Marshall Rural Pty Ltd v Basscave Pty Ltd

Consent orders sought to dispose of the proceedings

1. The proceedings had been listed for final hearing from 30 April to 3 May 2018. On 20 April 2018, the parties requested the Court's Registrar to have the proceedings listed before the Duty Judge, seeking, by consent, final disposition of the proceedings by the making of the following orders (as subsequently amended by the parties): 1. A declaration that the Respondents have carried out development in the form of importation of fill and earthworks (the Earthworks) on the First Respondent's land on Lot 25 in DP 663770, Lot 1 in DP 120794, Lot 1 in DP 972649 and Lot 1 in DP 797310 (the Land) without development consent in the period between October and November 2016. 2. A declaration that in carrying out the development and Earthworks described in paragraph 1 above, the Respondents have breached: a. Clause 6.2(2) of the Hawkesbury Local Environment Plan 2012 (LEP 2012); b. Section 76A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act); and c. Section 91E of the Water Management Act 2000 (NSW) (WM Act), by carrying out part of the Earthworks on waterfront land (within the meaning of the WM Act) without obtaining a controlled activity approval under s 91(2) of the WM Act. 3. An order that within 28 days of these orders the Respondents implement a program to plant trees on the Land in the locations marked "establish vegetation" on Site Map 2 and Site Map 3 in the Funding Deed Contract between the First Respondent and Greater Sydney Local Land Services dated 30 October 2015 (copies of which are annexed to these orders and marked "A") provided that no additional fill is imported on to the Land to carry out the works. 4. A declaration that the Respondents have carried out the following development in breach of section 76A of the EPA Act: a. Erection of 5 shade structures the subject of building certificate BC0004/18 on Lot 25 DP 663770; b. Erection of toilet amenities the subject of building certificate BC0004/18 on Lot 25 DP66377; c. Internal modifications, construction of a lean-to and the addition of a balcony to the structure known as the "Polo Barn" the subject of building certificate BC0058/15 on Lot 25 DP 663770; and d. Erection of the structure known as the "Grandstand" (referred to as a covered Viewing Platform") the subject of building certificate BC0004/18 on Lot 25 DP 663770. 5. An order that the Respondents, their servants or agents be restrained from using any of the structures referred to in orders 4(a) to (d) above, for the following purposes (for the purposes of LEP 2012): a. As to the 5 shade structures in order 4 (a) above, as a function centre; and b. As to the toilet amenities in order 4(b) above, as a function centre; c. As to the Polo Barn in order 4(c) above, as a function centre or as a recreation facility (outdoor); and d. As to the Grandstand in order 4(d) above, as a function centre, unless or until the Respondents have a lawful development consent for that use or the use of the structure for that purpose otherwise becomes lawful without development consent. 6. All costs orders previously made in these proceedings are vacated, whether in favour of the Applicant or any Respondent(s). 7. The Respondents pay the Applicant's costs in the fixed sum of $110,000 within 28 days of the date of these orders. 8. The proceedings otherwise be dismissed. 9. The hearing dates of 30 April to 3 May 2018 are vacated.

Relevant statutory provisions

1. The parties seek, inter alia, declarations that the Respondents have breached the following: 1. clause 6.2(2) of the Hawkesbury Local Environmental Plan 2012 (LEP 2012), which provides: 6.2 Earthworks (1) The objectives of this clause are as follows: (a) to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, (b) to allow earthworks of a minor nature without requiring separate development consent. (2) Development consent is required for earthworks unless: (a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or (b) the earthworks are ancillary to other development for which development consent has been given. (3) Before granting development consent for earthworks, the consent authority must consider the following matters: (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 1. the then section 76A of the Environmental Planning and Assessment Act 1979 (EPA Act), which provided: 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. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. (3), (4) (Repealed) (5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development. (6)-(9) (Repealed) 1. section 91E of the Water Management Act 2000 (WM Act) which states: 91E Carrying out controlled activity without, or otherwise than as authorised by, a controlled activity approval (1) A person: (a) who carries out a controlled activity in, on or under waterfront land, and (b) who does not hold a controlled activity approval for that activity, is guilty of an offence. Tier 2 penalty. (2) The holder of a controlled activity approval who carries out a controlled activity in, on or under waterfront land otherwise than as authorised by the approval is guilty of an offence. Tier 2 penalty. (3) Without limiting subsection (2), a person carries out a controlled activity otherwise than as authorised by a controlled activity approval if the person carries out such an activity while the approval is suspended. (4) This section does not prevent a person: (a) from constructing and using a water management work in accordance with a water management work approval, or (b) from carrying out an aquifer interference activity in accordance with an aquifer interference approval.
2. Also relevant to the proceedings is the Hawkesbury Local Environmental Plan 1989 (the 1989 LEP), which was in force from 1989 to 2012. From 18 August 2006 the bulk of the land was zoned EPA-Environmental Protection - Agriculture Protection (Scenic). Within that zone, cl 24 applied, which provided that: 24 Development in certain environmental and other zones (1) This clause applies to land in Zone No 7 (d) or in the Rural Village, Environmental Protection - Agriculture Protection (Scenic) or Environmental Protection - Mixed Agriculture (Scenic) zone. (2) A person shall not erect a building on land to which this clause applies without the consent of the Council. (3) The Council shall not grant consent to the erection of a building on land to which this clause applies unless it has made an assessment as to whether it should impose conditions relating to: (a) the height and siting of the building, and (b) the colour of materials to be used in the erection of the building, so as to ensure that the building blends with the surrounding landscape and other development and preserves or enhances the scenic quality of the land.

Applicant's submissions and evidence

1. The Applicant identified, correctly, that as the proposed consent orders include declaratory relief, the Court must be satisfied that the Applicant is entitled to the proposed declaratory relief. It submitted that, as a matter of discretion, the Court ought to grant that relief.
2. In support of its application for relief, the Applicant read the following expert evidence: 1. the Statement of Evidence of Paul Mitchell, town planner and environmental scientist for the Applicant, dated 22 August 2017 (Mitchell Report); 2. the Statement of Evidence of James Harrison, town planner for the Respondents, dated 10 October 2017 (Harrison Report); and 3. the Joint Expert Report of Paul Mitchell and James Harrison dated 20 March 2018 (Joint Report).

Orders 1 and 2

1. Orders 1 and 2 of the requested consent orders sought declaratory relief in respect of the importation of fill and earthworks carried out by the Respondents on the First Respondent's land without development consent: 1. A declaration that the respondents have carried out development in the form of importation of fill and earthworks (the Earthworks) on the First Respondent's land on Lot 25 in DP 663770, Lot 1 in DP 120794, Lot 1 in DP 972649 and Lot 1 in DP 797310 (the Land) without development consent in the period between October and November 2016. 2. A declaration that in carrying out the development and Earthworks described in paragraph 1 above, the respondents have breached: a. Clause 6.2(2) of the Hawkesbury Local Environment Plan 2012 (LEP 2012); b. Section 76A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act); and c. Section 91E of the Water Management Act 2000 (NSW) (WM Act), by carrying out part of the Earthworks on waterfront land (within the meaning of the WM Act) without obtaining a controlled activity approval under s 91(2) of the WM Act.
2. In support of this proposition, the Applicant relied on the Mitchell Report at paragraphs [56]-[72] and [76]-[78] which, inter alia, set out that: 1. Mr Mitchell had examined historical Google Earth images for the site and photographs of earthworks at the site taken by officers of Hawkesbury City Council and had determined that the observed earthworks occurred within the last two years; 2. Mr Mitchell inspected the earthworks on Friday 18 August 2017; and 3. no development consent has been granted for the observed earthworks.
3. Mr Mitchell's analysis was that the observed earthworks would have required 1. development consent pursuant to clause 6.2(2) of the LEP 2012; 2. assessment as an integrated development under the EPA Act; 3. an activity approval under Pt 3 of Ch 3 of the WM Act; and 4. (potentially) approval under the Threatened Species Conservation Act 1995, and that because no development consent was in place for the earthworks, those earthworks were unauthorised.
4. Mr Harrison, the Respondent's expert town planner, noted in his report that "the placement of fill in this location… would have required a Controlled Activity Permit" under s 91E of the WM Act. Similarly, the two experts in their Joint Report agreed that the bulk of the earthworks would have required such a permit.
5. At the consent orders hearing before me on 24 April 2018, the parties noted that the precise quantity of the fill material comprising the earthworks, and its location on the site, remain in dispute. The parties, however, agreed that the quantity of fill is not de minimis.

Proposed order 4

1. Proposed order 4 sought declarations that the Respondents have carried out a number of developments in breach of the previous s 76A of the EPA Act: 4. A declaration that the respondents have carried out the following development in breach of section 76A of the EPA Act: a. Erection of 5 shade structures the subject of building certificate BC0004/18 on Lot 25 DP 663770; b. Erection of toilet amenities the subject of building certificate BC0004/18 on Lot 25 DP66377; c. Internal modifications, construction of a lean-to and the addition of a balcony to the structure known as the "Polo Barn" the subject of building certificate BC0058/15 on Lot 25 DP 663770; and d. Erection of the structure known as the "Grandstand" (referred to as a covered Viewing Platform") the subject of building certificate BC0004/18 on Lot 25 DP 663770.
2. In relation to the erection of the shade structures, at the hearing before me on 24 April 2018, counsel for the Applicant took the Court to the evidence of the Respondents' expert. Mr Harrison was of the view that the structures were erected between 2006 and 2009. At the time of construction, Mr Harrison noted, the 1989 LEP applied, which provided at cl 24 that development consent was required for the erection of a building within the Environmental Protection - Agriculture Protection (scenic) zone. If the shade structures were considered ancillary to recreational use, Mr Harrison opined, they would have been permissible with development consent. However, no such development consent was in place (Mitchell Report at [236]).
3. The Court notes that with respect to the final two structures (that is, the two most recently constructed) there is some doubt as to their formal legal status (Harrison Report at [67], Mitchell Report at [245]). However, in the circumstances where the parties have come to an accommodation which involves an agreement that the declaration at 4(a) ought be made and that order 5 requires the Respondents to seek consent for their use, otherwise they cannot be used, the Court prefers and so accepts the analysis of Mr Mitchell who concluded that in the absence of final confirmation of their status as a possible exempt development, then development consent would have been required.
4. As to the toilet facilities at proposed order 4(b), the Applicant pointed to Mr Harrison's evidence that the facilities were constructed between March 2017 and June 2009, which the 1989 LEP was in force and, as noted at paragraph [15] above, cl 24 of the 1989 LEP required development consent for the erection of a building within the relevant zone. In addition, Mr Harrison considered that consent for the facilities would have been required under the Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River (cl 11(17) dealing with sewerage systems or works). Mr Harrison could find no such development consents. Further, the Mitchell Report's analysis was that, based on Google Earth images, the toilet facilities were most likely constructed between 11 March 2007 and 30 June 2009, that the construction of such facilities was permissible with development consent, but that there is no record of such an approval.
5. Proposed order 4(c), seeking declaratory relief in respect of certain modifications and additions to a building known as "the Polo Barn", was supported by both Mr Mitchell and Mr Harrison's evidence.
6. Mr Mitchell's evidence was that, based on Google Earth images, the construction of the original barn (now known as the Polo Barn) took place before July 2002, that the dominant use of the Polo Barn appears to be as a function centre, that there is no record of approval for the construction or use of the Polo Barn at the site on which is situated (however, that there was a consent granted in 2004 for a rural shed and stables, on a different lot within the same property, which Mr Mitchell concludes is unlikely to have been for the Polo Barn).
7. Mr Harrison's evidence was that a development consent for two sheds, classed as a 'dairy shed' was issued in 1989, which was likely for the original structure of the Polo Barn. However, Mr Harrison noted that renovations to the barn, including a mezzanine, lean-to, balcony, and new cladding had been made subsequently. Following a site visit, Mr Harrison's view was that the renovations involved structural work and would therefore not have been considered exempt development under the 1989 LEP.
8. Proposed order 4(d) seeks declaratory relief in respect of the erection of a structure known as "the Grandstand".
9. Mr Mitchell's evidence was that "the Grandstand" is a large, open sided pavilion style structure located adjacent to a polo field, and that Google Earth images suggest it was constructed between 17 April 2006 and 11 March 2007. Mr Mitchell visited the site on 18 August 2017, his observations at which "confirmed that the Grandstand is principally a facility to provide a raised and covered area for viewing polo games on the adjoining field". He noted that there is no record of development consent for the construction and use of the Grandstand and concluded that, having regard to the relevant definitions in the LEP 2012, the construction and use of the Grandstand is unauthorised.
10. Mr Harrison's evidence noted the requirement contained in cl 24 of the 1989 LEP, in force at the time of the construction of the Grandstand, that development consent was required for the erection of a building within the relevant zone, however that no such consent could be found.

Relevant authorities

1. The principles with respect to the granting of declaratory relief are well established in this jurisdiction.
2. In Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited (2007) 158 LGERA 1 [2007] NSWLEC 681, Preston CJ set out at [20]-[25] a number of considerations with respect to the making of declarations of statutory breach by the Court. 20 First, the making of a declaration by itself would not have any practical effect in the circumstances of this case. A declaration that a breach of a statute has occurred does not have any constitutive effect - it does not bring about any change in the rights or duties of the parties. 21 Secondly, declarations of breach of the statutes are not necessary in order for the Court to have jurisdiction to make other orders including the injunctive orders to remedy or restrain breaches of the statute. The Court can make the injunctive orders agreed to by the parties and found by the Court to be appropriate without first making declarations that the respondents have breached the statutes. The situation in this case is to be contrasted to the regime under the Corporations Act 2001, considered in ASIC v Rich (2005) 50 ACSR 500, where the Court can only make consequential orders of a pecuniary penalty order or a disqualification order once a declaration of breach of the statute has been made under s 1317E of the Corporations Act. 22 Thirdly, a declaration of breach of a statute by itself neither remedies past breaches of the statute nor restrains any future breaches of the statute. Only the injunctive orders, agreed to by the parties and found by the Court to be appropriate to be made, will achieve the consequences of remedying the past breaches and restraining future breaches of the statutes. 23 Fourthly, care must be taken not to use a declaration of breach of a statute in civil enforcement proceedings as a substitute for a criminal prosecution. It is not appropriate for the Court in the exercising of its civil enforcement jurisdiction to punish wrong-doers under the guise of remedying a breach: Liverpool City Council v Roads Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265 at 280. A declaration of breach of a statute in civil enforcement proceedings is not to be equated with the entry of a conviction upon a finding of guilt in a criminal prosecution. The latter does have an effect on the person, including by creating a criminal record for the person, which may have external consequences for that person. A declaration of breach of a statute in civil enforcement proceedings does not have such consequences. 24 The Council could have brought criminal prosecutions in respect of each breach of the statutes but elected not to do so. The reasons why the Council undertook this course are perfectly understandable and related to the greater range of remedial relief available in civil enforcement proceedings compared to that available in criminal prosecutions and to the lower standard of proof in civil enforcement proceedings compared to criminal prosecutions. Nevertheless, that election to bring civil enforcement proceedings having been made, the civil enforcement proceedings should not be now used as a substitute for criminal prosecutions. 25 I accept that a legitimate purpose of civil enforcement proceedings is for there to be a finding by the Court and through its judgment a public pronouncement that a breach of the law has occurred by the respondents. However, this effect can be achieved by the Court making findings in the judgment of the Court, which, of course, is a public document. The Court's judgment will suffice to publicly expose and denounce on behalf of the community the unlawful behaviour in which the respondents have engaged. I have set out above in full each of the findings of the Court, including those that have been admitted in the points of claim, together with the consequences that flow from those findings as to the breaches of each of the statutes. This public pronouncement in the judgment suffices to achieve the purpose of public exposure and denouncement of the unlawful conduct of the respondents.
3. In that matter, for the reasons articulated above, his Honour declined to grant the declaratory relief sought.
4. It ought to be noted that, unlike the present matter, Lani dealt with circumstances in which the applicant's plea for declaratory relief in relation to statutory breaches was resisted by the respondent (although there was agreement that such breaches had taken place).
5. The Applicant, in its submissions, relied on the decision of Pepper J in Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 in which her Honour decided that it was, in the circumstances, appropriate to grant declaratory relief. Relevantly her Honour stated at [15]-[23]: 15 Like Lani, the making of the declarations in the present case would not, by themselves, have any practical effect on the rights or duties of the parties. Similarly, the declarations will neither remedy the past breaches of the EPAA by the Minister nor restrain any future breaches of that Act. 16 However, unlike Lani, in my view, it is appropriate to grant the declaratory relief sought for the following reasons. First, while all breaches of s 75D of the EPAA are serious, in the present case this seriousness is augmented by the fact that the Minister has breached the EPAA on more than one occasion. In particular, the second breach took place in circumstances where, as the three previous Hill Top decisions demonstrate, the Minister was on notice of the need to ensure that all clearing was carried out in accordance with the approved plans. In light of the earlier unapproved clearing, it was incumbent upon the Minister to take all precautions necessary to ensure that no further unlawful clearing took place. It is self-evident that this did not occur. 17 Second, exacerbating the gravity of the breaches is the fact that, known to the Minister at the time, the breaches resulted in the unapproved clearing of land with a high conservation value. 18 Third, on each occasion the unapproved and unlawful clearing was, in effect, retrospectively ratified by an approved modification application. While Pt 3A of the EPAA permits both private and public proponents to apply by way of modification application for approval in respect of any previous unlawful development that has been carried out, the persistent nature of the conduct of the Minister suggests that there is utility in publicly exposing and denouncing on behalf of the community the repeated unlawful behaviour which the Minister has engaged in. 19 Further, while I accept that ordinarily a public pronouncement that a breach of the law has occurred can be achieved by the Court making findings in its judgment (see Lani at [25]), the concessions made by the Minister rendered it unnecessary in the earlier Hill Top decisions to fully set out findings by the Court of a sufficiently reprobating character. 20 Fourth, the making of the declarations marks the disapproval of the Court of conduct that Parliament has proscribed. It also serves to discourage others from acting in a similar way and may, therefore, be seen to have a deterrent and educative element. The granting of the declaration may accordingly be seen as advancing the regulatory objects of the EPAA (s 5 of the EPAA and Humane Society v Kyodo Senpaku [2006] FCAFC 116; (2006) 154 FCR 425 at [22]-[27]). 21 Having said this, these remarks should in no way be seen as an endorsement for the use of a declaration of a breach of statute in civil proceedings as akin to, or substitution for, criminal proceedings for breach of environmental statutes (Lani at [23] and Gedeon v NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at [23]). 22 Fifth, while the Minister submitted that its identity made no difference to whether or not declaratory relief ought to be granted, in the context of the present proceedings I cannot agree. All persons, both public and private, have an obligation to comply with the law and it is certainly not the case that public bodies, unlike private citizens, are under any greater obligation to uphold and observe the law. However, public bodies ought to, in my opinion, lead by example. This has not occurred here. 23 Therefore, where, as in the present case, the Minister has been responsible for multiple breaches of the EPAA resulting in the unapproved clearing of land of high conservation value, in order to achieve the purpose of exposure and denouncement of the unsanctioned conduct, mere public pronouncement in a published judgment alone will not, in my opinion, suffice. For all these reasons, it is appropriate that the Court make the declarations sought.
6. The Applicant also relied, in its submissions, on the Full Court of the Federal Court's decision in Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56, a matter in which declaratory relief was sought by consent. In that matter, in considering whether there was an absence of a proper contradictor which may have weighted against the making of declarations, their Honours held at [30]: In this case, the MSY parties had an interest to oppose the declaratory relief sought. That was sufficient to make them a proper contradictor. There was no want of power to grant declaratory relief. Rather, the question was whether, in light of the events which had transpired, which relevantly included a lack of any continued opposition to the declaratory relief sought, that relief ought still to be granted as a matter of discretion. B.M.I. should be understood as a case where, because the question of the invalidity had become academic, that discretion had been exercised so as to refuse the declaratory relief sought. As the passage from their Honours' joint judgment reveals, that was an additional basis upon which Keely and Beaumont JJ refused the application for declaratory relief.
7. In that matter, the Court concluded at [35] by noting: As has been rightly said, "The remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment": Warramunda Village Inc v Pryde (2001) 105 FCR 437 at [8]. There must be some utility in the granting of declaratory relief. In Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 at [95] (Rural Press) Gummow, Hayne and Heydon JJ saw that utility in the setting out of the basis of the liability found and, in turn, in the basis for the penalties imposed. There is a similar utility here. Further, the declarations which the parties proposed do not, in contrast with those remarked upon in Rural Press, possess the vice of imprecision as to the way in which the statute was contravened.

Consideration

1. I have concluded that it is appropriate that the orders sought by the parties, by consent, ought to be made. In reaching that conclusion, I am cognisant that these proceedings have, at times, involved issues that were hotly contested requiring numerous interlocutory hearings, necessitating a number of judgments from this Court. My familiarity with the proceedings, extending back over almost a year, has the distinct advantage of enabling me to be well appraised of the history of the matter, the contentions between the parties and much of the evidence which they have relied upon to date and were to rely upon at the primary trial of the matter which was listed to commence within less than a week.
2. The Court is also mindful that the achievement of settlement in proceedings such as these, hard fought as they have been, can be an exceedingly difficult exercise in negotiation. Sometimes the achievement of a settlement has been a delicate and challenging exercise, which remains vulnerable or fragile until the litigation is actually resolved and thereafter, as time passes, it is increasing "behind" the parties. Although Mr Lazarus, counsel for the Applicant, reiterated that it remains within the discretion of the Court to embrace the settlement between the parties and make the orders sought by consent, or not embrace that course, he did express the concern that if the Court were to see fit to make different orders, in particular by deleting the proposed declarations, then there is a prospect that the Court may "upset the applecart" which may give rise to an issue whether settlement, to the extent and of the kind envisaged by the parties, has been achieved.
3. In my recent judgment in Shoalhaven City Council v Igor Lepan [2018] NSWLEC 57, I made the following observations which are pertinent to the question before me in this case, whether I should or should not make the orders submitted by consent to the Court: 22. In circumstances where parties have reached an accommodation and present a Court with proposed consent orders, irrespective of how confident the parties are that the orders are lawful and appropriate, the Court has an absolute duty to satisfy itself that the orders are appropriate in their entirety. Determining whether orders are appropriate requires a multi-stage approach to the task. First, the judge must determine whether the orders are consistent with the applicable law. This will require a review and understanding of both the statutory power to be exercised by the Court, together with a review and understanding of the statutory provisions relevant to the issues which are the subject of the proceedings. 23. Secondly, the judge must determine whether the resolution of the proceedings in accordance with consent orders will achieve a fair and just outcome. The Court most probably can only confidently arrive at such a conclusion if the relevant factual circumstances are understood in the context of the relevant statutory provisions. This task will require a review of the evidence that was produced to the Court and an analysis of such evidence which is, most probably, guided by submissions from the parties seeking the consent orders. Determining whether the outcome is fair and just will often depend on discretionary factors, in relation to which the Court will frequently be guided by judicial authorities in cases which are relevant because they addressed and resolved similar issues. Accordingly, if the parties in proceedings have placed case law before the Court, then the judge should have reviewed them in order to determine their relevance in understanding the law and guiding the exercise of discretion in similar circumstances.
4. Earlier in this judgment at [9]-[23] I have set out an analysis of each of the orders sought in the context of: (a) the relevant statutory provisions and Hawkesbury LEP provisions which have been alleged in the case to have been infringed by the Respondents; and (b) extracts from the evidence of two of the experts retained in the proceedings, namely Mr Mitchell and Mr Harrison. Those two experts were just two of a number more retained for the proceedings, whose reports have been filed with the Court. However, for my present purposes in determining whether the declarations as sought should be made, it has been unnecessary for me to further review the greater body of evidence in detail.
5. In circumstances, where I have concluded that the consent orders ought to be made, it is necessary to explain my rationale for agreeing with the parties that the three declarations, as sought by consent by the parties, ought, as a matter of discretion, to be made. Earlier in this judgment at [25]-[30] I have set out the passages from three cases which are material to the issue whether I should or should not make the declaration sought.
6. There is no doubt that it is within the jurisdiction of the Court to make the declarations as sought by the parties. That is not in issue: the real question is whether the Court's discretion should be exercised to make the declarations. The issue is whether there is utility in making declarations. In essence, the case law referred to in this judgment goes to the question of utility of making a declaration. That is the focus in the case law I have cited: in short, it is considered inappropriate to make a declaration if there is no utility in doing so. So in the case of Pepper J's decision in Hill Top Residents (No 4) the utility of making declarations was identified in [23] in the following terms: "in order to achieve the purpose of exposure and denouncement of the unsanctioned conduct, mere public pronouncement in a published judgment alone will not, in my opinion, suffice".
7. In the context of the discussion in Lani, it is true, when considering the declarations proposed in this case, that they relate to occurrences that occurred in the past, and so, in accordance with Lani at [20], that the making of the declarations will not bring about any change in the rights or duties of the parties. Further, I agree again with Preston CJ in Lani at [21] the making of the declarations in this case are not necessary in order to make the other orders sought, most particularly the injunctive order 5. Finally, given that the declarations relate to works that occurred at a time when an earlier LEP was in place, which has now been superseded, the declarations in themselves neither remedy past breaches nor restrain any future breaches of the statute and the current LEP.
8. However, it is with respect to the "public pronouncement" aspect of a judgment, discussed at [25] of Lani that I discern a distinction between the decision of Preston CJ in the circumstances before him and the circumstances before me in this case. In this case there is agreement between the parties that the declarations should be made, whereas in Lani no such agreement had been reached. Preston CJ confirmed that a legitimate purpose of civil enforcement proceedings is for there to be a finding by the Court and, through its judgments, a public pronouncement that a breach of the law has occurred. Returning to my use of the word "utility" above when highlighting what I believe to be the underlying principle, tritely, that the making of declarations must serve some purpose, it is instructive that his Honour went on to say that the public pronouncement that a breach of law has occurred can be achieved by the Court making findings in the judgment of the Court, which, he reminded the reader, is of course a public document. He said that the Court's judgment will suffice to publicly expose and denounce on behalf of the community the identified unlawful behaviour.
9. Although judges will always strive to write their judgments in concise and clear terms, avoiding ambiguity and misunderstanding, it is inevitable that the text of a judgment is more discursive than the tight confined language that one expects to find in a carefully crafted declaration. Judgments set out the rationale that leads to the final conclusions, traversing the history of the proceedings and analysing the law and evidence. A lay review of a judgment can lead to an inexact summary, such as an interpretation by a "victor" through "rose-tinted glasses". In the circumstances of the hotly contested litigious stages that have characterised these proceedings to date, one must presume that the proposed three declarations have been insisted upon by the Applicant and the tightly confined language is a consequence of the Respondents effectively, drawing a line in the sand and saying "thus far no further". The Court anticipates that the Applicant will use and refer to the declarations for whatever purposes it sees fit post these proceedings. In these circumstances, surmising that as being the reality of what is to follow, the Court would prefer post-case reference to the outcome of the proceedings to be to the concise and confined language of the declarations, rather than someone's summary of that which would otherwise be in the body and conclusions of the judgment.
10. It is also particularly material that in this case the resolution of the proceedings is to be in accordance the proposed consent orders, which necessarily means that the full hearing of the contentions between the parties has been rendered unnecessary. Although, in accordance with my observations in the Igor Lepan case, the Court has had to go through an exercise of analysing the law and evidence to the extent necessary to decide that it is in the interests of justice to make the proposed consent orders, the body of the judgment itself is truncated, it being unnecessary to traverse in full the filed evidence, nor necessary to hear fuller legal argument. So whereas in Lani Preston CJ did not have consent orders before him, and so he had to comprehensively analyse the parties' contentions and traverse all that was necessary in order to explain the rationale for his decision, the task in the proceedings before me is more circumscribed by reason of the parties' settlement. Hence, the declarations are the most convenient expression of the outcome of the proceedings.
11. In the course of the hearing the Court saw fit to, in effect, congratulate the parties on achieving a settlement of the proceedings. The Court observed that the parties had seen reason and achieved a responsible and sensible resolution of the proceedings. Keeping in mind the overriding charge to the Court, and parties before it, of s 56 of the Civil Procedure Act 2005 to seek a just, quick and cheap resolution of the real issues in civil proceedings, in essence for parties to proactively determine if a resolution of proceedings is achievable, it would not be consistent with the objective of securing a just, quick and cheap resolution, for the Court to now disrupt a settlement that was, as both Mr Lazarus and Mr Grace confirmed, the outcome of difficult, protracted and sensitive negotiations. Therefore, if the Court were to remove the declaration components of the settlement by declining to make the declarations in its orders, the potential upset to the settlement may reignite a conflict which needs to be resolved. The Court finds support for this approach in an observation made in the judgment of the Full Federal Court in ACCC v MSY Technology at [32] wherein their Honours said (emphasis added): "It does not follow from BMI that, in every case in which a justiciable controversy has become academic, declaratory relief should be refused. The matter is always one for the exercise of judicial discretion. In some cases that feature may tell against the granting of such relief; in others the declaratory relief proposed to the court may be a feature of the agreement between the parties that has rendered that controversy academic. There can be no hard or fast rule"
12. My resolve in seeking to bring a close to these proceedings in a manner which I believe will be consistent with securing a just, quick and cheap resolution in accordance with s 56 of the Civil Procedure Act - that is, by endorsing the parties' settlement including the making of the proposed three declarations, is heightened by my knowledge that the history of disputation between the parties regarding related issues which precedes the current proceedings. The judgments of Moore J in Marshall Rural Pty Ltd v Hawkesbury City Council (No 2) [2015] NSWLEC 210 and Pain J in Marshall Rural Pty Ltd v Basscave Ltd [2015] NSWLEC 86 involved similar contentions raised by the Applicant against the Respondents regarding the "Polo Barn", the subject of proposed declaration 4(c), and another building, the Sunnybrook Barn. All these issues require closure.
13. Returning to my discussion above focussed on the need for there to be some real utility in making the proposed three declarations, I consider there is undeniable utility in making the declarations as, by doing so, the hard-fought settlement achieved between the parties will be endorsed with a clear, concise statement of the Court's findings on the law, as expressed in the declarations, confined within the parameters of that which the Respondents were prepared to concede to the Applicant.
14. Accordingly, in the context of my foregoing reasons, I have concluded that it is appropriate, indeed necessary, that I make the declarations and orders as sought by the parties.

ORDERS

1. At the conclusion of the hearing on 24 April 2018, the Court made the following declarations and orders. The Court declared: 1. The Respondents have carried out development in the form of importation of fill and earthworks (the Earthworks) on the First Respondent's land on Lot 25 in DP 663770, Lot 1 in DP 120794, Lot 1 in DP 972649 and Lot 1 in DP 797310 (the Land) without development consent in the period between October and November 2016. 2. In carrying out the development and Earthworks described in paragraph 1 above, the Respondents have breached: 1. Clause 6.2(2) of the Hawkesbury Local Environmental Plan 2012 (LEP 2012); 2. Section 76A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act); and 3. Section 91E of the Water Management Act 2000 (NSW) (WM Act), by carrying out part of the Earthworks on waterfront land (within the meaning of the WM Act) without obtaining a controlled activity approval under s 91(2) of the WM Act. The Court ordered: 1. Within 28 days of these orders the Respondents implement a program to plant trees on the Land in the locations marked "establish vegetation" on Site Map 2 and Site Map 3 in the Funding Deed Contract between the First Respondent and Greater Sydney Local Land Services dated 30 October 2015 (copies of which are annexed to these orders and marked "A") provided that no additional fill is imported on to the Land to carry out the works. The Court declared: 1. The Respondents have carried out the following development in breach of section 76A of the EPA Act: 1. Erection of 5 shade structures the subject of building certificate BC0004/18 on Lot 25 DP 663770; 2. Erection of toilet amenities the subject of building certificate BC0004/18 on Lot 25 DP66377; 3. Internal modifications, construction of a lean-to and the addition of a balcony to the structure known as the "Polo Barn" the subject of building certificate BC0058/15 on Lot 25 DP 663770; and 4. Erection of the structure known as the "Grandstand" (referred to as a covered Viewing Platform") the subject of building certificate BC0004/18 on Lot 25 DP 663770. The Court ordered: 1. The Respondents, their servants or agents be restrained from using any of the structures referred to in declaration 4(a) to (d) above, for the following purposes (for the purposes of LEP 2012): 1. As to the 5 shade structures in order 4 (a) above, as a function centre; and 2. As to the toilet amenities in order 4(b) above, as a function centre; 3. As to the Polo Barn in order 4(c) above, as a function centre or as a recreation facility (outdoor); and 4. As to the Grandstand in order 4(d) above, as a function centre, unless or until the Respondents have a lawful development consent for that use or the use of the structure for that purpose otherwise becomes lawful without development consent. 1. All costs orders previously made in these proceedings are vacated, whether in favour of the Applicant or any Respondent(s). 2. The Respondents pay the Applicant's costs in the fixed sum of $110,000 within 28 days of the date of these orders. 3. The proceedings otherwise be dismissed. 4. The hearing dates of 30 April to 3 May 2018 are vacated.

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