Muscat Developments Pty Ltd v Wollondilly Shire Council

[2022] NSWLEC 1663

Land and Environment Court

New South Wales

Medium Neutral Citation:

Muscat Developments Pty Ltd v Wollondilly Shire Council [2022] NSWLEC 1663

Hearing dates:

17-19 October 2022

Date of orders:

01 December 2022

Decision date:

01 December 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The Applicant is granted leave to amend the application to rely on the documents listed under condition B(2) of the conditions of consent at Annexure A.

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(3) The appeal is upheld.

(4) Development Application No. 2022/465/1 for a new equestrian centre and the use of various road works, at 115 Mount View Close, Razorback, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

(5) The exhibits, other than 1, A, C and E, are returned.

Catchwords:

DEVELOPMENT APPLICATION – equestrian centre and associated works and use of roads – contamination – excavation and earthworks – scale of the development

Legislation Cited:

Contaminated Land Management Act 1997 s 60

Environmental Planning and Assessment Act 1979 ss 4.46, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021 cl 37

Protection of the Environment Operations Act 1997 s 144AB

State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6

Wollondilly Local Environmental Plan 2011cll 1.3, 7.5

Cases Cited:

Muscat Developments Pty Ltd v Wollondilly Shire Council [2021] NSWLEC 1738

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

Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160

Texts Cited:

Building Code of Australia

Wollondilly Development Control Plan 2016

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
A Galasso SC with J Smith (Applicant)
M Astill (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/192754

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2022/465/1 for a new equestrian centre and use of various roads (the proposal), at 115 Mount View Close, Razorback (the site), by Wollondilly Shire Council (the Council).

The application is amended

2. The Applicant, by Notice of Motion heard on 17 October 2022, sought to amend the application to rely on an amended proposal. The motion was unopposed and granted, subject to the Applicant paying the Council’s costs thrown away as a result of the amendment, as agreed or assessed, pursuant to s 8.15(3) of the EPA Act.

3. The amended application was lodged on the NSW planning portal on 19 October 2022 pursuant to cl 37(2) of the Environmental Planning and Assessment Regulation 2021.

Background

4. The Applicant submitted that the proposal is the same proposal for an equestrian centre as one of the applications refused by the Court in Muscat Developments Pty Ltd v Wollondilly Shire Council [2021] NSWLEC 1738. The Applicant’s bundle (Ex B) included the Commissioner’s judgment, the joint report in the matter prepared by the same contamination experts, and part of the transcript of the hearing.

5. On 13 October 2022, the Court made orders by consent regarding the site (the Consent Orders). The orders resulted in the granting of an easement to facilitate access to the proposed equestrian centre from Remembrance Drive (Proceedings No. 2021/63126), the discontinuation of proceedings regarding trespass (Proceedings No. 2020/200416), and civil enforcement orders regarding road works and the importation of fill to the site undertaken by the Applicant (Proceedings No. 2020/142714).

6. The roads on the site are to be constructed pursuant to the Consent Orders. The Consent Orders permit the recycled glass sand (RGS) on the site to be used as a road base material for the purpose of constructing the road as detailed in the plan at Attachment B to the Consent Orders.

7. Following the making of the Consent Orders, two related matters (to be heard together with this matter) were discontinued, as follows:

• File numbers 2021/358049 Muscat Developments Pty Ltd v Wollondilly Shire Council (appeal against the Council’s refusal of DA 2021/955/1 for demolition of existing culverts and retaining structures forming an existing crossing structure over Racecourse Creek, and a new crossing structure in the same location, on the site, and removal of 15 trees).

• File number 2021/358073 Muscat Developments Pty Ltd v Wollondilly Shire Council (appeal against the Council’s refusal of DA 2021/953/1 for demolition of existing culverts and retaining structures forming an existing crossing structure over Racecourse Creek on the site).

Issues

8. The Council’s contentions can be summarised as:

• The site is contaminated by fill containing asbestos. The land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out. The Court, exercising the functions of the consent authority, cannot be satisfied that the Remediation Action Plan (RAP) will result in the land being made suitable for the purpose for which the development is proposed to be carried out, pursuant to cl 4.6(1)(c) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards).

• The Court, exercising the functions of the consent authority, would not grant development consent to a development which proposed the reuse or recycling of asbestos waste, which is an offence under the Protection of the Environment Operations Act 1997 (POEO Act).

• The application proposes works and facilities of a greater scale than the stated scope of the proposal, which is an equestrian centre for 40 horses on the site.

• The earthworks proposed would have unacceptable impacts on the site and surrounding land, and so the site is fundamentally unsuitable for the proposal.

• The proposal is not in the public interest.

9. A number of the Council’s contentions pleaded in the Statement of Facts and Contentions (Ex 1) have been resolved or are otherwise rectified through the Consent Orders and the conditions of consent.

The site and its context

10. The is legally identified as Lot 5 in DP 260390.

11. The site has an area of approximately 48.65 hectares. The site rises from the lower southern portion of the site to the elevated land on the northern portion of the site. The site is vegetated.

12. The site has two access points, from Mount View Close and from Remembrance Drive.

13. The site contains a single dwelling and outbuildings, and a large shed.

14. To the south of the site and adjoining the southern access to the site is the Antill Park Country Gold Club. Rural properties adjoin the site to the north, east and west.

Arial view of the site, outlined in red, taken from Ex 1.

The proposal

15. The proposal includes the following works:

• New equestrian centre, consisting of a vehicle shed, a storage shed, two stable barns, two round yards, a walker, horse yards and a riding arena (Ex E);

• Ancillary landscaping and remediation, and extensive proposed revegetation through the implementation of the Vegetation Management Plan (VMP) (Ex F); and

• The use of roads which are to be constructed pursuant to the Consent Orders made by the Court on 13 October 2022 in the civil enforcement proceedings 2020/142714.

16. The equestrian centre is to be primarily accessed from Remembrance Drive, with a secondary access from Mount View Close.

17. The parties agreed that the proposed stable building is classified as 7b under the provisions of Part A6 of the Building Code of Australia (BCA) (Ex D).

Planning framework

Section 144AAB of the POEO Act is in the following terms:

144AAB Re-use and recycling of asbestos waste prohibited

A person must not cause or permit asbestos waste in any form to be re-used or recycled…

Clause 4.6(1) of SEPP Resilience and Hazards is in the following terms:

4.6 Contamination and remediation to be considered in determining development application

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

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

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

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

The site is zoned partly C4 Environmental Living and partly RU2 Rural Landscape under the Wollondilly Local Environmental Plan 2011 (LEP 2011). The proposed equestrian centre is wholly located on the part of the site zoned RU2 Rural Landscape.

Recreation facilities (outdoor) is a nominate permissible use in the RU2 zone. Recreation facility (outdoor) is defined by the dictionary of LEP 2011 as:

recreation facility (outdoor) means a building or place (other than a recreation area) used predominantly for outdoor recreation, whether or not operated for the purposes of gain, including a golf course, golf driving range, mini-golf centre, tennis court, paint-ball centre, lawn bowling green, outdoor swimming pool, equestrian centre, skate board ramp, go-kart track, rifle range, water-ski centre or any other building or place of a like character used for outdoor recreation (including any ancillary buildings), but does not include an entertainment facility or a recreation facility (major). [emphasis added]

Roads are a nominate permissible use in both the C4 and RU2 zones.

The proposal is permissible with consent.

The objectives of the RU2 zone, to which regard must be had, are:

• 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.

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

The objectives of the C3 zone are:

• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

• To provide for a limited range of development that does not have an adverse effect on those values.

• To maintain existing significant stands of native vegetation and wildlife corridors.

• To ensure land degradation and soil disturbance are minimised.

• To support the health and well-being of residents, workers and visitors by providing opportunities for people to engage with nature.

Clause 7.5 of LEP 2011 is in the following terms:

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…

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

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

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

The Wollondilly Development Control Plan 2016 (DCP 2016) applies to the site at Part 1, 1.1.

The “Specific Land Use Controls”, at Volume 8, Part 3 of DCP 2016, includes the following regard “farm buildings”, at 3.5:

3.5.1 Siting and Design

Objectives

(b) To ensure that farm buildings are sited to minimise the visual impact on the amenity of the rural landscape.

3.5.2 Bulk and scale

Objectives

(b) To ensure the size of the buildings relate to its intended use, the size of the property and dominant land use.

Controls

3. The maximum size of a farm building in zones RU1 Primary Production, RU2 Rural Landscape and RU4 Primary Production Small Lots must not exceed 500m², unless the Applicant can justify additional size is required to undertake the principle [sic] land use. The Applicant must also specify the additional measures to be taken to minimise the impact of the farm building on the amenity of neighbouring land uses.

18. Farm building is not defined in DCP 2016, under cl 1.3 Farm building and agriculture are defined under LEP 2011 as:

farm building means a structure the use of which is ancillary to an agricultural use of the landholding on which it is situated and includes a hay shed, stock holding yard, machinery shed, shearing shed, silo, storage tank, outbuilding or the like, but does not include a dwelling.

agriculture means any of the following—

(a) aquaculture,

(b) extensive agriculture,

(c) intensive livestock agriculture,

(d) intensive plant agriculture.

Expert evidence

The Applicant relied on the expert evidence of James Lovell (planning) and Andrew Norris (contamination).

The Council relied on the expert evidence of Scott Barwick (planning) and Jason Clay (contamination). Mr Clay prepared an expert report (Ex 3).

The experts prepared joint reports, contamination (Ex 4), engineering (Ex 5) and planning (Ex 6), and the contamination and planning experts gave oral evidence.

Consideration

Contamination

The parties agreed that the site is contaminated by fill containing asbestos and that the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out.

The Council contends that a flawed and incomplete assessment of the contamination on the site has been carried out, with the consequence that the Court could not be satisfied of the matters that it is required to be satisfied about under cl 4.6 of SEPP Resilience and Hazards.

The Council further contends that the application proposes the reuse and recycling of asbestos waste, being an activity that is prohibited under the POEO Act.

Whether the Court can be satisfied that the land will be remediated before the land is used for the purpose for the development is proposed to be carried out

According to Mr Norris, a Remedial Action Plan (RAP) prepared by Martens Consulting Engineers and dated July 2021 (Ex A, tab 24) was prepared to detail how the site is to be made suitable for the proposal. The RAP is based on the findings of the Detailed Site Investigation (DSI). The DSI identifies six phases of investigation comprising 226 test pits, 52 bore holes and six groundwater monitoring wells (Muscat Developments Pty Ltd v Wollondilly Shire Council [2021] NSWLEC 1738 at [120]). The DSI concludes that areas of the site, including the proposed location of the development, are contaminated with asbestos contaminated fill material (Ex A, tab 24, p 15). The RAP, in summary, proposes encapsulation of contaminated material beneath an appropriately designed capping layer and development of a long-term Environmental Management Plan (LTEMP).

The RAP proposes to excavate approximately 1,200m3 of material in Remediation Area 1, and to cap the material in Remediation Area 2 (Muscat Developments Pty Ltd v Wollondilly Shire Council [2021] NSWLEC 1738 at 145]). The RAP was the subject of a site audit prepared by an accredited site auditor, which resulted in the issue of a Section B Site Audit Statement (SAS) and an associated report (SAR) (Ex G) for the site. The SAS certifies that the site can be made suitable by implementing the RAP and conditions described in the SAS.

The contaminated material at the site, containing asbestos fines/friable asbestos (AF/FA), was notified to the Environment Protection Authority (EPA), by the site auditor on 2 August 2021 under s 60 of the Contaminated Land Management Act 1997 (Ex 4, tab F). Following the receipt of the notification on 25 August 2021, the EPA determined that the contamination at the site does not warrant regulation under the Contamination Land Management Act 1997, because the risk to human health associated with AF/FA contamination outside of the site is considered to be low and acceptable based on the location of the site in a rural area, and the potential exposure to intrusive maintenance works can be managed through appropriate work health and safety procedures (Ex 4, tab D).

Mr Clay has carried out his own testing and assessment to identify the extent of asbestos contamination on the site (Ex 3). Mr Clay is critical of the DSI, the RAP and the SAS.

According to Mr Clay, the SAS is deficient on a number of grounds (Ex 3, p 2). I accept Mr Norris’ response regarding those identified deficiencies (Ex 3, pp 5-6). I accept the agreement of the civil engineering experts (Ex 5) that the concept civil engineering plans are adequate and that the Council’s contentions regarding engineering are addressed by the proposal and conditions of consent.

According to Mr Clay, the vast majority of the asbestos on the site is a different sort of asbestos than AF/FA, and that contaminated material is not addressed by the EPA in the letter (Ex 4, tab D). In response, Mr Norris said that the EPA was provided with the DSI and the RAP by the site auditor, and so the EPA has not responded in ignorance of the actual contamination on the land, instead, the EPA had all the information necessary to fully consider the contaminated material on the site. In addition, Mr Norris noted that AF/FA is much more hazardous and hence the requirement for notification of AF/FA under the Contaminated Land Management Act 1997. Mr Clay agreed that the risk arising from the non-friable asbestos is much lower than the risk to human health from AF/FA.

According to Mr Norris, the Court can be reasonably satisfied that the land is able to be made suitable for the proposal, on the bases of the RAP and SAS. The conditions of consent impose a requirement that the land is certified as remediated and suitable for the proposal prior to the issue of an occupation certificate, ensuring that the site will be remediated before the land is used for the purpose for which the development is proposed to be carried out.

I accept the parties’ agreement that pursuant to cl 4.6(1)(a) of SEPP Resilience and Hazards, the site on which the development is proposed is contaminated and the land requires remediation to be made suitable for the proposal. It is a jurisdictional threshold pursuant to cl 4.6(1)(c) of SEPP Resilience and Hazard that I must be satisfied that the land will be remediated before the land is used for the purpose for which the development is proposed to be carried out.

I accept and prefer Mr Norris’ evidence. I am satisfied by the DSI, RAP and SAS supporting the application that the site can be remediated and will be suitable thereafter for use as an equestrian centre with roads. The imposition of conditions F.5 and F.8 on the consent ensures that the site will be remediated to be made suitable for the proposal in accordance with the RAP and the SAS and conditions, and certified as such by a Section A2 SAS, prior to the issue of any occupation certificate.

Re-use and recycling of asbestos waste which is an offence under the POEO Act

The Applicant submitted that this issue was pleaded by the Council in Muscat Developments Pty Ltd v Wollondilly Shire Council [2021] NSWLEC 1758 and rejected by Clay AC, at [170]-[183], as follows:

170 The Council argues that the development is in breach of s 144AAB of the POEO Act which is the following terms:

[s 144AAB of the POEO Act quoted]

171 Asbestos and asbestos waste are defined in the Dictionary and Schedule 1 to the POEO Act respectively as follows:

Asbestos means the fibrous form of those mineral silicates that belong to the serpentine or amphibole groups of rock-forming minerals, including actinolite, amosite (brown asbestos), anthophyllite, chrysotile (white asbestos), crocidolite (blue asbestos) and tremolite.

Asbestos wase means any waste that contains asbestos.

172 There is no issue that the development includes the re-working of asbestos waste and that asbestos waste will remain on the site, albeit remediated and capped, effectively as a base for hard stand of various descriptions or part of the base for landscaping works.

173 The Council argues that the development therefore includes the re-use of asbestos waste contrary to s 144AAB of the POEO Act. The simple meaning of the word “re-use” is to use again or more than once, and so what is proposed is re-use.

174 Council then says that it is not in the public interest for development consent to be granted to carry out development which is otherwise unlawful. It is not entirely clear if the Council argues that if a condition is imposed requiring an EPL prior to the carrying out of work then it accepts that development consent can be granted, which it argues in relation to another provision of the POEO Act to which I will come.

175 The Applicant submits, correctly, that the term “re-use” must be considered in its context. It is part of the phrase “re-used or recycled” which confirms, the Applicant says, that the section is directed to preventing activities that involve some sort of advantageous second use of the asbestos waste. Remediating and capping imported fill which includes asbestos-containing material is not a “re-use” of asbestos waste within the meaning of the section the Applicant submits. If it were not so, then every remediation project in respect of asbestos containing land would involve the commission of a criminal offence. An enactment which imposes a criminal liability would not be read so broadly the Applicant further submits.

176 I agree with the Applicant. The proper meaning of “re-used” takes its colour from its immediate and broader context within the POEO Act. In its immediate context I accept the Applicant’s argument that the section is directed to advantageous second use of the asbestos waste, rather than its remediation. It is true that here the asbestos waste is being “used” in that a consequence of its remediation is a change in the landform of the site, but the development is properly characterised as including the remediation of the asbestos waste.

177 It would appear to be the case that any remediation of asbestos waste by the common method of “capping” will inevitably involve the change in landform of the site at which it is disposed and so could be said to be “used” or “re-used”. I accept the Applicant’s submission that the legislature could not have intended that remediation in those circumstances would result in the commission of an offence.

178 In any event the Council accepted that the Court has power to grant a development consent the carrying out of which may be in breach of another law citing McDougall v Warringah Shire Council (1993) 30 NSWLR 258, but it submitted that the potential breach is a relevant consideration in determining whether to grant consent. That may well be the case as a matter of public interest, but here, even if I was satisfied that the carrying out of the development would result in a breach of s 144AAB of the POEO Act, I would not decline to grant consent.

179 It is accepted that the bringing onto the land of the waste material, including the asbestos waste, was unlawful. That is the foundation of any subsequent potentially unlawful activity. The environmental consequences of that unlawful act must be dealt with, and in this case are sought by the Applicant to be dealt with by the grant of development consent to this DA. If the waste is being dealt with in an environmentally acceptable manner, then it seems to me it is not in the public interest to refuse the DA.

180 To the extent that the Council submission refers to the “re-use” of any waste which is not being re-worked, then any “re-use” has already occurred. I do not consider that the placement of capping on waste material which is to remain in situ constitutes the “re-use” of that material.

181 The Council position carries with it the hint of taking into account the prior unlawful activity, which it agrees ought not be done, or a form of specific and general deterrence or discouragement to the Applicant and others who may consider bring contaminated material onto a site.

182 The province of punishment and deterrence are for the criminal law and in this case not determinative of the DA.

183 A further reason I would not decline to grant consent in the public interest is that it appears inevitable that an EPL will be required pursuant to s 48 of the POEO Act for the Applicant to carry out the remediation, as the Council submits. I will set out the reasons for that conclusion below. In those circumstances the regulator has the capacity to both approve the work and ensure it is carried out in accordance with any EPL granted. It would be an odd outcome to refuse to grant development consent to a proposal which includes the remediation of the site and which will be licensed under the POEO Act in order to carry it out.

I respectfully adopt Clay AC’s reasoning and his findings at [175]-[176] and [179]-[180]. I am satisfied that the proposal to manage the contaminated material onsite is not prohibited under the POEO Act.

As the Applicant chose not to nominate the application as integrated development (s 4.46(1A) of the EPA Act), the parties agreed on a condition of consent requiring the Applicant to obtain an environmental protection licence (EPL) from the EPA under the POEO Act, or confirmation from the EPA that an EPL is not required, prior to the carrying out of any earthworks (condition D.12(1) of the conditions of consent at Annexure A).

Excavation

The Council submitted, in summary:

• The application proposes significant earthworks to level what is essentially a sloping site, and in doing so, the application quite clearly seeks to maximise the amount of earthworks to be undertaken.

• The extent of earthworks proposed is a matter going to the Court’s jurisdiction to determine the application, under cl 7.5 of LEP 2011.

• For the reasons given by Mr Clay, the Court would not be satisfied as to the quality of the fill – the fill is asbestos waste.

• The Court would not be satisfied that the proposal has been designed so as to minimise the extent of earthworks. The application makes no attempt to do so because the fill material has been imported to the site already (unlawfully, without any approval) and the purpose of the application is to obtain development consent for the retention of this unlawfully imported material.

The Applicant submitted, in summary:

• The Applicant is not seeking consent to ‘regularise’ any alleged unlawful past work, or any form of ‘retrospective’ development consent.

• The quality of fill and excavated material within the site has been assessed in the DSI report and has been found to be suitable for the intended purpose subject to the implementation of the remediation works as described in the RAP and approved by the SAS.

• The proposal will use existing onsite material with no importation of fill material, other than road base, landscaping, and horse arena construction material. The excess material shall be waste classified in accordance with the NSW EPA guidelines and disposed of to an appropriately licenced waste facility.

It is a jurisdictional threshold pursuant to cl 7.5(3) of LEP 2011 that I must consider the quality of the fill or the soil to be excavated, or both, and the source of any fill material and the destination of any excavated material.

I accept and prefer the Applicant’s submissions. I have considered the quality of the fill to be excavated and used to create a level area for the equestrian centre and for the reasons set out above at [40], together with the proposed landscaping and revegetation, I am satisfied that the earthworks proposed, for which consent is required, will not have a detrimental impact on environmental functions and processes, neighbouring uses or features of the surrounding land.

Scale of the proposal

The proposal is for a maximum of 40 horses (Statement of Environmental Effects at 3.2.1 Ex A, tab 13).

The Council submitted that the scale of the proposal lacks any rational justification.

Mr Barwick relied on the “farm building” controls under “Specific Land Use Controls”, at Volume 8, Part 3, 3.5 of DCP 2016, “the maximum size of a farm building in zones… RU2 Rural Landscape… must not exceed 500m², unless the Applicant can justify additional size is required to undertake the principle [sic] land use”. According to Mr Barwick, the proposal exceeds the control by 528%.

19. The Council submitted that Volume 8 of DCP 2016 states, “This Volume provides controls for the development and use of land for the purposes of primary agricultural or rural land uses and any development ancillary to those uses and forms part of the Wollondilly Development Control Plan 2016” [emphasis added] and as an equestrian centre is a rural land use, the Court would consider the objectives of 3.5.1. Furthermore, leaving aside the question of whether an equestrian centre is definitionally an ‘agricultural use of the landholding’ it should not be seriously in dispute that the stables, barns, and vehicle sheds proposed on the site are ‘the like’ of a hay shed, machinery shed, shearing shed, or other farm outbuilding. Regardless of whether the buildings proposed on the site are strictly to be used for the purposes of a farm, it is clear that they are of ‘the like’ of such buildings in terms of their form and presentation.

I accept and prefer the Applicant’s submissions, which can be summarised as:

• Once a determination of permissibility is made by categorising a purpose, the fact that it may also fall within another purpose is legally irrelevant (Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160 at 5).

• The provisions under “farm buildings” in Volume 8, Part 3 of DCP 2016 has no application to the proposal, nor is it “appropriate to be guided” by those provisions in the assessment of an equestrian centre.

20. The provisions regarding farm buildings in Volume 8, Part 3, 3.5 Farm buildings, 3.5.2 Bulk and scale apply to farm buildings, as defined by the dictionary of LEP 2011. Farm building means a structure the use of which is ancillary to an agricultural use of the landholding. The proposal is for an equestrian centre, which is a different use to an agricultural use; it is an “recreation centre (outdoor)” as defined by the dictionary of LEP 2011. The stables, vehicle shed, and storage shed are structures that, together with the riding arena and horse yards, comprise the equestrian centre. Those structures are not ancillary to an agricultural use.

21. The provisions under “farm buildings” in DCP 2016 have no application to the proposal.

22. According to Mr Barwick, the horse float car parking capacity is for 20 floats, and a typical float can accommodate 2 horses, as so the float car parking potential alone could accommodate the maximum of 40 horses on the site. Mr Barwick’s criticism of the scale of the proposal is that the brief requires an essentially level platform, and this is driving the extent of cut and fill.

23. I am satisfied that the proposal is for a maximum of 40 horses by the imposition of condition B(2) which refers to the Operation Plan of Management (as the Operation Plan of Management cites a maximum of 40 horses on the site, at 2.1 (Ex A, tab 12)).

Conclusion

24. I am satisfied by the DSI, RAP and SAS supporting the application that the site can be remediated and will be suitable thereafter for use as an equestrian centre with roads. The imposition of conditions on the consent ensures that the site will be remediated to be made suitable for the proposal in accordance with the RAP and the SAS and conditions, and certified as such by a Section A2 SAS, prior to the issue of any occupation certificate.

The proposal to manage the contaminated material onsite is not prohibited under the POEO Act.

I am satisfied, based on all the evidence before me, that the accommodation proposed for the equestrian centre is appropriate to its purpose and size, and consistent with the rural character of the area.

Orders

The orders of the Court are:

The Applicant is granted leave to amend the application to rely on the documents listed under condition B(2) of the conditions of consent at Annexure A.

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

The appeal is upheld.

Development Application No. 2022/465/1 for a new equestrian centre and the use of various road works, at 115 Mount View Close, Razorback, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

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

____________

Susan O’Neill

Commissioner of the Court

**********

Annexure A

Decision last updated: 01 December 2022