Case note: Muscat Developments Pty Ltd v Wollondilly Shire Council [2025] NSWLEC 1493

Background

Sometime in 2020 or 2021, asbestos contaminated fill was placed on Muscat Developments’ land without development consent. In response, Wollondilly Shire Council (Council) brought Class 4 proceedings against Muscat Developments regarding the unlawful fill. These proceedings were settled by consent orders which noted that the applicant in these proceedings had lodged a DA which sought to retain and rework the unauthorised fill. If development consent was not obtained, the unlawful fill would need to be removed.

As Council did not determine the development application within the requisite timeframe, Muscat Developments appealed to the Court the deemed refusal of their development application. The appeal was first heard by Bish C who dismissed the appeal. That decision was then appealed to a judge of the Court (Preston CJ) who determined some errors of law were made by Bish C and that the matter be remitted to a different Commissioner.

Commissioner Targett was then tasked with re-hearing and determining the appeal.

Section 4.6(1)(b) of the RH SEPP

The first question Commissioner Targett needed to answer was whether the subject land would be suitable for its intended use after the remediation in accordance with s 4.6(1)(b) of the RH SEPP. The intended use included using the mounds as a separation barrier between existing poultry farm and dwellings.

The suitability of the land following remediation was generally a question answered by the evidence of the party’s contamination experts. Targett C found that s 4.6(1)(b) does not require the consent authority to be satisfied that the most practical or desirable remediation approach is adopted, only that the remediation would cause, to the consent authority’s satisfaction, the land to be suitable for its purpose. This meant that it was not relevant if a proposed remediation approach was costly, difficult or labour intensive or if an alternative strategy is available.

Targett C noted that in addition, s 4.6(1)(c) requires remediation to be carried out before the land is used for that purpose. Targett C considered the consent conditions agreed between the parties and proposed amendments to the wording to ensure this would occur.

In evaluating the remediation action plan, Targett C found she was satisfied that the remediation of the contamination would render the land suitable for its purpose of forming a barrier to screen the poultry farm.

Section 4.10(1) of the RH SEPP

Another question Targett C needed to answer was whether there would be a more significant risk of harm to human health or the environment from the carrying out of the proposed development than for the use of the land (in the absence of the development) for any purpose for which it may lawfully be used.

Targett C recalled that “for any purpose for which it may lawfully be used” had been interpreted in the Preston CJ decision as excluding unlawful uses even if those uses could be reguarlised through a development application in the future. This required Targett C to consider the use of the land as if the unauthorised fill had not been placed on it.

Considering this, Targett C found there was a higher risk of harm from carrying out the remediation works than continuing the poultry farm use absent the unlawful fill that has been applied to the land. This meant that the Commissioner was not required to automatically grant consent, but must continue to consider the proposed remediation of land works on their merits.

Other merits considerations

In light of her findings in relation to the provisions of the RH SEPP, it was then for Targett C to consider grounds required by the Wollondilly Local Environmental Plan 2011 and the Environmental Planning and Assessment Act 1979 (EP&A Act).

In a submission that Targett C described as “extraordinary”, Muscat Developments argued that it was relevant to the public interest under s 4.15(1)(e) of the EP&A Act that failure to approve the development would mean that Muscat Developments would be unable to comply with the Court orders to remove the fill, as the cost would be prohibitive and lead to the liquidation of Muscat Developments. Targett C rejected that the costs of the applicant were relevant to any consideration under s 4.15(1) of the EP&A Act and that the threatened non-compliance should be given no weight, noting that Muscat Developments had agreed to the orders by consent.

Placing this aside, Targett C found that on the merits, including having regard to its permissibility under the relevant zoning, the remediation strategy proposed, the human health risks and the visual impacts of the works, development consent could be granted. As such the appeal was upheld and development consent was granted.

Conclusion

This decision gives good illustrative guidance on how the requirements of the RH SEPP as they apply to remediation works may be applied by a consent authority.

Please contact our Environment and Planning team if you would like further information about how this case law update might impact your particular situation.