Central Coast Council v 422 Pacific Highway Wyong Pty Ltd

Central Coast Council v 422 Pacific Highway Wyong Pty Ltd - [2021] NSWLEC 64 - NSWLEC 2021 case summary — Zoe

[5]

The nature of the proceedings

On 1 June 2021, the Council sought, and was granted, leave to rely on a Further Amended Summons. This Further Amended Summons arose as a consequence of material made available to the Council on 27 May 2021 by Mr Dagger in response to a Notice to Produce which had been served upon him. This material caused the Council to conclude that there was a further basis upon which to seek its proposed declaration that the first complying development certificate was invalid. The nature of this material, and the consequences in these proceedings arising from it, are later detailed.
For present purposes, it is sufficient to set out the terms of the Further Amended Summons, as this provided the basis upon which the hearing on 15 June 2021 took place. The Further Amended Summons is in the following terms: ORDERS SOUGHT On the grounds stated below, the Applicant seeks the following: 1. A declaration that Complying Development Certificate No. 18-0124 (First Certificate) is invalid and of no effect. 1A. A declaration that Complying Development Certificate No. 18-0403 (Second Certificate) is invalid and of no effect. 2. An order that each of the First, Second, Third, Fourth and Fifth Respondents, by themselves, their servants and agents, be restrained from carrying out development for the purpose of landscaping material supplies on the land at Lot 21 DP 1006849 known as 422 Pacific Highway Wyong and Lot 3 DP 543325 known as 450 Pacific Highway Wyong (the Land) pursuant to the First Certificate until development consent has been obtained for that use. 2A. An order that each of the First, Second, Third, Fourth and Fifth Respondents, by themselves, their servants and agents, be restrained from carrying out development on the land at Lot 21 DP 1006849 known as 422 Pacific Highway Wyong and Lot 3 DP 543325 known as 450 Pacific Highway Wyong (the Land) pursuant to the Second Certificate until development consent has been obtained for such development. 3. An interlocutory order that the First and Seventh Respondents, by themselves, their servants or agents, cease the importation of fill material to the Land immediately upon the making of these orders, until further order. 4. An order that the First and Seventh Respondents, by itself, and its servants or agents: (a) remove all fill material which has been placed on the Land since 14 February 2018 and dispose of it to an approved waste facility within 30 days of the making of these orders; and (b) provide copies of the waste dockets for disposal of such fill to the Applicant within 7 days of the disposal. 5. An order that the First Respondent remove the site shed described in the Certificate and which has been placed on the Land within 7 days of the making of these orders. 6. An order that the Respondents pay the Applicant's costs of the proceedings. 7. Such further or other orders as the Court thinks fit. DETAILS OF DECISIONS 1. The decision maker was the Sixth Respondent. 2. The decisions to be reviewed are: (a) the Sixth Respondent's determination that the development endorsed by Complying Development Certificate No. 18-0124 (First Certificate) is complying development and complies with the relevant development standards under s.4.28(3) (previously s.85A(3)) of the EPA Act; and (b) the Sixth Respondent's determination that the development endorsed by Complying Development Certificate No. 18-0403 (Second Certificate) is complying development and complies with the relevant development standards under s.4.28(3) (previously s.85A(3)) of the EPA Act. 3. The Applicant seeks relief from the whole of each decision in that the grant of the First Certificate, and the Second Certificate, was in each case contrary to the EPA Act. GROUNDS First Certificate 1A. The First Certificate is invalid because it was not issued by the Sixth Respondent. Particulars (i) Letter from the Sixth Respondent to the Building Professionals Board dated 16 July 2018. (ii) Letter from the Sixth Respondent to the Building Professionals Board dated 9 August 2018. 1. The First Certificate is invalid because it purports to authorise development that is not complying development or that complies with relevant development standards. Particulars (i) The 'installation of site shed and groundwork preparation for landscaping materials supply' is not development specified by clause 5A.2(1) for the purposes of the Commercial and Industrial (New Buildings and Additions) Code in Part 5A of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). (ii) The proposed site shed is not for the purposes of industry (other than heavy industry) or a warehouse or distribution centre. (iii) The proposed site shed is not an addition to the rear of existing commercial premises (on land other than on a corner lot) or an external alteration to existing commercial premises. (iv) The proposed earthworks, which are being carried out over the majority of the subject site (which has an area of approximately 37,000 sqm), does not relate to the proposed site shed, the footprint of which is 11.76 sqm. (v) The proposed earthworks described in the Structural Fill Plan (Sheet 1 of 1 dated 07/02/18) involve fill being placed on the site that would result in the existing ground level being raised by more than 1 metre, but such fill was not structurally sound. (vi) The proposed earthworks described in the Structural Fill Plan (Sheet 1 of 1 dated 07/02/18) involve excavation to an unspecified depth for a proposed sedimentation pond. 2. The First Certificate is invalid because it was not open to the Sixth 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 (i) The Sixth Respondent was did not have any information about existing uses of the land or that any such uses were lawful. (ii) The Sixth Respondent was provided with the first page only of Notices of Determination for DA/732/2011 determined on 9 January 2012, and for DA/367/2012 determined on 31 May 2012. (iii) The proposed earthworks described in the Structural Fill Plan (Sheet 1 of 1 dated 07/02/18) involve fill being placed on the site 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. (iv) The proposed earthworks described in the Structural Fill Plan (Sheet 1 of 1 dated 07/02/18) involve excavation to an unspecified depth for a proposed sedimentation pond. 3. In the event the First Certificate is determined to be invalid, the carrying out of development on the Land comprising the installation of site shed and groundwork preparation for landscaping material supplies is not lawful as it is development for which development consent is required, but which has not been obtained, contrary to section 4.2(1) (previously section 76A) of the EPA Act. Particulars (i) The Land is predominately zoned B6 Enterprise Corridor under the Wyong Local Environmental Plan 2013 (WLEP). (ii) The placement of the fill (Groundwork preparation for landscape supply) is properly characterised as development for the purpose of landscaping material supplies under the WLEP. (iii) Under the WLEP the use of land for the purpose of "landscaping material supplies" requires development consent. Second Certificate 4. The Second Certificate is invalid because it purports to authorise development that is not complying development or that complies with relevant development standards. Particulars (i) The development requires, but had not obtained prior to the issue of the Second Certificate, an approval under the Local Government Act 1993 for each of the following activities: a. Stormwater drainage work, including an on-site stormwater drainage system; b. Dispose of waste into a sewer of the council; c. Install, construct or alter a waste treatment device or a human waste storage facility or a drain connected to any such device or facility; d. Operate a system of sewage management, contrary to clauses 1.18(1)(d) and 5A.28 of the Codes SEPP. (ii) The development requires, but had not obtained prior to the issue of the Second Certificate, an approval under section 138 of the Roads Act 1993 for the building of a crossover or driveway to the Pacific Highway, contrary to clause 1.18(1)(e) of the Codes SEPP. (iii) The development does not meet the following provisions of the Building Code of Australia: a. clauses E1.6, E4.2 and E4.4 of the National Construction Code 2016, contrary to clause 1.18(1)(c) of the Codes SEPP. (iv) The development includes the construction of link roads accessing Donaldson and Brussels Roads (Statement of Environmental Effects page 6, approved plan entitled Proposed Roads DCP 6.11, sheet 4/14), which is not development specified by clause 5A.2(1) of the Codes SEPP. (v) The development includes development that is to be provided with water supply and/or sewerage services, and the applicant had not obtained prior notice or other form of written advice from the 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. (vi) The development does not include a loading bay to each building, and compliant ingress to and egress from the site, contrary to clause 5A.25 of the Codes SEPP. (vii) The development does not include a garbage and waste storage area, contrary to clause 5A.26 of the Codes SEPP. (viii) The proposed earthworks described in the Structural Fill Plan (sheet 6/14 Rev 1 dated 8/5/18) involve fill being placed on the site 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. (ix) The proposed system for stormwater drainage required an approval, but was not approved, under the Local Government Act 1993, contrary to clause 5A.28 of the Codes SEPP. (x) The development includes the stockpiling of fill on the land, additionally to what is described as structural fill of up to 1.95m. (xi) The development includes the storage of plant and machinery for commercial purposes, which is not development for the purpose of a warehouse or distribution centre. 5. The Second Certificate is invalid because it was not open to the Sixth Respondent to determine that the development for which the application was made: 5.1 was complying development; and/or 5.2 complied with relevant development standards. Particulars The particulars to paragraph 4 above are repeated. 6. The Second Certificate is invalid as it included development comprising the construction of link roads accessing Donaldson and Brussels Roads beyond the land the subject of the complying development application and over adjoining land, for which no owners consent was obtained 7. The Second Certificate is invalid because the true purpose of the proposed development was, and is, land filling for commercial gain, and not development for the purpose of a warehouse and distribution centre. 8. In the event the Second Certificate is determined to be invalid, the carrying out of development on the Land in purported reliance on the Second Certificate is not lawful as it is development for which development consent is required, but which has not been obtained, contrary to section 4.2(1) (previously section 76A) of the EPA Act. Particulars (i) The Land is predominately zoned B6 Enterprise Corridor under the Wyong Local Environmental Plan 2013 (WLEP). (ii) Under the WLEP each of: a. the use of land for the purpose of a warehouse or distribution centre; b. the construction of roads (as described in paragraph 4(iv) above); c. the use of the Land for the storage of plant and machinery for commercial purposes, which is not development for the purpose of a warehouse or distribution centre but a use for another purpose including either a truck depot or a depot; and/or d. the filling of land (as described in paragraph 7 above), requires development consent. 9. The carrying out of development the subject of the First Certificate and/or Second Certificate involving access to the Land from the Pacific Highway is contrary to s.4.26(1)(b)(ii) of the EPA Act. Particulars (i) Clause 2.8(g) of Chapter 6.11 of Wyong Shire Development Control Plan 2013.

[15]

Introduction

Mr To commenced his submissions by taking me to three air photos taken from Nearmaps. These air photos (Exhibit C, Tab 37, folios 1318 to 1320) were dated 8 April 2018, 22 April 2021 and 29 April 2017 respectively. Each of these air photos covered the same geographic area and had depicted on them an overlay of the cadastral boundaries of the various allotments shown (including the two allotments comprising the site). Mr To drew attention to the fact that, between the first air photo in time and the second in time, extensive vegetation removal and fill deposits could be observed to have taken place on 450 Pacific Highway. The April 2021 air photo showed that there had been some limited revegetation established on the deposited fill as at the date of the final air photo in the series.
Mr To also took me to an extract from the land use zoning map supporting the LEP (Exhibit A, Tab 21, folio 2320). This map extract shows that, with the exception of a small portion on the south‑eastern fringe of the site, which was zoned SP2 to provide for future alterations to the alignment of the Pacific Highway along the frontage of 450 Pacific Highway, the entirety of the site was zoned B6 Enterprise Corridor.
Mr To next took me to affidavit evidence of several council officers, where those affidavits set out observations that had been made by the relevant deponent during the course of visits to the site.
Mr To took me to an affidavit of Mr Rhys Richards, a health and building surveyor employed by the Council. This affidavit was deposed on 22 March 2018 (Exhibit A, Tab 22, folios 321 to 339). At paragraph 32, Mr Richards described his observations of 450 Pacific Highway during the course of an inspection on 1 March 2018. Relevantly, he said that he had observed: ● vast amounts of fill on the site comprising sandstone type material. In the south-western section of the site, the fill was formed in earth berms approximately 2 1/2 metres in height, and encapsulated trees on the site. The fill in the north-eastern portion of the site was spread out and level with the effect of raising the height of the site; ● sediment control fencing extended along the northern and western boundary of the site. I did not see any sediment control fencing on the southern and eastern boundaries of the site.
Exhibited to this affidavit was a bundle of material (Exhibit A, Tab 23, folios 340 to 449). This included, at folio 424, a photograph of portion of the site. This photograph and its caption are reproduced below:

[16]

The first complying development certificate

A copy of the first complying development certificate was contained in a bundle of material exhibited to the affidavit of Mr Brian Jones, the Council's Section Manager, Compliance and Health. The documents comprising the certificate and its attachments are in evidence at Exhibit A, Tab 21, folios 291 to 307.
The first certificate purported to grant consent for "landscaping material supplies" on the site. Development for this purpose is listed as permissible for the B6 Enterprise Corridor zone of the LEP.
The first certificate purported to authorise importation and placement of fill to a depth of 1.95 metres across virtually the entire site.
Mr To took me to the second page of the certificate documents (folio 292), a page headed "Schedule 1: References; Approved Plans and Specifications". It is to be observed that no document of the nature mandated by cl 5A.27(3)(a) of the Codes SEPP is referenced in the various documents set out on this page.
Mr To also took me to a development consent for 450 Pacific Highway (Exhibit A, Tab 21, folios 263 to 278). This development consent had been issued on 9 January 2012, with a lapsing date of 9 January 2014. There is no evidence that this consent was ever activated. However, for abundant caution, Mr To took me to it in order to establish, via the terms of the document (at folio 275 and a diagram at folio 278), that the extremely limited scope of that development consent for a "Warehouse (Motor Vehicle Storage Yard)" did not provide any potential basis for validity of the activities undertaken by the Company on the site giving rise to the present extent of fill which had been imported to the site.
The intended extent of the fill proposed to be approved for placement on the site by the first complying development certificate can be seen on the Structural Fill Plan noted in Schedule 1 to this complying development certificate, under the heading "Endorsed architectural plans". This Structural Fill Plan, Sheet 1/1 revision:0, is in evidence at Exhibit A, folio 302. A section through the edge of the proposed fill is on the left-hand margin of the plan at its midpoint. This discloses that the fill is intended to be 1.95 metres' deep across the site. A copy of this plan is reproduced as Annexure A to this decision.
Mr To submitted that the evidence that demonstrated that the first certificate had not, in fact, been issued by Mr Dagger provided a first proper basis to declare it to be invalid.
Mr To submitted that the absence of the mandated prerequisite certification required by cl 5A.27(3)(a) of the Codes SEPP provided a second and sufficient basis to conclude that the first complying development certificate was invalid.

[17]

The second complying development certificate

A copy of the second complying development certificate (CDC 18-0403) is in evidence (Exhibit A, Tab 26, folios 505 to 517). This certificate is dated 10 May 2018.
The second certificate purported to grant consent for a "warehouse and distribution centre" on the site. Development for this purpose is listed as permissible for the B6 Enterprise Corridor zone of the LEP.
The second certificate also purported to authorise importation and placement of fill to a depth of 1.95 metres across virtually the entire site.
As with the first complying development certificate, the second certificate includes, in its Schedule 1 (at folio 507), a list of documents upon which Mr Dagger had relied for the purposes of issuing the certificate.
In this schedule of documents, it is to be noted that a document entitled "Codes SEPP Part 5A Compliance-Landfill Limits for CDC referencing P5A.27(3) and dated 8 May 2018" is referenced. A copy of this document does not appear to be in evidence.
A Statement of Environmental Effects and Proposed Land Uses supporting the application for this complying development certificate is also referenced in the schedule. This document is noted as having been prepared by "Director Richard Clark-Operator". This Statement of Environmental Effects is in evidence at Exhibit A, Tab 26, folios 544 to 570. At page 6 of the Statement of Environmental Effects (folio 548), the document describes, relevantly, under the heading "1.4 Proposed Development", an aspect of that for which the complying development certificate is sought. This element is in the following terms: Access to the site is currently via the existing driveway from Pacific Highway, however, linked roads accessing Donaldson and Brussles roads are part of this application (see Indicative Road plan 6.1).
The Indicative Road Plan is referenced on the second page of the schedule of documents relied upon for the issuing of this complying development certificate. It is referred to, under the heading "Architectural Drawings", as being "Proposed Roads DCP 6.11 and Ancillary Structures". It is described as "sheet 4/14 revision 1". A copy of that plan (bearing Mr Dagger's certification and signature) is in evidence at Exhibit B, Tab 30, folio 981. A copy of this plan is attached as Annexure B to this decision. I have inserted, on this plan, the red rectangular marking showing the element of the proposed road running to the north which would connect the site with a proposed extension of Brussels Road.
As can be seen from the attached plan, this road is described as "proposed road as designated in enterprise corridor and subject to final alignment at subsequent date". The area in the red outline on Annexure B depicts, in green, the boundary of 422 Pacific Highway with its neighbouring property to the east as running within this road for which consent is sought by this complying development certificate. The element of this road to the east of the marked boundary is not within the ownership of the owners of 422 Pacific Highway (the Fourth and Fifth Respondents); nor is it within the ownership of the owners of 450 Pacific Highway (the Second and Third Respondents).
No consent from the owners of the property to the east for construction of this road is listed in the schedule of documents for the second complying development consent (nor can I find such a document in the material in evidence).
Mr To submitted that this was a sufficient basis upon which I could conclude that the second complying development certificate was invalid.

At a glance

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Judgment (25 paragraphs)

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