Ballina Island Developments Pty Ltd v Ballina Shire Council

Land and Environment Court (NSW)|2023-12-11

Solicitors: Colin Biggers & Paisley (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/215110; 2022/187078 Publication restriction: Nil

Background

A short commute from Ballina town centre and Ballina airport, on land legally described as Lot 1 in DP 517111, and known as 20 North Creek Road, Lennox Head the Council has granted consent for the development of a large residential subdivision under DA 2018/51 and DA 2020/284.

DA 2018/51 obtained on 27 August 2020 approved the residential subdivision of the site to create 99 residential lots and five super lots subject to future development (99-lot consent). Figure 1 Subdivision plan of DA 2018/51
DA 2020/284 obtained on 21 December 2020 approved the residential subdivision of residual lot 102 (Super Lot 102) in DA 2018/51 to create 17 residential lot and one super lot (17-lot consent). Figure 2 Subdivision plan of DA 2020/284

Although generally vacant the site does support two significant ecological communities being an area of littoral rainforest growing in the central portion and an extensive area of freshwater wetland habitat located along the western boundary.
Both vegetation communities are listed as Endangered Ecological Communities (EECs) pursuant to the Biodiversity Conservation Act 2016 (BC Act). Littoral rainforest is also listed as an EEC pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Consultation with the Office of Water in relation to DA 2018/51 confirmed there is also a first order creek located within the southern portion running east to west. General terms of approval (GTAs) were issued by the Office of Water including the piping of the creek.
The impacts on the EECs have been assessed and approved under DA 2018/51 subject to the effective implementation of the conditions of consent particularly 57, 58, 60 and 61 under DA 2018/51.
The conditions also refer to the obtaining of approval under s 68 of the Local Government Act 1993 (LG Act) for drainage, sewerage and essential infrastructure works prior to, or concurrently with, the development of the site. There is also a reference in the conditions for approval for any works under s 138 of the Roads Act 1993 (Roads Act).
This judgment arises following the Council's refusal or deemed refusal of the applicant's applications under s 68 of the LG Act and s 138 of the Roads Act. It concerns the following Class 2 appeals: 1. Proceedings no. 2022/187078 is an appeal under s 176 (by virtue of s 105) of the LG Act, from the Council's deemed refusal of the applicant's application under s 68 of the LG Act seeking approval for stormwater, sewer and water infrastructure within Super Lot 102 approved on 21 December 2020 under development consent no. DA 2020/284 within existing Lot 1 in DP 517111, being part of the property known as 20 North Creek Road, Lennox Head; (relating to the 17-lot consent) 2. Proceedings no. 2022/215110 is an appeal under s 176 (by virtue of s 105) of the LG Act from the Council's deemed refusal of the applicant's application under s 68 of the LG Act, and purportedly from a s138 application under the Roads Act, seeking approval for stormwater, sewer, water and road infrastructure within or near existing Lot 1 in DP 517111, which was created following the grant of development consent no. DA 2018/51 by the Council on 27 August 2020; (relating to the 99-lot consent)
A third appeal (proceedings no. 2022/215090), made under s 8.7 (by virtue of s 8.11) of the Environmental Planning and Assessment Act 1979 (EPA Act) from the Council's deemed refusal of a development application in respect of Lot 1 in DP 517111 for the creation of seven new residential lots; the redesign of 10 Torrens title lots approved in development consent no. DA 2018/51; and the redesign of seven Torrens title lots approved in development consent no. DA 2020/284 listed to be heard with the Class 2 appeals was not agitated and discontinued at the hearing.
It is to be noted that the Council accepts that the proposed water supply and sewerage works in the applicant's s68 applications are satisfactory and compliant with the requirements of the LG Act. At issue is the proposed stormwater and drainage works. The Council contending, in the absence of compliance with the conditions of consent of development consent no. DA 2018/51 imposed under the EPA Act, that the Court cannot approve the applicant's s68 applications.
In particular, the Council raises issue with the following matters: 1. Impact on the freshwater wetland EEC of the stormwater drainage works in the s68 applications - 1. The Council contending that the "activities" the subject of the s68 applications in each appeal, do not ensure that there will not be an inappropriate impact on the freshwater wetland EEC and those "activities" do not comply with the conditions of development consent under DA 2018/51 that were imposed to protect that wetland. The Council contending that the Court is required to refuse the s68 applications in each case as a result of this issue, but that it would do so on the merits in any event (whether or not the Court accepts it must refuse the proposal as a result of the issue); 1. Non-compliance with stormwater management standards - 1. The Council contending that the stormwater drainage works the subject of the s68 applications in each appeal do not comply with certain stormwater management standards with which respectively condition 21 of DA 2020/284 and condition 15 of DA 2018/51 require those applications to comply. Albeit, the Council concedes that the applicant could rectify the Council's concern if the proposed road verge swales are replaced with kerb and gutters in each case. However, as the plans before me are for roadside swales with check dams, the s68 applications should be refused as a result of this issue because roadside swales with check dams are not an appropriate design in a residential context. (It is to be noted that the applicant has declined to make such an amendment); 1. Consistency of the "activity" in the 17-lot appeal with broader works and the "activities" for the 99-lot consent - 1. The Council contending that the infrastructure with which Super Lot 102 needs to interconnect, and the finished works adjacent to Super Lot 102, remain uncertain until a subdivision works certificate is issued for the development the subject of the 99-lot subdivision; 2. The Council contending that the Court should refuse the s68 application in the 17-lot subdivision as a result of this issue; and 1. No power to determine s138 Roads Act application - 1. The Council takes issue with the Court's power to determine the s138 Roads Act application. The Council contending that the Court has no jurisdiction to determine the s138 Roads Act application as part of the s68 appeal for the 99-lot subdivision as there is no statutory merits appeal from refusal or deemed refusal of such an application. While the Council uses a combined form for those applications, it submits that there is no other basis on which the Court's jurisdiction is attached to determine that application in the context of the deemed refusal of the s68 application.

The hearing

The hearing of these proceedings was conducted in Court over an extended period. In lieu of a Court view, the Court watched drone footage of the site and its environs (Ex A).
As the Council identifies, while some amendments to the subject matter of these appeals was allowed in the hearing, there remains a number of outstanding proposals for amendments to the application documents or documents accompanying the applications arising from the expert reports and evidence of the applicant's consultants.

Amending the s68 applications

In closing, the applicant invited me to accept into evidence the amended Wetland Monitoring and Adaptive Management Plan (WMAMP) and Wetland Management Plan (WMP) marked Annexure B to the applicant's closing written submissions dated 11 December 2023 (ACWS), subject to further minor editing that it submitted may be required, for example, in order to record the frank concessions of Mr McCann (the applicant's ecologist) in cross-examination (ACWS at par 101).
These revised reports are submitted in satisfaction of the conditions of the consents, and prior to the issue of any approval by the Court under s 68 of the LG Act for the proposed drainage works. In accepting these amended reports, it is to be noted that the power to amend a s68 application is specific and dealt with by s 87 of the LG Act which provides: 87 Amendment of applications (1) An applicant, at any time before the application is determined, may make a minor amendment to the application and may amend any matter accompanying the application. (2) The making of a minor amendment does not require the application to be further notified to anyone. (3) For the purposes of section 105, the application is taken not to have been made until the amendment is made.
I am mindful that under the section there is only power to make minor amendments to the application, with a broader power for amendment of accompanying material prior to a determination. Outside of that power to amend, it appears that there is no power for the Court to entertain any amended application: AQC Dartbrook Pty Ltd v Minister for Planning and Public Spaces (2021) 15 NSWLR 152; [2021] NSWCA 112 at [227].
For that reason, the section precludes me from approving part of the applicant's s68 applications as that would amount to an amendment that is more than minor before a determination. In particular, the proposed water supply and sewerage work which are accepted by the Council and if I was so minded.

Statutory framework

Before addressing the primary issue of jurisdiction, I set out below some of the relevant provisions of the legislative framework as identified in the Amended Statement of Facts and Contentions (ASOFC) and Reply (ASOFC in Reply).
Section 68(1) of the LG Act addresses "activities" that require the approval of the Council (now the Court) and provides as follows: (1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval.
Part B of the Table to s 68 provides: Part B Water supply, sewerage and stormwater drainage work 1 Carry out water supply work 2 Draw water from a council water supply or a standpipe or sell water so drawn 3 Install, alter, disconnect or remove a meter connected to a service pipe 4 Carry out sewerage work 5 Carry out stormwater drainage work 6 Connect a private drain or sewer with a public drain or sewer under the control of a council or with a drain or sewer which connects with such a public drain or sewer
Applications for the purpose of s 68 of the LG Act are to be made to Council (s 75) by the person proposing to carry out the activity (s 78(1)) and must be made by the owner of the land (or with the consent of the owner of the land) to which the application applies (s 78(2)) in the approved form (s 79). An application may relate to (s 76):

the whole or part of an activity
the whole or any part of land on which the activity is proposed to be carried out
more than one activity.

The Dictionary, with s 3 of the LG Act, defines "approved form" as: (a) the form prescribed by the regulations for the purposes of the provision in relation to which the expression is used, or (b) if no such form is prescribed, the form (if any) approved by the Director-General for the purposes of the provision in relation to which the expression is used, or © if no such form is prescribed and no form is approved by the Director-General, the form approved by the council for the purposes of the provision in relation to which the expression is used.
The s68 application relating to the 99-lot proceedings on the NSW planning portal (the portal) is made by "Aaron Chandler" of Impact Group for the following "activities": "#Carry out sewerage work #Carry out stormwater drainage work #Carry out water supply work #Connect a private drain or sewer with a public drain or sewer under the control of Council or with a drain or sewer, which connects to a public drain or sewer #Draw water from a Council water supply or a standpipe or selling water drawn #Install, alter, disconnect or remove a meter connected to a council provided water service pipe"
The "Application for Approval Under Section 68 of the Local Government Act and 138 Roads Act 1993" form in the 99-lot proceedings indicates that the proposed approvals are: "• Carry out water supply work; • Carry out sewerage work; • Carry out stormwater drainage work; • Install, alter disconnect or remove a meter connected to a service pipe; • Draw water from a Council water supply or a standpipe or selling water so drawn; • Connect private property to Council sewerage system; and • Approval under Section 138 of the Roads Act 1993"
There is no application form in the 17-lot proceedings. The application was made by an email dated 18 May 2021. Nonetheless, the Council is prepared to accept that this is a procedural irregularity rather than a jurisdictional one.
The applicant's SOFC in the 17-lot proceedings indicates that the application is intended to be for stormwater, water supply and sewerage works. The Council invite further clarification of these "activities" and the applicant gave that detail in its closing written submissions in the table at par 275.
Relevantly, s 89(1) of the LG Act sets out specific matters for consideration in the evaluation of a s68 application and provides: 89 Matters for consideration (1) In determining an application, the council - (a) must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation, and (b) must take into consideration any criteria in a local policy adopted under Part 3 by the council which are relevant to the subject-matter of the application, a©(c) must take into consideration the principles of ecologically sustainable development.
As there is no relevant Council Part 3 policy, the Council submits that s 89(1) requires a consideration of the principles of ecologically sustainable development (ESD) (as defined in s 3 of the LG Act), and the matters prescribed in any relevant regulation in connection with the "activities" in the s68 applications. In that regard, cl 15 of the Local Government (General) Regulation 2021 (LG Reg) mandates certain consideration for the purpose of s 89(1)(a) of the LG Act in respect to the s68 applications. 15 Matters to be considered when determining applications for water supply, sewerage and stormwater drainage approvals: (1) This section applies to the following activities - (a) carrying out water supply work, (b) drawing water from the council water supply or a standpipe (c) installing, altering, disconnecting or removing a water meter connected to a service pipe, (d) carrying out sewerage work, (e) carrying out stormwater drainage work. (2) In determining an application for the purposes of section 68 of the Act for an approval to do any of the activities to which this section applies, the council must have regard to the following considerations - (a) the protection and promotion of public health, (b) the protection of the environment, (c) the safety of its employees, (d) the safeguarding of its assets, (e) any other matter that it considers to be relevant in the circumstances.
It is to be noted that subcl 15(1) does not explicitly reference "connect a private drain or sewer with a public drain or sewer under the control of a council or with a drain or sewer which connect with such a public drain or sewer" - which is a separate category under the Table to s 68 of the LG Act from the other activities in subcl 15(1) of the LG Reg. Nonetheless, the Council submits that the reference to "carrying out sewerage work" in subcl 15(1)(d) can be construed to encompass both "carrying out sewerage work" and "connect a private drain or sewer with a public drain or sewer..." under s 68 of the LG Act. Given that the Council has assessed the sewerage works (including interconnection) as complying with the requirements of the LG Act, I do not need to express a view as to whether subss 89(2) and (3) of the LG Act or cl 15 of the LG Reg is the source of the relevant considerations in order to accept that they are relevantly compliant. The same cannot be said for the proposed stormwater drainage works in these proceedings, they are as indicated in heated dispute.
Clause 15(2) of the LG Reg sets out relevant considerations that the Court must take into account when determining a s68 application. Relevantly, in the context of the proposed stormwater drainage in this case the Council identifies: the principles of ESD (as defined in s 3 of the LG Act and Dictionary); protection of the environment; and any other matter that the Court considers relevant in the circumstances (Council's closing written submissions dated 11 December 2023 (CCWS) at par 31).
Clause 13 of the LG Reg contains jurisdictional prerequisites to the granting of the s68 applications, and importantly, links compliance with applicable standards and development consents.
Shortly stated, the Court needs to be satisfied that the proposed "activities", relevantly the stormwater drainage works in dispute, will comply with any applicable standards or requirements referred to in Pt 2 of Sch 1, and with any other applicable standards or requirements set out or referred to in this Regulation. This includes the requirements in Pt 1 of Sch 1 in relation to water supply, sewerage and stormwater drainage works. It is to be noted that the state of satisfaction referred in the clause is a jurisdictional precondition - being a jurisdictional fact of a "special kind" requiring the Court form the requisite opinion of satisfaction such as to enliven the power for the grant of a s68 approval: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118; Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; (2018) 233 LGERA 170; [2018] NSWCA 245).
Although the Council does not contend that the requirements in Pt 2 of Sch 1 are not met, it is to be noted that the Court needs to form its own opinion that the activity as proposed to be carried out will comply with any other applicable standards or requirements set out or referred to in this Regulation.
Clause 16 of the LG Reg, also called up by s 89(1)(a) of the LG Act, requires (pursuant to s 98(2) of the LG Act) the imposition of a stormwater drainage work condition that ensures compliance with applicable standards in Pt 2 of Sch 1 and with any other applicable standards or requirements set out or referred to in this Regulation or any other regulation under the LG Act or the EPA Act. It provides: 16 Approvals for stormwater drainage work to be subject to a condition requiring compliance with standards and requirements It is a condition of an approval allowing stormwater drainage work that - (a) the activity approved, and (b) any building or work associated or carried out in connection with the activity, complies with any applicable standards set out or referred to in Part 2 of Schedule 1 and with any other applicable standards or requirements set out or referred to in this Regulation or any other regulation under the Act or the Environmental Planning and Assessment Act 1979. (Emphasis added)
Given that the prescribed condition must be imposed on the grant of a s68 approval, the Council submits that this requirement is also relevant to the determination of the s68 applications because: 1. the requirement in cl 16 of the LG Reg is one of the "other applicable standards or requirements referred to in this Regulation" within the meaning of cl 13 of the LG Reg, such that the Court must be satisfied that the activity will comply with the requirement in cl 16 as a prerequisite to the grant of approval. Clause 13 is directed to ensuring that the decision maker can be satisfied such requirements will be met at the time of the decision, while cl 16 itself is directed to ensuring that these requirements are in fact met on an ongoing basis; 2. separate from the jurisdictional requirement in cl 13 of the LG Reg, it would be unreasonable for a decision maker to grant approval to the s68 applications, in accord with cl 16 of LG Reg, if it is apparent at the time the application for approval is determined that the proposal will not comply with a mandatory condition that the LG Act requires to be imposed on that approval; 3. if the effect of the mandatory condition in cl 16 of the LG Reg is to leave open the possibility that works carried out in accordance with the approval and that condition will be significantly different from the works for which the s68 application was made (in this case, if the stormwater management works applied for do not comply with cl 16 but will be required to comply with that clause once consent is granted), then the decision maker has not granted consent to the application made: Mison v Randwick Municipal Council (1919) 23 NSWLR 734 at 737B per Priestley JA. (CCWS p 11 at par 37)
Expressed differently, the Council contends that cl 16 of the LG Reg on its proper construction, comprises three different types of applicable standards or requirements that must be complied with, separated by the "or" namely: complies … with any applicable standards set out or referred to in: (i) this Regulation, or (ii) any other regulation under the Act, or (iii) the Environmental Planning and Assessment Act 1979.
Therefore, the Council submits that cl 16 makes compliance with applicable standards or requirements set out in the EPA Act a condition of the s68 approval for stormwater drainage (see CCWS at p 12 par 39(a), (b), (c) and (d)). This construction it is submitted, ensures consistency between any s68 approval and the EPA Act requirements for those works; thereby assisting to ensure that a s68 application cannot ignore the requirements for those works under the EPA Act.
And, where development consent was required and obtained for the development, it is a requirement of the EPA Act that the development be carried out in accordance with the development consent and the instrument. The Council submits that the criminal offence under s 4.2 of the EPA Act carries with it a requirement to carry out development in accordance with the development consent obtained and in force. This requirement to comply with a development consent being a requirement within the meaning of cl 16 of the LG Reg in turn is one of the requirement set out or referred to in this Regulation within the meaning of cl 13 of the LG Reg.
In this case, the development consents contain conditions that are relevant to the stormwater drainage works as proposed in the s68 applications. These conditions by their terms require the satisfaction of the Council prior to the issue of an approval under s 68 of the LG Act (Contention 1(j) (99-lot appeal) and Contention 1(d) (17-lot appeal)).
Accordingly, by force of cll 13 and 16 of the LG Reg and s 4.2 of the EPA Act, the Council submits that I must not approve the s68 applications allowing stormwater drainage work where the "activities" proposed to be carried out will not comply with the requirements of a development consent. Put simply, the Council contends that the Court has no jurisdiction to grant the s68 approvals because conditions 57, 58, 60 and 61 of the conditions of consent for DA 2018/51, that require satisfaction of the Council, have not been satisfied.
Against that background I am relieved to record that the applicant agrees that the jurisdiction contention arises in relation to each of condition 57, 58 and 60 in the DA 2018/51, which are also relevant for the DA 2020/284. In respect to condition 61, the bond, the applicant submits that it will be lodged with the Council in accordance with the terms of the condition upon confirmation that the Court be minded to grant approval to the applications.
Conditions 58, 60 and 57 of the DA 2018/51 consent state: "58. Wetland Monitoring and Adaptive Management Plan (WMAMP) Prior to the issue of an approval under Section 68 of the Local Government Act 1993 for the proposed drainage work the proponent shall prepare a Wetland Monitoring and Adaptive Management Plan (WMAMP) to the satisfaction of Council. The objective of the plan shall be to monitor the health of the Freshwater Wetland EEC and associated hydrology over time to assess whether or not the development is resulting in material adverse changes to the health and composition of the wetland. The WMAMP must include a range of remedial actions to address the ecological decline of the wetland resulting from the development in the event such decline occurs. The WMAMP is to be prepared by a Council approved specialist wetland ecologist with at least 5 years experience in wetland ecology and monitoring. Monitoring of the ecology shall be undertaken in accordance with the Biodiversity Assessment Method (OEH 2017) to determine a Vegetation Integrity Score (VIS). A VIS baseline calculation shall be undertaken prior to any works commencing at the site and subsequent VIS assessments undertaken annually for a period until five years after the registration of the plan of subdivision for the 90th residential lot. The WHMAMP is required to have direct linkage to the results of the hydrological monitoring program as revealed in the report titled "Wetland Hydrological Monitoring and Management Plan (WHMMP)" prepared by Gilbert and Sutherland and dated April 2020 and as amended by conditions of this consent. Outside of any major climatic event, an adaptive management regime is to be implemented if any or all of the following scenarios occur: • the development results in a 10% or greater change in either or both surface and/or groundwater levels when compared to the predevelopment baseline levels • for the first two years of the monitoring program the VIS scores associated with the monitoring program record a decline of 10% or greater when compared to the baseline VIS scores • the VIS scores decline by 10% or greater when compared to the previous 12 month monitoring period." (Emphasis added, Ex 7) "60. Revised Wetland Management Plan Prior to the issue of an approval under Section 68 of the Local Government Act 1993 for the proposed drainage work, the submitted "Wetland Management Plan" prepared by JWA Pty Ltd dated 19 February 2020, is to be amended to the satisfaction of Council to address the following matters: a) Section 1 is to be modified to confirm the Section 88b Instrument will state that the ownership and maintenance of the restoration area either is dedicated to Council or is attached to a residential allotment within the subdivision and that it will be managed and protected in perpetuity. b) A timetable for the implementation of all revegetation, rehabilitation and weed control works linked to the staging of the development. c) The WMP including all maps are to remove all references to the construction of the Council drainage network located in the northwest corner of Residual Lot 104. d) Figure 5 Category 2 of the legend is to replace "natural regeneration" with "assisted regeneration". e) Figure 5 Category 6 is to be removed. f) Figure 5 is to be updated to show the location of the exclusion fencing. g) Section 3.3 is to modify what actions will be implemented if the range of identified risks eventuate. h) Section 4.3 is to be modified to comply with Sections 4.5.5. i) Section 4.3 is to be modified to confirm the "maintenance period" commences immediately after the 12 month "establishment period". The "maintenance period" will be undertaken by the development for a period until five years after the registration of the plan of subdivision for the 90th residential lot. j) Section 4.3 is to be modified to state weed control works will be undertaken as required. k) Section 4.4.3 is to be modified to state that all erosion and sediment measures will be established outside of the management areas. l) Section 4.4.4 is to be modified to state all construction plans will depict the location of the management areas and exclusion fencing will be erected around all areas subject to the plan. m) Section 4.6.2 is to be revised to state that Phase 1 will be completed within two months of the earthworks being completed. n) Phase 6 of Section 4.6.2 is to be modified to be consistent with the maintenance period for the project being until a period of five years after the registration of the plan of subdivision for the 90th residential lot. o) Section 4.6.3 is to [be] modified to include a cane toad monitoring and control program. p) Section 4.6.3 and Table 3 are to be modified to confirm all rainforest trees will be planted at 1.8m spacings. q) Section 4.6.4 is to be modified to comply with the planting models detailed in Table 3 of the document titled "Subtropical Rainforest Restoration - A practical manual and data source for Landscape groups, land managers and rainforest regenerators (Third Addition). r) Section 4.7 is to be consistent with the maintenance period for the project being until after the registration of the plan of subdivision for the 90th residential lot. s) Section 5 dot point 6 is to be revised to delete the references to the "2 year maintenance period or the site becomes self-sustaining, vehicle tracks. Dot point 6(d) is to be deleted. t) Section 5 is to be revised to confirm that if the performance criteria is not achieved within the restoration period, the Developer will extend the restoration project until the performance criteria are achieved or forfeit the Freshwater Wetland Bond. In this regard, all forested areas are to achieve a 90% native vegetation canopy coverage within a minimum five year period. All wetland areas are to achieve a 90% native coverage. All vegetation stratas are to be free of all environmental and noxious weeds. u) Identify contingency plans should the proposed revegetation works not respond to proposed treatment works. v) All references to "should" throughout the WMP are to be replaced with "will". w) Section 6.3 is to be revised to include the provision of monitoring reports to be provided to Council's Planning and Environmental Health Division (PEHD). x) Confirmation that all restoration work shall be undertaken by or overseen by a qualified bush regenerator. The bush regenerator must hold the Bushland Regeneration Certificate II or equivalent and have a minimum of two years' experience regenerating floodplain communities. y) Outline of all future management actions the owner of the wetland will be required to undertake in perpetuity to maintain the ecological condition of the restored restoration area." (Emphasis added, Ex 7) "57. Protection of Freshwater Wetland EEC To reduce the impact to the Freshwater Wetland EEC located on Residual Lot 104 and to ensure excavation works associated with the installation and operation of the stormwater network and swale system do not affect the existing surface and groundwater hydrology the following mitigation measures are to be implemented: a) All works associated with the construction of the drainage basins, swale system and stormwater infrastructure are restricted to areas depicted in the "Earthworks Cut and Fill Plan Stage 1A Enabling Works" (Revision 8) prepared by Mott McDonald and dated 13.08.2020. Consequently, no further construction works will be permitted within the Freshwater Wetland EEC. b) Works within the area depicted as 'SW1' are to be avoided or minimised where possible. Should any works be necessary in 'SW1', construction design details and rationale for these works in this area are to be provided to Council. Any works to be carried out within this area are to be undertaken in accordance with a construction management plan to minimise impact on the wetland. At the completion of the construction phase, the 'SW1' area is to be rehabilitated in accordance with the actions in the approved Wetland Management Plan. c) To reduce the footprint of Drainage Basin 2 all batters associated with the bioretention basin that will reduce the footprint in the wetland are to be steepened to 1:4. The modified drainage basin is to be moved landward away from the Freshwater Wetland. The resulting gain in space may be used for construction works and then rehabilitated in accordance with the actions of the approved Wetland Management Plan. d) The existing seepage area depicted in Figure 8 of the Revised Ecological Assessment (Volume 1) prepared by JWA Pty Ltd and dated 19 February 2020 is to be retained as a subsurface drainage structure. Within this area, the existing natural topography and flow paths are to be retained through the placement of suitably sized boulders and/or rocks encased by geotextile or the like. e) Measures implemented during construction and operation to prevent groundwater and surface waters of the wetland system draining into subsurface gravel material and/or the constructed swale system. The baseline hydrological monitoring is to be used to inform this design. f) Ensure all construction plans will depict the location of the management areas and exclusion fencing will be erected around all areas subject to the plan. Prior to [the] issue of an approval under Section 68 of the Local Government Act 1993 for the proposed drainage work, revised construction plans and reports depicting compliance with the above mitigation strategies are to be submitted to the satisfaction of Council." (Emphasis added, Ex 7)
Relevantly, each condition is predicated by the direction that "Prior to the issue of an approval under Section 68 of the Local Government Act 1993 for the proposed drainage work…" the applicant is to submit a WMAMP to the satisfaction of Council; attend to the amendment of the submitted WMP prepared by JWA Pty Ltd dated 19 February 2020 to the satisfaction of Council and revise construction plans and reports depicting compliance with the specified mitigation strategies to the satisfaction of Council.
The Council contends that the language in conditions 58, 60 and 57 is clear. It requires that the Council be satisfied with the identified updated plans and reports for the purpose of its function under the EPA Act by the time the applicant takes the next step of obtaining approval for the stormwater drainage works under the LG Act. And, as condition 6 of DA 2020/284 requires compliance with the environmental protection measures established and set out in the Notice of Determination for DA 2018/51, there is the requirement for compliance with the conditions 57, 58, 59, 60, 71, 79, 81 and 109 of DA 2018/51 (as is relevant) before the grant of the s68 application for DA 2020/284.
In the absence of compliance with the conditions of consent of DA 2018/51 imposed under the EPA Act and the Regulations for the reasons outlined, the Council submits that my hands are tied. I simply have no power to approve the s68 applications before the Court.

Section 39(2) of the Land and Environment Court Act 1979 (Court Act)

The applicant submits that compliance with the above conditions of the consents is necessary, albeit not determinative of the grant of the s68 approvals which must be separately assessed.
To overcome the jurisdictional issue raised by the Council, the applicant contends that s 39(2) places the Court in the shoes of the Council at the time an application is lodged. As such, it submits that the Court can exercise all the functions and discretions of the Council in relation to the satisfaction of the Council as required by conditions 57, 58 and 60 in order to facilitate the further assessment of the s68 applications under the LGA.
In making that submission, the applicant relies on the construction of s39(2) accepted by the Court of Appeal in Kogarah Municipal Council v Kent (1981) 46 LGRA 334 wherein Reynolds J at 336 stated "…the language of s 39(2) … is wide and clear and to me it means, … that the Court could do whatever the council could do to dispose of the appeal". The applicant also relies upon the reasoning in Goldberg v Waverley Council (2007) 156 LGERA 27; [2007] NSWLEC 259 (Goldberg) and the observations of Kirby P in McDougall v Warringah Shire Council (1993) 30 NSWLR 258 at 264 to submit that s 39(2) intended that the Land and Environment Court of NSW (LEC): "be placed fully in the shoes of [the] council at the time an application is lodged … The result of this interpretation is that all the functions and discretions the council could have exercised when considering the application are open to the [Court] on appeal and not only those strictly necessary to the approval."
It also submits that the Court should embrace the decision of the Court of Appeal in Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; [1999] NSWCA 399 (Codlea) at [12]-[16], as a complete answer, favourable to the applicant on jurisdiction. In short, the submission is that the Court cannot determine whether prior adequate arrangements had been made but the question of whether the Council is satisfied about that matter is something that the Court could stand in the shoes of the Council in relation to the satisfaction component of conditions 57, 58 and 60 (Tcpt, 11 December 2023, pp 351(35)-352(20)).
The decision of Codlea concerned an appeal from a decision of the LEC in respect of a Class 1 development appeal seeking consent for the subdivision of land. At [25] the judgment records that the question of law was one of construction of cl 45 of the Byron Local Environmental Plan 1988 (BLEP 1988), and the power of the Court under s 39(2) of the Court Act to exercise a function of the Council under cl 45. To determine whether the Court can exercise that function under cl 45 of BLEP 1988 the Court of Appeal judgment identified that it was first necessary to carefully evaluate what function, power or duty the Council is exercising under the clause. This involved closely examining the clause. In that regard, it was observed that cl 45 of the BLEP 1988 mandated that the Council must not grant development consent unless it is satisfied that prior adequate arrangements have been made for the provision of sewerage services to the land. The Court described the condition as being in the nature of a condition precedent to the grant of consent. It speaks in the past "prior adequate arrangements have been made" (at [26]).
The Court of Appeal emphasised that s 39 of the Court Act directs attention to the matter the subject of the appeal. In Codlea, the matter the subject of the appeal was the Council's refusal of the DA. In that circumstance, the Court of Appeal considered whether the Council's function of satisfaction, that prior adequate arrangements have been made for the provision of sewerage services to the land, is a function in respect of the matter the subject of the development application. At [28] Stein J found that the issue of the Council's satisfaction under cl 45 can be seen as a function basic to its function to grant development approval or as a function sufficiently analogous to the function to be performed regarding the development application so that it is in respect of the subject matter of the appeal. In fact, the function of satisfaction was described "…to be the heart of the matter the subject of the appeal" (at [28]). Therefore, the issue of satisfaction was held to be a function the Council acquires under s 39(2) of the Court Act.
However, the Court of Appeal in Codlea found that the function of making prior adequate arrangements referred to in cl 45 was not sufficiently analogous to the function to be performed in relation to the DA to warrant the conclusion that that function is one which is in respect of the subject matter of the appeal.
The Council, in this instance, submits that the state of satisfaction required by the individual conditions of consent under the EPA Act is analogous to the "prior adequate arrangements" in Codlea. The Council's satisfaction under the conditions of consent for DA 2018/51 and DA 2020/284 as to the WMAMP, WMP and construction plans and reports is not a function in respect of the matter the subject of the s68 applications for three reasons: 1. Firstly, the matter of which the Council is required to be satisfied under the conditions of consents are imposed under the EPA Act for the purpose of performing its planning functions under the EPA Act. This is different function of the Council for the purpose of the consideration and approval of the s68 applications under the LGA. 2. Secondly, the function of determining a s68 application does not include a function as to whether the Council (now the Court) is satisfied of the matters the subject of the conditions of development consent imposed under s 4.17(2) of the EPA Act . Instead, s 68 of the LG Act, for the purpose of cl 13 of the LG Reg asks whether the "activity" proposed complies with the conditions of consent or not - that is, as the Council identifies - the matter of satisfaction that the Council (now the Court) must address being the subject matter of the s68 applications. As the Council in performing its function under the EPA Act has determined that it is not yet satisfied that the WMAMP, WMP and the construction plans and reports have been settled to its satisfaction - in accordance with the terms of the conditions of the consents - the proposed activity in the s68 application cannot be said to comply with the relevant conditions of consent. Furthermore, it is not a relevant consideration for present purposes under the LG Act that fresh or further reports can be now submitted as part of the s68 application and that the Court use 39(2) to be satisfied about those matters. The Council submits that these Council functions are distinct and under separate legislation and the Court on appeal only has the function under the LG Act being the subject matter of the appeals. 3. Thirdly, the matters of which the council is required to be satisfied under the development consent conditions "prior" to a s68 approval being granted is a matter under the EPA Act not the LG Act - and to be dealt with in a way that is analogous to the "prior adequate arrangements" in Codlea at [36] which the Court held were not picked up by s 39(2) of the Court Act. The Council's satisfaction is a precondition to the grant of the s68 approvals which are the subject matter of the appeal. In the absence of that satisfaction in respect to conditions 58, 60 and 57, I must refuse the s68 application in each appeal.
It is further submitted by the Council that these s68 proceedings under the LG Act are not the occasion for a de facto appeal. They are not a de novo investigation of the merits of the determination by the Council in relation to the manner of ensuring the ecological values of the retained wetland. In short, the Council submits there is no power to grant consent to the s68 applications absent the Council's satisfaction with the WMAMP, the WWP and the updated construction plans and reports for the proposed drainage works in the 99-lot and 17-lot proceedings.
Relying on Codlea at [28], the Council emphasises that s 39(2) is directed to the matter the subject of the appeal which in these Class 2 proceedings is the "activities" in the applications made under s 68 of the LG Act.
By force of cll 13 and 16 of the LG Reg and s 4.2 of the EPA Act, the Council submits that the Court must not approve the s68 applications allowing stormwater drainage work if the activity as proposed to be carried out will not comply with the requirements of the development consents.
The conditions of the development consents are imposed under s 4.17(2) of the EPA Act. The section provides: (2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.
The applicant has a separate right of appeal under s 8.7(2)(a) of the EPA Act, and s 4.17(3) in respect of the Council's actual and deemed dissatisfaction. Section 8.7(2)(a) and 4.17(3) provide: 8.7 Appeal by applicant - applications for development consent … (2) For the purposes of this section, the determination of an application by a consent authority includes - (a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or 4.17 Imposition of conditions … (3) A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 8.7, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect. …
In the absence of such a challenge in Class 1 proceedings, the Court has no power to step into the shoes of the Council under s 39(2) of the Court Act to change the terms of the imposed conditions of development consent.

Consideration and findings - jurisdiction under s 39(2) of the Court Act

Each condition commences with the proviso: "Prior to the issue of an approval under s68 of the Local Government Act, 1993 for the proposed drainage …". This prescribes a timeframe by which the s68 application must be obtained, relevantly after the submission of specified material to the satisfaction of the Council.
Irrespective of the timing under the development consent, the requirement for a s68 application is a requirement of the LG Act, not the EPA Act. As the reasoning of the Court made plain in Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) (2009) 172 LGERA 1; [2009] NSWLEC 226 (Australian Leisure) a development consent's requirement for a s68 approval is not a requirement of the condition of the development consent. It is a requirement of the LG Act. It is a stand-alone power under one statute not dependent on, and having no relationship to, conditions of a development consent granted under a difference statute: Australian Leisure at [82]-[83] per Preston CJ.
The same proposition can be properly and correctly made in the current situation where approval is required under s 68 of the LG Act and s 138 of the Road Act.
The applicant's foundation for the Court's jurisdiction is as contained in the Court Act. It submits and I accept that a reference to an appeal in s 39(2) is a reference to an appeal which may be disposed of in proceedings in the Court's Class 2 jurisdiction. Furthermore, that s 17 of the Court Act includes an appeal if the appeal relates to an application made to a Council within the meaning of the LG Act. The applicant's appeals are such applications under s 68 of the LG Act.
I also accept for the purpose of engaging the jurisdiction available under s 39(2) that the subject matter of an appeal could be the refusal or deemed refusal of the s68 application. However, the Court exists pursuant to statute and its jurisdiction is therefore limited to that conferred by statute, relevantly the Court Act.
The jurisdiction and powers of the Court differ from Class to Class. In a Class 1 appeal the Court under s 39(2) may exercise the functions and discretions of the Council in its capacity as consent authority in relation to the application that founds the right of appeal and any other function in relation to the decision under appeal. For example, where the development underlying the appeal from the Council's decision involves work on the public road the Court may exercise the functions of the Council under the Roads Act even where there is no right of appeal to the Court in respect to an application under s 138. However, if the other functions were only exercisable in certain circumstances by a council, then the Court is similarly constrained.
The s68 applications, the subject of the appeals in these proceedings, have nothing to do with the state of the Council's satisfaction in respect of the matters raised by the conditions. The only relevance is that those matters must be satisfied prior to the grant of the s68 approvals which facilitates the orderly development of the land as those matters can then be accommodated as required by the s68 conditions of approval.
The applicant had opportunity to agitate the Council's dissatisfaction with the matters raised by the conditions in the Court's Class 1 jurisdiction and has elected not to do so. I accept the Council's submission that these Class 2 appeals cannot provide a backdoor to the rewriting of the terms of the conditions of the development consent in circumstances where the Council is dissatisfied with the matters identified in conditions 57, 58 and 60. After careful consideration of the case law as submitted, I do not accept that the Court can utilise s 39(2) of the Court Act to stand in the shoes of the Council to substitute its satisfaction in respect to the conditions of the development consents granted under the EPA Act on the facts in these s68 appeals under the LG Act.
Each party relies on the reasoning of the Court of Appeal in Codlea to support its case. I prefer the Council's submission in that regard.
The decision in Codlea turned on a specific provision in the LEP which identified a precondition of the Council's consent to the carrying out of development. The decision is summarised in the decision of Talbot J in Alvanos v Shoalhaven Shire Council (2002) 119 LGERA 403; [2002] NSWLEC 42 at [28]-[32] as follows: "28 Clause 45 of the Byron Local Environmental Plan 1988 (NSW) made it a pre-condition of the council' to the carrying out of development, that it be satisfied that prior adequate arrangements have been for the provision of certain services to the land. 29 Stein JA came to the point succinctly when he identified two elements in the provisions of cl 45. He par 378 [43] as follows: One is the making of the "prior adequate arrangements" by the council and the sec the "satisfaction" with them prior to granting approval. 30 He went on in that same paragraph to state as follows: The former is not "in respect of the matter the subject of the appeal" and the latter is. 31 So what his Honour decided in that case was that it was not open for the Court to in some way make prior adequate arrangements for the provision of services to the land as the Commissioner in this Case attempted to do at first instance. However, it was within the function of the Court, contemplated by as part of the process of determining the development application to be satisfied that those arrangements had been made. 32 In other words it was a pre-condition to the granting of consent that the consent authority, in whose shoes the Court stood, should be satisfied about something. But it was not open for the Court to stand in the shoes of the consent authority to do the something about that which it needed to be satisfied."
In these proceedings, I find that the applicant is inviting me to do what the Court in Codlea made plain I cannot do. That is, to rely on s 39(2) to make the adequate arrangements by importing the applicant's amended additional material and plans as identified in its Annexure B and C in its final submissions into the conditions of consent granted by the Council under the EPA Act. That is a function outside the subject matter of the s68 appeals - and needs to be dealt with under the terms of the conditions to the satisfaction of the Council and prior to the grant of any s68 approvals. The subject matter of this appeal is constrained just as the Court identified in Codlea and discussed by Pain J in Chehab v City of Canada Bay Council (2002) 123 LGERA 431; [2002] NSWLEC 220 albeit a different factual context.
For these reasons, absent the Council's prior satisfaction in respect to conditions 58, 60 and 57 for the EPA Act purpose, I find that the s68 applications in the 99-lot and the 17-lot proceedings must be refused consent. The applicant's non-compliance with the conditions of the development consents is relevant to my assessment of the s68 applications for the reasons explained and precludes an approval in each case.

Roads Act

In this case, the s138 Roads Act application consists of all civil engineering works identified in Annexure A (taken from the ACWS dated 11 December 2023). The works associated with s 138 are Road 1, Road 2, Road 3, Road 4, Road 5, Road 6, Road 7 Henderson Lane and North Creek Road. Table 1 in Annexure A describes the works as proposed on each road where it has been reflected in the filed civil engineering work drawings.
Section 139 of the Roads Act contains certain provisions about the scope of power to issue a consent: 139 Nature of consent (1) A consent under this Division - (a) may be granted on the roads authority's initiative or on the application of any person, and (b) may be granted generally or for a particular case, and (c) may relate to a specific structure, work or tree or to structures, works or trees of a specified class, and (c1) in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979, is subject to Division 5 of Part 4 of that Act, and (d) may be granted on such conditions as the appropriate roads authority thinks fit. (2) In particular, a consent under this Division with respect to the construction of a utility service in, on or over a public road may require the service to be located - (a) in such position as may be indicated in that regard in a plan of subdivision or other plan registered in the office of the Registrar-General with respect to the road, or (b) in such other position as the roads authority may direct. (3) In particular, a consent under this Division with respect to the erection of a structure may be granted subject to a condition that permits or prohibits the use of the structure for a specified purpose or purposes.
A "roads authority" is defined by s 4 and the Dictionary to mean: a person or body that is, by or under this Act, declared to be a roads authority and, in relation to a particular public road, means the roads authority for that road.
Subsection 138(1) of the Roads Act makes it an offence for a person to undertake certain works in, on or over a public road without the consent of the appropriate roads authority.
It is accepted that the Council is the roads authority for all public roads within its local government area, except for freeways, Crown roads or roads for which the Regulations declare some other public authority to be the roads authority: Roads Act, s 4(4).
There is no statutory merits right of appeal from the refusal of the applicant's application for a s138 Roads Act. The applicant's case rests upon that argument that the Court's jurisdiction arises by virtue of certain conditions of consent which specify that some other approval be obtained. It asserts in Part A par 20 of its ASOFC that: "Under section 39(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) the Court has, for the purposes of hearing and disposing of the appeal, all of the functions and discretions which the Council has in respect of the matter the subject of the appeal. This includes determining the Section 138 Application" as part of this appeal [the s68 appeal] under section 39(2) of the LEC Act".
The applicant also relies on the observations of Biscoe J at [52] in Goldberg, to submit that the matter the subject of an appeal is a wider concept than the decision the subject of the appeal. It contends that the proposed road works in the s138 application are a vital part of the overall proposal and therefore the s138 application can be described as "inextricably intertwined" such as to constitute the matter contemplated by s 39(2).
This close interrelationship and inextricable intertwining of the proposed road work and the works sought to be approved is said to be apparent from the terms of condition 15 of the 99-lot consent which states: "Civil works - Prior to the issue of the Subdivision Works Certificate, engineering design drawings … shall be submitted to and approved by Council … The drawings shall also include associated works required under Section 138 of the Roads Act and Section 68 of the Local Government Act".
It is also submitted by the applicant, for the reasons discussed in Captive Vision Pty Ltd v Ku-ring-gai Council (No 3) [2019] NSWLEC 1472 (Captive Vision) at [39] and [78] that the Court has jurisdiction under s 39(2) of the Court Act to grant a s138 Roads Act consent during the appeal in respect of the s68 application.
It well might be argued that the stormwater work in the public road is a vital part of the overall proposal, and therefore that work under the s138 Roads Act application is "inextricably intertwined, such as to constitute the matter the subject of the s68 appeal". However, I do not need to finally decide this issue because the s138 Roads Act application is part of the s68 appeal which I propose to dismiss.

In the alternative - the s68 applications

If contrary to my finding, I do have jurisdiction and power under s 39(2) of the Court Act to stand in the shoes of the Council to reach the state of satisfaction required by conditions 57, 58 and 60 then I find that I am not satisfied in respect of the WMAMP, WMP and updated construction plans and reports under conditions 58, 60 and 57 for the reasons submitted by the Council as summarised at pars 121-153 in CCWS. In the absence of the Court's satisfaction under those conditions, it follows that the proposed stormwater drainage works do not comply with the requirements in conditions 58, 60 and 57. Furthermore, I am not satisfied on the merits that the proposed stormwater drainage works will comply with the objective requirements in condition 59 - Wetland Hydrological Monitoring and Management Plan (WHMMP), and that the engineering drawings achieve the standards to be observed for stormwater management systems required by conditions 13, 15 and 21 of the consent (DA 2018/51), again for the reasons as finally submitted by the Council in its CCWS.
Accordingly, as the "activities" the subject of the applications do not comply with the conditions of development consents DA 2018/51 and DA 2020/284, the Court cannot approve the s68 applications allowing the proposed stormwater drainage work.
In forming this view, I have carefully considered the evidence and parties' oral and written submissions which include the applicant's amended plans at Annexures B and C, the applicant's Table addressing the LG Act and Regulations with cross-references to the evidence and the Council's response in its table addressing contention 1 with cross-references to the evidence. I have also read and considered the transcript of the hearing together with the particular transcript references in the submissions.
During the course of cross-examination, there were occasions where the applicant's consultants suggested there was information that was not set out in relevant application documents, amendments that it might be desirable to make, amendments that ought be made to the documentation, or matters that might require clarification. The Council summarised these matters in the Table at par 121 of the CWS. On any view, the Table contains a considerable number of occasions where the applicant's experts propose that the reports or plans should be modified or detailed in design. Some of these matters have been addressed by the amendments allowed on the second day of the hearing but not all of them.
The applicant contends that the latest versions of the WMAMP (Annexure C) and WMP (Annexure B) attached to its final submissions address all relevant matters raised by the evidence, subject to some further minor amendments. However, I remain concerned about the adequacy of the WMAMP under condition 58 particularly for the reasons submitted by the Council after having regard to Mr McCann's candid oral evidence about the deficiencies in the applicant's WMAMP namely: "123. … (a) Mr McCann referred to a range of acceptable composition for the freshwater wetland EEC, but accepted that it was not set out in the WMAMP: Transcript 6/12/23 p 181 T[25]-[43]; (b) Mr McCann said for completeness the WMAMP could refer to the requirement to notify Council of incidents within 48 hours: Transcript 6/12/23 p 189 T[1]-[15]; (c) Mr McCann indicated he would be happy to change the wording in connection with the options for remedial action in his WMAMP if it would make it clearer (after he had been taken to differences in wording between the availability of other options in the WHMMP and the WMAMP): Transcript 6/12/23 p 190 T[46] to p 193 T[24]; (d) Mr McCann acknowledged that he forgot to insert the baseline plot locations in the WMAMP and that now was the time to fix this: Transcript 6/12/23 p 193 T[33] to p 194 T[3]; (e) Mr McCann accepted that the reference in the "on maintenance" phase component of the WMAMP was intended to be to Table 3-4 rather than Table 3-3, which deals which construction phase remedial measures, and that he would fix this "as soon as possible": Transcript 6/12/23 p 198 T[25]-[45]; (f) Mr McCann accepted, in respect of the trigger for the implementation of the corrective actions in the WMAMP, that the "trigger, for a critical one, is rather difficult to read, given the formatting at the absence of commas": Transcript 6/12/23 p 214 T[16]-[45]; (g) Mr McCann accepted that the WMAMP (Exhibit E f 252) in respect of surface water for the on maintenance period refers to 12 weeks in the trigger for an investigation rather than 4 weeks: Transcript 6/12/23 p 222 from T[35]; (h) in respect of errors in the WMAMP generally, Mr McCann gave the following evidence (Transcript 6/12/23 p 222 from T[47]: STAFFORD: There's an awful lot of errors in this plan, isn't there, Mr McCann, for something that's about to be approved to protect the wetland? WITNESS MCCANN: There are errors. It was pulled together quite quickly, given the time we had available. I mistakenly had thought that we would once we had a clear picture of all the changes that were needed, we would then adjust this plan. I didn't appreciate I needed to get this done ahead of the hearing today. I thought we'd rely on the previous plan and acknowledge the changes that were coming, and then work with both those, rather than trying to rush a document through in the short time that we had. So in effect, rely on revision H with commitments to create a new revision with the agreed changes. (i) Mr McCann said that he would be happy to change the word "detrimental" where it appears in the corrective actions in the WMAMP and that the use of the word "detrimental" was inconsistent with the wording in the development consent conditions: Transcript 6/12/23 p 231 T[45] to p 232 T[20]; (j) Mr McCann accepted that the WMAMP refers at one point to the August 2023 WHMMP rather than the November 2023 one: Transcript 6/12/23 p 233 T[8]; (k) Mr McCann accepted that instead of referring to location no 3 on drawing 201 in the WHMMP, it instead should be referring to the culvert near that location: Transcript 6/12/23 p 233 T[42]-[47] and again at p 238 T[17]-[21]; (l) Mr McCann said, in the context of pumping water from sediment basins directly into the wetland to supplement surface water, that "for completeness, we could mention the water quality again, but it's implicit that water quality criteria need to be achieved": Transcript 6/12/23 p 238 T[4]-[6]; (m) Ms Holton has agreed with the proposal to have the bypass swale control device further south and further uphill (Transcript 7/12/23 p 294 T[25]-[26]), where proposed in Mr Soo's sketch, but this does not yet appear in the plans before the Court; (n) on drawing CC-8041, Mr Soo refers to a discrepancy: "For instance, the dimension that goes east‑west shown as 4.7 meters. Actually, that dimension is slightly off. It's actually meant to move slightly towards the west. So that's what I'm referring the discrepancy is. But in ‑ apart from that, the plan has shown the actual dimension of the structure": Transcript 7/12/23 p 296 T[3]-[14]; (o) when asked over a series of questions how a builder is supposed to know that section 6 on drawing CC-4053 provides a cross-section for the bypass swale, given that the plan for which it is a cross-section is noted to not be part of the application, Mr Soo ultimately gave the following evidence (Transcript 7/12/23 p 302 T[31]-[46]: STAFFORD: An experienced contractor is going to look at the note in the bottom right hand corner of the page that says the wetland outlet control pit is in contingency measure, mitigation measure. This mitigation measure does not form part of the section 68, and they're going to ignore the whole right hand side of the page, aren't they? WITNESS SOO: No, I think they will find the association that what need to be built, and if they don't, they always can seek clarification during construction to determine what's the detail that they have to build it to, regardless of that STAFFORD: This is the detail construction stage, Mr Soo. This is it. You don't get another crack. WITNESS SOO: In the typical construction period, there's always clarification for contractor to raise questions or, in terms of request for information, to assist them with the construction. (p) Ms Holton acknowledged that the WHMMP at s 5.1.1, when referring to the "associated management plan", refers to the August 2023 version of the WHAMP rather than the November 2023 WHAMP: Transcript 7/12/23 p 324 T[1]-[28]. (CCWS at par 123; Tcpt 6 December 2023, p 222(47))
The Council submits that these inadequacies are problematic in the current context because this is the detailed design stage. This is not a development application where the detail can be developed at a later stage as the Council states this is time for the detailed design to be sorted and without that detail the Court cannot be satisfied with an approval of these s68 applications that the development will avoid an impropriate impact on the freshwater wetland EEC.
The Council submits that the engineering experts' agreed evidence is that: "the requirements of Development Consent DA1018/51 and Development Consent DA2020/284 identified in Council's contention 1 of the 99 Lot Proceedings and the 17 Lot Proceedings ought be resolved prior to issuing any s 68 approval: Civil Engineering JER p 7 [2.1] and [2.2]." (CCWS at par 126)
It is also submitted that the deficiencies in the stormwater drainage design identified by Mr Gaskell and Mr Thomas cannot be ignored. As the Council puts it: "Too much is left up to be considered or designed later, and there are too many questions around whether the mitigations measures proposed will maintain the surface and groundwater hydrology of the wetland. The s 68 applications ought be refused." (CCWS at par 128)
The applicant submits that the approach taken by the Council and Mr Ian Gaskell, the Council's ecologist, in relation to the question of whether the conditions of consent (57, 58 and 60) are met or not, lacks a proper consideration of the context in which conditions 57, 58, 60 and in 59 interact with condition 61, the bond, and condition 62 etc the offset conditions (Tcpt, 11 December 2023 p 353(45)). In fact, the applicant goes as far as to submit that: "…little or no attention has been given by Council and Mr Gaskell to the sophisticated and nuanced suite of ecology conditions operating as an interlocking suite of ecology conditions 57 to 63 forming part of the determination 99 lot consent which matter highly relevant to the context in which the s68 approval to be considered". (ACWS at par 51).
It submits that the Council and Mr Gaskell's approach is more consistent with a de novo appeal rather than a s68 approval appeal where the elected Council has determined a development application and had formulated conditions in the context of that determination. This error in approach is said to be apparent in the first contention for the 99-lot appeal which provides: "A section 68 approval ought not be granted because the activities the subject of the application do not ensure that there will be an inappropriate impact on the Freshwater Wetland EEC …".
The vice, the applicant submits, is the failure in the contention to acknowledge expressly the relationship between the s68 appeals and the fact that the Council has taken the principles of ESD into account when considering the 99-lot and 17-lot consent. While the applicant accepts that the Council's prior determination of those consents is not determinative of the s68 approvals in favour of the applicant, it submits that the failure by the Council to acknowledge expressly the relevance of the underlying ESD considerations demonstrates the Council's approach is not fully correct in that regard. The applicant submissions include the following: "52. … The development consent conditions demonstrate how the Freshwater Wetland EEC has been the subject of rigorous consideration by Council, and how Council has considered it can be protected by the suite of interlinked ecology conditions 57 to 63 including (i) expressly identified mitigation measures in condition 57, (ii) the use of a Monitoring and Adaptive Management Plan in condition 58 which includes "a range of remedial actions to address the ecological decline of the wetland resulting from the development in the event such decline occurs", (iii) a Hydrological Monitoring and Management Plan in condition 59 which requires a specialist wetland ecologist to review the monitoring results, the performance indicators and deviations outside trigger levels, (iv) the submitted Wetland Management Plan to be amended in specific ways set out in points (a) to (y) in condition 60; (v) Condition 61 (which is part of the suite of Freshwater Wetland conditions 57, 58, 59, 60) requires the applicant to lodge a surety bond with Council for the amount calculated by using the Biodiversity Offsets Payment Calculator based on the area of retained wetland as a score of 100% against its benchmark condition for PCT (782). The costings of the bond are to be based on a 100% loss of retained Freshwater Wetland. The bond has to be paid to Council in the amount of 150% of the agreed calculated Biodiversity Offsets Payment Calculator results. If there is a lack of success in achieving a change of less than 10%, Council will use the full amount of the bond to restore other vegetation communities under Council's care and control. That the bond has been calculated in accordance with the Biodiversity Offsets Payment Calculator in condition 61 at $1.327,691.63 (inc. GST). See Exhibit F, tab 6, folio 270. 53. It is immediately apparent from the terms of condition 61 that condition 61 is a highly sophisticated condition, imposed so as "To ensure the ecological values of the retained wetland … are protected in perpetuity" using the language from condition 61 itself. … 54. The Freshwater Wetland suite of conditions continue with conditions 62 and 63 which are Offset Site Conditions. The ecological sophistication of the EEC Offset Site condition is immediately apparent from a reading of condition 62. The express interrelationship between condition 62 and condition 57 is also apparent from the terms of condition 62. The area of the offset is required to be 4.84ha. The offset site must be located within five kilometres of the development site. In addition, all areas of Littoral Rainforest EEC and Hairy Joint Grass habitat outside of the Freshwater Wetland EEC that may be indirectly impacted by the development are to be offset on a like for like basis in the ratio of 5:1 i.e. 5m2 of offset is required for 1m2 of indirect or direct impact. Consequently, as stated expressly in condition 62 this equates to a Littoral Rainforest EEC offset of 0.4ha and a Hairy Joint Grass offset area of 2.65ha, making a total threatened species and EEC offset area of 7.89ha."
Ultimately, the applicant contends on the evidence of Mr McCann, Ms Erin Holton and Dr Daniel Martens (the applicant's hydrologists) that the principles of ESD have informed the s68 applications. In the same way that Preston CJ found in Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10; (2006) 67 NSWLR 256; [2006] NSWLEC 133 (Telstra) that the ESD principles were taken into account, the applicant submits that the conditions imposed by the Council to the extent that they address matters that are relevant to an assessment to an ESD would be something that the Court would take into account as being measures which would accord with the requirements under s 68. And, to the extent that the public interest has been taken into account, the applicant submits that the Court can satisfied that the principles of ESD have been taken into account by the Council and reflected in the conditions: Telstra at [121]-[124]; BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [113] (ACWS at par 88). However, the freshwater wetland conditions are said to form one aspect and one aspect only of Council's determination. Other aspects referred to expressly in the Statement of Reasons, including ensuring compliance with the objectives of the Ballina Local Environmental Plan 2012 for the R3 zoned land as part of the assessment are also relevant.
That said, the applicant submits the requirement in cl 15(2)(b) of the LG Reg to have regard to the protection of the environment does not thereby create a de facto de novo appeal of the 99-lot consent. In particular, the applicant takes issue with Mr Gaskell's criticisms in the joint report of the works proposed to address conditions which do not contain the words "to the satisfaction of Council" such as condition 59 in the 99-lot consent. It submits that his evidence ought to be rejected as condition 59 merely requires an existing WMAMP to be modified in a specific manner outlined in the seven dot points rather than to Mr Gaskell's satisfaction. At pars 55-63 of its CWS, the applicant sets out the various attempts by Mr Gaskell to revisit the merit determination made by the Council and recorded in the suite of conditions. The applicant relies on the compliance table at par 104 of the ACWS to demonstrate how each of the requirements of condition 59 has been achieved, and by reference to the relevant section in the WHMMP. The applicant emphasises that the WHMMP prepared by Gilbert and Sutherland dated April 2020 does not require the Council to be satisfied about the edits to the WHMMP as required under the condition. Noting that the applicant also asks for an opportunity to make some further minor edits to address what it describes as Ms Holton's frank concessions in cross-examination (ACWS at par 108).
Mr Gaskell is also criticised for giving evidence as to the intent of condition 57 (at par 58), and rebuffed for seeking amendments to the Mott McDonald plans for the purpose of condition 57 to avoid encroachment into the SW1 area as it is submitted that condition 57(b) does not require that but envisages that works may be carried out in the SW1 area (ACWS at par 59). The applicant cautions the Court not to allow Mr Gaskell to re-write the condition or to seek to discuss generally the topic of implementing the actions of the WMAMP. The applicant relies on the revised construction plan prepared by Mott McDonald and the joint hydrology expert report filed on 20 November 2023 to demonstrate full compliance with the requirements of condition 57 and invites the Court on that basis to reach the requisite state of satisfaction called for by the condition.
In respect to condition 58, the applicant refers me to the revised WMAMP prepared by Mr McCann who is also the appointed ecologist for the purposes of condition 59 dot points 1 and 3. The applicant submits that this latest version of the WMAMP is in a form sufficient for the Court to reach the requisite state of satisfaction called for by the condition whilst acknowledging "…that some relatively minor editing may be required in order to record the frank concessions made by Mr McCann in cross-examination" (ACWS at par 101).
Compliance with condition 60 is also addressed by the applicant in a table of compliance (ACWS at par 114). Again, the applicant submits that the Court will be satisfied that the revised WMP prepared by GHD dated August 2023 (Annexure B) complies with the requirements of this condition having picked up the changes to the WMP required by the experts and confirmed by Mr McCann in cross-examination (Tcpt, 6 December 2023, p 185(38-40)).
While the applicant submits that the latest raft of amendments to the documentation are sufficient to grant approval to the applications because the measures outlined will protect the freshwater wetland EEC, I am not as confident. The applicant's attempt to retrofit the WMAMP and WMP at the end of the hearing is an unsatisfactory approach to ensure the protection of the environment.
Clause 15(2)(b) is a key provision of the LG Reg - the protection of the environment (Tcpt, 11 December 2023, p 373(3-10)). Understandably, the Council is concerned that the measures proposed by the applicant need to work and need to have a design that is capable of being implemented to protect the freshwater wetland. The Council submits that the amended WMAMP, WHMMP and WMP which primarily arise from the joint reports prepared by the ecology and hydrology experts and their oral evidence at the hearing remain unsatisfactory. I accept that submission based on my understanding of the evidence including that of Mr McCann's as outlined earlier and for the following reasons.
The Council submits and I accept the hydrology and ecology expert reports in Ex 4 and Ex 5, prepared by Mr McCann and Mr Gaskell (Ecology JER) and Ex 1 and 2 prepared by Dr Martens and Ms Holton and Mr Chris Thomas (the Council's hydrologist) (Hydrology JER) "…take a very granular approach to some of the particulars in the contentions" and the s68 applications do not yet ensure that there will not be inappropriate impact on the freshwater wetland EEC. To some extent, cross-examination allowed for interrogation of these contentions. However, formulating the detail of plans intended to address an EEC "on the run" through cross-examination is clearly less than ideal and runs the risk of important detail slipping through the cracks.
The protection of the freshwater wetland EEC arises in connection with the following proposition in the Ecology JER for the 99-lot proceedings (taken from p 2 of the WMAMP (Ex 1 p 9)):

This wetland type is typically lightly treed, and the vegetation composition will vary in response to the prevailing hydrology - namely the depth an duration of inundation.
The composition of wetland vegetation is strongly controlled by inundation depth and duration.

Therefore, to protect the freshwater wetland EEC the stormwater drainage works need to maintain the prevailing hydrology of the freshwater wetland, including as to depth and duration of inundation. In circumstances where the Court cannot be satisfied that the stormwater drainage works maintain the hydrology of the freshwater wetland ECC, the Council contends that the s68 applications should be refused and I accept that submission.
The Council submits that the expectation that the hydrology of the freshwater wetland would remain the same, subject to a 10% range greater or less in the baseline surface and groundwater levels was reflected in condition 59 of the consent (DA 2018/51) bullet points 5 and 7 (Ex 7). "59. Wetland Hydrological Monitoring and Management Plan (WHMMP) Prior to the issue of an approval under Section 68 of the Local Government Act 1993 for the proposed drainage work, the submitted WHMMP prepared by Gilbert and Sutherland and dated April 2020 is to be modified to address: … • Outside of any major climatic event confirmation that if the monitoring confirms there is a 10% or greater change to surface and/or groundwater levels when compared to the baseline water levels for all rainfall events the corrective actions detailed in the WMAMP and the WHMMP will be activated. In addition, if the WMAMP confirms a 10% or greater decline in VIS scores when compared to the baseline and/or 10% or greater when compared to the previous 12month monitoring period the corrective actions detailed in the WMAMP and the WHMMP will be activated. … • Measurable criteria for establishing stabilised results post construction/on maintenance phase. In this regard Council will require at least a year of stabilised results (where the total catchment in relation to the development site is at least 90% developed with dwellings constructed) which reflects the pre- construction baseline levels without intervention or adjustment to the management devices. The allowed deviation from baseline results should be identified (i.e. what deviation is no longer considered acceptable/stabilised). The criteria is to determine whether or not stabilised conditions have been achieved, including specific timeframes and measures to address deviations outside of trigger levels."
Condition 6 of development consent DA 2020/284 also adopted this condition as a requirement of that consent in addition to relevantly conditions 57, 58 and 60 (Ex G).
To be clear, "the measurable criteria for establishing stabilised results", after the "on-maintenance phase" were subject to the constraint that they were to involve at least a year of stabilised results that were to reflect the pre-construction baseline levels without intervention or adjustment to the management devices.
Despite Ms Holton's evidence that the stabilisation prerequisite to the "on-maintenance phase" (before the Council takes over responsibility for the stormwater works in connection with the freshwater wetland) "….is a real incentive for the applicant to pursue appropriate contingency measures", (Tcpt, 7 December 2023, p 317(8)), this requirement has now been displaced by the amendment to the criteria in the WHMMP on 5 December 2023 (day 2 of the hearing). The Council submits this change means that the WHMMP is now inconsistent with condition 59 bullet point 7 and leaves the Council at risk of inheriting stormwater works and freshwater wetland that requires ongoing intervention to keep the hydrology the same (CCWS at pars 79-83).

The 17-lot proceedings

As the applicant submits the development that is approved under the 17-lot subdivision bears a close relationship to the works approved under the 99-lot subdivision. Condition 17 of the consent for the 17-lot subdivision states: "Relationship with DA 2018/51 Prior to, or concurrent with, the issue of a Subdivision Works Certificate for DA 20201284 a Subdivision Works Certificate application for DA 2018/51 shall be submitted to and approved by the Principal Certifying Authority".
There are no specific preconditions in the development consent for the grant of a s68 application for the 17-lot subdivision.
However, I note the applicant accepts at par 279 of its CWS that the logical sequencing of the carrying out of the approved development under the 17-lot subdivision relies on there being a section 68 approval for works under the 99-lot subdivision.

Conclusion and final orders

For the reasons submitted by the Council, as summarised above, I find that the s68 applications ought be refused.
For completeness, I note that during the course of these proceedings the applicant agreed to pay the Council's costs associated with the amended Class 2 application (in proceedings no. 2022/215110) in the amount of $4,000 as well as the Council's costs of the Class 1 proceedings (2022/215090) in the amount of $10,000 within 21 days.

Proceedings no. 2022/215110

The Court orders: 1. The appeal is dismissed. 2. Application no. S682022/4997 for approval under s 68(1) of the Local Government Act 1993 in respect of DA 2018/51 for land at 20 North Creek Road, Lennox Head (Lot 1 in DP 517111) is refused. 3. The exhibits are returned except for A, C, D and E.

Proceedings no. 2022/187078

The Court orders: 1. The appeal is dismissed. 2. The application email dated 18 May 2021 for approval made under s 68(1) of the Local Government Act 1993 in respect of DA 2020/284 for land at 20 North Creek Road, Lennox Head (Lot 1 in DP 517111) is refused. 3. The exhibits are returned except for A, G, H, I and J. ……………….. S Dixon Senior Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2024

Goldberg v Waverley Council (2007) 156 LGERA 27; [2007] NSWLEC 259

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Kogarah Municipal Council v Kent (1981) 46 LGRA 334

Mison v Randwick Municipal Council (1919) 23 NSWLR 734

McDougall v Warringah Shire Council (1993) 30 NSWLR 258

Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10; (2006) 67 NSWLR 256; [2006] NSWLEC 133

A short commute from Ballina town centre and Ballina airport, on land legally described as Lot 1 in DP 517111, and known as 20 North Creek Road, Lennox Head the Council has granted consent for the development of a large residential subdivision under DA 2018/51 and DA 2020/284.
- DA 2018/51 obtained on 27 August 2020 approved the residential subdivision of the site to create 99 residential lots and five super lots subject to future development (99-lot consent).

DA 2020/284 obtained on 21 December 2020 approved the residential subdivision of residual lot 102 (Super Lot 102) in DA 2018/51 to create 17 residential lot and one super lot (17-lot consent).

Although generally vacant the site does support two significant ecological communities being an area of littoral rainforest growing in the central portion and an extensive area of freshwater wetland habitat located along the western boundary.
Both vegetation communities are listed as Endangered Ecological Communities (EECs) pursuant to the Biodiversity Conservation Act 2016 (BC Act). Littoral rainforest is also listed as an EEC pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Consultation with the Office of Water in relation to DA 2018/51 confirmed there is also a first order creek located within the southern portion running east to west. General terms of approval (GTAs) were issued by the Office of Water including the piping of the creek.
The impacts on the EECs have been assessed and approved under DA 2018/51 subject to the effective implementation of the conditions of consent particularly 57, 58, 60 and 61 under DA 2018/51.
The conditions also refer to the obtaining of approval under s 68 of the Local Government Act 1993 (LG Act) for drainage, sewerage and essential infrastructure works prior to, or concurrently with, the development of the site. There is also a reference in the conditions for approval for any works under s 138 of the Roads Act 1993 (Roads Act).
This judgment arises following the Council's refusal or deemed refusal of the applicant's applications under s 68 of the LG Act and s 138 of the Roads Act. It concerns the following Class 2 appeals:

(1) Proceedings no. 2022/187078 is an appeal under s 176 (by virtue of s 105) of the LG Act, from the Council's deemed refusal of the applicant's application under s 68 of the LG Act seeking approval for stormwater, sewer and water infrastructure within Super Lot 102 approved on 21 December 2020 under development consent no. DA 2020/284 within existing Lot 1 in DP 517111, being part of the property known as 20 North Creek Road, Lennox Head; (relating to the 17-lot consent)

(2) Proceedings no. 2022/215110 is an appeal under s 176 (by virtue of s 105) of the LG Act from the Council's deemed refusal of the applicant's application under s 68 of the LG Act, and purportedly from a s138 application under the Roads Act, seeking approval for stormwater, sewer, water and road infrastructure within or near existing Lot 1 in DP 517111, which was created following the grant of development consent no. DA 2018/51 by the Council on 27 August 2020; (relating to the 99-lot consent)

A third appeal (proceedings no. 2022/215090), made under s 8.7 (by virtue of s 8.11) of the Environmental Planning and Assessment Act 1979 (EPA Act) from the Council's deemed refusal of a development application in respect of Lot 1 in DP 517111 for the creation of seven new residential lots; the redesign of 10 Torrens title lots approved in development consent no. DA 2018/51; and the redesign of seven Torrens title lots approved in development consent no. DA 2020/284 listed to be heard with the Class 2 appeals was not agitated and discontinued at the hearing.
It is to be noted that the Council accepts that the proposed water supply and sewerage works in the applicant's s68 applications are satisfactory and compliant with the requirements of the LG Act. At issue is the proposed stormwater and drainage works. The Council contending, in the absence of compliance with the conditions of consent of development consent no. DA 2018/51 imposed under the EPA Act, that the Court cannot approve the applicant's s68 applications.
In particular, the Council raises issue with the following matters:

(1) Impact on the freshwater wetland EEC of the stormwater drainage works in the s68 applications -

(a) The Council contending that the "activities" the subject of the s68 applications in each appeal, do not ensure that there will not be an inappropriate impact on the freshwater wetland EEC and those "activities" do not comply with the conditions of development consent under DA 2018/51 that were imposed to protect that wetland. The Council contending that the Court is required to refuse the s68 applications in each case as a result of this issue, but that it would do so on the merits in any event (whether or not the Court accepts it must refuse the proposal as a result of the issue);

(2) Non-compliance with stormwater management standards -

(a) The Council contending that the stormwater drainage works the subject of the s68 applications in each appeal do not comply with certain stormwater management standards with which respectively condition 21 of DA 2020/284 and condition 15 of DA 2018/51 require those applications to comply. Albeit, the Council concedes that the applicant could rectify the Council's concern if the proposed road verge swales are replaced with kerb and gutters in each case. However, as the plans before me are for roadside swales with check dams, the s68 applications should be refused as a result of this issue because roadside swales with check dams are not an appropriate design in a residential context. (It is to be noted that the applicant has declined to make such an amendment);

(3) Consistency of the "activity" in the 17-lot appeal with broader works and the "activities" for the 99-lot consent -

(a) The Council contending that the infrastructure with which Super Lot 102 needs to interconnect, and the finished works adjacent to Super Lot 102, remain uncertain until a subdivision works certificate is issued for the development the subject of the 99-lot subdivision;

(b) The Council contending that the Court should refuse the s68 application in the 17-lot subdivision as a result of this issue; and

(4) No power to determine s138 Roads Act application -

(a) The Council takes issue with the Court's power to determine the s138 Roads Act application. The Council contending that the Court has no jurisdiction to determine the s138 Roads Act application as part of the s68 appeal for the 99-lot subdivision as there is no statutory merits appeal from refusal or deemed refusal of such an application. While the Council uses a combined form for those applications, it submits that there is no other basis on which the Court's jurisdiction is attached to determine that application in the context of the deemed refusal of the s68 application.

The hearing of these proceedings was conducted in Court over an extended period. In lieu of a Court view, the Court watched drone footage of the site and its environs (Ex A).
As the Council identifies, while some amendments to the subject matter of these appeals was allowed in the hearing, there remains a number of outstanding proposals for amendments to the application documents or documents accompanying the applications arising from the expert reports and evidence of the applicant's consultants.

Amending the s68 applications

In closing, the applicant invited me to accept into evidence the amended Wetland Monitoring and Adaptive Management Plan (WMAMP) and Wetland Management Plan (WMP) marked Annexure B to the applicant's closing written submissions dated 11 December 2023 (ACWS), subject to further minor editing that it submitted may be required, for example, in order to record the frank concessions of Mr McCann (the applicant's ecologist) in cross-examination (ACWS at par 101).
These revised reports are submitted in satisfaction of the conditions of the consents, and prior to the issue of any approval by the Court under s 68 of the LG Act for the proposed drainage works. In accepting these amended reports, it is to be noted that the power to amend a s68 application is specific and dealt with by s 87 of the LG Act which provides:

87 Amendment of applications

(1) An applicant, at any time before the application is determined, may make a minor amendment to the application and may amend any matter accompanying the application.

(2) The making of a minor amendment does not require the application to be further notified to anyone.

(3) For the purposes of section 105, the application is taken not to have been made until the amendment is made.

I am mindful that under the section there is only power to make minor amendments to the application, with a broader power for amendment of accompanying material prior to a determination. Outside of that power to amend, it appears that there is no power for the Court to entertain any amended application: AQC Dartbrook Pty Ltd v Minister for Planning and Public Spaces (2021) 15 NSWLR 152; [2021] NSWCA 112 at [227].
For that reason, the section precludes me from approving part of the applicant's s68 applications as that would amount to an amendment that is more than minor before a determination. In particular, the proposed water supply and sewerage work which are accepted by the Council and if I was so minded.

Before addressing the primary issue of jurisdiction, I set out below some of the relevant provisions of the legislative framework as identified in the Amended Statement of Facts and Contentions (ASOFC) and Reply (ASOFC in Reply).
Section 68(1) of the LG Act addresses "activities" that require the approval of the Council (now the Court) and provides as follows:

(1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval.

Part B Water supply, sewerage and stormwater drainage work

1 Carry out water supply work

2 Draw water from a council water supply or a standpipe or sell water so drawn

3 Install, alter, disconnect or remove a meter connected to a service pipe

4 Carry out sewerage work

5 Carry out stormwater drainage work

6 Connect a private drain or sewer with a public drain or sewer under the control of a council or with a drain or sewer which connects with such a public drain or sewer

Applications for the purpose of s 68 of the LG Act are to be made to Council (s 75) by the person proposing to carry out the activity (s 78(1)) and must be made by the owner of the land (or with the consent of the owner of the land) to which the application applies (s 78(2)) in the approved form (s 79). An application may relate to (s 76):
- the whole or part of an activity
- the whole or any part of land on which the activity is proposed to be carried out
- more than one activity.
The Dictionary, with s 3 of the LG Act, defines "approved form" as:

(a) the form prescribed by the regulations for the purposes of the provision in relation to which the expression is used, or

(b) if no such form is prescribed, the form (if any) approved by the Director-General for the purposes of the provision in relation to which the expression is used, or

© if no such form is prescribed and no form is approved by the Director-General, the form approved by the council for the purposes of the provision in relation to which the expression is used.

The s68 application relating to the 99-lot proceedings on the NSW planning portal (the portal) is made by "Aaron Chandler" of Impact Group for the following "activities":

"#Carry out sewerage work

#Carry out stormwater drainage work

#Carry out water supply work

#Connect a private drain or sewer with a public drain or sewer under the control of Council or with a drain or sewer, which connects to a public drain or sewer

#Draw water from a Council water supply or a standpipe or selling water drawn

#Install, alter, disconnect or remove a meter connected to a council provided water service pipe"

The "Application for Approval Under Section 68 of the Local Government Act and 138 Roads Act 1993" form in the 99-lot proceedings indicates that the proposed approvals are:

"• Carry out water supply work;

• Carry out sewerage work;

• Carry out stormwater drainage work;

• Install, alter disconnect or remove a meter connected to a service pipe;

• Draw water from a Council water supply or a standpipe or selling water so drawn;

• Connect private property to Council sewerage system; and

• Approval under Section 138 of the Roads Act 1993"

There is no application form in the 17-lot proceedings. The application was made by an email dated 18 May 2021. Nonetheless, the Council is prepared to accept that this is a procedural irregularity rather than a jurisdictional one.
The applicant's SOFC in the 17-lot proceedings indicates that the application is intended to be for stormwater, water supply and sewerage works. The Council invite further clarification of these "activities" and the applicant gave that detail in its closing written submissions in the table at par 275.
Relevantly, s 89(1) of the LG Act sets out specific matters for consideration in the evaluation of a s68 application and provides:

89 Matters for consideration

(1) In determining an application, the council -

(a) must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation, and

(b) must take into consideration any criteria in a local policy adopted under Part 3 by the council which are relevant to the subject-matter of the application, a©(c) must take into consideration the principles of ecologically sustainable development.

As there is no relevant Council Part 3 policy, the Council submits that s 89(1) requires a consideration of the principles of ecologically sustainable development (ESD) (as defined in s 3 of the LG Act), and the matters prescribed in any relevant regulation in connection with the "activities" in the s68 applications. In that regard, cl 15 of the Local Government (General) Regulation 2021 (LG Reg) mandates certain consideration for the purpose of s 89(1)(a) of the LG Act in respect to the s68 applications.

15 Matters to be considered when determining applications for water supply, sewerage and stormwater drainage approvals:

(1) This section applies to the following activities -

(a) carrying out water supply work,

(b) drawing water from the council water supply or a standpipe

(c) installing, altering, disconnecting or removing a water meter connected to a service pipe,

(d) carrying out sewerage work,

(e) carrying out stormwater drainage work.

(2) In determining an application for the purposes of section 68 of the Act for an approval to do any of the activities to which this section applies, the council must have regard to the following considerations -

(a) the protection and promotion of public health,

(b) the protection of the environment,

(c) the safety of its employees,

(d) the safeguarding of its assets,

(e) any other matter that it considers to be relevant in the circumstances.

It is to be noted that subcl 15(1) does not explicitly reference "connect a private drain or sewer with a public drain or sewer under the control of a council or with a drain or sewer which connect with such a public drain or sewer" - which is a separate category under the Table to s 68 of the LG Act from the other activities in subcl 15(1) of the LG Reg. Nonetheless, the Council submits that the reference to "carrying out sewerage work" in subcl 15(1)(d) can be construed to encompass both "carrying out sewerage work" and "connect a private drain or sewer with a public drain or sewer..." under s 68 of the LG Act. Given that the Council has assessed the sewerage works (including interconnection) as complying with the requirements of the LG Act, I do not need to express a view as to whether subss 89(2) and (3) of the LG Act or cl 15 of the LG Reg is the source of the relevant considerations in order to accept that they are relevantly compliant. The same cannot be said for the proposed stormwater drainage works in these proceedings, they are as indicated in heated dispute.
Clause 15(2) of the LG Reg sets out relevant considerations that the Court must take into account when determining a s68 application. Relevantly, in the context of the proposed stormwater drainage in this case the Council identifies: the principles of ESD (as defined in s 3 of the LG Act and Dictionary); protection of the environment; and any other matter that the Court considers relevant in the circumstances (Council's closing written submissions dated 11 December 2023 (CCWS) at par 31).
Clause 13 of the LG Reg contains jurisdictional prerequisites to the granting of the s68 applications, and importantly, links compliance with applicable standards and development consents.
Shortly stated, the Court needs to be satisfied that the proposed "activities", relevantly the stormwater drainage works in dispute, will comply with any applicable standards or requirements referred to in Pt 2 of Sch 1, and with any other applicable standards or requirements set out or referred to in this Regulation. This includes the requirements in Pt 1 of Sch 1 in relation to water supply, sewerage and stormwater drainage works. It is to be noted that the state of satisfaction referred in the clause is a jurisdictional precondition - being a jurisdictional fact of a "special kind" requiring the Court form the requisite opinion of satisfaction such as to enliven the power for the grant of a s68 approval: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118; Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; (2018) 233 LGERA 170; [2018] NSWCA 245).
Although the Council does not contend that the requirements in Pt 2 of Sch 1 are not met, it is to be noted that the Court needs to form its own opinion that the activity as proposed to be carried out will comply with any other applicable standards or requirements set out or referred to in this Regulation.
Clause 16 of the LG Reg, also called up by s 89(1)(a) of the LG Act, requires (pursuant to s 98(2) of the LG Act) the imposition of a stormwater drainage work condition that ensures compliance with applicable standards in Pt 2 of Sch 1 and with any other applicable standards or requirements set out or referred to in this Regulation or any other regulation under the LG Act or the EPA Act. It provides:

16 Approvals for stormwater drainage work to be subject to a condition requiring compliance with standards and requirements

It is a condition of an approval allowing stormwater drainage work that -

(a) the activity approved, and

(b) any building or work associated or carried out in connection with the activity,

complies with any applicable standards set out or referred to in Part 2 of Schedule 1 and with any other applicable standards or requirements set out or referred to in this Regulation or any other regulation under the Act or the Environmental Planning and Assessment Act 1979.

(Emphasis added)

Given that the prescribed condition must be imposed on the grant of a s68 approval, the Council submits that this requirement is also relevant to the determination of the s68 applications because:

(1) the requirement in cl 16 of the LG Reg is one of the "other applicable standards or requirements referred to in this Regulation" within the meaning of cl 13 of the LG Reg, such that the Court must be satisfied that the activity will comply with the requirement in cl 16 as a prerequisite to the grant of approval. Clause 13 is directed to ensuring that the decision maker can be satisfied such requirements will be met at the time of the decision, while cl 16 itself is directed to ensuring that these requirements are in fact met on an ongoing basis;

(2) separate from the jurisdictional requirement in cl 13 of the LG Reg, it would be unreasonable for a decision maker to grant approval to the s68 applications, in accord with cl 16 of LG Reg, if it is apparent at the time the application for approval is determined that the proposal will not comply with a mandatory condition that the LG Act requires to be imposed on that approval;

(3) if the effect of the mandatory condition in cl 16 of the LG Reg is to leave open the possibility that works carried out in accordance with the approval and that condition will be significantly different from the works for which the s68 application was made (in this case, if the stormwater management works applied for do not comply with cl 16 but will be required to comply with that clause once consent is granted), then the decision maker has not granted consent to the application made: Mison v Randwick Municipal Council (1919) 23 NSWLR 734 at 737B per Priestley JA.

Expressed differently, the Council contends that cl 16 of the LG Reg on its proper construction, comprises three different types of applicable standards or requirements that must be complied with, separated by the "or" namely:

complies ... with any applicable standards set out or referred to in:

(i) this Regulation, or

(ii) any other regulation under the Act, or

(iii) the Environmental Planning and Assessment Act 1979.

Therefore, the Council submits that cl 16 makes compliance with applicable standards or requirements set out in the EPA Act a condition of the s68 approval for stormwater drainage (see CCWS at p 12 par 39(a), (b), (c) and (d)). This construction it is submitted, ensures consistency between any s68 approval and the EPA Act requirements for those works; thereby assisting to ensure that a s68 application cannot ignore the requirements for those works under the EPA Act.
And, where development consent was required and obtained for the development, it is a requirement of the EPA Act that the development be carried out in accordance with the development consent and the instrument. The Council submits that the criminal offence under s 4.2 of the EPA Act carries with it a requirement to carry out development in accordance with the development consent obtained and in force. This requirement to comply with a development consent being a requirement within the meaning of cl 16 of the LG Reg in turn is one of the requirement set out or referred to in this Regulation within the meaning of cl 13 of the LG Reg.
In this case, the development consents contain conditions that are relevant to the stormwater drainage works as proposed in the s68 applications. These conditions by their terms require the satisfaction of the Council prior to the issue of an approval under s 68 of the LG Act (Contention 1(j) (99-lot appeal) and Contention 1(d) (17-lot appeal)).
Accordingly, by force of cll 13 and 16 of the LG Reg and s 4.2 of the EPA Act, the Council submits that I must not approve the s68 applications allowing stormwater drainage work where the "activities" proposed to be carried out will not comply with the requirements of a development consent. Put simply, the Council contends that the Court has no jurisdiction to grant the s68 approvals because conditions 57, 58, 60 and 61 of the conditions of consent for DA 2018/51, that require satisfaction of the Council, have not been satisfied.
Against that background I am relieved to record that the applicant agrees that the jurisdiction contention arises in relation to each of condition 57, 58 and 60 in the DA 2018/51, which are also relevant for the DA 2020/284. In respect to condition 61, the bond, the applicant submits that it will be lodged with the Council in accordance with the terms of the condition upon confirmation that the Court be minded to grant approval to the applications.
Conditions 58, 60 and 57 of the DA 2018/51 consent state:

"58. Wetland Monitoring and Adaptive Management Plan (WMAMP)

Prior to the issue of an approval under Section 68 of the Local Government Act 1993 for the proposed drainage work the proponent shall prepare a Wetland Monitoring and Adaptive Management Plan (WMAMP) to the satisfaction of Council. The objective of the plan shall be to monitor the health of the Freshwater Wetland EEC and associated hydrology over time to assess whether or not the development is resulting in material adverse changes to the health and composition of the wetland.

The WMAMP must include a range of remedial actions to address the ecological decline of the wetland resulting from the development in the event such decline occurs. The WMAMP is to be prepared by a Council approved specialist wetland ecologist with at least 5 years experience in wetland ecology and monitoring.

Monitoring of the ecology shall be undertaken in accordance with the Biodiversity Assessment Method (OEH 2017) to determine a Vegetation Integrity Score (VIS). A VIS baseline calculation shall be undertaken prior to any works commencing at the site and subsequent VIS assessments undertaken annually for a period until five years after the registration of the plan of subdivision for the 90th residential lot.

The WHMAMP is required to have direct linkage to the results of the hydrological monitoring program as revealed in the report titled "Wetland Hydrological Monitoring and Management Plan (WHMMP)" prepared by Gilbert and Sutherland and dated April 2020 and as amended by conditions of this consent.

Outside of any major climatic event, an adaptive management regime is to be implemented if any or all of the following scenarios occur:

• the development results in a 10% or greater change in either or both surface and/or groundwater levels when compared to the predevelopment baseline levels

• for the first two years of the monitoring program the VIS scores associated with the monitoring program record a decline of 10% or greater when compared to the baseline VIS scores

• the VIS scores decline by 10% or greater when compared to the previous 12 month monitoring period."

(Emphasis added, Ex 7)

"60. Revised Wetland Management Plan

Prior to the issue of an approval under Section 68 of the Local Government Act 1993 for the proposed drainage work, the submitted "Wetland Management Plan" prepared by JWA Pty Ltd dated 19 February 2020, is to be amended to the satisfaction of Council to address the following matters:

a) Section 1 is to be modified to confirm the Section 88b Instrument will state that the ownership and maintenance of the restoration area either is dedicated to Council or is attached to a residential allotment within the subdivision and that it will be managed and protected in perpetuity.

b) A timetable for the implementation of all revegetation, rehabilitation and weed control works linked to the staging of the development.

c) The WMP including all maps are to remove all references to the construction of the Council drainage network located in the northwest corner of Residual Lot 104.

d) Figure 5 Category 2 of the legend is to replace "natural regeneration" with "assisted regeneration".

e) Figure 5 Category 6 is to be removed.

f) Figure 5 is to be updated to show the location of the exclusion fencing.

g) Section 3.3 is to modify what actions will be implemented if the range of identified risks eventuate.

h) Section 4.3 is to be modified to comply with Sections 4.5.5.

i) Section 4.3 is to be modified to confirm the "maintenance period" commences immediately after the 12 month "establishment period". The "maintenance period" will be undertaken by the development for a period until five years after the registration of the plan of subdivision for the 90th residential lot.

j) Section 4.3 is to be modified to state weed control works will be undertaken as required.

k) Section 4.4.3 is to be modified to state that all erosion and sediment measures will be established outside of the management areas.

l) Section 4.4.4 is to be modified to state all construction plans will depict the location of the management areas and exclusion fencing will be erected around all areas subject to the plan.

m) Section 4.6.2 is to be revised to state that Phase 1 will be completed within two months of the earthworks being completed.

n) Phase 6 of Section 4.6.2 is to be modified to be consistent with the maintenance period for the project being until a period of five years after the registration of the plan of subdivision for the 90th residential lot.

o) Section 4.6.3 is to [be] modified to include a cane toad monitoring and control program.

p) Section 4.6.3 and Table 3 are to be modified to confirm all rainforest trees will be planted at 1.8m spacings.

q) Section 4.6.4 is to be modified to comply with the planting models detailed in Table 3 of the document titled "Subtropical Rainforest Restoration - A practical manual and data source for Landscape groups, land managers and rainforest regenerators (Third Addition).

r) Section 4.7 is to be consistent with the maintenance period for the project being until after the registration of the plan of subdivision for the 90th residential lot.

s) Section 5 dot point 6 is to be revised to delete the references to the "2 year maintenance period or the site becomes self-sustaining, vehicle tracks. Dot point 6(d) is to be deleted.

t) Section 5 is to be revised to confirm that if the performance criteria is not achieved within the restoration period, the Developer will extend the restoration project until the performance criteria are achieved or forfeit the Freshwater Wetland Bond. In this regard, all forested areas are to achieve a 90% native vegetation canopy coverage within a minimum five year period. All wetland areas are to achieve a 90% native coverage. All vegetation stratas are to be free of all environmental and noxious weeds.

u) Identify contingency plans should the proposed revegetation works not respond to proposed treatment works.

v) All references to "should" throughout the WMP are to be replaced with "will".

w) Section 6.3 is to be revised to include the provision of monitoring reports to be provided to Council's Planning and Environmental Health Division (PEHD).

x) Confirmation that all restoration work shall be undertaken by or overseen by a qualified bush regenerator. The bush regenerator must hold the Bushland Regeneration Certificate II or equivalent and have a minimum of two years' experience regenerating floodplain communities.

y) Outline of all future management actions the owner of the wetland will be required to undertake in perpetuity to maintain the ecological condition of the restored restoration area."

(Emphasis added, Ex 7)

"57. Protection of Freshwater Wetland EEC

To reduce the impact to the Freshwater Wetland EEC located on Residual Lot 104 and to ensure excavation works associated with the installation and operation of the stormwater network and swale system do not affect the existing surface and groundwater hydrology the following mitigation measures are to be implemented:

a) All works associated with the construction of the drainage basins, swale system and stormwater infrastructure are restricted to areas depicted in the "Earthworks Cut and Fill Plan Stage 1A Enabling Works" (Revision 8) prepared by Mott McDonald and dated 13.08.2020. Consequently, no further construction works will be permitted within the Freshwater Wetland EEC.

b) Works within the area depicted as 'SW1' are to be avoided or minimised where possible. Should any works be necessary in 'SW1', construction design details and rationale for these works in this area are to be provided to Council. Any works to be carried out within this area are to be undertaken in accordance with a construction management plan to minimise impact on the wetland. At the completion of the construction phase, the 'SW1' area is to be rehabilitated in accordance with the actions in the approved Wetland Management Plan.

c) To reduce the footprint of Drainage Basin 2 all batters associated with the bioretention basin that will reduce the footprint in the wetland are to be steepened to 1:4. The modified drainage basin is to be moved landward away from the Freshwater Wetland. The resulting gain in space may be used for construction works and then rehabilitated in accordance with the actions of the approved Wetland Management Plan.

d) The existing seepage area depicted in Figure 8 of the Revised Ecological Assessment (Volume 1) prepared by JWA Pty Ltd and dated 19 February 2020 is to be retained as a subsurface drainage structure. Within this area, the existing natural topography and flow paths are to be retained through the placement of suitably sized boulders and/or rocks encased by geotextile or the like.

e) Measures implemented during construction and operation to prevent groundwater and surface waters of the wetland system draining into subsurface gravel material and/or the constructed swale system. The baseline hydrological monitoring is to be used to inform this design.

f) Ensure all construction plans will depict the location of the management areas and exclusion fencing will be erected around all areas subject to the plan.

Prior to [the] issue of an approval under Section 68 of the Local Government Act 1993 for the proposed drainage work, revised construction plans and reports depicting compliance with the above mitigation strategies are to be submitted to the satisfaction of Council."

(Emphasis added, Ex 7)

Relevantly, each condition is predicated by the direction that "Prior to the issue of an approval under Section 68 of the Local Government Act 1993 for the proposed drainage work..." the applicant is to submit a WMAMP to the satisfaction of Council; attend to the amendment of the submitted WMP prepared by JWA Pty Ltd dated 19 February 2020 to the satisfaction of Council and revise construction plans and reports depicting compliance with the specified mitigation strategies to the satisfaction of Council.
The Council contends that the language in conditions 58, 60 and 57 is clear. It requires that the Council be satisfied with the identified updated plans and reports for the purpose of its function under the EPA Act by the time the applicant takes the next step of obtaining approval for the stormwater drainage works under the LG Act. And, as condition 6 of DA 2020/284 requires compliance with the environmental protection measures established and set out in the Notice of Determination for DA 2018/51, there is the requirement for compliance with the conditions 57, 58, 59, 60, 71, 79, 81 and 109 of DA 2018/51 (as is relevant) before the grant of the s68 application for DA 2020/284.
In the absence of compliance with the conditions of consent of DA 2018/51 imposed under the EPA Act and the Regulations for the reasons outlined, the Council submits that my hands are tied. I simply have no power to approve the s68 applications before the Court.

The applicant submits that compliance with the above conditions of the consents is necessary, albeit not determinative of the grant of the s68 approvals which must be separately assessed.
To overcome the jurisdictional issue raised by the Council, the applicant contends that s 39(2) places the Court in the shoes of the Council at the time an application is lodged. As such, it submits that the Court can exercise all the functions and discretions of the Council in relation to the satisfaction of the Council as required by conditions 57, 58 and 60 in order to facilitate the further assessment of the s68 applications under the LGA.
In making that submission, the applicant relies on the construction of s39(2) accepted by the Court of Appeal in Kogarah Municipal Council v Kent (1981) 46 LGRA 334 wherein Reynolds J at 336 stated "...the language of s 39(2) ... is wide and clear and to me it means, ... that the Court could do whatever the council could do to dispose of the appeal". The applicant also relies upon the reasoning in Goldberg v Waverley Council (2007) 156 LGERA 27; [2007] NSWLEC 259 (Goldberg) and the observations of Kirby P in McDougall v Warringah Shire Council (1993) 30 NSWLR 258 at 264 to submit that s 39(2) intended that the Land and Environment Court of NSW (LEC):

"be placed fully in the shoes of [the] council at the time an application is lodged ... The result of this interpretation is that all the functions and discretions the council could have exercised when considering the application are open to the [Court] on appeal and not only those strictly necessary to the approval."

It also submits that the Court should embrace the decision of the Court of Appeal in Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; [1999] NSWCA 399 (Codlea) at [12]-[16], as a complete answer, favourable to the applicant on jurisdiction. In short, the submission is that the Court cannot determine whether prior adequate arrangements had been made but the question of whether the Council is satisfied about that matter is something that the Court could stand in the shoes of the Council in relation to the satisfaction component of conditions 57, 58 and 60 (Tcpt, 11 December 2023, pp 351(35)-352(20)).
The decision of Codlea concerned an appeal from a decision of the LEC in respect of a Class 1 development appeal seeking consent for the subdivision of land. At [25] the judgment records that the question of law was one of construction of cl 45 of the Byron Local Environmental Plan 1988 (BLEP 1988), and the power of the Court under s 39(2) of the Court Act to exercise a function of the Council under cl 45. To determine whether the Court can exercise that function under cl 45 of BLEP 1988 the Court of Appeal judgment identified that it was first necessary to carefully evaluate what function, power or duty the Council is exercising under the clause. This involved closely examining the clause. In that regard, it was observed that cl 45 of the BLEP 1988 mandated that the Council must not grant development consent unless it is satisfied that prior adequate arrangements have been made for the provision of sewerage services to the land. The Court described the condition as being in the nature of a condition precedent to the grant of consent. It speaks in the past "prior adequate arrangements have been made" (at [26]).
The Court of Appeal emphasised that s 39 of the Court Act directs attention to the matter the subject of the appeal. In C_odlea_, the matter the subject of the appeal was the Council's refusal of the DA. In that circumstance, the Court of Appeal considered whether the Council's function of satisfaction, that prior adequate arrangements have been made for the provision of sewerage services to the land, is a function in respect of the matter the subject of the development application. At [28] Stein J found that the issue of the Council's satisfaction under cl 45 can be seen as a function basic to its function to grant development approval or as a function sufficiently analogous to the function to be performed regarding the development application so that it is in respect of the subject matter of the appeal. In fact, the function of satisfaction was described "...to be the heart of the matter the subject of the appeal" (at [28]). Therefore, the issue of satisfaction was held to be a function the Council acquires under s 39(2) of the Court Act.
However, the Court of Appeal in Codlea found that the function of making prior adequate arrangements referred to in cl 45 was not sufficiently analogous to the function to be performed in relation to the DA to warrant the conclusion that that function is one which is in respect of the subject matter of the appeal.
The Council, in this instance, submits that the state of satisfaction required by the individual conditions of consent under the EPA Act is analogous to the "prior adequate arrangements" in Codlea. The Council's satisfaction under the conditions of consent for DA 2018/51 and DA 2020/284 as to the WMAMP, WMP and construction plans and reports is not a function in respect of the matter the subject of the s68 applications for three reasons:

(1) Firstly, the matter of which the Council is required to be satisfied under the conditions of consents are imposed under the EPA Act for the purpose of performing its planning functions under the EPA Act. This is different function of the Council for the purpose of the consideration and approval of the s68 applications under the LGA.

(2) Secondly, the function of determining a s68 application does not include a function as to whether the Council (now the Court) is satisfied of the matters the subject of the conditions of development consent imposed under s 4.17(2) of the EPA Act . Instead, s 68 of the LG Act, for the purpose of cl 13 of the LG Reg asks whether the "activity" proposed complies with the conditions of consent or not - that is, as the Council identifies - the matter of satisfaction that the Council (now the Court) must address being the subject matter of the s68 applications. As the Council in performing its function under the EPA Act has determined that it is not yet satisfied that the WMAMP, WMP and the construction plans and reports have been settled to its satisfaction - in accordance with the terms of the conditions of the consents - the proposed activity in the s68 application cannot be said to comply with the relevant conditions of consent. Furthermore, it is not a relevant consideration for present purposes under the LG Act that fresh or further reports can be now submitted as part of the s68 application and that the Court use 39(2) to be satisfied about those matters. The Council submits that these Council functions are distinct and under separate legislation and the Court on appeal only has the function under the LG Act being the subject matter of the appeals.

(3) Thirdly, the matters of which the council is required to be satisfied under the development consent conditions "prior" to a s68 approval being granted is a matter under the EPA Act not the LG Act - and to be dealt with in a way that is analogous to the "prior adequate arrangements" in Codlea at [36] which the Court held were not picked up by s 39(2) of the Court Act. The Council's satisfaction is a precondition to the grant of the s68 approvals which are the subject matter of the appeal. In the absence of that satisfaction in respect to conditions 58, 60 and 57, I must refuse the s68 application in each appeal.

It is further submitted by the Council that these s68 proceedings under the LG Act are not the occasion for a de facto appeal. They are not a de novo investigation of the merits of the determination by the Council in relation to the manner of ensuring the ecological values of the retained wetland. In short, the Council submits there is no power to grant consent to the s68 applications absent the Council's satisfaction with the WMAMP, the WWP and the updated construction plans and reports for the proposed drainage works in the 99-lot and 17-lot proceedings.
Relying on Codlea at [28], the Council emphasises that s 39(2) is directed to the matter the subject of the appeal which in these Class 2 proceedings is the "activities" in the applications made under s 68 of the LG Act.
By force of cll 13 and 16 of the LG Reg and s 4.2 of the EPA Act, the Council submits that the Court must not approve the s68 applications allowing stormwater drainage work if the activity as proposed to be carried out will not comply with the requirements of the development consents.
The conditions of the development consents are imposed under s 4.17(2) of the EPA Act. The section provides:

(2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.

The applicant has a separate right of appeal under s 8.7(2)(a) of the EPA Act, and s 4.17(3) in respect of the Council's actual and deemed dissatisfaction. Section 8.7(2)(a) and 4.17(3) provide:

8.7 Appeal by applicant - applications for development consent

...

(2) For the purposes of this section, the determination of an application by a consent authority includes -

(a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or

4.17 Imposition of conditions

...

(3) A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 8.7, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect.

...

In the absence of such a challenge in Class 1 proceedings, the Court has no power to step into the shoes of the Council under s 39(2) of the Court Act to change the terms of the imposed conditions of development consent.

Consideration and findings - jurisdiction under s 39(2) of the Court Act

Each condition commences with the proviso: "Prior to the issue of an approval under s68 of the Local Government Act, 1993 for the proposed drainage ...". This prescribes a timeframe by which the s68 application must be obtained, relevantly after the submission of specified material to the satisfaction of the Council.
Irrespective of the timing under the development consent, the requirement for a s68 application is a requirement of the LG Act, not the EPA Act. As the reasoning of the Court made plain in Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) (2009) 172 LGERA 1; [2009] NSWLEC 226 (Australian Leisure) a development consent's requirement for a s68 approval is not a requirement of the condition of the development consent. It is a requirement of the LG Act. It is a stand-alone power under one statute not dependent on, and having no relationship to, conditions of a development consent granted under a difference statute: Australian Leisure at [82]-[83] per Preston CJ.
The same proposition can be properly and correctly made in the current situation where approval is required under s 68 of the LG Act and s 138 of the Road Act.
The applicant's foundation for the Court's jurisdiction is as contained in the Court Act. It submits and I accept that a reference to an appeal in s 39(2) is a reference to an appeal which may be disposed of in proceedings in the Court's Class 2 jurisdiction. Furthermore, that s 17 of the Court Act includes an appeal if the appeal relates to an application made to a Council within the meaning of the LG Act. The applicant's appeals are such applications under s 68 of the LG Act.
I also accept for the purpose of engaging the jurisdiction available under s 39(2) that the subject matter of an appeal could be the refusal or deemed refusal of the s68 application. However, the Court exists pursuant to statute and its jurisdiction is therefore limited to that conferred by statute, relevantly the Court Act.
The jurisdiction and powers of the Court differ from Class to Class. In a Class 1 appeal the Court under s 39(2) may exercise the functions and discretions of the Council in its capacity as consent authority in relation to the application that founds the right of appeal and any other function in relation to the decision under appeal. For example, where the development underlying the appeal from the Council's decision involves work on the public road the Court may exercise the functions of the Council under the Roads Act even where there is no right of appeal to the Court in respect to an application under s 138. However, if the other functions were only exercisable in certain circumstances by a council, then the Court is similarly constrained.
The s68 applications, the subject of the appeals in these proceedings, have nothing to do with the state of the Council's satisfaction in respect of the matters raised by the conditions. The only relevance is that those matters must be satisfied prior to the grant of the s68 approvals which facilitates the orderly development of the land as those matters can then be accommodated as required by the s68 conditions of approval.
The applicant had opportunity to agitate the Council's dissatisfaction with the matters raised by the conditions in the Court's Class 1 jurisdiction and has elected not to do so. I accept the Council's submission that these Class 2 appeals cannot provide a backdoor to the rewriting of the terms of the conditions of the development consent in circumstances where the Council is dissatisfied with the matters identified in conditions 57, 58 and 60. After careful consideration of the case law as submitted, I do not accept that the Court can utilise s 39(2) of the Court Act to stand in the shoes of the Council to substitute its satisfaction in respect to the conditions of the development consents granted under the EPA Act on the facts in these s68 appeals under the LG Act.
Each party relies on the reasoning of the Court of Appeal in Codlea to support its case. I prefer the Council's submission in that regard.
The decision in Codlea turned on a specific provision in the LEP which identified a precondition of the Council's consent to the carrying out of development. The decision is summarised in the decision of Talbot J in Alvanos v Shoalhaven Shire Council (2002) 119 LGERA 403; [2002] NSWLEC 42 at [28]- [32] as follows:

"28 Clause 45 of the Byron Local Environmental Plan 1988 (NSW) made it a pre-condition of the council' to the carrying out of development, that it be satisfied that prior adequate arrangements have been for the provision of certain services to the land.

29 Stein JA came to the point succinctly when he identified two elements in the provisions of cl 45. He par 378 [43] as follows:

One is the making of the "prior adequate arrangements" by the council and the sec the "satisfaction" with them prior to granting approval.

30 He went on in that same paragraph to state as follows:

The former is not "in respect of the matter the subject of the appeal" and the latter is.

31 So what his Honour decided in that case was that it was not open for the Court to in some way make prior adequate arrangements for the provision of services to the land as the Commissioner in this Case attempted to do at first instance. However, it was within the function of the Court, contemplated by as part of the process of determining the development application to be satisfied that those arrangements had been made.

32 In other words it was a pre-condition to the granting of consent that the consent authority, in whose shoes the Court stood, should be satisfied about something. But it was not open for the Court to stand in the shoes of the consent authority to do the something about that which it needed to be satisfied."

In these proceedings, I find that the applicant is inviting me to do what the Court in Codlea made plain I cannot do. That is, to rely on s 39(2) to make the adequate arrangements by importing the applicant's amended additional material and plans as identified in its Annexure B and C in its final submissions into the conditions of consent granted by the Council under the EPA Act. That is a function outside the subject matter of the s68 appeals - and needs to be dealt with under the terms of the conditions to the satisfaction of the Council and prior to the grant of any s68 approvals. The subject matter of this appeal is constrained just as the Court identified in Codlea and discussed by Pain J in Chehab v City of Canada Bay Council (2002) 123 LGERA 431; [2002] NSWLEC 220 albeit a different factual context.
For these reasons, absent the Council's prior satisfaction in respect to conditions 58, 60 and 57 for the EPA Act purpose, I find that the s68 applications in the 99-lot and the 17-lot proceedings must be refused consent. The applicant's non-compliance with the conditions of the development consents is relevant to my assessment of the s68 applications for the reasons explained and precludes an approval in each case.

In this case, the s138 Roads Act application consists of all civil engineering works identified in Annexure A (taken from the ACWS dated 11 December 2023). The works associated with s 138 are Road 1, Road 2, Road 3, Road 4, Road 5, Road 6, Road 7 Henderson Lane and North Creek Road. Table 1 in Annexure A describes the works as proposed on each road where it has been reflected in the filed civil engineering work drawings.
Section 139 of the Roads Act contains certain provisions about the scope of power to issue a consent:

139 Nature of consent

(1) A consent under this Division -

(a) may be granted on the roads authority's initiative or on the application of any person, and

(b) may be granted generally or for a particular case, and

(c) may relate to a specific structure, work or tree or to structures, works or trees of a specified class, and

(c1) in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979, is subject to Division 5 of Part 4 of that Act, and

(d) may be granted on such conditions as the appropriate roads authority thinks fit.

(2) In particular, a consent under this Division with respect to the construction of a utility service in, on or over a public road may require the service to be located -

(a) in such position as may be indicated in that regard in a plan of subdivision or other plan registered in the office of the Registrar-General with respect to the road, or

(b) in such other position as the roads authority may direct.

(3) In particular, a consent under this Division with respect to the erection of a structure may be granted subject to a condition that permits or prohibits the use of the structure for a specified purpose or purposes.

A "roads authority" is defined by s 4 and the Dictionary to mean:

a person or body that is, by or under this Act, declared to be a roads authority and, in relation to a particular public road, means the roads authority for that road.

Subsection 138(1) of the Roads Act makes it an offence for a person to undertake certain works in, on or over a public road without the consent of the appropriate roads authority.
It is accepted that the Council is the roads authority for all public roads within its local government area, except for freeways, Crown roads or roads for which the Regulations declare some other public authority to be the roads authority: Roads Act, s 4(4).
There is no statutory merits right of appeal from the refusal of the applicant's application for a s138 Roads Act. The applicant's case rests upon that argument that the Court's jurisdiction arises by virtue of certain conditions of consent which specify that some other approval be obtained. It asserts in Part A par 20 of its ASOFC that:

"Under section 39(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) the Court has, for the purposes of hearing and disposing of the appeal, all of the functions and discretions which the Council has in respect of the matter the subject of the appeal. This includes determining the Section 138 Application" as part of this appeal [the s68 appeal] under section 39(2) of the LEC Act".

The applicant also relies on the observations of Biscoe J at [52] in Goldberg, to submit that the matter the subject of an appeal is a wider concept than the decision the subject of the appeal. It contends that the proposed road works in the s138 application are a vital part of the overall proposal and therefore the s138 application can be described as "inextricably intertwined" such as to constitute the matter contemplated by s 39(2).
This close interrelationship and inextricable intertwining of the proposed road work and the works sought to be approved is said to be apparent from the terms of condition 15 of the 99-lot consent which states:

"Civil works - Prior to the issue of the Subdivision Works Certificate, engineering design drawings ... shall be submitted to and approved by Council ... The drawings shall also include associated works required under Section 138 of the Roads Act and Section 68 of the Local Government Act".

It is also submitted by the applicant, for the reasons discussed in Captive Vision Pty Ltd v Ku-ring-gai Council (No 3) [2019] NSWLEC 1472 (Captive Vision) at [39] and [78] that the Court has jurisdiction under s 39(2) of the Court Act to grant a s138 Roads Act consent during the appeal in respect of the s68 application.
It well might be argued that the stormwater work in the public road is a vital part of the overall proposal, and therefore that work under the s138 Roads Act application is "inextricably intertwined, such as to constitute the matter the subject of the s68 appeal". However, I do not need to finally decide this issue because the s138 Roads Act application is part of the s68 appeal which I propose to dismiss.

In the alternative - the s68 applications

If contrary to my finding, I do have jurisdiction and power under s 39(2) of the Court Act to stand in the shoes of the Council to reach the state of satisfaction required by conditions 57, 58 and 60 then I find that I am not satisfied in respect of the WMAMP, WMP and updated construction plans and reports under conditions 58, 60 and 57 for the reasons submitted by the Council as summarised at pars 121-153 in CCWS. In the absence of the Court's satisfaction under those conditions, it follows that the proposed stormwater drainage works do not comply with the requirements in conditions 58, 60 and 57. Furthermore, I am not satisfied on the merits that the proposed stormwater drainage works will comply with the objective requirements in condition 59 - Wetland Hydrological Monitoring and Management Plan (WHMMP), and that the engineering drawings achieve the standards to be observed for stormwater management systems required by conditions 13, 15 and 21 of the consent (DA 2018/51), again for the reasons as finally submitted by the Council in its CCWS.
Accordingly, as the "activities" the subject of the applications do not comply with the conditions of development consents DA 2018/51 and DA 2020/284, the Court cannot approve the s68 applications allowing the proposed stormwater drainage work.
In forming this view, I have carefully considered the evidence and parties' oral and written submissions which include the applicant's amended plans at Annexures B and C, the applicant's Table addressing the LG Act and Regulations with cross-references to the evidence and the Council's response in its table addressing contention 1 with cross-references to the evidence. I have also read and considered the transcript of the hearing together with the particular transcript references in the submissions.
During the course of cross-examination, there were occasions where the applicant's consultants suggested there was information that was not set out in relevant application documents, amendments that it might be desirable to make, amendments that ought be made to the documentation, or matters that might require clarification. The Council summarised these matters in the Table at par 121 of the CWS. On any view, the Table contains a considerable number of occasions where the applicant's experts propose that the reports or plans should be modified or detailed in design. Some of these matters have been addressed by the amendments allowed on the second day of the hearing but not all of them.
The applicant contends that the latest versions of the WMAMP (Annexure C) and WMP (Annexure B) attached to its final submissions address all relevant matters raised by the evidence, subject to some further minor amendments. However, I remain concerned about the adequacy of the WMAMP under condition 58 particularly for the reasons submitted by the Council after having regard to Mr McCann's candid oral evidence about the deficiencies in the applicant's WMAMP namely:

(a) Mr McCann referred to a range of acceptable composition for the freshwater wetland EEC, but accepted that it was not set out in the WMAMP: Transcript 6/12/23 p 181 T[25]-[43];

(b) Mr McCann said for completeness the WMAMP could refer to the requirement to notify Council of incidents within 48 hours: Transcript 6/12/23 p 189 T[1]-[15];

(c) Mr McCann indicated he would be happy to change the wording in connection with the options for remedial action in his WMAMP if it would make it clearer (after he had been taken to differences in wording between the availability of other options in the WHMMP and the WMAMP): Transcript 6/12/23 p 190 T[46] to p 193 T[24];

(d) Mr McCann acknowledged that he forgot to insert the baseline plot locations in the WMAMP and that now was the time to fix this: Transcript 6/12/23 p 193 T[33] to p 194 T[3];

(e) Mr McCann accepted that the reference in the "on maintenance" phase component of the WMAMP was intended to be to Table 3-4 rather than

Table 3-3, which deals which construction phase remedial measures, and that he would fix this "as soon as possible": Transcript 6/12/23 p 198 T[25]-[45];

(f) Mr McCann accepted, in respect of the trigger for the implementation of the corrective actions in the WMAMP, that the "trigger, for a critical one, is rather difficult to read, given the formatting at the absence of commas": Transcript 6/12/23 p 214 T[16]-[45];

(g) Mr McCann accepted that the WMAMP (Exhibit E f 252) in respect of surface water for the on maintenance period refers to 12 weeks in the trigger for an investigation rather than 4 weeks: Transcript 6/12/23 p 222 from T[35];

(h) in respect of errors in the WMAMP generally, Mr McCann gave the following evidence (Transcript 6/12/23 p 222 from T[47]:

STAFFORD: There's an awful lot of errors in this plan, isn't there, Mr McCann, for something that's about to be approved to protect the wetland?

WITNESS MCCANN: There are errors. It was pulled together quite quickly, given the time we had available. I mistakenly had thought that we would once we had a clear picture of all the changes that were needed, we would then adjust this plan. I didn't appreciate I needed to get this done ahead of the hearing today. I thought we'd rely on the previous plan and acknowledge the changes that were coming, and then work with both those, rather than trying to rush a document through in the short time that we had. So in effect, rely on revision H with commitments to create a new revision with the agreed changes.

(i) Mr McCann said that he would be happy to change the word "detrimental" where it appears in the corrective actions in the WMAMP and that the use of the word "detrimental" was inconsistent with the wording in the development consent conditions: Transcript 6/12/23 p 231 T[45] to p 232 T[20];

(j) Mr McCann accepted that the WMAMP refers at one point to the August 2023 WHMMP rather than the November 2023 one: Transcript 6/12/23 p 233 T[8];

(k) Mr McCann accepted that instead of referring to location no 3 on drawing 201 in the WHMMP, it instead should be referring to the culvert near that location: Transcript 6/12/23 p 233 T[42]-[47] and again at p 238 T[17]-[21];

(l) Mr McCann said, in the context of pumping water from sediment basins directly into the wetland to supplement surface water, that "for completeness, we could mention the water quality again, but it's implicit that water quality criteria need to be achieved": Transcript 6/12/23 p 238 T[4]-[6];

(m) Ms Holton has agreed with the proposal to have the bypass swale control device further south and further uphill (Transcript 7/12/23 p 294 T[25]-[26]), where proposed in Mr Soo's sketch, but this does not yet appear in the plans before the Court;

(n) on drawing CC-8041, Mr Soo refers to a discrepancy: "For instance, the dimension that goes east‑west shown as 4.7 meters. Actually, that dimension is slightly off. It's actually meant to move slightly towards the west. So that's what I'm referring the discrepancy is. But in ‑ apart from that, the plan has shown the actual dimension of the structure": Transcript 7/12/23 p 296 T[3]-[14];

(o) when asked over a series of questions how a builder is supposed to know that section 6 on drawing CC-4053 provides a cross-section for the bypass swale, given that the plan for which it is a cross-section is noted to not be part of the application, Mr Soo ultimately gave the following evidence (Transcript 7/12/23 p 302 T[31]-[46]:

STAFFORD: An experienced contractor is going to look at the note in the bottom right hand corner of the page that says the wetland outlet control pit is in contingency measure, mitigation measure. This mitigation measure does not form part of the section 68, and they're going to ignore the whole right hand side of the page, aren't they?

WITNESS SOO: No, I think they will find the association that what need to be built, and if they don't, they always can seek clarification during construction to determine what's the detail that they have to build it to, regardless of that

STAFFORD: This is the detail construction stage, Mr Soo. This is it. You don't get another crack.

WITNESS SOO: In the typical construction period, there's always clarification for contractor to raise questions or, in terms of request for information, to assist them with the construction.

(p) Ms Holton acknowledged that the WHMMP at s 5.1.1, when referring to the "associated management plan", refers to the August 2023 version of the WHAMP rather than the November 2023 WHAMP: Transcript 7/12/23 p 324 T[1]-[28].

(CCWS at par 123; Tcpt 6 December 2023, p 222(47))

The Council submits that these inadequacies are problematic in the current context because this is the detailed design stage. This is not a development application where the detail can be developed at a later stage as the Council states this is time for the detailed design to be sorted and without that detail the Court cannot be satisfied with an approval of these s68 applications that the development will avoid an impropriate impact on the freshwater wetland EEC.
The Council submits that the engineering experts' agreed evidence is that:

"the requirements of Development Consent DA1018/51 and Development Consent DA2020/284 identified in Council's contention 1 of the 99 Lot Proceedings and the 17 Lot Proceedings ought be resolved prior to issuing any s 68 approval: Civil Engineering JER p 7 [2.1] and [2.2]."

(CCWS at par 126)

It is also submitted that the deficiencies in the stormwater drainage design identified by Mr Gaskell and Mr Thomas cannot be ignored. As the Council puts it:

"Too much is left up to be considered or designed later, and there are too many questions around whether the mitigations measures proposed will maintain the surface and groundwater hydrology of the wetland. The s 68 applications ought be refused."

(CCWS at par 128)

The applicant submits that the approach taken by the Council and Mr Ian Gaskell, the Council's ecologist, in relation to the question of whether the conditions of consent (57, 58 and 60) are met or not, lacks a proper consideration of the context in which conditions 57, 58, 60 and in 59 interact with condition 61, the bond, and condition 62 etc the offset conditions (Tcpt, 11 December 2023 p 353(45)). In fact, the applicant goes as far as to submit that:

"...little or no attention has been given by Council and Mr Gaskell to the sophisticated and nuanced suite of ecology conditions operating as an interlocking suite of ecology conditions 57 to 63 forming part of the determination 99 lot consent which matter highly relevant to the context in which the s68 approval to be considered".

(ACWS at par 51).

It submits that the Council and Mr Gaskell's approach is more consistent with a de novo appeal rather than a s68 approval appeal where the elected Council has determined a development application and had formulated conditions in the context of that determination. This error in approach is said to be apparent in the first contention for the 99-lot appeal which provides: "A section 68 approval ought not be granted because the activities the subject of the application do not ensure that there will be an inappropriate impact on the Freshwater Wetland EEC ...".
The vice, the applicant submits, is the failure in the contention to acknowledge expressly the relationship between the s68 appeals and the fact that the Council has taken the principles of ESD into account when considering the 99-lot and 17-lot consent. While the applicant accepts that the Council's prior determination of those consents is not determinative of the s68 approvals in favour of the applicant, it submits that the failure by the Council to acknowledge expressly the relevance of the underlying ESD considerations demonstrates the Council's approach is not fully correct in that regard. The applicant submissions include the following:

"52. ... The development consent conditions demonstrate how the Freshwater Wetland EEC has been the subject of rigorous consideration by Council, and how Council has considered it can be protected by the suite of interlinked ecology conditions 57 to 63 including (i) expressly identified mitigation measures in condition 57, (ii) the use of a Monitoring and Adaptive Management Plan in condition 58 which includes "a range of remedial actions to address the ecological decline of the wetland resulting from the development in the event such decline occurs", (iii) a Hydrological Monitoring and Management Plan in condition 59 which requires a specialist wetland ecologist to review the monitoring results, the performance indicators and deviations outside trigger levels, (iv) the submitted Wetland Management Plan to be amended in specific ways set out in points (a) to (y) in condition 60; (v) Condition 61 (which is part of the suite of Freshwater Wetland conditions 57, 58, 59, 60) requires the applicant to lodge a surety bond with Council for the amount calculated by using the Biodiversity Offsets Payment Calculator based on the area of retained wetland as a score of 100% against its benchmark condition for PCT (782). The costings of the bond are to be based on a 100% loss of retained Freshwater Wetland. The bond has to be paid to Council in the amount of 150% of the agreed calculated Biodiversity Offsets Payment Calculator results. If there is a lack of success in achieving a change of less than 10%, Council will use the full amount of the bond to restore other vegetation communities under Council's care and control. That the bond has been calculated in accordance with the Biodiversity Offsets Payment Calculator in condition 61 at $1.327,691.63 (inc. GST). See Exhibit F, tab 6, folio 270.

53. It is immediately apparent from the terms of condition 61 that condition 61 is a highly sophisticated condition, imposed so as "To ensure the ecological values of the retained wetland ... are protected in perpetuity" using the language from condition 61 itself. ...

54. The Freshwater Wetland suite of conditions continue with conditions 62 and 63 which are Offset Site Conditions. The ecological sophistication of the EEC Offset Site condition is immediately apparent from a reading of condition 62. The express interrelationship between condition 62 and condition 57 is also apparent from the terms of condition 62. The area of the offset is required to be 4.84ha. The offset site must be located within five kilometres of the development site. In addition, all areas of Littoral Rainforest EEC and Hairy Joint Grass habitat outside of the Freshwater Wetland EEC that may be indirectly impacted by the development are to be offset on a like for like basis in the ratio of 5:1 i.e. 5m2 of offset is required for 1m2 of indirect or direct impact. Consequently, as stated expressly in condition 62 this equates to a Littoral Rainforest EEC offset of 0.4ha and a Hairy Joint Grass offset area of 2.65ha, making a total threatened species and EEC offset area of 7.89ha."

Ultimately, the applicant contends on the evidence of Mr McCann, Ms Erin Holton and Dr Daniel Martens (the applicant's hydrologists) that the principles of ESD have informed the s68 applications. In the same way that Preston CJ found in Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10; (2006) 67 NSWLR 256; [2006] NSWLEC 133 (Telstra) that the ESD principles were taken into account, the applicant submits that the conditions imposed by the Council to the extent that they address matters that are relevant to an assessment to an ESD would be something that the Court would take into account as being measures which would accord with the requirements under s 68. And, to the extent that the public interest has been taken into account, the applicant submits that the Court can satisfied that the principles of ESD have been taken into account by the Council and reflected in the conditions: Telstra at [121]-[124]; BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [113] (ACWS at par 88). However, the freshwater wetland conditions are said to form one aspect and one aspect only of Council's determination. Other aspects referred to expressly in the Statement of Reasons, including ensuring compliance with the objectives of the Ballina Local Environmental Plan 2012 for the R3 zoned land as part of the assessment are also relevant.
That said, the applicant submits the requirement in cl 15(2)(b) of the LG Reg to have regard to the protection of the environment does not thereby create a de facto de novo appeal of the 99-lot consent. In particular, the applicant takes issue with Mr Gaskell's criticisms in the joint report of the works proposed to address conditions which do not contain the words "to the satisfaction of Council" such as condition 59 in the 99-lot consent. It submits that his evidence ought to be rejected as condition 59 merely requires an existing WMAMP to be modified in a specific manner outlined in the seven dot points rather than to Mr Gaskell's satisfaction. At pars 55-63 of its CWS, the applicant sets out the various attempts by Mr Gaskell to revisit the merit determination made by the Council and recorded in the suite of conditions. The applicant relies on the compliance table at par 104 of the ACWS to demonstrate how each of the requirements of condition 59 has been achieved, and by reference to the relevant section in the WHMMP. The applicant emphasises that the WHMMP prepared by Gilbert and Sutherland dated April 2020 does not require the Council to be satisfied about the edits to the WHMMP as required under the condition. Noting that the applicant also asks for an opportunity to make some further minor edits to address what it describes as Ms Holton's frank concessions in cross-examination (ACWS at par 108).
Mr Gaskell is also criticised for giving evidence as to the intent of condition 57 (at par 58), and rebuffed for seeking amendments to the Mott McDonald plans for the purpose of condition 57 to avoid encroachment into the SW1 area as it is submitted that condition 57(b) does not require that but envisages that works may be carried out in the SW1 area (ACWS at par 59). The applicant cautions the Court not to allow Mr Gaskell to re-write the condition or to seek to discuss generally the topic of implementing the actions of the WMAMP. The applicant relies on the revised construction plan prepared by Mott McDonald and the joint hydrology expert report filed on 20 November 2023 to demonstrate full compliance with the requirements of condition 57 and invites the Court on that basis to reach the requisite state of satisfaction called for by the condition.
In respect to condition 58, the applicant refers me to the revised WMAMP prepared by Mr McCann who is also the appointed ecologist for the purposes of condition 59 dot points 1 and 3. The applicant submits that this latest version of the WMAMP is in a form sufficient for the Court to reach the requisite state of satisfaction called for by the condition whilst acknowledging "...that some relatively minor editing may be required in order to record the frank concessions made by Mr McCann in cross-examination" (ACWS at par 101).
Compliance with condition 60 is also addressed by the applicant in a table of compliance (ACWS at par 114). Again, the applicant submits that the Court will be satisfied that the revised WMP prepared by GHD dated August 2023 (Annexure B) complies with the requirements of this condition having picked up the changes to the WMP required by the experts and confirmed by Mr McCann in cross-examination (Tcpt, 6 December 2023, p 185(38-40)).
While the applicant submits that the latest raft of amendments to the documentation are sufficient to grant approval to the applications because the measures outlined will protect the freshwater wetland EEC, I am not as confident. The applicant's attempt to retrofit the WMAMP and WMP at the end of the hearing is an unsatisfactory approach to ensure the protection of the environment.
Clause 15(2)(b) is a key provision of the LG Reg - the protection of the environment (Tcpt, 11 December 2023, p 373(3-10)). Understandably, the Council is concerned that the measures proposed by the applicant need to work and need to have a design that is capable of being implemented to protect the freshwater wetland. The Council submits that the amended WMAMP, WHMMP and WMP which primarily arise from the joint reports prepared by the ecology and hydrology experts and their oral evidence at the hearing remain unsatisfactory. I accept that submission based on my understanding of the evidence including that of Mr McCann's as outlined earlier and for the following reasons.
The Council submits and I accept the hydrology and ecology expert reports in Ex 4 and Ex 5, prepared by Mr McCann and Mr Gaskell (Ecology JER) and Ex 1 and 2 prepared by Dr Martens and Ms Holton and Mr Chris Thomas (the Council's hydrologist) (Hydrology JER) "...take a very granular approach to some of the particulars in the contentions" and the s68 applications do not yet ensure that there will not be inappropriate impact on the freshwater wetland EEC. To some extent, cross-examination allowed for interrogation of these contentions. However, formulating the detail of plans intended to address an EEC "on the run" through cross-examination is clearly less than ideal and runs the risk of important detail slipping through the cracks.
The protection of the freshwater wetland EEC arises in connection with the following proposition in the Ecology JER for the 99-lot proceedings (taken from p 2 of the WMAMP (Ex 1 p 9)):
- This wetland type is typically lightly treed, and the vegetation composition will vary in response to the prevailing hydrology - namely the depth an duration of inundation.
- The composition of wetland vegetation is strongly controlled by inundation depth and duration.
Therefore, to protect the freshwater wetland EEC the stormwater drainage works need to maintain the prevailing hydrology of the freshwater wetland, including as to depth and duration of inundation. In circumstances where the Court cannot be satisfied that the stormwater drainage works maintain the hydrology of the freshwater wetland ECC, the Council contends that the s68 applications should be refused and I accept that submission.
The Council submits that the expectation that the hydrology of the freshwater wetland would remain the same, subject to a 10% range greater or less in the baseline surface and groundwater levels was reflected in condition 59 of the consent (DA 2018/51) bullet points 5 and 7 (Ex 7).

"59. Wetland Hydrological Monitoring and Management Plan (WHMMP)

Prior to the issue of an approval under Section 68 of the Local Government Act 1993 for the proposed drainage work, the submitted WHMMP prepared by Gilbert and Sutherland and dated April 2020 is to be modified to address:

...

• Outside of any major climatic event confirmation that if the monitoring confirms there is a 10% or greater change to surface and/or groundwater levels when compared to the baseline water levels for all rainfall events the corrective actions detailed in the WMAMP and the WHMMP will be activated. In addition, if the WMAMP confirms a 10% or greater decline in VIS scores when compared to the baseline and/or 10% or greater when compared to the previous 12month monitoring period the corrective actions detailed in the WMAMP and the WHMMP will be activated.

...

• Measurable criteria for establishing stabilised results post construction/on maintenance phase. In this regard Council will require at least a year of stabilised results (where the total catchment in relation to the development site is at least 90% developed with dwellings constructed) which reflects the pre- construction baseline levels without intervention or adjustment to the management devices. The allowed deviation from baseline results should be identified (i.e. what deviation is no longer considered acceptable/stabilised). The criteria is to determine whether or not stabilised conditions have been achieved, including specific timeframes and measures to address deviations outside of trigger levels."

Condition 6 of development consent DA 2020/284 also adopted this condition as a requirement of that consent in addition to relevantly conditions 57, 58 and 60 (Ex G).
To be clear, "the measurable criteria for establishing stabilised results", after the "on-maintenance phase" were subject to the constraint that they were to involve at least a year of stabilised results that were to reflect the pre-construction baseline levels without intervention or adjustment to the management devices.
Despite Ms Holton's evidence that the stabilisation prerequisite to the "on-maintenance phase" (before the Council takes over responsibility for the stormwater works in connection with the freshwater wetland) "....is a real incentive for the applicant to pursue appropriate contingency measures", (Tcpt, 7 December 2023, p 317(8)), this requirement has now been displaced by the amendment to the criteria in the WHMMP on 5 December 2023 (day 2 of the hearing). The Council submits this change means that the WHMMP is now inconsistent with condition 59 bullet point 7 and leaves the Council at risk of inheriting stormwater works and freshwater wetland that requires ongoing intervention to keep the hydrology the same (CCWS at pars 79-83).
The Council submits that the effect of the second bullet point in condition 59 is that the applicant can progress to the "operation phase" where the Council is supposed to take control of the stormwater works, when during a 12-month period the water levels are outside of trigger values up to 20% of the time. Again, this is said to be inconsistent with condition 59 because by bullet point 5, corrective actions are to be triggered when the hydrology is outside of trigger values however, bullet point 7 requires "stabilised results" to reflect 12 months of pre-construction baseline levels without intervention or adjustment to the management devices. The Council submits that the Court should not approve the s68 applications and leave the Council responsible for the stormwater works prematurely, and be required to intervene or adjust the management devices on an ongoing basis because the water levels are considered stabilised even if they are outside of the trigger levels up to 20% of the time. The impost on the Council would be considerable if it is required to adjust the splitter pipes in the basins to dial up/dial down exfiltration from the basins, move logs in the bypass swale control device or in any outlet, or install and adjust a removable orifice plate.
It is submitted that the situation would be even more dire were the Council to be required to carry out further "contingency measures" involving measures on public land or measures involving physical works such as excavation or construction to adjust the mitigation measure. Further contingency measures which Ms Holton conceded involved the above works (Tcpt, 7 December 2023, p 319(5-46)). The Council submits this issue alone is sufficient to justify the refusal of the s68 applications. As an approval of the s68 applications on this basis is untenable not only because of the inconsistency of the stabilisation with dot point 7 of condition 59 but also as a matter of merit, as it would leave the Council with an asset where intervention could be required up to 20 % of the time throughout the year.
The Council relies on the evidence of Mr Gaskell who addressed the issue of stabilisation criteria in the context of the definition of the "on-maintenance period" in connection with particular (g)(iii) of contention 1 (Ex 4 p 2) and before the applicant's amendment on the second day of the hearing. In that regard, Mr Gaskell gave evidence that 80% is too low in the stabilisation criteria.
The Council submits that the main means of maintaining the health of the freshwater wetland is through the mitigation measures because, as Mr McCann conceded in Court, "planting is a waste of time". The Council submits that the mitigation measures identified on drawing 201 in Ex E to control surface or groundwater in attempting to maintain hydrological conditions within the freshwater wetland EEC are simply inadequate. This includes the dialling up or down capacity of the infiltration systems - allowing infiltration flows to be increased or decreased by 20% albeit it only serves 85% of the freshwater wetland (Ex 1 at p 7 (Ms Holton)). The infiltration trench along the northeast perimeter of the freshwater wetland, intended to serve areas higher in elevation than the exfiltration systems (Ex 1 p 7 (Ms Holton)). And, the bypass swale control device at the northern end of the swale (if moved to the location identified by the applicant's civil engineer, Mr Boon Soo, in his sketch (Ex 1))- which Mr Thomas said could be used to rehydrate the lower/western 40% of the freshwater wetland (Ex 1 p 6), albeit the plans before the Court do not show the control device in that location.
It is to be noted that the proposal for a bypass swale control device and a dial-up and dial-down capacity for basins 1 and 2 were contained in annexures to the Statement of Environmental Effects (SEE) for DA 2018/51 albeit the Council points out that drawing 4001 in Appendix D to the SEE has an arrow indicating the location of the swale bypass control pit (without any detail as to orientation of the pit on the plan, and noting that there is a swale shown in the northeastern corner of those plans that is not adopted in the s68 application), and drawing DA 4023 has some more detail. Drawing DA 4001 also shows stippling for the dial-up/dial-down areas and at pp 7-8 of Appendix 1 to the SEE (the original WHMMP) includes both a proposal to dial up/down exfiltration from the basins and to use a swale bypass control device. However, the Council submits that the northeastern infiltration trench was not proposed as part of development consent DA 2018/51. Instead the wetland outlet, which is no longer the subject of the s68 applications, was in fact the subject of development consent DA 2018/51 as shown on drawing DA 4001 in Appendix D to the SEE - (by arrow pointing to the swale that is not part of this s68 application) - and drawing DA 4023 (though it has no note qualifying that it is no longer part of the application).
That said, the bypass swale control device, the basins 1 and 2 dial-up/dial-down mechanism, and the wetland outlet (no longer part of the s68 application) were all approved under the EPA Act and the Council imposed condition 58 on development consent DA 2018/51.
Bullet point 5 of condition 59 required the WHMMP to be amended so that, outside major climatic events, if surface water or groundwater levels were outside trigger values corrective actions in the WMAMP and the WHMMP will be activated.
Condition 58 then required the preparation of a new document, the WMAMP, to monitor the associated hydrology and include a range of remedial actions to address decline of the wetland and implement an adaptive management regime which is to be implemented if surface/or groundwater levels change outside of specified trigger levels these corrective actions were to be rolled out in the WHMMP.
The Council contends that a number of further contingency measures during the "on-maintenance phase" within the proposed WHMMP have not found their way into the WMAMP and there are "inclusive" measures that are left up to the discretion of the environmental consultant with the specialist wetland ecologist - which are not in the WMAMP. While the applicant has amended these documents in Annexures B and C and submits them as sufficient to found an approval of the s68 applications I have no confidence in understanding the extent of the amendments after the completion of the hearing - like the Council I remain concerned about the effectiveness of the mitigation measures proposed therein.
The Council embraces the concerns expressed by Mr Thomas about the capacity of the measures proposed in the plans (referred to as the CC drawings) to mitigate against the lowering of the groundwater levels in the freshwater wetland as a consequence of the development. In particular:

(a) it is unclear how the dial up / dial down system can increase or decrease flows to the wetland by 20% ;

(b) in respect of the infiltration trench, there is no detail indicating what proportion of the existing runoff from the undeveloped catchment upslope of this trench will be collected by the trench and directed to the north-eastern corner of the wetland, including whether this runoff will be sufficient to mimic the existing pre-development hydrology ; and

(c) it is unclear from where water would be sourced, where water is to be directed to the wetland via the swale bypass control structure, as the trigger for the bypass swale would be available water in Bioretention Basin 2 being exhausted via the exfiltration process ,

and Mr Thomas had other concerns about the applications before the Court in that:

(d) contingency solutions during the construction phase do not provide sufficient certainty that degradation of the wetland will be prevented, particularly during dry periods where sediment basin water level is low with high sediment load ;

(e) the is uncertainty around the treatment of the seepage area shown on drawing CC-4004 . Council submits that the real issue here is that the boggy ground of the seepage area is a known issue and maintaining the hydrological conditions that the boggy grounds contributes to the wetland has not been addressed properly; and

(f) a number of other specific concerns that are identified in the table below."

Mr Thomas and Mr Gaskell in their expert assessment gave evidence that the swale bypass device will at best (if Mr Soo's sketch is adopted) increase surface water flows to 40% of the freshwater wetland. Additionally, Mr Gaskell gave evidence that he was concerned that if the development dries out the freshwater wetland, it will allow exotic weeds and not wetland species to invade the freshwater wetland (Ecology JER p 7). In concurrent evidence, Mr Soo accepted that water going into the freshwater wetland from the swale bypass control device will run downhill and into the culvert in the freshwater wetland (Tcpt, 5 December 2023, p 131(15-16)). Mr Soo also agreed with the proposition that "the design isn't effective..., to achieve any sort of hydration to the wetland if the bypass needs to be used" (Tcpt, 5 December 2023, p 131(18-27)).
Ms Holton agreed that due to the large volume of water involved in the bypass swale control device when in use there would be some ponding in the freshwater wetland. She also accepted that when there is not such a flood event this swale system is not going to help get hydrology back within the trigger range because it simply cannot be used (Tcpt, 7 December 2023, p 306(10-15 and 22-26)).
The Council submits for the above reason the swale bypass control is rarely, if ever, going to be a useful mitigation measure in the ordinary course.
The Council also submits that the design for the northeastern infiltration trench by Mr Soo is purposefully not adjustable, even though it is proposed to be adjustable in the WHMMP (Ex E; Tcpt, 7 December 2023, p 288(1-17)). Dr Martens accepted that the risk with the northeastern infiltration trench was the supply of too much water not too little (Tcpt, 7 December 2023, p 292(34), p 293(1)). And, while a removable orifice plate to adjust the infiltration trench might be included in an existing pit near the trench, there is no design before the Court or documentation to show how this mechanism will work, and it is not within the tables to the WHMMP (Tcpt, 7 December 2023, p 288(35), p 289(24) Ms Holton).
The Council has prepared a Table at par 121 of the CCWS identifying the unresolved aspects of contention 1 by reference to the hydrology and ecology joint reports and the experts' oral evidence. Its submission in respect of these matters is outlined in italics and bolded. The submissions also set out in detail issues in respect to the applications' compliance with the stormwater management standards relevant to conditions 13, 15 and 21 (CCWS at pars 129-145). The submissions also address at pars 146-153 the interrelationship between the "activities" in the 17-lot consent with the broader works and "activities" in the 99-lot consent and the need for a co-ordinated approvals after the grant of a subdivision certificate for the 99-lot consent - which is not part of the current application. I accept the Council's assessment as to the deficiencies in the s68 applications.

As the applicant submits the development that is approved under the 17-lot subdivision bears a close relationship to the works approved under the 99-lot subdivision. Condition 17 of the consent for the 17-lot subdivision states:

"Relationship with DA 2018/51

Prior to, or concurrent with, the issue of a Subdivision Works Certificate for DA 20201284 a Subdivision Works Certificate application for DA 2018/51 shall be submitted to and approved by the Principal Certifying Authority".

There are no specific preconditions in the development consent for the grant of a s68 application for the 17-lot subdivision.
However, I note the applicant accepts at par 279 of its CWS that the logical sequencing of the carrying out of the approved development under the 17-lot subdivision relies on there being a section 68 approval for works under the 99-lot subdivision.

For the reasons submitted by the Council, as summarised above, I find that the s68 applications ought be refused.
For completeness, I note that during the course of these proceedings the applicant agreed to pay the Council's costs associated with the amended Class 2 application (in proceedings no. 2022/215110) in the amount of $4,000 as well as the Council's costs of the Class 1 proceedings (2022/215090) in the amount of $10,000 within 21 days.

(1) The appeal is dismissed.

(2) Application no. S682022/4997 for approval under s 68(1) of the Local Government Act 1993 in respect of DA 2018/51 for land at 20 North Creek Road, Lennox Head (Lot 1 in DP 517111) is refused.

(3) The exhibits are returned except for A, C, D and E.

(1) The appeal is dismissed.

(2) The application email dated 18 May 2021 for approval made under s 68(1) of the Local Government Act 1993 in respect of DA 2020/284 for land at 20 North Creek Road, Lennox Head (Lot 1 in DP 517111) is refused.

(3) The exhibits are returned except for A, G, H, I and J.

Environment Court Act 1979

Conservation Act 2016

Protection and Biodiversity Conservation Act 1999

Planning and Assessment Act 1979

Government (General) Regulation 2021

(2018) 233 LGERA 170

(2002) 119 LGERA 403

(2004) 138 LGERA 237

(2002) 123 LGERA 431

(1999) 105 LGERA 370

(2018) 236 LGERA 256

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