Lake Macquarie City Council v Gordon and Anor - [2016] NSWLEC 49 - NSWLEC 2016 case summary — Zoe

NSWNSWLEC

Lake Macquarie City Council v Gordon and Anor

[2016] NSWLEC 49

Land and Environment Court (NSW)|2016-03-24|Before: Moore J, Mr J, The P

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2016-03-24

Before

Moore J, Mr J, The P

Catchwords

167 LGERA 395 Briginshaw v Briginshaw [1938] HCA 34
60 CLR 336 Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59
220 CLR 472 Jones v Dunkel [1959] HCA 8
101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11

Source

Original judgment source is linked above.

Catchwords

167 LGERA 395 Briginshaw v Briginshaw [1938] HCA 3460 CLR 336 Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59220 CLR 472 Jones v Dunkel [1959] HCA 8101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11243 CLR 361 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 North Sydney Council v MolineNorth Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28194 CLR 355 Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9, 253 CLR 531, 88 ALJR 473 Wilkie v Blacktown City Council [2002] NSWCA l284

Judgment (30 paragraphs)

[1]

TABLE OF CONTENTS Introduction The proceedings The site The history of development proposed for or carried out on the site Chronology Section 121B order The Douglas Partners' remediation scheme The late submissions The approach to be taken to the Douglas Partners' scheme The first step - the terms of the Douglas Partners' scheme The second step - the possible outcome of the Douglas Partners' scheme An agreed remediation plan The statutory basis for the declarations that the Council seeks Mr Gordon's admissions Declarations against Mrs Gordon as well as against Mr Gordon? Mrs Gordon's evidence The undertakings signed by Mrs Gordon The P J Donnellan & Co correspondence Consideration of Mrs Gordon's position Did Mrs Gordon carry out development in the statutory sense? The legal basis - declarations against Mrs Gordon Jones v Dunkel inferences The extent of Mrs Gordon's involvement and the conclusions to be drawn from it The detention structure Costs Conclusion Declaration and orders Annexure A Annexure B

[3]

The proceedings

The nature of the proceedings has evolved since they were originally commenced, with the result that the nature of the relief sought by the Council is that set out in the Further Amended Summons, a summons that was filed in Court (without objection from Mr O'Gorman-Hughes, counsel for the Respondents) and for which leave was therefore granted. The nature of the relief now sought, as pleaded in the Further Amended Summons, is in the following terms: A declaration that the First Respondent has failed to comply with an order issued by the Applicant under section 121B of the Environmental Planning and Assessment Act 1979 ("EP&A Act") and dated 22 September 2014 in respect of Lot 13 Sec 26 DP3109 being the premises at 12 Ebsworth Street, Redhead, NSW (the "Land"). A declaration that the Second Respondent has failed to comply with an order issued by the Applicant under section 121B of the EP&A Act and dated 22 September 2014 in respect of the Land. A declaration that the First Respondent and Second Respondent, carried out or caused or permitted to be carried out earthworks (as that term is defined in the Lake Macquarie Local Environmental Plan 2004 and Lake Macquarie Local Environmental Plan 2014) on the Land between the period 2009 to 2015 in breach of section 76A(1) of the EP&A Act. A declaration that the First Respondent and Second Respondent carried out or caused or permitted to be carried out development contrary to Conditions 2, 3, 8, 9, 11 and 19 of the Development Consent No. DA/2469/2007 issued by the Applicant on 27 February 2008 (the "Consent") in breach of section 76A(1)(b) of the EP&A Act. A declaration that the First Respondent and Second Respondent or either of them, carried out or caused or permitted to be carried out development in breach of section 76A(1) or section 76B of the EP&A Act. Particulars of the development Between 22 January 2016 and 27 January 2016, the First Respondent and Second Respondent or either of them, constructed or caused or permitted to be constructed a concrete detention basin on the Land with PVC pipes installed in the street verge of Ebsworth Street, Redhead as depicted in the 3 photographs annexed and marked "A" (the "Concrete Detention Basin"); An order that the First Respondent and Second Respondent: within 40 days of the date of this order carry out all works in accordance with: the Douglas Partners Guideline Specification for Slope Remediation Earthworks Lot 13 Sec 26 DP 3109, No 12 Ebsworth Street, Redhead dated February 2013 (the "Guideline Specification"); and the drawings prepared by Lindsay & Dynan Pty Limited (Project Ref No 9890) no. C00, C06, C07, C08, Rev 0 dated 19/02/2013 (the "Lindsay & Dynan Drawings"). within 45 days of the date of this order provide to the Applicant a report from a Geotechnical Engineer confirming that the works in paragraph (a) above have been carried out. An order that the First Respondent and Second Respondent provide to the Applicant the following certification: Within 10 days of the date of this order a letter from a Geotechnical Engineer confirming that Slope Preparation SP.1 to SP.5 of the Guideline Specification have been complied with; Within 45 days of the date of this order a letter from a Structural Engineer confirming that Remediation Earthworks RE.1 to RE.9 of the Guideline Specification have been complied with; and Within 45 days of the date of this order a letter from a Landscape Architect confirming that Re-vegetation RV.1 to RV.2 of the Guideline Specification have been complied with. An order that the First Respondent and Second Respondent demolish the Concrete Detention Basin and restore the street verge of Ebsworth Street Redhead to the condition it was prior to the construction of the Concrete Detention Basin within 10 days of the date of this order. An order restraining the First Respondent and Second Respondent by themselves, their servants or agents from carrying out earthworks (as that term is defined in the Lake Macquarie Local Environmental Plan 2014) on the Land except for the works required in Order 8, unless or until development consent is obtained to carry out the earthworks. An order that the First Respondent by herself, her servants or agents be restrained from continuing with the development approved by the Consent until she complies with Conditions 3 and 19 of the Consent. An order that the First Respondent and Second Respondent pay the Applicants costs. Such further and other orders as this Honourable Court sees fit.
Not all aspects of the relief sought against Mr Gordon, as the Second Respondent, are resisted by him. This is as a consequence of a limited range of admissions made by him in the proceedings as later set out.
Mrs Gordon, the First Respondent, resists the making of any orders or declarations against her.

[5]

The history of development proposed for or carried out on the site

In February 2008, a Mr McKenzie, Mrs Gordon's predecessor in title to the site, was granted development consent by the Council for the erection of a dwelling. Although that development consent was initially said by the Council to have lapsed, that contention is no longer pleaded and the Council concedes that that development consent remains on foot.
I note that the question of whether or not that development consent is capable of being modified as a consequence of the orders that will be made in these proceedings, or whether such changes as may be required to that consent to permit the erection of a dwelling are so significant as to require a fresh development application, is not a matter that arises for my consideration in these proceedings.
Having obtained his development consent, Mr McKenzie contracted to sell the vacant allotment to Mrs Gordon on 7 October 2008 with settlement of the purchase not proceeding to completion until 5 May 2010, almost two years' later.
In about mid-2009, Mr Gordon commenced undertaking clearing of vegetation and a series of excavation and earthworks' projects on the site (it is unnecessary to determine whether the earthworks constituted a single endeavour or were a series of discrete activities). Three physical outcomes on the site are to be noted as consequences of these activities. They are: 1. All, or virtually all, the pre-existing vegetation on the site has been removed; 2. There has been a significant reshaping of the underlying topographic contours of the site as a consequence of Mr Gordon's earthworks' activities; and 3. Some 1,000 cubic metres of earth have, as a net consequence of Mr Gordon's activities, been removed from the site.
It is also appropriate to note that, as a result of Mr Gordon's activities and/or rainfall over the period of time since he commenced his activities, there is now some (apparently, at the present, minor) undermining of the south-western corner of the dwelling on the adjacent uphill property at 10 Ebsworth Street. There has also been significant migration of silt from the site as a consequence of rainfall events, with that migrated silt being deposited either on the neighbouring property at 14 Ebsworth Street (owned by Mrs Rowe) or into the Council's stormwater drainage system and thence into the ocean.
It is clear from the state of the evidence and the way the proceedings have unfolded that there is no dispute between the Council and Mrs and Mr Gordon as to the desirability of rectifying the various impacts caused by Mr Gordon's activities. As earlier foreshadowed, there is a dispute as to who should be made responsible for the required rectification.

[7]

Section 121B order

As a consequence of the Council's concerns that the works undertaken by Mr Gordon on the site were without development consent, the Council gave notice to Mrs and Mr Gordon of its intention to issue each of them with an order pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (NSW) (the EP&A Act). The table forming part of this provision sets out, in three columns, the nature of the order authorised to be made, the nature of the conduct (whether act or omission) providing the basis for the proposed order; and the person or persons upon whom the obligation to comply with the order can be imposed.
In this instance, notice was given to each of Mrs and Mr Gordon of the Council's intention to issue an order, No 12, from the table. The relevant provisions of the table for such an order are: Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? 12 To do such things as are specified in the order to restore premises to the condition in which they were before the building was unlawfully erected or before work was unlawfully carried out (a) Building has been unlawfully erected, and an order No 2 has been given requiring the building to be demolished or removed The owner of the premises, any person entitled to act on a development consent or complying development certificate or any person acting otherwise than in compliance with a development consent or complying development certificate (b) Work has been unlawfully carried out

[9]

The Douglas Partners' remediation scheme

As can be seen from the above set out operative requirements of the Council in the s 121B orders issued to Mrs and Mr Gordon, the required rectification works are those described in a scheme prepared by Douglas Partners, a firm of consulting engineers - a scheme supported by plans prepared by Lindsay & Dynan Pty Limited (Lindsay & Dynan), a firm retained by Douglas Partners to prepare those plans.
The Council had commissioned Douglas Partners, in 2012, to inspect the site and prepare a proposal for rectifying the site. Douglas Partners provided the Council its response in February 2013. The response comprised three elements: 1. A discursive report dated 18 February 2013 (Exhibit GB-1 to the Affidavit of Greg Brook, 27 November 2015, Document 48, folio 395); 2. A more detailed schedule of staging of proposed rectification works prepared by Douglas Partners (Exhibit GB-1 to the Affidavit of Greg Brook, 27 November 2015, Document 48, folio 401); and 3. Drawings prepared by Lindsay & Dynan to explain that which had been described in the Douglas Partners' documents (Exhibit GB-1 to the Affidavit of Greg Brook, 27 November 2015, Document 48, folios 404 to 412).
It is to be noted that the first page of the first and each page of the second of these documents has a boxed annotation in the following terms: ALL WORKS SUBJECT TO VERIFICATION BY THE DESIGN ENGINEER COMMISSIONED BY THE SITE DEVELOPER
The same notation appears toward the bottom right-hand corner, in unboxed form, on each of the Lindsay & Dynan plans.
These documents collectively comprise the "Douglas Partners' scheme".
Mr O'Gorman-Hughes submits that these documents do not provide a sufficiently certain description of the works required by the Council in order to restore the site to the position that it was in prior to Mr Gordon commencing his excavation works. As a consequence, he submitted that the orders purporting to rely on these documents as their foundation for implementation were invalid. It is, therefore, necessary to consider these documents in some little detail.

[10]

The late submissions

After I had reserved my decision on 24 March 2016, further written submissions by Mr Connors, counsel for the Council, (on an aspect of the issue of certainty of the orders made by the Council based on the Douglas Partners' report, the attached Douglas Partners' specification and Lindsay & Dynan plans) were e-mailed to my Associate on 29 March 2016. No leave had been granted for such submissions nor had I requested that they be provided.
In response to an objection from the Gordons' legal representatives, my Associate indicated that, if the Gordons wished to make submissions in reply, I would deal with the matter on that basis but, if not, the Council would need to make an application for leave to reopen. I was subsequently advised that the Gordons would deal with the matter by making submissions in reply. Mr O'Gorman-Hughes did so with them being received on 30 March 2016. I read both documents at that time.
These written submissions by Mr Connors on behalf of the Council are comparatively brief, and those by Mr O'Gorman-Hughes in response are even briefer. It is, therefore, convenient to set them out in full.
The written submissions from Mr Connors were in the following terms: S 121B - Order 12 1 In the course of final submissions in this matter the Court raised the issue of the potential discrepancy between the wording of Order 12, the Douglas Partners Guideline Specification and Lindsay Dynan plans. 2 Order 12 of s 121B relevantly provides: To do such things as are specified in the order to restore premises to the condition in which they were before work was unlawfully carried out. 3 The Douglas Partners "Guideline Specification for Slope Remediation Earthworks" states: GG.1 The purpose of this guideline specification is to describe a suggested method of slope remediation of ground disturbance due to former earthworks …. GG.2 The suggested method of remediation involves: Reshaping of the landform to more closely resemble conditions on the site prior to the development, where practicable by means of regarding only. Benching of the site and placing soil-filled geotextile "pillows" in areas where regarding only is not practicable; and Re-vegetation of the areas of disturbance and remediation. 4 The Lindsay & Dynan plans also show that the works were not intended to restore the entire site to the exact landform that existed prior to the work being carried out. Submission 5 S 121B order 12 requires that the premises (which includes land) be restored to the condition in which they were (it was) before the unlawful works were carried out. That is a stable condition. 6 It is not the restoration of the exact landform that existed prior to the works being carried out that is required in this instance. 7 The restoration required is the restoration of the stability of the slope (that is returning the land to a stable condition) as it was before the unlawful works were carried out.
Those in reply from Mr O'Gorman-Hughes read: 1 The unchallenged evidence was that the order would not restore the land to a stable condition (affidavit of Garry Mostyn at [39], [50]). 2 The Applicant's submission assumes that the reference to "the condition" in s. 121B can be limited to one aspect of the land's condition (such as its stability) and exclude others (such as topography). The use of the definite article before the word "condition" does not suggest such a result was intended. Had the legislature intended such a construction, it could easily have drafted the provision to enable the order to require the recipient to remedy the breach (language used in s. 124), rather than rather than (sic) restore it to its former condition. 3 On the Applicant's construction, an order which required the land to be altered to a level of four metres lower than its previous level (as was the case here) would be restored to "the condition" in which it was. This would be an absurd result. 4 In construing a statute, the Court should give the words of a provision the meaning that the legislature is taken to intended them to have, and to consider the language of the statute as a whole: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and [78].

[12]

The first step - the terms of the Douglas Partners' scheme

I have earlier set out the broad nature of the three documents that, taken collectively, can be described as the Douglas Partners' scheme. For this phase of my analysis, it is unnecessary to deal with the second and third elements; they will require attention in my consideration of the second step when considering the challenge to validity of the orders made against Mrs and Mr Gordon.
The Douglas Partners' covering letter of 18 February 2013 is a little over three pages in length. It deals with the matters set out under five headings. These are: 1. Introduction; 2. Purpose of design; 3. Design assumptions; 4. Comments; and 5. Limitations.
The material that is set out in the letter under the first three headings assists in understanding the critical, later headings in the document. The letter was signed by two Senior Associates, and there is no basis upon which to question their authority to speak on behalf of Douglas Partners, an established engineering consulting firm of good reputation. It is convenient, for the understanding of the remainder of my consideration of this aspect of matters requiring determination, to set out this introductory material in full. It reads: 1. Introduction Douglas Partners Pty Ltd is pleased to provide Lake Macquarie City Council with this letter and guideline specification for earthworks to remediate ground which was disturbed by earthmoving activities at 12 Ebsworth Street, Redhead (the "site"). The site is identified in a notice of determination by Lake Macquarie City Council for development application DA/2469/2007 as Lot 13 in Sec 26 DP3109. It is understood that the earthworks which caused the disturbance of the site were carried out on various occasions between February 2008, when Council determined the development application, and early 2012. Council informed Douglas Partners that the owner of the above property acted illegally in carrying out the earthworks on site to date. The mode of slope failure is envisaged as degradation and erosion of the existing soil batters which results in slumping of soils in the elevated parts of the site and undercutting of ground beyond the site boundaries. Previous assessments by Douglas Partners have indicated that a credible risk of damage to adjoining properties and a marginal risk of loss of life to the most vulnerable elements exist due to slope failure. Douglas Partners has previously advised Council that these risks would gradually increase in the longer-term while the disturbed slopes remain undeveloped and the effects of weathering cause further deterioration of the exposed soils. Douglas Partners understands that Council is seeking an Order in the Land and Environment Court of NSW which would require the property owner to do certain works to ensure the stability of the property in the longer term. Council provided electronic files (pdf and dwg format) of a contour survey plan prepared by Civilake City Projects (ref P2007/03732, Drawing No 2651, dated 17-5-12) to assist Douglas Partners' assessment of the feasibility of slope remediation earthworks on the site. Douglas Partners also relied on information contained in a report by Barker Harle (ref 71136, December 2007), which included a plan with limited contour survey information for the site prior to the date of Council's determination of DA/2469/2007. Based on these documents, Douglas Partners arranged for Lindsay & Dynan Pty Ltd to prepare drawings which would outline the approximate location and extent of slope remediation measures required on site. The purpose of the work by Douglas Partners and Lindsay & Dynan was to provide a guideline specification with design drawings of measures to remediate the disturbed slopes at the subject site to support Council's submission to the Land and Environment Court in this matter. 2. Purpose of Design The system of slope remediation envisaged for the site involves the use of geosynthetic materials filled with soils won from the site. The purpose of this system is to provide improved resistance to erosion compared to the disturbed slope profile. The objective of the slope remediation work is to mitigate the potential for soil attrition leading to mass soil movement and slope instability. It is envisaged that the slope remediation works would be designed and constructed as a low-cost modular system which limits the potential for sterilising the site in terms of the cost of future development. 3. Design Assumptions The soil profile exposed by excavation on and adjacent to the site was observed by Douglas Partners to be a predominantly clay soil of very stiff to hard consistency. A mantle of loose sandy soils overlies the residual clay profile within these excavations. The sandy soils are also present in a stockpile of materials near the front of the property. The following geotechnical parameters were adopted for the purpose of preliminary design of the rectification works: Minimum required bearing capacity of 150 kPa for foundations supporting slope remediation measures; Drained angle of internal friction of 20° and cohesion of 25 kPa / undrained cohesion of 35 kPa for global slope stability analysis of clay soil; Drained angle of internal friction of 26° and drained cohesion of 0 kPa for global slope stability analysis of loose sands overlying clay soil; and Drained angle of internal friction of 25° and drained / undrained cohesion of 15 kPa for slope stability analysis of sand-filled geosynthetic materials, assuming shallow slope failure. The above guideline criteria may be used for design of the works to final site arrangements by the developer of 12 Ebsworth Street, Redhead.
This material is then followed by two paragraphs under the heading "Comments". These paragraphs set out what Douglas Partners says it is providing in the accompanying specification and plans. This section of the letter reads: 4. Comments As part of the feasibility assessment, Douglas Partners carried out a preliminary analysis of global slope stability for the site in order to verify that the envisaged rectification measures would not adversely affect global site stability. The results of the analysis indicated that the factor of safety (FoS) against instability of the slope in a post-rectification condition would be no less than the FoS for the pre-rectification condition. For both site conditions, the preliminary stability analysis gave FoS values of the order of 1 5 to 2 5 for the drained case and 1 3 to 2 0 for the undrained case, respectively These assessed FoS values would normally be considered appropriate for residential development sites. This guideline specification for slope remediation earthworks is accompanied by a set of feasibility design drawings showing a suggested layout and work method for rectification of the disturbed ground Douglas Partners engaged Lindsay & Dynan Pty Ltd as an engineering sub-consultant specialising in civil design for the purpose of preparing the drawings.
Critically, in this analysis, what follows under the heading "Limitations" is the quite clear description by the authors of what Douglas Partners is, expressly, not holding itself out as providing. The material under this heading is in the following terms: 5. Limitations Douglas Partners has prepared this report for this project at 12 Ebsworth Street, Redhead, in accordance with Douglas Partners' proposal 49778 02-L01 dated 12 June 2012 and acceptance received from Lake Macquarie City Council by email dated 13 July 2012. The work was carried out under Douglas Partners' Conditions of Engagement. This report is provided for the exclusive use of Lake Macquarie City Council and the developer of the site at 12 Ebsworth Street, Redhead, for this project only and for the purposes as described in the report. It should not be used by or relied upon for other projects or purposes on the same or other site or by a third party. In preparing this report Douglas Partners has necessarily relied upon information provided by the client and/or their agents. Douglas Partners' advice is based upon the conditions encountered during walkover assessments of the site made on 17 June 2011 and 2 May 2012. The accuracy of the advice provided by Douglas Partners in this report may be affected by variations in ground conditions across the site which were undetected during the walkover assessments. The advice may also be limited by budget constraints imposed by others or by site accessibility. This report must be read in conjunction with all of the attached and should be kept in its entirety without separation of individual pages or sections Douglas Partners cannot be held responsible for interpretations or conclusions made by others unless they are supported by an expressed statement, interpretation, outcome or conclusion stated in this report. This report, or sections from this report, should not be used as part of a specification for a project without review and agreement by Douglas Partners. This is because this report has been written as advice and opinion rather than instructions for construction. (emphasis added) Please contact either of the undersigned for clarification of the above as necessary.
At this point, it is convenient to contrast the above express limitations with the use that the Council has purported to make of the Douglas Partners' scheme, as a package, despite these express limitations. The terms of the relevant portion of the orders addressed to Mrs and Mr Gordon purporting to treat the Douglas Partners' scheme as certain and capable of implementation with a high degree of precision was earlier set out. It is, however, appropriate to repeat it for the purposes of this contextual analysis. The relevant portion of the orders to Mrs Gordon reads as follows: Terms of Order As the owner of the premises Lot 13 Sec 26 DP3109 known as 12 Ebsworth Street, Redhead, NSW (the "Premises"), Lake Macquarie City Council (the "Council") hereby orders you to restore the Premises to the safe and stable condition in which it was before unlawful works were carried out. In order to do this you are to: Within 40 days of the date of this Order carry out all works in accordance with the Douglas Partners Guideline Specification for Slope Remediation Earthworks Lot 13 Sec 26 DP 3109, No 12 Ebsworth Street, Redhead dated February 2013; and the drawings prepared by Lindsay & Dynan Pty Limited (Project Ref No 9890) no. C00, C06, C07, C08, Rev 0 dated 19/02/2013; and Within 45 days of the date of this Order provide to Council a report from a Geotechnical Engineer confirming that the works in paragraph (a) above have been carried out.
It is important to note that the letter from the Council's legal representatives to Mrs and Mr Gordon, in this regard, noted (Exhibit GB-1 to the Affidavit of Greg Brook, 27 November 2015, Document 48, folio 393) that all three documents comprising what I have described as the Douglas Partners' scheme were provided to Mrs and Mr Gordon. Indeed, the covering letter is expressly mentioned in this correspondence in the following terms: … We also enclose a copy of the report prepared by Douglas Partners dated 18 February 2013 and the following drawings prepared by Lindsay & Dynan Pty Limited (Project Ref No 9890): a) drawings no. C01, C02, C04, C05, Rev 0 dated 19/02/2013; and b) drawing no. C03, Rev 1, dated 27/05/2013, so that you have a complete understanding of those works sought by Council.
It is clear from the face of the Douglas Partners' report that the authors could not be interpreted as providing a scheme of sufficient certainty as to be able to be relied upon for implementation. It is also clear, from the face of the Douglas Partners' report, that the schedule of works and plans were intended to provide a substantive and substantial platform upon which an implementation scheme could be founded.
However, it is equally clear that, to get to the implementation stage, the authors anticipated that the documents provided by them would be refined further by an engineer retained by Mrs and/or Mr Gordon and that that refinement would not merely be of the nature of minor supervisory adjustment prior to, or during the course of, carrying out a scheme of works that they had provided.
The terms of the reliance by the Council on the Douglas Partners' specification and plans is, in light of the limitations expressly set out in the report, entirely misplaced. It therefore follows that the express lack of certainty, and the necessity for further, more than minor, refinement being necessary to achieve certainty for the Douglas Partners' schedule of works and plans, means that there is no valid foundation for any order purporting to be based entirely on them.

[13]

The second step - the possible outcome of the Douglas Partners' scheme

If, contrary to the above conclusion, it was appropriate and possible merely to require implementation of the Douglas Partners' scheme, it is then necessary to consider whether doing so would restore the site to the state that it was in before Mr Gordon commenced his earthwork activities, this being what is required as the outcome mandated by making an order 12 from the table to s 121B.
Consideration of whether or not this would be achieved requires my attention to be turned to the second and third documents of the Douglas Partners' scheme. The first of these, the step-by-step schedule of works, is divided into a number of parts set out over three pages. These parts are under the following headings: 1. General; 2. Slope Preparation; 3. Remediation Earthworks; and 4. Revegetation.
The third element of the Douglas Partners' scheme comprises the set of drawings prepared by Lindsay & Dynan as subconsultants to Douglas Partners. These drawings (Exhibit GB-1 to the Affidavit of Greg Brook, 27 November 2015, Document 48, folios 404 to 412) comprise nine plans with the following titles: 1. Cover page and construction notes; 2. Current surface profile; 3. Approximate previous surface profile; 4. Surface comparison plan; 5. Existing surface profile sections 1 of 2; 6. Existing surface profile sections 2 of 2; 7. Sediment and erosion control plan and details; 8. Suggested layout of benching; and 9. Suggested benched surface profile - sections.
Two of these plans are critical for understanding what would be the outcome if the Douglas Partners' scheme were to be implemented. The first of those is the plan at folio 406 (Exhibit GB-1 to the Affidavit of Greg Brook, 27 November 2015, Document 48), a plan that provides the best available information as to the topographic configuration of the site before Mr Gordon commenced his earthworks.
The second is the plan at folio 407 (Exhibit GB-1 to the Affidavit of Greg Brook, 27 November 2015, Document 48) that shows, overlain on the original contours, the anticipated form of the site after the sand-pillow benches would be installed as envisaged by the scheme. The nature of the sand-pillow benches, in schematic section, is shown, for example, on the plan at folio 411 (Exhibit GB-1 to the Affidavit of Greg Brook, 27 November 2015, Document 48).
All of the Lindsay & Dynan plans were in evidence as A3 sheets rather than as being at A1 as were the originals (as shown by an examination of the sheet-size annotation shown on the documents in evidence). However, to enable an understanding of my conclusion, I attach a copy of the above before-and-after topographic plans reproduced at A4.
It is clear that the benching arrangements shown in plan and section as the outcome of implementation of the Douglas Partners' scheme does not mimic, with faithful accuracy, the contours of the site as depicted in the plan showing the site's position prior to Mr Gordon commencing his earthworks. Indeed, given the fact that the contour interval shown on the original plan is 500 millimetres and there is no way of knowing the rate and nature of the transition between the contour intervals, it could never be possible to restore the land, if the use of that word in the table to s 121B required millimetric precision as to its outcome.
Indeed, reading the word in that fashion, I am satisfied, would be so restrictive as to render compliance impossible in many, if not most, circumstances where such an order was made. Requiring a degree of precision incapable of achievement would seem to me to be contrary to the legislative intent.
As Mr O'Gorman-Hughes submitted as earlier set out, Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 requires interpretation of the statute in a fashion consistent with the intent and purpose for which the provision being considered was enacted.
However, it is also permitted to import words, notionally, into a statute where the importation of the words is necessary and appropriate to obtain a proper understanding of what could be seen to be the legislative intent of the provision.
In Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9, 253 CLR 531, 88 ALJR 473, the plurality (French CJ, Crennan and Bell JJ) said (omitting the footnoted citations): Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction "reads up" a provision, giving it an extended operation, or "reads down" a provision, confining its operation, may be moot. The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".
In these circumstances, it seems to me that, in this instance, the word "restore" is to be read as if qualified by the words "to the extent reasonably possible", given the facts and circumstances of the particular case, so that the outcome will be sufficiently similar to the pre-existing position to be able to be recognised as a functional restoration of that position.
Viewed through that conceptual interpretation lens, that which is proposed by the Lindsay & Dynan plans as the outcome of the Douglas Partners' scheme would, in fact, amount to a restoration of the site with sufficient accuracy to satisfy the terms of the orders made against Mrs and Mr Gordon.
Although modification might have been necessary (as envisaged by the boxed comment) to address Mr Mostyn's stability concerns noted in Mr O'Gorman‑Hughes' written submissions, such adaptation is envisaged within, and able to be accommodated by, the Douglas Partners' scheme's structure.
In this context, the requirement in the disclaimer box earlier adverted to should be read as merely requiring detailed supervision and refinement of implementation of the Douglas Partners' scheme to fine tune it and not significant further design work to refine the scheme to a state able to be carried out on the site.
As a consequence, if I am wrong in my earlier conclusion that the first documentary element of the Douglas Partners' scheme renders the scheme inappropriate to found the orders purportedly made against Mrs and Mr Gordon, it would follow that the second and third elements of the scheme would provide an appropriate basis, if implemented, to satisfy the requirements of those orders.

[14]

An agreed remediation plan

Following the mention before me on 9 February 2016, when it was indicated on behalf of the Gordons that they would require the services of a new geotechnical engineer as their then current expert would not be available for the hearing dates, the Gordons subsequently engaged Mr Mostyn of Pells Sullivan Meynink (PMS), Engineering Consultants.
Although there was some slippage in the pre-trial timetable, this was able to be accommodated as a site inspection was no longer required, with the consequence that the commencement of the trial could be pushed back by a day. Mr Mostyn provided an affidavit setting out an alternative remediation plan to return the site, in general terms, to the general slope configuration on the site prior to Mr Gordon undertaking his excavation endeavours.
Mr Mostyn proposed the employment of a different technique to achieve this outcome, a technique involving the use of crushed concrete to create a series of steps, as stabilised benches, up the site. This construction technique is to be contrasted with that of the proposed sand-pillow method earlier described forming the basis of the Douglas Partners' scheme and the related Lindsay & Dynan plans.
Mr Mostyn's proposal was referred by the Council to their consultant geotechnical expert, Dr Allman, for his consideration. The proposal was also provided to the Council's in-house landscape architect, Ms Pollock, for her expert comments. Each of them produced an expert report, within their own discipline, responding to Mr Mostyn's proposals.
Dr Allman's commentary on Mr Mostyn's proposal was, to be fair, mildly critical (as to some detail and as to elements lacking sufficient information) but was not entirely dismissive of the proposal as a basis for an alternative approach.
Ms Pollock's comments were reflective of her concerns about the potential visual impact of adopting Mr Mostyn's approach. Her concerns arose as a consequence of the visual prominence of the site in its local context, particularly the upper levels of it, when viewed from the public domain not only in the immediate vicinity but from a longer view perspective. She had two particular concerns, with the first being the grey colour of the proposed crushed concrete material and, the second, the lack of landscaping proposed to be incorporated in the finished remediated site outcome.
As my reading of Dr Allman's and Ms Pollock's responses to Mr Mostyn's proposal caused me to conclude that there was a significant prospect of an agreed resolution between these experts and Mr Mostyn if they were directed to confer, I proposed that course to Mr Connors and Mr O'Gorman-Hughes. They agreed that such a course was desirable and the experts were directed to confer on the following topics: 1 Is any remediation proposal based on Mr Mostyn's proposals agreed to be acceptable as to its: a. technical viability; b. visual acceptability; c. capability of permitting construction of the approved dwelling (with or without modification to the plans); and d. provision of an acceptable geotechnical outcome for the site (including appropriate protection for the uphill and downhill neighbours)? 2 If no, what changes need to be incorporated into Mr Mostyn's proposals to achieve these outcomes? 3 How should implementation of such a plan, assuming one is agreed, be staged for implementation?
The three experts conferred, extensively, on the afternoon and into the evening of the first day and, after being given some further clarifying directions as to what was sought of them, further conferencing took place on the second day of the hearing. This conferencing produced an agreed scope of works with limited disagreement as to timing for its achievement.
After a short session of concurrent evidence, during which the general question of timing for the remediation works (after the making of orders requiring them) was discussed, concurrently, by Dr Allman and Mr Mostyn, the parties agreed to the timetable originally proposed by the experts and now to be incorporated in the orders at the conclusion of this decision.
The further question of how the ongoing inspection process should be incorporated in orders was also resolved by agreement and is also now to be incorporated in the terms of the orders.
As a consequence, that which is to be incorporated in the orders as embodying the merit methodology and the timing of the remediation process is agreed, but one (fundamental) matter remained in dispute preventing that section of the outcome from being made as consent orders. The fundamental dispute between the parties is whether or not those orders should be made against Mrs Gordon as well as against Mr Gordon. The outcome of my conclusion on this point (as later set out) is reflected in the orders after the conclusion to this judgment.
That matter arises as a consequence of the validity of the order made pursuant to s 121B of the EP&A Act being challenged by Mrs Gordon on several bases, and a denial that she had carried out development within the terms of s 76A of the EP&A Act. The outcome, if both these challenges are sustained, is that the agreed remediation orders to be made should only be made against Mr Gordon rather than against Mrs Gordon as well.

[18]

Mrs Gordon's evidence

The appropriate commencing point in my consideration of Mrs Gordon's evidence is the material that is contained in her affidavit read in these proceedings. As this affidavit is not a lengthy document, it is appropriate (omitting formal elements) to reproduce the substantive portions in full. Those elements of her evidence read: 2. I am the First Respondent in these proceedings and am the registered proprietor of land at 12 Ebsworth Street, Redhead (the Land). I purchased the Land under contract dated 7 October 2008 which settled on 5 May 2010. 3. I am aware that on 27 February 2008 the Applicant, Lake Macquarie City Council granted development consent to Paul Aston McKenzie for the construction of a dwelling on the Land (the Consent). At the time of entering into the contract to purchase the Land I was aware of the Consent. Ever since then I have intended to have the dwelling referred to in the Consent (Dwelling) constructed on the Land. 4. My husband is the Second Respondent in these proceedings. I recall that some time soon after the date on which I signed the contract to purchase the Land he said to me words to the effect of "I am going to do some work on the property in Ebsworth Street". 5. I knew that my husband was eager to build me a family home as we were renting at the time, and he had promised me that I would have a home by the time I was 60. I am now 61. I was happy to leave it to him to organise the building of the Dwelling, and comply with any legal requirements, as he is familiar with construction. I remember him showing me the plans for the Dwelling and explaining to me that with the Consent in place work could start straight away. That is the only time that I can recall sighting those plans. 6. I am aware from the Summons served on me in these proceedings that the Applicant is claiming that I have failed to comply with an Order No. 12 pursuant to section 121B of the Environmental Planning and Assessment Act 1979 dated 22 September 2014 which was addressed to me. I do not recall having ever received that Order. 7. I am aware from discussions with my husband that some of the correspondence from Council has been addressed to me. I have not received correspondence from the Council because all correspondence is sent to our PO Box address which I rarely check. My husband almost all of the time is the one who clears the PO Box. From time to time he explains to me if I have to do anything such as sign a document or speak with the lawyers. I have not had any dealings with Council officers in relation to work on the Land but have left it to my husband to work with Council to solve any problems. 8. It continues to be my intention that the Dwelling be constructed on the Land. My preference is that the Court make orders that are consistent with the proposed house design. I wish for work to construct the Dwelling to proceed promptly (barring unforeseen circumstances) to achieve a practical outcome for the Land and the locality. I consider the Land to be a unique site that would be great for my family home, hopefully in the near future.
Mr Connors also cross-examined Mrs Gordon. To understand the nature of her oral evidence it is appropriate to return, briefly, to a description of the element of the suburb of Redhead within which Mrs and Mr Gordon reside and within which the site giving rise to these proceedings is also located.
Access to and from this north-eastern enclave portion of Redhead is via a single road, Beach Road. There is a limited grid of streets within the enclave. Near the south-western corner of the enclave, there is pedestrian access across a public park to Redhead Beach.
The routes chosen by Mrs Gordon for her vehicle movements in and out of this enclave, and chosen by her for her pedestrian access to Redhead Beach, were the subject of a deal of Mr Connors' cross-examination.
In the interests of timely disposal of these proceedings, given that the settled remediation process will not commence running until orders have been made, I indicated to Mr Connors and Mr O'Gorman-Hughes that I proposed to prepare this decision based on my notes rather than waiting for the preparation of a formal transcript. Hence, that which follows concerning Mrs Gordon's oral evidence is drawn from those notes.
During the course of her cross-examination, Mrs Gordon was provided with a map of the north-eastern enclave of Redhead and she was asked to mark on it her place of residence and the site at 12 Ebsworth Street where Mr Gordon had been undertaking the unauthorised excavation works. This map subsequently became Exhibit A.
She gave evidence that she worked part-time in Newcastle as a counsellor and that she travelled to and from her place of employment by car. She was asked by Mr Connors what was the ordinary route that she took to and from the Beach Road access to the enclave on these journeys. She indicated that she took a route, generally, that avoided driving past 12 Ebsworth Street - taking, in the process, a significantly longer route than would be the case if she drove past 12 Ebsworth Street.
On my calculation, the route that Mrs Gordon said she regularly (but not always) travelled in moving to or from the enclave by car involved a distance of approximately 950 metres, whereas that taking her past the site at 12 Ebsworth Street would be some 300 metres or so shorter.
She also said that, on the occasions when she did choose to drive past 12 Ebsworth Street, she averted her eyes when doing so. She said that the primary reason why she did so was because of an elbow bend to the right where Ebsworth Street became Beach Road, an elbow bend that is, on my examination of Exhibit A, a distance of at least 30 metres or so past the southern boundary of 12 Ebsworth Street (this distance being inferred from the width of the Ebsworth Street frontage of the site being 15 metres, derived from the Lindsay & Dynan plans earlier discussed and the fact that the frontage of the allotment to the south shown on Exhibit A is generally consistent with the frontage of 12 Ebsworth Street and there is a reserve area of similar width before the bend). Her secondary reason was the stress the site caused her.
Mrs Gordon explained that the reason why she avoided travelling past 12 Ebsworth Street was that this caused her considerable stress which she wished to avoid. She also indicated that this stress, caused by observing the site, was also an element that played on her mind on the occasions when she did drive past it - this contributing to but not being the sole cause of her choosing not to look into the site on such occasions.
She also responded to an enquiry from Mr Connors as to whether she discussed these stressors with her husband, but she indicated that she did not do so as she wished to avoid having arguments with him.
Mrs Gordon also volunteered that, when she walked to Redhead Beach, she chose to follow a route based on the more circuitous path she follows ordinarily when driving into or out of the enclave. On my calculation, from Exhibit A, this means that she chooses to walk nearly 1,200 metres to access the beach rather than the nearly 650 metres that would comprise the shorter pedestrian route that would take her past 12 Ebsworth Street. This route was for stress avoidance.

[19]

The undertakings signed by Mrs Gordon

On two occasions, in correspondence from the Council's legal representatives addressed to Mrs and Mr Gordon, draft undertakings were provided addressing matters of concern arising out of Mr Gordon's activities on the site. Each of these undertakings was executed by Mrs Gordon. The first of them, dated 9 June 2011, was in the following terms: UNDERTAKING I, Mrs Dianne Joy Gordon, undertake to Lake Macquarie City Council ("Council"): 1. To immediately cease all works, being earthworks and excavation on the premises known as 12 Ebsworth Street, Redhead, NSW being Lot 13 Section 26 DP 3109. I understand the nature of this undertaking and note that the Council has advised me to seek independent legal advice before signing this undertaking. (Exhibit GB-1 to the Affidavit of Greg Brook, 27 November 2015, Document 22, folio 248 - in Vol 2 of the Council's exhibits)
The second of them was dated 11 October 2013 and is in the following terms: Hugh Charles Gordon and Dianne Joy Gordon of 19 Bennett Street, Redhead, NSW hereby undertake to Lake Macquarie City Council: 1. That within 120 days of the date of this Undertaking to complete all remedial works in accordance with the Douglas Partners Guideline Specification for Slope Remediation Earthworks Lot 13 Sec 26 DP 3109, No 12 Ebsworth Street, Redhead dated February 2013; and the drawings prepared by Lindsay & Dynan Pty Limited (Project Ref No 9890) no. C00, C06, C07, C08, Rev 0 dated 19/02/2013. (Exhibit GB-1 to the Affidavit of Greg Brook, 27 November 2015, Document 58, folio 446 - in Vol 3 of the Council's exhibits)
The letter requesting that Mrs Gordon execute this first undertaking was dated 2 June 2011 and was addressed to her personally at the street address at which she then and now resides in Redhead. The letter attached the undertaking in the terms set out above and as executed by Mrs Gordon. The terms of the letter were: Dear Madam, LOTS 13 Section 26 DP 3109, 12 Ebsworth Street, Redhead ("the land") I act for Lake Macquarie City Council. A search of the Land and Property Information NSW has shown that you are the registered proprietor (owner) of the land. The land falls under the provisions of the Lake Macquarie Local Environmental Plan 2004 (LMLEP 2004). The land is zoned 2(1) Residential under the LMLEP 2004. The term "earthworks" is defined in the Dictionary to the LMLEP 2004. Development for the purpose of earthworks on the land may only be carried out with development consent under the provisions of the LMLEP 2004. Council officers attended the land on 31 May 2011 and observed development for the purpose of earthworks being carried out on the land by Mr Hugh Charles Gordon. I am also instructed that development consent DA/2469/2007 for development of a dwelling on the land was issued by the Council on 27 February 2008. I am instructed that the Council has conducted a search of its records and that there is no development consent for the development of the land for the purpose of earthworks and no construction certificate has been issued for any building works on the land under DA/2469/2007. Accordingly, you are in breach of sections 76A(1) and 81A(2) of the Environmental Planning and Assessment Act 1979. In light of the above, Council requires you to execute the attached undertaking in relation to the above matters by close of business on 9 June 2011. The Council recommends that you seek independent legal advice before signing this undertaking. Your failure to provide such an undertaking or, if you do provide such an undertaking and it is breached, will result in proceedings being immediately instituted in the Land and Environment Court of New South Wales without further notice to you. Council will rely on this letter in any application for costs. (Exhibit GB-1 to the Affidavit of Greg Brook, 27 November 2015, Document 21, folio 243 - in Vol. 2 of the Council's exhibits)
The letter to the Council seeking the signing of the joint undertaking was dated 2 September 2013. It is unnecessary to set out its terms.
There are three observations to be made with respect to the second undertaking that was sought. The first was that the Council sought that the undertaking be given by 9 September. The second was the date in (2) of the undertaking as originally drafted - it became the sole operative paragraph in the undertaking actually given - was to be effected within 90 days of the date of the undertaking. The third was that the original (1) - later omitted and the omission accepted by the Council's legal representatives - required an undertaking: To immediately cease carrying out all works on the Land, except as provided in paragraph (2) below.
E-mail correspondence then took place between the Council's solicitor and Mr Gordon (although purportedly on behalf of Mrs and Mr Gordon), with the revised undertaking as actually executed by Mrs and Mr Gordon being offered by the Council's legal representative under cover of a letter of 3 October 2013. The revised undertaking offered in this correspondence retained the 90-day time period for compliance.
However, as set out in the terms actually shown above of the executed undertaking, the figure "90" was struck through and the handwritten figure "120" inserted in lieu thereof. The undertaking as executed was transmitted to the Council by e-mail from Mr Gordon on 14 October 2013.
Acceptance by the Council of the undertaking in this amended form is implicit from the terms of the Council's letter of 22 October 2013 addressed to Mrs and Mr Gordon at their post-office box address at Charlestown, with the notation that a copy was also being sent by e-mail.
It was Mrs Gordon's evidence, as earlier set out, that Mr Gordon had effective control of the flow of correspondence addressed jointly to them by or on behalf of the Council. However, I am unable to accept that she blindly signed documents of this nature simply because Mr Gordon instructed her to do so and that, at the time of signing, she made no examination whatsoever of the terms of the document - merely signing it as if she were wearing a metaphoric blindfold. Each of the documents is, self-evidently, brief and explicit in its terms.
Although the first undertaking signed by Mrs Gordon was witnessed by Mr Gordon, the joint undertaking was witnessed by a third party. As discussed in more detail later, this fact assists in reaching the conclusion that she had not merely signed a document put in front of her by her husband, and which she was simply instructed to sign.
It is impossible to accept that she had absolutely no knowledge of the nature of the documents she was executing, as even a cursory examination of either of them makes the nature of each document clear.
Mrs Gordon's execution of the first undertaking to the Council, and the explanation in the covering letter concerning Mr Gordon's activities requiring development consent and not having it, means that, whatever the precise extent of her knowledge of the detail of his activities, she was aware that those activities lacked valid approval and that she and he were required to take the steps that they had agreed to in each undertaking to address the Council's concerns about those unapproved activities.

[21]

Consideration of Mrs Gordon's position

I observe, simply to record what should be a self-evident fact, that nothing in these proceedings turns on the fact that Mrs and Mr Gordon are married.
However, there are a number of factual conclusions to be drawn from Mrs Gordon's evidence that are relevant to my consideration of whether there is available, at law, any proper foundation for making declarations and orders against her. The factual conclusions that should be drawn for this purpose are as follows: 1. First, even if Mrs Gordon was not completely aware of the concerns that the Council had about her husband's activities on the site, her signing of the two undertakings (Exhibit GB-1 to the Affidavit of Greg Brook, 27 November 2015, Document 22, folio 248 (Vol. 2 of the Council's exhibits) and Document 58, folio 446 (Vol. 3 of the Council's exhibits)) meant that, at least since the date of the first of those undertakings on 9 June 2011, she was aware of Council's concerns at the need for, and lack of development consent for, the activities her husband was undertaking on the site; 2. I do draw the conclusion that the correspondence by P J Donnellan & Co, Lawyers, to the Council reflects instructions given by both Mrs and Mr Gordon and that this correspondence was written on proper instructions and that those instructions were given by Mrs and Mr Gordon. The first element of this correspondence is dated 21 October 2014; 3. Mrs Gordon's avoidance of travelling past the site or, on the limited occasions when she did so, seeking to avoid looking at the site clearly reflects her awareness of the fact that Mr Gordon was carrying out activities on site that were ones that lacked proper authorisation; 4. Her describing herself as being stressed by what was going on at the site provided the reason for this avoidance. This description of the stress that the site occasions her reinforces my conclusion that she must have been aware that Mr Gordon's activities were being conducted without proper authorisation; 5. The fact that Mr Gordon had control of, and dominated consideration of, correspondence sent by the Council, and addressed to both of them, or correspondence generated, purportedly on their joint behalf, by Mr Gordon, when combined with the fact that she was aware that his activities were unauthorised and that the Council was concerned about them, reinforces the conclusion that she was not only aware of the unauthorised nature of his activities but chose not to seek to intervene with him about them; 6. Her acknowledgement that she did not discuss his activities or any matters concerning the Council with Mr Gordon as she wished to avoid arguments is, in itself, reflective of the fact that she was clearly aware that the status of his activities, and the Council's concern about them, would necessarily give rise to disputation between them. This position necessarily reinforces the conclusion that she was aware that there was something inappropriate about his activities (although she may not have been aware of the precise extent of those activities); 7. Her expression of concern to him at the cost of excavating equipment on the site lying idle is a specific indication that she was aware that his activities involved excavation (although this specific indicator is unnecessary in circumstances where it is entirely implausible to assume that, on at least some occasions when she drove past the site when leaving or returning to her home, she never looked at the site and observed the nature of Mr Gordon's activities); 8. All the above elements, when combined with her consistent failure to intervene with Mr Gordon (even refusing to discuss his activities on the site with him), leads to the inevitable conclusion that she was aware of, and condoned and, as owner of the site, took no steps to control or stop his activities on the site, even though she had full legal authority to do so.
Having reached these conclusions, it is then necessary to turn to consider whether or not they provide a proper basis for invoking the earlier set out statutory provisions to found declarations and orders being made against her.

[22]

Did Mrs Gordon carry out development in the statutory sense?

As Mrs Gordon is the owner of 12 Ebsworth Street and Mr Gordon has carried out extensive earthworks on that site, it is necessary to consider what should be regarded as the correct relationship between Mrs Gordon and Mr Gordon for the purposes of the carrying out of the works that are admitted to have been carried out by Mr Gordon without development consent. This needs to be considered in light of the conclusions that I have set out, based on Mrs Gordon's written and oral evidence, as to the extent of her knowledge of, and the nature of her engagement with, his activities.
It seems to me to be self-evidently clear that Mr Gordon cannot be regarded as a trespasser given Mrs Gordon's ongoing knowledge of his activity and forbearance of it.
It also seems to me that he cannot be a mere invitee, given not only the extensive nature of the work that he has undertaken but that there has been correspondence addressed by the Council to Mrs Gordon alone, not only to Mrs and Mr Gordon, treating the activities of Mr Gordon as being some form of joint enterprise involving them both. In this regard, it seems to me, for the purposes of the statutory test in s 76A(1), it matters not whether this joint enterprise was conducted as a partnership or by Mr Gordon as agent for Mrs Gordon.
Whichever might be the correct characterisation, it seems to me that the activities can only be regarded as ones for which they have shared responsibility and over which they have shared control.
Indeed, the undertakings executed by Mrs Gordon at the request of the Council (undertakings whose terms were earlier set out) can only be taken as express acknowledgement by her of her awareness of the need for approval for and control over the activities being undertaken on the site.
Before turning to the relevant case law to be considered as to whether or not Mrs Gordon should be regarded as having carried out development in the sense that that concept is engaged by s 76A(1) of the EP&A Act, thus engaging the enforcement provisions of s 124 of that Act, it is of some importance to note, given the reliance by Mr O'Gorman-Hughes on the decision of Preston CJ in North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169, that his Honour was dealing with criminal prosecutions for charges laid under s 125(1) of the EP&A Act rather than dealing with matters pursuant to civil enforcement proceedings under s 124.
The significance of this distinction, of course, is that his Honour was there dealing with the requirement that the prosecutor needed to establish guilt for the charged offences to the criminal standard - that is, beyond reasonable doubt - whereas in these proceedings, being civil enforcement ones, the satisfaction that I must have is on the balance of probabilities.
I accept that, if I do conclude it is appropriate to find Mrs Gordon carried out development, I must have the requisite degree of comfortable satisfaction for this conclusion in light of the consequences of reaching such a conclusion (see Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336) but, nonetheless, there remains a different and lower evidentiary burden on the Council in these proceedings than that which lay on the Council in North Sydney.

[24]

Jones v Dunkel inferences

In Odgers' Uniform Evidence Law, at pp 210 to 212, the learned author discusses the civil proceedings' circumstances when an adverse inference, based on Jones v Dunkel [1959] HCA 8; 101 CLR 298, might be appropriate to be drawn. The passage is in the following terms (footnotes omitted): In civil proceedings, under the common law (the "rule in Jones v Dunkel"), adverse inferences may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected. As a general proposition, one would reasonably expect a party to call a person as a witness if such a person is likely to be able to provide admissible evidence regarding some fact in issue, one would have expected that party (rather than another party) to call the person, and the failure to call the person is not satisfactorily explained. Such a potential witness may be, indeed, a party to the proceedings. Similarly, as a general proposition, one would reasonably expect a party to question a witness regarding a particular fact in issue, if the witness is likely to be able to speak on the fact in issue, one would have expected that party (rather than another party) to question the witness regarding the fact in issue, and the failure to ask the question is unexplained. Similar principles apply in respect of the tendering of documentary evidence. Assuming particular evidence would reasonably have been expected then, as a general rule, the adverse inference that may be drawn from the failure to adduce it is that the evidence, if adduced, would not have assisted the party's case. On the other hand, it cannot be inferred that the evidence would have been unfavourable to the party's case. Put differently, while it may (depending on all the circumstances) be appropriate to conclude that evidence already adduced by the opponent which might have been contradicted by the uncalled evidence may be more readily accepted, and inferences open on the opponent's evidence more readily drawn, the failure cannot fill an evidentiary gap in the opponent's case. Equally, the failure cannot be used to discount the probative value of evidence that has been called by the party and is direct, not inferential, evidence in support of the party's case.
The learned author then continues to set out a summary of the principles contained in the decision of the plurality (Heydon, Crennan and Bell JJ) of the High Court in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [64] of the joint judgment. This passage (footnoted citations omitted) is in the following terms: The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party. But the conclusion by the trial judge that the plaintiff - a party-witness - deliberately withheld evidence reflected a stronger reaction. It operated as a finding that there had been an admission. It could be inferred that the evidence was withheld, in breach of the witness's duty to tell the whole truth in answer to the question, because the plaintiff was conscious that success in the litigation would be rendered impossible or less likely if the material withheld were revealed. Depending on the circumstances, when a party lies, or destroys or conceals evidence, or attempts to destroy or conceal evidence, or suborns witnesses, or calls testimony known to be false, or fails to comply with court orders for the production of evidence (like subpoenas or orders to answer interrogatories), or misleads persons in authority about who the party is, or flees, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. The position must be the same where there is a failure of a party-witness to comply with the duty of a witness to tell the whole truth. There is a reason why failure to call a witness or failure to ask a particular question of a witness supports the possible inference that the witness's evidence would not have assisted the party, while failure of a party-witness to tell the whole truth may support an inference that the party suppressed evidence which would have been damaging to the party-witness. A litigant has no duty to call particular witnesses or to procure that any witnesses called by that litigant are asked particular questions. A litigant who enters the witness box, on the other hand, is under a positive duty to tell the whole truth in answer to the questions asked.
The inference that a party might not be assisted by evidence that might reasonably be expected to be given is relevant with respect to her assertion that she did not read, and had no comprehension of, the terms of the two undertakings that she executed as discussed at [94] to [105] above.
The first of these documents, dated 9 June 2011, was witnessed by Mr Gordon. Mr Gordon has not given evidence in these proceedings and, from the earlier discussion from Odgers, such a potential witness may be a party to the proceedings, as is here the case with Mr Gordon. The learned author cites, inter alia, Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [649] per Giles JA in support of this proposition.
With respect to the second undertaking signed by Mrs Gordon on 11 October 2013, the signatures of Mrs and Mr Gordon were witnessed by the same third party (Jessica McGarry). Ms McGarry was not called to give evidence in the proceedings and no explanation has been proffered as to why this did not occur. Mr Gordon was present throughout the proceedings and also did not give evidence.
Each of Mr Gordon (as to both undertakings) and Ms McGarry (as to the 2013 undertaking) could have potentially given evidence in support of Mrs Gordon's claim that she did not read documents before signing them at the request of her husband. The absence of evidence from such potential witnesses gives rise to circumstances where I might conclude that, on this point, the evidence of Mr Gordon and Ms McGarry would not have assisted the position advanced on behalf of Mrs Gordon. I consider it appropriate to draw that inference.
Similarly, with respect to the P J Donnellan & Co correspondence, the absence of any evidence that that correspondence was not written on proper instructions given by Mrs, as well as Mr, Gordon can be, and should be, the subject of a Jones v Dunkel inference which I also draw.

[25]

The extent of Mrs Gordon's involvement and the conclusions to be drawn from it

Mr O'Gorman-Hughes relied on the limited approach he proposed be taken to s 123 of the EP&A Act by commencing with the general proposition set out by the plurality of the High Court in Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; 220 CLR 472 in the second half of [47] of that judgment. This element is in the following terms: Nonetheless, s 123 of the EPAA is not to be read as conferring power on the Land and Environment Court to make orders to remedy or restrain breaches of the Act against persons who are not themselves in breach of the Act or who, unless restrained, would be in breach of the Act.
The following analysis sets out why I am satisfied that Mrs Gordon should be held to be in breach of the EP&A Act rather than some form of passive fellow traveller to or victim of Mr Gordon's activities and thus should be the subject of declarations and orders (although not all of them for reasons later explained).
I have, in this analysis, considered three earlier decisions of the Court that have considered the question of how an owner of land should be regarded if there is a breach of s 76A of the EP&A Act on that land. One of these decisions is in the Court of Appeal, whilst the others are first instance decisions of this Court. There is a consistency of approach between them and, as a consequence, I merely set them out in the order in which they were determined.
The first in time is the decision of Cripps CJ in Ashfield Municipal Council v Rex Keys Andrews and Ors (1986) 60 LGRA 248 where, at pp 252 and 253, his Honour held that the owners of the land were not in breach of the EP&A Act because they had had no involvement in the activities giving rise to the breach but were, I infer, at arm's length from the person who carried out the activities the subject of complaint.
Wilkie v Blacktown City Council [2002] NSWCA l284; 121 LGERA 444 was an appeal challenging the decision of Pearlman CJ that an injunction should be directed to Ms Wilkie and rectification orders made with respect to her. This was on the basis that Ms Wilkie had not breached s 76A(1) of the EP&A Act but that she had permitted or suffered the unlawful development of the land. Ms Wilkie was a sublessee of the land from the land's owners.
The leading judgment was written by Davies AJA who said, at [57] to [67]: 57 On the evidence accepted by the trial Judge, Ms Wilkie's involvement with the unlawful use of the land was that she was the sub-lessor of the premises and had the capacity to terminate the sublease but failed to do so. By the time of the trial, she was not receiving rent for or paying rent for that land. 58 The trial Judge held that Ms Wilkie's position was analogous to that of an owner of land. Her Honour remarked that there was no relevant difference between the position of an owner of land who permits and suffers a breach of the EPA Act and that of a person in the position of Ms Wilkie who controlled the site as sub-lessor. 59 However, Ms Wilkie was not the owner of the premises and she was not involved in the dumping of material on the land. She had granted a sub-lease which authorised the use of the land for a lawful purpose. Ms Wilkie did not occupy and she was not in control of the land which Mr Reid and Graveyard Recycling used. See, eg, WD & HO Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338. 60 The terms used by her Honour, "permitted or suffered" and "permitting or allowing" describe no category of activity which, absent the use of the expression in a statute, an instrument or a covenant, is known to the law as giving rise to an obligation to remedy a breach. The terms are not wide enough to describe a situation of "aiding or abetting" or of "involvement in the contravention" even if these terms applied to s 124, which they do not. The terms may well have relevance to the exercise of discretion once a breach by the person was established. But they do not authorise the making of an order of rectification against Ms Wilkie who did not breach the EPA Act and did not benefit from the breach. 61 In the field of nuisance, express authorisation has been held to attract liability. See Blackburn J in Harris v James (1876) 45 LJ QB 545. This limited principle was discussed by Penncuick VC in Smith v Scott [1973] Ch 314, where his Lordship said at 321: "It is established beyond question that the person to be sued in nuisance is the occupier of the property from which the nuisance emanates. In general, a landlord is not liable for nuisance committed by his tenant, but to this rule there is, so far as now in point, one recognised exception, namely that the landlord is liable if he has authorised his tenant to commit the nuisance: Harris v James (1876) 35 LT 240. But this exception has, in the reported cases, been rigidly confined to circumstances in which the nuisance has either been expressly authorised or is certain to result from the purposes for which the property is let: Rich v Basterfield (1847) 4 CB 783 and Ayers v Hanson , Stanley & Prince (1912) 56 SJ 735; and see generally Clerk and Lindsell on Torts , 13th ed. (1969), p 805, para. 1426; Salmond on the Law of Torts , 15th ed. (1969), p 89 and Winfield and Jolowicz on Tort , 9th ed. (1971), p 348. I have used the word 'certain,' but 'certainty' is obviously a very difficult matter to establish. It may be that, as one of the textbooks suggests, the proper test in this connection is 'virtual certainty' which is another way of saying a very high degree of probability, but the authorities are not, I venture to think, altogether satisfactory in this respect. Whatever the precise test may be, it would, I think, be impossible to apply the exception to the present case. The exception is squarely based in the reported cases on express or implied authority: see in particular the judgment of Blackburn J in Harris v James , 35 LT 240, 241. The exception is not based on cause and probable result, apart from express or implied authority. In the present case, the corporation let no 25 Walpole Road to the Scotts as a dwelling house on conditions of tenancy which expressly prohibited the committing of a nuisance, and, notwithstanding that the corporation knew the Scotts were likely to cause a nuisance, I do not think it is legitimate to say that the corporation impliedly authorised the nuisance." 62 In the present case, it was not found that Ms Wilkie expressly authorised the mountain of rubbish or even that the rubbish was a nuisance. The case was not put on that basis. 63 In Wright and Romeyko v Corporation of City of West Torrent (1996) 91 LGERA 197, an owner who had leased land was held liable to comply with a notice from the Municipal Authority which required her to remedy breaches of a planning authorisation by ceasing the unlawful use. Debelle J, with whom Cox J and Matheson J agreed, gave the principal judgment. However, the case turned upon the express terms of the Development Act 1993 (SA). Section 4 of the Development Act defined the expression "to undertake development" to mean: "to commence or proceed with development or to cause, suffer or permit development to be commenced or to proceed." (emphasis added) 64 In Rochford Rural District Council v Port of London Authority [1914] 2 KB 916 also, the issue concerned a statutory provision which contained the words "caused or suffered". 65 Such cases do not assist the resolution of the ambit of s 124 of the EPA Act, which contains no such words. The many cases, of which Barton v Reed [1932] 1 Ch 362 is one, which have considered covenants containing the terms "permit" or suffer", are similarly of no assistance. Indeed, they point to the need for the expression of such a term if liability based on permitting or suffering is to be established. 66 In my opinion, as s 124 contains no such terms, the basis on which her Honour proceeded was unsound. 67 The order for rectification directed to Ms Wilkie should therefore be set aside
The final case is that of North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 where, as earlier noted, the case was a criminal prosecution. Preston CJ set out, at [113] to [116], the various matters that his Honour weighed in determining whether or not Mr Moline could have been held to have been regarded as carrying out the unauthorised building works in the circumstances of that case.
The tests that his Honour applied show a much more significantly arm's-length/non-existent relationship between Mr Moline and the various persons (including unknown persons) who carried out the unauthorised building works.
It seems to me that, in these circumstances, each of the factual foundations differs significantly from the extent of the involvement of Mrs Gordon in the activities that Mr Gordon has carried out at 12 Ebsworth Street.
There are a number of additional indicia in support of this I have earlier set out in addition to the factual conclusions earlier set out at [108].
It seems to me that, based on this analysis, and on the findings I have earlier set out as to be derived from her written and oral evidence, that I must conclude, with the requisite degree of comfortable satisfaction in light of the consequences that will flow from a finding that she has carried out development at 12 Ebsworth Street, Redhead, that she has, in fact, carried out such development and, thus, has done so in breach of s 76A(1) of the EP&A Act.

[26]

The detention structure

Mr Gordon has constructed a detention structure at the lowest point (the south-western corner) of the site. On a number of earlier plans, this structure is described as being made of concrete blocks. That which is shown in the photographs in evidence (Exhibit GB-2 to the Affidavit of Greg Brook, 2 February 2016, Document 12) is a concrete structure presently remaining clad in its formwork. Construction of this structure is subject to an admission by Mr Gordon earlier set out. There is no sufficient basis to draw any inference against Mrs Gordon concerning this specific structure.
The outlet arrangement for the structure when it approaches capacity is via two PVC pipes (apparently of approximately 100 millimetres in diameter) through the western wall of the structure, across Council's grassed nature strip and discharging into the gutter and thence into Council's stormwater drainage system.
I have in evidence (Affidavit of Chris Rogers, 8 March 2016, Annexure C) a survey that shows the location of this structure in relation to the boundaries of the site. The survey makes it clear that, along its southern side, the structure crosses the property boundary and encroaches onto Mrs Rowe's property. The structure has been constructed without owner's consent from Mrs Rowe for this encroachment. Such consent is required by s 49(1) of the Environmental Planning and Assessment Regulation 2000 before any approval could be given for such a structure. The structure has also been constructed without development consent from the Council, or owner's consent from the Council, as to the connection from the structure across the Council's nature strip to discharge into the gutter.
The Council seeks an order requiring the demolition of this structure.
As I put to Mr Connors, there are two observations to be made about this proposed requirement. The first is that Mrs Rowe's consent will be required to carry out the demolition work on her property. Although this might reasonably be expected to be given, nonetheless it is a necessary precursor to demolition.
The second, more important, position is that, at least in the period until the remediation works are completed, this detention structure potentially provides protection to Mrs Rowe from any repetition of the siltation impact on her property from earlier heavy rainfall. Such protection, of course, will necessarily be contingent on the detention structure not being used for the purposes of storing construction materials and provided, if it becomes significantly silted, it is cleaned out by the silt being removed from it.
I therefore proposed that any order requiring demolition of this structure should be subject to three requirements. The first to be receipt by the Council of consent from Mrs Rowe to this activity; the second to be that demolition should not take place until after the completion of the remediation works had been carried out to the satisfaction of the Council; and, third, the detention structure was not to be used for materials storage and must be maintained in a functional state until demolished.
Mr Connors and Mr O'Gorman-Hughes indicated that orders so structured were acceptable. Mr Connors, however, also proposed that the structure should not be permitted to discharge into the Council's stormwater drain and suggested that this might be achieved by requiring the capping of the two outlet pipes. I accept, given the evidence of the extent of siltation potentially flowing into the Council's stormwater drainage system should the detention structure fill and turbid, sediment-laden water otherwise discharge, incorporation of such a capping requirement is appropriate. The orders concerning this structure set out at the conclusion of this judgment accommodate these four elements.

[29]

Declaration and orders

As consequence of the foregoing, the Court makes the following declarations and orders: 1. A declaration that the First Respondent and Second Respondent, carried out or caused or permitted to be carried out earthworks (as that term is defined in the Lake Macquarie Local Environmental Plan 2004 and Lake Macquarie Local Environmental Plan 2014) on 12 Ebsworth Street Redhead (the land) between the period 2009 to 2015 in breach of s 76A(1) of the EP&A Act; 2. A declaration that the First Respondent and Second Respondent carried out or caused or permitted to be carried out development contrary to Conditions 3, 8, 9, 11 and 19 of the Development Consent No. DA/2469/2007 issued by the Applicant on 27 February 2008 (the Consent) in breach of s 76A(1)(b) of the EP&A Act; 3. A declaration that the Second Respondent carried out development in breach of s 76A(1) of the EP&A Act in that between 22 January 2016 and 27 January 2016, the Second Respondent constructed or caused to be constructed a concrete detention basin (the concrete detention basin) partially on the Land and partially on 14 Ebsworth Street Redhead (the construction on 14 Ebsworth Street being without the consent of the owner of that property) with PVC pipes installed in the street verge of Ebsworth Street, Redhead; 4. An order that the Second Respondent demolish the Concrete Detention Basin and restore the street verge of Ebsworth Street Redhead to the condition it was prior to the construction of the Concrete Detention Basin within 10 days of the later of the following events occurring: 1. The owner of 14 Ebsworth Street Redhead giving consent to the Council for the demolition of that portion of the Concrete Detention Basin on that property; and 2. The completion of the works in (8) below; 1. The Second Respondent is to ensure that: 1. The PVC pipes in the Concrete Detention Basin are capped at their eastern end and remain capped until the Concrete Detention Basin is demolished; and 2. The Concrete Detention Basin is to be kept free of building materials and silt until it is demolished as required by (4); 1. An order restraining the First Respondent and Second Respondent by themselves, their servants or agents from carrying out earthworks (as that term is defined in the Lake Macquarie Local Environmental Plan 2014) on the Land except for the works required in (8), unless or until development consent is obtained to carry out the earthworks; 2. An order that the First Respondent by herself, her servants or agents be restrained from continuing with the development approved by the consent until she complies with Conditions 3 and 19 of the Consent; 3. The Respondents are to carry out the following slope remediation earthworks on the Land: 1. Batter the area above the line marked "existing vegetation" on Lindsay & Dynan drawing C07 project reference 9890 revision 0 to a slope no steeper than 2.5H:1V and vegetate it in a manner consistent with coastal headland vegetation, using endemic shrub and ground cover species from the Applicant's Coastal and Foreshore Planting Guidelines and Landscape Design Guidelines dated March 2015 Appendix B; 2. The Respondents shall cause PSM to engage the services of a Category C landscape consultant as per Lake Macquarie DCP 2014 to provide detailed plant selection and planting details appropriate for the Land; 3. Batter the area to the west of any engineered terraces to the front property boundary of the Land to a slope no steeper than 2.5H:1V and render it erosion resistant by provision, establishment and maintenance of turfing using Kikuyu turf; 4. Construct any engineered terraces above RL33.5 utilising the sandstone blocks already on the Land, or other sandstone blocks that are of equal or similar size to the blocks that are already on the Land, in combination with revegetation in accordance with Order 8(a) above; 5. Construct any engineered terraces below RL33.5 so that the benches on these terraces are vegetated in accordance with Order 8(a) above; 6. The Respondents shall cause a certified practising engineer in geotechnical engineering, namely Garry Mostyn of PSM, to design any engineered terraces with sufficient drainage at not greater vertical intervals than 1.5 metres to ensure no excess pore pressures can build up behind the works; 7. The design of any engineered terraces shall inhibit the migration of the retained sand into the recycled crushed concrete; 8. This engineer shall ensure that his or her design is compatible with Order 8(a) above; 9. The Respondents shall furnish a copy of the engineering and landscape designs to the Applicant's solicitors Local Government Legal within 4 weeks of the date of this order; 10. If concrete blocks are used as facing for any engineered terraces, each block shall be underlain and overlain with a layer of 200 millimetre recycled crushed concrete. If required, the recycled crushed concrete can be cement-stabilised to achieve the 1H:4V face batter; 11. All engineering works referred to above shall be completed within 4 months of the date of this order; 12. The Respondents shall provide to the Applicant certification from the engineer referred to in Order 8(f) above that all engineering works referred to immediately above have been carried out within one month of Order 8(k) above being satisfied; 13. The landscaping works referred to above shall be completed and certified within 6 months of the date of this order; 14. The Respondents shall provide to the Applicant certification from the landscape consultant referred to in Order 8(b) above that all landscaping works referred to immediately above have been carried out; 15. Until provision of the certification referred to in Order 8(l) above, the Respondents shall cause Garry Mostyn or an engineer from PSM authorised by him to provide the Applicant with a report each fortnight until completion advising on the progress of the works and certifying that it is satisfied that the engineering works required by this order are capable of completion within 4 months of the date of this order; 16. The respondents shall cause the landscape consultant referred to in Order 8(b) above to provide to the Applicant a report following completion of the engineering works and within 5 months of the date of this order advising on the progress of the landscaping and certifying that he/she is satisfied that the landscaping works are capable of completion within 6 months of the date of this order; 1. Liberty to restore on seven days' notice; and 2. Costs are reserved.

Lake Macquarie City Council v Gordon and Anor

At a glance

Court

Decision date

Before

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Judgment (30 paragraphs)

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Legislation Cited (2)

Cases Cited (13)

Cited By (3)