Blue Mountains City Council v Waterland Blue Mountain Natural Water Pty Ltd & Anor

KEY ISSUES: Civil Enforcement :- whether final orders appropriate - evidence of continuing breach before ex parte injunction - no undertakings proffered - final orders made

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1) Blue Mountains Local Environmental Plan 2005

APPLICANT Ms M Carpenter SOLICITORS McPhee Kelshaw

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr M Baird SOLICITORS N/A

SECOND RESPONDENT Mr M Baird SOLICITORS N/A

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BLUE MOUNTAINS CITY COUNCIL Applicant

WATERLAND BLUE MOUNTAIN NATURAL WATER PTY LTD First Respondent

JUDGMENT Jagot J: 1 These are class four proceedings in which the Blue Mountains City Council seeks certain declarations and orders against the respondents with respect to an activity that the respondents had been carrying out on a property at 15 McLaughlin Avenue, Wentworth Falls, being the extraction and removal by pumping of groundwater.

2 The evidence in the proceedings shows that the extraction of groundwater was being carried out for the purposes of bottling the groundwater. Such bottles were intended for sale and human consumption.

3 On 7 February 2000, a development consent was granted relating to the property authorising the extraction of groundwater for a period of five years. Because of the date on which the activity commenced pursuant to the development consent, the extraction activity ceased to be authorised from about October or November 2005. However, the extraction activity continued without the required development consent until 5 July 2006. On that day, I made an order on an ex-parte basis at the Council's application, restraining the respondents from carrying out the extractive activity, and that order has continued in force thereafter.

4 The Council now comes to the Court seeking final orders in these proceedings and consequential orders for costs. Mr Baird, appearing for the respondents, concedes that the activities that were being carried out on the property at the material time, required but did not have development consent under the relevant environmental planning instruments, and it now appears that under the Blue Mountains Local Environmental Plan 2005 those activities would in fact be prohibited from being carried out.

5 Mr Baird submits that it is unnecessary, and would be inappropriate, for the Court to make final orders as sought by the Council because it is apparent from the circumstances that there was a development consent authorising the extraction activity, which ceased to authorise the extract activity from about October or November 2005. The reason the extraction activity continued thereafter until 5 July 2006, is that the respondents had relied on incorrect advice from their planning consultant, Mr Ross Creighton, apparently to the effect that the respondents could continue the use while a new development application was pending. That development application was lodged in August 2005, and a class one appeal was lodged in October 2005. Mr Baird submits that the respondents relied on incorrect advice in the context of a pending development application and class one appeal. As the class one application is no longer on foot, having been discontinued on 18 October 2006, there is simply no evidence of any suggestion that the use will recommence and, accordingly, there is no need for or utility in the making of final orders.

6 Ms Carpenter, appearing for the Council, submits that the respondents cannot hide behind the incorrect advice that they apparently received from Mr Creighton. In particular, Ms Carpenter draws attention to the fact that a Council Officer, Mr Colin Wood, being a principal of the Council's development monitoring team, inspected the property on 23 May 2006, and had a conversation with the second respondent, Mr Jun Sik Kang. In that conversation Mr Wood informed Mr Kang that the Court consent had lapsed and that he could no longer continue to extract groundwater from the property. As part of that conversation, due to some language difficulties, Mr Wood also spoke to Mr Kang's son and explained to him there was no approval to extract groundwater and the operation had to cease until such time as the Court determined the matter. Thereafter, the Council issued a $600 penalty infringement notice to the first respondent with respect to the activities that had been taking place on the property.

7 Again on 7 June 2006, Mr Wood attended the property where he observed extraction of groundwater and informed the second respondent that there was no consent to do so and the activity had to cease, to which the second respondent replied, "I have approval, Mr Creighton told me to collect water. I am coming back tomorrow to get more." Mr Wood then informed Mr Kang that he was not allowed to pump water from the premises and that a fine would be issued for the breach today, and Mr Wood would be referring the matter to the Council's solicitors for possible action in the Court. After that inspection, the Council served a further penalty infringement notice on the first respondent. Mr Wood attended yet again on 19 June 2006, and having observed the pumping of groundwater, had a further conversation with Mr Kang, generally to the same effect as those to which I have already referred. He ultimately informed the second respondent that Mr Wood would have to call the police to have him stop pumping the water if the activity did not cease. Nevertheless, on 26 June 2006, Mr Wood again inspected the property in response to a complaint about the extraction of water, observed the truck parked at the front of the property, and the hose going into the truck, and had another conversation with the second respondent in which Mr Wood said that another penalty infringement notice would be served and, indeed, on 26 June two such notices were issued.

8 In those circumstances, Ms Carpenter submits that, notwithstanding the advice apparently received by the respondents from Mr Creighton, the Council had made it clear to the respondents from 23 May 2006, that the activity was unauthorised and had to cease. However, nothing the Council did managed to secure the cessation of the activity until the commencement of the class four proceedings or, more precisely, the grant of the ex-parte injunction on 5 July 2006. Accordingly, Ms Carpenter submits that the breach of planning law carried out by the respondents cannot be characterised as a mere technical breach. It extended over a period of some eight or nine months. It occurred in the face of the repeated attempts by the Council to ensure that the activity ceased, and it occurred in circumstances where the evidence discloses that the Council had concerns about the fact that the extraction activity was occurring using visibly dirty equipment and the extracted water was intended for human consumption, thereby raising potential public health risks.

9 Ms Carpenter also submits that the real difficulty is the only evidence filed and served by the respondents in these class four proceedings is an affidavit of Mr Creighton deposing to the fact that he was the town planner engaged by the first respondent in relation to the development application lodged with the Council. There is no evidence of the actual position, understanding or intentions of the respondents. There is no solicitor on the record. Other than Mr Creighton's affidavit, no affidavits have been filed. The respondents are not personally in Court and have not, through their counsel, offered any form of undertaking with respect to the activity. Moreover, Ms Carpenter points to the fact that in paragraph 16 of Mr Creighton's affidavit, Mr Creighton observes that the property has a licence for the extraction of water valid until 25 March 2010.

10 I consider Ms Carpenter's submissions compelling. In particular, this is a case where there was a lengthy breach of the planning law, which was continued in the face of repeated express directions from the Council to comply with the planning law, and where, on the evidence, I am satisfied that the Council's concerns about the potential public health issues were justified. The unlawful use ceased only on the grant of the ex-parte injunction. In these circumstances, and where there is no evidence of the actual position, understanding or intentions of the respondents, it is not clear to me why I would draw the most favourable inference to the respondents - namely, as Mr Baird submits, that they have now understood the error of their ways. Other inferences are open on the evidence, particularly having regard to the length and nature of the breach. That is, as Ms Carpenter submits, the respondents acted in disregard of the planning laws, with no understanding of their obligations under those laws, and apparently content to rely on what is now conceded to be incorrect advice from Mr Creighton, despite the numerous attempts by the Council to have the activity cease. I also think it is relevant, as Ms Carpenter submits, that the use is one that can readily recommence and there is a licence for the extraction of water that currently remains on foot.

11 In these circumstances, the absence of direct evidence from the respondents, in my view, firmly points to the need for final orders to be made, as sought by the Council, and I propose to make the following orders - the Court: (1) Declares that the respondents have carried out development (being the extraction and removal by pumping of groundwater) (the "development") on the property at 15 McLaughlin Avenue, Wentworth Falls (the "site") without having obtained the development consent that is required by section 76A(1) of the Environmental Planning and Assessment Act 1979 for the carrying out of that development.

(2) Orders that the respondents, their servants and agents be and are restrained forthwith from carrying out the development, without consent, on the site.

(3) Orders the respondents to pay the applicant's costs of the proceedings, as agreed or assessed.

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