Australia, June 12 -- New South Wales Land and Environment Court issued text of the following judgement on May 13:

1. On 1 November 2021, by their agent, Edwards Pension Fund Pty Ltd and Paul D Edwards Pty Limited (the appellants) lodged development application DA22/08000 (the DA) for "water extraction, storage and distribution off site" at lot 1 DP 867173 and lot 152 DP 751284, known as 2500 Canyonleigh Road, Canyonleigh (the site), with Wingecarribee Shire Council (Council).

2. The DA proposed the extraction of water from two existing approved licensed bores to an existing water storage tank, with a capacity of approximately 275,000L (the existing storage tank), approximately 20m south west of an existing shed. Water would then be transferred to an existing metal farm shed proposed to accommodate 4 x 50,000L stainless steel water storage tanks (the proposed internal storage tanks), a filtration system and pumping equipment. Trucks would access the site from an existing driveway crossing to transfer water from the proposed internal storage tanks into the water tankers for despatch to remote bottling facilities.

3. On 11 October 2022, Council refused the DA.

4. On 30 March 2023, the appellants filed a Class 1 application appealing Council's decision to refuse the DA. Between 28 and 30 November 2023, Commissioner Gray (the Commissioner) heard the appeal. On 12 April 2024, in Edwards Pension Fund Pty Ltd v Wingecarribee Shire Council [1] (the primary judgment) at [74], the Commissioner made orders dismissing the appeal, and that:

2) The development application DA22/0800 for carrying out of works and use of the site at Lot 1 DP 867173 and Lot 152 DP 751284 for the extraction, piping, filtration, storage and transport of groundwater is determined by refusal.

5. In their summons filed 9 May 2024, the appellants appealed the primary judgment pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act) on seven grounds.

Grounds of appeal

6. The appellants' seven grounds of appeal were as follows (although at the hearing on 6 August 2024, Mr Lazarus SC for the appellants submitted that if the Court decided for the appellants on Ground 1, it would not be necessary to consider Grounds 2 to 7):

1) The first ground was that the Commissioner erred in law by finding as a matter of characterisation that the proposed development met the definition of "light industry" and was therefore prohibited on land zoned C3 Environmental Management (C3) under the Wingecarribee Local Environmental Plan 2010 (NSW) (WLEP), and not a "water reticulation system" which was permissible with consent on any land pursuant to s 2.161 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW) (SEPP (T&I)), or a "water storage facility" which was a nominated permissible use on land zoned C3 under the WLEP (at [42]-[62] of the primary judgment).

2) The second ground was that the Commissioner erred in law by misconstruing the definition of "water storage facility" in the WLEP, misdirecting herself or asking the wrong question in concluding that "storage" did not exclude "temporary" storage, but did exclude "transient" storage (at [45] and [49]-[51] of the primary judgment).

3) The third ground was that the Commissioner erred in law by finding without evidence that:

a) any storage of water within the proposed system would be transient or brief (at [49], [50] and [51] of the primary judgment); and

b) the storage tanks had minimal or insufficient reserve capacity (at [49] and [50] of the primary judgment).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196c17125dff6bb85c9bbd05)

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