TABLE OF CONTENTS
Preamble
Introduction
The Summonses
The original Summons
The Further Amended Summons
The interlocutory orders
Describing the site
The Council's Statement of Facts
The Council's chronology
Representation
Relevant statutory provisions
Introduction
The EPA Act
The LEP
The DCP
The Evidence
The Council's evidence
Mr Aria's evidence
Mr Doolan's evidence
The Council's surveying evidence
Flooding
Introduction
The Council's flooding evidence
Mr Aria's cross-examination of Ms Harris
Consideration
Environmental protection works
Asbestos contamination of the site
Introduction
The first SLR inspection
The second SLR inspection
Human health and environmental impacts
The removal of contaminated fill
Recommended remediation
Mr Aria's cross-examination of Mr Harley
The BBN Consulting report
Exhibit 10 ‑ the Luddenham documents
The subpoena to ECM Quarries
Mr Aria's vehicle storage activities
Adverse environmental consequences
Mr Aria's proposed development application
Introduction
Consideration
Discretion
Making a declaration
Declaration and orders
Annexure A
Annexure B
Annexure C
Annexure D
Annexure E
Annexure F
[2]
Preamble
These proceedings concern the importation of over 15,000 cubic metres of soil to a property at Riverstone. They are Class 4 civil enforcement proceedings arising from the fact that the owner of the land on which the soil has been placed did not have development consent for this purpose. There is also a live argument as to whether it would have been possible for these activities to have been granted development consent. Those issues are dealt with in the body of this judgment.
However, for present purposes, I wish to record that, in the evidence which Mr Aria, the owner of the property, has tendered in these proceedings, there is an invoice from a company called ECM Quarries Pty Ltd (ECM Quarries), an invoice which asserts that that company has delivered virgin excavated natural material (VENM) to the site. Mr Aria has been invoiced over $650,000 for a range of matters, including the provision, delivery and spreading of this asserted VENM material on his property.
The uncontradicted evidence given by a senior employee of an environmental consultancy hired by Blacktown City Council (the Council) to examine this material is that, when sampled, the fill which has been imported and spread on the site is contaminated with asbestos.
For the purposes of these proceedings, the Council had served a subpoena on ECM Quarries (by effecting service on its Director, Mr Edward McGuire) seeking the production of documents concerning that company's delivery of material to the site. I am satisfied, on the uncontested evidence of a solicitor employed by the Council's legal representatives, that the subpoena was appropriately served on the Mr McGuire. The subpoena sought the production of the following documents:
1 A true copy of any and all quotes issued by ECM Quarries:
(a) in respect of fill or other material to be delivered to 34 Creek Street Riverstone NSW 2765 (being Lot 7 and 17 of Section W in DP 712); or
(b) addressed to Mr Mohammad Samir Aria
from 1 July 2022 to date.
2 A true copy of each invoice and each weighbridge docket issued by ECM Quarries:
(a) in respect of fill or other material delivered to the above land; or
(b) addressed to Mr Mohammad Samir Aria,
from 1 July 2022 to date.
3 A true copy of each receipt, remittance advice, or other document that otherwise demonstrates payments made to ECM Quarries in respect of fill or other material delivered to the above land since 1 July 2022.
The depositing of asbestos‑contaminated waste at a location not authorised for the receipt of that waste is an offence under the Protection of the Environment Operations Act 1997. Providing false information concerning waste, in the circumstances of dealing with that waste, is an offence (it being an even more serious offence to do so knowing that the information provided was false). It is therefore appropriate that the facts here engaged (where the depositing of the asbestos‑contaminated waste took place during the second half of 2022 and there is still time for the Environment Protection Authority (the EPA) to investigate the activities of ECM Quarries and its director), that the matters dealt with in this judgment, be drawn to the attention of the EPA. To effect this, I have arranged for the Registrar of the Court to write to the EPA providing a copy of this judgment and, particularly, drawing that authority's attention to the matters contained in it. This judgement may constitute the first occasion upon which the facts and circumstances of the transport of the contaminated material to Mr Aria's site have been drawn to the attention of an authorised officer of the EPA.
In making the findings set out in this judgment, I am not to be taken as suggesting that Mr Aria knew that the soil which was being imported to the site was contaminated with asbestos. On the other hand, despite the assertion by ECM Quarries, in its invoice to Mr Aria, that the soil which was arranged to be imported to the site was VENM, the engagement by ECM Quarries of BBN Consulting (as later addressed) to undertake the removal of visible asbestos on the surface of the material provided to Mr Aria demonstrates that ECM Quarries (and, therefore, by necessary implication, its director, Mr McGuire) knew that the material was asbestos‑contaminated and, by its invoice, had falsely asserted to Mr Aria that the material was VENM.
[3]
Introduction
On 25 November 2022, the Council commenced these Class 4 proceedings against Mr Aria arising from activities he has undertaken on a property owned by him at 34 Creek Street, Riverstone (Lots 7 and 17, Section W, DP 712)(the site).
[4]
The original Summons
The Summons commencing the proceedings set out the relief sought by the Council and the particulars pleaded in support. The Summons and its supporting particulars are in the following terms:
RELIEF CLAIMED
1 A declaration that the Respondent has carried out unlawful development on the land identified as Lot 7 and 17, Section W, DP 712, known as 34 Creek Street Riverstone, NSW 2764 and Lot 17 Creek Street Riverstone, NSW 2764, together the 'Property', such development compromising:
a. the importation, placement and spreading of fill, consisting of shale and sandstone ('Fill Material');
b. earthworks, including the excavation and/or clearing of over 11,700 square metres of land up to a depth of approximately 500mm;
c. the use of the Property to store written‑off or damaged motor vehicles;
and being prohibited development by reason of the Blacktown Local Environmental Plan 2015 contrary to section 4.3 of the Environmental Planning and Assessment Act 1979 ('Act') (Development).
2 An order restraining the Respondent from carrying out, causing or permitting the carrying out of the Development including earthworks and the importation ,pf any fill onto the Property without prior written consent under the Act.
3 An order restraining the Respondent from carrying out, causing or permitting the use of the Property as a storage facility for damaged and/or written off motor vehicles or any other similar or related equipment (Motor Vehicles).
4 An order that, within 30 days, the Respondent obtain and submit to the Applicant, for the Applicant's approval, a Remediation Plan for the Property prepared by a suitably qualified consultant providing a plan for removal all Fill Material, removal of all written off or damaged motor vehicles, and remediation and restoration of the Property to the condition it was in prior to the Development ('Remediation Plan'). Should the Remediation Plan submitted not be satisfactory to the Respondent, the Applicant is to submit a further plan with the amendments required by the Respondent subject to any further order of the Court.
5 An order, pursuant to section 9.46 of the Act, that the Respondent within 7 days of the approval of the Remediation Plan by the Respondent ('Approval Date') engage a suitably qualified person to undertake remediation works in accordance with the approved Remediation Plan.
6 An order, pursuant to section 9.46 of the Act, that the Respondent within 90 days of the Approval Date:
a. cause all Fill Material to be removed from the Property and transported to a place that can lawfully receive that material for disposal or recycling;
b. cause all damaged or written off motor vehicles on the Property to be transported to a place that can lawfully receive such motor vehicles for disposal or recycling; and
remediate the Property in accordance with the Remediation Plan.
7 An order, pursuant to section 9.46 of the Act, that the Respondent:
a. procure a receipt in relation to each consignment of the Fill Material transported from the Property, such receipt to be issued by the occupier of the place to which the Fill Material has been transported for the purposes of this order, and such receipt to identify the place to which the Fill Material has been transported and the quantity of Fill Material received;
b. Procure a receipt in relation to each Motor Vehicle that is transported from the Property, such receipt to be issued by the occupier or owner of the place to which the Motor Vehicle have been transported for the purposes of this order, and such receipt to identify the place to which the Motor Vehicle has been transported and the Vehicle Identification Number ('VIN') for each such vehicle; and
c. Provide each receipt procured for the purposes of paragraph 7 to the Applicant within 3 days of each transfer.
8 An order that the Respondent pay the Applicant's costs of these proceedings.
9 Such further or other orders as the Court sees fit.
The Applicant also seeks the following Interim Relief
10 An order that, pending the final determination of these proceedings, the Respondent be restrained from carrying out or causing or permitting:
a. the carrying out of earthworks on the Property including the importation and placement of any Fill Material thereon,
b. the receipt or storing of any further damaged or written off motor vehicles on the Property.
[5]
The Further Amended Summons
During the course of the hearing before me, the Council was granted leave (without objection from Mr Aria) to rely on an Amended Summons and, subsequently, a Further Amended Summons. The Further Amended Summons sought relief against Mr Aria in a modified, and somewhat less immediately prescriptive, form than had been proposed in the original Summons and in the Amended Summons. It is appropriate to set out the terms of the declaration sought and the substantive orders proposed by the Council to address the activities which Mr Aria has carried out, or continues to carry out, on the site. The Council's proposed declaration and substantive orders are in the following terms:
RELIEF CLAIMED
1 A declaration that the Respondent has carried out unlawful development on the land identified as Lot 7 and 17, Section W, DP 712, known as 34 Creek Street Riverstone, NSW 2764 and Lot 17 Creek Street Riverstone, NSW 2764, together the 'Property', such development compromising:
a. the importation, placement and spreading of fill, consisting of shale and sandstone ('Fill Material');
b. earthworks, including the excavation and/or clearing of over 11,700 square metres of land up to a depth of approximately 500mm;
c. the use of the Property to store written‑off or damaged motor vehicles;
and being prohibited development by reason of the Blacktown Local Environmental Plan 2015 contrary to section 4.3 of the Environmental Planning and Assessment Act 1979 ('Act') (Development).
2 An order restraining the Respondent from carrying out, causing or permitting the carrying out of the Development including earthworks and the importation of any fill onto the Property without prior written consent under the Act.
3 An order restraining the Respondent from carrying out, causing or permitting the use of the Property as a storage facility for:
a. unregistered vehicles; or
b. vehicles without a number plate; or
c. vehicle parts,
(together, the Items).
4 An order that, within 30 days, the Respondent obtain and submit to the Applicant, for the Applicant's approval, (such approval not to be unreasonably withheld), a Remediation Plan for the Property prepared by a suitably qualified consultant providing a plan for removal all Fill Material, removal of all Items on the Property, and remediation and restoration of the Property to the condition it was in prior to the Development ('Remediation Plan').
5 An order, pursuant to section 9.46 of the Act, that the Respondent within 7 days of the approval of the Remediation Plan by the Respondent ('Approval Date') engage a suitably qualified person to undertake remediation works in accordance with the approved Remediation Plan.
6 An order, pursuant to section 9.46 of the Act, that the Respondent within 180 days of the Approval Date:
a. cause all Fill Material to be removed from the Property and transported to a place that can lawfully receive that material for disposal or recycling;
b. cause all Items on the Property to be transported to a place that can lawfully receive such Items for disposal or recycling, so that no more than a total of 9 unregistered vehicles (or vehicles without a number plate) remain on the Property; and
c. remediate the Property in accordance with the Remediation Plan.
7 An order, pursuant to section 9.46 of the Act, that if:
a. the Respondent fails to submit a Remediation Plan in accordance with order 4; or
b. the Applicant and Respondent are unable to agree on a Remediation Plan within 30 days of it being provided to the Applicant,
the Respondent must, within 150 days of the date of these orders:
c. cause all Fill Material to be removed from the Property and transported to a place that can lawfully receive that material for disposal or recycling;
d. cause all Items on the Property to be transported to a place that can lawfully receive such Items for disposal or recycling, so that no more than a total of 9 unregistered vehicles (or vehicles without a number plate) remain on the Property; and
e. remediate and restore the Property to the condition it was in prior to the Development with the oversight of a suitably qualified environmental consultant, who will certify upon completion that the remediation has been undertaken in accordance with the requirements of the following:
i. NSW Work Health and Safety Act 2011;
ii. NSW Work Health and Safety Regulation 2011;
iii. State Environmental Planning Policy (Resilience and Hazards) 2021;
iv. WorkCover NSW 2014, 'Managing Asbestos in or on Soil';
v. SafeWork NSW 2016, Code of practice ‑ 'How to manage and control asbestos in the workplace';
vi. SafeWork NSW 2016, 'How to Safely Remove Asbestos'; and
vii. National Environment Protection (Assessment of Site Contamination) Measure 1999.
8 An order, pursuant to section 9.46 of the Act, that the Respondent:
a. procure a receipt in relation to each consignment of the Fill Material transported from the Property, such receipt to be issued by the occupier of the place to which the Fill Material has been transported for the purposes of this order, and such receipt to identify the place to which the Fill Material has been transported and the quantity of Fill Material received;
b. Procure a receipt in relation to each of the Items that are transported from the Property, such receipt to be issued by the occupier or owner of the place to which the Items have been transported for the purposes of this order, and such receipt to identify the place to which the Items have been transported; and
c. Provide each receipt procured for the purposes of paragraph 7 to the Applicant within 3 days of each transfer.
9 An order that the Respondent pay the Applicant's costs of these proceedings.
10 Such further or other orders as the Court sees fit.
The Applicant also seeks the following Interim Relief
11 An order that, pending the final determination of these proceedings, the Respondent be restrained from carrying out or causing or permitting:
a. the carrying out of earthworks on the Property including the importation and placement of any Fill Material thereon,
b. the receipt or storing of any further damaged or written off motor vehicles on the Property.
[6]
The interlocutory orders
On 9 February 2023, Duggan J made a series of interlocutory orders intended to prevent Mr Aria from compounding the breaches of the Environmental Assessment and Planning Act 1979 (EPA Act) which the Council alleged had occurred on the site. These orders were in the following terms:
ORDERS OF THE COURT
Until further order:
1 the Respondent be restrained from:
(a) carrying out, or causing or permitting by his servants or agents, excavation or filling on the Property, including the importation, placement, movement or compaction of any fill thereon,
(b) driving or operating any vehicle, or causing or permitting any vehicular access or operation of a vehicle by his servants or agents, onto and over the area of the Property in which excavation or filling has taken place 2
(c) accessing by foot, or causing or permitting access by foot by his servants or agents, onto and over the area of the Property in which excavation or filling has taken place
(d) additional placing or storing, or causing or permitting additional placement or storage by his servants or agents, of vehicles of any type onto and over the area of the Property in which excavation or filling has taken place
(e) removing, or causing or permitting the removal by his servants or agents, of any vehicles from the area of the Property in which excavation or filling has taken place
2 By no later than 4pm on Friday 17 February 2023, the Respondent be required to erect and maintain asbestos warning signage at the entrance to the Property from Creek Street and fhe entrance to the Property from Charlton Street and to ensure that the signs remain so erected. (All signs erected are to conform with the Australian Standard AS 1319‑1994 Safety Sign for the Occupational Environment)
3 By no later than 4pm on Monday 13 February 2023, the Respondent be required to affix a copy of these orders to the entrance to the Property at Creek Street and the entrance to the Property from Charlton Street and to ensure that the copy of the orders remains so affixed.
4 The Applicant be authorised to serve a copy of these orders on the Respondent by email at the following address: jap_style@msn.com
5 The Respondent pay the Applicant's costs of the interlocutory proceeding.
Although, the following day, these orders were modified, they were not modified in any functional fashion diminishing the restraints imposed on Mr Aria's activities.
[7]
Describing the site
A copy of an extract from the Çouncil's zoning map confirming the RU4 Primary Production Small Lots zoning of the site is in evidence (Exhibit A, folio 13). This map shows the orientation of the site as being one which is obliquely oriented, with its long axis running from Creek Street to Charlton Street in a south‑west to north‑east direction.
The map extract also shows the location, on the long boundary of the site on its more northern side, of Council's Basil Andrews Park (the Council reserve). For convenience in later describing various locations, it is appropriate to identify this boundary with the Council reserve as being the northern boundary of the site, with the other boundaries of the site taking their identification cues from this.
The site is rectangular in shape and has an area of ~1.6 hectares, with frontages of approximately 80 metres to each of Creek and Charlton Streets. It is located to the west of the Richmond railway line and is on the floodplain of Eastern Creek. As can be seen from the title details set out at [7], the site comprises two separate allotments ‑ one fronting Creek Street and one fronting Charlton Street. These two allotments appear to be of equal area and being, generally, square in shape.
[8]
The Council's Statement of Facts
As with the chronology noted below, Mr Aria's former legal representatives had settled, with the Council's legal representatives, a document which had been filed as part of the Court Book ‑ a document with the heading "Statement of Agreed Facts". As with the chronology, I provided Mr Aria with the opportunity to consider whether he wished to resile from that agreement.
As with the chronology, he indicated that he did withdraw that agreement. As a consequence, that document (which had earlier been tendered, becoming Exhibit B) is to be taken as being the Council's Statement of Facts. This document is in the following terms:
The Parties
1 The Applicant is a New South Wales Council empowered to exercise functions that include enforcing the provisions of the Environmental Planning and Assessment Act 1979 (the EPA Act).
2 The Respondent is the owner and occupier of land comprising Lot 7 and Lot 17, Section W, DP 712, Charlton Street, Riverstone NSW 2765, known as 34 Creek Street and 17 Charlton Street, Riverstone (the Property).
3 The Respondent is the Director and Secretary of Challenger Auto Parts Pty Ltd, appointed to both positions on 15 March 2015.
The Property
4 The Property is zoned RU4 Primary Production Small Lots under the Blacktown Local Environmental Plan 2015 (BLEP).
5 The State Environmental Planning Policy (Precincts ‑ Central River City) 2021 (Central River City Precinct SEPP) identifies that the Property is mapped as located within Flood Prone and Major Creeks Land.
6 The Applicant's published Flood Risk Map identifies that the Property is located within the Flood Extents High Flood Risk Precinct.
7 The Property lies within a non‑rural area of New South Wales as defined by the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP).
Enquiries regarding the Property
8 On or about 3 June 2022, the Respondent called the Applicant and spoke to Ms Courtney Hardy, Building Surveyor Trainee, regarding how the Property may be used, including the parking of cars. Ms Hardy advised via email that, inter alia:
a. The Respondent was permitted to park his vehicles on private land; and
b. The Property was affected by flooding and a number of electrical easements.
9 On or about 20 June 2022, the Respondent sought further guidance from the Applicant about the potential for future development to be undertaken on the Property.
10 On 29 June 2022, Ms Vivian Long, Council's Gateway Town Planner, responded to the email, advising, inter alia, that:
a. the use of storage is not permitted on the Property;
b. a fence around the property will require a development application;
c. the Property is flood affected; and
d. the Respondent should seek independent planning advice in relation to permissible uses on the Property.
11 On or about 30 June 2022 the Respondent requested flood level information on the Property from the Applicant's Flood Advice Team.
12 On or about 11 July 2022 the Respondent emailed the Applicant advising, inter alia, that he wished to put in the middle of the Property an access from one side to other and a 1.8m high fence around the boundary of the Property.
13 On 29 July 2022, the Applicant responded advising that the Property lay within the High Flood Risk Precinct and that it had no objection to the creation of a driveway "ensuring that it is to be at the current ground level of the site and that the area is not filled. "
Works on the Property
14 On or about 21 July 2022 the Applicant received a letter of complaint from a member of the public about earthworks being undertaken at the Property.
15 On or about 21 July 2022, Mr Laurence Doolan, a Development Control Officer employed by the Applicant, inspected the Property.
16 On 21 July 2022, Mr Laurence Doolan, a Development Control Officer employed by the Applicant, spoke with the Respondent by calling his mobile number.
17 On 28 July 2022, Mr Doolan inspected the Property.
18 On 2 August 2023, Mr Jason Roberts, a Coordinator Development Compliance employed by the Applicant, sent the Respondent an email, which included a 'Notice of Intention to Serve an Order under the Environmental Planning and Assessment Act 1979, for unauthorised earthworks' and a 'proposed order'.
19 On or about 18 August 2022 the Applicant received a telephone call from a member of the public advising that trucks were tipping Fill Material on the Property.
20 On 18 August 2022, Mr Doolan, and another officer of the Council, inspected the Property.
21 On 18 August 2022, the Applicant received an email from the Respondent. The Applicant replied to the Respondent.
22 On 25 August 2022, the Applicant issued the Respondent with a Penalty Infringement Notice for "Carry out Development Forbidden on Land'.
23 On 25 August 2022, the Applicant issued the Respondent with a Development Control Order, under Division 9.3 (Development Control Order 1 and 10) of the Environmental Planning and Assessment Act 1979.
24 On 5 October 2022, Mr Doolan inspected the Property and observed:
a. no works had been carried out to replace the soil and grass to the condition it was prior to the earthworks being carried out;
b. imported fill remained on the Property;
c. more fill had been imported onto the Property; and
d. the earthworks had not been removed.
25 On 6 October 2022, the Applicant sent the Respondent an email. The Respondent replied to this email on 6 October 2022.
26 On or about 25 October 2022, the Applicant received complaints from members of the public that additional motor vehicles were being stored on the Property and trucks were delivering more fill to the Property.
27 On 25 October 2022, Mr Doolan inspected the Property and observed:
a. more fill having been imported onto the Property; and
b. an excavator moving and placing fill on the Property.
28 On 10 November 2022 a member of the public complained to Council about trucks delivering fill to the Property.
29 On 10 November 2022, Mr Doolan inspected the Property and observed:
a. an excavator carrying out earthworks on the Property;
b. a truck entering the Property and tipping material onto the Property;
c. newly deposited fill on the Property; and
d. orange metal fence posts approximately 3m in height erected along the Property boundary.
30 On 2 December 2022, Mr Doolan observed a truck depositing fill on the Property.
31 On 9 January 2023, a member of the public complained to the Applicant that trucks were entering the Property and delivering fill.
32 On 9 January 2023, Mr Doolan inspected the Property and observed:
a. recent earthworks had been undertaken at the Property;
b. more fill had been imported onto the Property;
c. a number of trucks on the Property;
d. an excavator on the Property; and
e. fencing installed along the boundary of the Property, consisting of barbed wire and colourbond/metal material.
33 On 30 January 2023 the Applicant, through its environmental consultants, tested samples of the fill in the batter which was lying just outside of the boundary of the Property.
34 On 2 February 2023, the Applicant received advice from its environmental consultants that all samples of fill taken tested positive for asbestos, being "Chryso/ite Asbesto" and "Crocidolite Asbestos".
35 Between approximately July 2022 and 9 January 2023, the Respondent carried out or caused or permitted to be carried out the works referred to in the paragraphs above and in the following paragraph on the Property.
36 The physical works carried out on the Property were as follows:
a. excavation of soil;
b. the importation and deposition of fill;
c. the construction of earthworks including an earth mound;
d. the construction of earthworks including an earthen platform; and
e. the erection of a fence.
Commencement of Proceedings
37 The Applicant filed the summons on 25 November 2022.
38 An interlocutory hearing occurred on 9 February 2023, where the relief requested by the Applicant was granted.
[9]
The Council's chronology
A chronology had been prepared and filed as part of the Court Book. In the form in which it was filed, it was identified as being an agreed chronology with that agreement having been given by Mr Aria's former legal representatives. With Mr Aria no longer being legally represented, I also provided him with the opportunity to consider whether he wished to adopt that agreement. He indicated, during the second day of the hearing that he did not maintain that agreement, but that he did not wish to propose any changes to the chronology. As a consequence, the chronology (which had previously been tendered and became Exhibit C) was confined to being regarded as the Council's chronology. It is not necessary to set out the chronology as the relevant dates can be discerned from the above reproduced Statement of Facts.
[10]
Representation
The Council was represented by Mr R White, barrister, with Mr Aria being self‑represented.
[11]
Introduction
Several provisions of the EPA Act and a number of elements of the Blacktown Local Environmental Plan 2015 (the LEP) arise for consideration in these proceedings. Also relevant is one provision of the Blacktown Development Control Plan 2015 (the DCP). The relevant provisions are set out below.
[12]
The EPA Act
The first relevant provision is s 4.2, one which requires approval from a consent authority (here, the Council), when a person proposes to carry out development that may be permitted with consent but there is no such consent obtained.
4.2 Development that needs consent
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless -
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
Maximum penalty - Tier 1 monetary penalty.
(2) …
The second relevant provision is that which permits application being made to the Court to remedy or restrain activities carried out in breach of s 4.2. This provision is in the following terms:
9.45 Restraint etc of breaches of this Act
(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
(2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
(3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.
(4) (Repealed)
Finally, it is appropriate to set out the terms of s 9.46, the provision which sets out the powers of the Court in circumstances where s 9.45 is invoked and the jurisdiction of the Court enlivened to address, here relevantly, the unapproved development carried out by Mr Aria at the site. This provision is in the following terms:
9.46 Orders of the Court
(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may -
(a) where the breach of this Act comprises a use of any building, work or land - restrain that use,
(b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or
(c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.
(3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may -
(a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and
(b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.
(4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.
(5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.
[13]
The LEP
The first relevant element of the LEP is that portion of the Land Use Table for the RU4 Primary Production Small Lots zone, the zone within which the site is located. The extract from the Land Use Table sets out the objectives for the zone, and the range of activities permitted without development consent; permitted with development consent; and prohibited within that zone. The relevant portion of the Land Use Table is in the following terms:
Zone RU4 Primary Production Small Lots
1 Objectives of zone
• To enable sustainable primary industry and other compatible land uses.
• To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.
• To minimise conflict between land uses within this zone and land uses within adjoining zones.
• To ensure that development does not prejudice the orderly and economic development of future urban land.
• To ensure that development is sympathetic to the ecological attributes of the area.
2 Permitted without consent
Home occupations
3 Permitted with consent
Agricultural produce industries; Aquaculture; Bed and breakfast accommodation; Building identification signs; Business identification signs; Cemeteries; Community facilities; Crematoria; Dwelling houses; Environmental facilities; Environmental protection works; Extensive agriculture; Farm buildings; Flood mitigation works; Heliports; Home businesses; Home industries; Intensive plant agriculture; Landscaping material supplies; Local distribution premises; Places of public worship; Plant nurseries; Recreation facilities (outdoor); Roads; Roadside stalls; Veterinary hospitals; Water reticulation systems
4 Prohibited
Agriculture; Any other development not specified in item 2 or 3.
The second relevant provision of the LEP is cl 5.21, the provision which deals with flooding. It is in the following terms:
5.21 Flood planning
(1) The objectives of this clause are as follows -
(a) to minimise the flood risk to life and property associated with the use of land,
(b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change,
(c) to avoid adverse or cumulative impacts on flood behaviour and the environment,
(d) to enable the safe occupation and efficient evacuation of people in the event of a flood.
(2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development -
(a) is compatible with the flood function and behaviour on the land, and
(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and
(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and
(d) incorporates appropriate measures to manage risk to life in the event of a flood, and
(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.
(3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters -
(a) the impact of the development on projected changes to flood behaviour as a result of climate change,
(b) the intended design and scale of buildings resulting from the development,
(c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,
(d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.
(4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause.
(5) In this clause -
Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department's website on 14 July 2021.
flood planning area has the same meaning as it has in the Floodplain Development Manual.
Floodplain Development Manual means the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005.
The third relevant provision of the LEP is cl 5.4, the provision which deals with additional permissible uses. It is in the following terms:
5.4 Controls relating to miscellaneous permissible uses
(1) …
(2) Home businesses If development for the purposes of a home business is permitted under this Plan, the carrying on of the business must not involve the use of more than 50 square metres of floor area.
(3) Home industries If development for the purposes of a home industry is permitted under this Plan, the carrying on of the home industry must not involve the use of more than 50 square metres of floor area.
(4)‑(10) …
It is also necessary to note the definitions contained in the Dictionary to the LEP of a number of the terms set out in the above extract from the Land Use Table. These definitions are:
environmental protection works means works associated with the rehabilitation of land towards its natural state or any work to protect land from environmental degradation, and includes bush regeneration works, wetland protection works, erosion protection works, dune restoration works and the like, but does not include coastal protection works.
flood mitigation work means work designed and constructed for the express purpose of mitigating flood impacts. It involves changing the characteristics of flood behaviour to alter the level, location, volume, speed, or timing of flood waters to mitigate flood impacts. Types of works may include excavation, construction or enlargement of any fill, wall, or levee that will alter riverine flood behaviour, local overland flooding, or tidal action so as to mitigate flood impacts.
home occupation means an occupation that is carried on in a dwelling, or in a building ancillary to a dwelling, by one or more permanent residents of the dwelling and that does not involve -
(a) the employment of persons other than those residents, or
(b) interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, wastewater, waste products, grit or oil, traffic generation or otherwise, or
(c) the display of goods, whether in a window or otherwise, or
(d) the exhibition of any signage (other than a business identification sign), or
(e) the sale of items (whether goods or materials), or the exposure or offer for sale of items, by retail,
but does not include bed and breakfast accommodation, home occupation (sex services) or sex services premises.
home industry means an industrial activity, whether or not involving the sale of items online, carried on in a dwelling, or in a building ancillary to a dwelling, by 1 or more permanent residents of the dwelling and not involving the following -
(a) the employment of more than 2 persons other than the residents,
(b) interference with the amenity of the neighbourhood because of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, wastewater, waste products, grit or oil, traffic generation or otherwise,
(c) the exposure to view, from adjacent premises or from a public place, of unsightly matter,
(d) the exhibition of signage, other than a business identification sign,
(e) the retail sale of, or the exposure or offer for retail sale of, items, whether goods or materials, not produced at the dwelling or building, other than by online retailing,
but does not include bed and breakfast accommodation or sex services premises.
[14]
The DCP
The relevant provision is cl 3.2(a) in Part H of the DCP. It is in the following terms:
3.2 Requirements for lodging a development application
There are specific planning considerations for proposed landfill activities when an applicant lodges a DA, as outlined below.
(a) Location of landfill
In general, landfilling within a floodplain will not be supported. However, Floodplain Landfill Applications will be treated on their merits based on the following:
(i) No net loss of flood storage and/or conveyance within the floodway extents
(ii) No net loss of flood storage within the 1% annual exceedance probability (AEP) critical duration flood. This requirement must address the cumulative impacts on flood levels from like development on other areas of the floodplain
(iii) The alteration of local drainage or overland flow contours and/or natural watercourses must not adversely affect adjacent property.
[15]
The Council's evidence
The Council's affidavit evidence comprised:
The affidavit and attached expert report of 28 April 2023 of Ms Naomi Harris, the Council's Coordinator, Floodplain and Stormwater;
The affidavit and attached expert report of 4 May 2023 of Mr Mark Zappala, the Council's Assistant Surveyor;
The affidavit and attached expert report of 8 May 2023 of Mr Jordan Harley, the contamination consultant retained by the Council; and
Affidavits of 24 November 2022, 7 February 2023, 16 February 2023 and 28 June 2023 of Mr Laurence Doolan, a Development Control Officer employed by the Council.
All of those persons noted above were required by Mr Aria for cross‑examination. Their written and oral evidence is later discussed.
In addition to the Council's Statement of Facts and its chronology (both earlier noted) the following additional documentary evidence was tendered for the Council:
Vol 1 of the Evidence Book (comprising relevant statutory and regulatory documents - becoming Exhibit A);
an additional bundle of documents - becoming Exhibit D; and
an A3 version of the heat map prepared by Mr Zappala - becoming Exhibit F
[16]
Mr Aria's evidence
At the conclusion of the second day of the hearing, Mr Aria indicated that he proposed to seek to tender a range of documents but that he did not propose to rely on any affidavit or oral evidence. I suggested to him that he provide those documents to Mr White so that the Council could consider whether or not they would object to the tender of any of them and that I would deal with any objections at the commencement of the third and final day of the hearing.
Mr Aria also indicated that he intended to seek to tender, amongst these documents, an expert report of Mr George Youhanna, a town planner who had been retained by his former legal representatives for the purposes of the hearing. Mr Aria indicated he wished to rely on Mr Youhanna's report as expert evidence. Mr White indicated that if Mr Youhanna's expert report was proposed to be relied upon, Mr Youhanna was required for cross‑examination ‑ the Council having given the required notice to this effect to Mr Aria's former legal representatives.
I indicated to Mr Aria that, if he wished to rely on Mr Youhanna's expert report, Mr Youhanna would need to be available for cross‑examination by Mr White. At the commencement of the hearing on the third day, Mr Youhanna was present and was cross‑examined, briefly, by Mr White. Mr Youhanna confirmed that he had not visited the site (Transcript 7 July 2023, page 143, lines 29 and 30).
As can be seen from the list later set out of documents tendered by Mr Aria reproduced below, Mr Youhanna's report was tendered becoming Exhibit 3.
The essence of Mr Youhanna 's evidence was that it was possible that the work carried out by Mr Aria on the site could be classified as either "flood mitigation works" or "environmental protection works". He also postulated that Mr Aria's car and vehicle material collection activities on the site could be classified as a "home occupation" or "home industry. Given that he had not actually inspected what had taken place on the site as to the importation and spreading of fill in the past or of the present vehicle storage activities on the site, there is no necessity to detail further Mr Youhanna's evidence. The various propositions advanced by him as possible bases for legitimisation of Mr Aria's activities are later addressed.
Mr Aria did not rely on any affidavit evidence. He did, however, tender a number of documents. Those documents were:
1. marked‑up versions of Mr Zappala's heat map (folio 1166) and his air photograph (folio 1167) showing the points from which Mr Zappala undertook his surveying measurements. These became Exhibit 1;
2. an A3 copy of Mr Zappala's heat map, marked by Mr Zappala with a line across the western end of the site joining two 13‑metre contours, extracted from the underlying LiDAR data held in the Council's database. This became Exhibit 2;
3. the expert report of Mr Aria's town planner, Mr Youhanna, became Exhibit 3;
4. a bundle of correspondence concerning a property at 207 Carnarvon Road, Schofields, together with a letter from Courtney Hardy, Building Surveyor Trainee at the Council, became Exhibit 4;
5. an extract from a website of Transport for NSW dealing with the construction of a new street in the vicinity of the site, known as the Denmark Link Road, a road joining Charlton Street and Denmark Link Road a little to the west of the site, became Exhibit 5;
6. an extract of four sheets from the Department of Planning extracted from a draft master plan for West Schofields, with Mr Aria having marked, on the first and third pages of these four sheets, his identification of the location of the site. These sheets became Exhibit 6;
7. Exhibit 7 comprised medical information concerning one of Mr Aria's daughters. It is not necessary to set out any detail of this medical information ‑ it is sufficient to note that, as I later address, I have had regard to this material in my consideration of matters relevant to how I might exercise discretion in these proceedings as raised by Mr Aria in his submissions;
8. Exhibit 8 is a document entitled BBN Consulting ‑ Asbestos Clearance. The document is dated 2 March 2023 and it is later addressed in the context of the evidence given by Mr Harley, the Council's contamination expert;
9. Exhibit 9 comprised 21 tax invoices issued by Pickles Auctions (a firm of automotive auctioneers) to Ms Farnaz Aria (Mr Aria's wife) for purchase of various vehicles at auctions run by the auction house;
10. Exhibit 10 comprised a document entitled "Preliminary Material Characterisation Assessment ‑ Western Sydney Aerotropolis Growth Area, 132 KV Foundation Supply Project Luddenham Road, and Patons Lane Orchard Hills". This document was folios 900 to 1089 of Vol 2 of the Evidence Book and comprised a report prepared by Geotest Services being a cover sheet and a 16‑page report, with the balance of the documents being laboratory test sheets reporting data outcomes; and
11. Exhibit 11 was an invoice dated 31 March 2023 from ECM Quarries addressed to Mr Aria at the site. As this invoice is of some importance in the proceedings, a copy of it is reproduced as Annexure A to this judgment.
All the above documents were tendered, without objection from Mr White on the basis that they were admitted subject to relevance and the weight to be accorded to them.
[17]
Mr Doolan's evidence
As earlier noted, Mr Doolan deposed four affidavits. All of these affidavits were read without objection being raised by Mr Aria. Mr Doolan was cross‑examined by Mr Aria about the locations from which he had undertaken his observations. It is to be observed that the timing of Mr Doolan's visits to undertake inspections was set out in his affidavits and listed in the Council's chronology.
Mr Doolan's evidence establishes, as later discussed in the context of Mr Zappala's evidence, that Mr Aria has imported additional vehicles onto the site since Duggan J's orders prohibited in him from doing so.
Second, it is appropriate to reproduce paragraphs 26 to 28 of his affidavit of 28 June 2023, paragraphs in which he set out his observations of the condition of a structure on the site, a structure which had formerly been used as a dwelling but was not, from the observations recorded, capable of contemporaneous use for that purpose. The relevant paragraphs of Mr Doolan's affidavit are in the following terms:
26 I then walked onto Creek Street. I then walked up to the house that had a letter box with the number 34 on it. I inspected the property from the nature strip/road reserve area. I observed that the house appeared vacant and was in a dilapidated state that was not fit for habitation. The house did not have a front wooden door, and some of the windows were missing. There was a security door on the front door, which did not fit the door frame properly.
27 While conducting the site inspection from Creek Street of the house, I took a number of photographs of the property.
28 These photographs are those annexed to this affidavit and are marked "E".
As examples of the state of this structure, two photographs from those annexed to this affidavit are reproduced at Annexure B to this judgment.
As part of Mr Doolan's evidence in his affidavit of 24 November 2022, he recorded the registration numbers of trucks which he observed bringing soil to the site to be discharged for spreading on the site. The relevant paragraphs of Mr Doolan's affidavit recording his observations are set out below:
64 I then took photographs of the property. Photographs taken of the shale, sandstone and the excavator on the Creek Street side are annexed to this affidavit and marked "T".
65 As I was taking the photographs, the operator of the excavator approached Council Development Officer Akhtar and myself. This male said:
"My boss wants to talk to you", and requested that I take his mobile phone.
66 I advised the male that I did not wish to take his phone and that he could hold it. The male then had the phone on speakerphone and a voice asked;
"Who are you?"
I asked who was on the phone.
The male person replied "Sam".
67 I then introduced myself to the person and said:
"Sam who are you in relation to this property on Creek Street, Riverstone?"
Sam replied, "I am the property owner".
68 I said to Sam words to the effect of:
"Council has received a complaint about the truckloads of material being dumped on the Council road reserve and onto his property".
"Who arranged for the truck loads of shale and sandstone to be delivered to the property?"
Sam said:
"I don't know".
69 While I was speaking to Sam, I observed a tipper truck and dog trailer drive onto the property from Creek Street.
I said to Sam:
"Ok, I will speak to the truck drivers and deal with them for illegally dumping the material".
Sam said:
"Ok, I will stop the trucks".
70 The conversation between Sam and myself then concluded. I went back to the Charlton Street side of the property, with Council Development Control Officer Akhtar.
71 At this location, I observed a white Caterpillar tipper registration XN93XA with an attached dog trailer registration TB15MX with the sign writing on it advertising 'Home Demolition.com 1300 045 355'.
72 I then took a photograph of this truck. This photograph is annexed to this affidavit and marked "U".
73 I approached the driver of the truck and introduced myself to him. The driver stated his name was Gavin.
74 I had a conversation with Gavin in which I said to him words to the effect of:
'Do not dump the material as there is no approval for the landfill works on this property and any Fill Material brought onto this site may be dealt with as transportation of waste, which may result in you receiving a fine'.
Gavin stated, "I work for Recycle Building Centre and my boss's name is Shane.
I said, "Gavin you need to contact your boss."
75 I then observed Gavin make a phone call. He then said words to the effect of:
"My boss told me not to dump the sandstone and to leave the site".
76 At this time, I observed another two (2) tippers enter the property, one being a white Kenworth EWX‑024 and the second being a white Kenworth EWX‑029 sign written 'EATHWORX'.
77 I took photographs of these Kenworth tippers. Photographs of these trucks are annexed to this affidavit and marked "V" and "W".
The photographs taken by Mr Doolan and referenced at paragraphs 72 and 77 of this affidavit are reproduced at Annexure C to this judgment
It is also to be noted that a wide range of other photographs were annexed to various of Mr Doolan's affidavits, with these photographs depicting aspects of what Mr Doolan had observed during the course of his site inspections. It is not necessary, for present purposes, to reproduce any others of those photographs.
Nothing arises out of Mr Aria's cross‑examination of Mr Doolan which would cause me to doubt the veracity of Mr Doolan's written and oral evidence.
[18]
The Council's surveying evidence
As earlier noted, Mr Zappala was required for cross‑examination ‑ his affidavit and its attached expert report not having been objected to by Mr Aria. Two primary elements of Mr Zappala's evidence warrant consideration. The first is the heat map derived from his survey of the site which provided the basis upon which he engaged the computer software he used to calculate the extent of the fill on the site. The second is the air photo, extracted from Nearmaps, of the state of the site as at 19 March 2023 and upon which Mr Zappala had caused to be superimposed the contour lines which he had derived from the survey which he had undertaken on 20 and 21 February 2023. Each of these documents is annexed to this judgment, with the first of them being Annexure D and the second Annexure E.
Annexure D depicts, by virtue of colour‑coding shown in the legend to the image, the extent of excavation or fill which has been undertaken on the site. As the image which was attached to Mr Zappala's expert report was at A4 size, Mr White subsequently provided to me. and to Mr Aria, a copy of the image at A3 size to enable a better understanding not only of the colours reproduced but, particularly, the scale of the legend on the right‑hand side of the image. The image at A3 size was tendered, becoming Exhibit F.
That which can be understood from the image, for the purposes of understanding the extent of the fill imported to the site by Mr Aria, is the method by which the volume of fill is derived by the application of the computer software used by Mr Zappala for this purpose. As can be seen from the image, contours are marked on the surrounding properties. These contours, Mr Zappala explained in his oral evidence, are those which are held on the relevant Council database as representing the LiDAR‑based contours for the surrounding land and the site. It is to those base contours Mr Zappala's survey data was applied and superimposed to provide the coloured pictorial depiction of the extent to which the site may have been altered by the importation of fill or by excavation of material where that excavation had not been filled.
At page 7 of his expert report, Mr Zappala set out the calculations derived by the application of his survey data to the underlying LiDAR‑based data. This was set out in the following terms:
Volume determination
Volume was derived using the 12d model software's volume calculation functionality in conjunction with the BCC Surface and Lidar Surface models. This calculation resulted in a total balance of 15543.1486m3 of additional fill brought onto the site.
Summary
Total cut: -516.984
Total fill: 16060.130
Total balance: 15543.146
Annexure E shows the extent to which such pre‑existing vegetation remained which had been on the site before Mr Aria had commenced his excavation and/or filling activities on the site. As can also be seen from Annexure E, portion of the site, in its north‑western corner (where a number of buildings, including the dilapidated house earlier described in the extract from Mr Doolan's evidence), appears to be virtually entirely unmodified. However, the remainder of the site can be seen to be bare earth ‑ obviously, having been subject to the excavation and/or filling activities undertaken by Mr Aria.
As can be seen from Mr Zappala's calculations reproduced above, he has set out not only a total for the quantum of fill imported onto the site, but he has also made an allowance for material which had been excavated from the site. Excavation of the much more modest amount of material nominated by Mr Zappala is consistent with Mr Doolan's evidence ‑ evidence in which Mr Doolan described (both in his affidavit and in his responses to questioning by Mr Aria) at least one location on the site where his use of a tape measure demonstrated that, at that point, excavation below the natural grassed surface of approximately 500 millimetres had taken place. The relevant affidavit from Mr Doolan deposing to this had annexed to it, amongst the various photographs taken by Mr Doolan on that occasion, a photograph of the area excavated below the grass level on the site and the tape measure which he had used to measure the extent of that excavation.
The image at Annexure E also depicts the significant number of vehicles that had been imported to, and stored on, the site by Mr Aria.
There are three further observations to be made with respect to Annexure E. First, a photograph appended to Mr Doolan's affidavit of 28 June 2023 (at folio 784) shows the shipping container in the south‑western corner of the site having more vehicles located in its vicinity than were depicted on Annexure E. The inference to be drawn from this photo, as Mr White submitted, was that, at least in that vicinity of the site, further vehicles had been imported by Mr Aria between 19 March 2023 and 28 June 2023. Mr Aria adduced no evidence that would counter the drawing of that inference and, therefore, it is appropriate that I conclude that such further importation of vehicles to the site was undertaken by Mr Aria during that period. Such importation of further vehicles on the site was a breach of order (1)(d) of the orders of Duggan J set out at [10] earlier.
The second matter arising from Annexure E concerns questioning of Mr Zappala by Mr Aria concerning the absence of colour overlay on a strip of his property along its southern boundary. Mr Aria questioned Mr Zappala about the locations from which he had undertaken his surveying measurements. Mr Zappala was asked to mark up a copy of Annexure E with the locations of, and directions for, the orientation of his theodolite for taking the measurements from which he had derived the survey contours. This marked‑up versions of Annexures D and E disclose that Mr Zappala had undertaken his surveying measuring from locations on each of the public roads (Creek Street and Charlton Street) adjacent to the property and from within the Council reserve, to the north of the property. During cross‑examination, Mr Zappala confirmed that he had not taken any survey measurements from Lot 48, the property to the south of the site. The marked‑up version of Annexures D and E became Exhibit 1.
As can be seen from Annexure E, the contours derived by Mr Zappala along the southern boundary of the site with Lot 48 show a steep batter down toward that property boundary. The steepness of that batter (a batter obviously derived by the software used to produce Annexures A and B) explains why no detailed observations were able to be obtained of this strip of land by Mr Zappala given the points he identified as the locations from which he had undertaken his measurements.
Finally, it is to be observed that Mr Aria cross‑examined Mr Zappala about his ability to obtain clear sightlines for taking measurements from the locations identified in the Council reserve. It was Mr Zappala's evidence that he had taken those measurements from locations where he was able to obtain clear sightlines between trees in the vegetated strip on the Council's reserve bordering Mr Aria's property and that these sightlines had not been impeded by any fencing erected along that boundary.
Having carefully listened to Mr Zappala's evidence (and observed him during his giving of it); having subsequently read the transcript of his evidence; and having carefully reread his expert report, I am satisfied that Mr Zappala was a witness of truth and his evidence is to be accepted in its entirety. I observe that, in this context, Mr Zappala was not shaken in any respect of his evidence by his cross‑examination by Mr Aria
During the course of his submissions, Mr Aria proposed that I should not accept the calculation of the extent of the earthworks which Mr Zappala had set out in the calculations in his expert report (being that a total of over 15,000 cubic metres of fill had been imported onto the site as a consequence of the cut‑and‑fill activities. He submitted that, from the northern point along a line drawn by Mr Zappala on a copy of his heat map (tendered by Mr Aria, becoming Exhibit 2) to the southern boundary of the site, the colour marked scale demonstrated that, from north to south, this should be understood as showing a height differential of 19 metres and that this clearly was not correct.
I am unable to accept this submission as Mr Aria has misunderstood what is demonstrated by this line drawn by Mr Zappala. The line joins two points, each of which were at the 13‑metre contour on the underlying LiDAR topographic data from the Council's database. As a consequence, although a reading of the legend to Exhibit 2 as marked shows the maximum height at the top of the light blue element of the fill as being 19 metres, that is not 19 metres above the contour from which Mr Zappala derived his line. The total relative height between the 13‑metre contours from which Mr Zappala derived his line shows that there is only a maximum 6 metre height difference at any location between those two contour points (on the line drawn between them) ant the top of the highest element of fill on the site.
Mr Aria also submitted that, as a consequence of the fact that Mr Zappala had taken some of his readings from a grassed surface within the Council reserve, I should not have confidence in the accuracy of data derived from those readings because Mr Zappala's theodolite would be on an unsteady grassed surface. Mr Aria had put this proposition to Mr Zappala during the course of Mr Zappala's cross‑examination. Mr Zappala rejected this proposition ‑ it being his evidence that the surface upon which his theodolite was located whilst taking readings from the various points in the Council reserve he had marked on Exhibit 1 was firm and there was no unsteadiness in his instrument whilst taking those readings. I accept Mr Zappala's evidence on this point.
[19]
Introduction
There is no dispute that the site is mapped on the Council's flood‑prone land maps as being in an area subject to 1% AEP (known colloquially as a 1:100 flood event) risk. As a consequence, cl 5.21 of the LEP applies to works potentially able to be undertaken on the site. Such works, for flood mitigation purposes, must satisfy the definition of "flood mitigation works" earlier set out. It is, for the purposes of this discussion, appropriate to reproduce that definition as it is the framework within which the earthworks carried out on the site by Mr Aria are to be considered. The definition is in the following terms:
flood mitigation work means work designed and constructed for the express purpose of mitigating flood impacts. It involves changing the characteristics of flood behaviour to alter the level, location, volume, speed, or timing of flood waters to mitigate flood impacts. Types of works may include excavation, construction or enlargement of any fill, wall, or levee that will alter riverine flood behaviour, local overland flooding, or tidal action so as to mitigate flood impacts.
[20]
The Council's flooding evidence
As earlier noted, the expert flooding evidence was given by Ms Harris, the Council's Coordinator, Floodplain and Stormwater. As also earlier noted, Ms Harris was required for cross‑examination. Mr Aria's cross‑examination of her, in effect, traversed three areas. They can be summarised as being:
1. What was required by the Council for development on flood‑affected properties in order to permit such development (by implication, particularly residential development);
2. The likelihood of flood waters moving across the site in the past (particularly with respect to what was described as the fifth - and most recent - of the five flood events of which Ms Harris had knowledge since she had assumed her role with the Council); and
3. The possibility that that flooding had caused the depositing of debris and other material on the site (including asbestos material, it can be inferred from Mr Aria's subsequent questioning of Mr Harley, the environmental consultant who gave evidence on behalf of the Council ‑ and was cross‑examined by Mr Aria concerning asbestos contamination on the site).
Ms Harris's expert report commenced by setting out the details of the flood mapping undertaken by the Council, demonstrating that the site was identified by the Council and mapped as being flood prone land located within a flood zone.
Her report set out the relevant planning controls in relevant environmental planning instruments (including the LEP) that would apply to the site. She also set out cl 3.2(a) of the DCP. I have earlier set out the terms of that provision.
Ms Harris also set out the range of information which she would expect would have been needed to accompany any development application for importation of fill to the site on the scale which had actually been placed on the site. It is not necessary to set out that discussion. It is sufficient to note that none of the documentation identified by Ms Harris in this portion of her expert report has been provided by Mr Aria to the Council or tendered in these proceedings.
Attachment 5 to Ms Harris's report was a copy of a letter from her to Mr Aria (dated 29 July 2022). This letter set out in some detail relevant flood information concerning the site.
Before turning to Mr Aria's cross‑examination of Ms Harris in any detail, it is also appropriate to set out portion of her expert report.
Ms Harris was instructed to address two further questions relevant for my consideration in these proceedings. It is appropriate to set out each of these questions, and her response to them. These were set out on pages 6 and 7 of her expert report (at folios 1126 and 1127 of Vol 2 of the Evidence Book). The first of the matters she was requested to address was:
Identify the nature and extent of the potential stormwater impacts on the capacity for storage of flood waters, on the behaviour of flood waters within the floodplain and potential risks to downstream properties and the environment as a result of the fill and other works that have been undertaken at the property without development consent
Filling within the floodplain reduces the floodplain's ability to store excess water during a flood event, causing floods to rise to higher levels on other areas within the floodplain. The location of the fill within the floodplain has no opportunity to be offset by 'cut' within the site. Therefore, there will be a net loss of floodplain storage.
I have read the report produced by Mr Mark Zappala. I have assumed 15,543.146m3 of fill has been imported onto the site.
All of the 15,543.146m3 of fill within 34 Creek Street is located within the flood planning area of Eastern Creek, because the fill is below a height of 17.80 m AHD. The filling of this site will cause an equivalent loss in floodplain storage of 15,543.146m3 elsewhere within the Eastern Creek floodplain.
Council needs to ensure that all properties are provided with the same opportunities for development. If Council were to permit all properties to fill below the flood planning area, the cumulative loss of floodplain storage across a number of properties would have significant adverse impact on the Eastern Creek floodplain. Multiple areas of fill would cause multiple impediments to flow. This would cause substantial effects on flood behaviour. Placing of the fill on the Property interferes with the floodway function as the main flowpath for flood waters once the main channel has overflowed. The main channel is the area of a waterway that has flowing water, when average flows occur. It is the area below the river bank, typically characterised by a distinct change in grade at either edge of the river.
The placing of the fill on the Property could cause a significant threat to life and property in the event of a 1% AEP flood event. This is because it will increase flood impacts external to the site.
The placing of the fill on the Property and its use as a car storage area also increases the at‑risk population working on flood prone land and impacts on emergency management resources or the capacity of evacuation routes. It will also increase potential flood damages in the event of a flood event because there is more property within the floodplain to damage.
Examples of this are the:
• blocking of floodways and flow paths by individual developments or levees;
• loss of flood storage due to filling of floodplain areas for individual developments and the consequential rise in flood levels; and
• increase in the 1% AEP flood level, and the subsequent increase in the flood planning level will rise significantly impacting more properties within the Eastern Creek
The use of the site as a vehicle storage area without supporting water quality modelling, such as MUSIC, makes it difficult for the owner of the land to demonstrate no net loss of pollutants under clause 6.8 of the Biodiversity SEPP.
The second topic which Ms Harris was asked to address was:
Identify whether any greater risks to the environment occur from a stormwater perspective if the fill was determined to be contaminated by asbestos
Asbestos can be picked up by floodwaters and moved from its original location and distributed downstream. It can be carried long distances before settling, contaminating areas far away from its source. Buried asbestos in the floodway also has the potential to be exposed due to erosion during flood events.
Because the fill is located in the floodway, there is a greater chance it will be exposed and moved by floodwater.
The placing of asbestos on the Property would be assessed under the relevant planning instruments identified above
[21]
Mr Aria's cross-examination of Ms Harris
Mr Aria cross-examined Ms Harris. His cross-examination addressed three topics. The first comprised Mr Aria seeking information from Ms Harris as to the basis upon which the Council permitted residential development on sites mapped as flood affected and the nature of the structures which were required to be incorporated in such developments in order to render them acceptable (thus complying with cl 5.21 of the LEP). Ms Harris's evidence in this regard made it clear that Mr Aria's landfilling activities on the site could not be regarded in any fashion as being compliant with the Council's requirements arising from cl 5.21 of the LEP (or any related provisions in the DCP) and were, relevantly, incapable of modification in order to achieve such compliance.
The second and third aspects of Mr Aria's questioning arose from the element of Ms Harris's written report reproduced above concerning the potential for flood water flow to have transported asbestos fragments from other locations onto his site. Ms Harris's oral evidence on this point was consistent with that which she set out in her earlier quoted written evidence on this point.
It is to be observed, however, that - as later discussed - the admissible evidence from Mr Harley of his observations of asbestos in the batter of Mr Aria's fill on the northern boundary of the site and what is to be taken from the BBN Consulting document (Exhibit 8) and Mr Harley's evidence concerning the BBN Consulting document is that the asbestos contamination existing on the site could not conceivably be regarded as arising from isolated instances of asbestos fragments randomly transported onto the site by any flood event which may have flowed across the site since Mr Aria imported the fill onto the site and could not have caused asbestos to be spread in the fashion now observable on the northern boundary of the site.
[22]
Consideration
The combination of the evidence of Ms Harris (both written and oral) when understood in the context of Mr Zappala's evidence concerning the extent of the fill which has been imported to, and spread on, the site by Mr Aria makes it clear that there is no possibility that these works could be classified as flood mitigation ones. Indeed, although they may have had the effect of lessening such flood impacts as might be occasioned to Mr Aria's property, there can be no doubt that what has taken place on the site will have had, for the reasons explained by Ms Harris, adverse flooding impacts not only in the immediate vicinity of the site but also elsewhere on the Eastern Creek floodplain.
The hypothesis advanced by Mr Youhanna that Mr Aria's importation to, and spreading of fill on, the site could be classified as flood mitigation works must be rejected.
[23]
Environmental protection works
The second basis upon which Mr Youhanna had postulated that Mr Aria's importation and spreading of fill on the site could be legitimised was that they were potentially capable of being regarded as "environmental protection works".
It is in this context, that it is also necessary to consider the definition of "environmental protection works". That definition has already been set out but it is appropriate, for present purposes, to repeat it to provide a proper understanding of what follows. The definition is in the following terms:
environmental protection works means works associated with the rehabilitation of land towards its natural state or any work to protect land from environmental degradation, and includes bush regeneration works, wetland protection works, erosion protection works, dune restoration works and the like, but does not include coastal protection works.
The evidence given by Mr Zappala as to the quantity of fill which has been imported to, and spread on, the site has earlier been set out. The copy of his heat map (Exhibit F) in Annexure D shows the extent and relevant heights of the elements of the fill imported to the site. The air photograph reproduced at Annexure E also demonstrates that that which has taken place on the site could not, in any conceivable fashion, fall within the description of environmental protection works. There is no possible basis upon which a conclusion could be drawn that these landfilling works undertaken by Mr Aria were environmental protection works.
The proposition advanced by Mr Youhanna that the landfilling works undertaken by Mr aria on the site could potentially be regarded as environmental protection works is, in light of the evidence, risible and to be rejected.
[24]
Introduction
As earlier noted, the Council relied on an expert report from Mr Jordan Harley of SLR Environmental Consultants (SLR). Mr Harley's role with SLR is as its Technical Discipline Manager - Occupational Hygiene & Hazardous Materials. Mr Harley's expert report was attached to an affidavit from him, dated 8 May 2023. Mr Harley's affidavit was read without objection and, thus, his expert report became part of the evidence in these proceedings.
The relevant matters SLR was asked to address were set out by Mr Harley at the commencement of his report in the following terms:
3.1 by reference to your investigations and soil testing, the nature and extent and location of the contamination of the property by asbestos or otherwise,
3.2 commenting on the Asbestos Clearance Report prepared by BBN Consulting;
3.3 identifying the human health and environmental impacts that could or would result if the contamination is not removed or remediated from the property; please reference as appropriate relevant guidelines or standards or otherwise from your expertise,
3.4 identifying, by reference to guidelines and legislation, whether it is appropriate for the contaminated fill to be removed from the property;
3.5 identifying your recommended remedial action;
Also relevant to matters of asbestos contamination of the more than 15,000 cubic metres of fill imported to the site is a document tendered by Mr Aria ‑ being a report from BBN Consulting concerning activity undertaken on the site, which the document notes was commissioned by ECM Quarries, the company which invoiced Mr Aria for what was described as VENM. This report from BBN Consulting became Exhibit 8. This document had been provided to the Council prior to the hearing and had been referred by the Council to Mr Harley for review. Mr Harley commented on the BBN Consulting document in his expert report.
Before turning to Mr Harley's commentary on the BBN Consulting document, it is appropriate to set out the relevant elements of Mr Harley's expert report concerning the investigations by SLR that led to the conclusion he expresses that the entirety of the site should be regarded as asbestos‑contaminated.
[25]
The first SLR inspection
First, Mr Harley inspected the site on 30 January 2023. He did so by walking the northern boundary of the site and examining the soil‑spill batter which had extended underneath the barbed‑wire fence erected along the northern boundary of the site between the boundary and the Council reserve. Photographs of this batter spill from the site onto the Council reserve and of his sampling are reproduced are at Annexure F.
Mr Harley also identified that, during his traverse on the Council reserve along the northern boundary of the site, he had taken four samples of what he suspected might be asbestos, present in the soil forming the batter which had spilled from the site onto the Council reserve. This included the bagging of those samples. It was his evidence, when questioned by Mr Aria, that he had worn gloves at the time of bagging the samples during his visit on 30 January 2023.
The samples taken by Mr Harley during this visit were subsequently submitted to an NATA‑accredited testing laboratory where they were tested for the presence of asbestos. Mr Harley's report set out the results of this testing. Those tests results are reproduced below ‑ test results demonstrating that all four samples taken by Mr Harley had disclosed, when tested, the presence of asbestos in various different forms. This table from Mr Harley's report is reproduced below:
[26]
The second SLR inspection
On 16 February 2023, a second inspection by SLR (not one conducted by Mr Harley personally) was undertaken of the site. On this occasion, as this SLR inspection was undertaken in the company of council officers, access was available to the site. Mr Harley described this a Section 1(e) to (i) of his report as follows:
e. SLR attended site for a second time on 16 February 2023. Access was granted to the Site via Blacktown City Council to undertake a visual inspection and sampling of suspected Asbestos Containing Materials, within the upper/surface soils. The findings of this investigation are outlined in SLR Report 610.10055.11472-L02-v1.0-LOA-20230221.
f. Suspected Asbestos Containing Materials, in the form of non-friable, fibre cement debris, were identified within the clay-like fill to surface soils onsite. Seven representative samples, from locations dispersed throughout the site, were collected. The seven samples were analysed for the presence of asbestos in accordance with AS 4964-2004 "Method for the qualitative identification of asbestos in bulk samples".
g. Six of the seven samples analysed confirmed the presence of asbestos fibres in the matrix of the fibre cement material.
h. No sub-surface investigation was undertaken within the scope of the inspection. No sampling was undertaken to characterise the soil. Sampling was undertaken to confirm the presence of asbestos within the identified fibre cement fragments.
i. SLR recommended that asbestos cement material should be assumed to be dispersed throughout the fill onsite, and further sampling should be undertaken, particularly to determine if friable/fibrous asbestos is present.
Seven samples were collected on this occasion and submitted to the NATA‑accredited testing authority for the purposes of establishing whether or not asbestos was present in any of those samples. Testing of all but one of these samples disclosed the presence of asbestos within the site. A copy of the table that shows the result of the testing of these samples is reproduced below:
As Mr Harley had acknowledged that he was not present when this second round of sampling took place, I raised with Mr White the question of whether the elements of Mr Harley's report that arose from the second SLR visit and its resulting samples should be admitted as it was hearsay evidence. The exchange is set out below (Transcript 6 July 2023, page 120, line 25 to page 121, line 22):
HIS HONOUR: How do you say I can rely on Mr Harley's evidence with respect to the second inspection of the property and the samples arising from that?
WHITE: Well, I say you can do that, your Honour, for these reasons, if I could just take up, because so if your Honour turns to 1199, which is the letter of advice provided from Ewan Cummins who did inspect the site. He says that p 1199. He identifies that SLR obtained seven bulk suspected samples. He identifies what those sample numbers are and he then identifies the approximate location of them, and he then identifies at 1204 and 1205 the analytical report. It says that the samples were examined under a microscope and selected fibres, et cetera. Then there's a conclusion reached by Mr Cummins that the asbestos, or what the findings of the samples were. He identifies then at 1202 and at 1200 in s 3 how the sampling was undertaken, and in those circumstances your Honour can be satisfied that
HIS HONOUR: But in the present circumstances where Mr Aria is self represented, is that Mr Cummins is not made available for cross examination.
WHITE: Yes. He could have been if it had been requested.
HIS HONOUR: He hasn't put in any evidence that would provide any basis to have Mr Aria assume that he was an appropriate witness.
WHITE: If, for example, the objection had been put on to Mr Harley's report last Friday, that there was an objection
HIS HONOUR: Your position is, and it's not something I can inquire into what lies behind what happened on Wednesday morning, but it is clear whatever state of preparation may or may not have been undertaken by Mr Aria's former legal representatives, inadequacies in what might or might not have been done by them can't be sheeted home to him, can they, given that the expression of a desire to cease to act wasn't provided to me until 11 minutes past 4 on Monday afternoon, and presumably wasn't provided to your instructors until that time either. So, do you say to me, in the context of the contamination of the site, the contamination evidence, do you say that what is set out in 1A, B, C and D on p 1176, the testing results on 1192 and the photographic evidence on 1197 are sufficient in themselves?
WHITE: Yes, because the reason being, your Honour, is it is not essential to the council's case on discretion that your Honour makes a finding of fact that the material, the fill, is contaminated throughout the site. Even if there was no evidence of asbestos contamination, the council would still be urging upon your Honour, because of the fact that the scale of the importation, the fact that it's prohibited, or even if not prohibited, was imported without a development consent, and the fact that it lies within the flood plain, those are reasons that your Honour would grant the relief which is being sought by the council …
On further consideration of this submission, I am satisfied that there is no proper basis why this material should be used to support my finding that the fill imported to the site was asbestos‑contaminated.
However, the uncontradicted evidence from Mr Harley about the sampling which he had undertaken during his personal visit to the site, and the uncontradicted evidence of the presence of asbestos in the batter‑spill emanating from the site, leads to the conclusion that at least some material imported to the site is properly to be regarded as being asbestos‑contaminated.
Whether or not it is appropriate to assume that when fill is imported to a site and is found to be asbestos‑contaminated, the whole of the fill imported to the site is to be so designated as proposed in the final point of the rejected portion of the SLR report (at (i) quoted above in [85]) is not appropriate to be resolved by me in these proceedings.
[27]
Human health and environmental impacts
As earlier noted, Mr Harley had been asked to address:
3.3 identifying the human health and environmental impacts that could or would result if the contamination is not removed or remediated from the property; please reference as appropriate relevant guidelines or standards or otherwise from your expertise,
He responded:
3 In response to 3.3;
a. There are limitations in quantifying the potential human health and environmental impacts as a result of the asbestos contamination present onsite. As noted in SLR Report 610.10055.11472-L02-V1.0-LOA "Letter of Advice, Lot 7 and 17, Sec W, Carlton Street, Riverstone NSW 2765" dated 21 February 2023, there is potential for unknown concentrations of below ground contamination, as well as the potential presence of asbestos fines and fibrous asbestos.
b. The potential presence of asbestos fines and fibrous asbestos is considered possible due to the understood site use and associated activities which appears to be a car wreckers/holding yard. These activities increase the potential for disturbance of non-friable ACM, and the potential generation of loose fibre/friable asbestos.
c. The SafeWork NSW Code of Practice ‑ "How to manage and control asbestos in the workplace' states "A person conducting a business or undertaking (PCBU) at a workplace must ensure that exposure of people at the workplace to airborne asbestos is eliminated so far as is reasonably practicable. If it is not reasonably practicable to eliminate exposure, the PCBU must ensure that the exposure is minimised so far as is reasonably practicable. The PCBU must also ensure that the exposure standard for asbestos is not exceeded. Airborne respirable fibre concentrations can be estimated using available data (for example monitoring reports, data from scientific literature) or past experience (for example monitoring reports) of the process in question. If the PCBU at a workplace is uncertain as to whether the exposure standard is likely to be exceeded, air monitoring must be carried out by a competent person. A competent person may include a licensed asbestos assessor or a person who has undertaken the endorsed unit of competency for licensed asbestos assessors. An occupational hygienist who has experience in asbestos exposure monitoring may also undertake air monitoring."
d. SLR have undertaken limited Background Asbestos Air Monitoring to the Southern boundary of the site (in line with the National Occupational Health and Safety, 2005 "Guidance Note on the Membrane Filter Method for Estimating Airborne Asbestos Fibres NOHSC:3003").
e. All results from SLRs limited monitoring were <0.01 fibres/mL. These results should not be used to assess the potential exposure of individuals undertaking activities at the Site, as 'Background' results cannot be compared directly with the Workplace Exposure Standards.
f. In order to quantify the risk to human health and potential environmental impacts, further investigation and quantification of the site would be required.
[28]
The removal of contaminated fill
As earlier noted, Mr Harley also had been asked to address:
3.4 identifying, by reference to guidelines and legislation, whether it is appropriate for the contaminated fill to be removed from the property;
He responded:
4 In response to 3.4;
a. The SafeWork NSW Code of Practice ‑ "How to manage and control asbestos in the workplace' states "There are a number of ways to control the risks associated with asbestos or ACM in the workplace. Some control measures are more effective than others. Control measures can be ranked from the highest level of protection and reliability to the lowest. This ranking is known as the hierarchy of control. A person conducting a business or undertaking (PCBU) must always aim to eliminate a hazard and associated risk first, for example by removing the asbestos. If this is not reasonably practicable, the risk must be minimised by using one or more of the following approaches: − substitution − isolation, or − implementing engineering controls".
b. As such, removal of asbestos contamination is always the preferred option, however, alternative options, such as remediation of surface soils and encapsulation of the impacted fill may be considered, based on the intended/approved future site use.
[29]
Recommended remediation
As earlier noted, Mr Harley finally had been asked to address:
3.5 identifying your recommended remedial action
He responded:
5. In response to 3.5;
a. Further assessment of the soil profile needs to be undertaken determine the lateral extent of contamination, and to ascertain if any fibrous/friable asbestos has been generated during the appeared working/mechanical distribution of the soil. This may alter the recommended remedial actions if friable/fibrous asbestos is identified.
b. Recommendations for remediation have been outlined based on the analytical results and site observations. If friable asbestos is identified, a suitably qualified Licensed Asbestos Assessor should be engaged to provide input on the recommended remedial action.
c. From site observations, it is the opinion of SLR that the following remedial action be undertaken by an asbestos removal contractor holding a Class B asbestos removal licence. As described within the Code of Practice: How to Safely Remove Asbestos [Safe Work Australia (2022)].
d. A Class B (minimum) removal contractor should be engaged to undertake removal of all contaminated fill to the site.
e. Alternative options, such as remediation of surface soils and encapsulation of the impacted fill may be considered, based on the intended/approved site use.
f. According to the Code of Practice: How to Safely Remove Asbestos [Safe Work Australia (2022)] (p27) "Control monitoring may be carried out before and during Class B asbestos removal work to ensure that controls being used to eliminate or minimise exposure to airborne asbestos are effective."
g. Once satisfactory removal is complete, the area should be inspected by a suitably qualified Licensed Asbestos Assessor/Competent Person, such as SLR and an Asbestos Clearance Certificate issued upon satisfactory inspection.
h. All signage erected are to conform to the Australian Standard AS 1319-1994 Safety Signs for the Occupational Environment.
i. Each contractor must have approved "Safe Work Method Statements" and "Risk Assessments" prior to commencement of work.
j. The consultant conducting the air monitoring and clearance inspection should report directly to the client/principal contractor and be independent of the Asbestos Removal Contractor.
k. Any competent persons undertaking inspections or monitoring must provide competency documentation to council prior to undertaking works relating to the above advice.
l. All PPE/RPE equipment must conform to the Australian/New Zealand Standard AS/NZS 1716 (2003): Respiratory Protective Devices and AS/NZS 1715-1994 - Selection, Use and Maintenance of Respiratory Protective Devices.
m. All asbestos waste should be taken to a tip that is licensed to receive asbestos waste. All tipping receipts should be kept by the contractor and supplied to the principal contractor.
[30]
Mr Aria's cross-examination of Mr Harley
As earlier noted, Mr Harley had been required by Mr Aria for cross‑examination. Relevant for present purposes, Mr Aria questioned Mr Harley as to whether it was possible that asbestos which he had discovered along the northern boundary of the site in the batter‑spill could have been transported there by overland flood water movement. As I understood Mr Harley's evidence, it was that this was a remote possibility but that, in the circumstances of the locations from which Mr Harley had taken his samples (including the fact that they were embedded in the batter‑spill onto the Council reserve), this meant that the probability of those samples arising from overland flood water movement was negligible.
Although Mr Harley was also questioned by Mr Aria concerning a photograph taken of a dilapidated building on the site, that photograph was taken by an SLR employee during the subsequent visit when Mr Harley had not attended the site. As a consequence of my rejection of any reliance on that evidence, I disregard Mr Aria's questions and Mr Harley's responses on that topic (noting, however, that that evidence would not have been of assistance to Mr Aria).
[31]
The BBN Consulting report
It is to be noted that the invoice from ECM Quarries to Mr Aria is dated 31 March 2023 and is marked as "Due Date 7/4/23". The date of rendering the invoice is relevant in the context of obtaining an understanding of the BBN Consulting report compiled after an inspection of the site on 2 March 2023, with the report being entitled Asbestos Clearance Certificate. The report was commissioned by ECM Quarries, not by Mr Aria. The scope of the report and other relevant matters contained in it are set out in the following extract from the BBN Consulting document (Exhibit 8):
BBN Consulting was engaged to complete an asbestos‑clearance inspection at the site and for the client listed below. This report details the findings of the visual inspection undertaken following the removal of specific asbestos‑containing materials (ACM) from the site.
Then appeared the table reproduced below:
Project ID: BBN.3231
Site Address: 34 Creek St, Riverstone NSW
Name of Client: ECM Quarries
Date of Inspection: 02/03/23
Name of Inspector: Nicholas Braid (LAA001232)
Asbestos Removal Contractor: N/A
Asbestos Removal Contractor Licence: N/A
Areas Inspected: Visible and safely accessible ground surfaces to the site as directed by the client.
[32]
Scope
At the completion of the asbestos removal works, a visual clearance inspection was undertaken. The purpose of the inspection was to confirm that the asbestos containing materials and associated debris have been successfully removed as per the scope of works. Any areas outside the areas inspected above do not form part of this clearance certificate as the visual inspection was undertaken to the noted cleared areas only.
Summary
Asbestos containing materials and associated debris have been successfully removed as per the scope of works itemised is cleared areas. No visual asbestos containing materials were observed to the areas of remediation and the visual asbestos clearance inspection is deemed satisfactory.
No visible asbestos or associated debris from the noted asbestos removal work was visible, normal activities may resume in this area.
Limitations
This report is limited by the physical constraints of the structure inspected, the extent and location of any possible in‑situ asbestos containing materials that is not visibly inspected on the day of inspection does not form part of this clearance certificate. Areas that are not visually inspected include but are not limited to; Asbestos sheeting/vinyl tiles and/or adhesive obstructed by upgrades and/or floor coverings, asbestos cement pipe work buried in pits, asbestos cement sheeting used in building formwork, asbestos installation on pipe work in wall cavities or in subfloor areas, asbestos insulation on pipe chases in concrete/brick walls and floors. Be aware of the possibility of encountering asbestos when undertaken demolition/excavation/building works, giving attention to the mentioned inaccessible areas or areas that are not visually inspected. If this occurs, cease the work immediately, notify the person in charge & follow an unexpected asbestos and/or ACM fines protocol.
It is to be noted that the site inspection was undertaken by Mr Braid on 2 March 2023, with the above report being dated that same day.
It is also to be noted that not only was this report commissioned by ECM Quarries but it was, it is to be inferred, provided to that company prior to its invoicing of Mr Aria ‑ an invoice which described the material delivered by ECM Quarries as being "venm from Luddenham" (description on line 7 of the ECM Quarries' invoice to Mr Aria). As can be seen from the scope of the works undertaken by BBN Consulting on the site, no subsurface sampling was undertaken and, by necessary inference, the activities of the BBN consultant were confined to the collection and removal of obvious surface exposed elements of asbestos. It is clear from the terms of the BBN Consulting report set out above, that BBN Consulting was not certifying, in any fashion whatsoever, that the site was free of asbestos contamination ‑ merely that all visible surface asbestos had been collected and removed from the site.
Mr Harley commented on the BBN Consulting report in his expert report. Mr Harley wrote:
2. In response to 3.2;
a. I have reviewed the BBN Consulting document BBN.3231.CL-01 "Asbestos Clearance 34 Creek St, Riverstone NSW" dated 2 March 2023 in line with the SafeWork NSW 2022, "Code of Practice - How to Safely Remove Asbestos" and provide the following comments:
i. The inspection was documented to have been undertaken by a suitably qualified individual (Licensed Asbestos Assessor).
ii. No details of the removal activities undertaken have been provided.
iii. No specific location, extent or quantity of Asbestos Containing Materials removed have been provided.
iv. No details of the Licensed Asbestos Removal Contractor have been provided.
v. Asbestos removal supervisor details have not been provided.
vi. No time of inspection has been provided.
vii. The report states "… have been removed as per the scope of works itemized as 'cleared areas'". The document does not define the 'cleared areas' at any point.
viii. It is my professional opinion that the BBN Consulting document BBN.3231.CL-01 "Asbestos Clearance 34 Creek St, Riverstone NSW" dated 2 March 2023, should not be relied upon to ensure that the site is free from visible asbestos contamination or that the asbestos removal area does not pose a risk to health and safety from exposure to asbestos unless further clarification is provided on the above points.
Although Mr Aria cross‑examined Mr Harley to the effect earlier described, Mr Aria did not question Mr Harley concerning the BBN Consulting report.
I have set out above the extract from Mr Harley's written report concerning the BBN Consulting report concerning surface asbestos contamination of the site. Given that Mr Harley was not questioned by Mr Aria concerning this report, and Mr Aria did not, in his closing submissions, challenge anything written by Mr Harley concerning this report, Mr Harley's expert evidence concerning is unchallenged and to be accepted.
[33]
Exhibit 10 - the Luddenham documents
Mr Aria had also tendered (Exhibit 10) a large bundle of testing reports from a site at Luddenham as noted above. As can be seen from the item numbered 7 on the ECM Quarries' invoice reproduced at Annexure A, ECM Quarries had asserted that the material imported onto Mr Aria's site by that company had come from Luddenham and was VENM. Although Mr Aria did not provide evidence or make any submission as to how Exhibit 10 came into his possession, the reasonable inference to be drawn, on the balance of probabilities, is that this document was provided to him by ECM Quarries as evidencing the fact that the material imported onto the site was VENM.
[34]
The subpoena to ECM Quarries
The Council sought to subpoena ECM Quarries to compel production of relevant documents relating to the delivery of material to the site. The steps undertaken by the Council's legal representatives were set out in an affidavit from Mr Dimitrious Havadjia, a solicitor employed by the Council's legal representatives. His affidavit of 5 July 2023 was filed in court and, after giving Mr Aria the opportunity to read and object to it, it was marked as read (Transcript 5 July 2023, page 7, line 14). It is appropriate to set out the entirety of the substantive terms of that affidavit. Mr Havadjia deposed as follows:
Background
3 On 27 June 2023, I filed an affidavit deposing to the steps taken to effect service of the Subpoena to Produce issued to ECM Quarries Pty Ltd (ACN 615 791 690) (ECM Quarries) filed in this Court on 20 June 2023 (Refiled Subpoena).
4 On 4 July 2023, I filed an additional affidavit that outlined the additional steps taken to effect service of the Refiled Subpoena on ECM Quarries.
Events of 4 July 2023
5 On 4 July 2023 at approximately 9:20am, shortly after my affidavit of the same date was affirmed, I received a call from Mr Edward McGuire, the director of ECM Quarries. The following conversation took place to the best of my recollection:
Mr McGuire: It's Edward McGuire ‑ we are trying to get the documents together for the subpoena you sent us, but we aren't sure we will make it in time for the 10:30 court appearance.
Me: Thank you for the update. If you can provide a softcopy to us prior to the call over at 10:30am, I can send that to the Court and explain the situation to the Registrar.
Mr McGuire: This is all new to us. We have received the subpoena, but we are having difficulty getting the documents in the timeframe. We just got contacted to provide fill, now we're being served with Court documents.
Me: Appreciate it is difficult, but if you can provide via email, we can let the Court know that you are producing the documents.
6 Per Ms Jennifer Chenhall's filenote (solicitor with day to day carriage of this matter), which I have reviewed for this affidavit, Ms Chenhall and a Mr Bill O'Brien had a conversation at around 10am on 4 July 2023 where I understand the following discussion took place:
a. Mr O'Brien stated he was acting for ECM Quarries and that his client needed more time to comply with the Refiled Subpoena;
b. Ms Chenhall said that was not possible as the hearing was to start tomorrow;
c. Mr O'Brien asked what documents were required; and
d. Ms Chenhall told him to refer to the Refiled Subpoena, and that I was appearing at the 10:30am call over.
7 On 4 July 2023 at approximately 10:01am, Ms Chenhall, sent me auto‑generated transcription of a voicemail left by 0418641123. The transcription is extracted below, and a copy of this email is at Annexure D:
"Jennifer, Bill O'Brien here, solicitor. I'm acting for ECM as of 10 minutes ago. They're having trouble getting these documents together that you require. We're going to need some more time on this subpoena come out of the office, which is most unhelpful. My mobile is 0418641123. If you do have to contact me, Bill O'Brien. Thanks, Jennifer. Bye."
8 On my way to Court, at approximately 10:20am, I called Mr O'Brien on 0418641123. The following conversation took place to the best of my recollection:
Me: Hi Bill, it's Dimitrious from Lindsay Taylor Lawyers calling regarding the Blacktown Council and Aria matter. You spoke to my colleague Jennifer earlier, and I understand you are acting for ECM Quarries?
Mr O'Brien: Hi Dimitrious. Apologies for any confusion, but I will not be acting for those people. Goodbye.
9 On 4 July 2023, I conveyed the events in paragraphs [5] ‑ [8] to Registrar Orr at the return of the Refiled Subpoena. The Registrar made orders to hold the Refiled Subpoena over until 5 July 2023 to the start of the hearing.
10 On 4 July 2023, at approximately 11:45am, I emailed McGuire informing him of the new return date for the subpoena, being 5 July 2023. That email is at Annexure E.
Compliance with Subpoena
11 As of the time of affirmation, I am not aware that any documents have been produced or provided in accordance with the Refiled Subpoena.
As at the commencement of the hearing before me, no documents had been produced by ECM Quarries in response to the subpoena.
[35]
Mr Aria's vehicle storage activities
Mr Youhanna's expert report postulated that Mr Aria might be able to seek development consent for his vehicle storage activities on the site on the basis that they were either a "home occupation" or a "home industry" (the definitions of each of these being set out earlier). In this context, as earlier noted, Mr Youhanna had not visited the site. There are several reasons why Mr Aria's vehicle storage activities cannot potentially be encompassed within the scope of either of these home‑based activities.
The first reason is that, on the earlier set out extract from Mr Doolan's evidence, there is no structure presently erected on the site currently capable of being occupied as a "home".
Second, in his submissions to me, Mr Aria informed me (without objection from Mr White) that he and his family were currently residing with his parents‑in‑law at an address which was not the site.
Even setting aside the other factors noted above, an examination of Mr Zappala's contour‑line‑marked air photo (Annexure E) shows the number of vehicles located on the site. As at 19 March 2023, a count of the vehicles shown on the photograph reveals that Mr Aria has more than 150 vehicles stored on the site. As also earlier noted, with respect to Mr Doolan's evidence, one of the photographs taken by Mr Doolan for the purposes of his affidavit of 28 June 2023 appears to show that further vehicles have been imported to the site and stored in the vicinity of the shipping container shown on Annexure E in the south‑western corner of the site. As a matter of fact and degree, the storage of over 150 vehicles on the site could not be regarded as being ancillary to any residential use of the site in a fashion capable of falling within the purpose of a "home occupation" or a "home industry".
Finally, if Mr Aria is to be ordered to reinstate the site by the removal of the fill which he has imported to the site, continued storage of the vehicles presently on the site is incompatible with that activity.
Exhibit 9 contains various receipts issued by Pickles Auctions to the Respondent's wife, Ms Farnaz Aria. A total of 21 receipts in the exhibit were issued by Pickles Auctions to the Respondent's wife between 14 October 2020 and 7 July 2022. These receipts were issued in relation to the purchase of 34 individual motor vehicles.
Based on a conservative estimate of the number of motor vehicles depicted in an aerial image of the subject site contained (see Annexure E), there would appear to be at least 150 motor vehicles present on the site as at the date the aerial image was taken on 21 February 2023.
Although all the invoices from Pickles Auctions in Exhibit 9 show that the purchaser of all of the vehicles was Mr Aria's wife, that does not alter the position that Mr Aria owns the site and is permitting the vehicles purchased by his wife to be stored there. Although Mr Aria described these vehicles as his (without objection from Mr White), it is the permitting of the activity of storing more than 150 vehicles on the site owned by Mr Aria that gives rise to the necessity for the Court to intervene with respect to that unacceptable activity.
It is also to be noted that the sheer number of vehicles stored on the site also gives rise to potential environmental impacts if, at times of flooding, the flood waters rise sufficiently to extract fuel or oil from the vehicles causing downstream water pollution as a result.
It is appropriate that the orders to be made prohibit Mr Aria from carrying out vehicle storage activities at anything at all like the scale shown on Annexure E. Whilst the Council now accepts that Mr Aria should be permitted to have a number of vehicles on the site (proposing a limit of nine vehicles), it is also appropriate to order the removal of vehicles and vehicle parts currently stored on the site in the fashion proposed by the Council, subject to the nine‑vehicle limit now accepted by the Council.
[36]
Adverse environmental consequences
There are five adverse environmental consequences (actual or potential) arising from Mr Aria's activities on the site. These are:
1. the filling of the site causes alteration to flood water flow patterns on the site, exacerbating impacts on other properties located downstream from the site;
2. the potential impact of creation of airborne asbestos fibres from the asbestos‑contaminated fill imported to the site (in circumstances where the importation of asbestos‑contaminated fill to the site is prohibited);
3. the carrying out of the prohibited activity on the site by the importation of more than 15,000 cubic metres of fill causing damage to the system of orderly land use planning by the carrying out of that activity;
4. carrying out a second prohibited activity, the storage of large numbers of vehicles on the site, also causing damage to the orderly land use planning of the regulation of the use of land; and
5. the risks to the environment of storing large numbers of vehicles in a floodplain with the possibility that flood waters will rise in a fashion to transport fuel and oil from the stored vehicles in a fashion which would cause downstream water pollution.
All of these activities are unacceptable and warrant intervention by the Court to remedy these in the fashion proposed by the Council.
[37]
Introduction
Mr Aria proposed that he should be permitted six months within which to prepare and lodge a development application to regularise the earthworks which he had undertaken on the site. It was not clear as to which of the permitted uses (flood mitigation works or environmental protection works) would be said to be the vehicle of which Mr Aria would seek to avail himself for the purposes of seeking such a consent.
The position Mr White advanced, on behalf of the Council on this proposal, was that whichever of these two bases might be sought to be relied upon for such a hypothesised application, the earthworks which Mr Aria had undertaken on the site were incapable of being characterised in a fashion that satisfied either of the two relevant definitions. Because the two definitions (even if considered as potential alternatives) were incapable of encompassing Mr Aria's earthworks, the conclusion to be drawn was not that Mr Aria had carried out development on the site requiring consent in circumstances where such consent had not been obtained, Mr Aria had in fact carried out prohibited development. This was because the two uses which he advanced as potentially characterising the earthworks he had undertaken were, on a Plain English reading of the definition of each of those uses, incapable of applying to the work which had been undertaken on the site.
In this context, Mr White also noted what had been said by Payne JA in Dincel Construction System Pty Ltd v Penrith City Council [2021] NSWCA 133 concerning similar unauthorised earthworks that any development consent (if such consent was available to be granted by the Council ‑ a position which the Council rejects) could only apply to future use of the earthworks and could not grant retrospective approval for their installation.
[38]
Consideration
Mr Aria's proposal that I should permit him a six‑month period within which to prepare all necessary supporting documentation and lodge a development application to seek to regularise the earthworks undertaken by him on the site is to be rejected. The reason for its rejection is simple ‑ the position advanced by the Council that the earthworks carried out could not, on any rational reading of the definitions of flood mitigation works or environmental protection works, be construed to encompassing the importation and levelling out (at least for the most part) of over 15,000 cubic metres of fill in a fashion which has created (as can be seen from the extent of the dark blue shading on Mr Zappala's heat map reproduced at Annexure D), to create a largely level pad across more than half of the site is incapable of being characterised, in a fashion consistent with either of the two permitted uses in paragraph 3 of the Land Use Table for the RU4 zone.
Second, there is at least portion of the fill that is asbestos contaminated and asbestos contaminated fill would, on Mr Harley's evidence, only be able to remain on the site if it was capped in a fashion that would preclude any future environmental contamination arising from any asbestos material. Such capping could only exacerbate the adverse flooding impacts which arise from the extent of the current fill on the site ‑ flooding impacts which at the present level of fill are unacceptable and incapable of approval.
The only rational conclusion to be drawn from an examination of the extent of what has been carried out on the site and the terms of the two permitted uses upon which Mr Aria seeks to propose as a basis for obtaining development consent for the future use of those earthworks makes it crystal clear that neither definition was capable of being relied upon to describe what Mr Aria has undertaken. As there are no other permissible uses in the RU4 zone remotely capable of being applied to Mr Aria's earthworks, it follows that the earthworks are prohibited.
It also follows that there is no rational basis why Mr Aria should be permitted to expend his time and money on the undoubted folly of seeking to persuade the Council that he should be given a development consent to use what are, as a matter of proper construction of the relevant terms in the LEP, works incapable of being granted development consent for any ongoing use by leaving the earthworks in place.
What money Mr Aria might have available for such futile pursuit of a development application will be better applied by him toward the necessary remediation measures which are to be ordered.
[39]
Discretion
Principles setting out matters requiring to be considered on the exercise of discretion when determining what steps might be appropriate to remedy or restrain breaches of the EPA Act were set out by Kirby P in Warringah Shire Council v Sedevic (1987) NSWLR 335. A number of the matters which arise from those principles are here engaged. They are:
the activities undertaken by Mr Aria on the site are ones which were prohibited on the site;
the body seeking to remedy the breaches of the EPA Act is the Council, which is responsible for the administration of planning laws in the local government area where the site is located;
there are significant actual or potential physical environmental consequences of Mr Aria's unlawful activities with these environmental consequences unable to be abated unless remediation is ordered; and
if the activities which Mr Aria has undertaken, and continues to undertake, on the site are not addressed by orders remedying those impacts, there will be significant ongoing damage to public confidence in the planning system.
I have already explained why it would not be appropriate to defer making any orders to remedy the breaches raised by the Council because regularisation of the imported filling of the site and/or granting of approval for ongoing storage of the vehicles imported into the site is not possible to be granted.
However, two matters arise from Mr Aria's submissions which do require to be considered as they potentially impact on my exercise of discretion.
First, Mr Aria tendered documents relating to a medical condition impacting the health of one of his daughters. Those documents are Exhibit 7. Mr Aria said to me (without objection from Mr White) that the seriousness of his daughter's medical condition had distracted him from paying any significant attention, during the past six months or so, to what was occurring on the site.
I have carefully read all of the documents forming Exhibit 7. Whilst they disclose the nature of the condition impacting his daughter (the seriousness of which I do not seek to downplay but which is not necessary to disclose), the fact that Mr Aria has continued to import vehicles purchased by his wife to the site since the commencement of the proceedings and has continued to import fill onto the site despite repeated warnings from the Council that this was not permitted and ordering him to desist from doing so means that, despite the seriousness of his daughter's medical condition, I am unable to accept that Mr Aria has been so distracted by it that he has been, or would be in the future, unable to attend to matters relating to the management of his site (including giving effect to the remediation orders proposed by the Council if they were to be obligations imposed on him).
Second, Mr Aria proposed that the sequencing of any remediation of the site should be undertaken in a fashion which would permit him to remediate half of the site (one of the two allotments which together comprise the site as earlier noted) so that he would be able to sell that allotment in order to provide funds for further remediation works. The sequencing of remediation works on the site is a matter for details in the Remediation Plan proposed by the Council in its suggested orders prior to the commencement of remediation. Such a plan can accommodate sequencing of the remediation in the fashion proposed by Mr Aria if that is appropriate.
I am satisfied that neither of the above noted matters acts as an inhibition to my exercise of discretion to require Mr Aria to address the environmental impacts of his activities on the site in the fashion proposed by the Council.
[40]
Making a declaration
Mr White addressed, in both his written and oral submissions, the Council's proposal that I make a declaration in the terms sought as earlier set out. In this context, it is to be noted that the orders sought by the Council to remedy the breaches of the EPA Act are matters requiring substantive activities on the site. As a consequence, the declaration sought by the Council is not a bare declaration but it is one sought in support of orders requiring the achievement of positive environmental outcomes.
In such circumstances, I am satisfied that it is appropriate to make the declaration sought as a public denunciation of the unlawful activities undertaken, and continuing to be undertaken, on the site by Mr Aria. Doing so fulfills a public educative function, as well as reinforcing to Mr Aria the inappropriateness of the conduct he has undertaken giving rise to the necessity for these proceedings.
[41]
Declaration and orders
The Court declares that the Respondent has carried out unlawful development on the land identified as Lot 7 and 17, Section W, DP 712, known as 34 Creek Street, Riverstone NSW 2764 and Lot 17 Creek Street, Riverstone NSW 2764, together the "Property", such development compromising:
1. the importation, placement and spreading of fill, consisting of shale and sandstone (Fill Material);
2. earthworks, including the excavation and/or clearing of over 11,700 square metres of land up to a depth of approximately 500 millimetres;
3. the use of the Property to store written‑off or damaged motor vehicles;
being prohibited development contrary to s 4.3 of the Environmental Planning and Assessment Act 1979 (EPA Act) (Development).
The Court orders that:
1. The Respondent is restrained from carrying out, causing or permitting the carrying out of the development, including earthworks and the importation of any fill onto the Property, without prior written consent under the EPA Act;
2. The Respondent is restrained from carrying out, causing or permitting the use of the Property as a storage facility for:
1. unregistered vehicles; or
2. vehicles without a number plate; or
3. vehicle parts,
(together, the Items);
1. Within 30 days, the Respondent is to obtain and submit to the Applicant, for the Applicant's approval (such approval not to be unreasonably withheld), a Remediation Plan for the Property prepared by a suitably qualified consultant providing a plan for removal of all Fill Material, removal of all Items on the Property, and remediation and restoration of the Property to the condition it was in prior to the development (Remediation Plan);
2. Within seven days of the approval of the Remediation Plan by the Applicant (Approval Date), the Respondent is ordered to engage a suitably qualified person to undertake remediation works in accordance with the approved Remediation Plan.
3. Within 180 days of the Approval Date, the Respondent is to:
1. cause all Fill Material to be removed from the Property and transported to a place that can lawfully receive that material for disposal or recycling;
2. cause all Items on the Property to be transported to a place that can lawfully receive such Items for storage, disposal or recycling, so that no more than a total of nine unregistered vehicles (or vehicles without a number plate) remain on the Property; and
3. remediate the Property in accordance with the Remediation Plan;
1. if:
1. the Respondent fails to submit a Remediation Plan in accordance with order 3; or
2. the Applicant and Respondent are unable to agree on a Remediation Plan within 30 days of it being provided to the Applicant,
the Respondent must, within 150 days of the date of these orders:
1. cause all Fill Material to be removed from the Property and transported to a place that can lawfully receive that material for disposal or recycling;
2. cause all Items on the Property to be transported to a place that can lawfully receive such Items for storage, disposal or recycling, so that no more than a total of nine unregistered vehicles (or vehicles without a number plate) remain on the Property; and
3. remediate and restore the Property to the condition it was in prior to the development with the oversight of a suitably qualified environmental consultant, who will certify upon completion that the remediation has been undertaken in accordance with the requirements of the following:
1. NSW Work Health and Safety Act 2011;
2. NSW Work Health and Safety Regulation 2011;
3. State Environmental Planning Policy (Resilience and Hazards) 2021;
4. WorkCover NSW 2014, 'Managing Asbestos in or on Soil';
5. SafeWork NSW 2016, Code of practice ‑ 'How to manage and control asbestos in the workplace';
6. SafeWork NSW 2016, 'How to Safely Remove Asbestos'; and
7. National Environment Protection (Assessment of Site Contamination) Measure 1999;
1. For the purpose of demonstrating compliance with order 5 or order 6 as is applicable, the Respondent is to:
1. procure a receipt in relation to each consignment of the Fill Material transported from the Property, such receipt to be issued by the occupier of the place to which the Fill Material has been transported for the purposes of this order, and such receipt to identify the place to which the Fill Material has been transported and the quantity of Fill Material received;
2. procure a receipt in relation to each of the Items that are transported from the Property, such receipt to be issued by the occupier or owner of the place to which the Items have been transported for the purposes of this order, and such receipt to identify the place to which the Items have been transported; and
3. provide each receipt procured for the purposes of (7)(a) and (7)(b) to the Applicant within three days of each transfer.
1. The Respondent is to pay the Applicant's costs of these proceedings as agreed or assessed.
2. The exhibits, other than Exhibits 8, 10 and 11, are returned.
[42]
Annexure F
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 August 2023