank’s interests were not affected until an amended LLEP was made. Moorebank was found to have an interest in the necessary anterior steps in an iterative, staggered decision-making process that may culminate in a rezoning decision. Molesworth AJ was not addressing the issue of whether particular decisions were justiciable and did not have to consider the relationship between SEPP 55 and Pt 3 Div 4. His Honour’s findings are not determinative of the issues I am considering as he was not called upon to address them.

80. The Council Resolutions of 31 August 2016 are not grounded in any statutory provision, in contrast to the Gateway Determination under s 56 where it is expressly referred to. Section 55 requires the preparation by the relevant planning authority of a planning proposal being a document that complies with subss (1) and (2). There are no mandatory relevant considerations in s 55 specified in relation to the preparation of a planning proposal. If a judicial review challenge can be mounted in reliance on s 55 the issue may be whether a planning proposal prepared by a council complies with s 55. The evidence confirms that the Planning Proposal (v 4) is the version sent to the Delegate via the Department giving rise to the inference that is the version which purports to satisfy s 55. Moorebank’s case does not challenge that document and so is not framed in terms which reflect the statute. That a council will as an administrative matter at councillor level make a decision to proceed with such a process does not necessarily give rise to a justiciable decision, as Tanlane submitted.

78. A Gateway Determination by the Minister or GSC is made under s 56. That section requires the Minister or GSC to determine various matters most relevantly under subs (a) whether the matter (the subject of a planning proposal) should proceed with or without variation. At a theoretical level that decision may be justiciable applying Moorebank’s submission that decisions related to preparatory steps for the making of an LEP are not necessarily immune from judicial review because they are preliminary for the reasons given by Moorebank supported by the authorities cited in par 76 above. As I have held that mandatory consideration of cl 6 is not required, whether the Gateway Determination is amenable to judicial review or not does not need to be finally determined.

Application of cl 6(4) of SEPP 55: is Sch 1 Amendment a rezoning?

82. While not now strictly arising given my finding on the threshold question, I will determine if cl 6 applies to the Sch 1 Amendment. At issue is the application of Pt 2 of the LLEP extracted in par 15 above.

83. Moorebank submitted that the Sch 1 Amendment in the relevant versions of the Planning Proposal has the same effect as, and should be treated as, a zoning provision. If not so treated the critical requirements of cl 6 could be easily sidestepped. According to Moorebank the Standard Instrument supports this approach. Clause 2.5 prescribed by the Standard Instrument permits the creation of sub-zones for particular land. Direction 2 under cl 2.5 confines Sch 1 to types of development that can be included in a zone, as prescribed by Directions 2 and 5 under the Land Use Table in the Standard Instrument. Additional permitted uses in Sch 1 are controlled by Direction 2 under the Land Use Table. The terms make clear that they are another form of zoning provision for particular land in a zone. The effect of cl 2.5 is to “include” land in a “particular zone”. In the present case the Planning Proposal related to a class of land identified in cl 6(4)(b), that is land on which development for the purposes of “mining and extractive industries” and “landfill sites”, identified in Table 1 to the Contaminated Land Planning Guidelines, is being or is known to have been carried out. The Sch 1 Amendment proposed is similar to a sub-script on a zoning map as recognised in Blue Mountains City Council v Laurence Browning Pty Ltd (2006) 67 NSWLR 672; [2006] NSWCA 331 at [87]-[93]. Clause 2.5 is contained within Pt 2 of the LLEP which deals with zoning and operates in every way as a zoning provision. That it is an innominate zone is irrelevant, as it is in substance a zoning provision.

84. Tanlane submitted that SEPP 55 only applies where the planning authority is preparing an EPI that includes land in a particular zone which permits a change in use of the land, as in the Rezoning Amendment. The Sch 1 Amendment slated in the Planning Proposal does not enliven cl 6(1) or (4) as it is solely a change of use provision which is not captured by the wording of these clauses in SEPP 55.

85. I find that, as Tanlane submitted, the change of use permitted by the Sch 1 Amendment is not expressed to be a change in zoning of land. Clause 2.5 of the LLEP (Additional permitted uses for particular land) does not refer to zoning so that the provision is not explicitly described as a zoning provision. Moorebank argued that it operates like a zoning provision for the reasons outlined above, including that Sch 1 is referred to in the zoning section of the LLEP. Clause 2.5 is located in Pt 2 (Permitted or prohibited development) of the LLEP. Other sections in this Part are also set out in the extract in par 15 above. While some clauses are concerned with zoning several are not. Clause 2.6 concerns subdivision, cl 2.7 specifies that demolition requires development consent and cl 2.8 concerns temporary use of land. Clearly not all are concerned with zoning.

86. The plain meaning of the words “a change of use of land”, which is how the Sch 1 Amendment is described and operates, does not call for any further interpretation. There is no principle of statutory construction which requires further consideration of these words as a zoning provision given their plain meaning. The analogy with Laurence Browning sought to be drawn by Moorebank is not relevant as that was considering a different LEP and legal issue (whether a provision was a development standard).

87. My conclusion means that cl 6 of SEPP 55 does not apply to the Sch 1 Amendment.

Conclusion on remaining SEPP 55 grounds of challenge

88. My conclusions on the overarching threshold question and the amenability to judicial review issue means that Moorebank’s SEPP 55 grounds cannot succeed or do not strictly arise. Moorebank’s Grounds 1 and 2 focussed on the Council Resolutions arguing that in passing these the Council failed to comply with cl 6(1) and (2). I have found the Council Resolutions do not identify a decision which is reviewable given the structure of s 55 of the EPA Act. Further, SEPP 55 does not apply as a mandatory consideration in the manner contended for by Moorebank. Moorebank’s equivalent grounds challenging the Gateway Determination on the basis of a failure to consider cl 6(1) and (2) were Grounds 4 and 5. These also do not strictly arise. A further challenge to the Gateway Determination by Moorebank was in Ground 3 alleging it was invalid because the Council had breached SEPP 55. That also does not arise.

89. Tanlane separately raised additional issues which I have addressed above. Its issue 3 raised the question of whether the Council Resolutions should be declared invalid and of no effect and there is no need to consider that.

90. As outlined in the evidence above material relevant to contamination prepared in the context of the Marina DA was referred to and/or attached to the Planning Proposal (v 4) and was before the Delegate. The Planning Proposal (v 4) considered contamination referring explicitly to SEPP 55. It referred to the PI and SPI undertaken to assess the contamination potential for the marina site. The report states that these investigations reached similar conclusions that contaminants were limited in number and extent as set out in pars 38 (section 10.1) and 39 (section 6.1) above. The SPI was attached to the Planning Proposal (v 4). It states that it has been prepared to fulfil the requirements of cl 7(2) of SEPP 55. As Tanlane submitted, SEPP 55 requirements arise independently of Pt 3 Div 4 up to the making of the LEP under s 59. Any failure to comply with SEPP 55 at this stage if it existed can be cured before the LEP is made under s 59.

Ground 6: whether the Delegate made the Gateway Determination under a misapprehension of material fact and/or law, and if so whether the Gateway Determination should be declared invalid.

91. Moorebank raised a further ground based on a separate issue to the application of SEPP 55.

Moorebank’s submissions

92. Moorebank submitted that the Gateway Determination is vitiated by two errors of fact and/or law. Both errors appear in the Planning Team Report prepared for the Delegate. The first error is that the Report mistakenly referred to the relevant development consent for the marina as being DA-846/2012 approved on 29 September 2014. That consent was declared invalid in Moorebank cl 7 SEPP 55 challenge and a subsequent consent for DA-781/2015 was granted by the JRPP on 29 September 2016. The second error is that the Report failed to mention that the later consent is (and was at the time of the Gateway Determination) the subject of an appeal in this Court and therefore had ceased to be effective pending the hearing and determination of the appeal as provided by s 83(2)(a) of the EPA Act.

93. These errors are significant in the context of the proposed amendments to the LLEP and invalidate the Gateway Determination. A valid and operative consent for the Marina DA is relevant to any decision to proceed with the Planning Proposal. The need for the additional permitted use for residential development on the subject land (Sch 1 Amendment) only arises where the marina development has been approved. It is reasonable based on the subject matter, scope and purpose of the relevant provisions of the EPA Act (for example, s 55(2)(c)) that the Delegate would consider the justification for the proposed amendment to the LLEP. The Gateway Determination is invalid in circumstances where the Delegate was under a serious misapprehension as to the current state of approvals for the Marina DA and failed to discharge properly his duty to take into account a relevant consideration, see Moorebank cl 7 SEPP 55 challenge at [155], [157] and Minister for Aboriginal Affairs vPeko-WallsendLtd (1986) 162 CLR 24; [1986] HCA 40 at 30-31, 45, 66.

Tanlane’s submissions

94. Tanlane submitted that no requirement to consider the justification for the proposed Sch 1 Amendment should be implied into the exercise of power under s 56(2). Moorebank has not identified any matters in the subject matter, scope and purpose of Pt 3 Div 4 that support the implication of a mandatory relevant consideration sought in the absence of express stipulation in the statute, Peko-Wallsend at 39-40. The Delegate was not required to consider whether there was a valid consent for the marina development in making the Gateway Determination. Consideration of the Marina DA was irrelevant in the statutory scheme. Moorebank cl 7 SEPP 55 challenge was considering a requirement in cl 7 for the consent authority to have regard to specified matters in subcl (1) and (2) and has no application here.

No misapprehension of material fact and/or law by Delegate

95. Section 56(2) requires that the Minister or GSC determine whether a planning proposal should proceed with or without variation, any community consultation required for the proposed instrument and the times within which the various stages of the procedure for the making of the proposed instrument are to be completed inter alia. Section 55(2) identifies the contents of a planning proposal. It must include a statement of objectives or intended outcomes of the proposed instrument, an explanation of the provisions that are to be included in the proposed instrument and the justification for the objectives, outcomes and provisions inter alia. Moorebank has not criticised the Planning Proposal in this ground but the Planning Team Report accompanying it on the basis that the Report misled the Delegate on a material matter.

96. Reliance was placed on Moorebank cl 7 SEPP 55 challenge at [155] where Preston CJ identified that advice which is materially misleading or inadequate may introduce legal error into an administrative decision. As Tanlane submitted that decision was considering the application of cl 7 of SEPP 55. Moorebank also relied on Peko-Wallsend at 31 where Gibbs CJ identified that a minister relying on a departmental summary that fails to bring to the minister’s attention a material fact which he is bound to consider, and is not insignificant, will result in a failure to take a material fact into account and failure to form the requisite satisfaction required by the statute under consideration. The precise statutory scheme must be considered in determining whether a material misapprehension of fact and/or law arises.

97. Section 56 does not specify any explicit mandatory relevant consideration in the context of the Gateway Determination. Section 56 does not require any level of satisfaction of a decision-maker in determining whether to make a gateway determination. The impugned statement in the Planning Team Report is literally correct in that the JRPP did approve a development application for the proposed marina on 29 September 2014. The failure or omission if there be any is that Moorebank cl 7 SEPP 55 challenge declared that development consent invalid and a second DA (the Marina DA) was approved by the JRPP on 29 September 2016. The Marina DA is now the subject of an appeal in the Court. Moorebank asserted that the two omissions are significant errors because whether the Marina DA is valid is relevant to the decision to proceed with the Planning Proposal. While a matter of fact providing context for the Planning Proposal that does not render the alleged omissions materially relevant in a legal sense resulting in invalidity of the Gateway Determination. The statutory context does not support such a finding.

98. This ground fails.

Conclusion

99. As Moorebank’s grounds have not been upheld its summons should be dismissed. The usual rule in Class 4 proceedings is that costs follow the event. I will order Moorebank to pay Tanlane’s costs unless a notice of motion seeking alternative orders is filed within 30 days. The GSC and Council have filed submitting appearances save as to costs. These parties will need to advise the Court whether they wish to make an application for costs.

Orders

100. The Court makes the following orders:

1. The Applicant’s summons is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceedings unless a notice of motion seeking alternative orders is filed within 30 days of this judgment.

3. The exhibits be returned.

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Decision last updated: 03 January 2018