The Applicant Council seeks declarations and orders in respect of works done at, and the apparently planned uses of, Lot 1 in DP1060733, known as 1855 Putty Road, Colo.
The subject land is intersected by Putty Road, a classified road which does not form part of it, and the Colo River adjoins its North-eastern boundary.
The majority of its 12.89ha area lies on the South-western side of the road.
The land is a "flood control lot" under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("Codes SEPP").
Council responded to an anonymous complaint made on 11 October 2017.
After an investigation, continued land clearing, an unsuccessful direction to cease work, and further complaints, it issued its summons on 26 June 2018.
None of the named respondents has co-operated with Council's investigations, nor appeared in the proceedings as yet. At various times they have suggested that they have had legal assistance.
The registered proprietor of the subject land is the Third Respondent company, Southern Chariot Stud Pty Ltd, which holds the land on trust for a not-for-profit charity, "Diwan Al Dawla", an unincorporated association registered with the Australian Charities and Not-for-profits Commission ("ACNC").
The Second Respondent, Diaa Kara-Ali, is the sole director and shareholder of the Third Respondent. He is known to the Court for his background in development work: see Randwick City Council v Kara-Ali [2015] NSWLEC 5, at [15]-[19]. He is identified as a "responsible person" for the Diwan Al Dawla charity.
The First Respondent, Dr Mustapha Kara-Ali, has been variously described as the chairman, a member, the "primary contact", or the spiritual leader ("Imam") of, and a "responsible person" for, the Diwan Al Dawla charity. His email address is that charity's address for service.
The Court infers from the Council's materials, including those emanating from the Respondents, that the three Respondents are closely associated.
On 6 July 2018, Robson J made orders in respect of service, and granted Council an interlocutory injunction: Hawkesbury City Council v Kara-Ali [2018] NSWLEC 105. I respectfully agree with His Honour's remarks and findings, but need not repeat them.
His Honour's orders were returned before me, as Duty Judge, on 16 July 2018. I continued his orders, and set the matter down for its substantive hearing on 20-21 August 2018.
I also made an order authorising entry upon the property, by Council, for inspection purposes, including the doing of "any reasonable thing" to gain access to the site. In view of some of its earlier dealings with the Respondents, and some people encountered on site, the Council sought police support for its inspection.
The Council entry and detailed inspection occurred on 23 July 2018.
Council's detailed Points of Claim ("POC") were filed on 13 August 2018.
When the hearing commenced on 20 August 2018, I granted Council leave:
1. to amend its Summons to take account of follow-up affidavits and additional works discovered during the inspection on 23 July 2018; and
2. to proceed with the substantive hearing on an ex parte basis, the Court being satisfied that the Respondents were on notice of the Applicant's case, including its amended summons, its POC, all its affidavits dealing with the substantive issues, and the exhibits which were to be tendered at this hearing.
The Court was satisfied, by the evidence and submissions presented on 20 August 2018, that it was urgent that the Court make its final orders in the proceedings within seven days of that hearing.
Before the Court at the substantive hearing were the following:
1. A Court Book ("CB");
2. An Evidence Book ("EB" - Exhibit C1), containing ten affidavits - from various Council officers (see [20] below), Council's solicitor Stephen Noel Griffiths (5 July 2018), and a process server (Michael Wilson, 3 July 2018), together with:
1. relevant maps in the applicable Hawkesbury Local Environmental Plan 2012 ("the LEP" - tab 11);
2. two chapters (1 and 9) in the Hawkesbury Development Control Plan 2002 ("DCP" - tab 12);
3. development control orders and related correspondence, issued by Council, on 13 August 2018, to the Respondents and a builder (tab 13); and
4. printouts from www.aldawla.org, the webpage of Diwan Al Dawla (tab 14);
1. Exhibits C2, C3, and C4, being exhibits PK1, PK2, and PK3 to affidavits sworn by key Council officer Philip Khalifeh. (Exhibit C2 is a thumb drive which comprises a video of a Council visit to the site; Exhibit C3 is a large folder of still photographs; and Exhibit C4 is an aerial map indicating from where the still photographs were taken);
2. An affidavit sworn by Council solicitor Mark Andrew Cottom (replacing Griffiths) in support of his application to proceed in the absence of any appearance by any respondent; and
3. A bundle of relevant environment and planning legislation, plans etc. ("LB"), supplemented by extracts from the Local Government Act 1993 ("the LG Act") and the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 ("the Manufactured Home Reg"). A manufactured home is not a building as defined in the EPA Act (LB, fol 1).
The Council officer deponents are:
Philip Khalifeh, Compliance and Enforcement Officer (affidavits sworn 26 June, 16 July, and 2 August 2018);
William Ross Pillon, Senior Planner (26 June 2018);
Garry William Collins, Compliance and Enforcement Co-ordinator (6 July, and 13 August 2018);
Michael Pattison, Land Management Officer (19 July 2018); and
Colin Sproule, Park Superintendent and qualified arborist and horticulturist (3 August 2018).
Collins also gave brief oral evidence.
The tendered materials include extensive photography taken on various inspections (note especially Exhibit C3, which reflects Council's observations on 23 July 2018).
[3]
Key Legislation etc.
Council relies upon the definitions in sections 1.4, 1.5, and 1.6 of the Environmental Planning and Assessment Act 1979 ("the EPA Act"), and the historical and current provisions of that Act regarding environmental planning instruments, development applications, development control orders, and civil enforcement proceedings (see, especially, LB fols 1-43).
The State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 ("the Vegetation SEPP") defines land in Council's area as a "non-rural area of the State" for the purposes of the SEPP, which includes the following clauses (LB fols 107-109):
7 The clearing of vegetation in non-rural areas that requires authority under this Policy:
(1) A person must not clear vegetation in any non-rural area of the State to which Part 3 applies without the authority conferred by a permit granted by the council under that Part.
(2) A person must not clear native vegetation in any non-rural area of the State that exceeds the biodiversity offsets scheme threshold without the authority conferred by an approval of the Native Vegetation Panel under Part 4. This subclause does not apply to clearing on biodiversity certified land under Part 8 of the Biodiversity Conservation Act 2016.
(3) Clearing of vegetation is not authorised as referred to in this clause unless the conditions to which the authorisation is subject are complied with. This subclause extends to conditions that impose obligations on the person who clears the vegetation that are required to be complied with before or after the clearing is carried out.
...
...
9 Vegetation to which Part applies:
(1) This Part applies to vegetation in any non-rural area of the State that is declared by a development control plan to be vegetation to which this Part applies.
(2) A development control plan may make the declaration in any manner, including by reference to any of the following:
(a) the species of vegetation,
(b) the size of vegetation,
(c) the location of vegetation (including by reference to any vegetation in an area shown on a map or in any specified zone),
(d) the presence of vegetation in an ecological community or in the habitat of a threatened species.
...
26 General savings and transitional provisions:
(1) A development control plan that is in force on the commencement of this Policy and that relates to the vegetation for which a permit or development consent is required to clear the vegetation is taken, on that commencement, to be a development control plan for the purposes of this Policy (except to the extent that it is inconsistent with this Policy).
(2) An application for a permit to remove vegetation under an environmental planning instrument that has not been determined on the commencement of this Policy may continue to be dealt with as if it had been made under this Policy.
The LEP provides (LB fols 122-126):
5.9 Preservation of trees or vegetation:
(1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation.
(2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council.
Note. A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner.
(3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by:
(a) development consent, or
(b) a permit granted by the Council.
(4) The refusal by the Council to grant a permit to a person who has duly applied for the grant of the permit is taken for the purposes of the Act to be a refusal by the Council to grant consent for the carrying out of the activity for which a permit was sought.
(5) This clause does not apply to a tree or other vegetation that the Council is satisfied is dying or dead and is not required as the habitat of native fauna.
(6) This clause does not apply to a tree or other vegetation that the Council is satisfied is a risk to human life or property.
(7) A permit under this clause cannot allow any ringbarking, cutting down, topping, lopping, removal, injuring or destruction of a tree or other vegetation:
(a) that is or forms part of a heritage item or that is within a heritage conservation area, or
(b) that is or forms part of an Aboriginal object or that is within an Aboriginal place of heritage significance,
unless the Council is satisfied that the proposed activity:
(c) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area, and
(d) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area.
Note. As a consequence of this subclause, the activities concerned will require development consent. The heritage provisions of clause 5.10 will be applicable to any such consent.
(8) This clause does not apply to or in respect of:
(a) the clearing of native vegetation:
(i) that is authorised by a development consent or property vegetation plan under the Native Vegetation Act 2003, or
(ii) that is otherwise permitted under Division 2 or 3 of Part 3 of that Act, or
(b) the clearing of vegetation on State protected land (within the meaning of clause 4 of Schedule 3 to the Native Vegetation Act 2003) that is authorised by a development consent under the provisions of the Native Vegetation Conservation Act 1997 as continued in force by that clause, or
(c) trees or other vegetation within a State forest, or land reserved from sale as a timber or forest reserve under the Forestry Act 1916, or
(d) action required or authorised to be done by or under the Electricity Supply Act 1995, the Roads Act 1993 or the Surveying and Spatial Information Act 2002, or
(e) plants declared to be noxious weeds under the Noxious Weeds Act 1993.
Note. Permissibility may be a matter that is determined by or under any of these Acts.
...
...
6.2 Earthworks:
(1) The objectives of this clause are as follows:
(a) to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land,
(b) to allow earthworks of a minor nature without requiring separate development consent.
(2) Development consent is required for earthworks unless:
(a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or
(b) the earthworks are ancillary to other development for which development consent has been given.
(3) Before granting development consent for earthworks, the consent authority must consider the following matters:
(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,
(b) the effect of the development on the likely future use or redevelopment of the land,
(c) the quality of the fill or the soil to be excavated, or both,
(d) the effect of the development on the existing and likely amenity of adjoining properties,
(e) the source of any fill material and the destination of any excavated material,
(f) the likelihood of disturbing relics,
(g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area,
(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
...
...
6.4 Terrestrial biodiversity:
(1) The objective of this clause is to maintain terrestrial biodiversity by:
(a) protecting native fauna and flora, and
(b) protecting the ecological processes necessary for their continued existence, and
(c) encouraging the conservation and recovery of native fauna and flora and their habitats.
(2) This clause applies to land identified as "Significant vegetation" and "Connectivity between significant vegetation" on the Terrestrial Biodiversity Map.
(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider:
(a) whether the development:
(i) is likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and
(ii) is likely to have any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and
(iii) has any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and
(iv) is likely to have any adverse impact on the habitat elements providing connectivity on the land.
(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that:
(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or
(b) if that impact cannot be reasonably avoided by adopting feasible alternatives - the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
The LEP's dictionary includes the following definitions (LB fols 136, 138):
earthworks means excavation or filling.
excavation means the removal of soil or rock, whether moved to another part of the same site or to another site, but does not include garden landscaping that does not significantly alter the shape, natural form or drainage of the land.
fill means the depositing of soil, rock or other similar extractive material obtained from the same or another site, but does not include:
(a) the depositing of topsoil or feature rock imported to the site that is intended for use in garden landscaping, turf or garden bed establishment or top dressing of lawns and that does not significantly alter the shape, natural form or drainage of the land, or
(b) the use of land as a waste disposal facility.
place of public worship means a building or place used for the purpose of religious worship by a congregation or religious group, whether or not the building or place is also used for counselling, social events, instruction or religious training.
The Codes SEPP defines "flood control lot" (LB fol 173) to mean:
a lot to which flood related development controls apply in respect of development for the purposes of industrial buildings, commercial premises, dwelling houses, dual occupancies, multi dwelling housing or residential flat buildings (other than development for the purposes of group homes or seniors housing).
That SEPP also provides (LB fol 190):
2.29 Specified development
Earthworks and the construction or installation of a retaining wall or other form of structural support is development specified for this code if it is not carried out, constructed or installed on or in a heritage item or a draft heritage item, on a flood control lot or in an environmentally sensitive area.
2.30 Development standards
The standards specified for that development are that the development must:
(a) not be a cut or fill of more than 600mm below or above ground level (existing), and
(b) be located at least 1m from each lot boundary, and
(c) if it is carried out, constructed or installed in a heritage conservation area or a draft heritage conservation area - be located in the rear yard, and
(d) be located at least 40m from a waterbody (natural), and
(e) not redirect the flow of any surface water or ground water or cause sediment to be transported onto an adjoining property, and
(f) if it is a retaining wall or structural support for excavation or fill, or a combination of both:
(i) be not be more than 600mm high, measured vertically from the base of the development to its uppermost portion, and
(ii) be separated from any retaining wall or other structural support on the site by at least 2m, measured horizontally, and
(iii) be located at least 1m from any registered easement, sewer main or water main, and
(iv) have adequate drainage lines connected to the existing stormwater drainage system for the site, and
(g) if the fill is more than 150mm deep - not occupy more than 25% of the area of the lot, and
(h) if the fill is imported to the site - be free of building and other demolition waste, and only contain virgin excavated natural material (VENM) as defined in Part 3 of Schedule 1 to the Protection of the Environment Operations Act 1997, and
(i) if the land is in a rural zone - not be fill of more than 100 cubic metres on each lot.
...
The Codes SEPP makes specific provisions in regard to fences (2.35-2.36, LB fols 193-194), flagpoles (2.39-2.40, LB fol 195), and rainwater tanks (2.63-2.64, LB fols 196-197).
Section 68 of the LG Act, and its accompanying table (supplement to LB), makes clear that prior approval of Council must be obtained before any "manufactured home, moveable dwelling or associated structure" is installed on land. The LG Act dictionary defines the following:
manufactured home means a self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling:
(a) that comprises one or more major sections, and
(b) that is not a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013,
and includes any associated structures that form part of the dwelling.
moveable dwelling means:
(a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or
(b) a manufactured home, or
(c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition.
The Manufactured Home Reg (supplement to LB) makes special provision (in Part 3, commencing clause 70) regarding such installations outside manufactured home estates.
Chapter 9 of the DCP (EB tab 12) includes the following:
9.1 INTRODUCTION
This chapter of the DCP provides development controls for the preservation and management of certain trees and vegetation within the Hawkesbury LGA.
This chapter is in response to Clause 5.9 Preservation of Trees or Vegetation of LEP 2012. Under this clause, a person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy "prescribed" trees or vegetation, without development consent or a permit being granted by Council. This chapter of the DCP prescribes the trees and vegetation to which the clause applies by reference to species, size, location or other manner.
...
9.3.1 When Is Development Consent or a Permit Required?
Clause 5.9 of LEP 2012 requires Council to "prescribe" species or kinds of trees or vegetation that a person must not ringbark, cut down, top, lop, remove, injure, slash, poison or wilfully destroy without development consent or a permit being granted by Council.
The following trees and vegetation are "prescribed" for the purposes of Clause 5.9:
• any tree with a height greater than 4 metres, or a branch spread greater than 3 metres, or a trunk circumference greater than 500 mm at 1 metre above ground level. Excluding trees on land which is less than 1000m2 in area and zoned R1 General Residential, R2 Low Density Residential (not including land located in Kurrajong or Kurrajong Heights), or R3 Medium Density Residential
• native trees or native vegetation on land zoned RU1 Primary Production, RU2 Rural Landscape, RU4 Primary Production Small Lots, RU5 Rural Village, R5 Large Lot Residential, SP1 Special Activities, SP2 Infrastructure, RE1 Public Recreation, RE2 Private Recreation, E2 Environmental Conservation, E3 Environmental Management, E4 Environmental Living or on land shown on the Environmental Constraints Area Map or the Terrestrial Biodiversity Map of LEP 2012
• trees on Council's Significant Tree Register
• trees within 40m of a watercourse
[4]
The Facts
Under the LEP, a small area of the site is zoned SP2 Infrastructure. This comprises narrow strips of land on each side of Putty Road, identified for widening of that "classified road". "Almost the entirety" of the site is zoned E4 Environmental Living (EB tab11, and see Tp22).
It is alleged (in POC par 4) that, since about 11 October 2017, including since Robson J and I made our respective orders, on 6 and 16 July 2018, respectively, the following "development" (as defined in the Environmental Planning and Assessment Act 1979 ("EPA Act")) has been carried out on the land:
1. the clearing of vegetation, works which are regulated by the Vegetation SEPP. Details of clearing are found in POC8-16;
2. earthworks (as defined in the Dictionary to the LEP), including but not limited to creation of internal roads and excavation for installation on site of a septic tank (details in POC17-27);
3. the erection of structures, including:
1. a gate entranceway and fencing along the northern side of Putty Road, upon or adjacent to the subject land;
2. chain wire fencing along the southern side of Putty Road, upon or adjacent to the land;
3. a river entry ramp;
4. a septic tank;
5. three concrete slabs, upon which works to establish a shed, barn and stables have commenced; and
6. four flagpoles;
and
1. partial creation of driveway crossings, including related works and structures. on both the southern and northern sides of Putty Road.
(details in POC28-32)
It is also alleged (POC5) that:
(a) two moveable dwellings (as defined in Dictionary to the LG Act) have been installed on the Land [(details in POC33-36)]; and
(b) the respondents have threatened to use the Land for the carrying out of any and all religious activities of devotion, self-discipline, ritual baptism, inter-community prayers, contemplation and religious study and/or for the purposes of public worship.
[5]
Consideration
The Council has satisfied the Court that none of these works has been authorised by any of the necessary decisions of Council. Some may be prohibited, and others require consent, under the LEP, or from RMS, and many of them are significant and harmful.
None of them qualify for any relevant exemption under, e.g., the Codes SEPP.
All the works the subject of the summons and POC, therefore, infringe the relevant planning controls.
In addition, ch 9 of the DCP is also breached. It regulates vegetation clearance in the subject area, in accordance with the Vegetation SEPP, and the "terrestrial biodiversity" requirements of the LEP (see especially Pillon's affidavit at EB, tab2, Pattison's at tab 7, and the Terrestrial Biodiversity Map in EB tab 11, which shows the whole site as either "significant vegetation" or "connectivity between significant vegetation").
Some clearing (and possibly other) works have been done within 40m of the river.
Numerous photographs in evidence satisfy the Court that the vegetation was cleared in breach of the species listed, and measurements stipulated, in the relevant provisions ([24], [25] and [32] above). Sproule deposes in detail to the extent of land clearing and native tree removal (EB, tab 9).
Two moveable dwellings were also installed on the land without the approval of the Council, as is required by the LG Act and the Manufactured Homes Reg.
At least some of the works of which Council complains were done in contemplation of the intended use of the site as a "place of public worship", a use which itself requires development consent, for which no application has yet been made. So much is clear from the Respondents' correspondence.
I am satisfied that works continued after 6 July 2018, and beyond 16 July 2018, in breach of specific orders of this Court, confirmed on 16 July 2018. Work may have slowed after Collins intervened, just before the final hearing on 20 August 2018.
Council has been deprived of all proper opportunities to discharge its planning and development control functions in respect of this property, and the environmental damage caused by the unauthorized works is clear in all the tendered photographs.
Apart from not making appropriate applications to Council, and not co-operating with Council in its supervisory and enforcement functions, the Respondents have wrongly asserted in their correspondence to Council that their operations on the land are somehow exempt from the planning laws of the State, and outside the jurisdiction of this Court.
While it is true that registration with the ACNC does exempt some "Basic Religious Charities" from some of ACNC's own governance requirements (EB, tab 1, p44), there is no legislative or other authority for the wider exemptions the Respondents claim: see Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363, at [38]-[40]; and Jonathan v Kyogle Council [2012] NSWLEC 16, at [6] and [8].
[6]
Conclusion
The Court is satisfied that the POC have been substantiated, and notes, in respect of the three Respondents, that:
1. the Third Respondent company has accepted responsibility for carrying out the subject development, by its servants and/or agents, including the other two Respondents with whom it is closely associated;
2. the Second Respondent, Diaa Kara-Ali has carried out the subject development, by himself, his servants and/or agents, including the First Respondent (Khalifeh, EB tab 1, at [7]-[20]; Collins, EB tab 10, at [11]); and
3. the First Respondent, Mustapha Kara-Ali has admitted responsibility for carrying out and/or directing the subject development, by himself, his servants and/or agents, including the Second Respondent (EB, tab 4, fol 105, Robson J at [20], and Collins EB, tab 10, at [11]).
The Court is also satisfied, mainly from the written and oral evidence of Collins, that the Respondents intend to continue to erect structures on the land, and that, unless restrained, they will use the subject land for the carrying out of any and all "religious activities of devotion, self-discipline, ritual baptism, inter-community prayers, contemplation and religious study", and/or for the purpose of public worship, without the required development consent.
The Respondents cannot be allowed to continue to carry out significant, but unauthorised, development, in continuing disregard for (a) the important statutory responsibilities and functions of the Council, and (b) the significant actual adverse environmental impacts of their works.
Nor can they use the land for the purpose of a place of public worship, in the absence of a consent.
The Court acknowledges the sincerity of the followers of Diwan Al Dawla (see its rules at EB, tab 4, fols 114-120), and does not seek to interfere with their religious commitments and practices, as such. They may be assured that the Court adopted a "fine tooth comb" approach to all Council's claims and materials, including those emanating from the Respondents.
However, they are not, as they contend, exempt, in any way, from the planning laws of NSW, and they are not beyond the jurisdiction of the Courts.
It is unfortunate that the Respondents' dealings with Council have reached the level of unpleasantness disclosed in the evidence before me (including the confrontation depicted in Exhibit C2). Negotiations in good faith, and with the benefit of skilled legal advice on both sides, may have led to a less draconian outcome for the Respondents' project.
The Council has been careful to avoid seeking orders in respect of "exempt" or "acceptable" works, such as water tanks (Tp8, L10), and to safeguard persons and animals on site.
I can see no grounds at all to decline, in an exercise of the Court's discretion, to make any of the declarations and orders Council has sought.
Any delay in bringing these proceedings was a wasted opportunity afforded to the Respondents to regularize their dealings with the land and the Council, and in no way disentitles the Council to relief.
All declarations and orders sought by Council ought, and will, be made, including as to costs, in terms of the minutes handed up by Council on 20 August 2018.
[7]
Orders
The Orders of the Court are:
1. The Court declares that the clearing of vegetation and trees as deposed to in the Affidavits of Philip Khalifeh herein has been carried out in breach of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017.
2. The Court declares that the earthworks deposed to in the affidavits of Philip Khalifeh have been carried out in breach of section 4.2 of the Environmental Planning and Assessment Act 1979 as amended.
3. The Court orders that the Respondents and each of them are restrained from carrying out or authorising or permitting the carrying out of the clearing of trees and/or vegetation (as described in clause 9.3.1 of the Hawkesbury Development Control Plan) upon or within the land at 1855 Putty Road, Colo (Lot 1 in DP 1060733) ("the subject land") unless and until a permit or development consent has been granted theretofor.
4. The Court orders that the Respondents and each of them are restrained from carrying out or authorising or permitting the carrying out of any and all earthworks upon or within the subject land unless and until development consent has been granted theretofor.
5. The Court orders that the Respondents and each of them are restrained from using, permitting or suffering the subject land to be used for the carrying out of any and all religious activities of devotion, self-discipline, ritual baptism, inter-community prayers, contemplation and religious study or for the purposes of public worship unless and until development consent has been granted theretofor.
6. The Court orders that the Respondents and each of them are restrained from constructing structures upon the subject land or transporting structures to the subject land without development consent theretofor.
7. The Court orders that the Respondents must, within 28 days of the date of these orders, demolish and remove from the subject land:
1. the gate entranceway and fencing along the northern side of Putty Road which is upon or adjacent to the subject land;
2. the chain wire fencing along the southern side of Putty Road which is upon or adjacent to the subject land;
3. the four flagpoles;
4. the three concrete slabs, any buildings or structures erected or partially erected thereon and any associated services; and
5. the river entry ramp.
1. The Court orders that the Respondents must, within 14 days of the date of these orders, remove the two moveable dwellings, septic tank and associated services that have been installed on the subject land in association with the above building works.
2. The Court orders that the Respondents must, within 42 days of the date of these orders, provide to the Applicant:
1. engineering, landscape and revegetation plans prepared by suitably qualified experts for the restoration and rehabilitation of the subject land to a standard acceptable to the Applicant;
2. applications under the Roads Act for the driveway crossings and related works and structures partially created on both the southern and northern sides of Putty Road as referred to in the Affidavit of Philip Khalifeh sworn 26 June 2018;
3. approvals from Roads and Maritime Services for the position of the driveway crossings as referred to in the Affidavit of Philip Khalifeh sworn 26 June 2018; and
4. a survey report showing the location and positioning of the gate entranceway and fencing along the northern and southern sides of Putty Road adjacent to the subject land showing the position of that gate and fencing in relation to the boundaries of the land and to the zone boundaries.
1. The Court orders that the Respondents are to pay the Applicant's costs of these proceedings on the ordinary basis, as agreed or assessed.
2. The Court grants the parties liberty to:
1. apply for any further or other orders (including orders revoking, varying, supplementing or replacing these orders, in whole or in part) upon sufficient cause, such as (but not limited to) unforeseen or changed circumstances being shown; and
2. restore the matter generally on three working days' notice.
In view of the liberty in Order (11) above, the exhibits will be retained in the Court file for the present, subject to the right of the Applicant to apply for their return at any time.
[8]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 August 2018