Central Coast Council v 40 Gindurra Road Somersby Pty Ltd - [2019] NSWLEC 171 - NSWLEC 2019 case summary — Zoe

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Central Coast Council v 40 Gindurra Road Somersby Pty Ltd

[2019] NSWLEC 171

Land and Environment Court (NSW)|2019-08-08|Before: Pain J, Community Association DP

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-08-08

Before

Pain J, Community Association DP

Source

Original judgment source is linked above.

Judgment (64 paragraphs)

[1]

C 139 Blacktown City Council v Penetrators Pty Ltd (No 3) [2014] NSWLEC 4 Brooklyn Resort Pty Ltd v Hornsby Shire Council (1999) 105 LGERA 208; [1999] NSWLEC 214 Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172 Burrell v Mullin [2018] NSWLEC 165 Central Coast Council v 40 Gindurra Road Somersby Pty Ltd [2018] NSWLEC 79 Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 4) (2014) 212 LGERA 1; [2014] NSWLEC 4 Community Association DP 270253 v Woollahra Municipal Council (2013) 211 LGERA 412; [2013] NSWLEC 184 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 De Haas v Williams (2004) 132 LGERA 195; [2004] NSWLEC 15 Department of Environment and Climate Change v Olmwood Pty Ltd (2010) 173 LGERA 366; [2010] NSWLEC 15 Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) (2018) 234 LGERA 1; [2018] NSWLEC 153 Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2018] NSWLEC 99 Foley v Padley (1984) 154 CLR 349; [1984] HCA 50 Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council (No 2) [2013] NSWLEC 127 Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 55 Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190 Hornsby Shire Council v Trives [2014] NSWLEC 171 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Lend Lease (Millers Point) Pty Limited v Council of the City of Sydney [2014] NSWLEC 64 Maund v Shoalhaven City Council [2019] NSWLEC 89 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Murdoch v Holroyd City Council [1996] NSWCA 376 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407; [1944] HCA 42 R v Hickman; Ex parte Fox (1945) 70 CLR 598; [1945] HCA 53 R v PLV (2001) 51 NSWLR 736; [2001] NSWCCA 282 Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 SAS Trustee Corporation v Woollard [2014] NSWCA 75 Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1998) 103 LGERA 338 Trives v Hornsby Shire Council (2015) 208 LGERA 361; [2015] NSWCA 158 Wilkie v Blacktown City Council (2002) 121 LGERA 444; [2002] NSWCA 284 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5) [2013] NSWLEC 68 Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, Butterworths) Macquarie Dictionary (online) Oxford English Dictionary (online) Category: Principal judgment Parties: Central Coast Council (Applicant) 40 Gindurra Road Somersby Pty Ltd (First Respondent) William A Dagger (Second Respondent) Representation: COUNSEL: T To (Applicant) R Clark (director, First Respondent) Submitting appearance (Second Respondent)

[3]

TABLE OF CONTENTS Judicial review of validity of complying development certificates and civil enforcement Legislation Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Standard Instrument - Principal Local Environmental Plan Council's chronology Evidence 2007 Fill Consent as modified Masterplan CDC, Mod 2 CDC, Mod 3 CDC, Mod 4 CDC Whether Council out of time to challenge validity of the CDCs Gindurra's submissions Council's submissions Council not out of time to challenge validity of CDCs Relationship between s 4.31 and s 4.59 Is the public notice of the Masterplan CDC compliant with cl 137 of the EPA Regulation as in force in December 2015? Scope of judicial review of certifier's decision Filling on the Site Evidence of fill levels Evidence of fill placed in council reserves and inadequate/nil sediment and erosion control Council's submissions Gindurra's submissions Filling on Site greater than Fill consent established Validity of CDCs Masterplan CDC Evidence Council's submissions Masterplan CDC invalid Mod 3 and Mod 4 CDCs Council's submissions Gindurra's submissions Mod 3 CDC and Mod 4 CDC invalid Mod 4 CDC Council's submissions Further reasons why Mod 4 CDC invalid Mod 2 CDC does not authorise additional fill Further concerning behaviour of the Certifier Section 120 of the Protection of the Environment Operations Act 1997 (water pollution) Council's submissions and evidence Gindurra's submissions and evidence Gindurra caused or permitted water pollution Gindurra in breach of Environmental Planning and Assessment Act 1979 for unlawful filling Whether Gindurra carried out development for the purpose of a waste or resource recovery facility without development consent Council's submissions Gindurra's submissions Gindurra caused or allowed unauthorised resource recovery use Exercise of discretion to grant relief Evidence Council's submissions Gindurra's submissions Consideration Costs Declarations

[4]

Judicial review of validity of complying development certificates and civil enforcement

Central Coast Council (the Council) has commenced judicial review and civil enforcement proceedings in relation to an industrial site at lots 1-7 in SP 96758 known as 40 Gindurra Road, Somersby (the Site). The First Respondent 40 Gindurra Road Somersby Pty Ltd (Gindurra) owns the Site. A large amount of fill has been deposited in stages on the Site and into the adjoining council reserve. Consent for some land filling (DA 32465/2007) was granted to the Applicant by former Gosford City Council on 7 May 2007 (Fill Consent). The Fill Consent was modified on 26 April 2012. A complying development certificate (CDC) described as "Masterplan CDC" was issued by the Second Respondent Mr Dagger an accredited certifier (the Certifier) under the Environmental Planning and Assessment Act 1979 (EPA Act) in December 2015. Private certification of development including complying development was introduced into the EPA Act in July 1998 by the Environmental Planning and Assessment Amendment Act 1997.
The Masterplan CDC was modified on two occasions to permit fill according to the Council's case. Declarations of invalidity of the Masterplan CDC and both modifications, "Mod 3 CDC" and "Mod 4 CDC", are sought. Extensive consequential orders seek inter alia the cessation of all works on the Site other than those required to comply with the orders sought, preparation of a soil and water management plan and rehabilitation and vegetation management plan, and the removal of fill so that the level of fill on the Site accords with the Fill Consent. I note that Gindurra relied on an additional modification, "Mod 2 CDC".
Gindurra was represented by its director Mr Richard Clark. The Certifier filed a submitting appearance and has played no role in the litigation.
Interlocutory orders were made in Central Coast Council v 40 Gindurra Road Somersby Pty Ltd [2018] NSWLEC 79 on 29 May 2018 requiring Gindurra to cease the importation and deposition of any material on the Site until further order.
The Site is zoned IN1 "General Industrial" under the Gosford Local Environmental Plan 2014 (GLEP). Gindurra Road adjoins the Site's northern boundary (see map below). Two council reserves adjoin the Site to the south and west at 32 and 34 Gindurra Road respectively. Two unnamed tributaries of a creek known as Piles Creek pass through the reserves. A factory at 44 Gindurra Road is east of the Site and the Sydney - Newcastle motorway is south of the Site. The Site is approximately 5.5 hectares. After various subdivisions and proposals, the Site currently comprises lots 1-7 of SP 96758.
The Council's amended summons dated 28 November 2018 seeks inter alia the following declaratory relief and a consequential order (more orders sought in prayer 5 are set out later in the judgment): 1A. A declaration that Complying Development Certificate No. 14-0912 issued on 21 December 2015 is invalid and of no effect (Masterplan CDC). 1B. A declaration that Complying Development Certificate No. 14-0912 - 3 issued on 20 March 2017 is invalid and of no effect (MOD3 CDC). 1C. A declaration that Complying Development Certificate No. 14-0912 - 4 issued on 26 September 2017 is invalid and of no effect (MOD4 CDC). 1. A declaration that, in breach of s 4.2(1)(a) [formerly s.76A(1)(a)] of the Environmental Planning & Assessment Act 1979, the Respondent has carried out development, namely the use of the land described as Lots 1-7 in Strata Plan 96758 and known as 40 Gindurra Road, Somersby (the Land) for the purpose of a waste or resource management facility, being development on the Land which may not be carried out except with development consent, which consent has not been obtained. 2. An order that the Respondent, by itself, its servants and agents, be restrained from carrying out development for the purpose of a waste or resource management facility on the Land until development consent has been obtained for such use. 3. A declaration that, in breach of s.4.2(1)(b) [formerly s.76A(1)(b)] of the Environmental Planning and Assessment Act 1979, the Respondent has carried out development, namely the filling of the Land, not in accordance with: (a) Development Consent 32465/2007 dated 22 November 2007, as modified (the Fill Consent); or (b) Complying Development Certificate 14-0912 dated 21 December 2015, as modified. 4. A declaration that, in breach of s 120 of the Protection of the Environment Operations Act 1997, the Respondent has polluted the waters in the creeks situated on the public reserves adjoining the Land, being land described as Lot 4 DP 771309 and known as 32 Gindurra Road, Somersby and Lot 3 DP 771309 known as 34 Gindurra Road Somersby. …
As the CDCs challenged were approved in 2015 and 2017, earlier versions of the EPA Act are relevant.

[5]

Environmental Planning and Assessment Act 1979

Relevant sections of the current EPA Act provide: Part 4 Development assessment and consent … Division 4.5 Complying development … 4.31 Validity of complying development certificate Without limiting the powers of the Court under section 9.46 (1), the Court may by order under that section declare that a complying development certificate is invalid if: (a) proceedings for the order are brought within 3 months after the issue of the certificate, and (b) the certificate authorises the carrying out of development for which the Court determines that a complying development certificate is not authorised to be issued … Division 4.10 Miscellaneous Part 4 provisions … 4.59 Validity of development consents and complying development certificates If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or a certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given. … Part 9 Implementation and enforcement … Division 9.5 Civil enforcement proceedings … 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. …
Relevant sections of the EPA Act as at 21 December 2015 (Masterplan CDC issued), 20 March 2017 (Mod 3 CDC issued) and 26 September 2017 (Mod 4 CDC issued) provided unless otherwise specified: Part 1 Preliminary … 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: … complying development is development for which provision is made as referred to in section 76A (5). … development means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition. development application means an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate. … Part 4 Development assessment Division 1 Carrying out of development - the threefold classification … 76A 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. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. … (5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development. … Division 2 The procedures for development that needs consent … 77A Designated development (1) Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations. (2) Designated development does not include State significant development despite any such declaration. … Division 2A Special procedures concerning staged development applications … 83B Staged development applications (as at 20 December 2015 and 21 March 2017) (1) For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development. … (3) If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. … Division 3 Special procedure for complying development 84 Application of this Division This Division applies to complying development. 84A Carrying out of complying development (1) A person may carry out complying development on land if: (a) the person has been issued with a complying development certificate for the development, and (b) the development is carried out in accordance with: (i) the complying development certificate, and (ii) any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued. (2) An application for a complying development certificate may be made: (a) by the owner of the land on which the development is proposed to be carried out, or (b) by any other person, with the consent of the owner of that land. (3) The regulations may provide for the procedures for making an application, the fees payable in connection with an application and the procedures for dealing with an application. … (5) Nothing in this Division prevents a consent authority from considering and determining a development application for the carrying out of complying development. … 85 What is a "complying development certificate"? (1) Terms of complying development certificate A complying development certificate is a certificate: (a) that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and (b) in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia. (2) A complying development certificate may indicate different classifications for different parts of the same building. (3) Erection of buildings A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 109M. (4) Subdivision of land A complying development certificate that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems. (5) Other requirements for complying development certificates The regulations: (a) may impose other requirements concerning the issue of complying development certificates, and (b) may provide for the form in which a complying development certificate is to be issued. (5A) A complying development certificate has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development. (6) For the purposes of this section, development standard includes a provision of a development control plan that would be a development standard, within the meaning of section 4, if the provision were in an environmental planning instrument. 85A Process for obtaining complying development certificates (1) Application An applicant may, in accordance with the regulations, apply to: (a) the council, or (b) an accredited certifier, for a complying development certificate. … (3) Evaluation The council or accredited certifier must consider the application and determine: (a) whether or not the proposed development is complying development, and (b) whether or not the proposed development complies with the relevant development standards, and (c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions. (4) A council or accredited certifier must not refuse to issue a complying development certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations. (5) A council, an employee of a council and an accredited certifier do not incur any liability as a consequence of acting in accordance with subsection (4). (6) Determination The council or an accredited certifier may determine an application: (a) by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or (b) by refusing to issue a complying development certificate. (7) The council or an accredited certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to the issue of a complying development certificate. … 86A Duration of complying development certificate (1) A complying development certificate becomes effective and operates from the date endorsed on the certificate. … 87 Modification of complying development (1) A person who has made an application to carry out complying development and a person having the benefit of a complying development certificate may apply to modify the development the subject of the application or certificate. (2) This Division applies to an application to modify development in the same way as it applies to the original application.

[6]

Environmental Planning and Assessment Regulation 2000

Relevant clauses of the current Environmental Planning and Assessment Regulation 2000 (EPA Regulation) currently provide: Part 1 Preliminary … 6 When is public notice given? Public notice in a local newspaper is given for the purposes of this Regulation when the notice is first published in a local newspaper, even if the notice is required to be published more than once or in more than one newspaper. … Part 6 Procedures relating to development applications … Division 13 Validity of development consents 124 What are the public notification procedures for the purposes of section 4.59 of the Act? (1) The granting of a development consent is publicly notified for the purposes of section 4.59 of the Act if - (a) public notice in a local newspaper is given - (i) by the consent authority, or (ii) if the consent authority is not the council, by the consent authority or the council, and (b) the notice describes the land and the development the subject of the development consent, and (c) the notice contains a statement that the development consent is available for public inspection, free of charge, during ordinary office hours - (i) at the consent authority's principal office, or (ii) if the consent authority is not the council, at the consent authority's office or the council's principal office. … Part 7 Procedures relating to complying development certificates … Division 3 Validity of complying development certificates 137 What are the public notification procedures for the purposes of section 4.59 of the Act? (1) The determination of an application for a complying development certificate is publicly notified for the purposes of section 4.59 of the Act: (a) if public notice in a local newspaper is given by the council or an accredited certifier, and (b) if the notice describes the land and the development the subject of the complying development certificate, and (c) if the notice contains a statement that the determination of the application for a complying development certificate is available for public inspection, free of charge, during ordinary office hours at the council's offices. (2) If the public notification is given by an accredited certifier, the accredited certifier must send a copy of the page of the newspaper in which notice of the complying certificate was published to the council within 7 days after the notice is published. [Note: cl 137 as previously in force referred to former s 101 instead of s 4.59] …
Relevant clauses of the EPA Regulation as at 21 December 2015, 20 March 2017 and 26 September 2017 provided: Part 1 Preliminary … 4 What is designated development? (1) Development described in Part 1 of Schedule 3 is declared to be designated development for the purposes of the Act unless it is declared not to be designated development by a provision of Part 2 or 3 of that Schedule. … Schedule 3 Designated development Part 1 What is designated development? ... 13 Composting facilities or works Composting facilities or works (being works involving the controlled aerobic or anaerobic biological conversion of organic material into stable cured humus-like products, including bioconversion, biodigestion and vermiculture): (a) that process more than 5,000 tonnes per year of organic materials, or (b) that are located: (i) in or within 100 metres of a natural waterbody, wetland, coastal dune field or environmentally sensitive area, or … … 16 Crushing, grinding or separating works (1) Crushing, grinding or separating works, being works that process materials (such as sand, gravel, rock or minerals) or materials for recycling or reuse (such as slag, road base, concrete, bricks, tiles, bituminous material, metal or timber) by crushing, grinding or separating into different sizes: (a) that have an intended processing capacity of more than 150 tonnes per day or 30,000 tonnes per year, or (b) that are located: (i) within 40 metres of a natural waterbody or wetland, or … (2) This clause does not apply to development specifically referred to elsewhere in this Schedule. … 26 Paper pulp or pulp products industries Paper pulp or pulp products industries: (a) that have an intended production capacity of more than: (i) 30,000 tonnes per year, or (ii) 70,000 tonnes per year if at least 90 per cent of the raw material is recycled material and if no bleaching or de-inking is undertaken, or (b) that release effluent or sludge: (i) in or within 100 metres of a natural waterbody or wetland, or ... 32 Waste management facilities or works (1) Waste management facilities or works that store, treat, purify or dispose of waste or sort, process, recycle, recover, use or reuse material from waste and: (a) that dispose (by landfilling, incinerating, storing, placing or other means) of solid or liquid waste: (i) that includes any substance classified in the Australian Dangerous Goods Code or medical, cytotoxic or quarantine waste, or (ii) that comprises more than 100,000 tonnes of "clean fill" (such as soil, sand, gravel, bricks or other excavated or hard material) in a manner that, in the opinion of the consent authority, is likely to cause significant impacts on drainage or flooding, or … (iv) that comprises more than 200 tonnes per year of other waste material, or (b) that sort, consolidate or temporarily store waste at transfer stations or materials recycling facilities for transfer to another site for final disposal, permanent storage, reprocessing, recycling, use or reuse and: (i) that handle substances classified in the Australian Dangerous Goods Code or medical, cytotoxic or quarantine waste, or (ii) that have an intended handling capacity of more than 10,000 tonnes per year of waste containing food or livestock, agricultural or food processing industries waste or similar substances, or (iii) that have an intended handling capacity of more than 30,000 tonnes per year of waste such as glass, plastic, paper, wood, metal, rubber or building demolition material, or (c) that purify, recover, reprocess or process more than 5,000 tonnes per year of solid or liquid organic materials, or (d) that are located: (i) in or within 100 metres of a natural waterbody, wetland, coastal dune field or environmentally sensitive area, or ...

[7]

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Relevant clauses of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) as at 21 December 2015, 20 March 2017 and 26 September 2017 provided unless otherwise specified: Part 1 General Division 1 Preliminary … 1.5 Interpretation - general … (2) A word or expression used in this Policy has the same meaning as it has in the Standard Instrument unless it is otherwise defined in this Policy. Division 2 Exempt and complying development … 1.17 What development is complying development? (1) Development that is specified in a complying development code that meets the standards specified for that development and that complies with the requirements of this Division for complying development is complying development for the purposes of this Policy. (2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out. 1.18 General requirements for complying development under this Policy (1) To be complying development for the purposes of this Policy, the development must: … (c1) must not require an environment protection licence within the meaning of the Protection of the Environment Operations Act 1997, and (c2) must not be designated development, and … (d) before the complying development certificate is issued, have an approval, if required by the Local Government Act 1993, for: … (ii) an on-site stormwater drainage system, and … … Part 5A Commercial and Industrial (New Buildings and Additions) Code Division 1 Development that is complying development under this code … 5A.2 Alterations or additions to an existing building or construction of new building (1) The following development is development specified for this code: (a) the construction of a building for the purposes of industry (other than heavy industry) or a warehouse or distribution centre, … Division 2 Development standards for this code relating to industrial buildings Subdivision 1 Application 5A.4 Application of development standards This Division sets out the development standards that apply to development specified for this code that comprises: (a) the construction of a building for the purpose of industry or of a warehouse or distribution centre, or (b) an addition to an existing building that is used for the purpose of industry, or (c) the external alteration of an existing building used for the purpose of industry. Subdivision 2 General 5A.5 General standards The standard specified for development to which this Division applies is that it must not contravene any condition of an existing development consent that applies to the land in relation to car parking, hours of operation, landscaping, noise, loading, traffic generation, vehicular movement and waste management. … Division 4 Development standards for both industrial and commercial development … 5A.26 Garbage and waste storage (1) A garbage and waste storage area for recyclable and non-recyclable waste materials and receptacles for those materials must: (a) be provided as part of the development, and (b) be located entirely within the lot on which the development is being carried out and not on a road or road reserve, and (c) comply with the following appendices in the document entitled Better Practice Guidelines for Waste Management and Recycling in Commercial and Industrial Facilities (ISBN 978-1-74293-944-5), published by the NSW Environment Protection Authority in December 2012: (i) Appendices A and B, for the size and location of garbage and storage areas and the size of waste receptacles, (ii) Appendices C and D, for the design of openings of waste storage areas and loading bay turning circles for waste removal vehicles, (iii) Appendix E, for standard signs for waste storage areas, (iv) Appendix F for the design and operational capacity of waste storage areas. … 5A.27 Earthworks (as at 20 March 2017) (1) Excavation works for the purposes of the development must: (a) be structurally supported in accordance with subclause (2), and … (d) be carried out at least 40m from any waterbody (natural), and … (2) Structural support for earthworks more than 1m above or below ground level (existing) must take the form of a retaining wall or other form of structural support that: (a) has been certified by a professional engineer, and (b) has adequate drainage lines connected to an existing stormwater drainage system for the site, and (c) does not redirect the flow of any water or cause sediment to be transported onto an adjoining property, and (d) is not higher than 3m, and (e) is separated from any other structural support on the site by at least 2m, measured horizontally. (3) Fill, for the purposes of the development must: (a) not raise the ground level (existing) more than 2m, and (b) be wholly contained by a structural support in accordance with subclause (2), and (c) be located at least 40m from any waterbody (natural). 5A.27 Earthworks (as at 26 September 2017) (1) Excavation The standards specified for excavation work are that the work must: (a) be structurally sound, and … (2) Fill The standards specified for fill are that the fill must: (a) not raise the ground level (existing) more than 2m, and (b) be structurally sound, and (c) be located at least 40m from any waterbody (natural). (3) Structural supports Earthworks that are more than 1m above or below ground level (existing) are structurally sound only if they have structural support that: (a) a professional engineer has certified as structurally sound, including in relation to (but not limited to) the ability to withstand the forces of lateral soil load, and (b) has adequate drainage lines connected to an existing stormwater drainage system for the site, and (c) does not redirect the flow of any water or cause sediment to be transported onto an adjoining property, and (d) is not higher than 3m, and (e) is separated from any other structural support on the site by at least 2m, measured horizontally, and (f) is not located over a registered easement. 5A.28 Drainage (1) All stormwater drainage collected as a result of the development must be conveyed by a gravity fed or charged system to: (a) a public drainage system, or (b) an inter-allotment drainage system, or (c) an on-site disposal system. (2) All stormwater drainage systems within a lot, and the connection to a public or an inter-allotment drainage system, must: (a) if an approval is required under section 68 of the Local Government Act 1993 - be approved under that Act, or (b) if an approval is not required under section 68 of the Local Government Act 1993 - comply with any requirements for the disposal of stormwater drainage contained in a development control plan that is applicable to the land. …

[8]

Standard Instrument - Principal Local Environmental Plan

Relevant dictionary definitions from the Standard Instrument - Principal Local Environmental Plan (Standard Instrument) provide: Dictionary general industry means a building or place (other than a heavy industry or light industry) that is used to carry out an industrial activity. … hazardous industry means a building or place used to carry out an industrial activity that would, when carried out and when all measures proposed to reduce or minimise its impact on the locality have been employed (including, for example, measures to isolate the activity from existing or likely future development on other land in the locality), pose a significant risk in the locality: (a) to human health, life or property, or (b) to the biophysical environment. … heavy industry means a building or place used to carry out an industrial activity that requires separation from other development because of the nature of the processes involved, or the materials used, stored or produced, and includes: (a) hazardous industry, or (b) offensive industry. It may also involve the use of a hazardous storage establishment or offensive storage establishment. ... industrial activity means the manufacturing, production, assembling, altering, formulating, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, transforming, processing, recycling, adapting or servicing of, or the research and development of, any goods, substances, food, products or articles for commercial purposes, and includes any storage or transportation associated with any such activity. … industry means any of the following: (a) general industry, (b) heavy industry, (c) light industry, but does not include: (d) rural industry, or (e) extractive industry, or (f) mining. … resource recovery facility means a building or place used for the recovery of resources from waste, including works or activities such as separating and sorting, processing or treating the waste, composting, temporary storage, transfer or sale of recovered resources, energy generation from gases and water treatment, but not including re-manufacture or disposal of the material by landfill or incineration. Note. Resource recovery facilities are a type of waste or resource management facility - see the definition of that term in this Dictionary. ... waste disposal facility means a building or place used for the disposal of waste by landfill, incineration or other means, including such works or activities as recycling, resource recovery and other resource management activities, energy generation from gases, leachate management, odour control and the winning of extractive material to generate a void for disposal of waste or to cover waste after its disposal. … waste or resource management facility means any of the following: (a) a resource recovery facility, (b) a waste disposal facility, (c) a waste or resource transfer station, (d) a building or place that is a combination of any of the things referred to in paragraphs (a)-(c). …

[9]

Council's chronology

The Council provided the Court with a chronology which I understand is undisputed and which I have slightly modified to add in the Mod 2 CDC inter alia, as follows: 19 September 2005 Consent for 8 Lot Industrial Subdivision granted by former Gosford City Council (DA/25533/2004) ("Subdivision Consent"). Land subject of the consent is Lot 2 DP 771309 (which includes land presently known as 40 Gindurra Road Somersby NSW 2250). 19 September 2006 Modification of Subdivision Consent 7 May 2007 Consent for Land Filling granted by former Gosford City Council (DA/32465/2007) ("Land Fill Consent"). Land subject of Land Fill Consent is Lot 2 DP 771309. 22 November 2007 Modification of Land Fill Consent 15 December 2008 Modification of Subdivision Consent 4 March 2009 Modification of Subdivision Consent 27 July 2009 Registration of plan of subdivision creating Lots 1001 and 1002 DP 1138136. 11 March 2011 Transfer of Lot 1002 DP 1138136 to 40 Gindurra Road Somersby Pty Ltd 14 June 2011 Modification of Land Fill Consent - Lots 1002, and 1001 DP 1138136. 26 April 2012 Modification of Land Fill Consent - Lots 1002, and 1001 DP 1138136. 21 December 2015 Complying development certificate no. 14-0912 issued by William A Dagger ("Masterplan CDC"). 1 August 2016 Council inspection of the land. 18 November 2016 Modification of Masterplan CDC (CDC 14-0912-2) [Mod 2 CDC] 23 December 2016 Publication of notice of issue of Masterplan CDC and Mod 2 CDC in newspaper. 28 February 2017 Council inspection of the land. 15 March 2017 Council inspection of the land. 20 March 2017 Modification of Masterplan CDC (CDC 14-0912-3) ("Mod 3 CDC"). 23 March 2017 Notices (2) under s.143 of the Protection of the Environment Operations Act 1997 ("POEO Act") given by the First Respondent, that the land could be lawfully used as a waste facility. 30 March 2017 Council issues notice of intention to give an order under former s.121B of the Environmental Planning and Assessment Act 1979 (EPA Act). 21 April 2017 Council issues order under the former s.121B of the EPA Act. 4 July 2017 Council issues certificates of compliance to Gindurra pursuant to s 307 of the Water Management Act 2000 (WM Act). 11 July 2017 Council issues certificates of compliance to Gindurra pursuant to s 307 of the WM Act. 26 September 2017 Modification of Masterplan CDC (CDC 14-0912-4) ("Mod 4 CDC"). 9 November 2017 Council receives complaint in relation to the land. 10 November 2017 Council inspection of the land. First observation of fill, and sediment into the creeks located in the public reserves adjoining the land. 5 December 2017 Council issues notice of intention to give direction under the POEO Act. 15 December 2017 Notice under s.143 of the POEO Act given by the First Respondent, that the land could be lawfully used as a waste facility. 20 December 2017 Strata Plan SP96758 registered. Seven lot strata subdivision of Lot 1002 DP 1138136. 31 January 2018 Notice under s.143 of the POEO Act given by Tom Cooper, that the land could be lawfully used as a waste facility. 2 February 2018 Council inspection of the land. 12 February 2018 Survey of the land undertaken for the Council. 15 February 2018 Timecon Pty Ltd, enters into contract with Capital K (Aust) Pty Ltd, for supply, transport and delivery of fill to the land. 21 February 2018 Council issues order to take prevention action under the POEO Act. 23 February 2018 Council issues order under s.121B of the EPA Act 6 March 2018 Orders issued on 21 February 2018, and 23 February 2018 revoked by the Council. 8 March 2018 Without prejudice discussions between the Council, and director of the First Respondent, including his solicitor. 23 March 2018 Council inspection of the land. First observation of pollution of waters in the creeks located in the public reserves located adjoining the land. 31 March 2018 Drone footage taken of the land. 3 April 2018 Council inspection of the land. 24 April 2018 Council inspection of the land. 26 April 2018 Notice under s.143 of the POEO Act given by Somersby Landscape Supplies Pty Ltd that the land could be lawfully used as a waste facility. 18 May 2018 Class 4 proceedings commenced 23 October 2018 Council inspection of the land. 28 November 2018 Summons for Class 4 proceedings amended. 4 February 2019 Council inspection of the land. 2 July 2019 Council inspection of the land.

[11]

2007 Fill Consent as modified

An eight-lot subdivision of the Site was approved in 2005. The Fill Consent was approved in 2007. Relevant conditions of the Fill Consent as modified on 26 April 2012 include: 1 Development being generally in accordance with plan(s) numbered C001 & C002 Rev 3 dated 14/6/11, ES01 and ES02 Rev B, dated 20 February 2017, prepared by RGH Consulting Group and B T Ryan & Associates, or where modified by any conditions of this consent. A copy of the stamped approved plans must be kept on site for the duration of the site works and made available upon request to either the Principal Certifying Authority or an officer of the Council. … 5 All erosion and sediment control systems proposed shall be implemented and functioning prior to any works occurring on the site. … 11 A Geotechnical report prepared by a practising Geotechnical Engineer for all lots that are filled shall be submitted to Council in accordance with Australian Standard AS 3798-1996 (Guidelines on Earthworks for Commercial and Residential Developments, Standards Association of Australia). Any recommendations contained within the report shall be included as a restriction in the Section 88B Instrument giving Council the power to release vary or modify. At the completion of construction, a practising Geotechnical Engineer shall certify that the filled areas have been constructed in accordance with the design, accepted practice and recommendations outlined in the Geotechnical report. This certification shall be submitted prior to the issue of a Subdivision Certificate. … 13 No filling or debris shall be placed within any watercourse or drain. 14 Erosion and siltation control measures shall be implemented in respect to all civil works. The controls shall be constructed in accordance with Council's Code of Practice for Erosion and Sedimentation Control and the Protection of the Environment Operations Act, 1997. All disturbed areas to be fully established within vegetation prior to the issue of the Subdivision Certificate. The applicant shall be held responsible for any breaches of the Protection of the Environment Operations Act, 1997. Failure to implement or maintain appropriate erosion/sediment control measures is a breach of Section 120 of the Protection of the Environment Operations Act, 1997. Such a breach if liability to a $750 on-the-spot fine for an individual, or $1,500 for a Company. Applicant(s) and Builder(s) are advised that spot checks of Erosion and Sedimentation Control measures may occur and fines for breaches imposed. ...
The Fill Consent permitted filling on the Site to certain levels specified in the "bulk earthworks plan" C002 Rev 3 (Fill Consent bulk earthworks plan). This plan depicts a maximum Australian Height Datum (AHD) of 194 (lot 2001), 190 (lot 2002), 185 (lot 2003), 184 (lot 2004), 181.5 (lot 2005), 179.5 (lot 2006) and 181 (lot 2007). The Fill Consent bulk earthworks plan and the "sediment and erosion control plan" C001 Rev 3 (Fill Consent sediment and erosion control plan) depict a 10 metre-wide conservation buffer along the southern and western boundaries of the Site. Both plans are dated 14 June 2011 and were prepared by RGH Consulting Group.

[12]

Masterplan CDC, Mod 2 CDC, Mod 3 CDC, Mod 4 CDC

The Council issued a notice to produce dated 3 May 2019 to the Certifier in the following terms: 1. All documents (including emails from and to Richard Clark), relating to the application for, processing of and determination of complying development certificate numbered 14-0912, dated 21 December 2015 ("Masterplan CDC") including, but not limited to: a. the application including any accompanying documents for the Masterplan CDC; b. any email or other written correspondence with any person relating to the Masterplan CDC; c. the Masterplan CDC and all endorsed or noted plans, specifications and other documents relating to the Masterplan CDC. 2. All documents (including emails from and to Richard Clark), relating to complying development certificate numbered 14-0912-3, dated 20 March 2017 ("MOD3 CDC") including, but not limited to: a. the application including any accompanying documents for the MOD3 CDC; b. any email or other written correspondence with any person relating to the MOD3 CDC; c. the MOD3 CDC and all endorsed or noted plans, specifications and other documents relating to the MOD3 CDC. 3. All documents (including emails from and to Richard Clark), relating to complying development certificate numbered 14-0912-4, dated 26 September 2017 ("MOD4 CDC") including, but not limited to: a. the application including any accompanying documents for the MOD4 CDC; b. any email or other written correspondence with any person relating to the MOD4 CDC; c. the MOD4 CDC and all endorsed or noted plans, specifications and other documents relating to the MOD4 CDC.
The following documents were produced by the Certifier in response to the notice to produce: 1. Clean-up notices issued by the NSW Environment Protection Authority to Timecon Pty Ltd (Timecon) (of which Mr Clark is the sole director) (20 November 2013, 27 October 2014 and 7 November 2014). 2. Emails from Mr Clark to the Certifier in relation to the Masterplan CDC and Sch 1 to the Protection of the Environment Operations Act 1997 (POEO Act). In an email dated 14 August 2014 Mr Clark extracted provisions of the Codes SEPP and highlighted those that would apply to the Site. These include cll 5A.2 (alterations or additions to an existing building or construction of new building), 5A.5 (general standards), 5A.27 (earthworks) and 5A.28 (drainage). He annotated the provisions with comments as to how they would be complied with. In an email dated 22 December 2015 the Certifier requested that Mr Clark update him on the "function of the Resource Building and the Resource stockpiles and the SEPP limit on those stock piles" if Mr Clark was planning a crushing plant of some kind. In an email dated 23 December 2015 Mr Clark stated that the aim of the Masterplan CDC application was to "recover reuse and supply clean energy from different general soil waste material streams" which could include: 1. recycling paper; 2. recycling of building and demolition general solid waste; 3. composting; and 4. non-thermal and thermal waste. He extracted provisions of the POEO Act Sch 1 (scheduled activities) cll 12 (composting), 16 (crushing, grinding or separating), 30 (paper or pulp production), 41 (waste processing (non-thermal treatment)), 49 (definitions of waste classification) and the Protection of the Environment Operations (Waste) Regulation 2014 reg 86 (EPA is to set targets for recovery of materials and review of packaging design). 1. Documents relating to the interim occupation certificate issued by the Certifier in November 2016 including a bundle of photographs depicting a fire hydrant near the resource recovery shed on the Site, a portable fire extinguisher mounted on the shed and bagged "sample material in resource recovery shed", and an email from Mr Clark to the Certifier dated 18 November 2016: The bales stored inside the resource recovery shed are for coal works in an overseas coal power plant … at the moment we are sitting at around 500 tonnes of coal product inside the shed. 1. Emails from the Certifier to Mr Clark relating to the progression of the Mod 3 CDC dated 10, 11 and 14 January 2017. An email dated 14 January 2017 identifies a number of issues with the then proposed Mod 3 CDC: the fill permitted by the Masterplan CDC at 185 AHD was inconsistent with that permitted by the Fill Consent and the conservation buffer is not depicted on the Masterplan CDC. 2. Email correspondence dated 21 and 23 February and 9 and 20 March 2017 between Mr Clark and the Certifier in relation to the Mod 3 CDC application attaching bulk fill plans for the Site and individual lots. 3. Email correspondence dated 14 March and 19 April 2017 between Mr Clark and the Certifier in relation to the Mod 4 CDC application attaching bulk fill plans for the Site and individual lots.
Additional material was exhibited to the affidavit of Mr Ryan senior development control officer for the Council sworn 16 May 2018: 1. In an email to the Certifier dated 16 November 2015 Mr Clark described how development was intended to occur under the Masterplan CDC and enclosed plans and engineers' approval for the "industrial shed first phase" of the Masterplan CDC. He stated that he would change the word from "stage" to "phase" on the attached plans. Phase 1 would involve the construction of a temporary industrial shed for recycling yard use until concrete buildings were built; 2. the Masterplan CDC, approved plans and supporting documents relied on by the Certifier that were provided to the Council; 3. the Mod 3 CDC, approved plans and supporting documents relied on by the Certifier that were provided to the Council; and 4. the Mod 4 CDC, approved plans and supporting documents relied on by the Certifier that were provided to the Council.
The Masterplan CDC dated 21 December 2015 states: SCOPE OF WORKS COVERED BY THIS COMPLYING DEVELOPMENT CERTIFICATE MASTER PLAN - FOR 89 FACTORY WAREHOUSE UNITS; PLUS PHASE 1 DEVELOPMENT - INDUSTRIAL BUILDING FOR RESOURCE RECOVERY USE … … Building Classifications: MASTERPLAN: FOR 89 INDUSTRIAL BUILDINGS (TO BE CONSTRUCTED IN 8 SEPARATE PHASES) BEING: CLASS 7b - Storage; CLASS 8 Warehouses (Wholesale & Retail - Primary Uses) CLASS 10a Common Sanitary & Shower Facilities - Ancillary to Class 7b & Class 8 uses; PHASE 1 CLASS 8 - Warehouse + Resource Recovery Building + (Paper or Pulp production - Clause 30 Defined Scheduled Activity limited to Table Column 2 quantities); CLASS 10b - Resource Material Stock Pile Locations (properly covered + contained and protected); CLASS 10a - Associated staff amenities.

[17]

Whether Council out of time to challenge validity of the CDCs

Under s 4.59 (formerly s 101) of the EPA Act, judicial review proceedings must be commenced within three months of a public notice published in accordance with the regulations. Under s 4.31, a CDC can be challenged within three months on a wide basis. In an email to the Certifier dated 13 January 2017, Mr Clark stated that he had published public notices of the determination of the applications for the Masterplan CDC and the Mod 2 CDC in the Newcastle Herald dated 23 December 2016. The Council was notified by him that this occurred on 3 January 2017. The copy of the public notices state: Public Notice in Accordance with Regulations The development consent for CDC 140912 Master Plan for 89 Warehouse buildings and Phase 1 development Industrial Building for Resource Recovery Site at 40 Gindurra Rd Somersby dated 21 December 2015, determination of the application and any accompanying information is available for public inspection, free of charge, during ordinary office hours 9:00am until 5:00pm Monday to Friday at the Central Coast Council Gosford office 49 Mann Street, Gosford 2250. … Public Notice in Accordance with Regulations The development consent for CDC 140912-2 Modified Master Plan for 89 Warehouse buildings and Phase 1 development Industrial Building for Resource Recovery Site at 40 Gindurra Rd Somersby dated 17 November 2016 and determination of the application and any accompanying information is available for public inspection, free of charge, during ordinary office hours 9:00am until 5:00pm Monday to Friday at the Central Coast Council Gosford office 49 Mann Street, Gosford 2250.
The operation of ss 4.31 and 4.59 of the EPA Act will be considered. Section 4.59 (formerly s 101) has been in the EPA Act for some time. Section 4.31 commenced on 1 March 2018. Public notice requirements for CDCs are specified in cl 137 of the EPA Regulation.
I note that at the completion of the hearing on 28 August 2019 I made orders allowing the Council to make further submissions on s 4.31 by 30 August 2019. Mr Clark had leave to respond to those submissions by 13 September 2019. Mr Clark filed further lengthy submissions on 10 September 2019 addressing s 4.31 but also other issues already considered at the hearing. As Mr Clark did not have leave to file the additional material I did not have regard to it, except for one issue which is potentially relevant to the orders I make. This is discussed at [241] below.

[19]

Council's submissions

The Council accepts it cannot rely on s 4.31 to commence these proceedings given that it was commenced three months after the issue of the Masterplan CDC. Section 4.31 of the EPA Act was necessary due to the Court of Appeal's decision in Trives v Hornsby Shire Council (2015) 208 LGERA 361; [2015] NSWCA 158 (Trives (CA)). The Court of Appeal held that whether the development was complying development was not a jurisdictional fact reviewable directly by the Court. The LEC could judicially review the state of satisfaction of the Certifier.
This context led to the enactment of s 4.31 of the EPA Act. The provision is expressed in terms of amplifying the power of the Court to declare the invalidity of a CDC. Section 4.31 enables the Court to directly review the matters about which a certifier must be satisfied as jurisdictional facts, as opposed to indirectly review a certifier's state of satisfaction per Trives (CA). This is made clear by the chapeau of s 4.31 "Without limiting the powers of the Court … the Court may..." and specifically in s 4.31(b), "for which the Court determines that a … certificate is not authorised to be issued".
Section 4.31 does not restrict or limit judicial review of the state of satisfaction of a certifier required by s 4.28(3) (formerly s 85A(3)), for example, that the proposed development is complying development and complies with required development standards. Nor does s 4.31 seek to otherwise prescribe a restriction generally on the judicial review of CDCs.
The difference between the language employed in ss 4.31 and 4.59 is stark. Section 4.59, where engaged, explicitly prescribes a restriction on the jurisdiction of the Court to determine the validity of inter alia a CDC, hence the words "cannot be questioned". By comparison, s 4.31 is not expressed as a restriction at all, but an additional power given to the Court. Given that s 4.59 continues to apply to CDCs it would have been entirely otiose for s 4.31 to be enacted if it were to be construed as creating any discrete restriction on judicial review. Section 4.31 is not a privative clause.
The judicial review challenges in these proceedings have been brought also on the (alternative) basis that it was not open to the Certifier to form the state of satisfaction that the development was complying development and/or that it met required development standards: see grounds 2, 7 and 10 of the amended summons ([100], [138] and [152] below respectively). This avenue of judicial review remains available.
In this regard, the Council adopted what Biscoe J said in Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190 at [16]-[23] in relation to the legal tests relevant to review of a certifier's state of satisfaction. The Council submitted that it was not open and it was legally unreasonable for the Certifier to form the view that the proposed development was complying development or met the required development standards. Such errors were jurisdictional errors of the second and third kind described in R v Hickman; Ex parte Fox (1945) 70 CLR 598; [1945] HCA 53 (the decision did not relate to the subject matter of the legislation and was not reasonably capable of reference to the power given to the decision-maker) and not protected by s 4.59 either before or after Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (Kirk) because the publication of notice of the determination of the application for the Masterplan CDC did not engage s 4.59 of the EPA Act (or s 101 as it then was). Such a notice could only be given by a consent authority or a certifier: s 4.59 of the EPA Act and cl 137(1)(a) of the EPA Regulation. Neither the Council or the Certifier gave the notice, Mr Clark did.

[22]

Is the public notice of the Masterplan CDC compliant with cl 137 of the EPA Regulation as in force in December 2015?

The requirements for public notice of a CDC to be given are set out in cl 137 of the EPA Regulation. The mandatory content of the notice is set out in subcll (1)(b) and (c). Gindurra's director, not the Council or the Certifier as cl 137(1)(a) specifies, caused a public notice to be published in a local newspaper in December 2016C. The content of the notice set out in full at [34] above complies with subcll (1)(b) and (c). Whether the public notice of the Masterplan CDC complied with cl 137(1)(a) of the EPA Regulation as in force in 2015 arises in these circumstances. Statutory construction of that clause is necessary. No authorities have considered the question of the identity of who must publish a notice in relation to either a CDC or DA. Cases that have considered cl 124 (the equivalent provision for DAs) have been focussed on whether a notice complied with the equivalents of cl 137(1)(b) or (c). These subclauses have been strictly applied in cases such as De Haas v Williams (2004) 132 LGERA 195; [2004] NSWLEC 15 and Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349.
In the absence of cases considering the construction of cl 137, cases on cl 124 may be relevant. In De Haas v Williams it was held that a public notice that misdescribed the property the subject of the purported development consent failed to draw to the public's attention the fact of the purported development consent which was granted to the property. The notice failed in its legislative purpose. In Hoxton Park Residents Action Group Inc v Liverpool City Council, Basten JA (Giles and Macfarlan JJA agreeing) held at [25]-[29] that cl 124(1)(c) of the EPA Regulation requires that the notice contain a statement that the consent is available for public inspection, free of charge, during ordinary office hours at a specified office. A notice which does not include a statement referring to availability "during ordinary office hours" does not comply with the clause. His Honour stated at [24]: Factors which may indicate that a particular requirement of the Regulation is not mandatory, in the sense of being one absent which proper notice has not been given, may include the degree of precision with which the requirement is identified, by contrast with a requirement that involves elements of judgment or discretion. The matters required in the statement (ignoring infelicity of expression in the Regulation) are all matters which can readily be objectively identified and which do not require judgment on the part of the person drafting the statement.
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] cited in Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council (No 2) [2013] NSWLEC 127 at [60].
Where words are plain and unambiguous they should be given their ordinary and grammatical meaning: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 305 cited in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 at [42]. Many authorities have emphasised the importance of the words of the statute: see, for eg, SAS Trustee Corporation v Woollard [2014] NSWCA 75 at [58] (Bathurst CJ, Tobias JA agreeing) citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41.
An extension of that emphasis is that additional words should not lightly be implied in legislation: Lend Lease (Millers Point) Pty Limited v Council of the City of Sydney [2014] NSWLEC 64 at [54]. As identified in D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, Butterworths) at [2.32]-[2.36] (Pearce and Geddes) the highest appellate courts in Australia and England have stated this can occur but in limited circumstances.
Indeed, Spigelman CJ stated in R v PLV (2001) 51 NSWLR 736; [2001] NSWCCA 282 at [88] (Simpson J and Smart AJ agreeing at [98] and [99] respectively), approved in Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [35] (French CJ, Crennan and Bell JJ): The authorities which have expressed the process of construction in terms of "introducing" words to an Act or "adding" words have all, so far as I have been able to determine, been concerned to confine the sphere of operation of a statute more narrowly than the full scope of the dictionary definition of the words would suggest. I am unaware of any authority in which a court has 'introduced' words to or 'deleted' words from an Act, with the effect of expanding the sphere of operation that could be given to the words actually used. This was the actual issue in Young. There are many cases in which words have been read down. I know of no case in which words have been read up.
Gindurra emphasised the word "given" to submit it does not matter by who the notice is transmitted. Given that subcl (1)(a) requires expressly that notice be given by a council or certifier, Gindurra's approach requires the words "or a person on behalf of" a council or certifier to be read into subcl (1)(a). This would expand the scope of the provision.
It is important to consider the EPA Regulation as a whole. The phrase "given by" is used in various provisions in the EPA Regulation. Clause 49 regulates who can make development applications (DAs). Clause 49(3) states "a development application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown" (emphasis added). The inclusion of "on behalf of the Crown" in cl 49(3) suggests that "given by" in cl 137 should not be read as "given by or on behalf of" because otherwise this would have been reflected in the text of the provision (as done in cl 49(1)).
Other provisions in the EPA Regulation where a council or accredited certifier is required to do something include that a certifying authority must not issue a CDC for development unless a council or an accredited certifier has carried out an inspection of the site of the development (cl 129B(1)); and evidence of the issue of a CDC must be endorsed by the council or an accredited certifier (cl 130(3)). Since the council or accredited certifier is the relevant consent authority, it would not be appropriate for a person or entity acting on behalf of the council or certifier to perform either of these functions. These provisions do not support inferring additional words in cl 137(1)(a).
In contrast, the phrase "cause notice of" is used throughout the EPA Regulation in different circumstances. For example under cl 118(3) the relevant consent authority must "cause notice of" an application to modify a development consent to be given to each person who made a submission in relation to the original DA. Further under cl 130(4), for the purposes of s 4.28(11)(b) of the EPA Act (the requirement that an accredited certifier must notify the council of the determination of an application for the issue of a CDC), an accredited certifier must "cause notice of" their determination to be given. These provisions do not support implying additional words in cl 137(1)(a) as it suggests that in the context of issuing a public notice the consent authority itself must issue the public notice (as opposed to an entity or person on its behalf which could be permitted on a textual construction of "cause notice of").
I interpret "given by" to have its ordinary meaning such that a public notice must be given by the council or certifier. I conclude that the notice placed in the newspaper by Mr Clark does not satisfy cl 137(1)(a) and is not a valid notice for the purposes of s 4.59. Accordingly these proceedings are not statute-barred as commenced within time.
Even if it was a valid notice for the purposes of s 4.59, as Preston CJ explained in Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172 at [37]-[40] (followed by me in Community Association DP 270253 v Woollahra Municipal Council (2013) 211 LGERA 412; [2013] NSWLEC 184 at [74]), after the High Court's decision in Kirk a provision such as s 101 (now s 4.59) does not preclude judicial review of the full range of jurisdictional error. The judicial review challenges identified in grounds 2 (Masterplan CDC), 7 (Mod 3 CDC) and 10 (Mod 4 CDC) of the amended summons are potentially available in these proceedings subject to consideration of the scope of judicial review of a certifier's decision, as I do next.

[23]

Scope of judicial review of certifier's decision

At the time that the Masterplan, Mod 3 and Mod 4 CDCs were issued, s 85A of the EPA Act outlined the process for obtaining CDCs. When considering a CDC application the council or accredited certifier must determine under s 85A(3) whether the proposed development is complying development and whether it complies with the relevant development standards inter alia.
In Hornsby Shire Council v Trives [2014] NSWLEC 171 the separate question before Craig J was whether three CDCs issued for the erection of structures certified as complying development and characterised as "detached studios" on three residential properties were valid. The CDCs were purportedly issued pursuant to s 85A of the EPA Act and the Codes SEPP which provides that "ancillary development" (defined to include a "detached studio") is complying development if certain requirements of the Codes SEPP are satisfied. His Honour determined that the characterisation of the proposed structures was an issue of objective jurisdictional fact to be determined by the Court on the evidence before it and ultimately held that the CDCs were valid. The certifier appealed on the sole ground that the determination of whether development was complying was not a jurisdictional fact. The Court of Appeal in Trives (CA) upheld the appeal. It found that the Court in judicial review proceedings could not decide whether the proposed development was complying development for the purposes of s 85A(3) as an objective jurisdictional fact. The Court could decide whether the certifier could reasonably have held the opinion that the proposed studios were complying development on the correct construction of the Codes SEPP and the relevant LEP specifying what was complying development: Trives (CA) at [14], [26]-[31], [34].
The matter was remitted to the Court and heard by Biscoe J resulting in Hornsby Shire Council v Trives (No 3). In finding that the CDCs were invalid, his Honour provided a useful summary of the principles concerning the implied requirement of reasonableness of opinion in the context of a certifier exercising their power to issue a CDC under s 85A of the EPA Act. A prerequisite to the exercise of a certifier's power to issue CDCs is that they are satisfied that the proposed development is complying development per s 85A(3) of the EPA Act. The question for a court of judicial review is not whether the court would have formed the opinion but whether the repository of power could have formed the opinion reasonably: Hornsby Shire Council v Trives (No 3) at [17] citing R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407; [1944] HCA 42 at 430-432 (Latham CJ); Foley v Padley (1984) 154 CLR 349; [1984] HCA 50 at 370 (Brennan J). Biscoe J went on to state at [19]-[20] and [22]: 19 The legal standard of unreasonableness is not limited to an irrational if not bizarre decision - that is to say one that is so unreasonable that no reasonable person could have arrived at it. Unreasonableness encompasses, for example, a decision-maker misunderstanding his or her statutory obligation. What must be evident is that some error has been made in forming the opinion or state of satisfaction. A court of judicial review may infer that in some way there has been a failure to properly arrive at the state of satisfaction or opinion if upon the facts the result is unreasonable. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification: Minister for Immigration and Citizenship v Li at [68]-[72], [75], [76] (Hayne, Kiefel and Bell JJ). 20 "Unreasonable" encompasses, among other things, failure by a decision-maker to obey rules requiring proper application of the law: Minister for Immigration and Citizenship v Li at [27] (French CJ). … 22 In the present case, if upon the application of the SEPP and the LEP, correctly construed, to the clear facts the decision is plainly unreasonable, the Court should infer that the decision-maker misinterpreted, failed to address or overlooked the requirements of those instruments or that in some other way there has been a failure to properly form the prerequisite state of satisfaction.
I will adopt the approach to the achievement of satisfaction of the certifier outlined above in Hornsby Shire Council v Trives (No 3) in considering the validity of the Masterplan , Mod 3 and Mod 4 CDCs below as identified in grounds 2, 7 and 10 of the amended summons. These grounds are drafted as if it was not open to the certifier to determine that the Masterplan , Mod 3 and Mod 4 CDCs complied with relevant development standards. They are permissible if construed as addressing the reasonableness of the certifier's satisfaction of various mandatory matters in the manner identified in Hornsby Shire Council v Trives (No 3).

[25]

Evidence of fill levels

The part of the survey dated 24 January 2017 shows numerous points on the Site where the surveyed level of fill (recorded on 21 December 2016) exceeded the design fill contours (approved levels of fill by the Fill Consent) in the middle of the Site. Most exceedances are positive in value and range between +0.22 and +2.18 metres. The boundaries of the Site are between 0 and approximately 22 metres from the creek.
The latest survey of the Site dated 16 May 2019 depicts various points on all lots at which the surveyed fill level exceeds the design fill contour level excluding lots 1 and 4. The exceedances range between: -0.09 to +0.97 (lot 3); +1.27 to +3.57 (lot 2); +5.38 to +9.17 (lot 5); +6.63 to +8.41 (lot 6); +8.17 to +9.83 (lot 7) and +0.25 (conservation buffer). The lot locations and numbers depicted on this survey (after the registration of the strata plan on 20 December 2017) are different to those on the relevant Fill Consent, the Masterplan CDC and the Mod 3 and Mod 4 CDC plans. The survey shows higher fill exceedances on the southern part of the Site. The survey shows fill in the conservation buffer in the northern and southern part of the western boundary of the Site and along the entire southern boundary of the Site. A small amount of fill is identified in the council reserve in the southern part of the western boundary and a large amount in the council reserve along the southern boundary of the Site.
Mr Christopher Eggeling the registered land surveyor who prepared this survey affirmed an affidavit dated 16 May 2019. Based on the survey and other material annexed to his affidavit, Mr Eggeling concluded that: 1. fill material was located within the 10 metre conservation buffer as shown on the Fill Consent bulk earthworks plan; 2. fill material was located within varying distances of the creeks located in the council reserves adjacent to the Site, the smallest distance being about one metre and the furthest being about six metres; and 3. fill material on the Site exceeded the design level set out in the Fill Consent bulk earthworks plan in places by up to approximately 10 metres.

[26]

Evidence of fill placed in council reserves and inadequate/nil sediment and erosion control

A survey dated 7 February 2018 depicts a sandstone stockpile encroaching over the south western boundary of the Site into the council reserve.
In addition to the survey evidence identifying fill in the council reserves set out at [67] and [69] above, various site inspections have been conducted by council officers over a lengthy period. Mr Ryan's affidavit dated 16 May 2018 describes the site inspection he conducted on 2 February 2018. He observed a large amount of rock, soil and vegetation piled up near the boundary area to the south and west of the Site that appeared to be encroaching into the council reserve. At various points he observed excavated soil and rock extending past survey markers.
Mr Ryan also attended the Site with Ms Collyer environmental health officer for the Council on 23 March 2018 and took photographs depicting excavated fill material in and around the creek bed and creek. These photographs also depict inadequate sedimentation and erosion control fencing; a crushed glass mound partially covered in green mesh; and large rocks and soil encroaching into the council reserve and creek. Mr Ryan stated that compared to his inspection on 2 February 2018 the fill had extended further into the council reserve and covered more vegetation.
On his inspections on 2 February and 23 March 2018, Mr Ryan observed that filling activities were outside the property boundary of the Site. Filling activities appeared to be within the 10 metre conservation buffer that is shown on the Fill Consent bulk earthworks and sediment and erosion control plans. The erosion control measures required by condition 5 of the Fill Consent had not been installed adequately and were mostly non-existent throughout the Site. On 24 April 2018 Mr Ryan observed and photographed soil and sandstone rocks being deposited on site.
Ms Collyer's affidavit dated 16 May 2018 describes the site inspections she conducted on 10 November 2017 with Mr Paul Pemberton development control officer for the Council, 23 March 2018 with Mr Ryan and 3 April 2018 with Ms Hitchenson senior environmental officer for the Council. Her observations can be summarised as follows: 1. sediment originating from the Site within the creek beds (tributaries of Piles Creek) to the south and south-west of the Site; 2. areas of the unnamed creek located to the west of the Site had turbid water; 3. discoloured water was pooling downhill of a stockpile of fill on the west of the Site; 4. rill erosion on slopes of fill on the southern and western boundaries of the Site; 5. on 3 April 2018 there was more sediment in the creek beds than observed during the inspection on 23 March 2018; 6. on 23 March 2018 there appeared to be more fill at the north of the Site than at the time of the inspection on 10 November 2017 and on 3 April 2018, more than on 23 March 2018; 7. on 3 April 2018 sediment appeared to have moved further downslope and closer to the unnamed creek on the western boundary of the Site since 23 March 2018; 8. sediment fences installed on the south and west of the Site were not dug into the ground and star pickets were located more than 2.5 metres apart from each other; 9. on 23 March 2018 sediment fences observed on 10 November 2017 had fallen apart on the south of the Site; 10. no sediment fences on the eastern side of the Site; 11. no sediment basin or catch drains; and 12. a stockpile of recycled glass on the western boundary of the Site.
Photographs reflecting these observations were exhibited to Ms Collyer's affidavit. Based on her observations during the above three inspections, Ms Collyer reasonably suspected that a water pollution incident had occurred as a result of sediment from the Site entering the unnamed creeks on the south and west of the Site. Further the sediment and erosion control measures in place at the Site at the time of the inspections were not in accordance with "Managing Urban Stormwater: Soils and Construction - Volume 1" (Landcom, March 2004) or the "Blue Book". The sediment and erosion control measures in place were not adequate to prevent sediment from the Site entering the unnamed creeks on the south and west of the Site.
In her affidavit dated 16 May 2018, Ms Hitchenson described her observations during her inspection of the Site with Ms Collyer on 3 April 2018. All stockpiles of sediment were uncovered; the majority of sediment stockpiles did not have sediment fences on the downstream sides of the stockpiles; and there were no drains that directed dirty water to be treated prior to discharge to the environment. The glass stockpile was partially covered and did not have sediment fencing down gradient of the stockpile. Water was ponded in and around the stormwater pit indicating it was blocked. Material (sediment and glass) was within the two unnamed creeks located down gradient of stockpiles on the Site. A section of one unnamed creek was completely filled in and covered with sediment. Both unnamed creeks were visibly turbid in sections down gradient of stockpiles located on the Site. Photographs including drone photographs reflecting these observations were exhibited to Ms Hitchenson's affidavit. During their site inspection, Ms Hitchenson and Ms Collyer witnessed a truck depositing material onto the Site by (they were told) Capital K (Aust) Pty Ltd (Capital K). They approached Mr Michael Robinson from Capital K who said he was installing retention walls for Mr Clark. He stated that Capital K was not the occupier of the Site since it was just engaged to install retaining walls.
In Ms Hitchenson's opinion, the activities conducted at the Site have caused water pollution incidents and are likely to cause further water pollution incidents. The water pollution incidents have negatively impacted the two unnamed creeks, causing sediment to be deposited within the creeks and increasing turbidity of the water within the creeks. A portion of one unnamed creek has been completely filled in with sediment. Further the activities conducted at the Site are being undertaken without adequate sediment and erosion controls in accordance with the Blue Book.
Ms Hitchenson's second affidavit dated 15 November 2018 describes her site inspection with Ms Collyer on 23 October 2018. Sediment and erosion from the Site had entered the two unnamed creeks on the council reserves and had buried some of the vegetation surrounding the creeks. Sediment has negatively impacted the water quality of the two unnamed creeks and another unnamed creek located downstream of the confluence of those two creeks. The sediment has resulted in the introduction of suspended solids to the creeks leading to turbid water, algal blooms and altering natural flow paths and restricting natural flows. According to Ms Hitchenson, it is likely that the reduction in water quality has negatively impacted the aquatic flora and fauna within the creeks. A file note including photographs reflecting these observations was annexed to Ms Hitchenson's affidavit. In her opinion the sediment and erosion controls on the Site are inadequate.
In her third affidavit dated 26 November 2018, Ms Hitchenson stated that the stockpiles of material observed on 23 October 2018 were different to that observed on 3 April 2018. The stockpiles were located closer to both unnamed creeks and had buried more trees and vegetation on the council reserves. There was an increased amount of sediment located within both unnamed creeks downslope of the stockpiles. The water quality in both unnamed creeks and the creek downstream of their confluence appeared to have declined due to the water within the creeks being more discoloured and turbid.
Ms Hitchenson's fourth affidavit dated 6 February 2019 describes a site inspection she conducted with Mr Andrew Ratcliff another employee of the Council on 4 February 2019. She concluded that the activities conducted on the Site had resulted in water pollution incidents of the unnamed creeks as a result of rain events of the duration and intensity to cause stormwater runoff from the Site. The rill erosion observed in the sediment stockpiles indicated that sediment was detaching and moving from the stockpiles downslope in multiple locations. The activities conducted on the Site have caused damage to the native vegetation on council reserves as a result of the vegetation being completely and partially buried from the movement of the sediment downslope from the stockpiles during wet weather. The activities conducted on the Site require adequate sediment and erosion controls to prevent further water pollution incidents and additional damage to the native vegetation on council reserves. The majority of the sediment fencing located at the Site was not compliant with Blue Book standards. The stockpiles of material and other fill on the Site were different to that observed on 23 October 2018. The stockpiles were closer to both unnamed creeks and had buried more trees and vegetation on council reserves. There was an increased amount of sediment located within both unnamed creeks downslope of the stockpiles.
The latest inspection of the Site occurred on 2 July 2019 by Ms Hitchenson. In a file note, Ms Hitchenson stated that she did not observe any sediment and erosion controls on the eastern side of the Site and was concerned that during wet weather sediment would be transported downslope into the adjacent stormwater system and the unnamed creeks. Along the southern boundary, she observed that a significant amount of sediment had entered the unnamed creeks. The batters of the stockpiles showed signs of rill erosion indicating the movements of sediment as a result of concentrated water flows. There were live and dead trees and vegetation within the sediment stockpiles. Tree stumps appeared to have been cut within the stockpiles. There were no sediment fences on the eastern boundary of the Site. The sediment fences that were observed were not in accordance with Blue Book standards. For example, the bottom of the geotextile fabric was not dug in or compacted, holes were present under the fencing indicating concentrated wet weather flows passing underneath the sediment fencing, the fabric was not at the specified height of between 500-600 millimetres high and was completely buried at some locations. Compared with Ms Hitchenson's inspection on 4 February 2019, the condition of the vegetation and unnamed creeks had deteriorated. There was more sediment within the creeks and more damage to vegetation. She was concerned that with a further rain event the condition of the unnamed creeks and existing live vegetation would continue to deteriorate. The file note contains various photographs reflecting these observations.

[27]

Council's submissions

The evidence discloses that development was not carried out in accordance with any consent, contrary to s 4.2 (s 76A as it was before March 2018) of the EPA Act in the following ways: 1. the filling of the Site beyond the level approved under the Fill Consent took place even before the issue of the Mod 3 CDC in March 2017. This is shown by the survey dated 24 January 2017 (see above at [66]), noting that the Mod 3 CDC was approved in March 2017; 2. the Site was filled within the conservation buffer required to be maintained by the Fill Consent from at least 10 November 2017. Sediment also entered the two tributaries of Piles Creek (contrary to condition 13 of the Fill Consent) repeatedly, including at least from 10 November 2017. Eleven inspections (including by drone) have been conducted of the Site since 26 September 2017 (date of Mod 4 CDC) which indicate excess fill and fill within the conservation area. Two surveys have been conducted since 26 September 2017. The survey dated 7 February 2018 shows encroachment of fill in the buffer and the survey dated 16 May 2019 shows encroachment of fill and excess levels (including beyond both CDCs); and 3. inspections conducted on 10 November 2017, 2 February, 23 March, 3 April, 23 October 2018, 4 February 2019, 2 July 2019 include observations that sediment and erosion controls are not adequate or conducted in accordance with the Blue Book (as referred to in the Council's "Code of Practice for Erosion and Sedimentation Control" per condition 14 of the Fill Consent) and that sediment is observed in the two tributaries of Piles Creek (contrary to condition 13 of the Fill Consent). Council officers Ms Hitchenson and Ms Collyer have expressed the opinion that sediment and erosion controls are inadequate and that there has been non-compliance with the Blue Book (Affidavit, Ms Hitchenson, 16 May and 15 November 2018 and 6 February 2019; file note, 2 July 2019; Affidavit, Ms Collyer, 16 May 2018).
The Fill Consent has not been complied with. Relevant conditions of the Fill Consent are: 1. condition 1 - development to be in accordance with the Fill Consent bulk earthworks and sediment and erosion control plans which depict fill levels and a 10 metre-wide conservation buffer; 2. condition 13 - no filling or debris shall be placed in any watercourse or drain; and 3. condition 14 - erosion and siltation controls must be implemented in accordance with the Council's Code of Practice for Erosion and Sedimentation Control.
Filling of about two metres in excess of the Fill Consent occurred on the southern area of the Site before January 2017 as can be seen in the January 2017 survey (see at [66] above). When the levels in the January 2017 survey and the levels in the May 2019 survey (see at [67] above) are compared the southern portion of the Site was filled by up to nine metres above the Fill Consent levels after January 2017. The Council submitted that the period of substantial filling was between January 2017 and the May 2019 survey.
The Council relied on the May 2019 survey and Mr Ryan's affidavit dated 16 May 2018 above at [72] to establish that fill extended into the conservation buffer predominantly along the south of the western boundary and the entire southern boundary.
The Council relied on the February 2018 survey (see above at [69]) and the May 2019 survey to establish that fill extended well beyond the boundaries of the Site into the council reserves, particularly along the southern boundary. The survey evidence supports the extensive evidence of the council officers concerning the fill they saw.
Hence, the Court would conclude there was development not in accordance with the Fill Consent, a breach of the EPA Act.
Gindurra is responsible for the development contrary to the Fill Consent. A passive landowner that does not do anything does not "use" land in a relevant sense: see Wilkie v Blacktown City Council (2002) 121 LGERA 444; [2002] NSWCA 284 (Wilkie) at 454-56. A person may carry out development in a relevant sense by participating in, being in control of, or taking or deriving advantage (including financial advantage) from an unlawful use: see Murdoch v Holroyd City Council [1996] NSWCA 376 cited in Wilkie at 456 [44]; Blacktown City Council v Penetrators Pty Ltd (No 3) [2014] NSWLEC 4 at [23]; Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) (2018) 234 LGERA 1; [2018] NSWLEC 153 at [689]-[712]. The acts of a natural person who is a director may be attributed to the company of which the person is a director: Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5) [2013] NSWLEC 68 (Foxman) at [232]-[233]. Mr Clark as the director for Gindurra controlled the third parties who placed the fill in breach of the EPA Act.
The certificates of compliance issued by the Council under the WM Act cannot render lawful Gindurra's filling of land beyond levels authorised by the Fill Consent because such certificates issued under the WM Act cannot be equated with those issued under the EPA Act. This is clear from ss 305-7 of the WM Act.

[29]

Filling on Site greater than Fill consent established

As the Council submitted the certificates issued under the WM Act do not have the effect asserted by Gindurra for the purposes of s 109C (now s 6.4) of the EPA Act as: 1. a certificate of compliance issued under and for the purposes of s 307 of the WM Act is not a "compliance certificate" within the meaning of Pt 4A (as it was in 2017) and now Pt 6 of the EPA Act; 2. even if each such certificate was a compliance certificate for the purposes of the EPA Act, the certificate in question certifies only compliance with the requirements of "Chapter 6 Part 2 Division 5" of the WM Act; 3. each certificate does not, contrary to Gindurra's suggestion, certify that the levels to which the Site may have been filled at each point in time was lawful that is, in compliance with the Fill Consent or the Masterplan CDC (as modified); and 4. a compliance certificate under Pt 4A (now Pt 6) of the EPA Act, if there had been any, could not render lawful development carried out in breach of a development consent or CDC.
Gindurra by its director Mr Clark did not dispute any of the council officers' evidence directly. Cross-examination set out below at [178] did not seek to challenge this evidence. It is straightforward to conclude from the Council's extensive evidence that the 2007 Fill Consent has not been complied with in that fill far in excess of that approval has been deposited on the Site, that sediment and fill has entered the council reserves adjoining the Site and that necessary erosion and sediment controls have not been implemented or were inadequate on many occasions during 2017, 2018 and into 2019 as set out at [66]-[80] above.
I find that the uncontested evidence of the council officers and the surveys relied on by the Council summarised above at [66]-[80] establishes that placement of fill well beyond that permitted by the Fill Consent took place from January 2017 to an unspecified date in 2018/2019 across the bulk of the Site, in the conservation buffer along the whole southern boundary and a substantial portion of the western boundary and into a small portion of the council reserve along the western boundary and into the council reserve along the whole of the southern boundary.
The Court also notes that the aerial image relied on by Gindurra as demonstrating that there was no fill outside the boundaries of the Site (at [92] above) is not dated but appears to be the same image as that referred to by the Council dated 5 December 2015. This image does not support Gindurra's case since the Masterplan, Mod 3 and Mod 4 CDCs were issued after this time.
Two further issues remain before final determination of whether unlawful fill has been deposited for which Gindurra is liable. Firstly, in relation to unlawful fill, the issue arises of whether the Masterplan CDC, as modified by the Mod 3 CDC and the Mod 4 CDC, is in effect and therefore the present fill levels on the Site which are greater than the Fill Consent are lawful. Gindurra also relied on the Mod 2 CDC to support a submission that fill greater than that permitted under the Fill Consent was authorised. I will consider these issues next.
Secondly, in relation to whether Gindurra is responsible for the deposited fill so that it is in breach of the EPA Act, the Council accepted that only a person who carries out development can be in breach of the EPA Act. A passive landowner therefore would not be in breach. The issue of whether Gindurra carried out or caused development in breach of the EPA Act will be considered below when I deal with the issue of occupation and water pollution at [164] and following. The Council's submissions summarised above in [87] will be considered later in the judgment at [195] below.

[31]

Masterplan CDC

The summons states in relation to the Masterplan CDC: Masterplan CDC 1. The Masterplan CDC is invalid because it purports to authorise development that is not complying development or that complies with relevant development standards. Particulars (i) The application for the Masterplan CDC set out concept proposals for development of the Land, including: a. Detailed proposals for the first stage of development (described as Stage 1 or Phase 1); and b. Detailed proposals for separate parts of the site, to be the subject of subsequent applications (described as Stages 2-8 or Phases 2-8). (ii) The application for the Masterplan CDC was: a. in substance a staged development application within the meaning of section 83B of the Environmental Planning and Assessment Act 1979 (EPA Act) [as at December 2015]; and b. an application for which the Second Respondent was not the consent authority. (iii) The Masterplan CDC purported to relate to: a. An industrial building for resource recovery use, described as Stage 1 or Phase 1; and/or b. A masterplan for 89 factory warehouse units, described as Stages 2-8 or Phases 2-8, to be the subject of subsequent applications. pursuant to Part 5A of State Environmental Planning Policy (Exempt & Complying Development Codes) 2008 (Codes SEPP). (iv) Development comprising the construction of an industrial building for resource recovery use is: a. Development for the purposes of a resource recovery facility; and b. not development specified as complying development by clause 5A.2 for Part 5A of the Codes SEPP. (v) To the extent the proposed resource recovery use includes: a. paper or pulp production; or b. concrete recycling; or c. composting; or d. crushing, grinding or separating activities; or e. waste processing (non-thermal treatment), each such activity is a heavy industry that is not development specified as complying development by clause 5A.2 for Part 5A of the Codes SEPP. (vi) To the extent the proposed use includes: a. composting; or b. crushing, grinding or separating activities; or c. paper or pulp waste generation; or d. resource recovery; or e. waste processing (non-thermal treatment), each such activity may not be complying development pursuant to clause 1.18(1)(c1) of the Codes SEPP, by reason of requiring an environment protection licence pursuant to the Protection of the Environment Operations Act 1997 [NOT PRESSED]. (vii) To the extent the resource recovery use includes: a. composting facilities or works; or b. crushing, grinding or separating works; or c. paper pulp or pulp production; or d. waste management facilities or works, each such activity could not be complying development pursuant to clause 1.18(1)(c2) of the Codes SEPP, by reason of being designated development. (viii) Development comprising a masterplan for 89 factory warehouse units, described as Stages 2-8 or Phases 2-8, to be the subject of subsequent applications is not development specified as complying development by clause 5A.2 for Part 5A of the Codes SEPP. (ix) The proposed development did not provide a garbage and waste storage area, contrary to clause 5A.26 of the Codes SEPP. (x) All stormwater drainage collected as a result of the development would not be disposed of in the manner required by clause 5A.28(1) and/or (2) of the Codes SEPP. 2. The Masterplan CDC is invalid because it was not open to the Second Respondent to determine that the development for which the application was made: 2.1 was complying development; and/or 2.2 complied with relevant development standards. Particulars The particulars to paragraph 1 are repeated. 3. The Masterplan CDC is invalid because it purports to be granted in respect of land for which the applicant was not the owner, in circumstances where the consent of the owner to the making of the application was not given. [NOT PRESSED] Particulars (i) Lots 3 & 4 in DP 771309. (ii) SP 76850.

[32]

Evidence

The Council read a number of affidavits addressing failure to comply with the general requirement of the Codes SEPP in Pt 5A Div 4 inter alia. Mr Coon senior development assessment engineer for the Council affirmed an affidavit dated 3 May 2019. He searched council records and could not locate any approval under s 68 of the Local Government Act 1993 as required by cl 5A.28(2)(a) in relation to any stormwater discharge from the Site associated with the Masterplan CDC. Further, no water cycle management plan strategy as required by Ch 6.7 "Water Cycle Management" of the Gosford Development Control Plan 2013 (Gosford DCP) was submitted with the Masterplan CDC. Mr Coon stated that there was no information submitted with the Masterplan CDC that showed a stormwater drainage system as required by cl 5A.28 of the Codes SEPP.
The Mod 4 CDC included a set of plans showing a gravity-fed stormwater system which ultimately discharges into the natural watercourse on the council reserve, a breach of cl 5A.28(1). Mr Coon could not locate any approval under s 68 of the Local Government Act in relation to any stormwater discharge from the Site into the creek on the Council's land as proposed in relation to the Mod 4 CDC. These plans are deficient with respect to Ch 6.7 of the Gosford DCP in that they do not provide a water cycle management plan strategy and the detail necessary to assess the stormwater management system proposed. Although not expressly stated by Mr Coon, the legal consequence of these findings is that cl 5A.28(1) and (2) of the Codes SEPP was not complied with.
In cross-examination Mr Coon was asked to comment on the Fill Consent sediment and erosion control plan. He stated that there was probably a basin of some kind on the Site. Mr Coon was also shown the Mod 3 CDC bulk fill plan and stated that he was unsure whether there was a drainage structure on the Site. Mr Coon agreed that particular markings on these plans might be a topographical representation of a basin.
Mr Eyre principal development planner for the Council affirmed an affidavit dated 6 May 2019. He stated that the activities proposed under the CDCs (composting facilities or works, crushing, grinding or separating works, paper or pulp production and waste management facilities or works) would be classified as "heavy industry" under the Codes SEPP because of the likely significant impacts on adjoining and surrounding land. Those impacts would include significant generation of noise, dust and odour given the following: 1. the processes involved for each of the activities utilise heavy industrial machinery or equipment to separate, break and sort materials; 2. composting and waste processing materials would generate significant odour given the age and treatment involved in processing such materials, for example treatment of compost material with fertiliser or other chemicals to make it more valuable or usable; and 3. composting and waste processing could also be either offensive or hazardous industry given the potential impacts of those activities on adjoining land and people in the surrounding area.
Mr Eyre stated that the CDCs refer to a warehouse plus "resource recovery" building and various activities relating to resource recovery including composting facilities or works, crushing, grinding or separating works, paper or pulp production and waste management facilities or works. "Resource recovery" constitutes "waste management facilities or works" as defined in cl 32 of Sch 3 to the EPA Regulation. Each of the activities referred to in the CDCs are "designated development" under the EPA Act and Sch 3 to the EPA Regulation where those activities take place within the prescribed distance of a "natural waterbody". For composting facilities or works, paper or pulp product industries, and waste management facilities or works, the prescribed distance is 100 metres (EPA Regulation Sch 3 cll 13(b)(i), 26(b)(i) and 32(1)(d)(i)). For crushing, grinding or separating works, the prescribed distance is 40 metres (EPA Regulation Sch 3 cl 16(1)(b)(i)). Based on an aerial image annexed to his affidavit, Mr Eyre stated that the development proposed under the CDCs would be less than 100 metres from Piles Creek located on the adjoining council reserve. Accordingly, the development proposed under the CDCs would be classified as designated development and could not be dealt with as complying development under the Codes SEPP.
Mr Zhang acting team leader of the water assessment team for the Council affirmed an affidavit dated 8 May 2019. The sewer encasement plan and hydraulic services plans dated December 2014 approved in the Mod 4 CDC show that both water supply and sewer is required for the development proposed by the Mod 4 CDC. No certificates as required by ss 306 or 307 of the WM Act have been issued by the Council in relation to the Mod 4 CDC.

[34]

(a) Staged development cannot be approved by a complying development certificate

In an email dated 16 November 2015 to the Certifier, Mr Clark described how development was intended to occur under the Masterplan CDC and attached the plans for the "industrial shed first phase" (see above at [23]). Phase 1 was a temporary industrial shed for recycling yard use until concrete buildings were built. The only "development" proposed was the erection of a building and resource recovery use. This is because a "masterplan" is not development: Brooklyn Resort Pty Ltd v Hornsby Shire Council (1999) 105 LGERA 208; [1999] NSWLEC 214 at [118]. Further, that development was temporary as in due course it would be subject to further approvals (ie consents) and be replaced with warehouse units illustrated in the Masterplan CDC.
At the time of approval of the Masterplan CDC in December 2015, the EPA Act provided for staged development in the form of s 83B. Critically, as the section states, staged development was able to be the subject of a DA. The development approved under the Masterplan CDC was staged development that could be the subject of a DA. It specified a concept (the Masterplan CDC) for development of a site and also detailed proposals (phases 2-8) which were to be the subject of separate applications. At the relevant time the definition of DA under s 4 expressly excluded an application for a CDC under the EPA Act.
It is clear that in the scheme of the EPA Act, staged development cannot be the subject of a CDC. Gindurra may have appreciated this difficulty as Mr Clark told the Certifier in an email dated 16 November 2015 that he would alter the description of the "stage" to "phase" on the plans for the Masterplan CDC (see above at [23]). Such a superficial change did not change the nature of what was being proposed, staged development.
No other provision of the EPA Act or the Codes SEPP permits or specifies as complying development a Masterplan CDC, as found in relation to the original staged development provision in s 91AB: Brooklyn Resort Pty Ltd v Hornsby Shire Council at [115]-[120].
Section 83B differs from the original s 91AB in that it contemplated "concept proposals". A Masterplan CDC might answer such a description. Assuming this to be the case in Gindurra's favour, it nevertheless is the case that such development could not be approved in a CDC.

[37]

(d) Development standards for waste and stormwater drainage not met

Complying development must meet the specified development standards in the Codes SEPP inter alia per cl 1.17(1) of the Codes SEPP. The development was not by definition complying development because of the following matters. Clause 5A.26 of the Codes SEPP imposed a development standard requiring the provision of a garbage and waste storage area. None of the approved plans or supporting documents before the Certifier identified any such area.
It appears Mr Clark sought to demonstrate to the Certifier how compliance with the provisions of Pt 5A could be achieved in an email dated 14 August 2014 produced by the Certifier pursuant to a notice to produce (see above at [22]). However cl 5A.26 was not highlighted as "legislation of interest to property" in that email and appears to have been overlooked. The Court should find that no provision was made for garbage or waste storage with the consequence that the development could not have complied with the development standard (or that the Certifier could have been satisfied about this).
Clause 5A.28 required that stormwater drainage be conveyed in particular ways (subcl (1)) and have approvals or comply with the Council's requirements (subcl (2)). None of the approved plans or supporting documents before the Certifier identified how stormwater drainage was to be managed or that it would comply with the Council's requirements. This was also the conclusion reached by Mr Coon (Affidavit, Mr Coon, 3 May 2019 at [101]-[102] above).
It is telling that the cross-examination of Mr Coon about drainage was by reference to plans from the Fill Consent (modified in April 2012) and the Mod 3 CDC (approved in March 2017) but not by reference to any document from the Masterplan CDC approved in December 2015. It was suggested to Mr Coon that markings on these plans might be a topographical representation of a basin (a proposition with which Mr Coon agreed), but this does not establish what arrangements there were for stormwater drainage collection and conveyance in the context of the Masterplan CDC.
Notably neither the "master plan" nor the "phase 1 development plan" approved by the Masterplan CDC show any basin or other drainage details. No other documents were produced by the Certifier to suggest there was any information on which he could be satisfied as to this matter.
The proposed development did not comply with cl 5A.28 and it was not open to the Certifier to so conclude (assuming he in fact turned his mind to this).
Gindurra did not make any submissions in response to the Council's arguments.

[38]

Masterplan CDC invalid

In 2015 complying development was provided for in Pt 4 Div 3 of the EPA Act as then in force. A CDC could be issued by a certifier under s 85A.
As at December 2015, the EPA Act defined in s 4 complying development as "development for which provision is made as referred to in section 76A (5)". Section 76A(5) stated: An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.
The Codes SEPP was the relevant planning instrument specifying what could be complying development in Pt 1 Div 2 "Exempt and complying development", cl 1.17. Clause 1.18 specified general requirements for complying development. Development standards for commercial and industrial buildings were specified in Pt 5A "Commercial and Industrial (New Buildings and Additions Code)", relevantly in this case cl 5A.2 dealing with alterations or additions to an existing building or construction of new building. Development standards for this code relating to industrial buildings in Div 2 include numerous development standards as identified in cl 5A.4 relating to the construction of a building for the purpose of industry inter alia. Under cl 5A.5 a standard specified for any development in the Division must not contravene any condition of an existing development consent that applies to the land in relation to landscaping inter alia. Division 4 "Development standards for both industrial and commercial development" includes cll 5A.26 "Garbage and waste storage", 5A.27 "Earthworks" and 5A.28 "Drainage".
The documents supporting the Masterplan CDC application given to the Certifier by Mr Clark are summarised at [22] above. The email dated 14 August 2014 identifies the intended use of the Site for recovery, reuse and supply of clean energy from various types of general solid waste material streams specified. The Masterplan CDC, set out at [24] above with numerous plans identified in [26] above, shows a staged development for building industrial units across seven lots. The Masterplan CDC approves phase (stage) 1 for an industrial building resource recovery use. There are no bulk fill plans approved in the Masterplan CDC.
For the reasons given by the Council, the Certifier could not reasonably have been satisfied as identified in Hornsby Shire Council v Trives (No 3), summarised at [63] above that the Masterplan CDC could be validly issued. Firstly, CDCs can only be issued if, as the EPA Act provides, an environmental planning instrument so provides - in this case the Codes SEPP. Mr Clark has not referred to any legislative provision which permits approval of what is the subject of the Masterplan CDC. A very clear-cut matter is that a CDC cannot be issued for staged development. There is simply no provision for this in the EPA Act. Using the term "phases" rather than "stages" in the Masterplan CDC does not alter the nature of what was approved. As the Council submitted Pearlman CJ held in Brooklyn Resort Pty Ltd v Hornsby Shire Council at [117]-[118] that a masterplan does not constitute development in the context of the former s 91AB of the EPA Act.
Secondly, from 1 July 1998 and continuing to the present day, a DA has been defined as follows (s 4(1) as at 21 December 2015, now s 1.4(1) of the EPA Act): development application means an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate
Section 83B of the EPA Act was in force in December 2015 and provided that a staged DA could be made. That was the only means by which approval of a staged development could occur under the EPA Act in December 2015.
Thirdly, as the Council submitted, resource recovery is not specified in the Codes SEPP or elsewhere as a category of complying development. As already stated only development that is specified as complying development can be so treated. The information supplied by Mr Clark to the Certifier in 2015, set out at [22] above, and the description of the intended use of the whole site in the Masterplan CDC and of the phase 1 building expressly states resource recovery use. "Resource recovery facility" is defined in the Standard Instrument as a building used for separation and sorting, processing or treating waste, temporary storage, transfer or sale of recovered resources inter alia. Such use of a building is to be contrasted with an "industrial activity", also defined in the Standard Instrument. Importantly "waste or resource management facility" as defined in the Standard Instrument includes a "resource recovery facility". As the Council submitted the building in phase 1 could not qualify as complying development under cl 5A.2 of the Codes SEPP given its intended use. Reference in the description of the building to "industrial building for resource recovery use" confirms the intended use.
Fourthly, based on Mr Eyre's unchallenged evidence summarised above at [104], use of the building was for heavy industry due to the potential for amenity and environmental impacts from the activities authorised to be carried out under the Masterplan CDC and therefore not permitted by cl 5A.2(1)(a) of the Codes SEPP.
Fifthly, the unchallenged evidence of Mr Eyre summarised above at [105] that the CDCs permit activities relating to resource recovery (composting, crushing, grinding or separating, and paper or pulp production inter alia) constituting designated development under the EPA Act and Sch 3 to the EPA Regulation demonstrates that the Masterplan CDC (and Mod 3 and Mod 4 CDCs) purported to approve designated development. Designated development cannot be complying development.
Sixthly, the requirements of cl 5A.26 of the Codes SEPP concerning garbage and waste storage were not addressed in the Masterplan CDC as required by the Codes SEPP for the reasons identified by the Council, namely there was no mention of these in the approved plans. In relation to the requirements of cl 5A.28 of the Codes SEPP concerning stormwater, the evidence of Mr Coon summarised above at [101]-[102] demonstrates that the Codes SEPP requirements were not met.
Gindurra submitted that the Codes SEPP did not apply to the building the subject of phase 1 as it was temporary. None of the provisions of the Codes SEPP relied on by the Council are relevant to the actual building. That submission does not therefore identify a relevant matter.
The numerous reasons above establish why the Masterplan CDC issued by the Certifier was invalid in that there was no reasonable basis for the Certifier to be satisfied of any of these matters justifying a conclusion that the Masterplan CDC could be validly issued per Hornsby Shire Council v Trives (No 3) at [17].

[40]

Council's submissions

The Mod 3 CDC and the Mod 4 CDC were invalid and approved in excess of jurisdiction because they were each not a modification of development approved under the Masterplan CDC. As noted above, the Masterplan CDC purported to approve the erection of a building and a resource recovery use. It did not purport to approve any filling. Each of the Mod 3 CDC and the Mod 4 CDC did however purport to approve bulk filling of the Site by up to 1.95 metres (see plans described above at [30] and [32] and correspondence between the Certifier and Mr Clark above at [22]). As the development approved by the Masterplan CDC did not involve any filling or indeed anything except a temporary resource recovery use, the proposal to introduce fill was not, in each case, a modification in any relevant sense. It was in reality a "radical transformation" of the development: Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42 cited in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [173].
The Mod 3 CDC and the Mod 4 CDC are also invalid because of another common issue, the absence of any structural certification of fill. This requirement was a development standard imposed by cl 5A.27(2) (as at 20 March 2017) and cl 5A.27(3) (as at 26 September 2017) of the Codes SEPP where fill would be more than one metre above existing ground level. Each of the Mod 3 CDC and the Mod 4 CDC proposed filling to increase on the Site by up to 1.95 metres. Despite this, there was no structural certification before the Certifier, none identified in each certificate and none included in the material relied upon by the Certifier provided to Council. With no information before him, it was not reasonably open to the Certifier to determine that the development complied with cl 5A.27.
The Mod 3 CDC and the Mod 4 CDC impermissibly showed fill placement in the 10 metre conservation buffer identified in the Fill Consent.
Finally, if the Masterplan CDC is invalid neither the Mod 3 CDC or the Mod 4 CDC could be valid.

[42]

Mod 3 CDC and Mod 4 CDC invalid

The most obvious basis for invalidity, as the Council submitted, is that I have found the Masterplan CDC invalid. Therefore any modification of it cannot be valid, a finding which if correct applies to the Mod 3 CDC and the Mod 4 CDC. It must also apply to the Mod 2 CDC, relied on by Gindurra in relation to fill levels.
Although it does not change my conclusion in the immediately preceding paragraph, I should note that the power to modify a CDC in s 87 of the EPA Act (as in force at the time the Mod 3 CDC and the Mod 4 CDC were issued in 2017) was not the same as those for a DA. At the time, s 96(2)(a) of the EPA Act regulated the modification of development consents that did not involve a minor error or minimal environmental impact. Section 96(2)(a) stated that a consent authority can only modify a development consent if inter alia it was satisfied that the development to which the consent as modified related was substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified. Section 87 which regulated the modification of CDCs was in different terms to s 96(2)(a). The statutory limit on the modification of a CDC in s 87(2) was that any modification must comply with Pt 4 Div 3 "Special procedure for complying development" of the EPA Act, in other words that the modification must be complying development. There was no requirement in s 87 that the development to which the CDC as modified related must be substantially the same development as the development for which the CDC was originally granted.
The principles governing the modification of DAs were summarised in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) at [173] as the Council relied on but addressed the markedly different statutory regime for DAs. No cases in this Court which have considered the provisions in the EPA Act dealing with the modification of a CDC have been located.
There is no definition of "modify" in the EPA Act or any relevant instruments made under it. Limitations on the use of dictionary definitions are well recognised as not providing a substitute for construing words in their context: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [28] (Mason P, Stein and Giles JJA agreeing) cited in Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2018] NSWLEC 99 at [292]. Aware of that caution, dictionary definitions can nevertheless assist in considering the ordinary meaning of a word in the absence of any other definitions. The Macquarie Dictionary (online) defines the verb "modify" as "to change somewhat the form or qualities of; alter somewhat" and "to change; to become changed". The Oxford English Dictionary (online) defines "modify" as "[t]o make partial or minor changes to; to alter (an object) in respect of some of its qualities, now typically so as to improve it; to cause to vary without radical transformation". A provision allowing modification implies that any modification does not extend to allow a new development and that "modify" means "to alter without radical transformation" and in that regard Sydney City Council v Ilenace Pty Ltd cited in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) at [173] can apply, see also Billinudgel Property Pty Ltd v Minister for Planning [2016] NSWLEC 139 at [58] to similar effect in the context of (now repealed) s 75W of the EPA Act.
The question whether the introduction of fill as permitted in the Mod 3 CDC and the Mod 4 CDC is a radical transformation of the Masterplan CDC or a new development is not straightforward. The Masterplan CDC did not contain any provision for fill such as bulk fill plans. It included a master plan showing AHD levels of at least 185 across the Site, generally higher than the fill levels under the Fill Consent (see above at [20] and [26]). As already noted at [33] above, the fill level approved of +1.95 metres in each modification appears to comply with cl 5A.27(3)(a) (as at 20 March 2017) and cl 5A.27(2)(a) (as at 26 September 2017) of the Codes SEPP. The effect of the Mod 3 CDC and the Mod 4 CDC is however, to enable "fill on fill" resulting overall in an increase of not 1.95 metres but 3.90 metres, which is arguably a radical transformation across a large site. Further in the absence of the Masterplan CDC purporting to approve the placement of fill, a variation allowing fill is arguably impermissible.
Regardless of whether the proposed changes are valid modifications, any purported modification of a CDC must be considered under the Codes SEPP as that must be complied with by virtue of s 87(2). Under Pt 5A Div 2 cl 5A.5 of the Codes SEPP any conditions of an existing development consent relating to landscaping inter alia must not be contravened. Both the Mod 3 CDC and the Mod 4 CDC bulk fill plans show (impermissible) fill in the 10 metre conservation buffer specified in the Fill Consent bulk earthworks and sediment and erosion control plans.
Requirements of the Codes SEPP in cl 5A.27(2) (as at 20 March 2017) and cl 5A.27(3) (as at 26 September 2017) were not complied with given the absence of structural support plans. The geotechnical report required by the 2007 Fill Consent was not shown by Gindurra to address the structural support for the filling permitted under the Mod 3 CDC and the Mod 4 CDC which was well above and beyond what the Fill Consent permitted.
Applying Hornsby Shire Council v Trives (No 3), it was not reasonable for the Certifier to consider the Mod 3 CDC and the Mod 4 CDC were complying development for the reasons above.

[43]

Mod 4 CDC

The amended summons states as follows in relation to the challenge to the validity of the Mod 4 CDC: 8A The MOD4 CDC is invalid because the Masterplan CDC is invalid. 8. The MOD4 CDC is invalid because it proposed, in part, the bulk filling of the Land, which was not a modification of the development the subject of the Masterplan CDC. Particulars Pavement design plan (dated 17 July 2017, sheet 1/4 Rev A). 9. The MOD4 CDC is invalid because it purports to authorise development that is not complying development or that complies with relevant development standards. Particulars (i) The proposed development includes the use of all of the Land for resource recovery stockpiles, which is not development specified by clause 5A.2 for the purposes of Part 5A of the Codes SEPP. (ii) To the extent the proposed development includes: a. cement or lime works; b. ceramic works; c. chemical production; d. composting; e. concrete works; f. contaminated soil treatment; g. crushing, grinding or separating activities; h. electricity generation; i. extractive industries; j. paper or pulp production; k. resource recovery; I. road construction; m. waste disposal (application to land); n. waste disposal (thermal treatment); o. waste processing (non-thermal treatment); p. waste storage, each such activity may not be complying development pursuant to clause 1.18(1)(c1) or (c2) of the Codes SEPP, by reason of being development for which an environment protection licence was required and/or designated development. (iii) All stormwater drainage collected as a result of the development would not be disposed of in the manner required by clause 5A.28(1) and/or (2) of the Codes SEPP (as depicted in Stormwater Management plans prepared by Sparks+Partners numbered CC01-CC14 Rev 2), contrary to clause 1.18(1)(d)(ii) of the Codes SEPP. (iv) The development the subject of MOD4 CDC includes development that is to be provided with water supply and/or sewerage services (as depicted in the Sewer plan prepared by Sustainable Builders dated 14 March 2017, and as depicted in Hydraulic Services plans prepared by Sparks+Partners numbered H01-H03 Rev 2), and the applicant had not obtained prior notice or other form of written advice from Council in its capacity as water supply authority, specifying works or other requirements to be completed as part of the development, contrary to clause 5A.2(2) of the Codes SEPP. (v) The proposed fill described in the Pavement Design plan (dated 17 July 2017 sheet 1/4 Rev A) involved fill being placed on the Land that would result in the existing ground level being raised by more than 1 metre, but that fill did not have structural support certified by a professional engineer as structurally sound, including in relation to (but not limited to) the ability to withstand the forces of lateral soil load, contrary to clause 5A.27 of the Codes SEPP. 10. The MOD4 CDC is invalid because it was not open to the Second Respondent to determine that the development for which the application was made: a. was complying development; and/or b. complied with relevant development standards. Particulars The particulars to paragraph 9 are repeated.

[48]

Section 120 of the Protection of the Environment Operations Act 1997 (water pollution)

The POEO Act provides: Part 5.3 Water pollution 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. … (2) In this section: pollute waters includes cause or permit any waters to be polluted. … Part 8.4 Civil proceedings to remedy or restrain breaches of Act or harm to environment or enforce undertakings 252 Remedy or restraint of breaches of this Act or regulations (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations. (2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations. (3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach. … (6) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach. … Part 8.5 Evidentiary provisions … 257 Occupier of premises responsible for pollution from premises (1) In any proceedings under this Act, the occupier of premises at or from which any pollution occurs is taken to have caused the pollution, unless it is established that: (a) the pollution was caused by another person, and (b) the other person was not associated with the occupier at the time the pollution occurred, and (c) the occupier took all reasonable steps to prevent the pollution. A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier. (2) Subsection (1) does not prevent proceedings being taken under this Act against the person who actually caused the pollution. … Dictionary In this Act: occupier of premises means the person who has the management or control of the premises. … water pollution or pollution of waters means: (a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or … and, without affecting the generality of the foregoing, includes: (d) placing any matter (whether solid, liquid or gaseous) in a position where: (i) it falls, descends, is washed, is blown or percolates, or (ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or (e) placing any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.
Prayer 4 of the summons seeks a declaration that water pollution of the creeks on the council reserves adjoining the Site has occurred in breach of s 120 of the POEO Act.
The evidence relied on by the Council of sediment and fill in or close to the creeks is contained in the affidavits of the council officers Mr Ryan, Ms Collyer and Ms Hitchenson referring to numerous site visits to the Site between 2017 and 2019 at [70]-[80] above.

[49]

Council's submissions and evidence

Gindurra caused or permitted water pollution of the tributaries of Piles Creek contrary to s 120 of the POEO Act.
The evidence shows that Gindurra did not have a passive role analogous to Wilkie. Rather, it shows that Mr Clark had an active role in managing activities on the Site as follows: 1. Mr Clark was the applicant for the last relevant modification of the Fill Consent, approved on 26 April 2012. The application was accompanied by the owners' consent of Gindurra, of which Mr Clark is the sole director (Ex A, vol 1C, tab 8); 2. the Site was being filled by August 2013 (not an issue in these proceedings). This filling caused the Environment Protection Authority to issue a series of clean-up notices to both Mr Clark and Timecon because of asbestos identified in the fill brought to the Site (Ex A, vol 2, tab 14). The recitals to the notice dated 7 November 2014 (marked "Attention: Mr Richard Clark") reference Timecon responding to the notices, organising inspections, analysis and attempts to clean up the Site. In the circumstances, it can be readily inferred that the filling of the Site and its clean-up had been carried out with the knowledge and agreement of Gindurra; 3. in July 2017, Mr Clark offered the Site for use as a tip site to the joint venture consortium, Lendlease Engineering Pty Limited and Bouygues Construction Australia Pty Limited (LLBJV), constructing the NorthConnex tunnel (statutory declaration of Mr Paul Postma former project manager of LLBJV dated 10 December 2018, Ex A, vol 2, tab 28, fol 558); 4. Mr Clark arranged for the use of the Site as a tip site to receive NorthConnex spoil, such spoil being transported by Laison Earthmoving for which Gindurra would receive $1 per tonne plus GST (Ex 1, fol RC-2-ML-6). This arrangement spanned at least from September 2017 to February or March 2018; 5. Mr Clark was directly involved in how the Site was used between 15 September and 30 November 2017 in terms of specifying locations to Laison Earthmoving for spoil deposit; tracking daily tonnages of spoil received on the Site; complaining about damage to equipment and site fencing; requiring certification of the virgin nature of the spoil; negotiating and re-negotiating commercial terms with Laison Earthmoving with the threat of a lock-out; reviewing and querying daily truck run sheets; and instructing Laison Earthmoving to remove fill spilling into the council reserves and the creeks after being contacted by an officer of the NSW Department of Industry Crown Lands and Water Division (Ex 1, fol RC-2-ML-5 - 35). Such activities demonstrate direct and continuing involvement and control of how the Site was being used; 6. Gindurra invoiced Laison Earthmoving and LPH and was paid for the receipt of spoil at the Site, with invoices exceeding $200,000 (Ex A, vol 2, tab 32); 7. coincident with the end of the Laison Earthmoving agreement in about March 2018 (Ex 1, fol RC-2-ML-158), Mr Clark signed an agreement on behalf of Timecon with Capital K on 15 February 2018 for up to 310,000 tonnes of site spoil to be received on the Site (Ex A, vol 2, tab 24); 8. the arrangement with Capital K and the certification is one that could only have been made with the knowledge and express permission of the owner of the Site, Gindurra. Further, Gindurra directly benefited from the arrangement in obtaining apparently clean fill, without payment. The transport of fill to the Site by Capital K was observed by Ms Hitchenson and Ms Collyer on 3 April 2018 (see Affidavit, Ms Hitchenson, 16 May 2018 at [75] above); 9. several notices under s 143 of the POEO Act were either given by Mr Clark or directed by him to be given (Ex A, vol 2). These notices certify (to the recipient) that particular land may be lawfully used as a waste facility. These demonstrate that Gindurra sought to offer the Site for use as a tip. The notices were: 1. Two notices on 23 March 2017 given by Gindurra, the first certifying that the Site could lawfully be used as a waste facility for 50,000 tonnes and the second for 20,000 tonnes of virgin excavated natural material (VENM); 2. 15 December 2017 notice given by Gindurra for 200,000 tonnes of VENM; 3. 31 January 2018 notice given by Mr Thomas Cooper of Laison Earthmoving as instructed by Mr Clark (230,000 tonnes of VENM); and 4. 26 April 2018 notice given by Somersby Landscape Supplies Pty Ltd for 960,000 tonnes per annum of VENM and sandstone. Mr Clark is the sole director of Somersby Landscape Supplies Pty Ltd. This company was registered expressly for the purpose of enabling the filling of the Site, on Mr Clark's own admission (email from Mr Clark to the Certifier dated 18 October 2017); 1. LLBJV's involvement was the placement of NorthConnex tunnel spoil in accordance with s 143 notices that were given by either the owner or the occupier of the Site. The NorthConnex tunnel spoil was transported from the NorthConnex project sites to the Site via subcontractor companies pursuant to subcontract agreements. A "tip fee" was charged by the occupier of the Site which at the time was Laison Earthmoving. LLBJV did not negotiate the tip fees with the owner of the Site (statutory declaration of Mr Vincent Newton construction director of LLBJV dated 10 December 2018, Ex A, vol 2, tab 28); and 2. in each of the applications for the Masterplan, Mod 3 and Mod 4 CDCs, Gindurra through Mr Clark took a close and active role in attempting to justify to the Certifier how the applications were said to be compliant with and able to be approved under Pt 5A of the Codes SEPP. Detailed emails were sent to the Certifier on each occasion (see above at [22] and [23]).
The Court should at least find that Gindurra intentionally allowed, that is permitted, the activity giving rise to the water pollution (applying the meaning of "permit" within the POEO Act as summarised in Foxman at [240]). Further the degree of control is such that a finding of causation should also be made. The involvement of a third party such as Laison Earthmoving does not break the chain of causation, particularly when Gindurra was directly deriving profit from the filling activity. The Court has ample evidence including Gindurra's own evidence to conclude that Gindurra was carrying out development in the relevant sense so that the breaches of the EPA Act (also the POEO Act) identified earlier are by Gindurra.
Gindurra's assertion that it was not the "occupier" of the Site does not detract from this conclusion. Gindurra misconstrued the operation of s 257 of the POEO Act. It is a rebuttable deeming provision to attribute responsibility for pollution for and only for the purposes of the POEO Act. It has no function or relevance to the issue of who carries out development for the purposes of the EPA Act.
Moreover there is no evidence that the entities stated by Gindurra to have been occupiers of the premises had leases or licences to occupy the Site. The contract between Laison Earthmoving and Capital K is insufficient to demonstrate that they occupied the premises. Even if these entities occupied the premises in the physical sense, the elements of control and knowledge said to demonstrate occupation by the authorities referred to earlier are absent.

[50]

Gindurra's submissions and evidence

Gindurra relied on the following evidence to support its submission that it was not the occupier of the Site for the purposes of s 257 of the POEO Act: 1. Mr Postma stated in his statutory declaration dated 10 December 2018 that in March 2017 he arranged for trucks to come to the Site for LLBJV occupation and that "[t]here was no direct arrangement in place between the LLBJV and Richard Clark or any of the companies that Richard Clark was a director of" (Ex 1, RC-2-LLBJV-1); 2. LLBJV entered into a framework deed for the hire of plant and equipment for the NorthConnex project from Laison Earthmoving on 8 September 2017 (Ex 1, RC-2-ML-67-125); 3. a Laison Earthmoving docket dated 9 September 2017 records the delivery of fill to the Site (Ex 1, RC-2-LLBJV-192). This is one example of the many truck run sheets provided by Gindurra that recorded the depositing of fill at the Site. None of these sheets refer to Gindurra since Gindurra did not use any of its own trucks; 4. in an email to Timecon dated 15 December 2017 LLBJV stated that spoil was sent to the Site "directly by us" (Ex 1, RC-2-40GRS-3); 5. Orders 1 and 15 issued by the Council to Mr Clark pursuant to former s 121B of the EPA Act dated 23 February 2018 defined Laison Earthmoving as the occupier of the Site (annexure A to Affidavit Mr Clark dated 2 August 2019); 6. an email from Laison Earthmoving to Mr Clark as Timecon dated 12 February 2018 regarding a discrepancy in relation to total tonnage invoiced (Laison Earthmoving could not account for some 41,415 tonnes that had been invoiced) indicates that LLBJV occupied the Site before Laison Earthmoving (Ex 1, RC-2-ML-153); 7. Timecon and Capital K entered into a supply contract on 15 February 2018 for fill for Wyong industrial roadworks and landscaping works. Under the contract Capital K would deliver spoil to 40 Gindurra Road (Ex 1, RC-2-40GRS-79); and 8. Laison Earthmoving entered into a framework deed for spoil disposal for the NorthConnex project with LLBJV on 23 May 2018 (Ex 1, RC-2-LLBJV-23).
Further, various emails from Mr Clark to Laison Earthmoving stated (Ex 1, RC-2-ML-37-168): 1. "[h]ere is some suitable evidence that Laison Plant Hire should be considering as occupant of the Site at 40 Gindurra Road Somersby" (5 December 2017); 2. "[h]ere is the blank 143 certificate … for 40 Gindurra Road Somersby, as LPH is the occupier of the site" (14 December 2017); 3. "you and LPH are in control of the site at 40 Gindurra Road Somersby through use and occupation" (15 December 2017); 4. "the occupier manager of the site [is] Tom from Laison Earthmoving … Tom is occupying the site …" (1 February 2018); 5. "As Laison has been occupying the site at Gindurra Road Somersby, here are the notices from Council Order 1 and 15 and Prevent Notice and Two Directions …" (27 February 2018); 6. "as Laison has been occupying it [the site] …" (4 March 2018); 7. "I am having to sort out which contractor to appoint and comply with Council and DPI requirements as a result of Laison non-compliance during occupation on site" (16 March 2018); and 8. "creating issues for Laison Earthmoving as the occupier of 40 Gindurra Road Somersby" (24 August 2018).
The following emails demonstrate that no formal agreement had been concluded between Gindurra or Timecon with LLBJV for the delivery of fill onto the Site (Ex 1, RC-2-ML-27-168): 1. "If you want an exclusive [sic] to supply and install and pay me $1 per tonne plus GST … come and find me, if you want to do a deal, by putting pen to paper" (Mr Clark to Laison Earthmoving, 19 October 2017); 2. "LPH is committed to this site and through further discussion expect to finalise a mutually beneficial agreement" (Ms Joanne O'Reilly of Laison Earthmoving to Mr Clark, 17 November 2017); 3. "I have no written commitment from Laison on future tonnes" (Mr Clark to Ms O'Reilly, 25 November 2017); and 4. "The simple answer is to have LPH sign and send the terms by email to me" (Mr Clark to Ms O'Reilly, 29 November 2017).
The Court further notes that Ms Collyer stated in her affidavit dated 16 May 2018 at par 18 that during her site inspection on 10 November 2017 Mr Cooper of Laison Earthmoving confirmed that Laison Earthmoving was the occupier of the Site and Mr Clark was the owner of the Site.
Gindurra was not the occupier of the Site for the purposes of s 257 of the POEO Act when it was filled with spoil. Between March 2017 and March 2018 the occupiers of the Site were Laison Earthmoving and Capital K, the entities contracted to deliver fill to the Site. Gindurra has no connection with these entities. Gindurra did not carry out development or any physical activity or controlled or managed the Site, delivery trucks, earthmoving equipment and labourers. The trucks were operated by LLBJV, Laison Earthmoving and Capital K and Gindurra does not have any of its own equipment. Gindurra was not responsible for scheduling the trucks, maintaining equipment, putting night lights and temporary fences on the Site, and checking development consents in relation to the Site. Under s 257 of the POEO Act the occupier of premises from which pollution occurs is taken to have caused the pollution. Prayer 4 of the amended summons that Gindurra polluted waters in breach of s 120 of the POEO Act is baseless.
This evidence demonstrates that LLBJV occupied the Site prior to any other contractor. For example, the discrepancy in total tonnage of fill invoiced demonstrates that LLBJV was on the Site before Laison Earthmoving. Alternatively, Laison Earthmoving occupied the Site.
Gindurra briefly cross-examined council officers Mr Eggeling, Ms Hitchenson, Ms Collyer, Mr Ryan, Mr Eyre and Mr Coon about whether they had ever met Mr Clark while inspecting the Site, who they had met on the Site (for example whether they had met anyone from Laison Earthmoving including Mr Cooper), and whether they saw any trucks depositing material on the Site or machinery generally operating. No witness had previously met Mr Clark on the Site except for Ms Hitchenson who met Mr Clark while conducting a site inspection on 2 July 2019. If they had met a person other than Mr Clark while on site, no witness could recall what company they worked for. No witness observed any trucks or machinery operating on site. Mr Ryan stated that he got permission from Mr Cooper from Laison Earthmoving to inspect the Site.
Gindurra also submitted that prayer 4 of the amended summons is duplicitous or uncertain. Firstly, the particulars (meaning the declaration sought in the summons) are duplicitous as they state two ways in which s 120 of the POEO Act was breached, namely that Gindurra was the occupier of premises where the pollution occurred and therefore caused the pollution and/or that Gindurra placed a pollutant in water in the creeks on the council reserves adjoining the Site. Secondly, prayer 4 is deficient because it does not specifically identify the pollutant said to underpin the alleged breach of s 120 of the POEO Act. The Site is close to other industrial operations which use various substances. Since the summons as particularised does not define "pollutant", Gindurra could be held legally responsible for polluting water with a pollutant it had no control over. Thirdly, it is unclear whether prayer 4 relates to actions that occurred at the southern end of the Site, the western area, the road where sandstone is sometimes spilled and cleaned up, internal drainage systems, or sediment control fencing locations. Fourthly, prayer 4 fails to specify a time period over which the alleged pollution occurred. Gindurra has insufficient information to understand and answer the case put against it.

[51]

Gindurra caused or permitted water pollution

The Council in seeking a declaration in prayer 4 that water pollution occurred is seeking to enforce by civil action activity which could also be the subject of a criminal charge as specified in s 120 of the POEO Act. These proceedings are enabled by s 252 of the POEO Act. "Pollute waters" is defined in s 120(2) as including to "cause or permit any waters to be polluted". Water pollution is broadly defined in the Dictionary to the POEO Act, extracted above at [164]. Fill and sediment entering a watercourse, here the creeks on the adjoining council land, and placing material in such a way that it may enter a watercourse is water pollution.
Gindurra made a number of complaints about prayer 4, as summarised above in [179], concerning lack of particularisation such as identification of the nature of alleged pollution and timeframe inter alia. Various authorities concerned with the criminal law principle against duplicity in criminal offences were referred to by Gindurra because the Council submitted that Gindurra permitted or caused the activity which resulted in water pollution. As I am dealing with civil proceedings the matters of duplicity in a criminal charge need not be considered as Gindurra is not charged with any offence. Causing or permitting pollution of water constitutes the pollution of water for the purposes of s 120.
As to the absence of particulars and whether Gindurra knew the case it had to meet, it is correct that the summons does not provide much detail concerning prayer 4. The evidence served on Mr Clark about water pollution arising from activities on the Site causing fill and sediment to enter the creeks in the council reserves is extensive and explicitly particularised as water pollution as detailed in the affidavits of Mr Ryan, Ms Collyer and Ms Hitchenson ([70]-[80] above). These proceedings were commenced on 18 May 2018. The Council's evidence was required to be served by 17 May 2019. This affidavit material has been in Mr Clark's possession for many months and clearly and explicitly outlines the evidence relied on to establish water pollution in the council reserves resulting from activity on the Site. This includes observations of fill encroaching into the council reserves, sediment and glass material in the creek and turbid creek water between November 2017 and July 2019 (Affidavits, Mr Ryan, 16 May 2018; Ms Collyer, 16 May 2018; Ms Hitchenson, 16 May 2018, 15 and 26 November 2018, 6 February 2019; and Ms Hitchenson's file note, 2 July 2019) above at [70]-[80]. Ms Collyer "reasonably suspected" that water pollution had occurred as a result of sediment from the Site and Ms Hitchenson concluded the activities on the Site "caused" and "resulted in" water pollution (see above at [74], [76] and [79]).
These are civil proceedings albeit in relation to a provision that can also give rise to a criminal offence. If any matters were unclear Mr Clark had ample opportunity to seek clarification of these. I do not consider Gindurra has suffered any lack of procedural fairness about the case it must meet on water pollution in these circumstances. Indeed it has not sought to contest any of the affidavit material relied on by the Council to establish that water pollution has occurred as a result of activities on the Site.
The Council alleged that Gindurra exercised control over the filling activities on the Site and therefore caused or permitted the water pollution. It did not frame its case as whether Gindurra occupied the Site. I note that the definition of "occupier" under the POEO Act is the person who has management or control of the premises, effectively the Council's case. The phrase "management or control" within the definition of "occupier" is not defined by the POEO Act. The Macquarie Dictionary (online) defines "management" as "the act or manner of managing; handling, direction, or control" and "control" as "to exercise restraint or direction over; dominate; command". There can be multiple occupiers of premises: Maund v Shoalhaven City Council [2019] NSWLEC 89 at [23]. Each case must be considered on its own facts.
Mr Clark assumed that s 257 of the POEO Act was relevant to the Council's case. To the extent s 257 can be relevant where no charge is before the Court, it provides a rebuttable presumption concerning whether someone is an occupier as defined by the POEO Act. As is clear from the terms of the definition, the relevant test of occupation is not physical occupation of land but its management and control.
The Council did not dispute that Gindurra did not carry out the actual filling work. That Gindurra owns no machinery to undertake filling works can be accepted. Gindurra did not occupy the Site in a physical sense.
What the Council's evidence does establish on the balance of probabilities is that Mr Clark as the directing mind of Timecon, Gindurra and/or Somersby Landscape Supplies Pty Ltd (Department of Environment and Climate Change v Olmwood Pty Ltd (2010) 173 LGERA 366; [2010] NSWLEC 15 at [344]-[345]; Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 4) (2014) 212 LGERA 1; [2014] NSWLEC 4 at [71]) orchestrated the filling of the Site over a lengthy period, by companies which included LLBJV, Laison Earthmoving and Capital K. Mr Clark very actively sought from the Certifier the Masterplan CDC and modifications which enabled a substantial amount of fill to be placed on the Site by these third parties.
Mr Clark's evidence summarised in [172] above was focussed on demonstrating who occupied the Site in a physical sense during 2017-2018. Mr Clark asserted that LLBJV, Timecon and Capital K occupied the Site at various times and I do not understand that this was disputed by the Council.
A large part of the evidence referred to by Mr Clark summarised above at [173] consisted of his assertion in various emails that Gindurra/Timecon was not the occupier of the Site. As the Council submitted, there is no objective evidence such as a lease or licence between Gindurra/Timecon with entities such as Laison Earthmoving or Capital K to establish that they occupied, in a legal sense, the Site for periods of time. Mr Clark simply asserted that the companies in occupation had control of the Site and the fill being placed on it and that was sufficient to remove Gindurra from any liability for what occurred on the Site.
There is ample evidence relied on by the Council, summarised above at [168], to establish that Gindurra as owner of the Site through its director Mr Clark or Mr Clark as a director of Timecon or Somersby Landscape Supplies Pty Ltd orchestrated filling activity on the Site in 2017-2018, which resulted in water pollution of the creeks in the council reserves. Gindurra issued two s 143 notices under the POEO Act in 2017 and Somersby Landscape Supplies Pty Ltd issued one s 143 notice in 2018 permitting the Site to be used as a waste facility for VENM. I note that a s 143 notice was also issued by Laison Earthmoving but that does not alter my conclusions. Mr Clark arranged for third parties to bring substantial quantities of fill to the Site. That orchestration also included Gindurra receiving payment based on tonnage of fill brought to the Site, unlike in Wilkie where the rent received by the non-owning lessee not being tied to the unlawful activity was relevant to the Court of Appeal's finding that the lessee was not carrying out unlawful development under the EPA Act or causing it to occur on the land she sub-let.
The overwhelming evidence establishing control by Mr Clark of activities on the land owned by Gindurra is not undermined by the evidence summarised in [172]-[174] above that LLBJV did not have a contract to deliver fill to the Site with Gindurra and that the Council's Orders 1 and 15 issued under s 121B of the EPA Act defined Laison Earthmoving as occupier of the Site. The Council has established that Gindurra was an occupier, as defined under the POEO Act, of the Site.
Turning now to whether Gindurra caused or permitted water pollution to occur, the meaning of these terms has been much considered, including in Foxman stating in relation to "cause" at [234]-[237]: 234 The meaning of "cause" has been considered in a number of cases (Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1 at [238]-[262]; Olmwood at [351]-[355]; Walker (No 2) 2010 at [272] and [274]; Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; (2012) 82 NSWLR 12 at [80]-[87]; and Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 at [108]). 235 In Walker the Court of Criminal Appeal set out the relevant principles in determining the interpretation of the word "cause" (at [80]): 80 The appellant accepted that appropriate guidance in the resolution of these issues could be found in Environmental Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1 at [238]-[260]. The respondent did not contend otherwise. The relevant principles were accepted to be that: (a) "causing" should be given its common sense meaning: Alphacell Ltd v Woodward [1972] AC 824 at 834, 847; (b) a person causes a result where he or she deliberately and intentionally does an act which naturally produces a certain outcome: Alphacell at 839; (c) the defendant must engage in a positive act to "cause" something to occur and this act need not be an immediate cause: Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 27-28; (d) the active involvement of a third party may, but does not necessarily, break the causal connection: Empress Car Co at 33, 36- 37; and (e) in determining whether the involvement of a third party excludes the defendant as a causative factor, the court should consider whether the actions of the third party were an ordinary occurrence or something extraordinary. This is a question of fact: Empress Car Co at 36. 236 Although the statutory context was different in Walker (s 44 of the Native Vegetation Act 2003 ("the NVA") provided a defence to a landholder who did not "cause or permit" another person to carry out the clearing), the language of s 44 of the NVA and s 143 of the POEOA is relevantly similar so that the principles articulated above are presently applicable. 237 In summary, for a person to cause another person to carry out a breach of s 143 of the POEOA, there must be a positive act on the part of the first person. The causal nexus may exist by some active operation or chain of operations that leads to the other person carrying out the act of transportation (Walker (No 2) 2011 at [108]). And the positive act does not have to be the only cause - the fact that someone or something else could be said to have caused the other person to carry out the transportation is not inconsistent with a person, by his or her positive act, having caused that other person to carry out the transportation (Walker (No 2) 2011 at [108]). and at [240] in relation to "permits": 240 Again, this concept had been examined in a number of analogous decisions (Multiplex at [258]-[259] and [263]; Olmwood at [356]-[359]; Walker (No 2) 2010 at [272] and [274]; Walker at [87] and Walker (No 2) 2011 at [109], quoted above). In Walker (No 2) 2010 the Court, after reviewing the authorities, summarised the position as (at [274(g)], citation omitted): (g) seventh, to "permit" means to intentionally allow. That is to say, with knowledge or awareness rather than any intentional failure to act. Further, knowledge that something that is a contravention is likely to be done in the future is to "permit" it to be done. However, mere carelessness or negligence in failing to prevent an act giving rise to a contravention is not to "permit" it to occur.
The same evidence considered in relation to occupation enables a finding that Gindurra as owner of the land and through related companies, Timecon and Somersby Landscape Supplies Pty Ltd, caused or permitted filling to occur on the Site. The extensive and intentional arrangements made by Mr Clark as director of all three companies as detailed in the Council's and Gindurra's evidence resulted in extensive fill being placed on the Site. That evidence establishes that actions were deliberately taken to cause fill to be placed on the Site in such a way that fill entered the council reserves. As identified in Foxman at [235] and [237] that action need not be the only cause of the activity giving rise to the water pollution, a relevant matter given that all the fill was placed by third parties, and need not be the immediate cause of the water pollution. A chain of operations caused by a defendant resulting in water pollution satisfies causation. "Permits" in the sense of "intentionally allow" applies equally to the behaviour of Gindurra through its director Mr Clark in arranging for fill to be placed on the Site which had the consequence that water pollution occurred.
In light of the evidence summarised above at [182], I find that Gindurra did cause or permit water pollution of the unnamed creeks adjoining the council reserve on the southern boundary and in a small area on the western boundary between November 2017 and July 2019 in that it caused or permitted the placement of fill and sediment and other material in such a manner that it did or was likely to wash into the unnamed creeks on the adjoining council reserves.

[54]

Council's submissions

Resource recovery facility is defined in the Standard Instrument. It is not in issue that a resource recovery facility or a waste or resource management facility is permissible with consent on the Site, being zoned IN1 under the GLEP. The evidence of the various inspections, photographs and surveys referred to above and the description in the Masterplan CDC show a resource recovery use of the Site which did not have development consent. The so-called "industrial" building (a temporary building) in phase 1 serves only this purpose. Such use was proposed also on other lots as depicted in the "phase 1 development plan" approved under the Masterplan CDC.
The evidence of what Mr Clark sent the Certifier summarised at [22] above discloses that the use sought to encompass varied kinds of resource recovery: recycling of paper, recycling of building and demolition solid waste, composting, and non-thermal and thermal waste processing. The photograph described above of bagged "sample material in resource recovery shed" demonstrates that use and also that the resource recovery activities went beyond these identified categories involving, as at 18 November 2016, some 500 tonnes of coal product. Even if the evidence was limited to these bales and the Court assumed that they were only temporarily stored before export, it would nonetheless indicate that the Site was used as a resource recovery facility.
The emails from Mr Clark to Laison Earthmoving above at [197] indicate that processing of at least glass had been occurring on the Site since 14 November 2017. That glass has been processed on the Site is supported by the observations made by the council officers above at [199]. The email from Mr Clark to Laison Earthmoving above at [200] further indicates that screening and recovery of material was occurring on the Site.
Such use is readily characterised as a resource recovery facility, being a species of waste or resource management facility within the meaning of the Standard Instrument, the defined terms of which are adopted by cl 1.5(2) of the Codes SEPP and the GLEP. The use of the Site as a "resource recovery facility" or "waste or resource management facility" did not have the requisite development consent and was in breach of s 4.2 and s 76A (as it was before March 2018) of the EPA Act.
Gindurra's submission that the absence of a written agreement for resource recovery activity between it or Timecon and another entity means that no resource recovery has occurred is inconsistent with the agreed fact that fill has been transported onto the Site despite the absence of a written agreement to that effect.

[57]

Exercise of discretion to grant relief

The numerous declarations sought by the Council are set out in the amended summons and whether some or all of these are made is at the discretion of the Court. In Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681, the appropriateness of making declarations in civil enforcement proceedings was considered by Preston CJ where breaches of a statute are established on the civil standard of proof. The Court has broad powers to make remedial orders as it thinks fit on finding that a breach of a statute has occurred, at [12]. The appropriateness of also making declarations which are not necessary in order for the Court to have jurisdiction to make other orders should be considered in relation to whether doing so has any practical effect and whether civil proceedings are being used as a substitute for a criminal prosecution at [20]-[25]. The Court in the exercise of its civil enforcement jurisdiction should not be used to punish wrong-doers, at [23].
These considerations apply to the declaration concerning the use of land for the purpose of a resource management facility (prayer 1 in the amended summons), the declaration that filling has been carried out not in accordance with the Fill Consent (prayer 3) and a declaration that the Respondent has polluted the creeks in the council reserves (prayer 4). Given that my findings provide sufficient basis for the making of remedial orders in relation to the matters the subject to these three declarations, I do not consider these to be necessary.
The judicial review aspects of the proceedings concern the validity of the CDCs which I have found to have been issued invalidly. As there is no legal basis for them, it is appropriate that they be declared invalid as provided for in prayers 1A, 1B and 1C. These declarations do have practical effect.
In terms of consequential relief for the breaches of the EPA Act and POEO Act established by the evidence, prayer 2 seeks an order restraining the resource recovery use. The evidence establishes that such a use has been occurring on the Site and an order restraining such a use is appropriate.
The Council seeks the following extensive further relief in the summons: 5. An order that Respondent carry out the following actions and remedial works: (a) Upon service of these Orders, immediately cease all works on the Land other than works required to complete Orders 5(c), (e), (g), (i) and (k) and until (j) and (k) have been completed. (b) Within 2 weeks of service of these Orders, submit to Council: i. a detailed site survey prepared by a registered surveyor identifying the present levels of the Land at 1m intervals across the Land, at the boundaries of the Land and beyond the boundary until the fill stops. The survey is to indicate the location of any existing sediment and erosion controls, and the location, shape, slopes and heights of stockpiles of fill at 1m intervals. ii. a Soil and Water Management Plan prepared by a Certified Professional in Erosion & Sediment Control. The Soil Water Management Plan is to be prepared in accordance with the 'Blue Book' (Managing Urban Stormwater: Soils and Construction, Landcom, 2004). The Soil and Water Management Plan is to set out detailed actions to: • prevent further sediment from leaving 40 Gindurra Road Somersby, and being deposited onto the land and within the unnamed creeks on 32 and 34 Gindurra Road Somersby and within the 10 metre buffer conservation area, and • remove the fill material from 40 Gindurra Road Somersby, and the land and within the unnamed creeks on 32 and 34 Gindurra Road Somersby. The Soil Water Management Plan will need to provide specific controls for each stage of works: • Stage 1: Immediate controls • Stage 2: Removal of fill material from within the watercourse, adjacent properties and 10 metre buffer conservation area • Stage 3: Removal of fill material from the Land • Stage 4: Site stabilisation and ongoing management The Soil Water Management Plan should be prepared in accordance with the specified steps set out in the Asbestos Construction Management Plan prepared by Progressive Risk Management Pty Ltd, dated June 2016. The Soil and Water Management Plan is to include: • a site survey which identifies contours and approximate grades and the directions of fall, • locality of site and allotment boundaries, • location of adjoining roads and all impervious surfaces, • location of site within catchment including an estimate of flows through the site, • existing vegetation and site drainage, • nature and extent of clearing, excavation and filling, • diversion of run off around disturbed areas, • location and type of proposed erosion and sediment control measures, • location of site access and stabilisation of site access, • location of material stockpiles, • location and engineering details with supporting design calculations for all necessary sediment retention basins, • location and concept plans of proposed constructed wetlands/ gross pollutant traps, trash racks or trash collection/ separator units, • proposed site rehabilitation and landscaping, • detailed staging of works (breaking down of catchment disturbed), and • maintenance program for erosion and sediment control measures. All design criteria and calculations used to size soil and water control measures are to be shown. Construction standard drawings are to be provided on each type of soil and water control measure proposed. (c) Within 3 weeks of service of these Orders: i. carry out the actions specified in the Soil and Water Management Plan; and ii. submit to Council a certification by the consultant that prepared the Soil and Water Management Plan that the actions specified in Stage 1 of the Soil and Water Management Plan have been carried out in accordance with the Soil and Water Management Plan. (d) Within 6 weeks of service of these Orders submit to Council a Rehabilitation and Vegetation Management Plan. The Plan is be prepared by a suitably qualified ecologist/environmental consultant with tertiary qualifications in Ecology, Conservation & Land Management, Environmental Management or equivalent. This Plan is to address the removal of fill material from and the rehabilitation of the following areas: i. within the watercourse on 32 Gindurra Road, Somersby and within the watercourse on 34 Gindurra Road, Somersby, ii. within adjacent properties (being 32 and 34 Gindurra Road, Somersby) and iii. within the 10 metre buffer conservation area on the Land as shown on approved plans numbered C001 & C002 Rev 03 dated 14 June 2011 prepared by RGH Consulting Group. The Rehabilitation and Vegetation Management Plan is to include, as a minimum: tree protection measures for existing trees, weed management techniques, species list and density for replanting and any other relevant management actions, a schedule for all remediation and management works, and allocation of responsibilities for each management action. Any species used for re-planting must be from the species nominated in Council's Bell's vegetation community description for E26 - Exposed Hawkesbury Woodland, and shall be of local provenance. The Rehabilitation and Vegetation Management Plan will need to reference the Asbestos Construction Management Plan prepared by Progressive Risk Management Ply Ltd, dated June 2016. (e) Within 10 weeks of service of these Orders, remove all fill material from the following areas in accordance with the Rehabilitation and Vegetation Management Plan and Soil Water Management Plan: i. within the watercourse on 32 Gindurra Road, Somersby and within the watercourse on 34 Gindurra Road, Somersby, ii. within adjacent properties (being 32 and 34 Gindurra Road, Somersby), and iii. within the 10 metre buffer conservation area on the Land as shown on approved plans numbered C001 & C002 Rev 03 dated 14 June 2011 prepared by RGH Consulting Group. All work is to be carried out under the supervision of the ecologist/environmental consultant that prepared the Rehabilitation and Vegetation Management Plan. (f) Within 11 weeks of service of these Orders, submit to Council a certification by the consultant that prepared the Soil and Water Management Plan that the actions specified in Stage 2 of the Soil and Water Management Plan have been carried out in accordance with the Soil and Water Management Plan. (g) Within 12 weeks of service of these Orders, carry out the rehabilitation actions specified in the Rehabilitation and Vegetation Management Plan for the rehabilitation of the following areas: i. within the watercourse on 32 Gindurra Road, Somersby and within the watercourse on 34 Gindurra Road, Somersby, ii. within adjacent properties (being 32 and 34 Gindurra Road, Somersby) and iii. within the 10 metre buffer conservation area on the Land as shown on approved plans numbered C001 & C002 Rev 03 dated 14 June 2011 prepared by RGH Consulting Group. All work is to be carried out under the supervision of the ecologist/environmental consultant that prepared the Rehabilitation and Vegetation Management Plan. (h) Within 12 weeks of service of these Orders, submit to Council a certification by the consultant that prepared the Rehabilitation and Vegetation Management Plan that the actions required by the Rehabilitation and Vegetation Management Plan have been carried out in accordance with the Rehabilitation and Vegetation Management Plan. (i) Within 18 weeks of service of these Orders, remove fill material from the Land, so that the levels of the Land are in accordance with the plans numbered C001 & C002 Rev 3 dated 14 June 2011, prepared by RGH Consulting Group, as approved by the Fill Consent. (j) Within 19 weeks of service of these Orders: i. submit to Council a detailed site survey prepared by the registered surveyor that prepared the site survey required by Order 5(b)(i), identifying the levels of the Land at 1m intervals across the site and at the boundaries of the site. The site survey required by this Order 5(i) is to include a certification by the surveyor that the levels of the Land are in accordance with Order 5(h). ii. submit to Council a certification by the consultant that prepared the Soil and Water Management Plan that the actions specified in Stage 3 and Stage 4 of the Soil and Water Management Plan have been carried out in accordance with the Soil and Water Management Plan. (k) Within 21 weeks of service of these Orders erect a permanent 2 metre high chain mesh fence that delineates the 10 metre conservation buffer zone as shown on approved plans numbered C001 & C002 Rev 03 dated 14 June 2011 prepared by RGH Consulting Group. An access gate shall be provided for maintenance purposes and located on Gindurra Road. Signage shall be placed every 40 metres along the entirety of the fence. This sign shall warn that land beyond this fence has been identified as being of significant environmental habitat.

[58]

Evidence

The Council read the following evidence in relation to the exercise of the Court's discretion. Mr Jamie Loader, unit manager environment and certification for the Council, affirmed an affidavit dated 7 November 2018. He stated that the Council's process in relation to CDCs received by private certifiers is purely administrative in nature. CDCs are received either electronically or in hard copy, logged into the Council's property management system by customer service or records staff and an invoice is generated for record-keeping. CDCs are not assigned to any council officer for assessment and are not reviewed in any specific way. The Council received 1,254 CDCs from private certifiers in the 2017/2018 financial year. The Council does not have the resources to conduct a detailed review of this number of CDCs.
Mr Loader stated that the Masterplan CDC was received by the former Gosford City Council on 13 January 2016 and the Mod 2, Mod 3 and Mod 4 CDCs were received by the Council on 13 December 2016, 27 March 2017 and 11 October 2017 respectively. All the CDCs were added to the Council's record system and no further action was taken.
Ms Hitchenson summarised the enforcement action taken by the Council in relation to Gindurra in her affidavit dated 16 May 2018 as follows: 1. 30 March 2017: Council issued a notice of intent to give Order 12 pursuant to former s 121B of the EPA Act to Gindurra requiring it to cease importing fill onto the Site and restore levels to "original pre-fill levels"; 2. 21 April 2017: Council issued Order 12 to Gindurra. The Council informed the Court that this Order was revoked, see Tcpt, 8 August 2019, p 22(45); 3. 5 December 2017: Council issued Mr Clark with a notice of intention to give a direction to take preventative action under s 96 the POEO Act (cease placing fill in the conservation buffer and the watercourses adjacent to the Site and implement a soil and water management plan) and to give Mr Clark Orders 1 and 15 pursuant to former s 121B of the EPA Act requiring him to cease the importation of fill onto the Site and within the conservation buffer and implement a Council-approved plan of management addressing the removal of fill and rehabilitation; 4. 21 February 2018: Council issued Mr Clark with a prevention notice pursuant to s 96 of the POEO Act ; 5. 23 February 2018: Council issued Orders 1 and 15 pursuant to former s 121B of the EPA Act; and 6. 6 March 2018: Council issued Mr Clark with a letter revoking Orders 1 and 15 under the EPA Act and the notice under the POEO Act.
On 8 March 2018 Ms Hitchenson attended a "without prejudice" meeting at the Site with Mr Woods (Council's acting unit manager), Mr Ball (Council's acting general counsel), Mr Clark and Mr Balog (Mr Clark's legal representative at the time). Following this meeting, "without prejudice" communications occurred between the Council and Mr Clark in relation to Council's concerns in relation to the Site. The Council's concerns were not resolved.

[59]

Council's submissions

In relation to delay by the Council in commencing proceedings, measured against when the approval of the Masterplan CDC and the Mod 3 and Mod 4 CDCs were communicated to the Council, the Council accepted that it was notified of the approval of each decision. This is required of a certifier by the EPA Act. The Council accepted a significant period of time has passed since the issue of the Masterplan CDC (and obviously less so in the case of the Mod 3 and Mod 4 CDCs). Such delay, however, should be considered against the context of the parallel, private certification regime for complying development established under the EPA Act. The decision-making process for such certificates is undertaken by accredited certifiers who have no connection with a council, and who are obligated to communicate to a council the issuing of a certificate and to provide the documents on which the certification was based: EPA Regulation cl 130(4). The EPA Act assigns no role or function to a council who is in receipt of such an instrument. A council is in this regard no more than an administrative central repository of CDCs.
Although councils must be taken to "know" of a decision when it is received, the particular context and the evidence of Mr Loader shows why it is unsurprising that the Council (and the position is likely to be similar for councils generally) receives such certificates and handles them in a wholly administrative manner (essentially a filing function). The evidence of Mr Loader shows why it is neither practical nor feasible for every CDC received by councils to be reviewed, let alone be investigated for legal validity. There is neither reason nor sufficient resources to review them.
It is not until there is a cause to enquire into activities on a particular site that a council investigates the consent position. The evidence shows the taking of enforcement action of various kinds from March 2017 onwards (Affidavit, Ms Hitchenson, 16 May 2018 see above at [218]). Significant attempts were made to obtain action from Gindurra which were challenged, then an attempt to resolve the dispute in March 2018 (see above at [219]). Only when these efforts were unsuccessful did Council commence these proceedings in May 2018. Put in context there is no relevant delay.
The relief sought by the Council in the amended summons although detailed does little more than seek to return the Site to the state approved under the Fill Consent. The detailed steps in that relief reflect an intention to take steps in a considered and planned manner informed by relevant expert opinion.
More fundamentally, the removal of unlawful fill is justified given the evidence of planned, concerted activity by Gindurra over a number of years for gain. Not granting relief rewards unlawful behaviour with private advantage which would undermine confidence in planning and environmental laws.

[60]

Gindurra's submissions

The Court should decline to grant relief in the exercise of its jurisdiction given the delay in commencing proceedings.
Gindurra has a history of complying with the conditions of the Fill Consent. For example geotechnical reports were prepared in relation to the Site. An aerial photograph of the Site that Gindurra said was dated 2015 shows that there was no fill outside of the southern and western boundaries of the Site. Mr Eyre stated that he had not personally observed the activities said to be proposed by the CDCs occurring on the Site, above at [207].
DA 30827/2006 authorised the completion of "clearing and replanting of native tree and shrub species in the 10 metre conservation buffer to Piles Creek". Gindurra emphasised that this DA authorised clearing in the conservation buffer indicating that the land must not be ecologically significant. This highlights the unreasonableness of the relief sought by the Applicant.
If the orders in prayer 5 of the amended summons are made by the Court, Gindurra will incur significant expense ($7-17 per tonne amounting to a total of $3.4 million) in removing the fill which is above the Fill Consent levels from the Site.
Gindurra has cooperated with the Council and tried to conciliate with the Council through the Calderbank offers made pursuant to r 42.13 of the Uniform Civil Procedure Rules 2005 (UCPR) to the Council on 18 June and 3 July 2018.
Under s 25E of the Land and Environment Court Act 1979 (LEC Act), the Court should consider making an order under Pt 3 Div 3 instead of declaring or determining that a development consent is invalid. In this case the state of mind of the Certifier when the CDCs were issued is unknown to the Court hence the CDCs should not be invalidated. It is difficult to ascertain the state of mind of the Certifier without interrogating him.
The work the subject of the orders the Council seeks requires development consent under the EPA Act and possibly an environment protection licence under the POEO Act.

[61]

Consideration

I accept the Council's submission that although s 25E of the LEC Act does apply to CDCs (since "development consent" is defined under s 1.4 of the EPA Act to include CDCs), it is inappropriate in the present case where the Council's judicial review grounds go to power (jurisdiction). Preston CJ stated in Brown v Randwick City Council at [87] that where there is an absence of power to grant development consent, it is inappropriate to employ the power under s 25B and therefore s 25E of the LEC Act. The same observation should apply to CDCs. Accordingly, I will consider whether to make the extensive remedial orders sought in the summons outlined above.
The circumstances of this case highlight some of the shortcomings of the present system of private certification under the EPA Act where that function is conducted incompetently. The Council in seeking to explain the timing of commencement of the proceedings submitted that local councils are not resourced to oversight the CDCs they receive, in large numbers in this case. That a document titled "Masterplan CDC" did not raise immediate alarm within the Council shows that absence of resources has significant consequences for the Council and consequently the wider community. While a certifier can be referred to the Building Professionals Board for disciplinary action after issuing an instrument beyond power, as in this case, such instruments continue to have legal effect until declared invalid by the Court.
While the Council submitted that it has not delayed in commencing these proceedings, it clearly has. It received notification of the CDCs and these were filed in council records, see at [217] above. It was aware from at least January 2017 or shortly thereafter of issues with fill beyond the Fill Consent being placed at the Site, the survey above at [66] being dated 24 January 2017. The Council's case is that the bulk of the fill complained of was placed from January 2017 up to the survey in May 2019. Numerous council officers attended the Site for numerous inspections in February, March and November 2017, and February, March and April 2018 leading up to the commencement of these proceedings in May 2018, well over a year after the Council became aware there was a problem at the Site. That ineffective enforcement action was attempted during that period does not explain away that substantial delay. The one notice and three orders issued to remedy alleged breaches of the POEO Act and EPA Act respectively in April 2017 and February 2018 (Affidavit, Ms Hitchenson, 16 May 2018 and Tcpt, 8 August 2019, p 22(45) see above at [218]) were ultimately revoked by the Council. Very curiously and inconsistently, given what was happening in one part of the Council in terms of attempted enforcement action, the Council as a water supply authority issued certificates under the WM Act in July 2017 in relation to a masterplan for 89 industrial warehouse units for the Site.
Gindurra submitted that it had complied with the conditions of the Fill Consent, no fill was placed by it outside the boundaries of the land in 2015 and Gindurra did not place the fill complained of in that location in any event. That Gindurra complied with the Fill Consent and that fill was not placed beyond the Site in 2015 is not disputed but that is not the focus of these proceedings. While I have accepted that Gindurra did not place the fill beyond the Site's boundaries, I have found that it exercised the relevant degree of control over those who did to justify a finding that it is liable in a legal sense for what has occurred. That includes placement of fill beyond the Site boundaries and pollution of the creeks on the council reserves. That another DA authorises clearing and replanting of native vegetation in the 10 metre conservation buffer does not establish that this land lacks ecological significance, contrary to Gindurra's submission.
I cannot agree with the characterisation by the Council of the benefit derived by Gindurra as unlawful over many years. It obtained CDCs from the Certifier which it was entitled to rely upon under the scheme established in the EPA Act. This is not a scenario of an absence of any consent or approval at the time work was carried out. It is clear from the correspondence between the Certifier and Mr Clark summarised above in [22]-[23] that the latter was heavily involved in encouraging the Certifier to issue the CDCs, even where the Certifier himself identified problems with what was proposed, as in the Certifier's email dated 14 January 2017 summarised above at [22(d)]. Ultimately the Certifier chose to issue the CDCs under challenge. That he was completely mistaken in doing so does not mean that Gindurra's actions were unlawful at the time filling occurred in the way the Council submitted. The substantial delay in commencing proceedings weighs heavily in these circumstances.
The balancing exercise of what is the appropriate relief must also take into account the obvious and substantial impacts on the neighbouring council reserves, given that fill spilled from the Site onto the two council reserves and the 10 metre conservation buffer specified in the Fill Consent was completely ignored.
I must balance all these matters in determining appropriate orders. Particularly important is that these proceedings should have been commenced far more promptly. That is a substantial reason why I am not going to order all of the relief sought by the Council as substantial expense is likely to be incurred by Gindurra in removing unlawful fill. While I have only untested statements by Mr Clark from the bar table as to the cost of removal per tonne, the large volume of fill means the cost will be large even at the lowest end of the scale of $7-$17 per tonne.
The extensive orders sought are that no further work occur on the Site except for what the orders require and these are summarised as follows: 1. Within two weeks of service of orders a detailed site survey identifying specified matters and a soil and water management plan prepared in a certain way and addressing a large number of matters is required. Four stages of work are to be specified in the soil and water management plan: stage 1 immediate controls; stage 2 removal of fill material from within the watercourse, adjacent properties and 10 metre conservation buffer; stage 3 removal of fill material from the Site; stage 4 site stabilisation and ongoing management. 2. Within three weeks of service of orders carry out the requirements specified in the soil management plan and provide a certification by the consultant who prepared the plan that actions to comply with stage 1 have been carried out in accordance with it. 3. Within six weeks of service of orders submit to the Council a rehabilitation and vegetation management plan prepared by a suitably qualified expert addressing the removal of fill and rehabilitation of the watercourses in the council reserves inter alia. 4. Within 10 weeks of service of orders remove all fill from specified areas such as the watercourses in the council reserves. 5. Within 11 weeks of service of orders submit to the Council certification that stage 2 of the soil and water management plan has been carried out appropriately. 6. Within 12 weeks of service of orders carry out rehabilitation in accordance with the rehabilitation and vegetation management plan within the watercourses in the council reserves, otherwise within the reserves and within the 10 metre conservation buffer. 7. Within 12 weeks of service of orders submit a certification by an appropriate consultant that actions have been carried out in accordance with the rehabilitation and vegetation management plan. 8. Within 18 weeks of service of orders remove fill material for the land in accordance with the Fill Consent plans C001 and C002 Rev 3 dated 14 June 2011. 9. Within 19 weeks of service of orders submit to the Council a survey identifying levels at one metre intervals across the Site and at the boundaries and certification by a consultant that stage 3 and stage 4 of the soil and water management plan have been carried out as required by that plan. 10. Within 21 weeks of service of orders erect a permanent two metre high chain mail fence that delineates the 10 metre conservation buffer as shown on approved plans numbered C001 and C002 dated 14 June 2011 prepared by RGH Consulting Group with specified signage.
I intend to make amended orders ensuring fill is removed from creeks and the adjoining council reserves and the 10 metre conservation buffer on the Site and that these areas are rehabilitated and fencing is erected to protect the 10 metre buffer. I am not going to order the removal of fill placed over and above the Fill Consent unless it is necessary to do so in whole or part for safety reasons because the slope of the existing fill cannot be appropriately contained. Order 5(a) will be made. The orders requiring the preparation of a survey and plan outlined in par 5(b)(i) and (ii) except for "Stage 3: Removal of fill material" from the Site will be made. Orders 5(c)-(h) will also be made. It may be that other orders are needed in order to give effect to this judgment. As I will not be making 5(i) at this stage, amendment of order 5(j) will be necessary. Order 5(k) will also be made. The timeframes for compliance with the orders will be further discussed with the parties before finalisation.
In his further impermissibly lengthy submissions at pars 2.28-2.35 filed after the hearing, Mr Clark expanded on his brief submission at the hearing that any work required by any court orders would need development consent. Requiring the survey and plan is not relevant to that argument and their preparation will be ordered. The Council has not addressed this issue and should have the opportunity to do so. A timetable for further brief written submissions by the Council on this issue and for finalisation of the orders will be discussed with the parties.

Central Coast Council v 40 Gindurra Road Somersby Pty Ltd

At a glance

Court

Decision date

Before

Source

Judgment (64 paragraphs)

Parties

Cases Cited (65)

Cited By (14)