Moseley v Queanbeyan-Palerang Regional Council - [2016] NSWLEC 165 - NSWLEC 2016 case summary — Zoe

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Moseley v Queanbeyan-Palerang Regional Council

[2016] NSWLEC 165

Land and Environment Court (NSW)|2016-11-24|Before: Pain J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2016-11-24

Before

Pain J

Source

Original judgment source is linked above.

Judgment (39 paragraphs)

[1]

SOLICITORS: N/A Bradley Allen Love Lawyers (Respondent) File Number(s): 2016/227474 Decision under appeal Court or tribunal: Queanbeyan Local Court Jurisdiction: Criminal Date of Decision: 21 June 2016 Before: Magistrate Antrum File Number(s): 2016/3540

[2]

Judgment

The Appellant Mr Moseley appeals against the conviction and sentence imposed on him by a magistrate at Queanbeyan Local Court on 21 June 2016. The Appellant was convicted of an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) that he carried out development without consent contrary to s 76A of the EPA Act. The period of the offence was 30 December 2014 to 12 June 2015. The Appellant was fined $15,000 and ordered to pay the Council's professional costs of $12,000 by the magistrate. This judgment deals with the conviction appeal.
The property where the offence is alleged to have taken place has an area of 109ha and is located in Royalla New South Wales and zoned RU1 - Primary Production under the Palerang Local Environmental Plan 2014 (the LEP). The Appellant was issued with a Penalty Infringement Notice (PIN) by Mr Eichler Senior Environmental Compliance Officer at Queanbeyan-Palerang Council (the Council) for $1,500 for the offence of "Development without development consent - individual". The Appellant did not contest the PIN in time and made an annulment application to the Office of State Revenue to have the matter determined in court. The annulment application dated 21 September 2015 was granted. The charge matter was heard at Queanbeyan Local Court before Magistrate Antrum on 17 May 2016. Judgment finding the Appellant guilty was delivered on 21 June 2016.

[3]

Statement of charge

The amended statement of charge filed by the Council in the Local Court on 17 May 2016 provided: That the defendant, Benjamin Moseley, did carry out development that, under the Palerang Local Environmental Plan 2014 may only be carried out with development consent without having obtained development consent contrary to the provisions of ss. 76A and 125 of the Environmental Planning and Assessment Act 1979. Particulars (A) The construction of a track or driveway leading from the front gate to the area known as the "shed site" - approx. 2.5m-3m wide and 35m long[.] (B) The clearing and excavation to a depth of approx. 1.5m of a site for a proposed shed approx. 15m wide and 50m long with excavated materials levelled off and compacted to form a shed site. (C) The pushing of spoil and other materials into 4 stockpiles with one stockpile being approx. 5m high and 10m wide[.] (D) The construction of a creek crossing comprising concrete pipes in the bed of the creek covered with soil, rocks and excavated fill. The crossing was approx. 10m high, 15m in length and 4m wide at the top of the crossing. (E) The construction of a track from the creek crossing to an area approx. 500m up a hillside. (F) The excavation of an area of approx. 15m wide and 35m long to a depth of approx. one metre and then compacted to form a house site. (G) The carrying out of earthworks associated with the construction of a dam approx. 15m wide and 20m long.
Particular A was not pressed in this appeal by the Council.
The elements of the charge are that the Appellant is a person who carried out development (accepted by the Appellant) that an environmental planning instrument provides may not be carried out except with development consent (disputed by the Appellant), otherwise than in accordance with a consent that has been obtained and is in force (the Appellant accepts that he had no development consent during the charge period). The offence is one of strict liability so that no mental element forms part of the elements of the offence.
The Council bears the onus of proof of establishing beyond reasonable doubt the elements of the offence as particularised in the charge. The Council accepts that it must establish that the Appellant cannot rely on the exempt development provisions in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP) and the LEP accepting the finding in Port Stephens Council v SS & LM Johnston Pty Ltd (2007) 152 LGERA 193; [2007] NSWLEC 30 at [70]. The Council must therefore negative beyond reasonable doubt that the activity giving rise to the charge is not exempt development and required development consent. The Appellant accepts he did not have a development consent.
The Appellant's counsel referred to Moore v R [2016] NSWCCA 185 in submitting that proof beyond reasonable doubt required all reasonable hypotheses or any reasonable possibilities inconsistent with the Council's case to be negatived. Moore concerned the directions of a trial judge in a jury trial considering a murder charge relating to the existence of any reasonable possibility of an exculpatory factor. At [43] Basten JA stated: … in any number of cases of high authority the courts have accepted that proof of a matter beyond reasonable doubt involves rejection of all reasonable hypotheses or any reasonable possibility inconsistent with the prosecution case. Asking whether there is a reasonable possibility that the accused did hold an exculpatory belief does not equate to the creation of an incomplete universe, nor does it distract attention from either the burden or standard of proof; rather, it is consistent with both.
The elements of the charge in Moore required proof of mens rea and the evidence of the prosecutor relied on circumstantial matters. While such authority must be accepted its application in the context of this matter has limited utility given the strict liability nature of the offence and the nature of the evidence, as I will discuss further below.

[5]

Environmental Planning and Assessment Act 1979

The relevant provisions of the EPA Act are as follows: Part 1 Preliminary … 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: … development means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition. … environmental planning instrument means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force. Part 4 Development assessment Division 1 Carrying out of development - the threefold classification 76 Development that does not need consent (1) General If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies. (2) Exempt development An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development. (3) If development is exempt development: (a) the development may be carried out, in accordance with the instrument, on land to which the provision applies without the need for development consent, unless that land: (i) is critical habitat, or (ii) is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987), and (b) Part 5 does not apply to the development. A provision made under subsection (2) has no effect at any time during which the land is land to which paragraph (a) (i) or (ii) applies. 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 … Part 6 Implementation and enforcement … Division 4 Offences … 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. …

[6]

Palerang Local Environmental Plan 2014

The LEP provides relevantly: Part 1 Preliminary … 1.9 Application of SEPPs (1) This Plan is subject to the provisions of any State environmental planning policy that prevails over this Plan as provided by section 36 of the [EPA] Act. … Land Use Table Zone RU1 Primary Production 1 Objectives of zone • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To encourage diversity in primary industry enterprises and systems appropriate for the area. • To minimise the fragmentation and alienation of resource lands. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To minimise the impact of any development on the natural environment. • To ensure that development does not unreasonably increase the demand for public services or facilities. 2 Permitted without consent Extensive agriculture; Home businesses; Home occupations 3 Permitted with consent Airstrips; Animal boarding or training establishments; Aquaculture; Backpackers' accommodation; Bed and breakfast accommodation; Biosolids treatment facilities; Building identification signs; Business identification signs; Caravan parks; Cellar door premises; Cemeteries; Community facilities; Crematoria; Depots; Dual occupancies; Dwelling houses; Eco-tourist facilities; Environmental facilities; Environmental protection works; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Function centres; Garden centres; Helipads; Home-based child care; Home industries; Hotel or motel accommodation; Industrial training facilities; Information and education facilities; Intensive livestock agriculture; Intensive plant agriculture; Neighbourhood shops, Open cut mining; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (outdoor); Restaurants or cafes; Roads; Roadside stalls; Rural industries; Rural workers' dwellings; Secondary dwellings; Service stations; Sewage treatment plants; Truck depots; Veterinary hospitals; Water recycling facilities; Water supply systems 4 Prohibited Any development not specified in item 2 or 3 Part 3 Exempt and complying development 3.1 Exempt development (1) The objective of this clause is to identify development of minimal environmental impact as exempt development. (2) Development specified in Schedule 2 that meets the standards for the development contained in that Schedule and that complies with the requirements of this Part is exempt development. … Part 6 Additional local provisions 6.1 Earthworks (1) The objective of this clause is 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. (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 development that is permitted without consent under this Plan or to development for which development consent has been given. … Schedule 2 Exempt Development Farm dams in Zone RU1 (1) Must have a means of managing water overflow. (2) Must be a minimum of 50m from each property boundary. (3) Must not involve works within 40m of the bank of a named watercourse. (4) Must not contain a spillway more than 1m in height. (5) Must comply with the Water Management Act 2000. Dictionary … agriculture means any of the following: (a) aquaculture, (b) extensive agriculture, (c) intensive livestock agriculture, (d) intensive plant agriculture. … extensive agriculture means any of the following: (a) the production of crops or fodder (including irrigated pasture and fodder crops) for commercial purposes, (b) the grazing of livestock for commercial purposes, (c) bee keeping, (d) a dairy (pasture-based). … farm building means a structure the use of which is ancillary to an agricultural use of the landholding on which it is situated and includes a hay shed, stock holding yard, machinery shed, shearing shed, silo, storage tank, outbuilding or the like, but does not include a dwelling. … fill means the depositing of soil, rock or other similar extractive material obtained from the same or another site, but does not include: (a) the depositing of topsoil or feature rock imported to the site that is intended for use in garden landscaping, turf or garden bed establishment or top dressing of lawns and that does not significantly alter the shape, natural form or drainage of the land, or (b) the use of land as a waste disposal facility. ... waterbody (natural) or natural waterbody means a natural body of water, whether perennial or intermittent, fresh, brackish or saline, the course of which may have been artificially modified or diverted onto a new course, and includes a river, creek, stream, lake, lagoon, natural wetland, estuary, bay, inlet or tidal waters (including the sea). …
As permitted by s 76 of the EPA Act the LEP provides for exempt development in cl 3.1. Development specified in Sch 2 which meets the standards for the development contained in that Schedule and that complies with the requirements of this Part is exempt. In the RU1 zone farm dams are exempt development if the five requirements specified in Sch 2 are complied with. There were two dams constructed or being constructed on the land at the time of the offence. Only the one relevant to the charge will be addressed in this judgment.

[7]

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Provisions of the SEPP relevant to this appeal follow: Part 1 General Division 1 Preliminary … 1.8 Relationship with other State environmental planning policies (1) If this Policy and any other State environmental planning policy, whether made before or after the commencement of this Policy, specify the same development, as either exempt development or complying development, the other Policy does not apply to that development, except as provided by subclauses (2)-(4). … 1.9 Relationship with local environmental plans and development control plans (1) Exempt or complying development under this Policy and standard plans A standard plan does not apply to development that is specified in the plan as exempt development or complying development and that is specified in this Policy as exempt development or complying development. … (11) In this clause: … standard plan means a local environmental plan (whether made before or after the commencement of this Policy) that has been made as provided by section 33A (2) of the Act and includes a development control plan adopted for the purposes of the plan. Division 2 Exempt and complying development 1.15 What development is exempt development? (1) Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy. (2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out. Part 2 Division 1 General Exempt Development Code … Subdivision 15 Earthworks, retaining walls and structural support 2.29 Specified development Earthworks and the construction or installation of a retaining wall or other form of structural support is development specified for this code if it is not carried out, constructed or installed on or in a heritage item or a draft heritage item, on a flood control lot or in an environmentally sensitive area. 2.30 Development standards The standards specified for that development are that the development must: (a) not be a cut or fill of more than 600mm below or above ground level (existing), and (b) be located at least 1m from each lot boundary, and (c) if it is carried out, constructed or installed in a heritage conservation area or a draft heritage conservation area - be located in the rear yard, and (d) be located at least 40m from a waterbody (natural), and (e) not redirect the flow of any surface water or ground water or cause sediment to be transported onto an adjoining property, and (f) if it is a retaining wall or structural support for excavation or fill, or a combination of both: (i) be not be more than 600mm high, measured vertically from the base of the development to its uppermost portion, and (ii) be separated from any retaining wall or other structural support on the site by at least 2m, measured horizontally, and (iii) be located at least 1m from any registered easement, sewer main or water main, and (iv) have adequate drainage lines connected to the existing stormwater drainage system for the site, and (g) if the fill is more than 150mm deep - not occupy more than 25% of the area of the lot, and (h) if the fill is imported to the site - be free of building and other demolition waste, and only contain virgin excavated natural material (VENM) as defined in Part 3 of Schedule 1 to the Protection of the Environment Operations Act 1997. Subdivision 16 Farm buildings 2.31 Specified development The construction or installation of a farm building used for the purpose of an agricultural activity and not used for habitable purposes is development specified for this code if it is: (a) constructed or installed on land in Zone RU1, RU2, RU3, RU4 or RU6, and (b) not constructed or installed on or in a heritage item or a draft heritage item or in an environmentally sensitive area. 2.32 Development standards (1) The standards specified for that development are that the development must: (a) be not higher than 7m above ground level (existing), and (b) not have an area of more than: (i) if it is a stockyard - 0.5ha, or (ii) if it is any other building - 200m2 (if situated on a lot of 2ha or more) or 50m2 (if situated on a lot of less than 2ha), and (c) be located at least 20m from the primary road frontage of the lot and at least 10m from the other lot boundaries, and (d) not be constructed or installed within 50m of a dwelling on an adjoining property, and (e) be located at least 50m from a waterbody (natural), and (f) to the extent it is comprised of metal components - be designed by, and constructed in accordance with the specifications of, a professional engineer, and (g) to the extent it is a silo - not be fitted with a motorised fan for aeration or drying purposes. (2) If the development is a shipping container, there must not be more than 1 shipping container per lot.
The SEPP specifies exempt development codes separately to the LEP provisions outlined above. Clause 1.9 of the LEP extracted above in par 12 provides that the LEP is subject to the provisions of any applicable SEPP, as s 36 of the EPA Act states. Clause 6.1(2)(a) of the LEP refers to earthworks which are exempt under another applicable environmental planning instrument. The application of both environmental planning instruments will need to be considered for each particular of the charge.

[9]

Written statement of Mr Eichler 12 May 2016

The statement of Mr Eichler Senior Environmental Compliance Officer at the Council was included in the court book and was an exhibit before the Local Court. On 27 April 2015 Mr Eichler received a complaint from a resident of Royalla regarding the Appellant's land. On 28 April 2015 Mr Eichler attended the land and observed machinery including a truck, excavator, bulldozer, a light utility and what appeared to be a generator. He also saw as he drove up the driveway that there had been tracks cleared, a large mound of dirt had been excavated and that there were large areas of soil removed as a result of excavation works. Mr Eichler spoke to the Appellant's father who called the Appellant on his mobile phone. Mr Eichler spoke to the Appellant on the phone and recorded their conversation in his statement as follows: MR EICHLER: Hello my name is Roger Eichler from Palerang Council, are you the land owner here at this property at Royalla? APPELLANT: Yes, I am. My name is Ben, Ben Moseley. MR EICHLER: Hi Ben, I'm making inquiries into the land clearing and excavation going on at this property. What's going on here? APPELLANT: Hi Roger, I'm getting ready to build my house and shed there on my property. I've excavated a shed site at the bottom where you are and a house site at the top of the hill, I've spoken to Haydon in your office. He told me all the work I am doing is permissible because it is zoned rural. I've also checked on the web and it says I'm ok to do what I'm doing. MR EICHLER: Ok, I'm not too sure about this but what I would like to do if that's ok with you is to take a look around and get some photos, take these back to the office and let you know if this is all ok or not. Is that ok with you? APPELLANT: Sure, no problem, help yourself. MR EICHLER: Can you clarify what you've done here? APPELLANT: Yeah sure, near where you are I've cleared and excavated a shed site and built some tracks, there's a creek crossing just next to you and a track leading up the hill to a house site at the top of the hill. MR EICHLER: Ok, what I'll do is go around and get my photos; I shouldn't be more than 10-15 minutes then I'll leave. But what I will ask is that you cease all work until I get back to you. By that I mean stop all excavation works until after I speak to Haydon and the other planners to confirm if this is exempt development. This might be a day or two. Is that ok? APPELLANT: That's fine, I'll let my Dad know. Can you hand me back to him please? MR EICHLER: Ok, no problem. I'll speak to you soon.

[10]

Mr Eichler then inspected the property and took photographs of the premises and the excavation works undertaken, which were Annexure B to his statement. He described the photographs relevant to the charge as follows: Photograph B: the shed site itself, which had been excavated to a depth of approximately 1.5 metres and an area about 15 metres wide and 50 metres long with excavated materials levelled off and compacted to form part of the shed site. [This photograph showed the work the subject of particular B]. Photograph C: spoil and other materials collected into about 4 stock piles with one stock pile being about 5 metres high and about 10 metres wide. [This photograph showed the work the subject of particular C]. Photograph D: a creek crossing constructed of soil, rocks and excavated fill. These materials were built up over some large concrete pipes which were laid in the creek bed; however, the pipes did not appear to be in line with the main stream of the creek, with the main stream being blocked with rocks and other materials. I estimate that the creek crossing was about 10 metres high and about 15 metres across the creek and about 4 metres wide at the top of the crossing. [This photograph showed the work the subject of particular D]. Photograph E: a track constructed from the creek crossing up to an area about 500 metres up a hill side. (Photographs E1 and E2). [These photographs showed the work the subject of particular E]. Photograph G: an area excavated to a depth of about 1 metre, about 15 metres wide and 35 metres long with spoil and other materials compacted to form what was described to me by the defendant as the house site. The area cleared for the house site and the proposed shed were bare earth and rock and had not been constructed with concrete, paving or any other hard material. Parked nearby was a tipper truck. [This photograph showed the work the subject of particular F]. Photograph H: other construction/excavation around this area including excavation works which appeared to be a dam under construction within a separate creek to the one at the bottom of the hill. The dam being excavated from rock and earth could not be considered a farm due to its location away from crops or stock pastures and was about 15 metres wide, about 20 metres long. A dam had not been constructed at this time. [This photograph showed the work the subject of particular G].

[11]

Mr Eichler observed that the land was generally overgrown with scrub and trees and was not being used for any agricultural activity. The land was vacant and no buildings were seen.
On 29 May 2015 Mr Eichler inspected the land for a second time with Ms McManus planner at the Council as arranged with the Appellant. The Appellant stated that he was in the process of applying for development consent for the proposed house. The Appellant travelled in a vehicle with Mr Eichler and Ms McManus who both pointed out areas of concern to them regarding the works on the site. The Appellant agreed that the excavation at the shed site was deeper than 600mm but stated that because it was rural development he did not need to seek approval. Ms McManus told him that they would make further enquiries but that she thought he did require development consent. Up the hill from the creek crossing the Appellant agreed that the track he had constructed would create an overflow of water which would wash soils downhill onto neighbouring land. He agreed to construct the track better, include erosion and sediment controls downstream and put in sediment fences and hay bales to stop the soil washing across the boundary.
At the house site the Appellant was asked whether he had approval to excavate deeper than 600mm and he stated that he did not but that he believed he did not need it. The Council officers observed the hole that Mr Eichler had seen the previous month and which he observed had been excavated and enlarged since the previous inspection. Mr Eichler asked the Appellant what he was building and he stated, "[a] dam for the house, it's within my harvestable rights". Mr Eichler said that he would look into it. Mr Eichler observed a bulldozer and excavator at this location and formed the view that they had been used to construct the dam and new works. Mr Eichler instructed the Appellant to install more sediment fences as the slope of the land headed downhill from the house, and the Appellant agreed to do so. At the conclusion of the inspection Mr Eichler instructed the Appellant not to do any more works on the land other than the erosion and sediment control works.
Mr Eichler sent an email to the Appellant about the installation of erosion and sediment controls the same day as the inspection which was annexed to his statement. Ms McManus prepared a file note regarding the inspection which Mr Eichler reviewed and found to be accurate. The file note dated 9 February 2016 was annexed to Mr Eichler's statement. Mr Eichler formed the view as a result of the two inspections that development had continued on the site between the two inspections.
On 4 December 2015 the Appellant lodged a development application (DA) with the Council, which was Annexure G to Mr Eichler's statement. On 22 January 2016 Mr Eichler printed off three aerial images of the subject land dated 30 December 2014, 27 April 2015 and 12 June 2015. From each of those images Mr Eichler stated that the progress of the excavation on the premises could be seen. The aerial photographs were annexures H1, H2 and H3 to his statement. On 16 March 2016 using geographic information system tools Mr Eichler calculated the approximate area of the works carried out on the land, on the basis of the two inspections and the works seen on the aerial photograph dated 12 June 2015. Mr Eichler made the following calculations: 1. The total length of the internal roads constructed by the Appellant is approximately 955m. The estimated width of the internal roads is approximately 2.5m. 2. Therefore the area of the excavated internal roads is approximately 2387.5m2. 3. The estimated area excavated at the shed site is approximately 750m2. 4. The estimated area excavated at the house site is approximately 1400m2. 5. The estimated area cleared at the entrance of the land is approximately 1000m2.

[12]

Oral evidence of Mr Eichler in the Local Court

Mr Eichler gave oral evidence at the hearing in the Local Court on 17 May 2016. He was asked in examination in chief to further describe the photographs he had described in writing in his statement as extracted above in par 18. Photograph B shows a view of the shed site and the 1.5m depth of the excavations and the cleared area of approximately 15m wide and 35m long. Photograph C was described as showing a pile of spoil next to the track. Mr Eichler stated that photograph D shows the creek crossing and at the bottom of the spoil the outline of a drainpipe. He stated that the creek crossing was built with spoil and rocks and material from the excavations on the site. Photographs E1 and E2 show the track leading up the hill, E1 taken a short distance from the creek crossing and E2 taken approximately halfway up the hill. Photograph G was described as the house site or proposed house site showing excavations. Regarding photograph G of the house site Mr Eichler said that he knew that the size of the cut was greater than 600mm. He stated that photograph H shows the small creek at the top of the site which had been excavated into. Mr Eichler was also asked about the additional work he believed had taken place on the site between his visit on 28 April and his visit on 29 May 2015.
In cross-examination Mr Eichler was asked about the evidence he had given about measurements and depths and whether they were guesses or estimates. He stated that he had experience estimating sizes but did not check his estimations with a tape measure. He was asked about how he reached his estimations as to size and depths and what assumptions he had made about the land. Mr Eichler stated that in relation to one measurement he checked his estimate of 300mm by comparing it to the height of his boot but did not specifically state any assumptions he had made. Regarding the creek on the site Mr Eichler was asked whether it was a tier one or tier two creek, to which he stated that it is tier one at the top of the site and tier two below the creek crossing. Mr Eichler was asked whether the piles of soil he observed and the compacted flat areas appeared to be made with soil from the site, to which he answered in the affirmative.

[14]

Oral evidence of the Appellant in the Local Court

The Appellant gave oral evidence. In examination in chief the Appellant was taken to the photographs taken by Mr Eichler described in his evidence above. The Appellant stated that the cut shown in photograph B was 900mm, being the actual cut into the slope, with approximately 900mm fill above ground. Photograph C was described as showing topsoil removed from the roads, stockpiled for ease of use. He stated that those stockpiles had since been used in different ways throughout the site. Photograph D shows the creek crossing over a gully in which he put some concrete pipes, placed fill on top, compacted it and made an access track. The Appellant was asked about his experience working with waterways, and he stated that he had been working in the civil, commercial and residential construction industry for 20 years and that he was familiar with identifying different types of waterways. He concluded on the basis of his experience that the creek on the site was not a named watercourse and the appropriate method of crossing it would be the pipes that he used. Photographs E1 and 2 were described as showing the access road heading south from the creek crossing towards the top dam.
Photograph G is the east, south-eastern corner of the proposed house site. Regarding the works shown in photograph G the Appellant stated that when he excavated the dam he stockpiled the fill that was removed from the dam and then used that fill to cut and fill compacted layers of 150mm to 200mm for the proposed house. The construction of the dam was the first work undertaken on the site. The Appellant stated that water is an essential service for construction and the dam was strategically placed for its initial use for construction purposes, so that the tradespeople could have the water they needed. The dam was also placed strategically so that it would be close to locations of proposed development works in the future. He stated that the dam would be used "for livestock down the track". The Appellant was asked whether he could have built the dam without the access roads, to which he replied it would have been impossible to get the vehicles and machinery to the location. The Appellant was also asked about the sediment and erosion works he had undertaken on the land.
The Appellant was cross-examined about the sediment and erosion control plan on the site and whether one existed before Mr Eichler's inspection on 28 April 2015. The Appellant responded that he had a plan, just not a written plan, and by that time he had already installed some hay bales on the site to stop erosion. The Appellant was asked whether he accepts that he did the work that is the subject of the charge, to which he replied "of course, of course". The Appellant agreed that in the period of charge no DA had been lodged with the Council. He was asked questions regarding his clearing of the site for the house without knowing whether or not the application would be approved. The Appellant stated that it was his risk to do so, and that he levelled off the area for the house site as he did not want to leave stockpiles lying around as soil is more stable when it is compacted. If the DA had been refused the Appellant stated that he intended to establish terraced gardens on the land and that he could have put a terraced garden on the house site.
The Appellant agreed that there was no livestock on the land during the charge period and that there was still no livestock on the land at the date of the Local Court hearing. He stated that "[t]he fencing at the moment is terrible, I cannot put livestock out there."

[17]

Council's submissions

The earthworks involved in constructing the creek crossing did not meet the development standard in cl 2.30 of the SEPP and therefore cannot be exempt development. Clause 2.30 of the SEPP specifies relevantly that to be exempt fill cannot exceed 600mm above ground level (cl 2.30(a)), the development must be located at least 40m from a waterbody (natural) (cl 2.30(b)), and the development must not redirect the flow of any surface water or ground water or cause sediment to be transported onto an adjoining property (cl 2.30(e)).
The creek crossing works comprised significant filling of the creek to approximately 10m high, clearly exceeding the 600mm limit in cl 2.30(a). The works were undertaken in a waterbody and were within 40m of a waterbody (cl 2.30(b)). The pipes used to construct the creek crossing had the potential to redirect the flow of surface water and cause sediment to be transported to an adjoining property. In Mr Eichler's statement he describes his conversation with the Appellant at the land on 29 May 2015 when the Appellant agreed with him that that there was a risk of sediment flowing downhill and agreed to put in place sediment control measures (as outlined above in par 19).
The Appellant's submission that the track and crossing were required to build the dam, the dam being a farm dam and therefore exempt development under Sch 2 of the LEP, would not be accepted. There is clear evidence that the dam is not a farm dam as no farming or agricultural activities were taking place on the land, nor had they for some time. The Appellant gave evidence in the Local Court that the purpose of the dam was for the construction of the house. The creek crossing cannot be ancillary to a farm dam, as there is no farm dam.
In any case development that requires consent cannot avoid the requirement to obtain development consent because it is ancillary to exempt development. Any works claimed to be ancillary to exempt development must themselves be individually exempt if no development consent is to be required. The creek crossing works were in fact ancillary to the house, development that the Appellant accepts requires development consent. During the charge period no development consent had been granted for the house and therefore the creek crossing works amount to a breach of the EPA Act.

[19]

Particular D proved

The earthworks for the creek crossing are development as defined in s 4 of the EPA Act and require development consent unless they are exempt or ancillary development. The Appellant accepts he did not have any relevant development consent in the charge period. I will therefore consider whether the Council has established beyond reasonable doubt that the creek crossing is not exempt development.
Clause 3.1 of the LEP provides for development with minimal environmental impact to be identified as exempt development. Clause 6.1 (Earthworks) of the LEP states that development consent is needed for earthworks unless cl 6.1(2)(a) or (b) applies. Reliance was placed on cl 6.1(2)(b) first part which states that "development consent is not required for earthworks which are ancillary to development that is permitted without consent under this Plan...". As extracted above in par 12 the land use table in the LEP provides that "extensive agriculture" is permitted without consent in the RU1 zone. The Appellant argued in oral submissions that as he was intending to undertake extensive agriculture in the future, which did not need development consent in the RU1 zone, the farm dam was exempt as it was ancillary to that purpose. The track including the creek crossing to the dam was also exempt as it was ancillary to that purpose. As identified by me at the hearing, that approach would enable a potentially large amount of earthwork to be unregulated if that construction of the LEP was correct. Exempt development is described in cl 3.1(1) of the LEP as development of minimal environmental impact. "Extensive agriculture" is defined in the LEP to include the production of crops and fodder and the grazing of livestock for commercial purposes inter alia as set out above in par 12.
Whether any factual basis existed during the charge period for applying cl 6.1(2)(b) as relied on by the Appellant must be considered. The Appellant stated to Mr Eichler on 28 April 2015 that the track was "leading up the hill to a house site at the top of the hill". In his oral evidence in the Local Court the Appellant referred to the need to have water for the bricklayers and stonemasons for the house and that the dam was "strategically placed for initial use for - for construction purposes". A DA was lodged with the Council by the time of the hearing in the Local Court. It was accepted by the Appellant in oral evidence before the Local Court that there was currently no agricultural activity taking place on the land. The Appellant stated in oral evidence that the fencing on the land was in poor condition and that it was not suitable to hold livestock at that time. Mr Eichler's evidence was that the land was overgrown with scrub and that there was no sign of agriculture taking place at the time of his inspection or in the recent past. The evidence of Mr Eichler and the Appellant outlined above in pars 19, 29 and 31 and summarised in this paragraph confirms that during the charge period the land was not being used for agricultural purposes, nor did the Appellant submit in this appeal that it was. The Appellant submits that he had an intention to use the land for extensive agriculture in the future. The only evidence of future use given in the Local Court hearing was the Appellant stating in oral evidence that the dam would be used for livestock at a later date as set out in par 29 above.
Prima facie, as extensive agriculture was not being carried out on the land during the charge period the dam and creek crossing could not be ancillary to such a use. The minimal evidence from the Appellant during the Local Court hearing does not establish that use of the land for extensive agriculture, meaning the grazing of livestock for commercial purposes, was intended. If I am wrong in that conclusion there is no evidence to suggest that such a use was imminent. The Appellant's evidence lacked any indication of when such a use would occur and was speculative. I consider the farm dam further below.
I note that clause 6.1(2)(b) second part ("…or to development for which development consent has been given") could not apply to render the earthworks exempt development as no development consent for the house was obtained before or during the charge period.
Separately, in written submissions the Appellant relied on the LEP provisions dealing with farm dams. Farm dams are exempt development in the RU1 zone by virtue of cl 3.1(2) of the LEP, being specified in Sch 2. No definition of "farm dam" is provided in the LEP. Applying the ordinary usage of the term "farm" and drawing on the definition of "farm building" in the LEP (set out above in par 12) the dam's use must be ancillary to the overall use of the land for agriculture. "Agriculture" is defined in the Dictionary to the LEP to include "extensive agriculture", "intensive livestock agriculture" and "intensive plant agriculture" inter alia. As held above in par 43 the evidence of Mr Eichler and the Appellant outlined above in pars 19, 29 and 31 confirms that at the time of the offence the land was not being used for agricultural purposes. The Appellant accepted that it was not.
The Appellant sought to argue that as the intended future use of the land was agricultural the dam had a dual purpose which included its future use as a farm dam. The evidence of the purpose of the dam during the charge period does not support a finding of a dual purpose in the charge period. For a dam to satisfy the exemption from development consent in Sch 2 of the LEP as a farm dam, it is not sufficient to rely on a stated intention to use the land for agricultural purposes at some unspecified time in the future. There must be a direct link between the use of the dam and the use of the land for agricultural purposes during the charge period, or at the very least evidence that it will within a short timeframe be used for agricultural purposes. There is no such evidence. The evidence summarised in par 43 establishes that the only purpose of the dam during the charge period was to facilitate the building of a house.
Dealing with further arguments of the Appellant, the Appellant's stated intention in cross examination before the Local Court was to use the house site in the future (outside the charge period) for terraced gardens if development consent was not granted for the house. Even if terraced gardens did meet the relevant definition of extensive agriculture (about which I make no finding) this was a backup plan to building a house. This evidence confirms that the only purpose of the dam and track to it which includes the creek crossing was to facilitate construction of a house in the charge period.
To draw on Moore, the evidence does not give rise to consideration of whether other realistic hypotheses or reasonable possibilities inconsistent with the prosecution case arise on the evidence. The creek crossing required development consent which the Appellant did not have unless the exemption in the SEPP applies.
The Appellant did not rely on the requirements for earthworks to qualify as exempt development in cl 2.30 of the SEPP as he accepted through his counsel that the development standards in cl 2.30 were not met, as the Council submitted. That was a correct course of conduct in my view. For completeness I note that two of the development standards in cl 2.30 were not met. In relation to subcl (a), no cut or fill more than 600mm above ground level, Mr Eichler gave evidence of the substantial height, width and length of the creek crossing. I accept that he is experienced in measuring lengths by sight. I consider that his evidence regarding measurements of the works on the land in this instance is reliable. Mr Eichler's evidence is that the creek crossing involved fill to the height of 10m. Photograph D annexed to Mr Eichler's statement and included in Exhibit A shows a creek crossing of a substantial height above two pipes.
Under cl 2.30(d) earthworks must not be within 40m of a waterbody (natural). "Waterbody (natural)" is not defined in the SEPP. The Appellant did not dispute that the area shown in photograph D was a creek crossing. The evidence of Mr Eichler is that the creek shown in photograph D flows at least intermittently. The Appellant gave oral evidence that he designed the creek crossing following advice from an industry expert and a colleague who calculated the volume of water flow, and on that basis he chose the appropriate pipe diameter. In his oral evidence the Appellant referred to the creek as a watercourse and a waterway.
Waterbody is widely defined in the Dictionary to the LEP to include a natural body of water, whether perennial or intermittent, fresh, brackish or saline, the course of which may have been artificially modified or diverted onto a new course, and includes a creek inter alia. While I conclude elsewhere that the application of the SEPP should not be narrowed by definitions in the LEP, in this instance it provides a usefully wide definition of "waterbody". I also find beyond reasonable doubt that as the creek crossing earthworks were undertaken in a creek bed, the requirement that exempt earthworks not occur within 40m of a waterbody (natural) in cl 2.30(d) is not satisfied.
The only evidence regarding whether the earthworks will redirect the flow of surface water or cause sediment to be transported onto an adjoining property (cl 2.30(e)) is Mr Eichler's description in his statement of photograph D showing pipes not in line with the main stream of the creek and that rocks and other material blocked the creek. There is insufficient evidence to reach any conclusion on whether cl 2.30(e) of the SEPP is breached.
The Council has established beyond reasonable doubt that the creek crossing earthworks cannot be exempt development under the SEPP. Particular D of the charge is established beyond reasonable doubt.

[27]

Particular F not proved

The house site earthworks require development unless exempt development. I will first determine if cl 6.1(2)(b) of the LEP applies to the house site earthworks activity. The Appellant argued that the site had a dual purpose or an alternative purpose of development for terraced gardens which he submitted was an agricultural activity. For the reasons already given at par 47, describing the purposes of the cleared site in this way does not accurately reflect the evidence of the principal purpose during the charge period, namely excavation of a site for a house. The Appellant's evidence is that terraced gardens would be built only if the house was not approved. This supports a finding that the excavation of the site for a house was the primary, indeed only, purpose of the earthworks during the charge period. No development consent had been granted for that purpose during the charge period. That the site could have been used to construct another farm building is immaterial given my finding on the primary purpose in the charge period. Clause 6.1(2)(b) does not apply to render the earthworks exempt development. Consequently the earthworks for the house site required development consent under the LEP unless Subdiv 15 (Earthworks) of the SEPP applies.
At issue is whether the Council has established beyond reasonable doubt that the excavation (cut) was more than 600mm as required by cl 2.30(a) in order to be exempt development. The Appellant submitted that he gave oral evidence at the Local Court hearing that the cut and fill at the house site was 150 to 200mm. The transcript of the Appellant's evidence of the Local Court hearing records: …we used that fill [removed from the dam] to cut and fill and place fill, compact it in layers of 150mil [sic] to 200mil [sic] for a proposed dwelling. (TS 17/5/15 p 23 ln 20-21.
This evidence suggests that the total cut and fill was not 150 to 200mm in total, rather the excavation involved more than one layer of cut and fill, with each layer having a depth between 150 and 200mm. The issue of whether the Council has established beyond reasonable doubt that the depth overall was more than 600mm remains.
I have accepted in par 50 that Mr Eichler has experience in estimating measurements such as those he has given evidence about. Mr Eichler accepted that all the measurements relied on by the Council in this case are estimates and he did not use any instrument or equipment to confirm his estimates. Unlike particular D where the estimated measurement in question was very different from the required standard, the difference between Mr Eichler's estimated 1m of cut and fill and the maximum standard of 600mm is relatively small. In the absence of any other evidence, it is not proven beyond reasonable doubt by his estimation that the cut and fill for the house site was greater than 600mm. As the earthworks are potentially less than 600mm in depth they are exempt development under Subdiv 15.
Particular F has not been established beyond reasonable doubt.

[35]

Particular B proved

The shed earthworks required development consent unless exempt development. In order for the shed to be a farm building falling within the exemption in Subdiv 16 (Farm buildings) of the SEPP, it must be "used for the purpose of an agricultural activity".
"Agricultural activity" is not defined in the SEPP. The Council argued that the definitions for agriculture in the LEP should be applied in relation to the SEPP. These definitions would narrow the meaning of agricultural activity as "agriculture" is defined in the Dictionary to the LEP as "aquaculture", "extensive agriculture", "intensive livestock agriculture" and "intensive plant agriculture". These four terms are also separately defined in the LEP. There is no statutory basis for narrowly construing the SEPP provision by reference to the LEP. The term "farm building" and "agriculture" in the SEPP should be given a wide meaning in the absence of any statutory indication that it should be narrowly construed.
There was very limited evidence in the Local Court about the Appellant's intentions in relation to the use of the shed as identified in the exchange with Mr Eichler set out in par 76. In the only oral statement in evidence on this issue the Appellant said to Mr Eichler that he was intending to use the shed as part of a rural development and did not need consent. The onus of proof that it was not a farm building falls on the Council. I held earlier in relation to particulars D, E and G that in the charge period no agricultural activity was taking place on the land (which the Appellant does not dispute). I held that there was an absence of any evidence that extensive agriculture was intended to commence and, alternatively, that such a use was not imminent after the charge period and was speculative. There is no evidence of any other intended purpose of the shed beyond its use as part of a rural development. Given the definition of farm buildings requires use for the purpose of an agricultural activity this evidence does not confirm the intended future use of the shed as coming within that definition.
The Council has discharged its onus of proof beyond reasonable doubt that the proposed shed was not a farm building in the charge period or that it was intended to be. Subdiv 16 (Farm buildings) of the SEPP does not apply. If I am wrong in that conclusion the clause only applies if the development standards in cl 2.32 are met. Mr Eichler's evidence establishes that the cleared area was greater than the maximum area specified in cl 2.32(1)(b)(ii). Mr Eichler estimated the cleared area was 750m2, substantially more than the 200m2 permitted without development consent.
As to the earthworks exemption in Subdiv 15 of the SEPP, the evidence of Mr Eichler is that the shed site was excavated to a depth of approximately 1.5m. This substantially exceeds the 600mm standard in cl 2.30(a) of the SEPP. As it is not exempt development the shed required development consent in the charge period, which the Appellant did not have.
Particular B of the charge is established beyond reasonable doubt.

Moseley v Queanbeyan-Palerang Regional Council

At a glance

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Judgment (39 paragraphs)

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Legislation Cited (2)

Cases Cited (3)

Cited By (2)