Stockland Has Not Breached Condition A3 of the Project Approval
48By condition A3 of the Project Approval, Stockland is required to carry out the development at Sandon Point in accordance with the 2007 EAR, its appendices and drawing SKO9. As it transpired, this is exactly what it did.
49The 2007 EAR states that Stockland is the "Applicant" for the purposes of the Major Project Application and that the Application principally relates to its land but that it also incorporates land owned by others, including "Cookson Plibrico for earthworks and the road along the common boundary between Stages 3 and 4 of Stockland's land and Lot 2, DP 224431", namely, or the ARV land. This was repeated later in section 2.2 dealing with "Land Ownership and Legal Description".
50The 2007 EAR noted, in section 3.1, that the proposed project comprised, as a key element, a boundary readjustment between the AIR land and the ARV land "to ensure that the roads forming part of the subdivision will be located wholly within Stockland's land holdings". Further detail on the boundary readjustment was provided for in section 3.5.
51One of the appendices to the 2007 EAR was a document entitled Construction and Traffic Management Plan, Sandon Point North Residential Subdivision, Sandon Point, prepared by Cardno in July 2007. In section 2.4 "Pedestrian Movements" the Plan stated that:
A walking track known as Wilkies Walk runs along the southern boundary of stages 3 and 4. This track currently crosses private land...
During the construction of stages 3 and 4 access along Wilkies Walk will be monitored for safe pedestrian passage... Alternative pedestrian routes around the development site, may be provided in the short term, should access be denied along the current route location.
52On 8 September 2010 the construction certificate for bulk earthworks was issued for Stages 1-6 as required by condition A6 of the Project Approval. The certificate was based on drawing SK09 and certified the earthworks on the boundary of the AIR and the ARV lands and on the northern part of the ARV land. So much so was expressly stated by the description of the property in the certificate. The certificate authorised the earthworks on the ARV land for the purpose of the construction of the road. Mr Kennedy's challenge to the validity of the construction certificate was dismissed by this Court in Kennedy v Stockland Developments Pty Ltd (No 4) [2012] NSWLEC 3 (at [156]-[157]).
53Any uncertainty as to the scope of the certification provided by the construction certificate dated 8 September 2010 was rendered otiose when, on 27 October 2011, Stockland obtained a subsequent further construction certificate authorising the carrying out of civil works for Stages 3-4 of the development, including the construction of the shared road and the temporary pathway.
54It is clear, therefore, that Stockland has been granted the requisite statutory approvals for the construction of the road and the temporary pathway associated with Stages 3-4 of the approved development.
55The status, if any, of the 'permission' granted by the council on 17 October 2011 to relocate Wilkies Walk to the proposed temporary pathway is, therefore, irrelevant.
56According to Mr Braithwaite, the temporary pathway is located at its farthest point approximately 21.5m to the south of Wilkies Walk on ARV land. This is consistent with a survey conducted by Mr Craig Robson, a registered surveyor, of the temporary pathway and Wilkies Walk. Although Mr Braithwaite was cross-examined on these distances in an attempt to suggest that the pathway intruded into the ARV land to a far greater extent, I accept his evidence.
57Mr Braithwaite estimates that the temporary pathway is between 2.5-3m wide. It has been formed using gravel deposited in the area levelled by a small excavator. Wilkies Walk, according to Mr Robson's survey, is between 1.75-3.6m in width. Again I accept this evidence in the absence of anything to the contrary.
58Mr Kennedy submitted, and cross-examined Mr Braithwaite to this effect, that the earthworks and construction of the road were not in accordance with drawing SK09. This, according to Mr Kennedy, was evident from the fact that no survey had been undertaken prior to, or during, the earthworks necessary for the building of the road.
59But as a matter of law, no survey was required to be undertaken by Stockland under either the Concept Approval or Project Approval. Moreover, as a matter of fact, a survey was prepared by Mr Robson.
60There is, in addition, no cogent evidence demonstrating that the earthworks carried out by Stockland in constructing the road, including the building of the temporary path, travelled beyond 21.5m south of Wilkies Walk consistent with the survey. The claim by Mr Kennedy that the earthworks for the construction of the road were carried out 25m into the ARV land is not only unsustainable on the evidence, it is, moreover, of no relevance given that the Project Approval does not stipulate the extent to which Stockland may carry out works on the ARV Land provided, of course, the works are for the purpose of constructing the road.
61I also reject the argument that the Project Approval only approved "minor road works" which could not comprise the shared road. There is no basis either as a matter of express construction, or by implication, that condition A3 (or indeed any of the impugned conditions of the Concept or Project Approval) ought to be read down in the manner contended for by Mr Kennedy. The Project Approval provides consent for the construction of the road in accordance with drawing SK09. The evidence does not demonstrate that the building works went beyond these parameters or those contained in the 2007 EAR.
62For similar reasons I do not accept the submission that the boundary readjustment required by condition A1 4) only permitted "minor" boundary adjustments and not those necessary to ensure that the shared road would ultimately be located wholly on Stockland land.
63In his affidavit Mr Braithwaite also deposed to the fact that Stockland was not carrying out any development in the Turpentine Forest or engaging in building works "which have any effect on the Forest". To ensure this, Stockland demarcated the edge of the Forest with brightly coloured temporary fencing that has been positioned "clear of the Turpentine Forest area". In particular, the temporary pathway does not, according to Mr Braithwaite's evidence, intrude into the Turpentine Forest.
64Mr Braithwaite's evidence was challenged in an attempt to demonstrate that he was incorrect and that there had been an incursion into the Forest by the works. In the absence of any reliable evidence to the contrary, I accept that the works the subject of these proceedings have not intruded into or impacted upon the Turpentine Forest. In this regard I found Mr Van Wijk's evidence to be equivocal especially in the absence of anyone having observed Stockland trespassing into the Turpentine Forest in carrying out the works. The aerial photographs dated 14 September and 27 November 2011 did not, in my view, assist Mr Kennedy in proving this contention.
65I further note that according to Mr Braithwaite, once Stages 3 and 4 have been completed, Stockland will revegetate the area along the shared road and what was previously Wilkies Walk.
66Finally, and as noted above, as required by condition A1 4) of the Project Approval, once the new road is constructed, Stockland will lodge an application for a boundary readjustment of the AIR site southwards into the ARV land to ensure that the road will be located entirely on Stockland land. No timeframe is stipulated for this boundary readjustment to occur, but, as Mr Braithwaite anticipates, it is envisaged that the boundary adjustment plan will have been lodged for registration in or about March of this year.
67For these reasons, Mr Kennedy's claim that condition A3 of the Project Approval has been breached must be rejected. On the contrary, the impugned works have been carried out in conformity with that condition.