Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160 | Case summary

Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160 | Case summary | Zoe

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Monday 29 June 2009 BAULKHAM HILLS SHIRE COUNCIL v KO-VEDA HOLIDAY PARK ESTATE LTD & ANOR Judgment 1 TOBIAS JA: At all material times the first respondent was the owner of Lot 1 DP 119919, Lot 1 DP 783552 and Lot 5 DP 729341 (the caravan park land) which was bounded by River Road, Wisemans Ferry on the west and the Hawkesbury River on the east and upon which it conducted a holiday park known as "Ko-Veda Holiday Park". Within Lot 5 DP 729341 (Lot 5) there were 47 sites upon which were erected timber holiday cabins (the cabins). 2 The first respondent was also the owner of Lot D DP 384298 (Lot D) which also had frontages to River Road and the Hawkesbury River and which had a common boundary with the caravan park land to its immediate south. 3 On 1 August 2003 the appellant (the Council) granted development consent (the cabins consent) for the relocation from Lot 5 to Lot D of the 47 cabin sites subject to a number of conditions (the cabin conditions). 4 By an application filed on 4 July 2007 in Class 4 of the jurisdiction of the Land and Environment Court, the Council sought declarations that the first respondent had breached a number of the cabin conditions. The respondents to that application were the first respondent and the second respondent (Mr Norris) who was an accredited certifier pursuant to s 109T(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The reason Mr Norris was joined to the proceedings was because the Council sought a declaration that Construction Certificate No. PC 22506 dated 20 November 2006 which had been issued by Mr Norris purportedly pursuant to Part 4A of the EP&A Act (the Certificate) had been issued in breach of s 109F of that Act and was therefore invalid. 5 The proceedings were heard by Pain J who on 4 July 2008 found that there had been no breach by the first respondent of any of the cabin conditions except Conditions 5 and 46 and that the Certificate had been validly issued by Mr Norris. However, as the Council did not seek any relief with respect to those breaches, on 4 August 2008 her Honour ordered that the Council's application be dismissed and that it pay the costs of both respondents: Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd & Anor [2008] NSWLEC 181. It is from those orders that the Council appeals to this Court.

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The particulars of the alleged breaches 7 The Council's Further Amended Points of Claim (FAPOC) relevantly alleged the following breaches as summarised by the primary judge at [5] of her judgment: " Breach of cabins consent - First Respondent Breach of condition 1 (i) Condition 1 requires the development being carried out substantially in accordance with Development Application No. 2430/03/HE and accompanying Environmental Impact Statement (EIS) and all supplementary and additional information received by Council except where amended by the subsequent conditions of consent. (ii) The EIS referred to in condition 1 of the cabins consent comprised, inter alia , volume 1 "Main Report" prepared by Integrated Site Design dated June 2002. (iii) The EIS proposed a vegetation program of the foreshore of the Caravan Park where adjoining Hawkesbury River in a staged manner and to precede the construction of the cabins to be relocated, the subject of the cabins consent. (iv) In about December 2006 the First Respondent constructed, or alternatively procured the construction, of a cabin on a site known as cabin lot 47. (v) In about March 2007 the First Respondent constructed, or alternatively procured the construction, of a cabin on a lot known as cabin lot 40. (vi) The construction of the cabins was in breach of condition 1 of the cabins consent. Particulars A. Page 23 of the EIS provides that in order to ensure appropriate levels of visual screening cabin installation will not occur until the revegetation zones have progressed to a suitably advanced stage, expected to be achieved between 18 and 24 months after finish of installation of the planting. B. Section 6.12 of a Report entitled "Ko-Veda Holiday Park Cabin Development Native Vegetation Revegetation and Management Plan" dated June 2002 prepared by Earth Repair & EcoHort Pty Limited and comprising an Appendix to the EIS prescribed the nature of the re-vegetation project staging (the vegetation management plan - VMP). C. Section 4.8 at page 24 of the EIS provided that throughout all stages cabins are not to be installed on sites until the revegetation programme in front of those cabins is in place and sufficiently advanced. D. Page 25 of the EIS provided for certain stages with the installation of cabins on the initial 12 sites to be undertaken in stage 2. D1. A staging plan submitted with the development application incorporated by condition 1 of the consent provided for the installation of cabins on the initial 12 sites to be undertaken in stage 2. (this plan was exhibit B in the proceedings) E. At the time of the installation of the cabins Lot 40 and Lot 47 (a) the vegetation in front of those sites was either not in place or not sufficiently advanced as described in the EIS. (b) the revegetation zones had not progressed to a suitably advanced stage in order to ensure appropriate levels of visual screening, from the Hawkesbury River. (c) the components of stage 1 identified on page 25 of the EIS, or most of them, had not been undertaken prior to the initial installation of cabins. (d) the vegetation undertaken at the Caravan Park did not comply with the description of the revegetation treatment described in section 6.12 of the VMP appended to the EIS. Breach of condition 2 (vii) Condition 2 provides for the installation of cabins in stages as detailed in the EIS. Page 25 identifies the stages for works on the subject site and the components of those stages. (viii) The installation of cabin Lot 40 and cabin Lot 47 was not in accordance with the staging of works set out in the EIS. The same particulars as alleged for condition 1 apply to this breach also. Breach of condition 6 (ix) Condition 6 of the cabins consent prescribed compliance with the requirements of the New South Wales Department of Infrastructure Planning and Natural Resources (the Department) as set out in its letter dated 26 June 2003 forming Appendix A to the Development Consent. (x) Clause 1 of the general terms of approval in Appendix A prescribed the obtaining of a permit under Pt 3A of the Rivers and Foreshores Improvement Act 1948 (the RFI Act) prior to the commencement of any works upon the site. (xi) The First Respondent failed to obtain a permit under Pt 3A of the RFI Act in relation to works the subject of the cabins consent prior to the carrying out of works in relation to the cabins consent. (xii) In the alternative, the First Respondent failed to obtain a permit under Pt 3A of the RFI Act in relation to works concerned with the installation of cabins on the subject land prior to the carrying out of those works. Breach of condition 23 (xiii) Condition 23 required the provision of documentary evidence of a Pt 3A permit under the provision of the RFI Act prior to the issue of the CC. In such breach of condition 23 the first respondent failed to provide documentary evidence of a Pt 3A permit under the provision of the RFI Act prior to the issue of the CC. (xiv) In the alternative, in breach of condition 23 the first respondent failed to provide documentary evidence of a Pt 3A permit under the provision of the RFI Act in respect of all works for which the CC was sought prior to the issue of the CC. Breach of condition 30 (xv) Condition 30 provided that on completion of each stage of landscape works the First Respondent was to arrange an inspection of landscape works undertaken by the Council and the relevant officer from the Department, and the installation of subsequent stages of cabins was not to proceed until the First Respondent was advised in writing by both bodies that the landscape works had been completed satisfactorily. (xvi) Upon completion of landscape works undertaken at the holiday park the First Respondent failed to arrange the required inspection. (xvii) The two cabins were installed prior to either of the required inspections, or any advice in writing by either of the bodies above referred, that landscape works have been completed satisfactorily. (xviii) Condition 30 required satisfactory completion of landscape works prior to the issue of a building CC for each stage of the development. In breach of condition 30 the landscape works were not satisfactorily completed prior to the issue of the building CC for the stage for which it was issued. Breach of condition 41 (xix) Condition 41 provides that no work commence on the site until such time as a Pt 3A permit pursuant to the RFI Act has been issued by the Department. (xx) The First Respondent undertook, or alternatively procured the undertaking, of works on the subject site prior to obtaining a Pt 3A approval as above referred. Particulars (a) The First Respondent undertook landscaping works. (b) The First Respondent procured the construction of the cabins above referred. Construction Certificate - breaches of Mr Norris A number of breaches of conditions give rise to invalidity of the CC issued by Mr Norris are specified. Breach of condition 1 (xxi) On or about 23 November 2006 Mr Norris issued, as principal certifying authority, Construction Certificate No. PC22506 with respect to "Stage 1 (Relocation of 12)". (xxii) On its proper construction the cabins consent provided for no erection of cabins in stage 1, or alternatively did not provide for the erection of all 12 cabins in stage 1. Breach of condition 23 (xxiii) Condition 23 of the cabins consent prescribed the provision of documentary evidence of a Pt 3A permit under the provision of the RFI Act prior to the issue of the CC. (xxiv) No documentary evidence of a permit pursuant to Pt 3A of the RFI Act as applicable to the cabins consent was issued prior to the CC. (xxv) In the alternative, no permit pursuant to Pt 3A of the RFI Act as applicable to the works the subject of the CC was issued prior to the issue of the CC, and accordingly no documentary evidence thereof existed prior to the issue of the CC. Breach of condition 26 … Breach of condition 30 (xxix) Condition 30 of the cabins consent provided that on completion of each stage of landscape works, the First Respondent was to arrange an inspection of landscape works undertaken by the Council and the relevant officer from the Department, and the installation of subsequent stage of cabins was not to proceed until the First Respondent was advised in writing by both bodies that the landscape works had been completed satisfactorily and that the satisfactory completion of landscape works was to occur prior to the issue of a building CC for each stage of the development. (xxx) Prior to the issue of the CC neither the inspection above referred or all of it, nor any advice in writing by either or both of the bodies above referred, that landscape works have been completed satisfactorily had occurred. (xxxi) Mr Norris did not satisfy himself, or alternatively could not have rationally been satisfied, that the matters the subject of the CC were not inconsistent with the terms of the cabins consent or that conditions of the cabins consent that must be complied with before the issue of a CC may be issued had been complied with. (xxxii) The issue of the CC was in breach of s 109F of the EP&A Act and/or cl 145 of the EP&A Regulation and/or cl 146 of the EP&A Regulation."

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Extracts from documents relevant to the issues o The Environmental Impact Statement referred to in Condition 1 (the EIS) 20 Paragraphs 4.6 and 4.8 of the EIS were relevantly in the following terms: " 4.6 Proposed Revegetation and Landscaping A comprehensive revegetation plan has been prepared for Lot D by John McIntyre and Associates in conjunction with EcoHort Pty Ltd and is found at Appendix E. Key elements of the plan include: o A 30m to 33m wide riverbank revegetation zone comprising four different planting treatment regimes based on selected species; … o A staged approach to the provision of all planting and landscape elements, and … Riverfront and Cabin precinct planting From a perusal of the plan it can be seen that the four different planting treatments along the foreshore provide for: o Five areas of dense river-flat plantings that screen views to and from the river; o Five points where open grassy forest treatments allow for some limited framed views to the river through the trees. Access to the river via the proposed ramps also occurs at these points; o Five groups of riverbank casuarinas with associated grassed viewing areas, and o Groupings of tall fire retardant rainforest trees around the clusters of cabins. The plan also selects a range of interrelated species to ensure appropriate proportions of ground cover, understorey and canopy specimens within the treatment zones. … This will also allow for some limited views to the river essentially from pedestrian viewing areas while ensuring that views from the river will be of dense plantings. … Staging and management Although the overall revegetation program could be implemented over the course of a continuous 24 month installation, maintenance and monitoring period it is intended to implement the program in four stages over a longer period . Regardless, in order to ensure appropriate levels of visual screening, cabin installation will not occur until the revegetation zones have progressed to a suitably advanced stage. These levels are expected to be achieved between 18 and 24 months after initial installation of the planting. A wider discussion of development staging is set out under 4.8 below. … Landscaping Bond A bond is to be put in place with DLWC with respect to the revegetation works. 4.8 Staging and timing : It is proposed that the development be undertaken in four stages. With respect to the short term dwelling sites these Stages will commence on the northern portion of Lot D adjacent to the existing Ko Veda operation and move towards the south. Throughout all Stages cabins are not to be installed on sites until the revegetation program in front of those cabins is in place and sufficiently advanced. When the first cabin is installed in Stage 1 the revegetation program for Stage 2 will commence. Similarly when the first cabin is installed in Stage 2 the revegetation program for Stage 3 will commence and so on. The four Stages can be set out as follows: Stage 1 … o Provision of revegetation and landscaping for initial 12 sites; … Stage 2 … o On-going installation of cabins on initial 12 sites established in Stage 1; … Stage 3 … o On-going installation of cabins on second group of 12 sites established in Stage 2; … Stage 4 … o Installation of cabins on third group of 12 sites established in Stage 3; …" (emphasis added) 21 Part 5 of the EIS was headed "IMPLICATIONS OF THE PROPOSAL". It relevantly stated: " 5.1 Type of application: Integrated Development : The proposal to relocate dwelling sites from the existing Ko Veda operation to the more recently acquired adjoining allotment requires development consent. Given the proposal involves some minor excavation on land adjacent to the Hawkesbury River a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 may be required. This has been discussed with the Department of Land and Water Conservation and in addition to comments already received it is evident that the proposal should be referred to the Department for comment. Consequently the proposal falls within the category of Integrated Development as defined in Section 91 of the EPA Act 1979 (as amended)." 22 Paragraph 5.3 of the EIS was headed "Visual Impact". After referring to the requirements of a Scenic Quality Study, it continued: "Accordingly the proposal complies with these requirements and is consistent with each of these suggested responses as follows:

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… o The visibility of the proposal has been assessed from the water. Photomontage material and drawings have been prepared and during the previous court case an inspection of the site was made from the water. This work has resulted in particular elements of the current design; … o A comprehensive landscape management plant accompanies the application; o The landscape management plan includes a comprehensive tree planting and screening program based on species once believed to be prevalent on the site and in the general area." 23 It is not unimportant to note that the landscaping proposal detailed in the EIS was in response to a previous application which had been rejected by the then Chief Judge of the Land and Environment Court: Denis Gelle Pty Ltd and Integrated Site Design Pty Ltd v Baulkham Hills Shire Council [2001] NSWLEC 229 (the Denis Gelle decision). Under the heading "Previous Court Case", the EIS noted that the proposed approach to the visual impact of the current development addressed the main findings of her Honour on that issue which the EIS then quoted as follows: "53. The visual impact on the river scenery is clearly the major issue. Dr Lamb and Mr Smith agreed that, without effective screening, the visual impact of the proposal is unacceptable. They also agreed that with effective screening the proposal would be acceptable. This evidence is tantamount to saying that the proposed development will be acceptable only if it cannot be seen. 54. Given that the proposal's acceptability depends on the effectiveness of screening, the likelihood that the proposed landscaping will perform as claimed is of paramount importance. On this issue the experts part company. Smith saw no difficulty in implementing the landscape plan. He pointed out that the landscaped area is communal land and will be managed by the caravan park management. Dr Lamb thought that the proposal is not feasible and believable because the dense landscaping required for screening will obscure the views from the 50 individually owned cabins. 53. I prefer Dr Lamb's evidence. In my opinion, there is a reason for concern that the landscaping will not turn out in reality as shown on the landscape plans and will not achieve the degree of screening suggested in the applicant's photomontages. While I accept that the landscaping proposal is made in good faith, I do not think that good faith is sufficient to provide certainty that it can be implemented. The dense landscaping needed for effective screening is arguably in conflict with the interests of owners of the cabins. 56. I am strengthened in this view by the fact that the applicant is not proposing to delay the erection of the cabins until the landscaping has grown to maturity. The owners of the cabins will therefore have full views of the river when they purchase. As the landscaping becomes denser, the views will gradually diminish. It would need only minor interference to retard the growth or change the character of the landscaping. Any change that favours views will reduce the effectiveness of the screen. 57. I have given consideration to the attempt by the landscape designer to reconcile the conflict between the screening and views by the proposed placement of alternate densely and lightly vegetated sections. Mr Smith agreed that this scheme would provide only 'keyhole views'. I note that Mr Sainty was unable to refer the Court to any existing landscaping where this method has been successfully employed in a river environment. 58. I conclude that the landscaped screen is unlikely to be effective. Without such a screen the visual impact will be unacceptable." 24 The EIS continued in the following terms: "These findings highlight the importance of a landscape screening program that is achievable, that places a higher priority on views from the river than views to the river and delays the placement of cabins to ensure the success of the planting program. As already noted in 4.6 above, the proposal in the current application specifically addresses these issues through a defined and staged planting program designed to provide predominantly dense screening of the proposed cabins with defined river bank viewing areas. In addition the program provides for the planting program to be sufficiently advanced prior to the installation of cabins. Such a comprehensive, integrated approach has rarely, if ever, been seen before along the river and underlines the proponent's commitment to the issue." (emphasis added) 25 Appendix E to the EIS comprised a vegetation, regeneration and management plan dated June 2002 (the 2002 VMP) of which the principal author was Mr Edgar Freimanis. 26 In its introduction the authors stated their intention to design a vegetative landscape that would allow for a balanced outcome that would satisfy the requirements of the holiday park proprietors and the other relevant stakeholders including the Department of Land and Water Conservation (DLWC). It also stated that it was intended to satisfy the concerns raised in the Land and Environment Court in the Denis Gelle decision. 27 Part 6.5 of the 2002 VMP was headed "Plant Species Selection and Recommended Revegetation Treatments". It proposed five revegetation treatments of the riparian zone between the river and the cabin sites of which the first was referred to in the following terms: " Dense River-flat Forest Treatment No.1 - The planting and restoration of a tall and dense River-flat forest, in the riverbank vicinity. Trees are expected to eventually reach a height of 30 meters, above a thick understorey of shrubs, vines, ferns and grasses in a wood-chip/leaf mulch planting bed. It is expected that the dense River-flat Forest will eventually block views both to and from the river. This treatment is proposed over an area of approximately 5130m². Refer to section AA in Figure 7 for a cross-sectional, artistic depiction of the mature Dense River-flat Forest Treatment No.1. This treatment could not be applied to the entire 380 meter long riverbank area, due to the Land and Environment Court [in the Denis Gelle decision] raising safety and amenity concerns about applying this treatment over the entire riverbank area." 28 The reference to Figure 6 which formed part of the 2002 VMP indicates that except at five locations along the river frontage, where access was proposed upon terms, the Dense River-flat Forest Treatment Number 1 was proposed in front of the vast majority of the future cabin sites. In particular, that treatment was proposed directly in front of sites 40 and 47 upon which the two cabins which prompted the current litigation had been installed. 29 Paragraph 6.12 of the 2002 VMP was headed "Revegetation Project Staging and Overall Project Costs" and stated: "The proposed revegetation project is to be carried out over 4 x 24-month stages. This equates to the overall revegetation project being implemented over an eight-year period. Each revegetation stage will be implemented 18 to 24 months before cabin installation works are started. The cabins are proposed to be installed over 4 stages with the first, second and third stages involving the installation of 12 cabins each and stage 4 involving the installation of 11 cabins. Stage 1 of the revegetation works will be initiated from the north-eastern end of the riverbank section, with each subsequent stage of the project being implemented in the relevant adjoining area. … In general, the installation of the cabins can only proceed after the relevant area of riverbank (or boundary treatment) has been revegetated using specifications outlined in section 6.0 and figures 6 and 7 and has developed to standards outlined in section 7.0. It is anticipated that each revegetation stage will take between 18 to 24 months to reach the standards outlined in section 7.0. Stage 1 of the revegetation project will involve implementing the 4-specified riverbank revegetation treatments, as outlined in figure 6. … After initial installation, the stage 1 revegetation sites will require a 18-24 month maintenance period to ensure that the plantings have developed to standards outlined in section 7.0. Once the stage 1 works are established to standards outlined in section 7.0 and have been signed-off by an appropriate auditor (council and/or DLWC officer), the installation of the first 12 cabins can begin . Once the installation of the first 12 cabins has begun the Stage 2 revegetation works should be implemented. The process of installing each Revegetation Stage 18 to 24 months prior to initiating cabin installation should be replicated for all of the proposed 4-stages of revegetation and cabin installation works. If the revegetation development standards are not acceptable within the anticipated 18 to 24 month period after installation, an extension of the plant establishment period will be required and will delay cabin installation until acceptable standards are reached. For a detailed assessment and timing of works refer to Table 3." (emphasis added) 30 It will be appreciated that the signing off referred to in that part of the above extract from the 2002 VMP which was emphasised is reflected in Condition 30 of the cabin conditions.

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It was stated that the reason for this condition was that works prescribed by the RFI Act cannot commence before the Applicant obtains a Part 3A permit. 33 The letter continued: " The attached GTAs are not the actual permit, the applicant must submit a completed Application for Part 3A Permit form together with the application fee, receive the Part 3A permit from the Department after consent has been issued by council and before commencement of any works. The permit will be issued upon request subject to payment of the prescribed fee, and subject to payment of any security required by the Department." (emphasis in original) 34 There then followed the GTA. In the introduction to these terms it was noted that a permit issued under Part 3A of the RFI Act was required to carry out certain works "including excavations" on, in or under "protected land" which was stated to include the Hawkesbury River. The document then continued: "Pursuant to Part 3A of the RFI Act, DIPNR, having reviewed the documentation associated with the DA, proposes to grant an approval to DA 2430/03/HE (subject to conditions). DIPNR's General Terms of Approval for inclusion as conditions of consent, are set out below:" 35 The following provisions of the GTA are relevant: "1. Any work which requires a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 ('Part 3A permit') is not to commence until such time as a Part 3A permit has been applied for, and subsequently issued by DIPNR. Any work the subject of a Part 3A permit must be carried out in accordance with drawings and any plans required by these conditions, and approved by DIPNR, and which will accompany the Part 3A permit. … Location of Cabins 11. The cabins are to be located at least 30m, measured horizontally and at right angles to the flow, as projected from the top of the bank after any rock bank stabilisation works. The location of the cabins must not prevent the full and satisfactory implementation of the Vegetation Management Plan (VMP). Plans 12. Drawing No. DA-02, by Integrated Site Design, dated May 2002, and all other affected drawings, are to be amended to satisfy condition 11. The amendments are to be prepared in consultation with and with the approval of DLWC prior to the issue of the Part 3A permit . … Designation of Riparian Zone 17. A riparian zone at least 30 metres wide , measured horizontally as projected from the top of the bank after any rock bank stabilisation works, consisting of local native plant species, shall be maintained along the Hawkesbury River for the full length of the Site. Site Rehabilitation - Vegetation 18. Site rehabilitation and proposed landscaping works must protect any remnant local native riparian vegetation at the Site, including existing reed beds, and restore any riparian zones, including within the watercourse, disturbed or otherwise affected by the development to a state that is reasonably representative of the natural ecotone of the protected waters system and as required in the Vegetation Management Plan (VMP). 19. A VMP is to be prepared by a person or persons with professional qualifications, knowledge and experience in bushland rehabilitation practices and the preparation of such plans, in consultation with, and with the approval of DIPNR prior to the issue of the Part 3A Permit . The VMP is to fully address all issues relating to the protection establishment and maintenance of the riparian zone. The VMP is to be in accordance with, but not limited to, the guideline 'How to Prepare a Vegetation management Plan' ( Attachment B ). The VMP is to include a costing breakdown for each aspect of its implementation, including monitoring, reporting and maintenance for a period of not less than two years after the date of the final planting. This costing will form the basis for a bond. … Cash Bond or Bank Guarantee 39. The applicant for a Part 3A permit will be required, as a pre-condition to the granting of the Part 3A permit, to provide a cash bond or bank guarantee, prior to the issue of any Part 3A permit, for the amount required to cover the cost of constructing the gangway and pontoons, decommissioning any temporary sediment and erosion controls and the rehabilitation and maintenance of the riparian zones as required by these conditions. … 41. Any cash or bank guarantee will be held until such time, as any works, any rehabilitation works and any specified maintenance period are satisfactorily completed in accordance with the conditions of the Part 3A permit. ..." (emphasis in original)

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36 Condition 11 of the GTA refers to "rock bank stabilisation works" (the rock wall works). This is a reference to a consent granted by Pearlman J in the Denis Gelle decision for the construction of a rock revetment wall to prevent scouring along approximately 230m of the bank of the Hawkesbury River on the northern part of Lot D subject to conditions. Those conditions were not in evidence but it was common ground that the construction of that wall required a Part 3A permit from DIPNR or its predecessor. 37 On 23 April 2003 an application was lodged with DIPNR for a Part 3A permit for the rock wall works as required by the conditions of the rock wall consent. 38 On 2 October 2003 DIPNR issued a Part 3A permit (the rock wall permit) to the first respondent's predecessors. The first respondent relied upon the fact that that permit was issued after DIPNR had issued its GTA in respect of the cabins application by its letter to the Council of 26 June 2003, as well as after the Council had forwarded a copy of the cabins consent to DIPNR on 12 August 2003. The permit was for the stated purpose of undertaking "earthworks associated with the construction of riverbank rock scour protection (rock rip-rap) for a stream length of approximately 230m of the bank of the Hawkesbury River on the northern part of Lot D DP384298." 39 Condition 1 was headed "Area and Extended Works" and stated the following: "● General Arrangement - Rock Revetment at Wisemans Ferry , Drawing Numbers 4622-01 and 4622-02, Issue B, by Patterson Britton & Partners Pty Ltd, last amendment dated 7 November 2002. ● Vegetation/Revegetation Management Plan (VMP) by Ecohort Pty Ltd dated August 2003 (Issue B)." 40 It was common ground that the Vegetation/Revegetation Management Plan referred to in Condition 1 (the 2003 VMP) was, relevantly, in all respects consistent with the 2002 VMP. Condition 26 et seq of the rock wall permit required site rehabilitation in accordance with that VMP. The permit expired on 2 October 2004. 41 Pursuant to cl 50 of the conditions of that permit, a bond in the amount of $58,135 was provided for "the cost of rehabilitating the riparian zone (planting and installation component of the VMP) and the cost of maintaining the rehabilitated riparian zones (maintenance and monitoring component of the VMP) as required by these conditions …"

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42 In February 2004 an approach was made on behalf of the first respondent to DIPNR seeking its approval of an amended VMP. Some time in February/March 2004 a draft concept plan to amend the rock wall VMP was provided to DIPNR which was then the subject of some negotiation. On 5 May 2004 DIPNR amended the rock wall permit by requiring implementation and maintenance to be carried out in accordance with the amended VMP (the 2004 VMP). The planting required under that VMP was carried out in July 2005. On 1 August 2005 two officers of DIPNR inspected the revegetation on Lot D and by letter dated 10 August 2005 following that inspection, DIPNR agreed to reduce the existing bond by $50,215, being the planting and installation component of the 2004 VMP. 43 The 2004 VMP differed fundamentally from the 2003 VMP the subject of the rock wall permit. In the latter, Dense River-flat Forest Treatment No. 1 was proposed over an area of approximately 2,449m². In the 2004 VMP that treatment was proposed only over an area of 432m². 44 With respect to Open Grassy River Flat Forest Treatment No. 2, the 2003 VMP proposed that treatment over an area of approximately 905m². In the 2004 VMP that treatment was eliminated. 45 In the 2003 VMP, Riverbank Casuarina Treatment No. 3 was proposed over an area of approximately 320m², being an uninterrupted line of vegetation in front of the cabin sites to which the plain related, namely Stages 1 and 2. This treatment was not included in the 2004 VMP. Further, that VMP substituted Riverbank Advanced Casuarina Treatment No. 2 in the locations where the 2003 VMP had proposed Dense River-flat Forest Treatment No. 1. The former was, apparently, significantly less dense than the latter. 46 The effect of the 2003 VMP (as well as the 2002 VMP) was to prevent views of the river from the cabins and of the cabins from the river which was the very reverse of what was proposed by the vegetation planting specified in the 2004 VMP. 47 The evidence before the primary judge and to which she referred at [192] suggested that at least two Council officers were aware of the negotiations between DIPNR and the representative of the first respondent for an amended VMP for the rock wall permit and that one of them had said that the Council would defer to DIPNR on matters of vegetation. However, her Honour only refers to this evidence in the context of the first respondent's submission that in the exercise of her discretion she should decline to grant the Council the relief it sought. It is not relevant to the issue of breach and to the fundamental difference between the 2002 and 2003 VMPs on the one hand and the 2004 VMP on the other. This is not to suggest that it was not open to DIPNR to vary the rock wall permit which it had issued on 2 October 2003 or its conditions: it clearly had that power: see RFI Act, s 22C(4). 48 As I have indicated, the rock wall permit issued on 2 October 2003 expired on 2 October 2004. On 21 February 2007 the Department of Natural Resources (DNS) (which had succeeded DIPNR) purported to renew the permit for two years from 2 October 2005 to 2 October 2007. This "renewal" was confirmed in a further letter from DNS dated 15 May 2007. The permit was thus "renewed" after it had expired on 2 October 2004. Whether DNS had power to so "renew" the permit rather than issuing a new one is doubtful, but it was not the subject of argument and can be put to one side. 49 The two cabins, the installation of which on Lots 40 and 47 prompted the present litigation, were said to have been installed in December 2006 and March 2007 respectively, some 17 to 20 months after the planting component of the 2004 VMP had been completed.

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51 The FAPOC of the Council alleged, relevantly, breach by the first respondent of conditions 1, 2, 6, 23, 30 and 41 of the cabin conditions. After reciting the issue by Mr Norris of the Certificate, paragraph 44 of the FAPOC alleged that it was issued in breach of the cabins consent and was invalid. It was alleged first, that on its proper construction the cabins consent did not provide for the installation of any cabins in Stage 1, an allegation made also against the first respondent as constituting a breach by it of Condition 1. Second, it was alleged that Mr Norris did not satisfy himself or, alternatively, could not have rationally been satisfied, that the matters the subject of the certificate issued by him were consistent with the terms of those cabin conditions that were required to be complied with before a "construction certificate" was issued, namely, Conditions 23 and 30. 52 Accordingly, it was alleged that the issuing of the "construction certificate" was in breach of s 109F(1)(a) of the EP&A Act and/or clauses 145 and 146 of the Regulation. These allegations were denied by both the first respondent and Mr Norris. 53 The relevance of the Certificate, being a "construction certificate" issued pursuant to Part 4A of the EP&A Act, to the Council's case was that if it was declared invalid, any work done in reliance upon it was invalid whether or not there was a breach of any of the cabin conditions. On the other hand, the relevance of a "construction certificate" to the first respondent was that if it was valid then any work done pursuant to it, such as the installation of the two cabins, could not be in breach of any cabin condition in respect of which Mr Norris had expressed satisfaction that it had been complied with for the purposes of cl 146(c) of the Regulation. Accordingly, so it was submitted, even if there was a breach of any of the specified conditions objectively determined, any such breach was, in effect, trumped by the validity of the "construction certificate" and the failure of the Council to establish that Mr Norris' satisfaction that the relevant conditions had been complied with was unreasonable in the Wednesbury sense: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 54 The foregoing was encapsulated by the primary judge in the following paragraphs of her judgment: "150 As identified at par 146 (and earlier in the judgment), the Council argued that the certifier had breached the same four conditions of consent as the First Respondent (conditions 1, 2, 23 and 30). Under s 80(12) of the EP&A Act a CC once issued is taken to form part of the development consent. Work carried out in reliance on the CC is done under the development consent. It is therefore necessary to determine as a threshold issue whether the CC was validly issued given that the erection of the two cabins in issue was done in reliance on it. If valid I do not consider there can be a separate breach by the First Respondent of conditions 1, 2, 23 and 30 in relation to the work the subject of these proceedings in light of the framework for CCs in the EP&A Act, particularly s 80(12). Accordingly the cabins will have been validly erected and the balance of cabins which are approved under the CC can also proceed (ten in all). The finding that the CC is valid is also relevant to whether there is a breach of condition 41 by the First Respondent. A breach of condition 41 (requiring that a Pt 3A permit be issued before any works commence on site) is only alleged against the First Respondent. If the CC issued by Mr Norris is valid however there cannot be a separate breach of condition 46 by the First Respondent. Depending on my findings, issues may arise for Mr Norris in issuing a CC for the subsequent stages of cabin installation. … 195 I have held the CC was validly issued by Mr Norris and the two cabins authorised to be constructed for stage 1 are validly constructed. As identified in par 150, the work carried out under the CC is done under the development consent. There cannot therefore be a separate breach by the First Respondent of the same conditions of consent which I have found Mr Norris has satisfied in relation to stage 1 of the cabins consent. While the Council argued that there was separately a breach of condition 2 by the First Respondent under the development consent which did not depend on a finding of validity of the CC that cannot be correct given the construction of the consent that I have adopted." 55 Much of the primary judge's judgment was given over to determining the validity of the Certificate issued by Mr Norris. But there was a threshold question as to whether a construction certificate under Part 4A of the EP&A Act was required at all with respect to the installation of the cabins. Such a proposition was foreshadowed by a late amendment made by Mr Norris to his Points of Defence. In response to paragraph 44 of the Council's FAPOC alleging that the "construction certificate" had been issued in breach of the cabins consent and was invalid, Mr Norris pleaded in paragraph 19 of his Amended Points of Defence, the following: "In further answer [to paragraph 44], despite Condition 8 of the Development Consent, a construction certificate was not required prior to the erection of cabins. The cabins are not 'buildings' as defined by the Environmental Planning & Assessment Act and a construction certificate is required under s 81A for 'building work' only." 56 The primary judge referred to this possibility when summarising the Council's submissions, observing (at [92]) that if the argument was correct "that no building works as defined in s 4 of the EP&A Act are authorised under the cabins consent so that the CC was issued for no valid purpose under the Act or Regulation, then it also could not amend the development consent." 57 The reference to amendment of the development consent was in response to a submission on behalf of the first respondent which relied upon s 80(12) of the EP&A Act to the effect that as a construction certificate and any approved plans and specifications issued with respect to that certificate are taken to form part of the relevant development consent, the effect of s 80(12) is that the construction certificate amends the development consent. Of course, if there is no valid construction certificate or one that is not legally required, then s 80(12) has no operative effect. 58 Her Honour returned to this issue at [152] of her judgment when she observed: "152 I also note for completeness, and the parties agreed, that Mr Norris was not required to certify any building work in terms of the installation of the cabins as these do not constitute 'building work' as that term is defined in the EP&A Act. They are moveable dwellings which do not fall within the definition of 'building' in that Act (see par 8). I should note that there was brief mention in the Council's case (par 92) of an argument that the CC had no validity because there was no building work required to be authorised under it so that the responsibility under the cabins consent continued to fall on the First Respondent in any event. Quite where that argument would leave the cabins consent issued by the Council is unclear and was not addressed. As there was virtually no time spent on this issue and I would require further submissions in order to resolve a potentially significant matter about the operation of the EP&A Act in relation to CCs, I will not consider it further as it was not the basis of the case argued before me." 59 This issue was raised in this Court during the course of argument on the appeal as it was clear that Part 4A of the EP&A Act, which relates to the issue of construction certificates, applies only, relevantly, to "building work" as defined: namely, any physical activity involved in the erection of a "building". The latter term is then defined in a manner which excludes a "moveable dwelling" and it was common ground that the cabins fell within that expression. 60 Although there was some initial resistance from both the Council and the first respondent to the force of this proposition, ultimately each conceded its correctness. The result was that her Honour's findings with respect to the validity of the Certificate issued by Mr Norris on 20 November 2006 proceeded on a false legal basis and must, therefore, be set aside. It is therefore unnecessary to determine those grounds of appeal which challenged her Honour's findings as to the validity of the purported construction certificate issued by Mr Norris and accordingly I must proceed upon the basis that any certificate issued by him, not being a construction certificate for the purposes of Part 4A of the EP&A Act, was no more than a certificate that purported to comply with Condition 8 of the cabin conditions. As it was conceded by the Council that the Certificate complied with that condition in that it attached plans detailing the location of all the cabins to be installed in Stage 1 of the development, the relevance of the Certificate falls away. 61 It follows from the foregoing that Mr Norris was wrongly joined in the proceedings and that the assertions of invalidity by the Council of the Certificate were misconceived. However, the parties proceeded before her Honour upon the basis that the Certificate was in fact issued pursuant to Part 4A of the EP&A Act and that its validity was, therefore, in issue. However, this can only be relevant to the question of costs in respect of which the parties will be granted leave to file written submissions once the true issues on the appeal have been determined. To those issues I now turn.

[45]

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.

[46]

Did the cabins consent contemplate the installation of cabins in Stage 1 as detailed in the EIS and, if so, in what circumstances? Was there a breach of Condition 30? 86 The Council submitted that paragraph 4.8 of the EIS imposed an unambiguous obligation upon the first respondent not to install cabins on sites until the revegetation program in front of those cabins was not only in place but was "sufficiently advanced". Such an obligation, it was submitted, was clear from so much of paragraphs 4.6 and 4.8 of the EIS which I have emphasised in [20] above and from that part of the EIS referred to in [24] which I have emphasised. 87 At one point the Council submitted that Stage 1 provided only for the provision of landscaping and not for the installation of any cabins and that the cabins installed on the initial 12 sites landscaped in Stage 1 could only occur in the course of Stage 2. Ultimately, in my opinion correctly, this submission was abandoned in favour of the submission that although cabins could be installed during Stage 1, that could only occur when the vegetation program in front of the cabins to be installed was not only in place but was "sufficiently advanced". 88 As to this last requirement, the Council submitted that the sufficient advancement of the vegetation was to be determined in accordance with Condition 30 of the cabin conditions which should be construed as prohibiting the installation of any cabins unless and until the applicant/developer was advised in writing by both the Council and DIPNR that the landscape works had been "completed satisfactorily". It was submitted that that expression referred to the standard of completion referred to in the EIS prior to the installation of any cabins, namely, that the vegetation had to be sufficiently advanced so as to provide at least a reasonable level of visual screening of the cabins from the river. Accordingly the EIS stated in paragraph 4.6 under the heading "Staging and Management": "Regardless, in order to ensure appropriate levels of visual screening, cabin installation will not occur until the revegetation zones have progressed to a suitably advanced stage. These levels are expected to be achieved between 18 and 24 months after initial installation of the planting." 89 The primary judge considered this issue in the context of Mr Norris' level of satisfaction that Conditions 1, 2 and 30 had been satisfied within the meaning of cl 146(c) of the Regulation when he issued the Certificate. She referred (at [173]) to Mr Norris' evidence of his understanding of Condition 30, namely, that after completion of the initial stage of cabins, the Department and the Council had to sign off on the vegetation. In other words, the cabins in Stage 1 could be installed before the second sentence of Condition 30 was triggered. 90 At [175] her Honour opined that where there was ambiguity or uncertainty in the conditions of consent, they were to be construed against the Council. Mr Norris considered that 12 cabins could be constructed in Stage 1 in accordance with the staging proposed in the EIS, given that Stage 1 included the provision of landscaping and the installation of cabins. Her Honour held that this was an approach that was open to him. 91 It follows from what I have already said that this reasoning of her Honour is flawed given the legal irrelevance of Mr Norris' expressed level of satisfaction with respect to the condition in question. 92 The first respondent nevertheless submitted that the reference in the EIS to the landscaping being "sufficiently advanced" was so uncertain as to be meaningless and, in any event, contemplated no more than that the landscaping had been in place for between 18 and 24 months after initial installation of the planting. As the planting had occurred in July 2005 and as the two cabins were not installed until December 2006 and March 2007 respectively, it followed that more than 18 months had expired between the time of planting and the installation of the cabins, thus satisfying the requirements of the EIS. 93 As to Condition 30, the first respondent submitted that the second sentence thereof only applied to "subsequent" stages of cabins after the initial 12 cabins in Stage 1 had been installed. Were it not for the word "subsequent" in the second sentence of Condition 30, the Council's construction, it was conceded, would be difficult to refute. But the insertion of that word required the second sentence to be construed as applying only to the installation of cabins in Stage 2 and the subsequent stages so that it had no operation with respect to the installation of cabins in Stage 1. 94 I interpose to note that the issue of whether an EIS which has been incorporated into the conditions of a development consent can impose enforceable obligations which can be the subject of civil enforcement under s 124 of the EP&A Act or criminal prosecution under s 125 has been referred to as a matter of some difficulty. Thus in Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121; (2007) 154 LGERA 117 at [94], Jagot J observed: "94 In AGC (Advances) Ltd v Roads and Traffic Authority of NSW (1993) 30 NSWLR 391 at 395-396, the Court of Appeal observed that whether statements of intention in an environmental impact statement under Pt 5 of the EPA Act could found a breach of the Act within the meaning of s 124(1) was a matter of some difficulty. I infer that the Court had in mind the range of difficulties recognised in Ryde Municipal Council v The Royal Ryde Homes and Another (1970) 19 LGRA 321 at 324 in the context of construing development consents - that "serious inconvenience, ambiguity and confusion could arise if, in all instances, general statements of fact and assertions of intention in an application form, as well as every other statement made in support of an application, were to be regarded as terms or conditions of a development consent". Here, of course, the Council elected to impose a requirement that the development be completed in accordance with the statement of environmental effects and a plan, except as varied by the other conditions; but the difficulty thereby created is the same as that identified in The Royal Ryde Homes ." 95 In Royal Ryde Homes, referred to by her Honour, Else-Mitchell J at 324 remarked: "It must not be overlooked that a consent to the development of land under a prescribed planning scheme is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title. I therefore think it sound to say that the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject." 96 In Corowa her Honour also made reference to the decision of this Court in Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245. At [36] Hodgson JA, with whom, relevantly, myself and Basten JA agreed, recorded the following submission of the appellant in that case:

[51]

In my view the matrix relevant to the construction of Condition 30 includes the provisions of the EIS to which I have referred in [20], [22], [23] and [24] above. 101 The first respondent submitted that the EIS made it clear that each stage of landscaping was to take place at a different time to the installation of the cabins in that stage. Thus, when the first cabin was installed in Stage 1, the revegetation program was to commence in Stage 2. However, when Condition 30 made reference in its first sentence to the completion of each stage of landscape works, it was contended that that requirement could not apply to Stage 1 as the EIS anticipated that both landscaping and cabin installation would occur, in effect, simultaneously during that stage. By reason of the staging in the EIS, it was therefore submitted that Condition 30 could only apply to the installation of cabins in stages subsequent to Stage 1. 102 In other words, although it was accepted that paragraph 4.8 of the EIS applied to Stage 1 in that no cabin was to be installed unless and until the vegetation planting program proposed for the riparian zone in front of each cabin was completed and "sufficiently advanced", the second sentence of the condition had no application to Stage 1 so that the written advice of the appropriate officers of the Council and DIPNR contemplated by that sentence was not required for that stage although it was required before cabins were installed in stages 2, 3 and 4. 103 Such a construction seems at odds with the intent of paragraph 4.8 of the EIS which by its terms applies to all stages. Further, the last sentence of Condition 30, which required the satisfactory completion of landscape works prior to the issue of a "building construction certificate for each stage of the development" evinces an intention that the landscape works in each stage were to be completed satisfactorily before any cabin installation in that stage was commenced. 104 The Council submitted that the word "subsequent" in the second sentence of Condition 30 was a description of the chronological installation of cabins "subsequent" to the completion of the landscaping. The reference to "each subsequent stage of cabins" was not a reference to the four stages of the development identified in paragraph 4.8 of the EIS. Rather, the second sentence is referring to the two steps in each stage - landscaping followed by cabin installation. The latter is to be "subsequent" to the former. In my opinion there is merit in the Council's submission. Condition 30 uses the word "stage" in three contexts. In the first sentence it refers to "each stage of landscape works". In the second it refers to a "stage of cabins". In the fourth sentence it refers to "each stage of the development". Only in the last could it be said that the word "stage" refers to the four stages identified in paragraph 4.8 of the EIS. 105 When one reads the condition as a whole what I have said at [103] makes practical sense and gives the word "subsequent" work to do. Of course, it must be remembered that the conditions of consent were drafted by planners and not lawyers. There is no reason to believe the former intended to depart from the clear intent of the EIS. Hence the first sentence of Condition 30. Why, one asks rhetorically, should the inspection there contemplated (and which the first respondent accepted applied to landscape works in Stage 1) not be the subject of the written advice required by the second sentence with respect to the installation of cabins in Stage 1? Such a construction is particularly curious given that is was assumed that a construction certificate was required to be issued before the installation of any cabins took place but that such a certificate could not be issued, as the last sentence of Condition 30 mandated, before the landscape works were satisfactorily completed. 106 As I have already observed, it is apparent that the Council, wrongly, considered that a construction certificate under Part 4A of the EP&A Act was required in respect of the installation of the cabins. Under the relevant provisions of that Act, such a certificate was required before building work (assumed to be the installation of the cabins) commenced. On this basis, it is apparent that the objective of Condition 30 was to ensure the satisfactory completion of landscape works in each stage prior to the installation of any cabins in that stage. 107 For the first respondent's construction of Condition 30 to be accepted, it would be necessary to conclude that the second sentence of Condition 30 effected an amendment to the third sentence of paragraph 4.8 of the EIS which was incorporated into the cabins consent by Condition 1 and which expressly and unambiguously required that no cabin be installed on any site until the revegetation program in front of those cabins was in place and sufficiently advanced. The whole thrust of this part of the EIS was that an appropriate level of visual screening should occur before any cabin was installed in any stage. It makes no sense for Condition 30 to in effect, require the landscape works to achieve that outcome but deny written confirmation thereof with respect to the cabins in Stage 1 by those officers of the Council and DIPNR with whom the first respondent was required to arrange an inspection of the works. Further, the effect of the first respondent's construction of Condition 30 would be that all 12 cabins in Stage 1 could be installed before any landscaping works were conducted within that stage. 108 The first respondent nevertheless submitted that the words "completed satisfactorily" in Condition 30 had no greater meaning than the words "sufficiently advanced" in paragraph 4.8 of the EIS. In one sense this is so, but the objective of Condition 30 is to leave it to the judgment of the appropriate officers of the Council and DIPNR to advise in writing that the landscape works have been completed satisfactorily in light of the clear objective in the EIS to eliminate or at least minimise the visual impact of the cabins from the river. 109 It follows from the foregoing that in my view the Council's construction of Condition 30 should be accepted. There were, therefore, two breaches of that condition. The first was the admitted failure by the first respondent to arrange an inspection of the landscape works in fact carried out as required by the first sentence of the condition. The second was that the two cabins were installed before the written advice referred to in the second sentence was received. There was no breach of the fourth sentence of the condition as no construction certificate was required for any stage of the development. 110 Whether or not those breaches are regarded as serious will be a matter to be determined when consideration is given to the relief, if any, to which the Council is entitled by reason of those breaches. In this context it is to be noted that there was a breach of Condition 1 in that the only approved landscape works to which Condition 30 would apply were those required by the 2002 VMP and not those required by the 2004 VMP which were the only works in fact undertaken before the two offending cabins were installed in breach of Condition 1.

[52]

Some further issues 111 The Council raised two further issues which can be shortly disposed of. The first concerned so much of Condition 1 as purported to incorporate "all supplementary additional information received by Council". The particular information upon which the Council relied which had been so received was a staging plan which became Exhibit B in the proceedings at first instance. As I understand the Council's submissions, Exhibit B did not materially differ from the 2002 VMP. Nevertheless, the Council maintained its submission that it was incorporated by reference into Condition 1. 112 In my view, the Council's submission should be rejected. A "catch all" phrase such as that relied upon cannot, for the reasons stated by Else-Mitchell J in Royal Ryde Homes to which I have referred at [95] above, constitute a legitimate method of incorporating into a development consent unspecified documents which may or may not be discoverable upon a search of the Council's files. It is a nonsense to suggest that a landowner, who has the benefit of a development consent but who is not the applicant therefor, should be required to search through the Council's files in order to ascertain what supplementary or additional information the Council received, whether in writing or otherwise, before it granted consent. 113 It is important, I think, to reiterate the observation of Else-Mitchell J in Royal Ryde Homes that it is important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty given not only the fact that a development consent operates in rem and is therefore akin to a document of title but also because of the legal consequences under ss 124 and 125 of the EP&A Act where there is non-compliance with the obligatory or mandatory terms of a condition. 114 The second point raised by the Council, albeit somewhat faintly, related to the conceded fact that Part 4A of the EP&A Act was not engaged with respect to the installation of the cabins. The Council nevertheless sought to argue that the relevant provisions of that Part together with the relevant regulations were, so to speak, incorporated by reference into the cabins consent through the medium of Condition 8 and the reference in Conditions 23 and 30 as well as others, to requirements that were to be satisfied "prior to issue of the construction certificate". In my view this submission is without merit and should be rejected.

[61]

The question of remitter 117 The Council submitted that if it succeeded in establishing breach by the first respondent of the cabin conditions so that the proceedings were required to be remitted to the Land and Environment Court to determine the relief to which the Council was entitled, this Court should order that the remitted proceedings not be heard or determined by the primary judge. The reason for such an exclusionary order, so it was submitted, was due to her Honour having already formed at least a tentative view with respect to how she might exercise her discretion if a breach or breaches were established. 118 In this context the Council relied upon the following remarks of her Honour at [192] of her judgment: "… had I found there was a breach of conditions concerning a failure to obtain a Pt 3A permit before issuing the CC, there are several matters in the evidence suggesting that the primary relief sought by the Council (declaration of invalidity of the CC and removal of cabins) ought not to have been granted on discretionary grounds. The evidence before me suggests that at least two of the Council's officers, Mr Zwicker and Ms McKenzie, were aware of the negotiations between the Department and Mr Madsen for an amended VMP in the Pt 3A permit process. According to Mr Gelle, Mr Zwicker advised him that the Council would defer to the Department on matters of vegetation. What has actually occurred at the holiday park in terms of planting of vegetation since 2005 would also have been highly relevant to such a discretionary consideration." 119 The relevant principles relating to what, in effect, would disqualify her Honour from further hearing the proceedings were discussed by me, with the agreement of Handley and Ipp JJA, in Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339; see also Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 at [70]-[76]. 120 In essence what is relevantly required before an appellate court will direct a hearing by other than the original judicial officer from whom a successful appeal is brought, is that it must appear that the primary judge has expressed views which raise the possibility (real and not remote) that he or she might not bring an impartial mind to the question of the relief, if any, to which the Council is entitled as a consequence of the breaches of the cabin conditions which have been identified. In other words, or perhaps alternatively, one must ask the question: has her Honour, when expressing herself in [192] of her judgment indicated that she may have already pre-judged the exercise of her discretion to grant relief notwithstanding that, although written submissions were made to her by the first respondent and Mr Norris on the issue which she recorded at [115] of her judgment, no such submissions were made on the issue of discretion by the Council, it being agreed by her Honour that the question of relief, if any, should await her Honour's findings with respect to liability? 121 In my view the tentative remarks made by her Honour at [192] of her judgment are not such as to attract the principles to which I have referred. Although she refers to evidence that suggests that the Council ought not to be granted on discretionary grounds the primary relief it sought, she did not, in my view, express a view as to whether that evidence would be accepted and was mostly foreshadowing, as the respondent had submitted, that there was an outstanding issue of discretion had she found that there was a breach of the cabin conditions which she confined, in her remarks, to a failure to obtain a Part 3A permit before Mr Norris' assumed construction certificate was issued. 122 In the foregoing circumstances I would not accede to the Council's submission that the proceedings be remitted to the Land and Environment Court to be heard by a judge other than her Honour.

[62]

The question of costs 123 The written submissions of the parties proceeded upon the same basis as that adopted by her Honour, namely, that a construction certificate under Part 4A of the EP&A Act was required before the installation of the cabins. Accordingly, the written submissions of the Council were directed in particular to challenging her Honour's findings with respect to the validity of the certificate purportedly issued by Mr Norris on 20 November 2006, whereas those of the first and second respondents sought to uphold those findings. 124 As a construction certificate under Part 4A was not required, it follows that the submissions of all parties generally proceeded on a false assumption. This required the parties to alter the thrust of their oral submissions on the appeal in a manner which was not generally reflected in their written submissions. 125 It also follows from the fact that her Honour proceeded on a false basis, due to no fault of her own, that Mr Norris should not have been joined as a party to the proceedings. However, he was so joined as the Council's FAPOC proceeded on the legally false assumption that the construction certificate issued by him on 20 November 2006 was one which was required by Part 4A of the EP&A Act but was invalid. No point was taken in the pleadings that this was not so until paragraph 19 of Mr Norris' Amended Points of Defence were filed at the commencement of the hearing before the primary judge. However, as her Honour points out at [152] of her judgment the issue so raised was not specifically or adequately addressed. 126 My tentative view is that there is at least an arguable case that each party should pay their own costs of the proceedings at first instance generally upon the following grounds. First, it was the Council which alleged that Mr Norris' certificate was invalid, the argument proceeding upon the false assumption that a construction certificate was required under Part 4A of the EP&A Act. Second, the first respondent never raised the question of whether Part 4A was engaged and, in any event, argued successfully before the primary judge that not only was the construction certificate issued by Mr Norris valid, but also as a consequence thereof the installation of the cabins pursuant to the issue of that certificate in effect trumped any breach by the first respondent of the relevant conditions upon which the Council had relied. Third, it was not until just before the commencement of the hearing that Mr Norris raised the issue of the non-engagement of Part 4A, but never, apparently, pursued it as a threshold question which it clearly was. 127 As to the costs of the appeal, my tentative view is that the first respondent should pay the costs of the Council given that its appeal should be allowed. I have not formed any tentative view with respect to Mr Norris' costs on the appeal. 128 I emphasise that the foregoing are tentative views only and subject to any further written submissions which the parties will be at liberty to provide to the Court upon the publication of the Court's reasons disposing of the appeal. Those views are provided only so the parties can address the issue in a more structured manner. 129 In the foregoing circumstances it is not appropriate that any formal orders be made at this stage until the Court is in a position to make whatever orders for costs it considers appropriate. It is sufficient for present purposes to simply indicate that in my opinion the appeal should be allowed and that her Honour's orders made on 24 July 2008 be set aside and the proceedings remitted to the Land and Environment Court for further consideration of the issue of what relief, if any, the Council is entitled to in light of the breaches of the cabin conditions which I have identified. 130 Accordingly, I would propose that the only order the Court should presently make is to direct the parties to provide any written submissions on the question of the costs of the proceedings to date at first instance and of the appeal within 14 days of the publication of these reasons. The submissions of each party are not to exceed five pages and with 1½ line spacing. 131 Since writing the above I have now had the benefit of reading in draft the judgment of Young JA. It is appropriate that I take this opportunity to endorse his Honour's remarks. 132 YOUNG JA: I agree with Tobias JA. However I wish to add some comments about the proceedings as they affect Mr Norris. 133 Prayer 6 in the Amended Application - Class 4 of 27 February 2008 was as follows: "6. A declaration that in issuing Construction Certificate No PC22506 dated 20 November 2006 … the Second Respondent breached s 109F of the Environmental Planning and Assessment Act." 134 Probably a breach of s 109F is a criminal offence punishable by a heavy fine under s 126 of the Environmental Planning and Assessment Act 1979. 135 As a general rule (though there are notable exceptions), courts in their discretion do not make declarations that a person has committed a criminal offence. The cases make it clear that there is jurisdiction to make such a declaration (see eg Sankey v Whitlam (1978) 142 CLR 1, 20). However, time and time again courts have stressed that it is only in exceptional cases that declarations that a person has committed a crime may be made; see eg Crane v Gething [2000] FCA 45; 169 ALR 727, 737; X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630 esp per Kirby J at 658. 136 One vice in the procedure is that instead of the defendant being able to succeed if the matter is not established beyond all reasonable doubt, he or she can be declared guilty on the balance of probabilities. Instead of the defendant having his or her accuser place all the material on which reliance is placed before considering whether or not to answer by evidence, the defendant is required to answer on affidavit at an early stage of the proceedings. 137 In the present case, the chances of the court refusing declaratory relief on grounds of unfairness were so high that Mr Norris may well have had prayer 6 struck out as an abuse of process. 138 I have written the above to guide future cases. In the present case, it would seem no one on either side ever considered such a declaration actually being made, despite the pleading. All the plaintiff wished to establish was that Mr Norris could not have considered himself satisfied that certain preconditions to the issue of a construction certificate had been met. 139 There is usually no objection to a declaration of such a particular fact even though its establishment might also be an element in a criminal offence. 140 BERGIN CJ in EQ: I agree with Tobias JA and with the additional comments made by Young JA. **********

Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd

At a glance

Court

Decision date

Before

Source

Judgment (63 paragraphs)

Parties

Cases Cited (26)

Cited By (46)