Muscat Developments Pty Ltd trading as Muscat Developments v Wollondilly Shire Council

[2021] NSWLEC 1758

Land and Environment Court

New South Wales

Medium Neutral Citation:

Muscat Developments Pty Ltd trading as Muscat Developments v Wollondilly Shire Council [2021] NSWLEC 1758

Hearing dates:

14, 15 and 16 September 2021

Date of orders:

10 December 2021

Decision date:

10 December 2021

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court makes the following direction:

(1) The parties shall within 7 days file an agreed set of conditions in accordance with the reasons for judgment.

Catchwords:

DEVELOPMENT APPLICATION – change of use from poultry farm to two depots – use of fill unlawfully brought onto site – contamination – remediation and re-use of contaminated fill – removal of contaminated fill – relevance of Protection of the Environment Operations Act licensing provisions – impact on existing and desired character of the area – loss of land for agriculture – visual impact – protection of scenic and cultural landscapes – conditions

Legislation Cited:

Coal Mine Subsidence Compensation Act 2017, s 22

Contaminated Land Management Act 1997

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 39

Protection of the Environment Operations Act 1997, ss 48, 144AAB, Schedule 1

State Environmental Planning Policy 55 – Remediation of Land, cl 7

Sydney Regional Environmental Plan 20 – Hawkesbury-Nepean River (No 2—1997), cll 3, 4, 6

Wollondilly Local Environmental Plan 2011 (Amendment No 40)

Wollondilly Local Environmental Plan 2011, cll 1.8A, 2.3, 5.10, 7.5, 7.9, Dictionary, Land Use Table

Cases Cited:

BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (2019) 101 NSWLR 245; [2019] NSWCCA 174

Jeffrey v Canterbury Bankstown Council [2021] NSWLEC 73

Maule v Liporoni (2002) 122 LGERA 140; [2002] NSWLEC 25

Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142

McDougall v Warringah Shire Council (1993) 30 NSWLR 258

Motbey v Hollis and Eurobodalla Shire Council (2003) 124 LGERA 227; [2003] NSWLEC 40

Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd (2007) 161 LGERA 1, [2007] NSWLEC 59

Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289

Texts Cited:

Land and Environment Court of NSW, COVID-19 Pandemic Policy, (April 2021)

Wollondilly Shire Council, Draft Scenic and Cultural Landscape Study, (August 2020)

Greater Sydney Commissioner, Greater Sydney Region Plan - A Metropolis of Three Cities – connecting people, (March 2018)

Wollondilly Shire Council, Local Strategic Planning Statement, (March 2020)

Greater Sydney Commissioner, Our Greater Sydney 2056 Western City District Plan – connecting communities, (March 2018)

Wollondilly Development Control Plan 2016

Category:

Principal judgment

Parties:

Muscat Developments Pty Ltd trading as Muscat Developments (Applicant)
Wollondilly Shire Council (Respondent)

Representation:

Counsel:
R Lancaster SC with T Poisel (Applicant)
C Novak (Respondent)

Solicitors:
CAW Legal (Applicant)
Bradley Allen Love Lawyers (Respondent)

File Number(s):

2020/178157

Publication restriction:

Nil

Judgment

1. COMMISSIONER. This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by the Respondent (Council) on 3 July 2020 of DA 2019.688.1 (DA) for the change of use from poultry farm to two depots including construction of two sheds, an office building, associated hard stand areas and driveway with ancillary stormwater, landscaping, wastewater management and earthworks including remediation and some off-site disposal of contaminated soil (development or proposed development) at Lot 1 in Deposited Plan 718840 known as 285 Finns Road, Menangle (site).

2. A feature of the Menangle area is its rolling hills and pastoral landscape supporting agricultural pursuits against the backdrop of the Razorback Range. It is not the singular feature of the area, but it is at the centre of the issues in this case.

3. Regrettably once more the Court is called upon to consider a development application following the carrying out of an unlawful activity. In this case it is the bringing onto land a significant amount of fill without having obtained the required development consent prior thereto. To add to those more than unfortunate circumstances, part (or perhaps legally all) of the fill is contaminated because it contains asbestos. It is proposed to remove some of the fill and remediate and use the balance.

4. In an appeal such as this the Court is required to ignore the fact of any prior illegal activity. The presence of the fill is a neutral matter in the assessment process – the Applicant gains no advantage in the assessment by, for example, claiming the cost of removal as a factor in the balancing exercise. Nor is the Council entitled to say simply that the fill should be removed because it was unlawfully placed. A development application must be assessed on its merits alone having regard to the EP&A Act and the Land and Environment Court Act 1979 (Court Act) and any other relevant legislation or instruments.

5. It is understandable that members of the community may be frustrated and annoyed that a landowner may appear to seek to take advantage of their prior unlawful act in making a development application but it is not the role of the Court in these proceedings to punish or admonish the Applicant. There are other proceedings open to the Council and others to achieve that purpose if it is appropriate to do so.

Site and surrounds

6. The site is an irregular pentagon shaped parcel and has an area of 4.39 ha. It has a frontage to Finns Road of approximately 95m and an average depth of about 275m. The nearest poultry shed is set back around 75m from the Finns Road boundary.

7. The site is mostly cleared with the exception of some perimeter trees and a hedge or shrubs between the existing dwelling and the poultry sheds.

8. There are 4 poultry sheds of varying sizes, 3 earth dams (2 of which are in the process of being filled, one previously existing dam has been filled in and another is partially filled in), silos, a cool room & toilet block and 2 smaller sheds associated with the poultry farm use. A dwelling house with a number of associated small sheds are also located on the property. An unapproved secondary dwelling house is located in the southern corner of the Site between existing Shed 4 and existing Shed 5.

9. Surrounding properties contain a mixture of rural and rural/residential land uses with lot sizes ranging from 2.007 ha up to 52.22 ha. The two properties adjoining to the north are cattle studs, and a vineyard & winery (with cellar door sales) are located to the south off Dawsons Road. Opposite the site is the Elizabeth Macarthur Agricultural Institute (EMAI), a State Heritage Item. Dairy No 9 of the EMAI, also situated opposite the site, although some distance away, along the north east of Finns Road, is an item of local heritage significance (item I85) under the Wollondilly Local Environmental Plan 2011 (WLEP 2011).

10. The site rises from Finns Road to the rear or west of the site. The Razorback Range is a vegetated relatively low but pristine mountain range which is further to the west and is in the background when observing the site from the road. An aerial image of the site (outlined in red) prior to any earthworks is below:

11. A recent aerial photograph showing the broader context is below:

The Razorback Range is the forested area to the left of the photograph.

The proposal

12. The proposed development has been the subject of amendment on a number of occasions. The final form is described by the Applicant as follows:

“1. The development application (DA 2019.688.1), as amended, seeks consent for the change of land use from a poultry farm to two depots, including conversion of five existing sheds, with continued residential use on the north-eastern portion of the site.

2. The construction of two new sheds, each with dimensions of 42m long, 20m wide and 6.95m high, to be used as depots.

3. The operation of two depots as follows: a. Depot 1 includes the use of four existing sheds (sheds 1, 2, 3 and 5) and one proposed shed (shed A) with part of the ancillary hardstand area.

b. Depot 2 includes the use of one existing shed (shed 4) and one proposed shed (shed B) with part of the ancillary hardstand area and office building.

c. Depot 1 will be used by JLA Carpentry and Property Maintenance Pty Ltd (existing undertaking) for storage (when not required for use) of plant, machinery, construction equipment and materials such as scaffolding, steel manufacturing items, timber, tiles, concrete formwork, plumbing and gyprock. No sales or hire of machinery, plant or goods will be undertaken at the site. Three staff are to be employed in conjunction with Depot 1 and three car parking spaces will be provided.

d. Depot 2 will be used by James Slashing Pty Ltd (existing undertaking) for storage (when not required for use) of agricultural plant, machinery, and other goods and materials such as mowers, slashers, mulchers, rotary hoes, fertiliser spreaders, forklifts, bobcat and excavators (that are being used for general rural property maintenance), and other goods and materials such as hay and fertilisers. No sales or hire of machinery, plant or goods will be undertaken at the site. Three staff are to be employed in conjunction with Depot 2 and three car parking spaces will be provided.

e. Hours of operations:

i. Administration hours: Monday to Friday 7am to 6pm.

ii. Trade hours (pick up and drop off): Monday to Sunday 6am to 10pm.

iii. Depot sites will be closed with security fence between 10pm to 6am, although emergency access is permissible outside the operation hours.

4. Construction of an office building within the southwest portion of the site for administration and staff amenities to service Depot 2. The office building will have dimensions of 9m long, 6.6m wide and 3.5m high.

5. Construction of ancillary hardstand areas and internal driveways, and provision of ancillary carparking to support the depot operations.

6. Widening of existing driveway crossing within the site and public reserve.

7. Ancillary earthworks, including excavation of the current surface, filling and contouring, and construction of retaining walls.

8. Ancillary stormwater drainage works.

9. Ancillary landscaping and tree removal.

10. Provision of an onsite wastewater management system.

11. Construction phase sediment and erosion control measures.

12. Remediation of contaminated land, including disposal off-site of approximately 9,500m³.”

13. The plan of the proposed development is below:

14. The earthworks include dealing with approximately 35,000cubic metres (cm) of fill brought on to the land. approximately 19,000cm of that fill will be reworked, including about 9,500cm (of the 19,000) to be removed from the site.

Course of the proceedings

15. On 10 September 2021 Preston CJ exercised under s 39(2) of the Court Act the function of the Council as the relevant consent authority under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) to agree to the amendment of the development application and directed the Council to lodge the amended development application on the NSW Planning Portal (Portal) within 7 days. His Honour also granted leave to the parties to adduce oral evidence to address the amendments.

16. There was some difficulty in lodging the amended development application on the portal but the Court was informed that it was lodged on 6 October 2021. The amended development application now before the Court was thereafter filed on 2 November 2021.

17. His Honour directed the Council to publicly re-exhibit the amended development application and to provide any submissions received to the Court and the Applicant within 48 hours of the end of the re-exhibition period. In the event two submissions were received which were forwarded to the Court on 24 September 2021.

18. Although leave had been granted by Preston CJ to adduce oral evidence, I considered in the circumstances that it would be helpful if the experts prepared short supplementary joint reports and I directed that they do so. All the experts cooperated and prepared the additional material with alacrity. There was little delay in the hearing as a consequence.

19. The hearing was conducted by audio visual means in accordance with the Court’s COVID-19 Pandemic Policy of April 2021.

20. A significant issue in the case was the visual impact of the proposed development in the context of the cultural landscape of the site. Accordingly, I had no hesitation in agreeing to the parties’ request that there be a site inspection, which was carried out on the morning of 15 September, the second day of the hearing.

21. The site inspection was conducted in the presence of the parties’ representatives and the expert town planners. Social distancing was respected and there were no internal inspections of buildings.

22. I inspected the site itself, was shown the existing sheds and the locations of proposed sheds and the proposed levels and relationships were explained to me.  I then observed the site from a number of view locations – from the road reserve opposite the site, to the south of the site at the corner of Dawsons Road about 200m away, from the top of Dawsons Road adjacent to the entrance to a neighbour, and to the north of the site from Remembrance Driveway. 

23. I also observed the general area and, in particular, I noted that the landscaping in the immediate area of the road had a variety of character elements.  There were areas of thicker roadside vegetation, which is difficult to see through, areas where there are filtered views through vegetation and areas where there are open views from the road to the landscape and beyond.

Issues

24. It is by no means a criticism of the Council to observe that the issues in the case narrowed in the time since the filing of the Council’s Second Further Amended Statement of Facts and Contentions on 6 August 2021. The Applicant’s further amendments coupled with the experts’ additional consideration reduced the issues between the parties.

25. The issues can be summarised as:

1. Visual impact – the proposal fails to protect and enhance the scenic and cultural landscape and adversely affects the existing and desired future character of the area.

2. The loss of agricultural land.

3. Earthworks, contamination and the operation of Protection of the Environment Operations Act 1997.

4. Impact on Outer Sydney Orbital.

5. Public interest, including public submissions where they otherwise coincide with the contentions raised by Council.

Planning and legislative context

26. The site is zoned RU2 Rural Landscape pursuant to WLEP 2011. The zoning table including the objectives of the zone relevantly are:

Zone RU2   Rural Landscape

1   Objectives of zone

•  To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

•  To maintain the rural landscape character of the land.

•  To provide for a range of compatible land uses, including extensive agriculture.

•  To provide areas where the density of development is limited in order to maintain a separation between urban areas.

2   Permitted without consent

Extensive agriculture; Home occupations

3   Permitted with consent

Agriculture; Airports; Animal boarding or training establishments; Aquaculture; Bed and breakfast accommodation; Boat building and repair facilities; Boat sheds; Cellar door premises; Cemeteries; Community facilities; Crematoria; Depots; Dual occupancies (attached); Dwelling houses; Educational establishments; Environmental facilities; Environmental protection works; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Freight transport facilities; Funeral homes; Group homes; Home-based child care; Home businesses; Home industries; Home occupations (sex services); Hospitals; Information and education facilities; Landscaping material supplies; Mortuaries; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Research stations; Roads; Roadside stalls; Rural industries; Rural supplies; Rural workers’ dwellings; Secondary dwellings; Signage; Transport depots; Veterinary hospitals; Water recreation structures; Water supply systems

4   Prohibited

Stock and sale yards; Turf farming; Any other development not specified in item 2 or 3

27. In considering a development application the consent authority must have regard to the objectives of the relevant zone (cl 2.3 of WLEP 2011). There was particular emphasis on the second objective – “To maintain the rural landscape character of the land”.

28. The use of the site for the purposes of a “depot” is permissible with development consent. “Depot” is defined in the Dictionary to WLEP 2011:

depot means a building or place used for the storage (but not sale or hire) of plant, machinery or other goods (that support the operations of an existing undertaking) when not required for use, but does not include a farm building.

29. There is no issue that the proposed development is properly characterised as use of the site for the purpose of 2 depots. Interestingly, and contrary to the usual notion that the particular user of land is irrelevant to the characterisation of the use, the depot must support the operations of an existing undertaking. The Applicant has nominated the 2 relevant existing undertakings in paragraphs 3(c) and (d) of its description of development set out at [12] above. One is a carpentry and property maintenance company, and the other is a firm offering services of slashing and other landscape maintenance, vegetation clearing and earthworks services.

30. Clause 5.10 of WLEP 2011 relates to heritage conservation but it is unnecessary to set out its terms. Clause 7.5 relates to earthworks and should be noted:

7.5   Earthworks

(1)  The objectives of this clause are as follows—

(a)  to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land,

(b)  to allow earthworks of a minor nature without requiring separate development consent.

(2)  Development consent is required for earthworks unless—

(a)  the work is exempt development under this Plan or another applicable environmental planning instrument, or

(b)  the work is ancillary to other development for which development consent has been given.

(3)  Before granting development consent for earthworks, the consent authority must consider the following matters—

(a)  the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

(b)  the effect of the proposed development on the likely future use or redevelopment of the land,

(c)  the quality of the fill or the soil to be excavated, or both,

(d)  the effect of the proposed development on the existing and likely amenity of adjoining properties,

(e)  the source of any fill material and the destination of any excavated material,

(f)  the likelihood of disturbing relics,

(g)  the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.

31. Wollondilly Local Environmental Plan 2011 (Amendment No 40) (Amendment 40) was made on 26 March 2021. It has provisions which affect the site, but there is a savings provision which became cl 1.8A(3) of WLEP 2011:

If a development application has been made before the commencement of Wollondilly Local Environmental Plan 2011 (Amendment No 40) in relation to land to which that Plan applies and the application has not been finally determined before that commencement, the application must be determined as if that Plan had not commenced.

32. This clearly means that where the DA was, as here, made before 26 March 2021, the DA must be determined as if Amendment 40 had not commenced. In short, the provisions added to WLEP 2011 by Amendment 40 will not directly apply to the assessment of the DA.

33. That of course does not mean that the additional provisions do not have any relevance at all. I will return to that subject. The additional provisions are, first, an additional objective of the RU2 zone:

• To support sustainable land management practices and local food production.

34. Second, and more importantly, cl 7.9 was inserted in WLEP 2011 which provides:

7.9   Development within metropolitan rural area

(1)  The objective of this clause is to protect and enhance environmental, social and economic values in metropolitan rural areas.

(2)  This clause applies to land identified as ”Metropolitan Rural Area” on the Metropolitan Rural Area Map.

(3)  Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered the following—

(a)  the impact of the proposed development on—

(i)  the natural habitat and biodiversity, and

(ii)  drinking water catchments, and

(iii)  mineral and energy resources and extractive industries,

(b)  whether the proposed development—

(i)  preserves land for agriculture, including by providing buffers, and

(ii)  prevents incompatible uses, and

(iii)  maintains and enhances the distinctive character of rural towns and villages, and

(iv)  protects areas of cultural, heritage or scenic value, and

(v)  appropriately manages the risk of hazards including bush fire or flooding.

35. The site is within the area of land identified as ”Metropolitan Rural Area” on the Metropolitan Rural Area Map, set out below:

36. I accept the Council’s submission that cl 7.9 is a mandatory relevant consideration by virtue of s 4.15(1)(a)(ii) of the EP&A Act because Amendment 40 is to be treated as not having commenced rather than not having existed at all. And so Amendment 40 is to be treated as a proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority, and therefore a mandatory relevant consideration (see eg Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 (Maygood) at [28] to [33]). The Applicant did not make any submission to the contrary.

37. In any event consideration of Amendment 40 falls within the rubric of public interest, itself a mandatory relevant consideration by virtue of s 4.15(2)(e) of the EP&A Act (Maygood at [34] – [36) (although not every aspect of public interest is necessarily a mandatory relevant consideration).

38. There are three strategic plans and a Draft Scenic and Cultural Landscape Study August 2020 (draft SCL study) which the Council says are also relevant and, in respect of which Amendment 40 is the result, at least in part. I will come to those documents shortly.

39. Wollondilly Development Control Plan 2016 (WDCP 2016) applies to the site. The Council pointed to parts of Chapter 7 – Industry and Infrastructure as relevant to the assessment of the DA. In Part 1 – Preliminary, it provides:

“1.1 Introduction

This volume provides controls for the development and use of land for the purposes of industrial and also transport and infrastructure related land uses and forms part of the Wollondilly Development Control Plan 2016.

1.2 Objective

1. To provide for development that protects the scenic qualities of the Wollondilly Shire Area.

2. To ensure that industrial development has a neutral or beneficial effect on the natural and built environments.

….

5. To ensure the most efficient use of industrial land that is consistent with the existing amenity of the area.

….

7. To ensure good vehicular access, circulation and loading facilities on industrial sites to avoid impacts on pedestrian and vehicular mobility in the locality.

8. To ensure adequate on-site car parking is provided.

9. To ensure access to adequate services is provided for the disposal of waste.

10. To promote high standards of architecture, landscaping and building design that is visually attractive in form, design, colour and scale.

11. To ensure that industrial developments are suitably designed and landscaped without restricting their viability through over regulation.

12. To ensure industrial development is undertaken in a manner that minimises land use conflicts.

13. To ensure buildings do not adversely affect views from adjoining zones, classified roads (Picton Road and Remembrance Driveway) or other public spaces.

14. To ensure soil conservation and sediment control measures are implemented during and post-construction.

…..”

40. Part 3 provides for “Specific Land use controls”. Clause 3.1 states:

“3.1 Rural industry and Depots (including Transport depots and Truck depots)

Objectives

(a) To provide development guidelines for the sustainable development of rural industries, and

(b) To ensure colours used are complimentary to the surrounding landscape and blend into the rural character of the Shire.

Controls

Location and building setbacks

1. Buildings used for rural industries must not to be located in visually prominent locations such as ridgelines and must not be erected on slopes in excess of 15 degrees.

2. Certain industries may require a more significant setback to be determined by the assessing officer.

3. Where industries are proposed in rural zones the minimum requirements are (as per igloos).

Building colour

1. The colour of a building used for the purpose of a rural industry must match or blend with the colour of existing structures and buildings on the property and must be in keeping with the natural features of the surrounding environment.

Parking and Access

1. Site access roads in rural areas may need to be sealed depending on the nature of the proposal.”

41. The Applicant says that this provision does not apply because the introduction to the Chapter says that it applies to the “use of land for the purposes of industrial and also transport and infrastructure related land uses” and that the use of land for a depot with the proposed existing undertakings are not industrial uses, nor transport or infrastructure.

42. There is some merit in that submission, however the specific control does refer to “Depots (including Transport depots and Truck depots)”. The use of the word “including” means that the provision is intended to apply to all depots, not just those associated with transport and trucks. And the provision applies to “Rural industry” AND depots.

43. In my opinion the control applies to a depot as defined in WLEP 2011. The question is then whether the general provision at the start of the Chapter operates to limit the intention of the specific provision. In my view it does not. This is a development control plan, not a piece of legislation, and one should search for an harmonious construction, even if that means a less than literal interpretation of part of the document. I do not consider that the heading determines or alters the meaning of the terms of the specific provision or control.

44. In any event, clause 3.1 is but an expression of the principles that should be applied in any event when considering the impacts of a development in this location when considering the impacts of the development. Buildings should not be in visually prominent locations such as on ridgelines, or on steeply sloping land and ought to blend in with existing buildings. They should also be in keeping with the natural features of the surrounding environment.

45. The proposed development does actually comply with the relevant specific controls – the additional two sheds are not located on a ridgeline and the site does not have a slope in excess of 15 degrees. The Council did not argue otherwise.

46. The colour of the new buildings will match or blend with the colour of existing buildings. Again, there was no argument from the Council to the contrary.

47. The broader question of “in keeping with the natural features of the surrounding environment” is in essence the same question as whether the proposed development adversely affects the existing and proposed character in terms of the landscape in the area. I deal with that aspect separately.

48. It follows therefore that it is of no moment whether or not clause 3.1 of WDCP 2016 applies because the proposal complies with the numerical control and the broader question is to be considered as part of the assessment process in any event.

49. The four strategic documents the Council says are relevant are:

1. Greater Sydney Region Plan A Metropolis of Three Cities – connecting people March 2018 (Region Plan) – Greater Sydney Commission;

2. Our Greater Sydney 2056 Western City District Plan – connecting communities March 2018 (District Plan) – Greater Sydney Commission;

3. Local Strategic Planning Statement March 2020 – Wollondilly Shire Council (LSP Statement); and

4. Draft Wollondilly Scenic and Cultural Landscape Study August 2020 – Wollondilly Shire Council (Draft SCL Study).

(Referred to collectively as the “strategic documents”.)

50. The Council says that each of the Region Plan, the District Plan, the LSP Statement, and the Draft SCL Study are relevant matters for consideration as identifying relevant planning considerations and public interest matters, citing Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 (Council Written Submissions (CWS) at [33]). So much can be accepted.

51. The Council says that the strategic documents emphasise three critical matters of relevance to the DA:

1. the importance of retaining the Metropolitan Rural Area for traditional farming, including agriculture and horticulture;

2. the protection of scenic and cultural landscapes;

3. the protection and enhancement of environmental, social, and economic values within the Metropolitan Rural Area.

which are reflected in Amendment 40.

52. Implicit in the use by the Council of the word “critical” is the allocation of weighting to the consideration of the strategic documents and Amendment 40. Putting to one side the question of weight, I accept that the strategic documents emphasise those matters, and the consideration by the Council of the strategic documents led to the making of Amendment 40 (including the savings provision). It is also worthy of note that the Greater Sydney Planning Commission on 23 March 2020 approved the LSP Statement and the Planning Proposal which led to the making of Amendment 40, and which began its public exhibition in May 2020.

53. It is therefore not necessary to set out as many of the extracts of the strategic documents that the Court was taken to, but there are some matters worthy of setting out.

54. Planning Priority 16 of the LSP Statement is entitled “Enhancing and Protecting the Diverse Values of the Metropolitan Rural Area”. The introductory material includes:

“The Western City District’s rural and protected natural areas provide significant green space for Greater Sydney. The rural landscape provides a distinctive setting that reveals high value environmental, agricultural and mineral resource rich land.

….

Wollondilly’s protected national parks, rivers and creeks, and water catchments provide outstanding landscapes and views. The Shire’s ridgelines are valued scenic landscapes – they include the Bargo and Nepean River gorges, the Razorback Range at Picton and the rural hills and ridgelines of Camden and Wollondilly, creating a distinct setting for neighbouring communities.

….

The Greater Sydney Region Plan and Western City District Plan recognise that farming is integral to the supply of fresh food and contributes to the self-sufficiency and health of the District. Both plans support restrictions on development in the Metropolitan Rural Area to identify, plan for and manage the various values of rural land.

…..

Protecting existing agriculture and industries will provide certainty of future operations without encroachment from incompatible and conflicting land uses. Seeking to retain, increase and protect rural lands to support the success of these industries will be a key planning principle.

….

Further fragmenting of rural land will only be supported in limited areas that will be identified in our Local Housing Strategy and Rural Lands Strategy. It will only occur if the proposed development will have no adverse impacts on the agricultural, scenic and environmental values of the landscape. We will support the retention of the Metropolitan Rural Area and protect important strategic agricultural land as identified in the rural lands strategy.

...”

55. There is a section which is described as “Rural Lands Strategy” which provides:

“Rural Lands Strategy

Rather than defining the value of rural land by the viability of existing uses, the rural land strategy will identify:

• land suitable for future agricultural needs

• opportunities to realise the potential of underutilised agricultural land • buffer lands to existing and future agricultural industries and precincts

• agricultural and non-agricultural diversification opportunities to build resilience • environmental and scenic values

• various types of agricultural and rural uses and any special needs

• other opportunities to reduce rural land use conflict.”

56. The general ambition and strategy are followed by a statement of that which Council will do:

“Council will:

• Protect rural uses by applying a consistent buffer from urban uses to avoid land use conflicts

• Protect existing agricultural industries and mineral resource operators through the appropriate sequencing of residential land uses

• Advocate for, protect and enforce the right to farm

• Provide an appropriate planning framework to support key rural industries and assets

…..”

57. Then there is the description of what action is to be taken by the Council:

“ACTION

16.1 Review the LEP and DCP to help increase agriculture and horticulture

16.2 Review the LEP and DCP to determine if there is sufficient protection, including buffers, for agricultural activities and key industries

16.3 Complete a Rural Lands Strategy to identify and protect land for intensive agriculture

16.4 Prepare a Scenic Lands Study

16.5 Investigate the feasibility of an agricultural enterprise credit scheme

16.6 Explore changes to short-term employment visas to encourage agricultural investment where short-term labour is required”

58. Items 16.1 -16.4 are said to be actioned within a period described as Short, and the remaining two as Short/Medium.

59. It would appear that the review of WLEP 2011 resulted in Amendment 40 and the “Scenic Lands Study” is the Draft SCL Study.

60. The Draft SCL identifies Landscape Units (LUs)– the site is on the fringe of the “Razorback Slopes” landscape unit and immediately adjacent to the “Cowpastures” landscape unit.

61. The features of the Razorback Slopes LU include this description:

“The lower slopes of the Razorback Range are almost completely cleared but the very steep upper slopes retain extensive vegetation cover that provides a continuous backdrop when viewed from the east and south-east ... The mid and lower slopes feature a combination of pastures and cultural plantings including Bunya Pines and avenue plantings as well as a diversity of dwellings and other structures ... The combination of steep landform and extensively vegetated upper slopes is a key character trait and the Razorback slopes provide a defining visual element for the approach to Picton, as well as for the Shire more broadly.”

62. In terms of visual values, the Razorback Slopes are described as scarce:

“Scarcity: The landscape setting on the steep slopes of the Razorback Range is a unique natural landscape not just in Wollondilly but also within the Cumberland Plain and the Sydney Basin. The Razorback Range is a distinct natural landmark that characterises the area.”

63. In terms of visual sensitivity, it said that:

“The mid and lower slopes are highly exposed to views from Menangle Road and have limited capacity to absorb change…”

64. The risks and threats to values include “increased development on visually exposed hillsides and upper slopes”. In a “Statement of Significance” the Draft LCS Study identifies the key elements to protect and conserve as:

“Vegetated upper slopes contrasting with grazing land on the mid and lower slopes

Patchwork of cleared land with individual trees and groups of trees

Rural outlook from the rail line/s

Rural road character of Menangle Road.”

65. Finally, there are a series of recommendations including of a general nature – to protect the key elements in the statement of significance – and further recommendations relating to locations for development, development controls, road and infrastructure, and bushland and environmental management. Fundamentally the recommendations reflect the need for the protection of the important elements of the cultural landscape. It should be noted that the site is about 2 or 3 kilometres from Menangle Road at its closest point and it was not suggested that it was possible to see the site from Menangle Road.

66. The Cowpastures LU is to the north and east of the site. The Draft LCS Study logically deals with the characteristics and protection of the Cowpastures LU itself, but includes the following:

“…. The flat to rolling landscape and extensive pasture areas result in a mostly open landscape setting punctuated by tree cover and a limited number of built structures. Much of this is contrasted by topography and elevation of the Razorback Range and Lapstone Escarpment in the south and north respectively, and the Central Hills and Northern Slopes in the centre of the Cowpastures LCU …

4.7.1. Edges and interfaces The steeply rising topography of the adjoining Razorback Slopes, Central Hills and Northern Slopes LCUs with their mix of cleared and bushland areas provide the visual backdrop to the Cowpastures. The contrast between steep adjoining areas and the flatter open landscape is integral to the outlook from and experience of the Cowpastures LCU”

67. Directly opposite the site is the Elizabeth Macarthur Agricultural Institute (EMAI), a State Heritage Item which is in the Cowpastures LU. The boundary of the EMAI adjacent to Finns Road, is reasonable heavily treed with native species, but filtered views are available to and from EMAI. I was informed by the planners that there is proposed to be additional planting on that part of EMAI opposite the site to reinvigorate and restore the forest planting rather than allow further grazing there. The grazing will continue further to the east of EMAI.

68. The site is subject to Sydney Regional Environmental Plan 20 – Hawkesbury-Nepean River (No 2—1997) (SREP 20). Clause 3 sets out the aim of the plan:

3   Aim of this plan

The aim of this plan is to protect the environment of the Hawkesbury-Nepean River system by ensuring that the impacts of future land uses are considered in a regional context.

69. Clause 4 is the operative provision:

4   Application of general planning considerations, specific planning policies and recommended strategies

(1)  The general planning considerations set out in clause 5, and the specific planning policies and related recommended strategies set out in clause 6 which are applicable to the proposed development, must be taken into consideration:

(a)  by a consent authority determining an application for consent to the carrying out of development on land to which this plan applies, and

(b)  by a person, company, public authority or a company State owned corporation proposing to carry out development which does not require development consent.

(2)  Those considerations, policies and strategies should be taken into consideration in the preparation of each environmental planning instrument and development control plan that applies to land to which this plan applies.

70. SREP 20 therefore applies both in the consideration of a development application and the preparation of environmental planning instruments and development control plans. The relevant consideration to which the Council points is cl 6(8) which provides:

(8)   Agriculture/aquaculture and fishing

Policy: Agriculture must be planned and managed to minimise adverse environmental impacts and be protected from adverse impacts of other forms of development.

Strategies:

(a)  Give priority to agricultural production in rural zones.

(b)  Ensure zone objectives and minimum lot sizes support the continued agricultural use of Class 1, 2 and 3 Agricultural Land (as defined in the Department of Agriculture’s Agricultural Land Classification Atlas) and of any other rural land that is currently sustaining agricultural production.

(c)  Incorporate effective separation between intensive agriculture and adjoining uses to mitigate noise, odour and visual impacts.

(d)  Protect agricultural sustainability from the adverse impacts of other forms of proposed development.

(e)  Consider the ability of the site to sustain over the long term the development concerned.

(f)  Consider the likely effect of the development concerned on fish breeding grounds, nursery areas, commercial and recreational fishing areas and oyster farming.

71. It is mandatory therefore to take into consideration the aim of SREP 20 and the Policy and relevant Strategy. The consideration suggests it is in a regional context having regard to the Aim of SREP 20, but in any event the policy and relevant strategy can be summarised thus : take into consideration the need to protect agriculture from any adverse effects of the proposed development, and to give priority to agricultural production in rural zones. It is important to note that the considerations are not requirements about which satisfaction is to be reached but are matters for consideration.

72. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) applies to the site and to the proposed development. Clause 7 is the relevantly operative provision:

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).

73. The issue concerning the contaminated land is concerned with the satisfaction or otherwise of cl 7 of SEPP 55.

Evidence from objectors

74. The Council notified the unamended DA in accordance with its policy. There were 5 submissions. The DA at that time identified one of the uses as a transport depot. There was considerable objection to the anticipated heavy vehicle movements, including traffic safety, noise, the likely materials transported and the nature of the activities on site.

75. There was also concern about the character of the area and the potential visual impact of the proposed development.

76. The amended development application was notified pursuant to the order made by Preston CJ on 10 September 2021 and 2 supplementary submissions were received by the Council.

77. The objectors’ concerns relate to:

• Unlawful earthworks;

• Concern about contamination and the effectiveness of its remediation;

• The accuracy of the estimate of truck movements and the safety of the access and egress to and from the site;

• Adding two sheds being overdevelopment of the site; and

• The potential for flood damage to neighbouring property having regard to the changed stormwater system.

78. The matters raised by objectors are largely encompassed by the Council contentions and otherwise (traffic and stormwater) dealt with by expert evidence such that the Council is satisfied no issue arises. I will return to those issues.

Expert evidence

79. Expert evidence was given in the disciplines of geotechnical/civil engineering, contamination, heritage, traffic, planning and acoustics. The following table shows the experts retained and their disciplines:

Discipline	Applicant	Council
Geotech/civil   engineering	R Erni    A Norris	J Thompson
Contamination	A Norris	J Clay
Heritage	J Phillips	C Betteridge
Traffic	K Hollyoake	C McLaren
Planning	J Lovell	A Darroch
Acoustics	M Weston	S Gauld

80. I will summarise the expert evidence in the disciplines below.

Acoustics   

81. Mr Weston and Mr Gauld prepared a joint report but they were not required to give oral evidence. The contention about acoustics was simply that there had been insufficient material provided to enable an acoustic assessment and that therefore the Court could not be satisfied that there would not be an unreasonable adverse impact from noise.

82. Mr Weston provided an Operational Noise Emission Assessment dated 23 March 2021 which was considered by Mr Gauld. They also considered a draft Traffic Management Plan of November 2020. The acoustic experts agreed in their joint report that with certain controls in addition to those in the Traffic Management Plan “the operation of the site will provide for an acoustic impact that satisfies the noise criteria in the EPA’s Noise Policy for Industry and result in an acceptable noise impact”.

83. The measures recommended by the acoustic experts are either directly or indirectly (through a plan of management) in the proposed conditions of consent. The measures are:

“ Compression braking shall not be permitted while slowing down to enter the site, during the morning shoulder period;

Air ‘release’ brakes on trucks, used just before parking, has been assessed;  

The ‘blue’ shaded area in Appendix A3 of Annexure C shall not be accessed by any vehicle during the night between 10pm and 7am.

The ‘red’ shaded area in Appendix A3 of Annexure C shall not allow reversing alarms to be used during the evening between 6pm and 10pm and the night between 10pm and 7am.”

84. The Council accepts that there is sufficient information to determine that there is no unacceptable acoustic impact as a consequence of the proposed development. I accept the expert evidence which demonstrates that conclusion.

Traffic

85. Mr Hollyoake and Mr McLaren prepared a joint report (filed 30 March 2021) and a supplementary joint report (filed 15 September 2021), the latter dealing with the amended DA as it is now before the Court. They were not required to give oral evidence.

86. The contention about traffic again related to insufficient information, in this instance, to permit a proper assessment of the traffic impacts of the development, including road safety. Mr Hollyoake provided a detailed assessment dated 17 March 2021 which formed the basis of the joint report of 30 March 2021. The traffic experts agreed that with the imposition of conditions the traffic impacts were acceptable.

87. The supplementary joint report dealt with the DA which was no longer for a transport depot, but took into account the traffic movements associated with the remediation of the site, including the removal of fill. The experts maintained their agreement that with the imposition of conditions there was no remaining traffic issue.

88. The conditions recommended by the traffic experts, which are included in the proposed conditions of consent require the preparation of a detailed Traffic Plan of Management to be approved by the certifying authority and a limitation on the size and load of trucks accessing the site.

89. The Council does not press any issue relating to traffic matters. Mr Hollyoake and Mr McLaren are very experienced and highly qualified traffic experts. They have considered the traffic impacts of the proposed development and concluded that they are satisfactory, including matters of road safety. The detail of the traffic plan of management is to be approved in due course, but there is no doubt that the detail is capable of being provided for and complied with.

90. I am satisfied that the traffic impacts of the proposed development are acceptable.

Heritage

91. Mr Phillips and Mr Betteridge prepared a joint report (30 March 2021), a supplementary report (25 August 2021) and a further supplementary report (14 September 2021). They gave short oral evidence.

92. Whilst Mr Phillips and Mr Betteridge are qualified heritage experts, they ventured into the more general topic of whether or not the proposed development was appropriate within the natural landscape character of the area and the visual prominence of the proposed additional sheds. The only contention related to heritage (3(g)) was in the following terms:

“The proposed development will be located opposite Elizabeth Macarthur Agricultural Institute) which is an item of State Heritage Significance listed on the NSW State Heritage Inventory. Dairy No. 9, part of the the Elizabeth Macarthur Agricultural Institute, is an item of local heritage significance under the WLEP. The introduction of a heavy vehicle industrial site is inconsistent with the heritage landscape of the locality.”

93. In their first joint report the heritage experts said in relation to that contention:

“The experts agree that the proposed enhanced landscape, as suggested in the drawing by RFA Landscape Architects L01 dated 06/01/21, will ensure that the development will have a minimal impact on the natural landscape character of the area.”

94. In the supplementary joint report, Mr Betteridge changed his position after consideration of the strategic documents. Mr Phillips did not. Mr Betteridge said:

“Contrary to my opinion expressed in the Joint Heritage Expert’s Report of April (sic) 2021, I am now of the opinion that the uncertainties arising from the unknown current topography of the site, leading to a lack of certainty about the accuracy of the survey data that underpinned the Visual Impact Assessment and the Landscape Plan mean that it is now uncertain as to whether the proposed landscape screening will minimise the visual impact of the built form of the proposed development to an acceptable level.”

95. The experts did however add the following:

“It is noted that the Applicant has agreed to support a Condition of Consent for landscape maintenance and the expert witnesses (Heritage) agree that Council should draft a condition of consent requiring ongoing maintenance of new landscaping during establishment and in subsequent months/years.

Given the length of time it is likely to take before the proposed landscaping achieves its maximum screening effect, it is recommended that the landscape plan include some fast growing ‘nurse plantings’ such as species of Acacia, to Council’s requirements, that will provide quicker screening until the other species reach maturity.”

96. In their further supplementary joint report filed during the hearing, the heritage experts considered the amended landscape plan, updated photomontages of the proposed development and the latest iteration of the site rehabilitation proposal. Whilst they agreed as to the appropriateness of some of the landscaping, they disagreed on the capacity for the visual assessment of the proposal and some of the particular landscaping proposed.

97. Mr Betteridge said:

“In regard to the Visual Impact Assessment, this has not taken into account the number, location and duration of the proposed gas vents topped with passive wind turbines that have been recommended to remediate ground gases emanating from the site.”

98. It is true that the photomontages did not show the gas vents which are necessary as a consequence of the rehabilitation of the site and the emplacement of some of the contaminated fill. I will deal separately with the visual impact of the proposal.

99. In relation to landscaping Mr Betteridge said:

“The Landscape Plan does not provide for canopy replenishment along the site boundaries to replace existing trees and shrubs when they become senescent and die. In my opinion such provision in an amended Landscape Plan is necessary for ongoing screening of the existing and proposed sheds as viewed from the public domain and from the State Heritage Register-listed property Camden Park Estate / Elizabeth Macarthur Agricultural Institute (EMAI) on the opposite side of Finns Road from the development site.”

100. Implicit in this observation from Mr Betteridge is that whilst the landscaping as proposed is acceptable in its effectiveness, that over time trees and shrubs will die and it is necessary to ensure that the screening from EMAI is maintained for all time. Mr Phillips, whilst not disagreeing in principle said that he has seldom, if ever, seen a landscape plan which itself provides for replacement planting.

101. Mr Betteridge also said that appropriate species must be selected for areas where the depth or quality of soil is less than ideal, so that the landscaping will succeed. He also pointed to the time taken for some species to achieve a screening height and it maybe some years before the necessary mitigation was achieved. Mr Phillips did not disagree.

102. The Council made no submission that the heritage impact on EMAI is in itself unacceptable. Indeed, with appropriate landscaping it is difficult to conclude otherwise. The view from EMAI to the site is filtered and will become more so as the planting and revegetation of EMAI takes hold. The outlook will vary little from what exists at present. Further, there is no issue that the landscaping can provide the necessary additional planting to further screen the sheds from the EMAI. The Council requires a condition, which the Applicant accepts, that the final landscape plan has to be approved by the Council. In that way the Council can ensure that the appropriate species are planted in the appropriate locations.

103. Mr Betteridge’s concern about long term maintenance of landscaping is understandable and has merit. In response perhaps to that concern the Council has included a condition requiring a landscape maintenance plan which is to provide, amongst other things, for replacement planting as and when necessary. In my opinion that is the appropriate response to that concern.

104. The Council also requires (by condition) planting it calls “nurse planting” to provide screening until the landscaping more generally matures.

105. It follows that with the implementation and maintenance of the landscaping, the detail of which the Council will determine, the heritage impact of the proposed development is acceptable.

Civil/geotechnical engineering

106. The contention dealing with this aspect of engineering was that in essence there was insufficient information to determine the adequacy of matters such as:

• water supply;

• onsite water storage;

• the existing and proposed levels; and

• whether the imported fill has been compacted sufficiently or otherwise treated or proposed to be treated so as to demonstrate that the site is suitable for the proposed use, including the erection of the two additional sheds.

107. It is fair to say that the contentions by Council were well founded at the time of their drafting in August 2021. Additional material was prepared by the Applicant and was the subject of consideration by the experts.

108. Mr Norris, Mr Erni and Mr Thompson in their first joint report (27 August 2021) considered the following documents:

“Detailed Site Investigation P1806774JR13V01 prepared by Martens and Associates Pty Ltd dated March 2021 [April 16, 2021] - logs of subsurface investigations were specifically considered by the experts. o Supplementary Detailed Site Investigation:

Proposed Depots and Transport Depot 285 Finns Road, Menangle, NSW Version P1806774JR16V01prepared by Martens and Associates Pty Ltd dated May 2021 – logs of subsurface investigations were specifically considered by the experts;

Martens & Associates Development Plan set PS03 R14 [latest amended plans].

Recently completed results of site dynamic cone penetration (DCP) testing results .. distributed by Mr Erni to Mr Thompson and Mr Norris on August 20, 2021;

Preliminary Stormwater Swale Assessment distributed by Mr Norris to Mr Thompson on August 25, 2021;

Survey by Chadwick Cheng dated 17 May 2021”

109. As a consequence of the provision of the material and the conversation between the experts, a more complete understanding of the proposal and its impacts was able to be achieved by Mr Thompson (the Council’s expert). As a consequence, the 3 experts expressed the agreed opinion in their report in the following terms:

“18.   It is agreed that a condition, to the effect of Condition 1 below, controlling future site earthworks should be imposed, and resolves contentions regarding the control of further site earthworks.

Condition 1

All site earthworks are to be undertaken in accordance with AS3798 with certification by the project geotechnical engineer to be provided to the principal certifying authority prior to the issue of occupation certificate.

19.    It is agreed that a condition, to the effect of Condition 2 below, requiring engineering design and certification of the foundation solution for Sheds A and B resolves contentions regarding the adequacy of earthworks to support these future structures.

Condition 2

An appropriately qualified geotechnical / structural engineer is to prepare foundation designs for Sheds A and B and provide certification of the adequacy of the solution to the principal certifying authority prior to the grant of construction certificate.”

110. The experts also noted that an approval had been obtained by the Applicant from Subsidence Advisory NSW pursuant to s 22 of the Coal Mine Subsidence Compensation Act 2017. I refer to this approval when dealing with conditions in dispute.

111. The civil/geotechnical and contamination experts had been directed to prepare a further joint report on contention 7(a)(ix)(C1) which related to landfill gases and the proposed Remediation Action Plan (RAP). It was not truly a matter concerning civil/geotechnical engineering and I will deal with the conclusion in the joint report dated 27 August 2021 (2.57pm) of the 3 experts and Mr Clay when dealing with contamination.

112. Mr Norris, Mr Erni and Mr Thompson conferred again concerning the amended plans and additional information in respect of which orders were made on 10 September 2021. The material included a Further Detailed Site Investigation, Remedial Action Plan, Site Audit Report and Site Audit Statement. Their conclusion in the Joint Report of 14 September 2021 was:

“5. In matters geotechnical the experts [JT, RE] agree that:

-    No changes to the experts’ agreements presented in the Geotechnical Civil Joint Report dated August 27 result from the further material.

-   Site earthworks to be undertaken include earthworks using stockpile site material. As a result of works approximately 9,500 m3 of material is understood to be required to be disposed of offsite.

6. In matters civil the experts [JT, AN] agree that:

-   No changes to the expert’s agreements presented in the Geotechnical Civil Joint Report dated August 27 result from the further material.

-   Regarding the proposed management of wastewater on the site it is agreed that, to prevent adverse wastewater – gas trench interaction, setbacks are to be applied. Adopted setbacks to the gas cut off trench equal to those required to a boundary (as no specific setback is provided in Council’s control or elsewhere to a gas trench) is recommended. With such buffers there is adequate land available in the area previously identified on Martens Plan PS05-F201 (Wastewater Detail Plan) as previously submitted to Council. A suitable wastewater management system is therefore able to be provided on the site.

-   Detailed design of the effluent management system is to be provided at the section 68 Local Government Act application stage for the ‘system of sewage management’. Approval of that application is required prior to the installation of the wastewater management system.”

113. The civil/geotechnical experts were not required to give oral evidence. I accept the agreed conclusions of the experts in the joint reports to which I have referred. That agreement has come about first as a result of the Council experts identifying the shortcomings in the DA and, second, the provision of additional information by the Applicant over a period of time up to shortly prior to the hearing. Be that as it may, the contentions were resolved.

Contamination

114. The Council’s contention 7 headed Contamination and remediation has 4 elements:

1. There is insufficient information for the consent authority to be satisfied that the site is suitable for the proposed use either in its contaminated state, or will be suitable, after remediation, and if remediation is required, that the site will be remediated before it is used for the proposed depot use. Extensive particulars are provided which identify shortcomings in the documents provided by the Applicant to that point.

2. The development application does not demonstrate that an environmental protection licence under s 48 of the Protection of the Environment Operations Act 1997 (POEO Act) is not required. The particulars sought to establish that a licence was required.

3. The development application does not sufficiently identify the proposed remediation work. Particulars are provided.

4. The development application seeks consent to re-use asbestos waste, contrary to the prohibition in s 144AAB of the POEO Act. The particulars identify that asbestos waste is to be used on the site.

115. Contentions 7 (b) and (d) effectively became an issue about conditions and whether there ought be a condition requiring the Applicant to obtain a licence under the POEO Act prior to carrying out the development. I will deal with that issue later.

116. Contentions 7(a) and (c) are self-evidently contentions about insufficient information having been provided to that point. It must be observed that this has been a continuing theme, and an unsatisfactory one at that.

117. In order to put this issue into context the nature of the site remediation needs to be understood.

118. The site remediation involves the removal of some likely contaminated material (about 9500cm), the reworking of likely contaminated material of about 19,000cm, including the 9500cm removed, and the retention on the site of about 25,500cm of potentially or likely contaminated material which had been brought onto the site. In essence this means that of the 35,000cm of material brought onto the land, about 16,000cm is presently below the design level of the development and it does not need to be removed or reworked. The 19,000cm which is to be reworked is situated in locations above the design levels of the development. It needs to be removed (about half) or relocated.

119. The language I have used of “likely contaminated” or “potentially or likely contaminated” is not a legal description of the material having regard to the POEO Act, but a simple description of the material, some of which may be actually contaminated and some of which may not. That is, some material when removed may not itself be contaminated, although it may be described more broadly as contaminated material because it is part of the whole of the material which does have contamination within it.

120. The imported material which is to remain on the site is to be made structurally sound to the extent it is not already so, and then “capped” with appropriate material depending on the location. It may be concrete, clean soil, aggregate materials or the like. The capping ensures that the contaminate does not return to the surface. There is also provision for gas collection from underground and the prevention of movement of leachate from the site.

121. Mr Norris (retained by the Applicant) and Mr Clay (retained by the Council) prepared three joint reports and gave short oral evidence.

122. In the first joint report filed 6 April 2021 Mr Clay identified the need for further investigation and was of the opinion that on the basis of the material then available it could not be said that the site was suitable or could be made suitable for the proposed use. Whilst not expressly disagreeing, Mr Norris suggested that conditions of consent could overcome any perceived shortcoming.

123. The experts concluded in para [7] nevertheless:

“It is agreed that the following consent condition would ensure the consent authority’s obligations under SEPP 55 are satisfied and that the site can be made suitable prior to the intended use:

Prior to the issue of an Occupation Certificate, a Section A site audit statement (SAS), completed by a NSW EPA accredited site auditor in accordance with the Contaminated Land Management Act 1997, is to be submitted to council and the EPA. The SAS is to state that the site is suitable for the intended purpose of the approval.”

124. It should be observed that whilst experts may conclude that the imposition of a condition of development consent resolves an issue, it is not necessarily so. The Court would still need to be satisfied that it is not deferring the consideration of a matter or failing to properly consider a relevant matter.

125. The second contamination joint report filed on 18 August 2021 had regard to the following additional information provided after leave was granted by the Court in June 2021:

“• Preliminary Site Investigation P1806774JR07V01 prepared by Martens and Associates Pty Ltd dated August 2020 [April 16, 2021]

• Detailed Site Investigation P1806774JR13V01 prepared by Martens and Associates Pty Ltd dated March 2021 [April 16, 2021]

• Asbestos Management Plan P1806774JR08V01 prepared by Martens and Associates Pty Ltd dated November 2020 [April 16, 2021]

• Unexpected Finds Protocol P1806774JC20V01 prepared by Martens and Associates Pty Ltd dated November 2020 [April 16, 2021]

• Development plans (amended list at item 15 of 16 April SMO) [April 16, 2021]

• Remedial Action Plan Proposed Depots & Transport Depot 285 Finns Road, Menangle, NSW by Martens and Associates P1806774JR14V01 dated April 2021 [April 16, 2021]

• Updated Supplementary Detailed Site Investigation: Proposed Depots and Transport Depot 285 Finns Road, Menangle, NSW Version P1806774JR16V01prepared by Martens and Associates Pty Ltd dated May 2021 [June 30, 2021]

• Updated Remedial Action Plan: Proposed Depots & Transport Depot 285 Finns Road, Menangle, NSW version P1806774JR14V03 prepared by Martens and Associates Pty Ltd dated June 2021 [June 30, 2021]”

126. The experts again considered the requirements of SEPP 55 and concluded:

“It is agreed that a Section B SAS approving the RAP and the subsequent auditing of remediation through to the provision of a Section A site audit statement prior to an occupation certificate being issued would resolve this issue. Mr Clay considers that the Section B SAS is required before the development application can be determined while Mr Norris considers it only necessary prior to Construction Certificate.”

127. Mr Clay said that because still further work is required and amendment to the RAP is also required then there is not confirmation that the site can be made suitable for the proposed use. Mr Norris says that there is presently sufficient information and that the site audit requirement is confirmation and can be provided prior to an occupation certificate being issued.

128. Notwithstanding the apparent disagreement, at para [13] of the second joint report the experts repeat the agreement recorded at para [7] of their first joint report which is set out at [123] above.

129. The contamination experts were asked to comment on particular (f) of contention 4 which asserted that the remediation will compromise future agricultural use. In the second joint report Mr Clay said:

“Creating a cell of asbestos contaminated material will render the site suitable for the proposed use only. It would not be suitable for any other use requiring consent including other forms of agriculture, without remediation and/or management.”

130. On the other hand, Mr Norris said:

“No element of the works proposed under the RAP would preclude the site’s future return to a range of agricultural uses such as the immediate prior use as a poultry farm. Similar, other intensive agricultural uses such as: intensive livestock and some intensive plant agriculture (such as green houses or hydroponics) would also be readily possible on the site provided necessary removal or renovation of sheds.

Agriculture is permissible with consent (WLEP RU2 Land use Table) – therefore a range of works would be required to achieve development consent and permit that redevelopment. The assessment and management of land contamination would be one of those considerations. The proposed capped asbestos on the site would need to be considered, but would not preclude a wide range of future ‘agricultural’ site uses”

131. In oral evidence the following exchange occurred:

“LANCASTER:    I may have misunderstood what you meant by "will render the site suitable for the proposed use only", by that you mean that if there were any future change in use, that would require some step or steps to be taken in terms of the management of the site; is that right?

WITNESS CLAY:    That's correct, yes.

LANCASTER:    You weren't suggesting by that opinion that only use as a depot would or could be the only use that could be undertaken on the site in the future?

WITNESS CLAY:    Anything that is accepted under the development application would be appropriate for the use, yeah, bearing in mind that any changes to that would have to go through the contaminated sites process, yes.

LANCASTER:    Just to be clear on what you're saying, it's right that you didn't sit down with the various permitted uses under the RU2 zone, isn't it?

WITNESS CLAY: Well, look, the Contaminated Land Management Act is relevant to approved use of the land and if the use of the land is approved and it fits within the requirement of the EMP, then that would be applicable, but under this context, this site would only ‑ because of the management measures ‑ the remediation and the management measures put in place would only be suitable for the proposed use.

ACTING COMMISSIONER:    Are there not other uses, Mr Clay, which would not involve removal of the capping of the asbestos contaminated material, be that a parking area for a funeral home or whatever else that might be in planning terms?  The key is it's a use which isn't to upset the soil capping which is part of this rehabilitation; is that right?

WITNESS CLAY:    So if the approved use is for parking or hard standing, then hard standing type use would be appropriate, yes.”

(Tcpt 15 September 2021 pp 11(47) – 12(28)

132. Mr Norris and Mr Clay prepared a third joint report filed 14 September 2021, after their consideration of the additional documents they described as “a Further Detailed Site Investigation, Remedial Action Plan, Site Audit Report and Site Audit Statement”. The whole of the joint report comprises the following agreement:

“5. The experts agree that contamination issues raised by the further material would be resolved by the following proposed condition of development consent:

Data gap investigation works at paragraph 2 of page 11 of SAS 384 (Section B issued by Rod Harwood on September 6, 2021) are to be undertaken and documented in a data gap closure report. A detailed plan for the classification of the 9,500 m3 of excess material to be removed from site is to be documented. This plan is to document the results of all waste classification works undertaken and to provide waste classification certificates for the material to be removed from site under the proposed works.

Any subsequent required modification to the site remedial action plan (RAP) is to be made and an amended RAP is to be produced. The amended RAP is to include full details of the ground gas validation measures to be implemented in light of the data gap closure works.

The data gap closure report and any required amended RAP are to be submitted to the site auditor and an auditor’s Interim Advice letter prepared certifying that the completed works satisfy the requirements of the SAS. The auditor’s Interim Advice is to be submitted with the data gap closure report and amended RAP to Council for approval.”

133. Although the Council submitted to the contrary, it appeared on its face that in light of the latest material provided, Mr Clay’s opinion had been modified and that it was not necessary for the additional investigative work to be carried out prior to the grant of development consent.

134. The witnesses gave oral evidence on this subject matter:

“LANCASTER:    Yes.  From item 1 and following [in the second joint report], you and Mr Norris included in the left‑hand column in answer to the particular issues for a number of these issues that a section V SAS [Site Audit Statement] approving the RAP would resolve the issue.  I take it that where that is indicated in your second joint report, there is no subsisting issue from your perspective now that there has been an SAS provided; is that right?

WITNESS CLAY:    I have some concerns about the site audit statement that has been provided, yes, in that it ‑ I don't think it fully ‑ it is a conditional site audit statement, so effectively, for the RAP to be effective, all the conditions need to be met which includes further investigation of the site and the requirement for an updated RAP or addendum RAP.

LANCASTER:    The conditions that you and Mr Norris have agreed in your most recent joint report have dealt with that from your perspective; is that right?

WITNESS CLAY:    Yes, they have.  Yes, yeah.”

(Tcpt 15 September 2021 pp 10(42) – 11(9))

“ACTING COMMISSIONER:    I now have the third joint report.  I was intrigued by the phrase "data gap closure report".  Is that just a further report addressing a matter which hadn't yet been addressed; is that what that means?

WITNESS NORRIS:    It's to address items, Commissioner, that have been identified in the site audit report and site audit statement which require or the auditor has said needs to be further investigated, so it's just to close those data ‑ they're referred to as "data", so it's simply a report detailing the results of that testing that's required by the auditor.

WITNESS CLAY:    Effectively, the site investigation has not been finished.  The remedial design is not entirely complete, but there are further investigative works required to allow the design to be complete.  It's not terribly far away from completion, but those works need to be done so that Mr Norris can finish and finalise his RAP, and then that finalised document can then be a conditioned document that has to be executed as part of this consent, and so until those works are finished, Mr Norris can't finish his RAP and effectively, the council doesn't know what is going ‑ what the final form of remediation is going to be until that happens.

ACTING COMMISSIONER:    Have I asked a question which has opened up something?

LANCASTER:    No.  I think, Mr Clay, you just expressed the opinion it's not too far away, so it truly is a matter of closing the remaining gaps; is that the position?

WITNESS CLAY:    I think so yeah.”

(Tcpt 15 September 2021 pp 12(32) – 13(8))

135. The Site Audit Statement (SAS) and Site Audit Report (SAR) were prepared by Mr R Harwood who is an accredited site auditor under the Contaminated Land Management Act 1997. There was no suggestion from the contamination experts, or the parties, that Mr Harwood’s opinions should not be accepted.

136. The paragraph of the SAS which is referred to in the condition agreed by the experts is in the following terms:

“Data gap investigations to further characterise the known site conditions are proposed and include: (1) near surface soil sampling for PFAS in the former poultry sheds to determine if the source of PFAS detections below the 95% protection criteria are attributed to a soil source; (2) an SAQP for further ground gas monitoring and pilot trials to determine a detailed design; and (3) installation of an additional groundwater monitoring well on the downgradient site boundary and completions of an additional sampling round and slug tests to determine permeability variations.”

[Note: PFAS is per- and polyfluoroalkyl substances, a group of more than 4000 chemicals.]

137. In the SAS Mr Harwood certifies that the nature and extent of the contamination has been appropriately determined, the investigation, remediation or management plan is appropriate for the purpose and that the site can be made suitable for the commercial/industrial use.

138. The SAR by Mr Harwood forms the basis and rationale for the conclusions in the SAS (SAR p10).

139. The executive summary of the SAR states at p12:

“…. the Auditor is satisfied that the site has been demonstrated through assessment that the vertical and lateral extent of contamination has been well defined and concludes the site may be made suitable for the proposed depot commercial/industrial land use if the Remedial Action Plan (Martens, 3 September 2021..) is followed, in addition to the Auditor’s recommendations in Section 12.3.

Accordingly, it is the Auditor’s conclusion that the site may be made suitable for the proposed use (depot) if the Remedial Action Plan is followed and the Auditor’s conditions in Section 12.3 are considered.”

140. The recommendations of the Auditor referred to above are set out in section 12.3 headed Audit Discussion at p 103 of the SAR:

“The Remedial Action Plan prepared by Martens (2021e), although not prepared strictly in accordance with NSW EPA (2020) was of sufficient quality to define the extent of remediation and ongoing monitoring required to show the site may be made suitable for the proposed land use.

In addition to the RAP, the Auditor considers the following should occur:

1.   Where movement of asbestos is proposed, validation of the haul route (where necessary) should be completed. For other areas of the site where ACM impacted fill is to be relocated, the Auditor has recommended that in addition to visual validation, sampling for laboratory analysis should also be completed to confirm the absence of ACM.

2.   The Auditor notes that in accordance with the Managing Asbestos in or on soil (WorkCover 2014) guidelines, for asbestos capped under 0.5m in landscaped areas, the material must be geotechnically suitable so that it is resistant to erosion over tome. For structural concrete ground slabs under the sheds, 0.5m is not required, as long as the hardstand has an MPa rating suitable to the proposed use and must comply with gas protection measures where required.

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.”

(Emphasis added)

206. More recently, in Jeffrey v Canterbury Bankstown Council [2021] NSWLEC 73 (Jeffrey), Preston CJ of LEC made the following observations with respect to BGP Properties and zone objectives:

“62 In this context, the objective of Zone R4 should be construed so as to promote the purpose of this threefold classification of development and the presumption that development for a purpose that is classified as being permitted with consent in the zone will be compatible with the objectives of the zone. This presumption applies to development for a purpose as a type of development, not to any proposed development for a particular purpose. This is a different point to what was said by McClellan CJ in BGP Properties at [117]-[118]. The points there being made were twofold. First, where by its zoning land is identified as generally suitable for a particular purpose, by development for that purpose being permitted with consent in the Land Use Table for the zone, weight must be given to that zoning. Planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted: [117].

63 This leads to an expectation, in most cases, that development consent will be granted to an application to use a site for a purpose for which it is zoned. But this general expectation is subject to the circumstances of the particular development for which consent is sought. This is the second point made in BGP Properties. The design of the particular development for that purpose should result in acceptable environmental impacts: at [118]. If it does not, there can be no expectation that consent will be granted to the development, notwithstanding that it is for a purpose that is permitted and consistent with the zoning.

64   The point I am making with respect to the construction of the objectives of a zone accords with the first point in BGP Properties and the second point does not arise. The classification in the Land Use Table for a zone of the purposes of development that are permitted with consent creates a presumption that development for any of those purposes is consistent with the objectives of the zone. If development for any of those purposes inherently is inconsistent with the objectives of the zone, it would not have been classified as being permitted with consent. For this inquiry, there is no warrant to look at the particular features of any proposed development for that purpose to ascertain whether the development is consistent with the objectives of the zone – the second point made in BGP Properties – because the inquiry is only concerned with the consistency of development for a purpose permitted with consent with the objectives of the zone.”

(Emphasis added)

207. This means that the land uses identified in the land use table for the RU2 Rural Landscape zone are assumed to be consistent with the objectives of the zone, subject to the specific design of the development. What follows from that proposition is that one or more depots, a permissible land use in the zone, are consistent with the zone objectives, subject to the design and any other impacts, even if it was the case that the depots had little or nothing to do with agriculture. (I should not be taken to suggest that consistency with zone objectives is required in this case. In Jeffery, the Court was dealing with an objection under cl 4.6 of the local environmental plan, where the decision maker must be satisfied there is consistency with the zone objectives. Having regard to the objectives of the zone is a lesser obligation.)

208. Whilst one must not ignore the strategic documents, including SREP 20, a consideration in such an instrument will not attract greater weight in my opinion than the weight to be given to the land use table in WLEP 2011 and the permissible uses in the R2 zone.

209. An observation should also be made about the physical context of the site itself. It presently has a series of sheds which housed chickens. They appear to be fairly typical rural sheds in appearance and their use not necessarily evident from external view. The site has not for some considerable time been a pasture or rolling hill which is otherwise a feature of the locality. That of course does not mean that it is not consistent with the rural character of the area. Development which includes such built form will be dotted around the area, it is when it is concentrated or otherwise impedes the enjoyment of the rural landscape where issues will arise.

210. An observation was made by Preston CJ when dealing with an application for a wind farm in Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd (2007) 161 LGERA 1, [2007] NSWLEC 59 at paragraph [116] and following which is apt:

“116 The insertion of windfarms into a rural landscape involves interrupting the rural and natural cohesion of that landscape.

……

124 It seems to me that the threshold question to be considered for such a proposal is whether or not a first “breach” in the present general landscape should be permitted. Once such a breach is permitted, it is then relevant to turn to whether or not the extent of it should be limited, as a general question, and also to turn to the question of the impacts on individual properties.

…..

127 The intrusion of a single industrial structure (being a turbine) into this rural landscape would undoubtedly change the nature of the landscape viewed from the village. However, I do not consider …. that a turbine (even with its industrial connotation) would be so antithetic to the landscape, generally, or to the outlook from village, specifically, as to warrant its rejection.

128 Having concluded that one turbine breaching the landscape would be acceptable, it is therefore appropriate to turn to the question of whether or not the totality of that which is proposed is acceptable or whether it should be modified in some fashion.”

211. His honour was first deciding whether one turbine was acceptable which of itself would have an impact on the rural landscape. Having decided that one was acceptable, the question became, how many were appropriate.

212. The observations are relevant because here there is an existing interruption to the bucolic rural landscape – the sheds and associated hard stand of the former chicken sheds. The question becomes primarily, what is the impact of the additional sheds in the landscape. If that impact is acceptable, and there are no unacceptable other impacts, then the application of the principles of BGP Properties and Jeffery would suggest that the proposed use is acceptable.

213. The photomontages produced by the Applicant were prepared in accordance with the Court’s practice note and are undoubtedly a useful tool to assess the visual impact of the development. There was an omission in one of the photomontages, but the site inspection enabled both a better appreciation of the proposal and to overcome the omission.

214. At the front of the site on there are no footpaths and pedestrian movement is likely to be virtually non-existent so that the only visibility from directly in front will be from motor vehicles passing the site. Nevertheless, it is important to understand that impact. The relevant photomontage is reproduced below:

215. There is the omission in this image of some new building form slightly above the existing red roof and to the right of the grey buildings which represent the two new sheds. The photomontages do not include the proposed landscaping.

216. In my opinion the additional visual impact of the proposal is very minor and will barely be understood or perceived even by a stationary viewer, let alone a passing motorist or passenger. The new sheds are over 200m away from the boundary and there is no material interruption of the view to the Razorback Range in the background. From this location the impact is acceptable.

217. To the east of the site at the corner of Finns Road and Dawsons Road the site is visible across a neighbouring paddock. The photomontage is reproduced below:

218. Again, in my opinion the impact is marginal at its highest. The additional sheds can be seen as part of a series of typical rural sheds against a treed background. There is no material impact on the rural character of the area and from this location the impact is acceptable.

219. On the site inspection I observed the site from the entry on Dawsons Road to the neighbouring property to the west and south of the site. I was also invited to consider the outlook from the residence which is to the west of the entry. The view is elevated, and the new sheds and hard stand areas will be visible. However, the outlook will be very similar to that which is available at present – rural sheds with some perimeter trees and other planting. Although it is not necessarily the case that the hard stand itself will be visible having regard to the line of sight and the landscaping which exists now, it is important that the surface of the hardstand be of earthy tones. The visual impact from this location and the dwelling is acceptable.

220. The site is also visible to motorists coming towards the site from the north west along Finns Road. There is an elevated view from a few hundred metres away before coming closer to the site when the view is more obscured by vegetation. That is a view which will be apparent as rural sheds together representing a form of enterprise, likely to be assumed having some rural connection, although that assumption is not necessarily important. The viewer will see the proposed development in the context of open fields or paddocks with scattered residences and vegetation with the backdrop of the Razorback Range. Whilst the sight of the sheds contrasts with the open fields, the appearance of sheds in the rural zone is not in itself unexpected and the additional two sheds will not be perceived as making any difference to the viewer approaching. That is, the impression of the outlook will be virtually the same with or without the additional sheds and hardstand areas.

221. I was taken on the site view to a location on Remembrance Driveway to the north-west of the site, just at a point shortly before one reaches the crest of the Razorback Range. The cars were parked in an available pull-over area further to the west and we walked back to where the site was visible. At this location Remembrance Drive is initially 2 lanes then 3 lanes - 2 lanes uphill and 1 lane downhill - with an 80kph speed limit.

222. There is an expansive view available from the side of the road, between stands of vegetation, but there is no designated public viewing location. The view encompasses the site, some hundreds of metres away, a small site within a patchwork of fields and paddocks, dwellings and sheds, amongst lines of vegetation and distant forest in the background. First, the view could be appreciated by motorists and their passengers for only a fleeting moment, with little capacity to even identify the site in passing. Second, the site will appear much as it is now – a series of sheds supporting a commercial endeavour in the rural environment. The visual impact from this location is acceptable.

223. There is no obligation for all the land in the R2 rural zone to be only fields and paddocks and rolling hills of green. The permissible uses in the zone make that plain. The site itself has not been a rolling hill of green for many years as the historical photographs provided by the planners attest.

224. In considering the visual impact I have taken into account the objectives of the zone as well as the objectives and considerations of Amendment 40. In particular, having regard to the analysis, I am satisfied that the rural landscape character of the land in the zone is maintained and the areas of cultural, heritage and scenic values are protected. I have previously noted that the proposal complies with the provisions of WDCP 2016 upon which the Council relies.

225. There is no visual interference with the upper slopes of the Razorback Range, the backdrop to the lower slopes is not affected.

226. Accordingly, I am of the view that the physical manifestation of the development is acceptable having regard to the planning and physical context of the site.

227. The facts concerning the Council’s contention that the consequence of the proposed development is an unacceptable “loss of agricultural land” must first be determined.

228. There is no doubt that the addition of two sheds and some more hard stand areas does not permit the grazing of livestock or the growing of crops, nor a fallow field. But that was not possible in any event. The complaint by Council can only be that there was an agricultural use as chicken growing which ceased and is not to be pursued again and that the proposed use is not a direct agricultural use. The Council also submits that the site is now sterilised for any future agricultural pursuit.

229. It must be noticed first that the identified users of the depots, recalling that the actual users must be identified for the purposes of the land use of depots, are likely supportive of agricultural or rural uses. One is an enterprise of carpentry and property maintenance, the other for general rural property maintenance. It is self-evident that agricultural and rural pursuits require services, including the types of services that the users of the depots will provide. It is not an anathema to agricultural pursuits for the services to those agricultural pursuits be also located within a rural zone.

230. The land use table of WLEP 2011 obviously makes it plain that uses other than pure agriculture may occur in the R2 zone. Uses as diverse as funeral homes, boat sheds and educational establishments are permissible uses in the R2 zone. One objective of the zone is to provide for a range of compatible land uses, which relates to the permissible uses in the land use table.

231. Clause 7.9 of WLEP 2011 (to be considered as a draft) speaks of taking into account whether the development “preserves land for agriculture, including by providing buffers”. The sub-clause appears to be more focussed on ensuring that a non-agricultural use does not impede any agricultural use from continuing. It cannot operate as a form of prohibition on a change of an agricultural use to a non-agriculture use because the clause is part of WLEP 2011 which permits non-agricultural uses in the R2 zone. It is a clause which requires consideration and cannot operate to prevent a permissible land use which otherwise dos not have any unacceptable environmental impacts.

232. It is also worthy of note that cl 7.9 applies to land within the “Metropolitan Rural Area” which is a vast area encompassing a range of zones and land uses, including rural towns and villages. And so the matters for consideration need to be assessed in the context of a much broader area rather than simply the site itself.

233. There are both agricultural pursuits and permissible non-agricultural pursuits which could be carried out on the site if the proposed use ceases. I do not accept the Council’s submission that the site is sterilised from any use other than the use proposed in this DA.

234. It must first be understood that the existence of the contaminated material does operate as a constraint to future development. The capping proposed should not be disturbed, or if it proposed to do so there will need to be geotechnical investigation into the site and a new RAP to cater for the new proposal.

235. The much more likely outcome is that a new development would not disturb the existing surface. The site can be used once more for chicken farming or intensive horticulture as obvious potential uses. Neither of those uses would involve any material earthworks, even if sheds needed to be replaced or renovated. Mr Clay’s evidence was not that the site was sterilised but that the contamination may need to be addressed again depending on the nature of the use. If the proposed hard stand areas remained as hard stand areas with a different use in the future, then he was of the view that the land was not sterilised.

236. There are any number of the permissible uses which are capable of being carried out on the site whilst maintaining the present landform, including rural industries or agricultural pursuits.

237. Clause 6(8)(a) of SREP 20 provides that a strategy is to “give priority to agricultural production in rural zones”. That strategy is one of a number of strategies designed to achieve the policy in cl 6(8) that:

Agriculture must be planned and managed to minimise adverse environmental impacts and be protected from adverse impacts of other forms of development.

238. The priority to agricultural production is in my opinion a priority when there are competing adjacent or nearby uses. That is, the policy relevantly is to protect agricultural production from the adverse impacts of other development by, amongst other things, prioritising agricultural production when there is a potential conflict with a non-agricultural use. It cannot mean that non-agricultural uses are to be prohibited.

239. Taking into account the planning controls, including the objectives of the zone, Amendment 40 and SREP 20 I am satisfied that the DA should not be refused because the site is not proposed to be used directly for agricultural purposes or that the future uses are constrained.

Outer Sydney Orbital

240. The Outer Sydney Orbital (Orbital) is a road which features in the Proposed State Environmental Planning Policy to Protect Western Sydney Corridors. The Council contends that the site is within the corridor for the Orbital and that the proposed development, because of the contamination and its remediation, will restrict or otherwise prevent the future use of the site for that infrastructure or otherwise impose additional costs to the delivery of the infrastructure.

241. The planners did not accept that proposition and nor do I.

242. First there is far from certainty that the Orbital will proceed as presently proposed or at all. Second, there is no evidence of what the supposed restriction, prevention or increased cost might be. The Court is effectively asked to assume that because the site is in the corridor there will be a problem or increased cost without any firm evidence to support the proposition.

243. Further, even if there is increased cost for the infrastructure that needs to be assessed having regard to the overall cost of the infrastructure. Consideration would also have to be given to whether the cost of acquisition of the land would reflect in any event the existence of the contamination and the consequences of the constraint on development, whilst not absolute, is likely to bear on the mind of the prudent purchaser.

244. Any impact on the Orbital is speculative at its highest and is not a reason for refusal.

Public Interest

245. The Council’s contention is that for the reasons encompassed by the other contentions the DA ought be refused. I have dealt with the contentions and found the development acceptable so there is no basis for refusing the development in the public interest.

246. I should add that I have read and considered the public submissions and taken them into account in dealing with the contentions. I understand the concerns of those who pointed to the earlier earthworks being carried out apparently in breach of environmental legislation.

Conditions

247. The parties have filed a document in which they identify the draft conditions which are in dispute, together with a brief comment or submission explaining their position on the condition in dispute.

248. I have determined what should occur in relation to the question of a licence under the POEO Act and will deal with the remaining matters.

Deferred commencement condition 1

249. The licence condition I have dealt with above and will be an ordinary condition.

Deferred commencement condition 2

250. This is an agreed condition in relation to the data gap investigations and amendment to the RAP.

251. This need only be an operative condition, but in order that there be no doubt, the compliance is to be prior to any work on the site other than the data gap investigation.

Deferred commencement condition 3

252. The condition requires the surrender of earlier consents and permits.

253. Whilst ordinarily there is not a need for the surrender of an existing consent where there is a change of use, here the landform has and will change and two sheds are to be erected. Accordingly, development in accordance with the existing consents (permits) is incapable of being carried out lawfully and so the consents should be surrendered. The continued existence and use of the existing sheds is authorised by the consent to be granted. The surrender need not be a deferred commencement condition but should occur prior to the commencement of works pursuant to this consent.

Deferred commencement condition 4

254. The consent dated 16 July 2021 from Subsidence Advisory NSW pursuant to s 22 of the Coal Mine Subsidence Compensation Act 2017 is an approval to “to alter or erect improvements”. The amendments made to the DA since the grant of the approval do not, as I understand it, relate in any material way to the improvements proposed in the DA. The condition is unnecessary.

Condition 7

255. The condition requires the removal of an existing diesel storage tank.

256. No contention was raised concerning the tank, noting that contentions can include contentions which can be dealt with as a condition of development consent. The RAP does not require its removal and so the condition will not be imposed.

Condition 17

257. The condition directs that the development be carried out in accordance with the approval under the Coal Mine Subsidence Compensation Act.

258. Whilst there can be an assumption that the Applicant will comply with the approval, the planning purpose in the imposition of the condition is that a failure to comply with such an approval can have an impact on the carrying out of the development in accordance with the development consent. Accordingly, the Council has an interest in ensuring there is compliance with the approval.

259. The condition should remain but refer to the approval dated 16 July 2021.

Condition 22

260. The condition will be amended to reflect the determination in relation to the data gap investigation and amended RAP.

Condition 69

261. This condition states that there shall be no servicing of the vehicles on site. The Applicant seeks to add the sentence – “Servicing of agricultural plant and machinery stored under Dept 2 is permitted.” Council opposes the additional sentence.

262. I accept that there is an element of servicing which is properly ancillary to the use of the site for the purposes of a depot. That ancillary servicing is however not to the extent as servicing would be in the phrase “parking or servicing of motor powered…” vehicles in the definition of transport depot in the Dictionary to WLEP 2011, which is an express use or purpose, as distinct from an ancillary use

263. I agree with the Council that simply permitting “servicing” is too broad and requires some qualification. I do not accept that there can be no servicing. The condition should read:

“There shall be no servicing of the vehicles on site other than minor servicing such as cleaning and changing oil of agricultural plant and machinery stored under Depot 2.”

Conclusion

264. For the foregoing reasons it is appropriate that development consent be granted subject to conditions.

265. The parties will need to redraft the conditions in accordance with these reasons and file the final conditions in the form capable of lodgement on the NSW Planning Portal. Upon doing so, if the conditions are satisfactory I will make orders in chambers.

266. I make the following direction:

1. The parties shall within 7 days file an agreed set of conditions in accordance with the reasons for judgment.

………………………..

P Clay

Acting Commissioner of the Court

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Decision last updated: 10 December 2021