Kennedy v Stockland Developments Pty Ltd & Anor - [2012] NSWLEC 3 - NSWLEC 2011 case summary — Zoe

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Kennedy v Stockland Developments Pty Ltd & Anor

[2012] NSWLEC 3

Land and Environment Court (NSW)|2011-06-08|Before: Sheahan J, Mr J, Advocacy Network J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2011-06-08

Before

Sheahan J, Mr J, Advocacy Network J

Catchwords

(2005) 138 LGERA 207 Lesnewski v Mosman Municipal Council and Anor [2004] NSWLEC 99 Minister for Planning v Walker [2008] NSWCA 224
(2008) 161 LGERA 423 Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213
(2008) 160 LGERA 20 Walker v Minister for Planning [2007] NSWLEC 741

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Original judgment source is linked above.

Catchwords

(2005) 138 LGERA 207 Lesnewski v Mosman Municipal Council and Anor [2004] NSWLEC 99 Minister for Planning v Walker [2008] NSWCA 224(2008) 161 LGERA 423 Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213(2008) 160 LGERA 20 Walker v Minister for Planning [2007] NSWLEC 741

Judgment (48 paragraphs)

[1]

Odgers, Stephen: "Uniform Evidence Law" (Ninth edition, 2010) Category: Principal judgment Parties: Roy "Dootch" Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy (Applicant) Stockland Developments Pty Limited (First Respondent) NSW Minister for Planning (Second Respondent) Representation: Mr A Oshlack, Agent, c/o Indigenous Justice Advocacy Network (Applicant) Mr J Robson SC with Mr H El-Hage (First Respondent) Submitting Appearance (Second Respondent) N/A (Applicant) Herbert Geer (First Respondent) Director of Legal Services, Department of Planning (Second Respondent) File Number(s): 40880 of 2010

[2]

Introduction 1This is one of the latest in a series of class 4 challenges concerning a " Major Project " at Sandon Point. It concerns the land known as Lot 2 DP 595478, Lot 235 DP 1048602, Lot 1 DP 1024490, Lot 1 DP 204631, Lot 22 DP 835200, Lot 101 DP 268549, and Lots 1 & 2 DP 224431, and land within the adjoining Railway Corridor (see Exhibit S3 , tab 3 at p13) ('the Site'), with total area of 18.7ha. 2The applicant, Roy 'Dootch' Kennedy, commenced these proceedings on 29 October 2010 , on behalf of the Sandon Point Aboriginal Tent Embassy, in his capacity as the spokesperson and Ambassador of the Embassy, and as a person of the Yuin Nation. He has chosen to be represented by an agent lacking legal qualifications, but an agent with extensive advocacy experience in matters of this kind. He bears the onus of proof: Ku-Ring-Gai Council v Faigan [2007] NSWLEC 767. 3As this challenge was finally pleaded, the applicant sought several declarations regarding breaches of conditions of consent, invalidity of construction certificate(s), doing work without a valid construction certificate or in excess of development consent, failing to retain vegetation and/or avoid adverse impacts on adjoining land from water run-off, wilfully or negligently causing spills without authority and which are likely to do environmental harm, and harming an Aboriginal place. It also sought an appropriate restraining order, and other orders, including as to remediation. 4The second respondent, the NSW Minister for Planning ('the Minister') filed a submitting appearance, save as to costs, on 4 November 2010 , and the hearing was conducted on the basis of amended Points of Claim ('APOC'), and the first respondent's amended Points of Defence ('APOD'). The APOD joined issue, in terms, with the overwhelming majority, if not all, of the APOC, and pleaded " discretion " as a ground for refusing relief, " even if the applicant is able to establish any of its" challenges. 5The court received a huge amount of documentation, a substantial amount of it admitted into evidence subject to the applicant's establishing its relevance. Under s 135 of the Evidence Act 1995 the court should lean towards admitting evidence about which there is argument, provided that its probative value is not substantially outweighed by any " dangers " it presents (see Odgers, 9th edition, p727). 6Not all deponents of affidavits admitted into evidence were required for cross-examination. However, oral evidence was given on the applicant's behalf by his surveyor, David Tanner, but his environmental witness, Renee Dowse, refused to attend court for cross-examination, and her affidavit evidence was rejected. Stockland relied upon oral evidence from its senior development manager, Michael Braithwaite, its development manager, James Clouten, a site auditor, James Davis, and a private certifier, Patrick McNamara. (Both Braithwaite and McNamara are qualified surveyors, and McNamara was appointed as the certifying authority ('CA') for the project).

[4]

Other Relevant Challenges 15The applicant brought proceedings (40129 of 2010) challenging the validity of the Minister's 29 November 2009 decision to grant the MP Approval. Biscoe J handed down his judgment on 26 July 2010: Kennedy v NSW Minister for Planning [2010] NSWLEC 129; (2010) 176 LGERA 395, refusing the applicant' s challenge. 16The applicant also brought proceedings (40742 of 2010) challenging the validity of approvals Mod 1 and Mod 2, and seeking: (a)declarations that the two Modification Approvals are invalid; (b)an injunction restraining Stockland from undertaking any activity on the land that may impact on the environment in reliance upon the Modification Approvals; (c)an order for remediation, pursuant to s 124 of the EPA Act , for damage caused 'by earthworks, vegetation clearing and desecration of a significant Aboriginal Cultural Heritage Place'. 17On 21 September 2010 (see Kennedy v NSW Minister for Planning [2010] NSWLEC 177), Biscoe J ordered that the proceedings challenging Mod 1 and Mod 2 be expedited, and that Stockland and its employees, contractors, sub-contractors, servants or consultants "be restrained from undertaking any activity on the land hatched in red on the plan which is Exhibit 4" (at [40]). 18Biscoe J handed down his judgment on that challenge on 19 November 2010 (see Kennedy v NSW Minister for Planning [2010] NSWLEC 240 ). His Honour dismissed the proceedings, but his judgment provides extensive detail regarding the history of the Site, which need not be repeated in full here. I adopt His Honour's summary. 19The present proceedings (40880 of 2010) were commenced on 29 October 2010. I heard them between 27 April and 8 June 2011, and reserved this decision. 20On 27 October 2011 , the applicant commenced further proceedings (40977 of 2011) against Stockland. During argument before me in those proceedings, regarding (1) interlocutory relief, (2) possible reopening of these present proceedings, (3) possible joinder of ARV as a respondent to the later proceedings, and (4) unauthorised entry of relevant lands, the applicant decided not to pursue the question of reopening these proceedings. Three judgments have already been delivered in matter 40977, which is yet to have its final hearing - See Kennedy v Stockland Developments Pty Ltd [2011] NSWLEC 185 per Biscoe J, (No.2) [2011] NSWLEC 186 per myself, and (No. 3) [2011] NSWLEC 249 per Pepper J.

[6]

The contentions 25The applicant alleges in the current proceedings that Stockland failed to comply with various conditions of the MP Approval; that "any" of the construction certificates held by Stockland were invalid; and that Stockland contravened both s 116(1) of the Protection of the Environment Operations Act 1997 (' POEO Act ') and s 86(4) of the National Parks and Wildlife Act 1974 (' NPW Act '). He also sought a declaration that " the approval " is nugatory (APOC pars 1-6). 26The applicant makes the following particular claims in the APOC: (1)"...[Stockland] had failed to comply with Part B - 'Prior to Issue of Construction Certificate'" (APOC, par 1); (2)"...any purported construction certificate held by [Stockland] in accordance with the approval is invalid, void and of no effect" (APOC, par 2); (3)further, and/or in the alternative, Stockland breached conditions B37(1) and B13(2) of the MP Approval (APOC, par 3); (4)Stockland wilfully or negligently caused substances to leak, spill or otherwise escape from the Site in a matter that caused harm to the Sandon Point Aboriginal Place, thereby contravening s 116(1) of the POEO Act and breaching s 86(4) of the NPW Act (APOC, par 4); (5)the MP Approval is nugatory (APOC, par 6) 27Stockland makes the following general submissions (par 1.6): A. The Court should reject the Applicant's claims that Stockland has failed to comply with conditions A4, B9(h), B11(1), B13(2), B28, B31, B37, B45, B46 of the [MP] Approval; B. The Court should reject the Applicant's claims that Stockland has breached s. 76A of the [EPA Act] , s. 116 of the [POEO Act] , s. 86(4) of the [NPW Act] ; C. In any event, even if the Applicant could establish any such breach, the Court would not, as a matter of discretion, grant the relief sought by the Applicant or any other relief. 28Stockland submits (par 3.7) that work commenced on the AIR site, in September 2010, following the completion of Stage 5 works (see also the affidavit of Braithwaite, filed 19 April 2011, at par 21).

[7]

Relief sought 29As pleaded in the APOC, the applicant now seeks: (a) the following declarations : (1)Stockland breached condition A4 of the MP Approval and ss 76A(1)(a) and (b) of the EPA Act by undertaking work outside the Site, as demarcated in the Concept Plan, without valid development consent, construction certificates, modification of Part 5 approval or authority that would permit such work (APOC, pars 31-32); (2)Stockland breached condition B13(2) by exceeding the 5ha limit on clearing and excavation of the Site (APOC, par 35); (3)Stockland breached condition B28(a) "...by carrying out work without a valid construction certificate before obtaining approval from [Wollongong City Council ('Council')]" pursuant to s 68 of the Local Government Act 1993 (' LG Act ), and/or Stockland breached condition B28(b) "...by carrying out below ground works for the first stage of the development without an approval from [Council]" (APOC, pars 36-37); (4)Stockland breached condition B31 "...by failing to ensure there are no adverse effects to adjoining properties or upon the land resulting from flood or storm water run off" (APOC, par 38); (5)Stockland breached conditions B37(1) and (2) by "virtually clearing the Woodland [sic] Creek riparian zone" prior to submitting detailed design plans to the Council, and clearing the riparian zones of Woodlands Creek and Hewitts Creek without a valid construction certificate and prior to submitting plans to the Council for approval (APOC, pars 39-40); (6)Stockland breached conditions B45 and B46 "...by making no effort to retain significant vegetation on the site or erecting suitable fencing around all tree dripline areas for all trees capable of being retained...prior to the commencement of works" ; (7)Stockland breached condition B9(h) by failing to provide geotechnical investigations for contaminants where the excavation exceeds 2 m (APOC, par 42); (8)Stockland failed to comply with condition B11(1) by failing to submit a Remedial Action Plan (' RAP' ) and Hazardous Materials Survey (' HMS' ), accompanied by a statement from an accredited auditor (APOC, par 43); (9)Stockland breached s 116(1) of the POEO Act "...by causing the unlicenced discharge of polluted water" from the Site (APOC, par 44); and (10)as a result of the discharge of polluted water, Stockland caused harm and desecration to the Sandon Point Aboriginal Place, thereby breaching s 86(4) of the NPW Act . and (b)the following orders : (1)An interlocutory and final order restraining Stockland, its employees, contractors, sub-contractors, servants or consultants from undertaking any activity on the Site, and other areas outside the Concept Plan but in relation to the Approval, that may impact on the environment (APOC, par 5); and (2)remediation of the Site (APOC, par 6).

[8]

Interlocutory proceedings 30Before proceeding to set out relevant statutory provisions, and discuss the parties' contentions, it is necessary to record that three interlocutory judgments have already given by Pain J in this matter (40880 of 2010), all after 5 November 2010, on which date I granted leave to the applicant to issue a subpoena to the Council, and gave other case management directions. 31Firstly, the applicant unsuccessfully sought an urgent interlocutory injunction to restrain Stockland and related parties from working on the Site. In Kennedy v Stockland Development Pty Ltd and Anor [2010] NSWLEC 250, Pain J was not satisfied that the threshold question, whether there was a serious question to be tried, had been met (at [38]). Stockland complains that, despite this ruling, the applicant's allegations regarding B13(2), B37(1), B45, B46, s 116 of the POEO Act, and s 86(4) of the NPW Act remain in the APOC (see Stockland's subs, pars 2.5-2.6). 32Stockland then sought from Her Honour an order that the applicant provide security for costs for the sum of $20,000, and if such an order was not made, then an order be made dismissing the proceedings. The order for security for costs was granted: Kennedy v Stockland Development Pty Ltd & Anor (No 2) [2011] NSWLEC 10. 33Subsequently, Pain J heard two notices of motion filed by the applicant, who primarily sought leave to rely on "substantive changes" to the APOC (at [2]). Pain J (1) granted leave for the applicant to file the APOC, but did not allow further particulars in relation to condition B31 (at [7]); (2) allowed amendments to the particulars in relation to B45 and B46 (at [8]); and (3) allowed the following new grounds: breach of condition B9(h), subject to the inclusion of material facts (at [14]), and breaches of conditions B11(1) and (2), subject to clarification (at [16]). Pain J also made orders for the applicant's surveyor, Tanner, "to take measurements concerning the extent of earthworks on the AIR site" (at [25]): Kennedy v Stockland Development Pty Ltd & Anor (No 3) [2011] NSWLEC 16.

[9]

The legislative framework regarding Part 3A approvals 34It is unnecessary to set out or discuss the whole of the legislative scheme in Part 3A of the EPA Act , "Major Infrastructure and other projects", as it then was, but certain sections are particularly apposite to these proceedings and should be noted. 35As Stockland discusses in its submissions, a proponent seeking approval for a Major Project under Pt 3A of the EPA Act was required to prepare an EA pursuant to ss 75F and 75H. This enabled the Director-General to prepare a separate Environmental Assessment Report ('EAR') for the Minister, pursuant to s 75I. The Minister then determined whether to approve the project, pursuant to s 75J. The relevant provisions of the EPA Act are as follows: 75F Environmental assessment requirements for approval (1) The Minister may, after consultation with the Minister for the Environment, publish guidelines in the Gazette with respect to environmental assessment requirements for the purpose of the Minister approving projects under this Part (including levels of assessment and the public authorities and others to be consulted). (2) When an application is made for the Minister's approval for a project, the Director-General is to prepare environmental assessment requirements having regard to any such relevant guidelines in respect of the project. (3) The Director-General is to notify the proponent of the environmental assessment requirements. The Director-General may modify those requirements by further notice to the proponent. (4) In preparing the environmental assessment requirements, the Director-General is to consult relevant public authorities and have regard to the need for the requirements to assess any key issues raised by those public authorities. (5) The environmental assessment requirements may require an environmental assessment to be prepared by or on behalf of the proponent in the form approved by the Director-General. (6) The Director-General may require the proponent to include in an environmental assessment a statement of the commitments the proponent is prepared to make for environmental management and mitigation measures on the site. (7) This section is subject to section 75P. Note. Section 75P enables the Minister to determine environmental assessment requirements for approval to carry out the project or any stage of the project when giving approval to a concept plan for the project under Division 3. ... 75H Environmental assessment and public consultation (1) The proponent is to submit to the Director-General the environmental assessment required under this Division for approval to carry out the project. (2) If the Director-General considers that the environmental assessment does not adequately address the environmental assessment requirements, the Director-General may require the proponent to submit a revised environmental assessment to address the matters notified to the proponent. (3) After the environmental assessment has been accepted by the Director-General, the Director-General must, in accordance with any guidelines published by the Minister in the Gazette, make the environmental assessment publicly available for at least 30 days. (4) During that period, any person (including a public authority) may make a written submission to the Director-General concerning the matter. (5) The Director-General is to provide copies of submissions received by the Director-General or a report of the issues raised in those submissions to: (a) the proponent, and (b) if the project will require an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997 -the Department of Environment, Climate Change and Water, and (c) any other public authority the Director-General considers appropriate. (6) The Director-General may require the proponent to submit to the Director-General: (a) a response to the issues raised in those submissions, and (b) a preferred project report that outlines any proposed changes to the project to minimise its environmental impact, and (c) any revised statement of commitments. (7) If the Director-General considers that significant changes are proposed to the nature of the project, the Director-General may require the proponent to make the preferred project report available to the public. 75I Director-General's environmental assessment report (1) The Director-General is to give a report on a project to the Minister for the purposes of the Minister's consideration of the application for approval to carry out the project. (2) The Director-General's report is to include: (a) a copy of the proponent's environmental assessment and any preferred project report, and (b) any advice provided by public authorities on the project, and (c) a copy of any report of the Planning Assessment Commission in respect of the project, and (d) a copy of or reference to the provisions of any State Environmental Planning Policy that substantially govern the carrying out of the project, and (e) except in the case of a critical infrastructure project-a copy of or reference to the provisions of any environmental planning instrument that would (but for this Part) substantially govern the carrying out of the project and that have been taken into consideration in the environmental assessment of the project under this Division, and (f) any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate, and (g) a statement relating to compliance with the environmental assessment requirements under this Division with respect to the project. 75J Giving of approval by Minister to carry out project (1) If: (a) the proponent makes an application for the approval of the Minister under this Part to carry out a project, and (b) the Director-General has given his or her report on the project to the Minister, the Minister may approve or disapprove of the carrying out of the project. (2) The Minister, when deciding whether or not to approve the carrying out of a project, is to consider: (a) the Director-General's report on the project and the reports, advice and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and (b) if the proponent is a public authority-any advice provided by the Minister having portfolio responsibility for the proponent, and (c) any findings or recommendations of the Planning Assessment Commission following a review in respect of the project. (3) In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit. (4) A project may be approved under this Part with such modifications of the project or on such conditions as the Minister may determine. (5) The conditions of approval for the carrying out of a project may require the proponent to comply with any obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F). 36Usefully, Stockland outlined (subs, par 4.2), for the assistance of the court in interpreting the conditions attaching to the approval given under Part 3A, the following principles established by relevant authorities and accepted by litigants: A. The document setting out the consent is a document in rem, which denotes a consent authority's unilateral act, rather than a bilateral agreement between the parties: [ Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245], at [41]. B. Conditions of consent should be interpreted in a way which preserves their validity and avoids uncertainty: Westfield , at [40]; C. Courts try to avoid uncertainty by adopting a construction which gives statutory instruments and decisions practical effect: [ Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Ltd [2008] NSWLEC 185; (2008) 160 LGERA 20 ], at [66]; D. In general terms, the Court looks to the terms of the consent itself to determine what had been approved and to interpret the conditions of consent: Auburn Municipal Council v Szabo (1971) 67 LGERA 427, at 433-434; E. The application for approval, plans and other documents which are incorporated into the consent explicitly or implicitly may also be taken into account in construing the consent: Shell Company of Australia Ltd. v Parramatta City Council [No. 2] (1972) 27 LGRA 102, at 107; F. Similarly, the Court can have regard to objective circumstances, including the physical circumstances and matters relating to title: Westfield, at [41]; G. The matrix relevant to construction may include the environmental assessment report prepared in relation to the consent: [ Baulkham Hills Shire Council v Ko-veda Holiday Park Estate [2009] NSWCA 160; (2009) 167 LGERA 395 (" Ko-veda ")], at [100], per Tobias JA (Young JA and Bergin CJ in Eq agreeing). 37Stockland submits, and I accept, that, in construing the relevant sections of the EPA Act , "[a] degree of flexibility and practicality is often required to be retained in the conditions of approval", so that unexpected occurrences on a site may be dealt with accordingly (subs, par 4.5). In this respect I, like Stockland, rely on Preston ChJ's judgment in Ulan Mines (cited in [36]C above), where His Honour stated: [78] Retention of practical flexibility, leaving matters of detail for later determination, and delegation of supervision of some stage or aspect of the development, may all be desirable and be in accordance with the statutory scheme: see Scott v Wollongong City Council (1992) 75 LGRA 112 at 118; Transport Action Group Against Motorways v Roads and Traffic Authority (1999) 46 NSWLR 598 at 629 [117]-630 [122]; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at 292 [55] and Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 (8 September 2006) at [89]. ... [80] The scale of the projects subject to approval under Pt 3A, which are often complex, extensive and multi-stage projects, make the retention of such flexibility appropriate and inevitable, a point also made in relation to other large scale projects under Pt 5 of the Act (see Transport Action Group Against Motorways v Roads and Traffic Authority (1999) 46 NSWLR 598 at 630 [124]-631 [125]) and under Pt 4 (see Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at 292 [54]).

[12]

(1) Alleged breach of condition A4 and s 76A 40The applicant submitted that Stockland undertook work outside the Site for MP06_0094, thereby breaching condition A4 of the MP Approval (applicant's subs, par 30). Condition A4 states ( Exhibit S3 , tab 3 at p17): A4 Concept Plan Approval The Proponent shall comply with all relevant conditions of the approved "Concept Plan for Redevelopment of Sandon Point MP06_0094", approved by the Minister 21 December 2006 including any approved modifications to the Concept Plan. 41The applicant submitted that, in breaching this condition, Stockland has also breached " s 76(1)(b) (sic) of the [EPA Act] by carrying work not in accordance with valid consent, construction certificate, modification or Part 5 approval or authority " (subs, par 32). I have taken this submission to refer to s 76 A (1)(b). The applicant also alleges breach of s 76A(1)(a) of the EPA Act (par 36). The section provides: 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. 42The applicant submitted that Stockland was statute barred from work within community land encompassing Thomas Gibson Park. This submission is made on the basis that a section of land, approximately 0.05ha, was allegedly cleared and excavated without the approval required under ss 25-47F of the LG Act , dealing with the classification and management of public land as "operational " or " community ". 43Mr Oshlack (appearing for the applicant) described the land in contention as being the land on the northern and southern sides of the road dividing the Park. The northern land was not made " operational ", and was not subject to any approval, but was allegedly "fenced and subsequently cleared and excavated or filled" by Stockland (T27.05.11, p66, LL48-49). The isolated area south of the road, although operational, "was not subject to any development approval but has been cleared" (T27.05.11, p67, LL2-3). 44This submission is made regardless of whether or not approval was granted on 26 May 2009 to clear the land for the purpose of constructing an access road. It is alleged that both these areas of the Park - the operational and community areas - were not subject to the MP Approval because they were not embraced by the CP Approval. 45The applicant specifically identifies the failure of Stockland to provide a Plan of Management pursuant to s 36 of the LG Act , which states: 36 Preparation of draft plans of management for community land (1) A council must prepare a draft plan of management for community land. (2) A draft plan of management may apply to one or more areas of community land, except as provided by this Division. (3) A plan of management for community land must identify the following: (a) the category of the land, (b) the objectives and performance targets of the plan with respect to the land, (c) the means by which the council proposes to achieve the plan's objectives and performance targets, (d) the manner in which the council proposes to assess its performance with respect to the plan's objectives and performance targets, and may require the prior approval of the council to the carrying out of any specified activity on the land. (3A) A plan of management that applies to just one area of community land: (a) must include a description of: (i) the condition of the land, and of any buildings or other improvements on the land, as at the date of adoption of the plan of management, and (ii) the use of the land and any such buildings or improvements as at that date, and (b) must: (i) specify the purposes for which the land, and any such buildings or improvements, will be permitted to be used, and (ii) specify the purposes for which any further development of the land will be permitted, whether under lease or licence or otherwise, and (iii) describe the scale and intensity of any such permitted use or development. (4) For the purposes of this section, land is to be categorised as one or more of the following: (a) a natural area, (b) a sportsground, (c) a park, (d) an area of cultural significance, (e) general community use. (5) Land that is categorised as a natural area is to be further categorised as one or more of the following: (a) bushland, (b) wetland, (c) escarpment, (d) watercourse, (e) foreshore, (f) a category prescribed by the regulations. (6) The regulations may make provision for or with respect to the categorisation of community land under this section, including: (a) defining any expression used in subsection (4) or (5), and (b) prescribing guidelines for the categorisation of community land and the effect of any guidelines so prescribed. 46Further, the applicant alleges that Stockland failed to make the land " operational " pursuant to ss 27-30. Those sections provide as follows: 27 How are the classifications made? (1) The classification or reclassification of public land may be made by a local environmental plan. (2) The classification or reclassification of public land may also be made by a resolution of the council under section 31, 32 or 33. 28 Forwarding of planning proposals to Minister for Planning (1) A council may not forward a planning proposal to the Minister for Planning under section 56 of the Environmental Planning and Assessment Act 1979 which includes a proposal to classify or reclassify public land that is not owned by the council unless the council has obtained the consent of the owner to the proposed classification or reclassification of public land. (2) A local environmental plan that classifies or reclassifies public land may apply to one or more areas of public land. 29 Public hearing into reclassification (1) A council must arrange a public hearing under section 57 of the Environmental Planning and Assessment Act 1979 in respect of a planning proposal under Part 3 of that Act to reclassify community land as operational land, unless a public hearing has already been held in respect of the same matter as a result of a determination under section 56 (2) (e) of that Act. (2) A council must, before making any resolution under section 32, arrange a public hearing in respect of any proposal to reclassify land as operational land by such a resolution. 30 Reclassification of community land as operational (1) A local environmental plan that reclassifies community land as operational land may make provision to the effect that, on commencement of the plan, the land, if it is a public reserve, ceases to be a public reserve, and that the land is by operation of the plan discharged from any trusts, estates, interests, dedications, conditions, restrictions and covenants affecting the land or any part of the land, except for: (a) any reservations that except land out of a Crown grant relating to the land, and (b) reservations of minerals (within the meaning of the Crown Lands Act 1989 ). (2) A provision referred to in subsection (1) has effect according to its tenor, but only if the Governor has, before the making of the local environmental plan, approved of the provision.

[13]

(2) Alleged breach of condition B9(h) 47Condition B9(h) states: B9 Geotechnical Report - construction certificate A final geotechnical report, prepared by a suitably qualified and experienced geotechnical engineer, is to be submitted to the Principle (sic) Certifying Authority (CA) prior to the issue of the Construction Certificate. ... (h) Details of further geotechnical investigations for contaminants where excavation is proposed to exceed 2m in depth. 48The applicant alleges that Stockland breached this condition because the geotechnical investigations were not provided, and the EAW reports attached to Mr Davis's affidavit - namely five Validation Site Reports from 2001 ('VSR'), a RAP from 2000, and a Contaminated Site Assessment from 1999 - were incomplete. 49In particular, the applicant alleged that the EAW Contamination Report "initially confirmed the presence of a wide range of possible contaminant sources" (subs, par 42), and that each VSR "showed the presence of contamination and despite the testing regime employed contained the proviso '...there remains a small risk that small pockets of contamination may have been located in areas not sampled' " (par 51, citing Exhibit S5 at 91, 182, 256, 326, 416). After identifying from the VSRs specific contaminants contained on the various sites, the applicant concluded that "despite the remediation effort contamination remains" (par 57). 50The applicant then turned to the April 2007 EAW report prepared for Stockland (see Exhibit K7 at tab 2), and submitted that the report had "summarised the previous Assessments and Validation Reports to reach a conclusion that the Site was suitable for the intended residential purposes" (par 58). The applicant took the court to that part of the report which identified that the depth of the excavations from the "new plan" exceeded those recorded in the previous reports, and as a result, further investigation and validation works would be necessary (par 59). 51The applicant argued that this conclusion meant that, although significant contamination was unlikely, the potential for locating contamination in further excavated areas could increase (par 60). Hence, Stockland breached condition B9(h) by failing to provide the required reports, despite carrying out works of a depth greater than 2m. 52According to the applicant, Stockland engaged Douglas Partners to conduct a review of the reports to date and provide a response regarding what, if anything, was required for condition B9(h) to be met. 53The applicant notes that, on 21 June 2010, Douglas Partners commented that the Bulk Earthworks Plans stages 1-4 and 6 didn't take into account additional excavation required. The applicant refers to a "letter" from Douglas Partners to Stockland (see Exhibit K2 , pp 512-515). Stockland defines this same document as a "report" (see Exhibit S3 , tab 16). 54On 5 August 2010, Douglas Partners wrote to Stockland (see Exhibit K2 , pp 516-520, or Exhibit S3 , tab 15), and commented that the site auditor and EAW had failed to specify that excavations are suitable only for the top 2m, and that excavations deeper than this were not covered by the assessment or audit. It was ultimately concluded that "...no further contamination investigation is considered warranted" (par 63, p4 of 5). 55Douglas Partners wrote to Stockland again on 7 September 2010, advising that no further contamination investigation was necessary (see Exhibit K2 , pp 525-527, or Exhibit S3 , tab 17). 56The applicant submitted that these "letters" to Stockland from Douglas Partners "are not valid legal grounds by which the condition may not be complied with" (par 66). The applicant further alleged that Stockland undertook "multiple excavations" during the period 20 September 2010 to 4 April 2011, at depths greater than 2m, by reference to the "bulk earthwork plans" (par 67), and that both Mr Davis and Douglas Partners made their assessment on the basis of incomplete reports (par 69).

[14]

(3) Alleged breach of condition B11(1) 57Condition B11(1) stipulates: B11 Remediation (1)Prior to the issue of a Construction Certificate, the Proponent shall submit to the CA a Remedial Action Plan and a Hazardous Materials Survey. The Remedial Action Plan must be accompanied by a statement from a site auditor accredited by the DECC to issue site audit statements; 58The applicant alleges that Stockland failed to comply with this condition on the basis that it failed to submit a RAP, a HMS, and a statement from an accredited site auditor, prior to obtaining a construction certificate (subs, par 70). 59According to the applicant, Douglas Partners opined that the Site Audit Statements ('SASs') previously undertaken, if considered valid by the site auditor and confirmed by letter, could form the basis that the requirements of this condition had been met (at p 5 of 5, see Exhibit K2 at p 520 or Exhibit S3 at tab 15). In the applicant's opinion, neither the RAP nor the HMS was submitted and there was no confirmation letter to this effect (par 75). The applicant thus submitted that the pre-issuing requirements were not satisfied, and, therefore, that the construction certificate issued on 8 September by certifier Pat McNamara for stages 1-4 and 6, was void (pars 76-78). 60The applicant relied on the judgment of Pain J in Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541, where Her Honour said, at [23] and [34]-[36]: 23 The decision by a certifier to issue a construction certificate must comply with cl 145(2) of the [Environmental Planning and Assessment Regulation 2000 (" Regulation ") ] which requires that a construction certificate can only be issued if the certifying authority is satisfied that the design and construction of the works is not inconsistent with the development consent. In [ Lesnewski v Mosman Municipal Council and Anor [2004] NSWLEC 99 ] I held at par 17 that this conclusion on the part of the certifier was not a jurisdictional fact and it was not therefore a matter on which the Court can separately draw its own conclusions. The only basis, therefore, on which the Fifth Respondent's decision to issue the construction certificates can be challenged are administrative review grounds, such as whether in being satisfied that the works were not inconsistent with the Stages 2-6 Consent the Fifth Respondent acted so unreasonably that no reasonable person could have been so satisfied. As the First and Fifth Respondents pointed out, a challenge based on Wednesbury unreasonableness carried a heavy onus for an Applicant to discharge. The alternative pleading set out at par 10 above is that the certifier failed to have proper regard to a relevant matter in determining to issue the construction certificates. ... 34 As I have already stated, and as I found in Lesnewski , it is not open for the Court to substitute its own view of whether a matter is inconsistent. Rather, the Court must consider whether the certifier has discharged his obligations legally in forming the requisite opinion under cl 145 of the [Regulation] . 35 Here the construction certificates, in certifying the carrying out of the works depicted on Sheet 8 on Lot 235 were dealing with a matter not covered at all by the development consent plans. Was it manifestly unreasonable for the Fifth Respondent to issue the construction certificates on the basis that these works were not inconsistent with the Stages 2-6 Consent? I consider that the decision of the Fifth Respondent to issue the construction certificates was not one which was reasonably open to him. In my view, no reasonable certifier considering the development consent plans and comparing these to Sheet 8, as certified by the construction certificates, could have formed the view that these works were consistent with the development consent plans. Alternatively, the Fifth Respondent appears to have disregarded the approved development consent plan in reaching the conclusion that the construction certificates ought to issue in relation to Sheet 8 and so failed to have regard to a relevant matter. 36 Given the current legal framework under the EP&A Act where a certifier issues a construction certificate in respect of substantial works which were potentially not considered as part of the development consent process, and accordingly, about which there was: (a) no environmental impact assessment as part of that process; and (b) no development consent for those works; further legal argument on the issues raised here would have been of assistance and that is an issue requiring greater exploration on another day. 61The applicant further submitted that McNamara did not have regard to the fact that the works for which he issued a construction certificate would disturb uncontrolled fill that had not been validated by a SAS. The applicant also submitted that Stockland withheld information regarding the contamination of this fill (subs, par 80).

[16]

(5) Alleged breach of conditions B28(a) and B28(b) 64These conditions impose the following requirements (emphasis added): B28 Stormwater and Drainage Works Design a) A Construction Certificate application for works that involve the following: a. Connection of a private stormwater drain to a public stormwater drain b. Installation of stormwater quality control devices c. Erosion and sediment control works will not be approved until separate approval to do so has been granted by Council under Section 68 of the Local Government Act 1993 . b) The stormwater drainage systems, including road drainage, interallotment drainage and overland flow paths within the proposed subdivision, shall be designed by a suitably qualified practicing professional in accordance with the requirements of Wollongong City Council's Drainage Design Code (1994). Detailed engineering plans shall be submitted to and approved by Council prior to issue of a Construction Certificate for below ground works for the first stage of the subdivision. 65Section 68 of the LG Act stipulates: 68 What activities, generally, require the approval of the council? (1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval. (2) This section does not apply to the carrying out of an activity specified in Part B of the following Table: (a) on land within the area of operations of the Sydney Water Board under the Sydney Water Act 1994, or (b) on land within the area of operations of the Hunter Water Board under the Hunter Water Act 1991. (3) This section does not apply to the carrying out of an activity specified in item 1, 2, 3, 4 or 6 of Part B of the following Table on land within the area of operations of a water supply authority constituted under the Water Management Act 2000. Note. A person who fails to obtain an approval or who carries out an activity otherwise than in accordance with an approval is guilty of an offence-see secs 626 and 627. Table Approvals ... Part B Water supply, sewerage and stormwater drainage work 1 Carry out water supply work 2 Draw water from a council water supply or a standpipe or sell water so drawn 3 Install, alter, disconnect or remove a meter connected to a service pipe 4 Carry out sewerage work 5 Carry out stormwater drainage work 6 Connect a private drain or sewer with a public drain or sewer under the control of a council or with a drain or sewer which connects with such a public drain or sewer ... 66The applicant alleges that these conditions were breached because Stockland commenced earthworks without a valid construction certificate, and without approval from the Council, as required by s 68. He claims that, although the Council approved plans for stormwater and drainage works for stage 6 of the development on 21 October 2010, Stockland commenced stormwater and drainage works prior to this date, and without a valid construction certificate (subs pars 91-92).

[20]

(9) Alleged breach of conditions B45 and B46 79These conditions provide as follows: B45 Existing Vegetation Plan Every effort shall be made to retain significant existing vegetation on the site. A plan must be prepared which indicates existing vegetation to be retained and existing vegetation to be removed in consideration of the engineering works. This plan is to be submitted to and approved by the CA prior to issuing a Construction Certificate. B46 Tree Exclusion Zone The erection of a suitable fence around all tree dripline areas is required for all trees capable of being retained within the site, prior to the commencement of any works, in order to preclude vehicular/pedestrian access impacts on such trees. Alternatively, the developer may implement one of the following options: a) ensure that a minimum 350 mm layer of mulch is placed and maintained along the access route under the canopy of the tree for the entire period of construction; or b) provide wooden slats to be secured over the mulch where the gradient or frequency of access prevents maintenance of the 350 mm depth of mulch. Certification from a suitably qualified arborist stating that this condition has been complied with must be submitted to the CA prior to land clearing, excavation, and demolition or construction works being carried out. 80The applicant alleges (par 116) that Stockland breached both of these conditions, in that it made " no effort to retain significant vegetation on the site or erecting suitable fencing around all tree dripline areas for all trees capable of being retained within the site prior to the commencement of works ". 81The applicant also alleges that the Vegetation Management Plan ('VMP') prepared by Cumberland Ecology on behalf of Stockland "does not contemplate in any form that all vegetation on the site was to be completely removed", and that the VMP identified various Ecologically Endangered Communities ('EECs') on the Site (par 119, see Exhibit S4 at tab 3 for a copy of the VMP). 82The basis for the applicant's allegation of breach of the conditions is that " Mr Braithwaite is disingenuous when he states at paragraph 54 of his affidavit that: 'Reports provided by Stocklands...did not identify any endangered ecological communities [sic] on the area covered by earthwork' ", referring to the construction certificate issued for the Bulk Earthworks that exclude the riparian zones and the EECs (par 120). 83The applicant further alleges that Braithwaite failed to disclose the identity of the qualified ecologist that was present on the Site at the interlocutory hearing and that Stockland failed to prevent a plan or obtain a certificate pursuant to condition B46 (pars 121-122). In his cross-examination of Mr Braithwaite, Mr Oshlack once again brought this issue to the court's attention (T29.04.11, p 24, LL 31-46): Q. So, Mr Braithwaite, I haven't got long more to speak, there's just two matters I wish to raise with you. And that is firstly the same old question, would you be able to identify the person who was the ecologist who attended the site during the clearing referred to in paragraph 54 of your affidavit? A. I don't think I need to identify the person, Mr Oshlack, we obviously engaged a company to do those works and they have many ecologists that work for them, they are a reputable ecological consultancy firm. Q. And who is that firm? A. I think it's been mentioned already in today's proceedings, my understanding is the name of the company is Total Earth Care.

[21]

(10) Alleged breach of Section 116(1) of the POEO Act 84Section 116(1) provides: 116 Leaks, spillages and other escapes (1) If a person wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner that harms or is likely to harm the environment: (a) the person, and (b) if the person is not the owner of the substance, the owner, are each guilty of an offence. (2) If: (a) the person in possession of the substance at the time of the leak, spill or other escape, or (b) the owner of any container from which the substance leaked, spilled or escaped, or (c) the owner of the land on which the substance or any such container was located at the time of the leak, spill or other escape, or (d) the occupier of the land on which the substance or any such container was located at the time of the leak, spill or other escape, wilfully or negligently, in a material respect, caused or contributed to the conditions that gave rise to the commission of the offence under subsection (1), that person, owner or occupier is guilty of an offence. (3) A person may be proceeded against and convicted of an offence under subsection (2) whether or not a person has been proceeded against or convicted of an offence under subsection (1) in respect of the leak, spill or other escape. (4) It is a defence in any proceedings against a person for an offence under this section if the person establishes that the leak, spill or other escape was caused with lawful authority. (5) In this section: container includes anything used for the purpose of storing, transporting or handling the substance concerned. owner of a substance includes, in relation to a substance that has leaked, spilled or otherwise escaped, the person who was the owner of the substance immediately before it leaked, spilled or otherwise escaped. 85The applicant submitted that Stockland caused the unlicensed discharge of polluted water from the Site in breach of the POEO Act . He says that Braithwaite acknowledged that heavy rainfall on 22-23 March 2011 caused sediment to escape from the Site (subs par 124, citing Braithwaite's affidavit, pars 32-35). Mr Braithwaite stated (at pars 33-34): "[t]his type of heavy rain event is considered extreme and has the effect of sending sediments from both upstream and downstream properties" , but also noted that "[i]ndustry standards for soil and sediment erosion measures are not designed to contain the magnitude of the rain events experienced". 86The applicant also took the court to an email dated 4 April 2011 from Mr Andrew Heaven, the Senior Subdivision Engineer of Council, to Mr Braithwaite and others, attaching photos and effectively reprimanding Stockland (par 125, citing Exhibit K8 at pp 253-254). 87In his oral submissions, Mr Oshlack took the court to the evidence given during his cross-examination of Clouten, the first respondent's Development Manager for Construction, (T29.04.11, p 89 L42-p90 L26): Q. Are you aware that or do you know that during, are you aware of the, do you have knowledge of the discharge, the uncontrolled discharge of water following the rain event at the end of March? A. I'm not aware of, no I'm not aware of uncontrolled discharge. Q. So you're saying there was a controlled discharge? A. I'm saying the only discharge from the site outside of the water that is coming in from upstream, they are controlled discharges. Q. So you're not aware that the Wollongong Council had issued a fine for the sediment fence had collapsed? A. No I'm aware that, that Wollongong Council issued a fine for some sediment fence, it hadn't collapsed, it was a sediment fence that needed cleaning off after the heavy rainfall. Q. And water had left that and gone into the creek? A. No that's not what the fine was for. Q. That was not what the fine was for? A. No. Q. Were you aware that water had gone through that sediment fence? A. The site is - no I wasn't aware that water had gone through the sediment fence. Q. You weren't aware of that? A. No. I'm aware that dirt had slid down onto the sediment fence and the sediment fence had done its job to contain the dirt and the fine was for the contractor actually hadn't removed the soil away from the fence and fixed the fence back up, for about a 20 metre section. Q. So you don't know about any water discharging from the site following that rain event, you haven't any further knowledge? A. I know of allegations that have been made that there were discharges, but no I'm not aware that there was a major discharge from the sliding. 88Mr Oshlack then took Clouten to a letter from Mr Greg Adams, Construction Manager of Menai Civil, the company that Stockland contracted to be responsible for the earthworks, to Ms Kelly Macdonald of Cardno Forbes Rigby dated 5 April 2011 ( Exhibit K7 , document 13). In that letter it is stated "[d]ue to the extremely high water level of Hewitts creek entering the site, the construction bund at the end of Hewitts creeks works was breached" . Mr Oshlack questioned Clouten in relation to the contents of that document (T29.04.11, p92, LL9-43): Q. And the water discharged? A. A bund is used to slow down water, to slow the speed of water down through the area. We had a rock armour design that actually is the bunded area and that's to slow the water down prior to it leaving the site. Q. You weren't told that the bund had collapsed? A. No I wasn't aware till this. Q. And because it collapsed a whole lot of water that was being held by the bund, held back by the bund discharged into Hewitt's [sic] Creek? A. Not necessarily. Q. That's what it says there? A. No that's, that's not how I interpret that. Q. Well what does it say then, how do you interpret it? A. It says the bund at the end of Hewitt's [sic] Creek works was breached. Q. Was breached? A. Which means that at the load of the water had opened it up. Q. Had opened it up? A. And allowed the water to flow through. Q. Flow through Hewitt's [sic] Creek? A. That's correct. 89Clouten further explained (T29.04.11, p92, L50-p93, L5): ... the stormwater management plan shows a bunded rock area at the base of each of the creeks that's used to slow down and dissipate so its used to let the water fill up a little bit then it flows over the top and flows back out to the creek. So if that's breached because of the water that means that the water just isn't slowing down before it dissipating back into the outlet of the creek. 90Mr Oshlack's cross-examination of Davis revealed the following in regard to the alleged discharge of polluted waters from the Site: (a) at T29.04.11, p55, LL18-27: Q. Looking at those results would you be able to give an opinion whether it would appear from those results that water discharging from the site downstream is, that from the suspended solids, is a result of the water runoff from the site? A. I cannot say whether it is a result of runoff from the water and I provide some context to this answer, those results are samples taken of a stream, whether they're measuring water that's discharged from a site or not in I couldn't say and in fact they what they're measuring is they're measuring water in a creek. So my answer has to be a qualified no because I'm not entirely sure what it is that they measured. and (b) at T29.04.11, p56, LL15-45: Q. Yeah how can you ensure that there is no adverse affects to adjoining properties upon land resulting from flood or stormwater runoff? A. You ensure it by having adequate management control methods, a plan, installed devices, engineered controls so forth... Q. How do you know if the management control system is adequate? A. Well you would have to, a range of, a range of ways, you'd have to make observations on the site, good monitoring in terms of looking at those controls, seeing if those controls are working. You're talking about, you know, controlling runoff off a site, looking at where that runoff is occurring, attempting to control it. Monitoring in itself is not simple and it's interesting, you know, as an expert you're asking me just to compare numbers, well if you wanted something to read out numbers I'm over qualified for that. It's all about putting together a range of ways of monitoring. A good monitoring plan would identify where the runoff is occurring, if it is occurring, would attempt to monitor the condition of that runoff, you may do so by sampling, that's one of many different ways you can do that. Just looking at this report this report is from water samples taken at various locations down Woodlands Creek. I don't know what the results relate to... 91The applicant further alleges that from September 2010, Stockland diverted runoff from the Site into Woodlands Creek without water testing for heavy metal. The applicant undertook his own testing, "taking water samples at the ingress and egress of Woodlands Creek of the site and downstream in Hewitts and Tramway Creeks" , as well as from Woodlands Creek within the Site. These samples were taken in accordance with Australia and New Zealand Environment and Conservation Council ('ANZECC') Guidelines (par 128). 92The applicant purportedly found high levels of various heavy metal substances on 27 January 2011, 22 February 2011, 23 March 2011 and 4 April 2011 (subs pars 130-133). I will extract the submissions regarding those findings later in this judgment ([174]).

[23]

First Respondent's submissions 95For the purpose of its submissions, Stockland divided the applicant's eleven claims into four categories of alleged breaches: (I) Condition A4 of the Approval and s. 76A(1) of the EPA Act (cf applicant's no1); (II) Conditions B28 and B37 of the Approval (cf applicant's nos (5), (7) and (8)) ; (III) Conditions B9(h), B11(1), B13(2), B31, B45 and B46 of the Approval (cf applicant's nos (2), (3), (4), (6), and (9)); (IV) Sections 116(1) of the POEO Act, and 86(4) of the NPW Act (cf applicant's nos (10) and (11)) . 96Stockland also made submissions (par 47) on discretion (see [4] above). Although the court has a wide discretion under s 124 of the EPA Act to grant relief, the discretion " is not at large ", and there are established principles to apply: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, per Kirby P at 339-340. Kirby P emphasised that, under s 123, although any person may bring proceedings in this court to restrain or remedy a breach of the EPA Act , " there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law " (at 340). The discretion to grant relief is therefore a balancing act between the public interest and the " irremediability occasioned by the breach ", thereby allowing the court to " soften...the application of rules which...may produce an unjust result in a particular case ." 97Stockland prefaced its particular submissions on the alleged breaches with some general submissions regarding the asserted lack of evidence to support them, and some general submissions regarding the relief sought by the applicant. Stockland submitted that "[t]here is simply no basis " for the applicant's declaration that Stockland has failed to comply with Part B of the Approval, or the particular conditions therein (par 5.3A). Also, there was no case to support for the attempt to impeach any construction certificate issued by Mr McNamara, who had not been joined in the proceedings ( Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207) (par 5.3B). It was also not open to the applicant to challenge the validity of the Approval(s) as that issue had been heard and determined by Biscoe J in his 26 July 2010 judgment , and to do so would amount to an abuse of process (par 5.3C) (see Coffey v Secretary, Department of Social Security [1999] FCA 375, (1999) 86 FCR 434 at 443). 98I turn now to consider Stockland's submissions on the 4 categories of claimed breaches.

[28]

Condition B11(1) 111The condition is set out in [57] above. 112Stockland submits that, although it requires Stockland to complete and submit a RAP with a statement from the Site Auditor, and a HMS, to the CA, the condition fails to identify any remediation works that should be addressed, or, indeed, to require Stockland to satisfy it. In any event, Stockland submits (par 5.31) that this requirement was satisfied between 1993-2000, and that the Site had been bare since remediation and demolition in 2001. Hence, nothing could have occurred on the Site to warrant further works. 113Stockland argues (par 5.34) that it " would be odd, if not nonsensical" to construe this condition as requiring it " to prepare and submit a RAP, a statement from an accredited site auditor and a hazardous materials survey regardless of whether remediation works are proposed to be carried out and irrespective of the fact that there are no built structures on the AIR Site ". 114Stockland submits that the court should adopt a construction which picks up the " underlying intention " of the condition, namely that there should be material before the CA to satisfy it that, if remediation works are not proposed or required, the Site is suitable for its intended use, namely residential, so avoiding an uncertain, impractical or irrational outcome (see subs 5.35 - 5.36). 115In fact, Stockland provided such documents to the CA (namely Douglas reports and SASs), confirming suitability (5.37). 116Should the court reject this approach to construction, Stockland submits that the court would exercise discretion and not grant relief for non-compliance with the condition, because (par 5.38): (1)"it was reasonably open for Stockland and/or its advisors to adopt the approach they took" ; (1)the Site had been certified as suitable by an accredited Site Auditor; (2)"The conditions in the SASs were 'precautionary' and not included to address any further remediation requirements" ; (3)"The AIR RAP had been prepared and implemented for the purposes of the remediation works...by BHP" ; (4)Douglas Partners reviewed the relevant material and concluded that "all contamination issues of concern" had been remediated; (5)there is no evidence to challenge the Douglas Partners Reports; (6)Menai Civil, "prepared and put in place a Construction Management Plan" that addressed the steps to be carried out should contaminated material be found on site; and (7)other conditions (E19-E22) "ensure that appropriate monitoring and testing regimes are in place to identify any contamination or polluted matter" .

[29]

Condition B13(2) 117This condition is set out at [62] above. 118Again Stockland submits that the applicant has presented, or extracted from Braithwaite or Clouten, no evidence that would suggest a breach of this condition, which limits the area of the Site to be exposed to wind and water damage to 5ha at a time. 119The development process is summarised in par 5.42 of Stockland's submissions. Earthworks are staged, and the areas are monitored and managed by using the "Topcon" Global Position System. The data is updated as the work progresses. The substance "hydro mulch" , a liquid seeding mixture, is sprayed over topsoil on open areas "where earthworks have taken place", and another substance, "Envirotack" , is mixed in with the hydro mulch and serves as a binding agent, thereby forming an "erosion resistant mat" on the previously open area. The areas where this process has taken place are identified by the use of a green dye which fades in sunlight, a process that will obviously be accelerated in certain weather conditions. 120As noted in the submissions (at par 5.42I): ...in each open area, an assessment is made as to whether there is a risk of run-off or drainage beyond the site...If there is such a risk in a particular area, the area is not topsoiled as heavy rainfall would cause the topsoil to wash down and migrate off site. In these circumstances, only hydro mulch is applied to that area. 121To make good its contention that the open areas have remained less than 5ha at any one time during the earthworks process, Stockland relies on Mr Braithwaite's affidavit, as well as surveys conducted on 17 January 2011, 9 February 2011, 7 March 2011, and 14 April 2011 by Mr Craig Robson, an independent registered surveyor it engaged (par 5.44, citing Mr Braithwaite's affidavit at par 23, and Exhibit S3 at tab 8). 122Stockland submits that the alternative evidence offered by the applicant's witness, Tanner, "should be rejected in whole" , on the basis that he effectively resiled in his oral evidence from the opinion he expressed in his affidavit of 5 April 2011 (par 5.48), or that his affidavit evidence be given " little or no weight " (par 5.49) for the following reasons: (1)as a registered surveyor, Mr Tanner is not qualified "to give expert opinion evidence regarding soil type, the significance of soil colour, earthworks, hydro mulch or seeding mixtures generally"; (2)Mr Tanner conceded that the evidence in his April affidavit was not to be considered as expert evidence; (3)Mr Tanner conceded that the measurements that he included in his affidavit were not accurate; (4)the open area identified in the March report comprised 3.13ha; and (5)"[t]he soil matrix on the AIR Site is not homogenous...For that reason, it is not possible to demarcate the areas where the hydro mulch has been applied by reference to the colours in the Aerial Image." 123While Stockland asserts that it has complied with the condition, should the court accept the applicant's submission that the failure to apply topsoil led to a breach of the condition, it submits that the court would not grant relief anyway, because (par 5.51): (1)topsoil is not applied to the Site where there is risk of run-off or drainage; (2)the proper approach taken where there is risk of run-off or drainage is to apply hydro mulch, that serves to seal the open area, without applying topsoil; (3)if topsoil was to be applied to open areas with risk of run-off or drainage, this would cause the hydro mulch to destabilise; and (4)the hydro mulch must bind to the ground in order to reduce the risk of soil erosion. 124Stockland submits that strict compliance with the condition would work against its intention, and "would increase the risk of harmful environmental effect" (par 5.52, referring again to Sedevcic ).

[35]

Condition B9(h) 141I agree with Stockland that this condition does not require the preparation of new geotechnical reports for the certifier (McNamara), only that those provided are adequate for the purpose at the heart of the condition. 142The 1999 EAW report concluded that "[o]verall, the DJ Douglas 1993 findings were that the site contained 'very little contamination that required immediate clean-up'" (see Exhibit S5 , p 532). 143SASs were taken in 2001 for five areas, and the conclusions drawn are effectively the same for each area, that is, it is stated "[g]iven the extent of sampling in this area and the assumption that the selected samples do represent the material on site, the site can now be considered to comply with the selected criteria set out in the RAP." It is conceded that "there remains a small risk that small pockets of contamination may have been located in areas not sampled" and it is the opinion of EAW that the Site is suitable for residential purposes, but "[t]his statement is limited to only environmental aspects and does not infer that the site is Geotechnically suitable for residential purposes". (See Exhibit S5 , p 91 for Area 1, p 182 for Area 2, pp 256-257 for Area 3, pp 326-327 for Area 4 and pp 416-417 for Area 5). 144The 2007 EAW report ( Exhibit K7, tab 2), acknowledged (p15) that "proposed excavations will intersect soil and fill profiles on the site which have not been subject to audit clearances... [and] will require additional investigation and validation works" , but found it unlikely that any "significant or widespread" contamination existed, and, if it were to exist, it would be in surface soils. Nonetheless, it recommended (p23) that, should excavations be deeper than 1.5m, there should be "consultation" with an auditor. 145It was on the basis of the 1999 and 2007 EAW reports, and the SASs conducted in 2001, that Douglas Partners prepared in 2010 what Stockland submitted are final geotechnical reports that satisfy the condition. The Douglas 21 June 2010 Report (see Exhibit K2 , pp512-515 or Exhibit S3 , tab 16) stated (at p2) that "[a] contamination investigation is in progress by Douglas Partners which is aimed at targeting existing uncontrolled filling below the previously investigated 2 m depth", and (p3) that "[t]he bulk earthworks plans are considered appropriate for the proposed developments from the geotechnical viewpoint". The following qualifications applied: (1) the geotechnical review of engineering plans would be required as they become available; (2) the analysis did not take into account excavation required in the deeper fill levels; and (3) the scope of the work will depend on several variables. 146The Douglas 2010 reports build one upon the other to resolve apparent inconsistencies among their source materials. As the 5 August 2010 Report (see Exhibit K2 , pp 516-520, or Exhibit S3 , tab 15) makes clear the 2001 and 2007 reports concluded that the Site was suitable for residential development because " neither EAW (in the original reports) nor the site auditor has qualified that the suitability of the site is limited to the top 2.0 m, and that excavations deeper than 2 m are not covered by the assessment or audit" (see pp 3-4 of 5). The reference to further consultation should the excavation exceed 1.5m is described as unclear, in contradiction to the 2001 reports, and thus not preferred over the SASs that were provided by the Site Auditor. 147The 7 September 2010 Report (see Exhibit K2 , pp 525-527 or Exhibit S3 , tab 17) concluded that "[t]he bulk earthworks plans are considered appropriate for the proposed developments from the geotechnical viewpoint", with comments that (1) a geotechnical review of engineering plans should take place as they become available; and (2) the analysis did not take into account excavation required in the deeper fill levels. 148Mr Oshlack sought to elicit from Stockland's witnesses evidence that the condition was breached because the depth of excavation had exceeded 2m. In his cross-examination of Mr Clouten, Mr Oshlack took the witness to the Bulk Earthwork Plans ( Exhibit K2 pp 532-541, or Exhibit S4 , tab 14), asking whether he was aware that the depth exceeded 2m, to which he replied (T 29.04.11, p81, LL36-46): There were a series of geotechnical bore logs that showed areas of what we call uncontrolled geotechnical fill that identified depths of two to two and a half metres of uncontrolled fill. The quantity and the depths weren't finalised because it was unable to be quantified, even with extensive geotechnical testing and the site was varied all the way across, so it was unable to quantify the depths of where we were going. But in relation to the cut and fill plans, these plans here, it showed on the northern and southern boundaries, that's where the excavation off these plans were showing that the depth was greater than 2 metres because that's where the fill was to be claimed to be able to make the depths in what we call the central figure, which is between the two creeks, that was the low area of the site. 149In answer to a similar query, Mr McNamara stated (T29.04.11, p 69, LL13-17): ...[page 536] sets out the cut and fill analysis, shown in various shadings are the various depths of cut and fill. So where it's shown to be greater than the bands there of 1 metre and 3 metres, it's a bit hard to read on this copy, but those are the areas shaded which are greater depth and cut, they're greater depth of cut than one and a half metres. 150Later (at T 29.04.11, p71, LL9-16), this exchange took place: Q. I'll repeat the question just so it's really clear. It is clear that when you issued the construction certificate you were not given the details of further geotechnical investigations for the contamination where the excavation was proposed to exceed 2 metres? A. Douglas Partners provided a geotechnical report which summarise the site audit statements and the various investigations that have been carried out previously, and in my opinion that provided me with a level of satisfaction that that was a further geotechnical report that covered that condition of consent. 151I am satisfied that the three Douglas documents which Stockland supplied to Mr McNamara, namely those dated 21 June, 5 August and 7 September 2010, are not mere "letters", as the applicant submitted, but expert reports that satisfy the condition. Mr Oshlack's cross-examination demonstrated that, at times, Stockland's excavations could have exceeded 2m in depth in the fill areas. However, Stockland submits that the outcome of Douglas Partners' contamination investigation was that no further testing was required. Whilst no contamination investigation was provided, I accept the conclusions reached by Douglas Partners in their 5 August report.

[36]

Condition B11(1) 152The applicant submitted that Stockland failed to provide a RAP, a HMS, and a statement from an accredited site auditor to Mr McNamara prior to his issuing a construction certificate. Stockland suggests that the condition lacked specificity, and was irrational in requiring new testing because the Site was bare since 2001 and had previously been remediated. It was submitted that a further RAP would be "nonsensical" , especially when no remediation works were planned. Stockland thus considered that by relying on earlier documents, the "underlying intention" of the condition would be satisfied (see [114] above). 153I note that the 5 August Douglas Report states ( Exhibit K2 at p 520, or Exhibit S3 at tab 15, p5): "...these previous documents [RAP by EAW, 2001/2002 SASs] should be suitable for use as a basis to address this condition. It is recommended that the previous site auditor should be approach[ed] for providing an update on the validity of the SASs. If the validity of the SASs can be confirmed by the auditor, then the confirmation letter may form the basis of evidence that the DA conditions have already been addressed." 154I am not aware that the previous site auditor was approached and/or supplied a confirmation letter. Indeed, Stockland details the information that it provided to Mr McNamara (par 5.37) as the Reports and the SASs. There is no suggestion that an accompanying statement, or at the least a confirmation letter by the site auditor, was provided. 155It seems that Stockland, therefore, failed to comply with the recommendation in the 5 August Douglas Report. I am, therefore, not satisfied that Stockland satisfied the condition. 156The question then arises as to whether Mr McNamara correctly granted the construction certificate. I am satisfied that all the material that would be relevant to his decision was before him, despite the lack of any confirmation letter. As Stockland submits, nothing had occurred on the Site, and remained the same as when the remediation works had been completed. Therefore, any confirmation letter would have simply served to confirm what was in the materials actually provided, and would not have added anything to the available evidence. 157The applicant's reliance on Pain J's judgment in Carriage v Stockland Development Pty Ltd & Ors [No 6] does not support his case. Mr McNamara's decision to issue a construction certificate was in compliance with cl 145(2) of the Regulation that requires him to be satisfied that the design and construction of the works was consistent with the consent, and it was not unreasonable for him to come to that conclusion based on the material before him. For this reason I conclude that McNamara correctly granted the relevant construction certificate, and that his actions cannot be faulted. 158While I accept that the information provided to Mr McNamara was sufficient for him to make his determination on whether to issue a construction certificate, Douglas Partners expressed the view that the 2007 EAW Report was unclear, and yet, despite this, concluded in their 5 August Report that additional testing was not warranted. 159It will, therefore, be necessary to turn to the question of discretion, but, before doing so, I should briefly address the applicant's other submissions in relation to the alleged breach of this condition. 160The applicant also alleged that Mr McNamara did not consider that the approved works would disturb uncontrolled fill, which had not been validated by a SAS. Mr Robson addressed this allegation at length in his oral submissions (see generally T27.05.2011, pp 109-116), referring the court back to the SASs, the 1999 and 2007 EAW Reports, and the Douglas Partners reports which were provided to McNamara. 161Mr Robson drew the court's attention to Biscoe J's discussion in Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33 that pertained to a RAP, and its purpose once it had been prepared. In that case the applicant alleged that the work that was to be carried out by the proponents was in breach of State Environmental Planning Policy 55 - Remediation of Land and consequently sought injunctive relief. Such a breach was not pleaded by the applicant in this matter, so the present relevance of this case goes only to its general statements about the purpose of a RAP. 162I have already accepted Stockland's submissions on the material required to meet condition B9(h), and I now find that that material also satisfies this particular element of the applicant's complaint in relation to B11(1). 163The applicant further alleged that Stockland withheld information regarding the contamination of this fill, but Stockland's successful submissions on condition B9(h) are similarly applicable here, and sufficient to meet the allegation. 164I have referred above (at [116]) to the eight reasons given by Stockland for the court to exercise its discretion and not grant relief to the applicant. I am satisfied that the reasons numbered (2) and (6) are sufficient to refuse to grant the applicant relief - the Site had been certified suitable, and the Douglas Reports have not been challenged - despite the fact Stockland may not have fully complied with the specific technical detail of the condition.

[39]

Condition B31 174The applicant alleged that Stockland breached this condition because there had been adverse effects to the Site or adjoining properties, as a consequence of stormwater run-off, and Mr Oshlack referred the court to his later submissions on the breach of s 116 of the POEO Act, where he took the court to a table that it had prepared with comparison to the ANZECC guidelines (admitted subject to relevance as Exhibit K8, pp 85-248). The applicant's submissions regarding the alleged pollutants are as follows (pars 130-133, citing results at Exhibit K6 , pp 828-831): 130 A summary of the results show very high levels from an on site sampling of Woodlands Creek on November the 9 th , 2010 of Aluminium, Chromium, Copper, Lead, Nickel and Zinc, 131 Elevated levels of Aluminium and Copper, were found on January 27, 2011 down stream of Hewitts and Woodlands Creek which also had Manganese which were very low or negligible up stream. 132 On 22 nd February, 2011, high levels of Aluminium and Manganese detected downstream of AIR site in Hewitts Creek 133 Between March 23 rd and April the 4 th , 2011 water including pollution control devices discharged into Hewitts and Woodlands Creek. 175Stockland submits that the applicant's allegations are misconceived, because the condition specifies the requirements for the design of the development, and other conditions complement the requirements. As Mr Robson stated (T08.06.11, pp18-19, L48ff), the applicant failed to challenge the evidence in Mr Braithwaite's affidavit regarding the erosion and sediment controls in place on the Site. Mr Braithwaite referred to the Soil and Water Management Plan ( Exhibit S3 , tab 10), which stipulates the requirements imposed upon Stockland for the treatment and use of the land and water, including topsoiling and seeding of earthworks once completed. Mr Robson also referred the court to Exhibit K9 and Mr Davis's oral evidence to demonstrate that "there is not a matter of significant concern to suggest there has been a flouting of the conditions" (T08.06.11, p 19, LL12-13), and further, that there is no evidence that the water that discharged from the Site was polluted. 176While I accept that the condition relates to design requirements, I cannot accept that, just because the design aimed to ensure that there were no adverse effects on adjoining land, there were, in fact, none. This is a separate question, which requires the court to determine whether the applicant's evidence is relevant and, therefore, was properly admitted, a question to which I will return when I deal later with the alleged breaches of the POEO Act and NPW Act .

[40]

Condition B37(1) 177The applicant alleged that Stockland breached this condition by undertaking site clearing prior to submitting plans or gaining approval. The applicant alleged that clearing and excavation took place between 12 January 2010 and 11 September 2010, whereas approval was granted on 15 November 2010. The approval was stated in the following terms (see Exhibit S3 at tab 12 or Exhibit K5 at pp 693-694): "...the Department is satisfied that the revised creek design and supporting information addresses the requirements of Condition B37(1) and is therefore approved." 178The applicant relies on aerial maps at Exhibit K6 (pp 822, 823 and 825) to demonstrate that clearing occurred without a valid construction certificate. These photographs were purportedly taken on 12 January 2010, 1 September 2010 and 12 November 2010, all before approval was granted. Stockland objected to the tender of these photographs because it says that they were dealt with by Pain J in this matter at the interlocutory hearing in late November 2010 - see Kennedy v Stockland Development Pty Ltd and Anor [2010] NSWLEC 250. Mr El-Hage, junior counsel for Stockland, submitted to me in this hearing (T28.04.2011, p50, LL18-55): ... in summary your Honour NearMap is a website which purports to give access to aerial photographs that are taken at particular periods in time. One of the allegations made during the interlocutory proceedings was that Stockland had commenced construction and other related works prior to the issue of a construction certificate on 8 September 2010. In support of that allegation the applicant tendered a photograph, an aerial photograph from the NearMap website purporting to be a photograph of the site which is the subject of these proceedings. The NearMap photograph during the interlocutory proceedings had a date imprint on it of 1 September 2010. Stockland tendered evidence, your Honour, which is actually discussed in the judgment given by her Honour Justice Pain to establish to her Honour's satisfaction that the date on the NearMap photographs are not correct. And by way of background, your Honour, we're able to do that not only through evidence by way of affidavit but also through invoices which were tendered in relation to a marquee which was shown on the photograph to establish the date on which the marquee was located on the site. Your Honour will see in the applicant's index that the applicant purports to deal with this issue by inserting the words in the index corrected to, this is at document 151, corrected to 11/09/2010. The objection is that given what her Honour found about the unreliability or the lack of any reliability on the date that's exhibited or that's shown on the NearMap photographs, your Honour would not allow the applicant to again rely on these photographs and the dates imprinted on them given the problems or the inaccuracies which have already been the subject of findings by another judge of this Court. The same objection goes to the document at p 825 and 826. 179I have extracted the following from Pain J's interlocutory judgment : 32 I will first consider whether there is a serious question to be tried. The Applicant has not established that there was any illegal work undertaken before the construction certificate was issued on 8 September 2010. The evidence of Mr Braithwaite and Mr Clauson [sic] and supporting documents such as invoices for the marquee relied on by the First Respondent establish that work to implement the major project approval did not commence until after the construction certificate was issued on 8 September 2010. The date of 1 September 2010 on the nearmap.com aerial photograph appears incorrect. It shows the marquee, and the evidence is that the marquee was erected after that date. This view is confirmed by the email from nearmap.com which I allowed the First Respondent to tender which suggests the correct date is on or after 12 September 2010. Ms Gough stated that she saw the AIR site had been cleared and that there was excavation of the Woodlands Creek area on 11 September 2010 which Mr Oshlack submitted from the bar table was on 9 September 2010. Either of these dates is after the issue of the construction certificate on 8 September 2010, suggesting that any work undertaken was authorised. 33 In relation to whether there has been illegal clearing of vegetation, there is no evidence of this. The unchallenged evidence of Mr Braithwaite is that condition B13(2) limiting excavation to 5 ha in area at any time is being complied with. That condition does not apply to vegetation clearing, as can be seen from its terms. That there is additionally vegetation clearance in other areas of the site has not been shown in any evidence as not being in accordance with the terms of the major approvals consent. Those conditions include condition B49 which requires implementation of a plan for the recreation of the riparian zones along the Woodlands and Hewitts Creek areas in accordance with SK 41 (tendered by the First Respondent). Implementing this plan requires the removal of vegetation, removal of the pipe along much of Woodlands Creek, excavation to create wider creek beds and extensive replanting of these zones, according to Mr Braithwaite's oral evidence. The consent allows for vegetation clearing to achieve these goals. 34 These findings mean that no breach of conditions B13(2), B45 or B46 have been established. No evidence was tendered in relation to the alleged breach of condition 37(1). While raised in opening submissions by Mr Oshlack that condition was not mentioned again. I am not in a position to make any preliminary finding on whether there is a breach of that condition. 180I adopt Her Honour's findings, and am not satisfied that the applicant has either shown a breach of this condition, or refuted Mr Braithwaite's evidence.

[43]

Section 116(1) of the POEO Act 189The basis of the applicant's allegation that Stockland breached this provision is its evidence which allegedly shows that there was "unlicenced (sic) discharge of polluted water" from the Site, due to heavy rainfall on 22-23 March 2011. 190Clouten's evidence was that, although he was unaware of any major discharge of water at this time, the notable thing about this event was not that any discharge occurred, and that a breach of the bund may have caused an uncontrolled discharge of water to occur, but that the controlled discharge was most likely not slowing down before it went into the creek. 191Davis's evidence was that he could not tie the applicant's tests back to the water that was discharged from the Site, and that the samples taken could not indicate that Stockland's management control system was inadequate. 192Mr Heaven of Council stated ( Exhibit K8 , p253): "[a]s the PCA my role is to ensure that the approved plans are complied with and conditions of consent satisfied, however I also need to make sure that actions are taken when things are not working...I recommend that if there is any room for improvement that Stocklands and Menai Civil committ [sic] themselves to making sure it happens." 193In the letter from Construction Manager Mr Adams to Ms Macdonald dated 5 April 2011 ( Exhibit K7 , document 13), regarding the "major rain event" around 20 March and the following week, Mr Adams stated: "[i]n the past we have had inspections on the creek works...by council and yourselves and we have received praise on the extent that we have gone to in our soil erosion and creek diversion works and the quality of our works...Menai Civil Contractors is very committed to rectifying the situation as soon as practicable." 194The evidence before the court is, therefore, that a major rainfall event occurred, that Stockland had soil erosion and creek diversion systems in place, and that these were affected by the major rainfall event. The court cannot rely on the water sampling results tendered by the applicant as indicating that there was an "unlicenced (sic) discharge of polluted water" , attributable to Stockland because of the heavy rainfall. The applicant has failed to overcome the explanations and evidence provided by Clouten and Davis.

Kennedy v Stockland Developments Pty Ltd & Anor

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