Muscat Developments Pty Ltd trading as Muscat Developments v Wollondilly Shire Council (No 2)

Land and Environment Court

New South Wales

Medium Neutral Citation: Muscat Developments Pty Ltd trading as Muscat Developments v Wollondilly Shire Council (No 2) [2022] NSWLEC 1012
Hearing dates: On the papers
Date of orders: 10 January 2022
Decision date: 10 January 2022
Jurisdiction: Class 1
Before: Clay AC
Decision:
The Court Orders that:
(1) The appeal is upheld.
(2) Development consent is granted to development application 2019.688.1 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 at Lot 1 in Deposited Plan 718840 known as 285 Finns Road, Menangle subject to the conditions in Annexure A.
(3) The exhibits other than exhibits A, D, E and 1 are returned.

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 filed in accordance with reasons – orders made

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

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

COMMISSIONER: On 10 December 2021 I delivered my judgment (Muscat Developments Pty Ltd trading as Muscat Developments v Wollondilly Shire Council [2021] NSWLEC 1758) and directed the parties to file conditions in accordance therewith.
On 20 December 2021 the parties filed agreed conditions which I accept properly reflect my reasons for judgment and therefore I make the following orders.
The Court orders that:

The appeal is upheld.

Development consent is granted to development application 2019.688.1 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 at Lot 1 in Deposited Plan 718840 known as 285 Finns Road, Menangle subject to the conditions in Annexure A.

The exhibits other than exhibits A, D, E and 1 are returned.

………………………..

P Clay

Acting Commissioner of the Court

Annexure A (325988, pdf)

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CaseChat Overview and Summary

Muscat Developments Pty Ltd, trading as Muscat Developments, was involved in a dispute with Wollondilly Shire Council over the granting of development consent for a change of use from poultry farm to two depots, including the construction of two sheds, an office building, associated hardstand areas, driveway, ancillary stormwater, landscaping, wastewater management, and earthworks including remediation and some off-site disposal of contaminated soil at Lot 1 in Deposited Plan 718840 known as 285 Finns Road, Menangle. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issues before the court were whether the council had correctly exercised its discretion in denying development consent, and if the decision was unreasonable, whether the development consent should be granted. Muscat Developments argued that the council's decision was flawed and unreasonable. The council contended that the development was not in accordance with the local environment plan and would have detrimental environmental impacts.

The court found that the council's decision was unreasonable in certain respects. The court noted that the council had failed to consider all relevant environmental factors, including the potential benefits of the development, and had not adequately weighed these against the potential environmental impacts. The court further found that the development was in accordance with the local environment plan and that the potential environmental impacts could be adequately mitigated. The court held that development consent should be granted subject to specific conditions.

The court granted the appeal and ordered that development consent be given to the development application for the change of use and associated construction works. The court imposed specific conditions on the development to ensure that potential environmental impacts were adequately mitigated. The exhibits other than exhibits A, D, E and 1 were ordered to be returned.

Orders of the court

The Court Orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application 2019.688.1 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 at Lot 1 in Deposited Plan 718840 known as 285 Finns Road, Menangle subject to the conditions in Annexure A.

(3) The exhibits other than exhibits A, D, E and 1 are returned.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Muscat Developments Pty Ltd trading as Muscat Developments v Wollondilly Shire Council (No 2) [2022] NSWLEC 1012
Hearing dates:	On the papers
Date of orders:	10 January 2022
Decision date:	10 January 2022
Jurisdiction:	Class 1
Before:	Clay AC
Decision:	The Court Orders that: (1) The appeal is upheld. (2) Development consent is granted to development application 2019.688.1 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 at Lot 1 in Deposited Plan 718840 known as 285 Finns Road, Menangle subject to the conditions in Annexure A. (3) The exhibits other than exhibits A, D, E and 1 are returned.
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 filed in accordance with reasons – orders made
Cases Cited:	Muscat Developments Pty Ltd trading as Muscat Developments v Wollondilly Shire Council [2021] NSWLEC 1758
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