Was there a breach of Conditions 1, 2, 6 and 23?
62 As her Honour noted (at [147]) a substantial issue in the case concerned the vegetation planted by the first respondent in July 2005 along the riverbank in Stages 1 and 2. Two VMPs had been prepared for the same area of land by Mr Freimanis. The first, which was the 2002 VMP, related to the whole of the riverbank in front of Stages 1 to 4 of the cabins consent whereas both the 2003 and 2004 VMPs related to the riverbank in front of Stages 1 and 2 only. The primary issues of concern to the Council in relation to the vegetation so planted were first, that it was not sufficiently advanced before the two cabins were installed and second, that it was not the type of vegetative regime required by the cabins conditions.
63 Her Honour acknowledged (at [148] and [149]) that the 2002 VMP prepared by Mr Freimanis and approved as part of the cabins consent identified different vegetation regimes to be planted in stages and was to be sufficiently dense so that the cabins were screened from the water. On the other hand, the planting as required under the 2004 VMP did not reflect the vegetation scheme in the 2002 VMP or, for that matter, the 2003 VMP approved as part of the rock wall permit. Her Honour noted that Mr Freimanis agreed that the vegetative regime under the 2004 VMP, which he was asked to prepare, effectively reversed the placement of dense vegetation in the areas indicated in the 2002 and 2003 VMPs. He agreed that the 2004 VMP was fundamentally different to those VMPs.
64 At [186] her Honour acknowledged that the rock wall permit which had been applied for in April 2003 and issued in October 2003, annexed the same VMP as that attached to the EIS referred to in Condition 1 of the cabins consent. Notwithstanding that no application had been made under Part 3A for a permit with respect to the excavation for the front footings of the two cabins, and the view of the Departmental officers that the rock wall permit did not encompass the excavation required for the footings of the cabins, her Honour considered (at [187]) that on Mr Norris' evidence, minimal excavation for the front piers of the cabins, which were just inside the 40m mark from the top of the riverbank, suggested that a Part 3A permit for those excavations would only be directed to a small area of land in Stages 1 and 2 of the cabins consent. Her Honour then observed:
"188 Nevertheless, the Pt 3A permit that has been issued has varied the cabins consent in relation to the area of riverbank in front of stages 1 and 2 because a different VMP has now been implemented for the same land. [The first respondent] had to comply under the RFI Act with the Pt 3A permit issued by the Department in May 2004 and has done so."
65 Reliance was placed on Condition 1 which required the development to be carried out substantially in accordance with the EIS "except where amended by the following conditions of consent". It was submitted that one of those conditions was Condition 6, the terms of which I repeat:
"Compliance with the requirements of the NSW Department of Infrastructure, Planning and Natural Resources attached as Appendix A to this consent and dated 26 June 2003, through all stages of the development."
66 Those requirements clearly contemplated that a Part 3A permit was required with respect to any excavation necessitated by the installation of the cabins. GTA 11 required the cabins to be located at least 30m measured horizontally and at right angles to the flow of the river as projected from the top of the bank after any rock wall bank stabilisation works had been completed. A riparian zone at least 30m wide for the full length of the site was to be rehabilitated in accordance with the VMP to be prepared and approved by DIPNR prior to the issue of the Part 3A permit.
67 However, her Honour found that notwithstanding that no Part 3A permit had been issued pursuant to the GTA, nevertheless, the rock wall permit issued by DIPNR on 2 October 2003 pursuant to the rock wall consent related to the same land as that the subject of the cabins consent.
68 Her Honour then purported to resolve the issue in the following terms:
"191 An alternative approach identified by the First Respondent in par 113 is that there is not a conflict with the Pt 3A permit including the amended VMP issued by the Department. The First Respondent cannot physically comply with both VMPs on the evidence of Mr Freimanis and the Department. The First Respondent has (generally) complied since July 2005 with the VMP attached to the Pt 3A permit. Where there is such inconsistency, as the First Respondent submitted, the preferable course is to construe the instruments to give them effect. That is achieved by accepting that the Pt 3A permit has amended the cabins consent in relation to the VMP. There is much to commend in this approach . In view of my finding that a Pt 3A permit for the cabins consent has not been issued and a permit for at least part of the land within 40m of the riverbank for stages 1 and 2 of the cabins consent has been applied for, I am not able at this point to completely adopt that approach without knowing what is required to be the subject of the permit application now submitted." (emphasis in added)
69 Earlier in her judgment (at [184]) her Honour had observed:
"184 As the Respondents argued, condition 1 which states that it is subject to other conditions of consent can be amended by condition 6, and by a Pt 3A permit if issued by the Department pursuant to that condition. If I find that the Pt 3A permit already issued was issued pursuant to condition 6 that will vary condition 1 in relation to the vegetative regime required on the riverbank from that contained in the VMP in the EIS for the cabins consent."
70 It is apparent from the foregoing that her Honour did not make any finding that the requirement of Condition 1 that the 2002 VMP be complied with was amended by Condition 6, for she seems to have accepted that no Part 3A permit was issued by DIPNR pursuant to the GTA annexed to the cabins consent. Had such a permit been issued and, pursuant to cl 19 of the GTA, a VMP approved in the same terms as the 2004 VMP, then it appears that her Honour would have found that Condition 6 amended Condition 1 accordingly.
71 At [182] her Honour found that as the rock wall permit, amended to include the 2004 VMP, was issued after the grant of the cabins consent, it was not unreasonable, in the Wednesbury sense, for Mr Norris to believe that that permit was issued pursuant to Condition 6 and that Condition 23 of the cabins consent was satisfied. She therefore found that there was no breach of Condition 23.
72 Her Honour then asked herself the question (at [183]): did the rock wall permit issued on 2 October 2003 apply to the cabins consent? However, given her finding that it was open to Mr Norris, who had been supplied with the rock wall permit to have been satisfied that it was the Part 3A permit referred to in Condition 23, and presumably, her earlier finding that if the construction certificate was validly issued then there could be no independent breaches of the cabin conditions by the first respondent, her Honour considered that it was unnecessary for her to determine that question as a matter of law.
73 However, once any question of Mr Norris' satisfaction became irrelevant, the issue squarely arises as to whether first, the rock wall permit was, as a matter of construction of Condition 6 of the cabins consent, the Part 3A permit to which the DIPNR referred in its letter of 26 June 2003; second, whether it was the Part 3A permit to which Condition 23 referred; and third, whether compliance with the 2004 VMP trumped any non-compliance with the 2002 VMP and the provisions of the EIS relating to the timing of the installation of the cabins.
74 So far as Condition 23 is concerned, once it is accepted that a construction certificate was not required to be issued under Part 4A of the EP&A Act with respect to the development the subject of the cabins consent, then Condition 23 has no operative effect as it was clearly predicated upon the assumption that such a certificate was required. There therefore could not have been a breach of that condition by the first respondent in failing to obtain a Part 3A permit in respect of the excavations for the footings of the cabins.
75 On the other hand, the failure to obtain such a permit and to obtain approval of a VMP to which cl 19 of the GTA referred, in my view, did amount to non-compliance with the requirements of DIPNR and, therefore, constituted a breach of Condition 6 which clearly contemplates that a Part 3A permit for the excavations of footings of any of the cabins was to be obtained prior to the cabins being installed. That did not occur. Be it technical or otherwise, in my opinion there was a breach of Condition 6.
76 The first respondent submitted that Condition 1 was not breached as a consequence of the 2002 VMP not being implemented. It was submitted first, that that condition only required that the development be "substantially in accordance" with the EIS. It was unnecessary to comply with all the details of the EIS providing there was compliance with its general substance or essence.
77 Accepting for the purpose of the argument that there was some flexibility permitted in relation to the implementation of the 2002 VMP, what was carried out clearly did not come close to substantial compliance therewith. Accordingly, unless Condition 6 amended Condition 1, the implementation of the 2004 VMP did not constitute compliance with that condition.
78 Second, the first respondent submitted that the effect of Condition 6, incorporating the requirements of DIPNR including its GTA, essentially left it to that agency as to which VMP was to be implemented. There was nothing in cl 19 of the GTA which required the VMP referred to therein to conform with the 2002 VMP. In particular, reliance was placed upon the provisions of s 91A(3) which mandated that a consent granted by the Council must be consistent with the general terms of any approval proposed to be granted by an approval body such as DIPNR.
79 However, in my opinion there is no necessary inconsistency between the provisions of Condition 1 including the 2002 VMP and the requirements of cl 19 of the GTA which were incorporated into the cabins consent by Condition 6. The difficulty facing the first respondent is that no VMP was prepared or approved by DIPNR prior to the issue of the Part 3A permit contemplated by that provision. It is noteworthy that the rock wall permit involved a VMP that was consistent with the 2002 VMP. In my opinion there is much to be said for the view that had that VMP been approved by DIPNR pursuant to cl 19 of the GTA which formed part of the cabins consent, it would have become incorporated into that consent and could not be modified by DIPNR approving the 2004 VMP pursuant to s 22C(4) of the RFI Act. Such a variation might be valid for the purposes of that Act but would not be a valid modification of a development consent for the purposes of the EP&A Act which can only occur by compliance with the provisions of s 96 of that Act.
80 In other words, once a VMP is approved pursuant to a Part 3A permit issued in accordance with GTA which form part of a development consent, although it is open to DIPNR to modify or vary that VMP for the purposes of the RFI Act, it has no power to unilaterally modify that VMP for the purposes of the EP&A Act which can only be achieved by the Council, or the Land and Environment Court on appeal, approving such a modification pursuant to s 96 of that Act.
81 The Council relied upon s 93(2) of the EP&A Act which provides that an approval, such as the issue of a Part 3A permit, may be granted subject to conditions that are not inconsistent with the development consent. It was submitted that this provision would have prohibited DIPNR from approving a VMP pursuant to cl 19 of the GTA which was inconsistent with the 2002 VMP. This is a difficult question because the cabins consent by its terms contemplates two VMPs: the first being that annexed to the EIS and the second being that approved pursuant to cl 19 of the GTA.
82 As I have already observed, there is nothing in the cabins consent that expressly required a VMP approved pursuant to cl 19 to be consistent with the 2002 VMP. The first respondent's submission was that no such consistency was required which is why Condition 1 is subject to amendment by the conditions which follow it. One of those conditions, it was submitted, is Condition 6 which incorporates the GTA. Accordingly, it follows that a VMP approved pursuant to cl 19 of the GTA need not be consistent with the 2002 VMP and to the extent of any inconsistency it has the effect of amending that VMP as incorporated into Condition 1.
83 In my tentative view there is substance in this submission. As presently advised I do not consider that a VMP approved by DIPNR pursuant to cl 19 of the GTA would run foul of s 93(2) given that Condition 1, which requires the development to be carried out substantially in accordance with the EIS (and which thus includes the 2002 VMP) is subject to being amended by the subsequent conditions of the consent including Condition 6. However, it is unnecessary to express a final view on this issue as no VMP has been approved by DIPNR pursuant to cl 19 of the GTA annexed to the cabins consent.
84 One would anticipate that if and when such a VMP was prepared, DIPNR (or its current manifestation) would consult with the Council before it granted approval to a VMP which was fundamentally different to that the subject of the EIS.
85 However, the fact remains that the only VMP the subject of the cabins consent is the 2002 VMP and that VMP was not implemented before the cabins were installed on Lots 40 and 47. Subject to what follows, the first respondent breached Condition 1.